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iminal Appeal No. 58 of 1959. Appeal by special leave from the judgment and order dated November 7, 1958, of the orissa High Court in Original Criminal Misc. Case No. 8 of 1958. A.V. Viswanatha Sastri, H. B. Khanna and T. M. Sea, for the appellant. H. N. Sanual, Additional Solicitor General of India, B. M. Patnaik, ;section N. Andley, J. B. Dadachanji and Ramewar Nath, for respondent No. 1. 1961. March 14. The Judgment of the Court was delivered by MUDHOLKAR, J. In this appeal by special leave, the appellant who has been found guilty of contempt of court by the High Court of Orissa is challenging his conviction. To this appeal, as well as to criminal appeal 2 of 1960 in which another person is challenging his conviction for contempt of court by the same High Court, the Chief Justice and the Judges of the High Court have been made parties. The learned Additional Solicitor General who has put in an appearance for a limited purpose has raised a point that in such matters it is not at all necessary to make the Chief Justice and the Judges of the High Court parties. He points out that in England in all contempt matters the usual title of the proceeding is "in re. . . . (so and so)", that is the person who is proceeded against for contempt. The same practice, according to him, is followed in appeals. We must, however, point out that in appeals preferred to 321 the Privy Council from convictions for contempt by the High Courts in India as well as in appeals before this Court, the Chief Justice and the Judges of the High Court concerned have been made respondents. In Ambard vs Attorney General for Trinidad& Tobago (1) we find that the Attorney General was made a party to the appeal. The question raised by the learned Additional Solicitor General is of some importance and we think it desirable to decide it. In every suit or appeal persons who claim relief or against whom relief has been given or persons who have or who claim the right to be heard must undoubtedly be made parties. That is because they have an interest in the decision or the result of that case. But where Judges of a High Court try a person for contempt and convict him they merely decide a matter and cannot be said to be interested in any way in the ultimate result in the sense in which a litigant is interested. The decision of Judges given in a contempt matter is like any other decision of those Judges, that is, in matters which come up before them by way of suit, petition, appeal or reference. Since this is the real position we think that there is no warrant for the practice which is in vogue in India today, and which has been in vogue for over a century, of, making the Chief Justice and Judges parties to an appeal against the decision of a High Court in a contempt matter. We may point out that it is neither necessary nor appropriate to make the Chief Justice and the Judges of a High Court parties to a legal proceeding unless some relief is claimed against them. In a contempt matter there is no Question of a relief being claimed against the Chief Justice and the Judges of the High Court. The present practice should, therefore, be discontinued and instead, as in England, the title of such proceedings should be "in re. . (the alleged contemner)". Now we address ourselves to the merits of this case. The appellant was a Sub Divisional Magistrate at Dhenkanal in the year 1957. In a criminal matter (1)(1936) A.C. 322. 41 322 before him a Magistrate III class, Dhenkanal passed an order under section 522, Criminal Procedure Code putting the complainant, one Golam Mohammed in possession of some property. The order was actually executed Pion October 14, 1955. It was also confirmed by the Additional District Magistrate in appeal. It was, however, set aside by the High Court in revision on August 27, 1957. The opposite party, one Sarif Beg, thereupon made an application on November 20,1957 before the appellant for redelivery of possession. This application was opposed by Golam Mohammed. It was heard by the appellant on November 21, 1957, and order was reserved till November 23, 1957. Apparently the order was not ready and so the matter was adjourned to November 27, 1957. That day the application was allowed and compliance was directed by December 2, 1957. While these proceedings were going on, an application was made by the complainant to the High Court apparently for a review of its previous order. By order dated November 25, 1957 this application was admitted by P. V. Balakrishna Rao J. He also granted an interim stay of the proceedings in the case before the Sub Divisional Magistrate, Dhenkanal but did not direct that the said order should be communicated to the Sub Divisional Magistrate by telegram. On November 26, 1957 an application bearing an illegible signature was made to the Magistrate in which, amongst other things, it was stated "that the petition being not maintainable the opposite party has once more moved the Hon 'ble High Court in the matter and it has been ordered that further proceedings should be stayed until the disposal of the opposite party 's revision". Evidently, by "opposite party" the applicant meant himself and by "revision" he meant the review application made by him. Along with this application the complainant filed a telegram addressed to Mr. Neelakanth Misra, Pleader, Dhenkanal saying "Golam Mohammad 's case further proceedings stayed, Ram". It does not appear from the order sheet of the Magistrate that in the proceedings before him Mr. Neelakanth Misra represented the complainant. However, we will assume that he did so. Even then, there 323 is nothing to indicate as to who "Ram" is. There is no suggestion that he was the Advocate who represented the complainant before the High Court in the proceeding before it. It would appear that on November 7 25, 1957 the Sub Divisional Magistrate was out of,, headquarters and, therefore, the second officer directed that the application be placed before the Sub Divisional Magistrate on his return. The Sub Divisional Magistrate refused to act on this telegram but made the following endorsement on November 27, 1957 on what is said to be the complainant 's application: "No action can be taken on telegram, File." He then proceeded to deliver his/ order on the opposite party 's application for restitution. A copy of the order of the High Court was received at Dhenkanal on November 28, 1957. On that day the Sub Divisional Magistrate was absent and the second officer made the following entry in the order sheet: "Seen. A.D.M 's D.S. No. 326 dated 28 11 57. In Cr. Case No. 90/57 Hon 'ble High Court has stayed further proceedings. Stay further proceedings. Put up before S.D.M. Inform parties. " Consequent oil this endorsement no writ for re delivery of possesion was issued and thus the status quo was maintained. Upon perusal of the records on August 18, 1957 in connection with the application for review made by the complainant the High Court ordered the issue of a notice to the appellant on August 25, 1958 to show cause why he should not be committed for contempt. The appellant in a lengthily statement explained all the facts and also stated that he had not the slightest intention to disobey or go beyond the orders and directions of the High Court and that he passed the order dated November 27, 1957 because the complainant 's application for stay was not accompanied by an affidavit; nor was it signed by the complainant or his lawyer. He further stated that he should not be held liable for contempt because he had "no intention to prejudice or affect the course of justice in the disposal of the matter pending before the High 324 Court" and added that he acted in good faith in discharge of his official duties. Finally he stated that if after considering his explanation the Court found him guilty of disobeying its order he expressed his regret and tendered his apology for what he had done. This apology was regarded as merely a conditional apology and was not accepted. After an elaborate consideration of the case law on the question of disobedience of orders by subordinate courts, the High Court found the Sub bivisional Magistrate guilty of contempt and sentenced him to pay a fine of Rs. 100. By the same order the High Court dismissed the review application preferred before it by the complainant. Before a subordinate court can be found guilty of disobeying the order of the superior court and thus to have committed contempt of court, it is necessary to show that the disobedience was intentional. There is no room for inferring an intention to disobey an order unless the person charged had knowledge of the order. If what a subordinate court has done is in utter ignorance of an order of a superior court, it would clearly not amount to intentional disobedience of that court 's order and would, therefore, not amount to a contempt of court at all. There may perhaps be a case where an order disobeyed could be reasonably construed in two ways and the subordinate court construed it in one of those ways but in a way different from that intended by the superior court. Surely, it cannot be said that disobedience of the order by the subordinate court was contempt of the superior court. There may possibly be a case where disobedience is accidental. If that is so, there would be no contempt. What is, therefore, necessary to establish in a case of this kind is that the subordinate court knew of the order of the High Court and that knowing the order it disobeyed it. The knowledge must, however, be obtained from a source which is either authorised or otherwise authentic. In the case before us it is not clear as to who the person who signed the application dated November 27, 1957 was because the signature is illegible. It was not countersigned by a pleader nor is there anything to show that it was presented 325 in court by a pleader authorised to appear on behalf of the complainant. Furthermore, it was not accompanied by an affidavit. Therefore, there could be no guarantee for the truth of the facts stated there The in. No doubt, it was accompanied by a telegram and even though it was addressed to a pleader there is nothing to indicate that he was authorised to appear for the complainant. Further it is not possible to say as to the capacity of the sender. Had the telegram been received from the court or from an advocate appearing on behalf of the complainant before the High Court and addressed either to the court or pleader for the complainant different considerations would have arisen and it may have been possible to take the view that the information contained therein had the stamp of authenticity. Of course, we do not want to lay it down here as law that every telegram purporting to be signed by an advocate or a pleader is per se guarantee of the truth of the facts stated therein and also of the fact that it was actually sent by the person whose name it bears. In order to assure the Court about these matters an affidavit from the party would be necessary. Upon the materials before us we are satisfied that the Sub Divisional Magistrate was entitled to ignore the telegram as well as the application. We, therefore, hold that his refusal to act on the telegram did not amount to contempt of court. We may add that the fact that on receiving a copy of the High Court 's order through the Additional District Magistrate not only were further proceedings stayed but a writ to redeliver possession was not permitted to issue. This would show clearly that there was no intention on the part either of the Sub Divisional Magistrate or the second officer to disobey the order of the High Court. The conviction as also the fine of the appellant is erroneous and accordingly set aside. Appeal allowed.

IN-Abs

Under an order passed by the appellant, a Magistrate, one G was put in possession of some property on October 14, 1955. in revision the order was set aside by the High Court on August 27, 1957, and the opposite party S applied, on November. 20, 1957, to the appellant for redelivery of possession. G applied to the High Court for a review of its previous order and on November 25, 1957, the application was admitted and an interim stay was granted of the proceedings before the appellant. On November 26, 1957, an application bearing an illegible signature and not Supported by an affidavit was filed before the appellant indicating that the High Court had stayed the proceedings. A telegram addressed to a pleader, not the Counsel for G, was filed along with the application. The appellant refused to act on this application and telegram and on November 27, 1957, he passed an order allowing the application of S for restitution. On November 28, 1957, a copy of the order of the High Court was received and thereupon the writ for redelivery of possession was not issued. The High Court convicted the appellant for contempt of court for passing the order for restitution on November 27, when the High Court had stayed the proceedings. The appellant appealed to the Supreme Court and impleaded the Chief justice and judges of the High Court as respondents. 320 Held, that the appellant was not guilty of cortempt of court. Before a subordinate court can be held to be guilt, of contempt of court it must be stablished that it had knowledge of the order of the High Court and intentionally disobeyed it. The knowledge must be obtained from a source which was either authorised or otherwise authentic. In the present case the appellant was entitled to ignore the application as well as the telegram. In a contempt matter the Chief justice and judges of the High Court should not be made parties and the title of such a proceeding should be "In re. . the alleged contemnor".

399 of 1952. Petition under article 32 of the Constitution of India for a writ in the nature of habeas corpus, Godavari Parutekar, the petitioner, in person. M. C. Setalvad, Attorney General for India, (G.N. Joshi and P. A. Mehta, with him) for the respondent. December 5. The Judgment of the Court was delivered by BosE J. This is a habeas corpus petition under article 32 of the Constitution. The petitioner was detained the, 16th of October, 1951, under the of 1950 as amended in 1951. Her detention was actually longer than this but the earlier detentions were under a different set of orders which are not relevant to the present matter. The present detention is based an order of the District Magistrate, Thana, and merely says that the petitioner be detained, without specifying any period. The order of confirmation was passed the 4th of January, 1952, and there again no period was specified. The petitioner 's case is that as no period was specified in the order her period of detention expired the 31st of March, 1952, because of the amending Act of 1951 ; or at the outside the 30th of September, 1952, because of Act XXXIV of 1952 which effected a further amendment. The reply behalf of the State of Bombay is that the of 1950 was again amended by Act LXI of 1952 and that the effect of this amendment was to carry the petitioner 's detention to the 31st of March, 1953, because of section 11 A which was added to the original Act of 1950. The petitioner counters by saying that the new Act does not apply to cases in which the order of detention is not silent about its duration and so section 11 A does not serve to extend the period of her detention. She relies the following portion of section II A (2) ". every detention order which has been confirmed under section 11 before the commencement of the Preventive Detention (Second Amendment) Act 1952, shall, unless a shorter priod is specified in the order, continue to remain in force until the Ist day of April, 1953. " The petitioner concedes that no shorter period is specified in her order of detention but contends that as her detention would have expired either the 31st of March, 1952, or the 30th of September, 1952, one of those two dates must now be read into the order and when that is done we have an order which specifies as shorter period, therefore section 11 A (2) does not serve to extend her detention. We are unable to accept this contention. The section is clear and unless a shorter period is specified in the order, section I 1 A(2) applies. We cannot add the words "or must be deemed to have been specified by reason of the expiry of the earlier Act" into the section. We hold therefore that section 11 A(2) validly extended the period of detention till the Ist of April, 1953. 1 The petitioner 's next point is based articles 14 and 22(i)(b) of the Constitution. ' It arises in this way. Section 3 (1) (a) of the of 1950 classifies grounds of permissible detention into three categories. Article 22 (7) (b) empowers Parliament to prescribe the maximum period for which any person may "in any class or classes of cases" be detained. The petitioner argues that this permits only one maximum for each class and that if different maxima are provided for "equals" within a class it offends not only article 22 (7) (b) but also article 14 as interpreted by the decisions of this Court, She next argues that section 11 A, now introduced by the second amending Act of 1952 (Act LXI of 1952), does just that and so is ultra vires. Her point is put as follows. Sub section (1) of section 11 A states that the maximum period for which any person may be detained in pursuance of any detention order which has been confirmed under section 1 1 shall be twelve months from the date of detention. But sub section (2) qualifies this by dividing detentions into two classes; 213 (a) those in which the detention order was confirmed before 30th of September, 1952, and (b) those in which the confirmation was after that date, and it provides that. in the former case, unless a shorter period is specified in the order, the detention shall continue either till the 1st of April, 1953, or for twelve months from the date of detention, whichever expires later. This, she says, introduces a fresh classification which divides detentions into those before the Act and those after. That, she says, is ultra vires, first, because it introduces a discriminatory classification in the class to which she belongs under section 3 of the Act and, second, because it entails discrimination even in the fresh class into which she has been thrown by the new sub division, made by the second amending Act of 1952. As regards the first point, the ratio decidendi in Shamrao V. Parulekar vs The District Magistrate, Thana, and Others(1) applies here. In that case, detentions were divided into those which had already been considered by an Advisory Board and those which had not. This was upheld. The dividing line here is different, namely a certain date, but the principle is the same and its reasonableness is apparent from a consideration of the various amendments which have been made from time to time. The life of the Act of 1950, which was the principal Act, was extended till the 1st of October, 1952, by section 2 of the amending Act (Act XXXIV of 1952), and the effect of section 3 was to prolong the ' life of all detentions in force on 14th of March 1952, (provided they had been confirmed before that date) for so long as the principal Act was in force. At that date this meant till the 1st of October, 1952. But the second amending Act of 1952 extended the life of the principal Act till the 31st of December,1954. Therefore, in the absence of section 11 A all those detentions would have been extended till that date. But section 11 A modified that and put 1st of April,1953, as the latest date for these old detentions, (1) ; at 691 and 693. 214 It therefore conferred a benefit and cannot be deemed unreasonable. Sub section (3) of 'section 11 A shows that that was the object. But the petitioner attacked the provisions on the ground of discrimination. She said that even assuming the new classification of detentions into those before and after the 30th of September, 1952, to be good, section 11 A is nevertheless discriminatory because it discriminates amongst those in her class,, namely those whose detentions were made and confirmed before the 30th of September. She put it in this way. Taking the case of her own detention, she pointed, out that if section II A is good, it will continue till the 1st of April, 1953, that is to say, her detention will have been for a period of 17 1/2 months from the 16th of October, 1951, till the 1st of April, 1953. 'On the other hand, a person detained after her on, say, the last of September, 1952, would also be due for release on the 1st of April, 1953, and so would have had only six months ' detention. This, in our opinion, is not discrimination within the meaning of article 14. A maximum can be fixed, either by specifying a particular period, such as twelve months, or by setting an outside limit, land it is inevitable in such a case that the length of detention will vary in each individual case. Those taken into detention at a later date are bound to be detained for a shorter time. Government is not bound to detain everybody for the same length of time. , It has a discretion. Moreover, the appropriate Government has boon left power to revoke or modify the detention order at any earlier time. This point was considered in Shamrao V. Parulekar vs The District Magistrate, Thana, & Others (1) and was decided against the detenu. The petitioner endeavoured to have her application reopened on the merits contending again that the grounds of detention are vague. She relies on Shamrao V. Parulekar vs The State, of Bombay (2) where (1) ; at 691 at 693. (2) Petition No. 86 of 1952. 215 another detenu was released by another Bench of this Court in circumstances which., according to her, are very similar. We are unable to allow this as her petition has already been rejected on the merits. She was only allowed to appear on constitutional points. We understand that in the other petition this fact was not brought to the notice of the Court. The application is dismissed. Application dismissed.

IN-Abs

Section 11 A which was inserted in the of 1950 by the Preventive Detention (Second Amendment) Act, 1952, provided that the maximum period for which any person may be detained in pursuance of any detention order which has been confirmed under section 11 shall be twelve months from the date of detention. But subs. (2) qualified this by dividing do tentions into two classes: (a) those in which the detention order was confirmed before the 30th September, 1952, and (b) those in which the confirmation was after that date, and it provided that in the former case, unless a shorter period was specified in the order, the detention shall continue either till the 1st of April, 1953, or for twelve months from the date of detention, whichever expires later: I Held, (i) that the section did not contravene article 14 or article 22 (7) (b) of the Constitution merely because it introduced a fresh classification which divided detentions into those before the Act and those thereafter, as the classification was a reasonable one. The section did not involve any discrimination between persons whose detentions were confirmed before the 30th September, 1952, Merely because, as a result o f the section, in the case of some persons the period of detention may be longer and in the case of others it may be shorter; Shamrao Parulekar vs The District Magistrate, Thana and Others ( ; followed. (ii)that a detention order made the 16th October, 1951, which did not specify any period of detention was not a case where " a shorter period was specified in the order " within the meaning of section 11 A (2) merely because the detention would have expired either ' the 31st March, 1952, or 30th September, 1952, but for the Amendment Act.

200 of 1955. 439 Petition under Article 32 of the Constitution of India for the enforcement of Fundamental Rights. section K. Kapoor and Ganpat Rai, for the petitioner. G. C. Kasliwal and D. Gupta, for the respondents. St 1961. March 17. , J. Section 4 of the Rajasthan Land Reforms and Resumption of Jagirs Act, 1952 (which will be hereafter referred to as the Rajasthan Act), enacts: "4. All lands liable to pay land revenue. Not withstanding anything contained in any existing jagir law or any other law, all jagir lands shall, as from the commencement of this Act, be liable to payment of land revenue to the Government; and as from such commencement, the liability of (a) all Jagirdars to pay tribute to the Government under any existing Jagir Law shall cease, and The expression 'tribute ', the liability to pay which was thus extinguished from and after the commencement of the Act, was defined in section 2(r) of that Act in the following terms: 'Tribute ' in relation to a jagir, includes rekh, rakam, chatund, chakri or other charge of a similar nature; and" In the absence of the above provision the petitioner would have been under an obligation to pay to the Government 'hukamnama ' under section 190 of the Marwar Land Revenue Act, 1949 (referred to hereafter as the Marwar Act) which codified the earlier law irk that State. The short question that is raised by this petition under article 32 of the Constitution is whether the liability of the petitioner to pay 'hukamnama, the nature of which we shall explain later, has been extinguished by the provision of the Rajasthan Act above extracted which, as would be seen, turns on whether such a payment could be comprehended within the expression 'tribute '. Relying on section 4(a) of the Rajasthan Act, the petitioner resists the demand of he same made by the respondent State and impugns the legality of the claim. 440 It is necessary to set out a few facts and certain provisions of the Marwar Act to appreciate the matter in controversy. Thakur Nathu Singh, the Jagirdar of Ras a "Scheduled Jagir" under the Marwar Act died in July 1946 leaving the petitioner, Thakur Bahadur Singh as his next heir. "Scheduled Jagirs" are, under the Marwar Act, impartable and their line of devolution was prescribed by section 182 thereof which ran: "Succession shall be governed in the case of Scheduled Jagirs by the rule of primogeniture. " The succession, " however, was not automatic but had to be recognised by the Government and a renewal granted in favour of the successor before his title to the jagir was perfected. Sections 183 185 of the Marwar Act which are of relevance in this connection, ran: "section 183. All grants of Scheduled Jagirs are only for the life time of the holder, and no person is entitled to succeed to such jagir until his succession is recognized and the grant is renewed in his favour by His Highness. section 184. Subject always to His Highness pleasure, the grant of a Scheduled Jagir, on the death of the holder, shall be renewed in favour of the person entitled to succeed him in accordance with the provisions of this Act. section 185(1). A Scheduled Jagir, on the death of the holder, and until the renewal of the grant in favour of his successor, shall be resumed by the Government and taken under direct management. Provided that the claimant to succession shall, in the, absence of special orders of His Highness be permitted to retain possession pending orders of His Highness regarding the claim, if he is a direct lineal descendant in the male line of the last holder. (2). . . . (3). . . . (4). . . . The title of the petitioner to succeed to the jagir as the next heir of his father was recognised and a renewal granted in his favour by the Government by an 441 order dated March 18, 1952. Section 190 of the Marwar Act imposes an obligation on a succeeding heir whose title has been recognised and to whom a renewal of the jagir has been granted, to make certain payments. This section runs: "section 190(1). When succession to a Scheduled Jagir is recognised by His Highness and renewal of the grant ordered, the person in whose favour the grant is ordered to be renewed shall execute within one month of the communication to him of the orders, a 'Kabuliyat ' for payment of Hukamnama and other fees payable in accordance with sub sections (2) and (3). (2). . . . . . (3). . . . . . The amount payable by the petitioner, according to the scale of fees prescribed under the Act, came to Rs. 30,000 and the respondent State demanded this sum. Before, however, the date of the order according recognition and granting renewal in favour of the petitioner, the Rajasthan Act of 1952 had been passed and having received the assent of the President on February 13, 1952, came into force on publication in the Gazette on February 16, 1952, and under section 4 of this Act, whose terms have been set out already, the liability on the part of Jagirdars to pay "all tribute" to Government got extinguished. The question debated in this petition is whether the liability to pay 'hukamnama ' or other fees under section 190 of the Marwar Act is a 'tribute ' from the payment of which the Jagirdars are thus relieved. It is common ground, subject to a submission of the learned Advocate General for the respondent State, which we shall refer to a little later, that if the 'hukamnama ' which the petitioner has been required to pay to the Government was a 'tribute ' within section 4 of the Rajasthan Act, it would cease to be exigible and cannot be enforced from and after February 16, 1952, because it is not in dispute that the petitioner is a Jagirdar and 'hukamnama ' regarding which the demand has been made on him "is a demand which 56 442 is due under an existing Jagir law", viz., the Marwar Act. The precise question which now arises for our decision came up before the High Court of Rajasthan in 1955 on facts exactly parallel with the case before us and a Bench of that Court held in a case reported as Thakur Narpat Singh vs The State of Rajasthan (1) that 'hukamnama ' and the fees payable under section 190 of the Marwar Act were not within,%. 4(a) of the Rajasthan Act. Consequently, the arguments on either side before us took the form of either supporting the reasoning contained in that judgment or in disputing its correctness. It therefore becomes necessary for us to examine the reasoning upon which the learned Judges of the Rajasthan High Court reached a conclusion adverse to the contention of the petitioner now before us. Before doing so, however, it is necessary to advert to a point sought to be raised by the learned Advocate General for Rajasthan for the respondent which would cut across all this debate. He sought to urge that section 4 of the Rajasthan Act was not retrospective and that as the recognition of the title of the Petitioner and the renewal of the grant of the jagir in his favour related back to July 1946 when the succession opened, the Rajasthan Act could not be invoked to put an end to the obligation which had accrued years before it came into force notwithstanding that the orders of recognition and renewal were passed only in March 1952. In the circumstances of this case, however, and also regard being had to the point not having been raised in the answer filed by the State to the writ petition, we did not consider it proper to permit the Advocate General to pursue the submission. We will now proceed to consider the correctness or otherwise of the conclusion reached by the learned Judges of the Rajasthan High Court in the case just now referred to. Stated briefly, the ratio of their decision was as follows: Under the law governing jagir grants and the tenure on which they are held in Marwar, a 'hukamnama ' is a levy chargeable for recognition of the succession of a person to a Scheduled Jagir (1) I.L.R. 443 of his deceased ancestor. The specific dues, Rekh and Chakri enumerated in the definition of section 2(r) of the Rajasthan Act are those levied in Marwar, the former being 8 per cent of the gross rental value of an estate and the second the cash equivalent of the obligation to supply horsemen or camelsowars or foot soldier, , by Jagirdars dependent upon the value of the estate. Similar payments are known as 'Rakam ' in the State of Bikaner and 'Chatund ' in the State of Udaipur, these States being the components of the State of Rajasthan. All these dues, Rekh, Rakam, Chatund and Chakri were annual and recurring payments made by Jagirdars. When therefore the definition in section 2(r) concluded with the words other charges of a similar nature ', it must necessarily be held that these general words should be confined to charges which were also recurring. The 'hukamnama ' and other dues payable under section 190 of the Marwar Act, however, were not recurring payments and were in consideration of the ruler exercising his discretion to recognise a succession and grant renewal of the jagir in favour of the next heir. In other words, these were payments due to the ruler in recognition of his sovereign right to the ownership of the land which was statutorily embodied in sections 169 170 of the Marwar Act which ran: "section 169. The ownership of all land vests in His Highness and all jagirs, bhoms, sansans, dolis or similar proprietary interests are held and shall be deemed to be held as grant, from His Highness. and section 170. All grants shall be held by the original grantee or his successors during His Highness ' pleasure. " The payments under section 190 of the Act therefore were not of the same category as the payments enumerated in section 2 (r) of the Rajasthan Act and hence could not be comprehended within the meaning of the expression 'tribute '. The same matter was also put in a slightly different form by saying that whereas the payments enumerated in the definition of 'tribute ' were those made by Jagirdars as such, i.e., after they got into possession, a 'hukamnama ' was a payment made not by a 144 Jagirdar but by a person who was merely a claimant to a jagir and as a condition of his title to it being recognised. The correctness of this reasoning was challenged before us by learned Counsel for the petitioner who urged that the learned Judges of the High Court did not accord sufficient consideration to the fact that the definition in section 2(r) was an 'inclusive ' definition and could, therefore, include others not falling within the enumerated types. In this connection, learned Counsel relied upon the meaning of the word 'tribute ' in Webster 's New International Dictionary and in the Oxford English Dictionary, Volume IT. In the former, one of the meanings given is: "A tax, impost, duty, rental, or the like, paid by a subject vassal to his sovereign or lord". and in the latter: "A tax or impost paid by one prince or state to another in acknowledgement of submission or as the price of peace, security and protection". He therefore urged that the expression 'tribute ' in section 2(r) would include those which fell within the ordinary dictionary meaning of the term , in addition to those specifically enumerated therein. If the word were understood in its ordinary dictionary meaning without any statutory definition, learned Counsel added, the incidence of recurrence would not be a necessary attribute of the concept of a 'tribute '. The submission was that the learned Judges of the Rajasthan High court erred in confining the meaning of 'tribute ' to the enumerated payments and "other charges of a similar nature", without taking into account the fact that this was an inclusive and not an exhaustive or even an illustrative definition. We see force in these submissions and it must also be said that the argument in this form and the construction of section 2(r) from this aspect has not been considered by the learned Judges of the Rajasthan High Court. We have, therefore, to examine whether the submission can be sustained. Our task is, to discover whether the expression 'tribute ', as it occurs in the Rajasthan Act, includes payments of the type now in 445 controversy. Apart from the usual express saving contained in the opening words of section 2 that the definitions set out are to be applied "unless the context otherwise requires", the meaning of the word 'tribute ' has to be ascertained from a consideration of the various provisions of the Act and not merely from section 4(a) of the Act read in the light of the definition. It would be seen that in ultimate analysis the question of construction posed for our decision may be thus set out: The four specific enumerated dues in the definition in section 2(r) are recurring annual payments. "Other charges of a like nature" which follows this enumeration, would obviously partake of that character and they would also have to be similarly annual. and recurring. This was the basis of the decision of the learned Judges of the Rajasthan High Court and the correctness of this view up to this point cannot be and has not, been disputed. The definition, however, being "inclusive" and not "meaning" these, it is said it must "include" something else. It must, however, be added that the possibility cannot be ignored that the definition was made inclusive out of caution and with a view not to exclude any payment which jagirdars were making or were under an obligation to make, to Government, seeing that the Act was to apply to an integrated State composed of several States in which there might have been great diversity of nomenclature in designating these payments, and so as not to exclude any payment which would squarely fall within the category regarding which provision was made in the operative portion of the enactment. Learned Counsel for the petitioner urges that every payment by a Jagirdar to the Government, whatever be the nature of the payment and whatever be the consideration therefore, is included in the expression. If the expression 'tribute ' occurred only in section 4(a) in the operative provisions of the Act, there might be much to be said for the view presented by learned Counsel for the petitioner and for invoking its dictionary meaning to ascertain the content of that word. The Act, however, has used the word 'tribute ' in several other sections and in different contexts and we 446 consider that the precise ambit of this expression of rather indefinite import as contemplated or intended by the framers of this Act has necessarily to be gathered from the entirety of the provisions. The ,word tribute ' was apparently no equivalent in the local languages, so that it was obviously used as a convenient and compendious expression to designate certain imposts which were levied by the rulers of the several States which integrated to form the State of Rajasthan. Further, this circumstance should obviously induce some caution before the dictionary meaning of the English word tribute ' is treated as expressing the intention of the framers of the Rajasthan Act. We shall therefore proceed to set out and consider the other provisions of the enactment in which the word is used to discover the intentions of the framers of the Act as to what they meant by it. Before proceeding further, we should add, that as under section 4(a) of the Rajasthan Act, the payment of Land Revenue computed under it is to be the substitute for the 'tribute ' previously demandable or paid, the manner in which the land revenue under the Act is determined would be relevant as throwing light on for what it is substituted. We have already set out the terms of section 4 of the Rajasthan Act under which in substitution of the payment of 'tribute ' all lands are made liable to the payment of land revenue. The amount of land revenue payable by a Jagirdar is fixed by section 8 and this is based in part on the annual rental income which could be derived from the jagir computed in the manner set out in sections 6 and 7. For our present purpose section 8 is of importance, because the amount of 'tribute ' payable forms one of the factors for determining the amount of 'land revenue payable '. Section 8 enacts: "section 8. Amount of land revenue payable. The land revenue payable by a Jagirdar in respect of his jagir lands shall be (a) for the agricultural year 1951 52, an amount equal to the amount of tribute payable by him to the Government for that year; (b) for the agricultural year 1952 53 and each of the six succeeding agricultural years 447 (i) in the case of jagir lands the annual rental income of which as determined under section 6 or section 7, exceeds five hundred rupees but does not exceed five thousand rupees, one sixteenth of such rental income or the amount of the tribute which was payable by the Jagirdar for the agricultural year 195051, whichever is greater; (ii) in the case of jagir lands the rental income of which as determined under section 6 or section 7 exceeds five thousand rupees, one eighth of such annual rental income or the amount of the tribute which was payable by the Jagirdar for the agricultural year 1950 51, whichever is greater. Explanation. For the purpose of this clause the amount of tribute payable by a Jagirdar to the Government for the agricultural year 1950 51 shall be deemed to be the amount of such tribute less the amount of any tribute payable to such jagirdar by any person to whom the Jagirdar may have granted any of his jagir lands; (c) for the agricultural year 1959 60 and subsequent years, one fourth of the rental income from the jagir lands as determined under sections 6 and 7; Provided that (i) where no tribute was payable by the Jagirdar before the commencement of the Act or where the whole of the tribute has been paid before such commencement, the jagir lands shall be deemed to be exempt from the payment of land revenue for the agricultural year 1951 52; (ii) where the jagirdar has paid a part of the tribute before the commencement of this Acts, the land revenue payable by him for the agricultural year 1951 52 shall be an amount equal 'to the balance of the tribute which would have been payable by him for that year if this Act had not been passed; and (iii) the Government may direct that for the purposes of clauses (b) and (e) of this section, the rental income of any jagir land for all or any of the agricultural year mentioned in those clauses shall be 448 determined or redetermined on the basis of the rental income which actually accrued to the jagirdar from the jagir in such year or years, as the case may be." It will be seen that this section speaks of tribute payable for the, year specified 1951 52 or 1950 51and it is obvious that the tribute here referred to could only be the recurring payments like those enumerated in the definition in section 2(r) to which could be attributed the character of being a payment for a specific year. Besides, it will be, seen that under section 8(b) the land revenue payable for the seven agricultural years 1952 53 to 1959 60 is to be either a fraction of the annual rental income or "the amount of the tribute which would be payable by the Jagirdar for the year 1950 51 whichever is greater". Surely it would be most unreasonable to hold that if during the year 1950 51 a Jagirdar made a payment of 'hukamnama ' this ad hoe payment should be treated as part of the tribute for that year and the Jagirdar made liable to pay sums including 'hukamnama ' for the seven years 1952 53 to 1959 60. The main object of the Rajasthan Act was to effect resumption of jagir lands by eliminating intermediaries and the 'tribute ' payable by the erstwhile Jagirdars enters into the calculation for computing the compensation payable to them on such resumption. The second schedule to the Act sets out the principles governing the compensation payable to Jagirdars. It may broadly be stated that the compensation payable, to Jagirdars is determined on the basis of a multiple of the net income of the basic year as determined under r. 1 of the second schedule. The net income is computed by first determining the gross income of the Jagirdars under various heads including the rental income and deducting therefrom certain outgoing which included the "tribute ' Rule 4 of schedule 2 provides: "4. Net income. The net income of a Jagirdar for the basic year shall be calculated by deducting from his gross income therefore, (i) the amount that the Jagirdar would have 449 been liable to pay to the Government as tribute, and, in the case of grantee from a Jagirdar, to the Jagirdar in respect of such grant, for the basic year if this Act had not been passed; (ii) any sums of recurring nature due to the Government from the Jagirdar, or in the case of grantee from the Jagirdar to the Jagirdar, for the basic year on any account other than land revenue,; and . . . . . . It is impossible to conceive that the framers of the Act would have intended that the payment of a 'hukamnama ' in the basic year should have a permanent effect on the quantum of compensation payable to a Jagirdar under the provisions above extracted. In addition to the compensation for the presumption of the jagir under the provisions of the Rajasthan Act, the Jagirdars are entitled to be paid a rehabilitation grant under Chapter VIII A of the Act. The method of calculation of this amount is set out in Schedule III of the Act and for this purpose Jagirdars are classified on a graduated scale into various categories depending on the gross income from the estate. This is followed by a proviso in these terms: "Provided that for the purpose of calculating the rehabilitation grant payable to a Jagirdar falling in this category such marginal adjustments shall be made as will ensure that a Jagirdar having a higher net income does not get an amount by way of rehabilitation grant which is less than that payable to a Jagirdar having a lower net income. Provided further that, in comparing Jagirdars with different amounts of income for the purpose of the first proviso to this sub clause, (i) Jagirdars who were riot paying tribute shall be compared only with Jagirdars who were not paying tribute, (ii) Jagirdars who were paying tribute shall be compared only with Jagirdars who were paying ' tribute, (iii) Jagirdars who were paying any sums of 57 450 recurring nature referred to in sub clause (ii) of clause 4 of the Second Schedule shall be compared only with Jagirdars Who were paying such sums, and (iv) in respect of Jagirdars who were paying tribute or any sums of recurring nature referred to in sub. clause (ii) of clause 4 of the Second Schedule at different scales, the Government shall prescribe a percentage of the gross income at which the amount of tribute or such sums in respect of each Jagirdar shall be calculated irrespective of whether the amount of tribute or such sums of recurring nature that were being actually paid by him. " What we have said earlier about the construction of the word 'tribute ' in r. 4 of Schedule II would equally apply to the construction of that expression as it occurs in the provision extracted from Schedule III. Notwithstanding therefore that the definition in section 2(r) of the Rajasthan Act is 'inclusive ' it appears to us from an examination of the meaning of the word as used in the operative provisions of the Act, that it could refer only to recurring payments which could be said to be attributable to particular years and not to the type of ad hoc payments of which hukamnamas and patta fees are examples. It might very well be that the words at the end of section 2(r) "other charges of a similar nature" might not exhaust all the payments which a 'tribute ' connotes but still if the rest of the Act indicates unmistakably the intention, that the word 'tribute ' has been used in a special sense taking into account the law and usage obtaining in the locality, these cannot be disregarded in favour of a wider construction based merely upon the dictionary meaning of the expression. We need hardly add that the provision to which we have adverted should suffice to show that the construction put forward by learned Counsel for the petitioner would work to the grave disadvantage of the Jagirdars and would cause them deprivation which could never have been intended. We have thus reached the same conclusion as the learned Judges of the Rajasthan High Court, though on a different line of reasoning. 451 On the construction which we have adopted of the expression 'tribute ' in section 4 of the Rajasthan Act the petitioner can have no legal or legitimate grievance against the enforcement of the payment made against him. The petition fails and is dismissed. There will st, be no order as to costs. Petition dismissed.

IN-Abs

The title of the petitioner to succeed to the jagir as the next heir of his father who died in July 1946 was recognised and a renewal granted in his favour by the Government by an order dated March 8, 1952. Section 190 of the Marwar Land Revenue Act, imposed an obligation on the succeeding heir to 1949, execute within one month of the communication to him of the order a kabuliyat for payment of hukammama and other fees according to the scale of fees prescribed under the Act, and the amount payable by the petitioner thereby which came to Rs. 30,000 was demanded by the respondent State. In the meantime, the Rajasthan Land Reforms and Resumption of jagirs Act, 1952, had been passed and came into force on February 16, 1952, and section 4(a) of this Act enacted that "the liability of all jagirdars to pay tribute to the Government under any existing jagir Law shall cease", while "tribute" was defined by section 2(r) in the following terms . "Tribute ' in relation to a jagir, includes rekh, rakam, chatund, chakri or other charge of a similar nature". The petitioner challenged the legality of the demand on the ground that the liability to pay hukamnama was a tribute within the meaning of that word in section 4(a). Held, that notwithstanding that the definition of the ex pression "tribute" in section 2(r) of the Rajasthan Land Reforms and Resumption of jagirs Act, 1952, is inclusive, on an examination of the meaning of the word as used in the operative provisions of the Act, it could refer only to recurring payments which could be said to be attributable to particular years and not to the type of ad hoc payments of which hukamnama was an example. Accordingly, the liability to pay hukamnama is not compre hended within the expression "tribute" under section 4(a), and, consequently, was not extinguished by the provisions of the Rajasthan Act of 1952. Thakur Narpat Sinah vs The State of Rajasthan, I.L.R. , referred to.

4,36 and 37 of 1958. Petition under article 32 of the Constitution of India for enforcement of Fundamental Rights. R. Ganapathy Iyer and K. L. Hathi, for the petitioners. C. K. Paphtary, Solicitor General of India, B. R. L. Iyengar an(! P. M. Sen, for the respondents. 280 1961. March 14. The Judgment of the Court was delivered by KAPUR, J. These are three petitions under article 32 of the Constitution challenging the imposition of sales tax on betel leaves by the Sales Tax Officer, Akola. The question raised in all the three petitions is the same and can conveniently be disposed of by one judgment. The petitioners in the three petitions are dealers in betel leaves at Akola, now in the State of Maharashtra and at the relevant time in the State of Madhya Pradesh. The Assistant Sales Tax Officer at Akola assessed the petitioners under the provisions of the C. P. & Berar Sales Tax Act, 1947 (Act XXI of 1947), hereinafter termed the "Act" to the payment of gales tax as follows: Writ Petition period Amount No. W.P. No. 4/58 7 11 53 to 26 10 54. Rs. 1882 9 0 & 27 10 54 to 14 11 55. Rs. 1885 13 0 W.P. No. 36/58 27 10 54 to 26 10 55. Rs. 1890 3 0 W.P. No. 37/58 27 10 54 to 14 11 55. Rs. 3530 4 0 The petitioners in W. P. Nos. 4 and 36 did not appeal under section 22 of the Act but the petitioner in W. P. No. 37 did appeal under that section. As he did not deposit the amount of tax the petition was dismissed. He then filed a petition under article 226 in the High Court of Nagpur but that petition was withdrawn and therefore no decision was given on the merits of the case. In all the petitions the submission of the petitioners is that the order demanding tax was without authority of law inasmuch as betel leaves were not taxable under section 6 read with the second Schedule of the Act. The imposition of the tax, it is alleged. is an infringement of the petitioners ' right to carry on trade 281 or business guaranteed under article 19(1)(g) of the Con stitution and the prayer is for the issue of a writ of certiorari quashing the order of the Assistant Sales Tax Officer and for prohibition. Section 6 of the Act under which the exemption is claimed provides: S.6(1) "No tax shall be payable under this Act on the Sale of goods specified in the second column of Schedule II, subject to the conditions. and exceptions, if any, set out in the corresponding entry in the third column thereof (2)The State Government may, after giving by notification not less than one month 's notice of their intention so to do, by a notification after the expiry of the period of notice mentioned in the first notification amend either Schedule,, and thereupon such Schedule shall he deemed to be amended accord ingly." Thus under the Act all articles mentioned in the Schedule were exempt from Sales Tax and articles not so specified were taxable. In the Schedule applicable there were originally two items which are relevant for the purposes of the case. They were items Nos. 6 and 36: Item 6 Vegetables Except when sold in sealed containers. Item 36 Betel leaves. The Schedule was amended by the C. P. & Berar Sales Tax Amendment Act (Act XVI of 1948) by which item No. 36 was omitted. It is contended that in spite of this omission they were exempt from Sales Tax as they are vegetables. The intention of the legislature in regard to what is vegetables is shown by its specifying vegetables and betel leaves as separate items in the Schedule exempting articles from Sales Tax. Subsequently betel leaves were removed from the Schedule which is indicative of the legislature 's intention of not exempting betel leaves from the imposition of the tax. But it was submitted that betel leaves are vegetables and therefore they would be exempt from Sales Tax under item 6. Reliance was placed on the 36 282 dictionary meaning of the word "vegetable" as given in Shorter Oxford Dictionary where the word is defined as "of or pertaining to, comprised or consisting of, or derived, or obtained from plants or their parts". But this word must be construed not in any technical sense nor from the botanical point of view but as understood in common parlance. It has not been defined in the Act and being a word of every day use it must be construed in its popular sense meaning "that sense which people conversant with the subject matter with which the statute is dealing would attribute to it. " It is to be construed as understood in common language; Caries on Statute Law, p. 153 (5th Ed.). It was so ' held in Planters Nut Chocolate Co. Ltd. vs The King (1). This interpretation was accepted by the High Court of Madhya Pradesh in Madhya Pradesh Pan Merchants ' Association, Santra Market, Nagpur vs The State of Madhya Pradesh (Sales Tax Department) (2) where it was observed: "In our opinion, the word "vegetables" cannot be given the comprehensive meaning the term bears in natural history and has not been given that meaning in taxing statutes before. The term "vegetables" is to be understood as commonly understood denoting those classes of vegetable matter which are grown in kitchen gardens and are used for the table. " In that case the word "vegetables" was construed and in our opinion correctly construed in relation to the very provisions of the Act which are now in controversy before us. In cases under the U. P. Sales Tax Act betel leaves have been held not to be within the expression "green vegetables"; Brahma Nand vs The State, of Uttar Pradesh(3); Firm Shri Krishna Chaudhry V. Commissioner of Sales Tax (4). In Bhairondon Tolaram vs The State of Rajasthan (5) they were held not to be plants and in Kokil Ram & Sons vs The State of Bihar (6), it was held that vegetables meant plants cultivated for food and Paw are not foodstuffs. in Dharamdas Paul vs Commissioner of Commercial (1) 389. (3) [1956]7 S.T.C 2o6. (5) [1957] 8 S.T.C. 798. (2) [1956]7 S.T.C. 99, 102. (4) [1956] 7 S.T.C. 742. (6) [1949]1 S.T.C. 217 283 Taxes also they were held not to be vegetables which specifically meant Sabzi, Tarkari and Sak. Therefore &part from the fact that the legislature by using two distinct and different items i.e. item 6 "vegetables" and item No. 36 "betel leaves" has indicated its intention, decided cases also show that the word "vegetables" in taxing statutes is to be understood as in common parlance i.e. denoting class of vegetables which are grown in a kitchen garden or in a farm and are used for the table. In our view, betel leaves are not exempt from taxation. Those petitions therefore fail and are dismissed with costs. One hearing fee. Petitions dismissed.

IN-Abs

The petitioners who were dealers in betel leaves were asses sed to sales tax by the Assistant Sales Tax Officer under the provisions of the C. P. and Berar Sales Tax Act, 1947. The contention of the petitioners was that under section 6 read with the second schedule of the Act betel leaves were not taxable. Under section 6 of the Act articles mentioned in the said Schedule were exempt from Sales Tax and articles not mentioned were taxable. There were two items in the Schedule, namely, item 6, "vegetables", and item 36, "betel leaves", but subsequently item No. 36 was omitted by an amendment of the Act. Held, that the use of two distinct and different items i.e., "vegetables" and "betel leaves" and the subsequent removal of betel leaves from the Schedule were indicative of the Legislature 's intention of not exempting betel leaves from taxation. The word "vegetable" must be interpreted not in a technical sense but in its popular sense as understood in common language i.e., denoting a class of vegetables which are grown in a kitchen garden or on a farm and are used for the table. Planters Nut Chocolate Co. Ltd. vs The King, (1952) 1 Dom. L.R. 385, Madhya Pradesh Pan Merchants ' Association, Santra Market, Nagpur vs The State of Madhya Pradesh (Sales Tax Departmwnt) [1956] 7 S.T.C. 99, Bhairondon Tolaram vs The State of Rajasthan, [1957] 8 S.T.C. 798, Kokil Ram & Sons vs The State of Bihar, [1949] 1 S.T.C. 217 and Dharam Das Paul vs The Commissioner of Commercial Taxes, [1958] 8 S.T.C. 194, considered. Brahma Nand vs The State of Uttar Pradesh, [1956] 7 S.T.C. 206 and Firm Shri Krishna Chaudhry vs Commissioner of Sales Tax, [1956] 7 S.T.C. 742, referred to.

Appeal No. 283 of 1960. Appeal from the judgment and decree dated, November 20, 1958, of the Allahabad High Court (Lucknow Bench) in First Civil Appeal No. 3 of 1956. C. B. Agarwala and C. P. Lal, for the appellant. R. Ganapathy Iyer and T. M. Sen, for the respondent. March 16. The Judgment of the Court was delivered by DAs GUPTA, J. The appellant, a clerk in the service of the East Indian Railways was compulsorily ' retired from service with effect from June 30, 1948, on attaining the age of 55 years. His prayer for further retention in service on the ground that he was entitled to be retained under Rule 2046/2 of the Railway Establishment Code having been rejected he brought the suit which has given rise to this appeal in the court of the Civil Judge, Lucknow, alleging that he was entitled to be retained under the above rule, and the order for compulsory retirement on attaining the age of 55 years was. void and inoperative in law. He accordingly prayed for a declaratory decree that the order of his compulsory retirement was illegal and void and for a money decree for, arrears of pay on the basis that he had continued in service. The main defence was a denial of his right to be retained in service under the rules. The Trial Court accepted the plaintiff 's contention ' as regards the effect; of the rule, gave him a declaration as prayed for and ' also decreed the claim for money in part. On appeal the High Court took a different view of Rule 2046 and held that that rule gave the plaintiff no right to continue in service beyond the age of 55 years. The High Court therefore allowed the appeal. and dismissed the plaintiffs suit. Against this decision the 376 plaintiff has preferred the present appeal on a certificate granted by the High Court under article 133(1) (c) of the Constitution. The main question therefore is whether on a proper interpretation of Rule 2046/2 (a) of the Railway Esta blishment Code, which is identical with the fundamental rule 56 (b) (i), the plaintiff had the hight to be retained in service till the age of 60 years. It is necessary to mention that the plaintiff 's case that he continued to be efficient even after attaining the age of 55 years has not been disputed by the respondent, the Union of India. Consequently the question is: assuming the plaintiff so 'continued to be efficient whether he had the right to be retained in service till he attained the age of 60 years. Rule 2046 (1) of the Code deals with the question of retirement of railway servants other than ministerial and provides that such Railway servant, that is, one who is not a ministerial servant, will be compulsorily retired on attaining the age of 55 years; but may be retained in service after that date "with the sanction of the competent authority on public grounds" which must be recorded in writing. A further provision is made that he must not be retained after the age of 60 years except in very special circumstances. Rule 2046/2 deals with cases of ministerial servants. It has two clauses of which ol. (b) deals with (i) ministerial servants who entered Government service on or after April 1, 1938, or (ii) who though in Government service on March 31, 1938, did not hold a lien or a suspended lien on a permanent post on that date. These also, like the Railway servants, who are not ministerial servants have to retire ordinarily at the age of 55 years and cannont be, retained after that age except on public grounds to be recorded in writing and with the sanction of the competent authority; and must not be retained after attaining the age of 60 years except in very special circumstances. Clause (a) deals with railway ministerial servants other than those who entered Government service on or after April 1, 1938, or those in Government service on March 31, 1938, who, did not hold a lien or a 377 suspended lien on a permanent post on that date. The exact words of the rule are: "A ministerial servant who is not governed by sub cl. (b) may be required to retire at the age of 55 years but should ordinarily be retained in service if he continues to be efficient up to the age of 60 years. He must not be retained after that age except in very special circumstances which must be recorded in writing and with 'the sanction of the competent authority. " It is obvious that the rule as regards compulsory retirement is more favourable to ministerial servants who fall within el. (a) of rule 2046/2 than those who fall under el. (b) of the same rule or railway servants who are not ministerial servants. For whereas in the case of these, viz., railway servants Who are not ministerial servants, and ministerial servants under cl. (b) retention after the age of 55 itself is intended to be exceptional to be made on public grounds which must be recorded in writing and with the sanction of the competent authority, in the case of ministerial servants who fall under cl. (a) of Rule 2046/2 their retention after the age of 60 is treated as exceptional and to be made in a similar manner as retention in the case of the other railway servants mentioned above after the age of 55. It is clear therefore that whereas the authority appropriate to make the order of compulsory retirement or of retention is given, no discretion by itself to ' retain a ministerial railway servant under cl. (b) if he attains the age of 55 years, that is not the position as regards the ministerial servants who fall under cl. The appellant 's contention however goes very Much further. He contends that in the case of ministerial servants who come within cl. (a) and after attaining the age of 55 years continue to be efficient it is not even a case of discretion of the appropriate authority to retain him or not but that such ministerial servants have got a right to be retained and the appropriate authority is bound to retain him, if efficient. The first clause of the first sentence of the relevant 48 378 rule taken by itself certainly gives the appropriate authority the right to require a ministerial servant to retire as soon as he attains the age of 55 years. The question is: Whether this right is cut down by the second clause, viz., "but should ordinarily be retained in service if he continues to be efficient up to the age of 60 years". On behalf of the appellant it is urged that the very use of the conjunction "but" is for the definite purpose of the cutting down of the right conferred by the first clause; and that the effect of the second clause is that the right to require the Government servant to retire at 55 is limited only to cases where he does not retain his efficiency; but where he does retain his efficiency the right to retire him is only when he attains the age of 60 years. We are con strained to say that the language used in this rule is unnecessarily involved; but at the same time it is reasonably clear that the defect in the language creates no doubt as regards the intention of the rulemaking authority. That intention, in our opinion, is that the right conferred by the first part is not in any way limited or cut down by the second part of the sentence; but the draftsman has thought fit by inserting the second clause to give to the appropriate authority an option to retain the servant for five years more, subject to the condition that he continues to be efficient. If this condition is not satisfied the appropriate authority has no option to retain the servant; where however the condition is satisfied the appropriate authority has the option to do so but is not bound to exercise the option. If the intention had been to out down the right conferred on the authority to retire a servant at the age of 55 years the proper language to express such intention would have been may be required to retire at the age of 55 years provided however that he shall be retained in service if he continues to be efficient up to the age of 60 years" or some such similar, words. The use of "should ordinarily be retained in service" is sufficient index to the mind of the rule making authority that the right conferred by the first clause of the sentence remained. Leaving out for the present the word "ordinarily" the rule would read thus: 379 "A ministerial servant who is not governed by sub clause (b) may be required to retire at the age of 55 years but should be retained in service if he continues to be efficient up to the age of 60 years. " Reading these words without the word "ordinarily" we find it unreasonable to think that it indicates any intention to cut down at all the right to require the servant to retire at the age of 55 years or to create in the servant any right to continue beyond the age of 55 years if he continues to be efficient. They are much more appropriate to express the intention that as soon as the age of 55 years is reached the appropriate authority has the right to require the servant to retire but that between the age of 55 and 60 the appropriate authority is given the option to retain the servant but is not bound to do so. This intention is made even more clear and beyond, doubt by the use of the word "ordinarily". "Ordinarily" means "in the large majority of cases but not invariably". This itself emphasises the fact that the appropriate authority is not bound to retain the servant after he attains the age of 55 even if he continues: to be efficient. The intention of the second clause 1 therefore clearly is that while under the first clause the appropriate authority has the right to route the ' servant who falls within clause (a) as soon as he attains the age of 55, it will, at that stage, consider whether or not to retain him further. This option to retain for the further Period of five years can only be exercised if the servant continues to be efficient; but in deciding whether or not to exercise this option the authority has to consider circumstances other than the question of efficiency also; in the absence of special circumstances he "should" retain the servant; but, what are special circumstances is loft entirely to the authority 's decision. Thus, after the age of 55 is reached by the servant the authority has to exercise ' its discretion whether or not to retain the servant; and there is no right in the servant to be retained, even if, he continues to be efficient. Reliance was placed by learned counsel on an observation of Mukherjea, J. (as he then was), in Jai 380 Ram vs Union of India (1) when speaking for the Court as regards this rule his Lordship said: "We think it is a possible view to take upon the language of this rule that a ministerial servant coming within the purview has normally the right to be retained in service till he reaches the age of 60. This is conditional undoubtedly upon his continuing to be efficient. We may assume therefore for purposes of this case that the plaintiff had the right to continue in service till 60 and could not be retired before that except on the ground of inefficiency. " It would be wholly unreasonable however to consider this as a decision on the question of what this rule means. Dealing with an argument that as the plaintiff under this rule has the right to continue in service till 60 and could not be retired before that except on the ground of inefficiency certain results follow, the Court assumed for the sake of argument that this interpretation was possible and proceeded to deal with the learned counsel 's argument on that basis. It was not intended to say that this was the correct interpretation that should be put on the words of the rule. The correct interpretation of Rule 2046 (2) (a) of the code, in our opinion, is that a railway ministerial servant falling within this clause may be compulsorily retired on attaining the age of 55 but when the servant is between the age of 55 and 60 the appropriate authority has the option to continue him in service, subject to the condition that the servant continues to be efficient but the authority is not bound to retain him even if a servant continues to be efficient. It may be mentioned that this interpretation of the rule has been adopted by several High Courts in India ' [Basant Kumar Pal vs The Chief Electrical Engineer Kishan Dayal vs General Manager, Northern Railway and Raghunath Narain Mathur vs Union of India (4)]. We therefore hold that the High Court was right in holding that this rule gave the plaintiff no right to continue in service beyond the age of 55. (1) A.I.R. 1954 S.C. 584. (3) A.I.R. 1954 Punj. (2) A.I.R. 1956 Cal. (4) A.I.R. 1953 All. 381 It was next urged by Mr. Aggarwal, though faintly, that the notification of the Railway Board dated October 19, 1948, and the further notification dated April 15, 1952, as a result of which ministerial servants who were retired under rule 2046(2)(a) before attaining the age of 60 after September 8, 1948, have been given special treatment are discriminatory. It appears that on September 8, 1948, the Government of India came to a decision that no ministerial Government servant to whom the fundamental rule 56(b)(i) applied and who has attained the age of 55 years but has not attained the age of 60 years could be required to retire from service unless he has been given a reasonable opportunity to show cause against the proposed retirement and unless any representation that he may desire to make in this connection has been duly considered. This decision was communicated to different departments of the Government of India and it was directed that this should be noted "for future guidance". On October 19, 1948, the Ministry of Railways issued a notification for dealing with cases of retirement of ministerial servants governed by Rule 2046(2)(a) (which corresponded to fundamental rule 56(b)(1) in the manner as directed by the Government of India 's notification dated September 8, 1948. This notification of October 19, 1948, again made it clear that it had been decided not to take any action in respect of ministerial servants who had already been retired. Again, in a notification dated April 15, 1952, the Railway Board communicated a decision that "such of the ministerial servants who had been retired after 8th September, 1948, but before attaining the age of 60 years without complying with article 311 (2) of the Constitution should be taken back to duty" under certain conditions. The appellant 's contention is that the denial of this advantage given to other ministerial servants falling within rule 2046(2)(a) who had been retired after September 8, 1948, is unconstitutional. We do not think that this contention has any substance. What happened was that on September 8,1948, the Government took a decision that ministerial servants should 382 not be retired under the rule in question on attainment of 55 years of age if they were efficient without giving them an opportunity of showing cause against the action and accordingly from that date it changed its procedure as regards the exercise of the option to retire servants between the age of 55 and 60. The decision that nothing should be done as regards those who had already retired on that date cannot be said to have been arbitrarily made. The formation of a different class of those who retired after September 8, 1948, from those who had retired before that date on which the decision was taken is a reasonable classification and does not offend article 14 of the Constitution. This contention is therefore also rejected. The High Court was therefore right in our opinion in holding that there was a reasonable classification of the ministerial servants who had been retired under Rule 2046 (2) (a) on attaining the age of 55 into two classes: one class consisting of those who had been retired after September 8, 1948, and the other consisting of those who retired up to September 8, 1948. There is, therefore, no denial of equal protection of laws guaranteed by article 14 of the Constitution. In the result, the appeal fails and is dismissed. There will be no order as to costs, as the appellant is a pauper. We make no order under Order XIV, rule 9 of the Supreme Court Rules. Appeal dismissed.

IN-Abs

The appellant who was a clerk under the East Indian Railways was compulsorily retired from service on attaining the age of 55 years. His prayer for further retention in service having been rejected he filed a suit alleging that he was entitled to be retained in service up to the age of 60 years under Rule 2046 (2)(a) of the Railway Establishment Code, which runs as follows: "Clause (a) A ministerial servant who is not governed by sub cl. (b) may be required to retire at the age of 55 years but should ordinarily be retained in service if he continues to be efficient up to the age of 60 years. He must not be retained after that age except in very special circumstances which must be recorded in writing and with the sanction of the competent authority. " His suit was decreed by the Trial Court but the High Court reversed it holding that the plaintiff appellant had no right to continue in service beyond the age of 55 years. On appeal with the certificate of the High Court. Held, that the correct interpretation of Rule 2046(2)(a) is that a railway ministerial servant falling within this clause may be compulsorily retired on attaining the age of 55 but when the servant is between the age of 55 and 6o years the appropriate authority has the option to continue him in service, subject to the condition that the servant continues to be efficient but the authority is not bound to retain him even if he continues to be efficient. This rule does not give the servant a right to be retained in service beyond the age of 55 years even if he continues to be efficient. jai Ram vs Union of India, A.I.R. 1954 S.C. 584, explained. Basant Kumar Pat vs The Chief Electrical Engineer, A.I.R. , Kishan Dayal vs General Manager, Northern Railway, A.I.R. 1954 Punj. 245 and Raghunath Narain Mathur vs Union of India, A.I.R. 1953 All. 352, approved. 375 The formation by the Railway Board of two classes of ministerial servants, namely, one of, those who retired after September 8, 1948, and the other of those who had already retired before that date was a reasonable classification and (lid not offend article 14 of the Constitution.

Appeal No. 752 of 1957. Appeal from the judgment and decree dated January 8, 1954, of the Madras High Court in Second Appeal No. 312 of 1949. A. V. Viswanatha Sastri and P. V. B. Tatachari, for the appellant. 341 P.Somasundaram and T. Satyanarayana, for the respondents. March 16. The Judgment of the Court was delivered by WANCHOO, J. This appeal on a certificate granted by the Andhra Pradesh High Court raises the question of the interpretation of section 44 B(1) of the Madras, Hindu Religious Endowments Act No. II of 1927 (hereinafter called the Act). The point arises in this way. The property in dispute was originally granted in inam to the ancestors of the predecessors in interest of the plaintiffs respondents for the performance of parak service in the pagodas (temples) of village Panyam in Nandyal Taluk of the Kurnool District. The grantees of the land in this inam alienated a considerable portion of it and also ceased to perform the parak service. In consequence, the trustees of the temples at Panyam applied. to the Sub Collector under section 44 B (2) (a) (i) and (ii) of the Act for the resumption of the lands and their regrant to the temples on the ground that the holders of the inam had alienated the property and had failed to perform the service required of them. An inquiry was conducted into these allegations, and it was held by the Revenue Divisional Officer, Nandyal, that the inam had been granted on the condition of parak service being rendered and that there had been breach of the condition on failure to perform the service and also that the lands comprised in the inam had been alienated in a manner falling within section 44 B (2) (a) (i) of the Act. On these findings the resumption of the inam lands was ordered and the inam was re granted to the temples in Panyam village. The alienees took the matter in appeal to the Collector but failed. Thereupon they filed the suit out of which the present appeal has arisen; and their main contention was that. the revenue authorities had no jurisdiction to order the resumption of the inam under section 44 B. The suit was resisted by the trustees who were defendants to it and their case was that the, inam was a religious service inam in the sense of being emoluments for the performance of service and 342 alternatively that even if the grant was a personal inam, burdened with the performance of parak service, the grant was conditional on the performance of the service and as there was breach of this obligation, the resumption and re grant were justified under section 44 B. Certain preliminary facts are not in dispute now. It has been found by all the courts that the inam grant comprised both the warams. It has also been found that the grant to the inamdar was personal to him though burdened with parak service and not a service inam in the sense of the inam constituting emoluments of any office. On the finding that the inam was a personal inam burdened with service to the temple the trial court held that the case did not fall within section 44 B of the Act. On appeal the district court confirmed the decree of the trial court. In the High Court on second appeal the finding as to the inam being of both warams was not contested and it was conceded that it was a personal inam burdened with service. The only question that was agitated there was whether the case would fall within the four corners of section 44 B even if the inam which was granted in the present case was, a personal inam of both warams burdened with service to the temple. The High Court held against the trustees and dismissed the appeal. Thereupon the trustees who are the appellants before us applied for a certificate which was granted to them; and that is how the matter has come up before us. Section 44 B (1) is in these terms: "Any exchange, gift, sale or mortgage, and any lease for a term exceeding five years, of the whole or any portion of any inam granted for the performance of a charity or service connected with a math or temple and made, confirmed or recognised by the British Government, shall be null and void. " The question for consideration is whether a personal inam burdened with service to a temple can be said to come within the meaning of the words "any inam granted for the performance of a service connected with a temple". It is urged that the words used in section 44 B (1) are of very wide import and any personal 343 grant of land howsoever large, if it is burdened with some service to a temple howsoever small, would be within the meaning of these words and would therefore come within the terms of s.44 B (1). The High Court has repelled this wide construction of the words used in section 44 B (1), and we think rightly. The distinction between a grant for an office to be remunerated by the use of land and a grant of land burdened with service is well known in Hindu law. The former is a case of a service grant and is resumable when the service is not performed. The latter is not a service grant as such but a grant in favour of a person though burdened with service and its resumption will depend upon whether the circumstances in which the grant was made establish a condition that it was resumable if the service was not performed: (see Shrimant Lakhamgouda Basavprabhu Sardesai vs Raosaheb Baswantrao alias Annasaheb Subedar and Others (1)). The question therefore is whether section 44 B covers only the first type of grant, (namely, a service grant) and not a personal grant burdened with service. Prior to the introduction of section 44 B in the Act, the enforcement of a condition of a grant in favour of charitable and religious institutions in Madras was by taking recourse to Board 's Standing Order 54. Under para. 1 of this Order, a duty was laid on the revenue officers to see that inams confirmed by the Inam Commissioner for the benefit of or for services to be rendered to any religious and charitable institution are not enjoyed without the terms of the grant being fulfilled. Under para. 2 thereof, religious and charitable inams were liable to be resumed on the ground that the whole or a portion of the land had been alienated or lost to the institution or service to which it once belonged or that the terms of the grant were not observed. Provision was also made in the Order for the authorities which would exercise the power to resume. Further provisions in that Order show that the intention normally was not to dispossess the inamdar even in the event of failure to perform the conditions of the grant but the land was subjected to (1) (1931) LXI M.L.J. 449. 344 full assessment and the assessment was made available to the institution in lieu of the service lost. In the case of personal inams burdened with service in particular what was usually resumed in the event of nonperformance of service with or without alienation was that portion of the grant which represented the value of the service burdened and not that which was personal and there was no injustice in this course for as we have already said a personal inam burdened with service was granted to an individual for himself though, he was required to perform certain services to the temple. Therefore, in case he failed to do so there might be resumption of such portion of the inam as would represent the burden of the service leaving the rest to him. It is in this background that we have to examine section 44 B (1) introduced in the Act in 1934 and see whether personal inams burdened with service are included within its ambit. It may be mentioned that on the introduction of section 44 B (1) in the Act. , B.S.O. 54 was amended and religious and charitable inams which were all governed till then by it were divided into two classes, namely (a) inams granted for the performance of a charity or service connected with a Hindu math or temple; and (b) inams not falling under class (a). Inams falling under class (a) were to be governed by the provisions of the Act while inams falling under class (b) were to be governed by B.S.O. 54 as heretofore. This amendment would also show that all religious inams, i.e., inams which had some connection howsoever slight with a temple or other religious institution were not to be governed by section 44 B and only those inams which were granted for the performance of a charity or service connected with a Hindu math or temple wore to be dealt with under section 44 B while others would still be governed by B.S.O. 54. We therefore agree with the High Court that this history affords a clue to the interpretation of section 44 B (1) and suggests that though the words used in section 44 B are open to a wide interpretation, the intention was to 345 bring within its purview only those inams which were granted directly to the temple and also those inams which were granted for the performance of a charity or service connected with a math or temple, i.e., service inams or such inams the whole income of which was for charity and not those inams which were personal inams though burdened with some service to a temple or math. As we have already said the land granted under a personal inam burdened with service may be very large and the service expected may be very slight, and it could not be the intention of the legislature when it enacted section 44 B (1) that large personal inams with slight service attached to them should be resumed and re granted to the temple under section 44 B (1) for failure to perform the service with which the grant was burdened. It would make no difference to the validity of this argument even if the service attached absorbed a larger portion of the inam leaving only a smaller portion to the grantee. This conclusion is in our opinion enforced if we look at el. (iii) of section 44 B (2)(a) which permits resumption of an inam on the ground that either the math or temple has ceased to exist or the service in question has in any way become impossible of performance. Now it could not be the intention of the legislature, where an inam was granted as a personal inam though burdened with some service to a temple or math, that such inam should be resumed simply because the math or temple has ceased to exist or for some other reason the service has become impossible of performance. The nature of a personal inam burdened with service is that it is meant for the individual to whom it is granted though the individual is required to perform some service to the temple also. The legislature could not have intended when it enacted section 44 B (2)(a)(iii) that even such an inam should be resumed when the math or temple ceases to exist. But this would be the result if the wide interpretation contended for by the appellants is accepted. In such a case obviously the personal portion of the grant has to be separated from the service portion 44 346 and if the service is not performed it is only the service portion that is liable to resumption. Further if we look at section 44 B (2)(f)(i), it provides that where an inam is resumed under section 44 B (1) it shall be re granted as an endowment to the temple or math concerned In the case of a personal inam burdened with service it will mean that if the service is not performed the whole inam would be liable to resumption and would be re granted to the temple, though the inam was granted to an individual and the service with which it was burdened might have been 'slight, the remaining income of the inam being intended as a personal grant to the individual. Therefore when section 44 B(2)(f)(i) provides for re grant of the resumed inam to the temple it presumes that the whole of the inam resumed was meant for service of the temple and there was no element of personal grant in it. It is on that basis that we can understand the re grant of the resumed inam to the temple, the idea behind the word "re grant" being that originally also it was granted for the temple though as a service inam. Similarly, section 44 B(2)(f)(ii) provides that where the math or temple has ceased to exist and an inam is resumed on that ground it shall be re granted as an endowment to the Board for appropriation to such religious, educational or charitable purposes not inconsistent with the objects of such math or temple, as the Board may direct. Here again it seems to us that the legislature could not have intended that a personal inam granted to an individual though burdened with service should be resumed when the temple has ceased to exist and the service could not be performed and should be taken over by the Board as an endowment for such purposes as the Board may direct, Such a provision would completely overlook the personal part of a personal inam burdened with service. Therefore, the view taken by the High Court that section 44 B(1), though on a wide interpretation it might also include personal inams burdened with service, is really confined to inams directly granted to the temple or service inams. for the purpose of a temple or math or inams the whole of the income of which 347 is meant for charity and does not include personal inams burdened with service, is correct. Such inams would continue to be dealt with under B.S.O. 54, class (b) as introduced by the amendment to that Order. In this view, there is no force in this appeal and it is hereby dismissed with costs. Appeal dismissed.

IN-Abs

The property in dispute was granted in inam to the ancestors of the predecessors in interest of the plaintiff respondents for the performance of parak service in certain temples but the grantees alienated considerable portion of the property and ceased to perform the parak service. On being moved by the trustees under section 44 B(2)(a)(i) and (ii) of the Madras Hindu Religious Endowments Act, 1927, the revenue authorities after holding an enquiry ordered resumption of the inam lands and regranted them to the temple. The alienees thereupon filed a suit in which their main contention was that the revenue authorities had no jurisdiction to order the resumption of the inam under S.44 B of the Act which is in these terms "Any exchange, gift, sale or mortgage and any lease for a term exceeding five years, of the whole or any portion of any inam granted for the performance of a charity or service connected with a math or temple and made, confirmed or recognised by the British Government, shall be null and void. " Both the trial court and the High Court on appeal held that the inam was a personal inam burdened with service to the temple and the case did not fall under section 44 B of the Act. On appeal by the trustees with a certificate of the High Court, Held, that the distinction between a grant for an office to be remunerated by the use of land and a grant of land burdened with service is that the former is a case of service grant and is resumable when the service is not performed; the latter is not a service grant as such but a grant in favour of a person though burdened with service and its resumption will depend upon whether the circumstances in which the grant was made establish a condition that it was resumable if the service was not performed. Shrimant Lakhamgouda vs Raosaheb Baswantrao, (1931) LXI M.L.J. 449, referred to. Though on a wide interpretation section 44 B(1) might also include personal inams burdened with service it is really confined to inams directly granted to the temple or service inams for the purpose of a temple or math or inams the whole income of which is meant for charity and does not include personal inams burdened with service. Such inams would continue to be dealt with under Board 's Standing Order 54 class (b) as introduced by the amendment to that order.

Appeals Nos. 125 to 129 of 1957. Appeals by special leave from the judgment and decree dated October 7, 1952, of the Bombay High Court in Second Appeals Nos. 601 to 605 of 1952. S.T. Desai, Avadh Behari and B. P. Maheshwari, for the appellants. A.V. Viswanatha Sastri and A. G. Ratnaparkhi, for the respondents. March 14. The Judgment of the Court was delivered by SHAH, J. These five appeals raise a common question about the validity of Rule 2C framed by the respondent the Municipality of Barsi under section 58(j) of the Bombay Municipal Boroughs Act, 1925 hereinafter called the Act. The Lokmanya Mills hereinafter called the appellants are a company registered under the Indian Companies Act holding an expensive area of land City Survey No. 2554 within the Municipal Borough on which are constructed buildings of the factory, ware houses, bungalows and other structures appurtenant to the factory. The respondent, a Borough Municipality constituted under the Act is by section 73, 308 entitled to levy a rate on lands and buildings and also a water rate. Under the rules framed by the Municipality house tax and water tax were levied on buildings and non agricultural lands on their annual letting value at uniform rates whether the purpose was residential, business or manufacturing. In 1944, the Municipality resolved to enhance the assessment of lands and buildings within its area. After some correspondence with the Commissioner, Central Division, the General Body of the Municipality resolved that the rental value for leaving rates on mills and factories within its limits be fixed at Rs. 40 for every 100 square feet. Notices of this resolution under section 75(b) of the Act were issued and objections to the proposed enhancement were invited from the taxpayers and after obtaining the approval of the Government of Bombay, the new rules were made operative from April 1, 1947. The rules relevant for the purposes of these appeals are: Rule 2A: "The assessment of house tax on all lands, buildings and non agricultural lands, other than Government, buildings coming under Proviso A of section 73 of the Bombay Boroughs Act of 1925, at rates mentioned in the Schedule attached to these rules." Rule, 2B: In case Government buildings coming under Proviso A of section 73 of the Bombay Boroughs Act are used beneficially, the assessment of such buildings shall be made as specified in sub section 2 and 3 of section 74. Rule 2C: As regards Mills, factories and buildings relating thereto, the annual letting value shall be fixed at Rs. 40 per 100 square feet or part thereof for every floor. , ground floor or cellar and the tax shall be assessed on the said annual letting value, at the ordinary rate. Explanation: The words "buildings pertaining thereto" include buildings in the compound of the Mills such as ware houses, godowns, shops of the mills etc. but does not include residential buildings that is to say bungalows and out houses. Note: Assesstnent shall be made at the ordinary 309 rate on buildings which are not taxed under rule 2C above. The Municipality prepared an assessment list under the new scheme of taxation in respect of factory buildings and buildings relating thereto and issued notices of demand calling upon the appellants to pay house tax and water tax newly assessed thereon. The appellants paid under protest the tax demanded, and filed five suits in the 'court of the, Civil Judge, Junior Division of Barsi to recover the amounts levied by the Municipality in excess of the amounts due under the old scheme. In all these suits, the principal issue raised was about the validity of rule 2C framed by the Municipality for levy of rates "on Mills, Factories and other buildings relating thereto". The trial court held that rule 2C was valid and within the competence of the Municipality and dismissed the suits for refund of house tax and water tax. The District Court at Sholapur in appeal declared rule 2C "illegal and ultra vires" and by injunction restrained the Municipality from making any claim or demand for house tax and other taxes from the appellants on the basis of them rule. The High Court of Judicature at Bombay, set aside the decree of the District Court disagreeing with the view that rule 2C was ultra vires. In these appeals filed with special leave against the judgments of the High Court, the only question which falls to be determined is whether by rule 2C the Municipality is entitled to collect tax leviable as a rate after computing the annual letting value solely on the area of the factory and buildings related thereto. By section 73, the Municipality is authorised subject to any general or special orders which the State Government may make in that behalf and to the provisions of as. 75 and 76, to impose for the purposes of the Act any one or more of the classes of taxes, amongst which are included a rate on buildings or lands or both situate within the municipal borough and general water rate which may be imposed in the form of a rate assessed on buildings or lands or in any other form. Section 75 prescribes the procedure preliminary to imposing a tax. The procedure for assessing the 310 liability to rates on lands and buildings is prescribed by sections 78 to 84 of the Act which provide for preparation of the assessment list, its authentication and amendment. When a rate on building or lands or both is imposed, the Chief Officer causes ail assessment list of all buildings or lands or lands and buildings in the municipal borough to be prepared containing inter alia the names of the owner, the valuation based on capital or annual letting value as the case may be on which the property is assessed and the amount of tax assessed thereon. The expression "Annual; letting value" is defined in section 3(1) of the Act as meaning the annual rent for which any building or land, exclusive of furniture or machinery contained or situate therein or thereon might reasonably be expected to let from year to year, and shall include all payments made or agreed to be made by a tenant to the owner of the" building or land on account of occupation, taxes, insurance or other charges incidental to his tenancy. By section 78 sub section (1) cl. (d) and Explanation to section 75, the rate to be levied on lands and buildings may be assessed on the valuation of the lands and buildings based on capital or the annual letting value. By the rules in operation prior to April 1, 1947, house tax and water tax were levied as rates in respect of all lands, buildings and non agricultural lands on the annual letting value (except Government buildings). Even under the new rules, house tax and water tax continued to be levied in respect of all buildings and, non agricultural lands as rates: but the rate in respect of buildings falling within rule 2C was assessed on a valuation computed on the floor area of the structures, and not on the capital value nor on the annual rent for which the buildings may reasonably be expected to let. This was clearly not a tax based on the annual letting value, for "Annual letting value" postulates rent which a hypothetical tenant may reasonably be expected to pay for the building if let. A rate may be levied under the Act on valuation made on capital or on the annual letting value. If the rate 311 is to be levied on the basis of capital value, the building to be taxed must be valued according to some recognised method of valuation: if the rate is to be levied on the basis of the annual letting value, the building must be valued at the annual rental which a hypothetical tenant may pay in respect of the building. The Municipality ignored both the methods of valuation and adopted a method not sanctioned by the Act. By prescribing valuation computed on the area of the factory building, the Municipality not only fixed arbitrarily the annual letting value which bore no relation to the rental which a tenant may reasonably pay, but rendered the statutory right of the tax. payer to challenge the valuation illusory. An assessment list prepared under section 78, before it is authenticated and finalised, must be published and the taxpayers must be given an opportunity to object to the valuation. By the assessment list in which the valuation is not based upon the capital value of the building or the rental which the building may fetch, but on the floor area, the objection which the tax payers may raise is in substance restricted to the area and not to the valuation. Counsel for the Municipality sought to rely upon The Madras and Southern Mahratta Railway Co., Ltd. vs The Bezwada Municipality (1) decided by the Judicial Committee of the Privy Council, in support of the plea that the rate based on valuation in proportion to the floor area is validly levied. By section 81 sub section (2) of the Madras District Municipalites Act, 1920, a tax for general purposes and a water and drainage tax were to be levied at such fractions of the annual value of lands or buildings or both as may be fixed by the Municipal Council. By section 82 Sub section (2) of that Act, the annual value of lands and buildings was to be the gross annual rent at which they may reasonably be expected to let, but by the proviso, it was enacted that in the case of any Government or Railway building, the annual value of the premises shall be deemed to be 6% of the total of the estimated value of the land and the estimated present cost of erecting the (1) I.L.R. 312 building subject to certain deductions. The Municipality of Bezwada levied property tax on a piece of vacant land belonging to the Madras and Southern Mahratta Railway Company on the annual value computed at 6% of its capital value. This method of taxation was challenged by the Railway Company on the contention that all methods of valuation other than the method prescribed by the proviso to section 82(2) were by necessary implication prohibited. This contention was rejected because the generality of the sub. stantive enactment was left unqualified except in so far as it concerned the particular subjects to which the proviso related. Open lands were not covered by the proviso and it was competent to the municipality to levy the tax under section 82(2) on the annual value and that value would be determined by any of the recognised methods of arriving at the rent which a hypothetical tenant 'may reasonably be expected to pay for the lands in question. This case has in our judge ment no relevance to the present case. If the Municipality of Barsi had adopted any of the recognised methods of valuation for assessing the annual letting value, the tax would not, be open to challenge, but the method adopted was not a recognised method of levying the rate. ' The High Court relied upon its earlier judgment in The Borough Municipality of Amalner vs The Pratap Spinning Weaving and Manufacturing Co.p Ltd., Amalner (1). In that case, the court negatived the challenge to the validity of the rules similar to those impugned in these appeals. The Amalner Municipality had by rules framed under the Bombay Municipal Boroughs Act sought to levy a rate equal to a per centage of the annual letting value which was computed on the floor area of "mills and factories". The court held that the method of taxation adopted by the Municipality had remained unchallenged for a long time,, that the rules had been sanctioned by the Government and they were not shown to be "capricious, arbitrary and unreasonable and that the valuation of the property by reference to the floor area was (1) I.L.R. 313 not altogether unknown to the law of rating. The High Court also observed that in assessing the rent 2 which a hypothetical tenant may pay several methods are open to the Municipality and if on examining the cases of all the factory buildings within their jurisdiction, the Municipality concluded that the rent which the hypothetical tenant may reasonably be expected to pay for those buildings fits in with the rent which they had fixed by adopting the flat and uniform rate the principle of fixing the annual letting value on the basis of the floor area would not be open to challenge. It was assumed in that case that all factory buildings within the area of the Amalner Municipality were. alike in essential features and were intended to be used for purposes which were alike, and that probably the Municipality may have been satisfied that the principle enunciated in the rule impugned worked out on the whole as a fair basis for determining the valuation of the building in question. In our view, this approach to a rating problem arising under the Act is not permissible. In any event, there is no evidence on the record of this case that the factories and "buildings relating thereto" such as ware houses, godowns and shops of the Mills situate in the compound of the mills, may be separately let at the uniform rate prescribed ' by the Municipality. The vice of the rule lies in an assumed uniformity of return per square foot which structures of different classes which are in their nature not similar, way reasonably fetch if let out to tenants and in the virtual deprivation to the rate payer of his statutory right to object to the valuation. Another judgment of the Bombay High Court in Motiram Keshavdas vs Ahmedabad Muncipal Borough (1) calls for reference. It was held in Motiram 's case that a water tax imposed by the Ahmedabad Municipality as a rate not depending upon the value of the property assessed but in lump sum was not a rate for the purpose of section 73(x) of the Bombay Municipal Boroughs Act, 1925 and the rule which authorised the levy of such a lump sum was ultra vires (2) (1942) Bom. L. R.280 40 314 These appeals must be allowed and the decrees passed by the High Court set aside and the decrees passed by the District Court of Sholapur restored with costs in this court and the High Court. One hearing fee. Appeals allowed.

IN-Abs

The Bombay Municipal Boroughs Act, 1925, empowered a municipality to levy rates on lands and buildings which were to be assessed on the valuation based on the capital or the annual letting value. The Act defined the annual letting value inter alia as the annual rent for which any building or land might reasonably be expected to let from year to year. The General Body of the Municipality of Barsi framed new rules under section 58 of the Act for levying rates: for all buildings and non agricultural lands the rate was to be levied on the annual letting value, but for mills and factories and buildings relating thereto it was provided by r. 2C that the annual letting value was to be fixed on the floor area. The Municipality issued notices of demand under the new r. 2C calling upon the appellant (which is a company owning a textile mill) to pay house and water taxes which were assessed as rates which was paid by the appellants under protest. The question to be determined was whether by r. 2C the Municipality was entitled to collect tax leviable as a rate after computing the annual letting value solely on the area of the factory and building relating thereto. Held, that a rate may be levied by a municipality under the Bombay Municipal Boroughs Act, 1925, on the valuation made on the basis of capital or on the annual letting value of a building and not on a valuation computed merely on the floor area of the structures, such a rate was clearly not a tax based either on the capital value or on the annual letting value, for "annual letting value" postulates rent which a hypothetical tenant may reasonably be expected to pay for the building if let. The Municipality had no power under the Act to ignore the methods of valuation prescribed by the Act, and to adopt a method not sanctioned by the Act. By prescribing valuation computed on the area of the factory building the Barsi Municipality not only fixed arbitrarily the annual letting value which bore no relation to the rental which a hypothetical tenant may reasonably be expected to pay but rendered the statutory right of the tax payer to challenge the valuation illusory as the objection which the tax payer could raise thereto was in substance restricted to the area of the building and not to its valuation. 307 The rule adopting a flat and uniform rate on the assumption that all factory buildings within the area of a municipality were not alike in essential features and were not intended to be used for purposes which were alike was not permissible under the Act. The vice of the rule lies in an assumed uniformity of return per square foot which structures of different classes in their nature not similar, may reasonably fetch if let out to tenants and in the virtual deprivation to the rate payer of his statutory right to object to the valution. Rule 20 by the Barsi Borough Municipality under section 58 of the Bombay, Municipal Boroughs Act, 1925, was illegal and ultra vires. The Madras and Southern Mahratta Railway Co. Ltd. vs The Bezwada Municipality I.L.R. , not applicable. The Borough Municipality of Amalner vs The Pratap Spinning Weaving and Manufacturing Co. Ltd., Amalner, I.L.R. , not approved. Motiram Keshavdas vs Ahmedabad Municipal Borough, , referred to

il Appeals Nos. 194 of 1956 and 353 of 1958. Appeals by special leave from the judgment and orders dated December 26, 1953 and April 30, 1957, of the Custodian General and Deputy Custodian General of Evacuee Property in Revision Nos. 5055R/Judl/ 1953 and. 1161/R/Judl/1954 respectively. Achhru Ram and T. R. V. Sastri, for the appellants. N. section Bindra and D. Gupta, for respondents. March 21. The Judgment of the Court was delivered by 459 DAS, GUPTA, J. Of these two appeals, one (Civil Appeal No. 194 of 1956) is against the order of the Custodian General of India, declining to interfere with ' the order of the Custodian of Evacuee Property, Orissa, in respect of certain properties claimed by the appellant as his; and the other appeal (Civil Appeal No. 353 of 1958) is against the order of the Deputy Custodian General of India, declining to interfere with the order of the Custodian of Evacuee Property, Madras, in respect of properties situate in Madras, claimed by the same appellant as belonging to him. Though most of the considerations that arise in the two appeals are identical, it will be convenient to take them up one after the other so as not to confuse a clear understand ing of the facts on which these considerations which are all based on question of law arise. The appellant Fazal Bhai Dbala and his brother Abdulla Dhala were partners in a business of hides and skins. A deed of partnership was executed on January 1, 1941, and the firm was registered in the Register of Firms, Cuttack, under section 59 of the Indian Partnership Act. On August 10, 1949, Abdulla Bhai Dhala executed a deed of sale in respect of some immovable properties at Jharsuguda in Orissa, and also certain properties, at Madras, in favour of Fazal Bhai Dhala. The consideration in the document was mentioned as Rs. 85,000 of which Rs. 50,000 was mentioned as the value of the Madras properties and Rs. 35,000 as the value of the Orissa properties. The sum of Rs. 85,000 appears to have been paid in the presence of the Registrar by Fazal Bhai to Abdulla Bhai on August 11, 1949. A deed of dissolution of the partnership was also executed on the following day the 12th August, 1949. It was stated therein that the two partners had agreed "that the said partnership shall stand dissolved as and from 2 11 48 and it has further been agreed that as from that day, 2 11 1948, the said business of Fazalbhoy Dhala & Co shall belong to and be continued and carried on by Fazalbhoy Dliala. " It was also stated that in view of the fact that "accounts of the said partnership have not yet been taken or settled and cannot be taken or 460 settled without much delay and trouble it has further been agreed that Fazal Bhai Dhala shall pay to Abdulla Dhala a sum of Rs. 40,000 in full settlement and satisfaction of all the claims, as partner of Abdulla Bhai Dhala against the partnership, its assets, goodwill etc., in respect of his share therein". A receipt of the sum of Rs. 40,000 was also acknowledged in this deed. On receipt of information that Abdulla Dhala had migrated to Pakistan after transferring his properties to his brother Fazal Bhai Dhala, the Assistant Custodian of Evacuee Property, Sambalpur (Orissa), issued a notice under section 7(1) of the Ordinance XXVII of 1949 to Fazal Bhai Dhala on December 30, 1949, in respect of im movable properties at Jharsuguda including the properties covered by the sale deed of August 10, 1949, and the business in hides and skins under the name of Fazalbhoy Dhala & Co., and certain immovable properties standing in the name of that firm. In reply to the notice, Fazal Bhai contended that Abdulla Bhai was not an evacuee; and that in any case, he, Fazal Bhai, had become the sole proprietor of the business, with all assets and liabilities, with effect from November 2, 1948, when the partnership was dissolved and that while some of the immovable properties as mentioned in the notice had been conveyed to him by a deed of sale by Abdulla Bhai, the rest being assets of the firm of Fazal Bhai Dhala, had vested in him after the dissolution of partnership, he prayed that his "title" in the assets of the firm, and in the immovable properties, mentioned in the notice should be confirmed. The Assistant Custodian held after consideration of the evidence that though the transfer of the properties mentioned in the sale deed was for adequate and valuable consideration it was not at all bona fide: as regards the other properties ' and the hides and skins business itself the Assistant Custodian held that Abdulla Bhai had no interest as the partnership had been dissolved on November 2, 1948. Against this decision Fazal Bhai appealed to the Custodian and prayed that the order of the Assistant Custodian as regards the properties mentioned in Schedule "A" (1) and (II) mentioned in the notice under sub section 1 of section 7 of the Government of India Ordinance 461 No. XXVII of 1949 should be sot aside. The Custodian agreed with the Assistant Custodian, in respect of these properties, and held that these had been rightly declared as evacuee properties. He went further and held that there was no justification for the Assistant Custodian taking a different view as regards the other properties. His conclusion was that "in fact, with regard to these properties also the same amount of mala fides was present and as such these should also be included in the list of evacuee properties"; and that "it is but proper that the entire 8 annas share of the properties mentioned in Schedules A and B of the evacuee Abdulla should be treated as evacuee properties". The Custodian finally ordered: "in consequence of my above decision according to section 6 of the Evacuee Interest Separation Act, the entire properties in Schedules A and B should now be treated as evacuee pro perties and revised action should be taken to notify as ,such under section 7(3) of the Administration of Evacuee Property Act and the appellant be directed to get his 8 annas share in the properties separated in the Court of the Competent Officer". Fazal Bhai moved the Custodian General of India for revision of this order of the Custodian, Orissa. The Custodian General, however, refused to interfere. It is proper to mention at the outset that it is no longer disputed that Abdulla Bhai is an evacuee, though the exact date from which he became such an evacuee does not clearly appear from the record, and that all the immovable properties, which are the subject matter of the appeal, were the assets of the firm Fazalbhai Dhala & Co. Four contentions were urged in support of the appeal. The first contention, and the one to which Mr. Achhru Ram devoted a considerable portion of his argument, was that the Custodian General should have held that the Custodian acted without jurisdiction, and at any rate, irregularly in the exercise of his jurisdiction, if he had any, in interfering with the order passed by the Assistant Custodian that the immovable property and the hides business and the properties mentioned in Sell. A III, that is the properties 462 other than those covered by the sale deed, were not evacuee properties and should be released. Mr. Achhru Ram has pointed out that against the Assistant Custodian 's order in respect of these two items of properties the hides business and the immovable properties in Sch. A III mentioned in the notice, the Custodian 's department had not preferred any appeal, so that the Custodian could not interfere with it, in exercise of his appellate jurisdiction. Learned Counsel then contends that the Custodian 's order in respect of these properties the hides business and the Jharsuguda properties in Sch. A III could not have been passed, in exercise of the revisional jurisdiction conferred on him by section 26 of the Administration of Evacuee Property Act (Act No. XXXI of 1950), as no notice of such intention to examine the records in revision, had been issued to Fazal Bhai. While it is true that the order does not clearly mention that in respect of the hides business and the Sch. A III properties it was being made in exercise of revisional jurisdiction, it is clear that the only jurisdiction the Custodian could exercise, in the absence of any appeal against that portion of the Assistant Custodian 's order would be his revisional jurisdiction under section 26. When we find that the Custodian has made the order it is proper and reasonable to hold that he passed it in the exercise of the only jurisdiction he had viz. , the revisional jurisdiction and the fact that this was not clearly stated in the order can be no ground for holding that he was not exercising revisional jurisdiction. It is quite another matter whether in the exercise of that jurisdiction, he proceeded in accordance with law. Mr. Aehhru Ram contended that under the law, the Custodian was required to issue a notice to the parties concerned before exercising his, revisional jurisdiction. Admittedly, no such notice was issued; and this omission to issue a notice was put by the appellant in the forefront of his grievances both in his petition for revision before the Custodian General and in the application for special leave to appeal to this Court. Turning however to section 26 we find that there is no 463 provision for service of any notice. The section runs thus: "26. Powers of review or revision of Custodian etc. (1) The Custodian, Additional Custodian, or( Authorised Deputy Custodian may at any time, either on his own motion or on application made to him in this behalf, call for the record of any proceeding under this Act which is pending before, or has been disposed of by, an officer subordinate to him for the purpose of satisfying himself as to the legality or propriety of any orders passed in the said proceeding, and may pass such order in relation thereto as he thinks fit: Provided that the Custodian, Additional Custodian or Authorised Deputy Custodian shall not pass an order under this sub section revising or modifying any order prejudicial to any person without giving such person a reasonable opportunity of being heard: Provided further that if one of the officers aforesaid takes action under this sub section, it shall not be competent for any other officer to do so. . . The proviso secures the requirements of the principles of natural justice when it says that any order prejudicial to any person shall not be passed without giving such person a reasonable opportunity of being heard. No specific provision for service of notice in order that such a reasonable opportunity of being heard be given has however been made by any rule. It goes without saying that in the large majority of cases, the Custodian "will, in order to give the party concerned a reasonable opportunity of being beard, first give him a notice of his intention to examine the records to satisfy himself as to the legality or the propriety of any order passed by the subordinate officer and require such person to show cause if any why the order should not be revised or modified, and then if and when the party appears before him in response to the notice, the Custodian has also to allow him, either personally or through counsel, a reasonable opportunity of being heard. In suitable cases it may be proper and necessary for the Custodian to allow 464 the party concerned even to adduce evidence. There may be cases however where the party concerned is already before the Custodian, so that all that is necessary for the Custodian to do is to inform such party of his intention to examine the records to satisfy him,self whether a particular order should be revised, and then to give him a reasonable opportunity of being heard. There would be no necessity in such a case to serve a formal notice on the party who is already before the Custodian and the omission to serve the notice can be of no consequence. What the law requires is that the person concerned should be given a reasonable opportunity of being heard before any order prejudicial to him is made in revision. If this reasonable opportunity of being heard cannot be given without the service of the notice the omission to serve the notice would be fatal; where however proper hearing can be given without service of notice, it does not matter at all, and all that has to be seen is whether even though no notice was given a reasonable opportunity of being heard was given. A perusal of the Custodian 's judgment makes it reasonably clear that he informed the counsel who appeared on Fazal Bhai. Dhala 's behalf, that he proposed to consider whether the order made by the Custodian in respect of the hides business and the Sch. A III properties had been rightly made and to revise the same, if necessary, after giving a reasonable opportunity of being heard to Fazal Bhai on this point. It is equally clear that the appellant 's advocate was fully heard in the matter. We have no doubt therefore that the requirements of law as embodied in the proviso to section 26(1) of the Act were fully satisfied. The contention that the Custodian acted without jurisdiction or irregularly exercised his jurisdiction must therefore fail. The next contention raised in the appeal is to use the learned counsel 's own words that in view of section 43 of the Indian Partnership Act the partnership stood dissolved from November 2, 1948 and the Custodian had no jurisdiction to declare the "business" to be an evacuee property. It does not appear to have been 465 disputed either before the Assistant Custodian or the Custodian that the partnership of Fazalbhai Dhala & Co., was a partnership at will. The deed of dissolution ' was dated August 1.2, 1949 and it has been found by the Custodian that the deed of dissolution was purposely concluded to provide a common safeguard for properties to remain in the hands of the brothers. The mention of the date November 2,1948 as the date of dissolution cannot therefore be accepted. The firm must however be held to have been dissolved on August 12, 1949 on which date the deed of dissolution was executed. The argument of the learned counsel appears to be that once the partnership business, was dissolved there could be no question of declaring the dissolved partnership as an evacuee property. Once the fact of dissolution is accepted the declaration as regards the business must necessarily be construed as a declaration that the property that remained in Abdulla Bhai on the dissolution of the firm was an evacuee property. It seems to us clear that that was really what is intended to be meant by the order made by the Custodian. A further contention of the appellant is that the transactions evidenced by the two deeds, viz., the sale deed and the dissolution were merely in furtherance of the winding up of the affairs of the dissolved partnership and therefore in determining the validity or otherwise of the transactions it has to be borne in mind that Fazal Bhai could not resist the claim of the other partners to wind up. The story that the dissolution of partnership had taken place earlier and the two deeds were excited later on has not been accepted by the Custodian and we can see no reason to interfere with his conclusion. The deeds of sale were executed prior to the actual dissolution which was effected by the deed of dissolution there is no scope therefore for saying that the sale deed was in the course of the winching up of the affairs of the dissolution of partnership. As regards the deed of dissolution itself it is wholly beside the point whether Abdulla Bhai could have resisted the claim to wind 59 466 up; for the declaration merely is that Abdulla Bhai 's share in the dissolved partnership as it stood on the date of dissolution is an evacuee property. The validity of the dissolution is not touched. It is hardly necessary to add that the dissolution of the partnership did not by itself mean that Abdulla 's share stood transferred to Fazal Bhai any more than that Fazal Bhai 's share stood transferred to Abdulla Bhai. A purported transfer of Abdulla 's share was made by the deed itself. But this having been held to be without good faith, had in view of section 40 of the Evacuee Property Act, no effect. It has to be made clear that the Custodian would not be bound by the statements made in the deed of dissolution as regards the settlement of the accounts of the firm and that the Custodian, in whom the evacuee properties vest will have in respect of the dissolved business all the rights which Abdulla had under sections 37, 46, 47, 48 and other sections of the Partnership Act. There remains for consideration the appellant 's contention that in any case the Custodian acted illegally in the exercise of his jurisdiction in ordering that "the entire properties in Schs. A and B should now be treated as evacuee properties". It appears that the order by the Custodian was made in these terms even though his conclusion was that "the entire 8 annas share of the properties mentioned in Schs. A and B of the evacuee Abdulla should be treated as evacuee properties", in view of the fact that under the original definition of evacuee property in section 2(f) of the Administration of Evacuee Property Act (Act XXXI of 1950) it meant "any property in which any evacuee has any right or interest". This definition has however since been amended and now evacuee property means "any property of an evacuee" instead of "any property in which an evacuee has any right or interest". The legal position after the amendment therefore is that it is only the 8 annas share of Abdulla set out in the Schedule in the Assistant Custodian 's order dated the 28th January, 1950, which is evacuee property. It is therefore necessary to state in clarification of the position that instead of the 467 entire Schedules A and B properties being treated as evacuee property only 8 annas share of these properties which belonged to the evacuee Abdulla should be treated as evacuee properties. With this clarification of the Custodian 's order the appeal is dismissed. There will be no order as to costs. Pi The other appeal C. A. No. 353 of 1958 is in respect of properties in Madras. Fazal Bhai made an application on July 21, 1950 purporting to be under section 40 of the Administration of Evacuee Property Act (Act XXXI of 1950) in reply to a notice which had been issued on him under section 7 of the Act. His case, as in respect of the Orissa properties mentioned earlier, was that the dissolution of the firm took place in November, 1948 and that the final transaction and settlement of accounts was brought about by a deed of sale dated August 11, 1949 in respect of Orissa and Madras pro perties and a deed of dissolution dated August 12, 1949 for a consideration of Rs. 40,000 making in all the entire amount of Rs. 1,25,000 which in this final settlement had been agreed to be paid to Abdulla. He prayed for a declaration that the properties mentioned in the notice be held to have been legally and properly passed to him, and that the transfer in his favour may be confirmed. The Assistant Custodian of Evacuee Property, Madras, accepted Fazal Bhai 's case that the transfer was only a step in the apportionment of the assets of the firm and not a transfer outside the partition of the assets of the firm. He held that the transfer was bona fide and made an order in these terms: "I therefore accept the dissolution of the firm of Fazalbhai Dhala and Company covered by the dissolution deed dated 12 8 49 and confirm the transfer of the immoveable properties covered by the deed dated 10 8 49 under section 40(5) of the . " When this matter came to the notice of the Custodian General of Evacuee Property in the course of the proceedings before him in respect of the Orissa property, he observed: "As for the Madras properties, I notice that Mr. 468 Rathanam 's order was allowed to go unchallenged by the department and as it is not before me, therefore, I am not called upon to express my opinion. " This was on December 26, 1953. It appears that the Custodian General also made a suggestion to the Custodian, Madras, that he might examine the propriety of the order passed by the Assistant Custodian., Madras. Accordingly, the Custodian, Madras, examined the records and issued notice to interested parties including Fazal Bhai Dhala to show cause why the Assistant Custodian 's order should not be set aside in revision. Cause was shown by Fazal Bhai Dhala and thereafter after hearing arguments on his behalf by his Advocate, Mr. T. section Raghavachari, the Custodian held that "the transactions covered by the sale deed dated August 10, 1949 and the deed of dissolution dated the 12th August, 1949 were not bona, fide". Accordingly, he set aside the order of the Assistant Custodian which confirmed the transfer of properties covered by these two deeds. He directed the Assistant Custodian, Madras, to take steps under the Evacuee Property Act in respect of these evacuee properties consequent on the cancellation of the confirmation of transfer. Fazal Bhai 's application to the Custodian General of Evacuee Property, India, for revision of the Custodian 's order was heard by the Deputy Custodian General of Evacuee Property, India, and was rejected. The only additional ground urged by Mr. Achhru Ram in support of this appeal is that the notice issued on Fazal Bhai to show cause why the Assistant Custodian 's order should not be revised did not say anything as regards the Assistant Custodian 's order in respect of the business and so the Custodian had no jurisdiction to interfere with the Assistant Custodian 's order in so far as that order was in respect of the business ' Turning now to the Assistant Custodian 's order we find that in addition to confirming the transfer of immovable properties covered by the deed of August 10, '1949 he also said: " 'I therefore, accept the dissolution of the firm of Fazal Bhai Dhala & Company., 469 covered by the dissolution deed dated August 12, 1949. The Custodian in his order dated July 5, 1954, has held that the transaction covered by the deed of ' dissolution also was not bona fide. It has to be borne in mind that the purported dissolution of the firm in November, 1948, the settlement of accounts recorded in the deed of August, 1949 and the transfer of properties effected were all integral and indivisible parts of the same transaction. While it is true that the notice issued to Fazal Bhai made no reference to the deed of dissolution, it is clear from Fazal Bhai 's own statement filed in response to this notice that he clearly understood that the revising authority would be considering the question of bona fides in respect of the numerous statements about the settlement of accounts in connection with the dissolution of business made in the deed of dissolution. We are satisfied, therefore., that the appellant Fazal Bhai had reasonable opportunity of being heard as regards the bona fides of the transactions mentioned in the deed of dissolution. As we have already mentioned in connection with the other appeal, the fact that the firm stood dissolved with effect from the date on which the deed of dissolution was executed can no longer be disputed. The effect of the Custodian 's order in regard to the deed of dissolution merely is that the transactions mentioned in that deed on the purported basis of an earlier dissolution has been declared to be not bona fide and confirmation was refused of whatever transfers of properties were purported to have been effected by that deed. This appeal, is, therefore,, dismissed with costs. Appeals dismissed.

IN-Abs

F, the appellant, and A his brother, were partners in a business of hides and skins. On August 10, 1949, A executed a deed of sale in respect of some immoveable properties in Orissa and Madras in favour of F. A deed of dissolution of the partnership was also executed on August 12, 1949, wherein it was inter alia stated that the partners bad agreed that the said partnership shall stand dissolved as from November 2, 1948. On receipt of information that A had migrated to Pakistan after transferring his properties to his brother F, the Assistant Custodian of Evacuee Property, issued a notice to F under section 7(1) of the Ordinance 27 of 1949 in respect of immoveable properties in Orissa including the properties covered by the sale deed and the business in hides and skins and certain immoveable properties standing in the name of the firm. In reply F contended that he had become the sole proprietor of the business with all assets and liabilities, with effect from November 2, 1948, when the partnership was dissolved 457 and that while some of the immoveable properties as mentioned in the notice had been conveyed to him by a deed of sale by A, the rest being assets of the firm, had vested in him after the dissolution of partnership. The Assistant Custodian held that though the transfer of the properties mentioned in the sale deed was for adequate and valuable consideration it was not at all bona fide; as regards other properties and the hides and skins business itself, A had no interest as the partnership had been dissolved on November 2, 1948. Against this decision F appealed to the Custodian, who held that these properties were rightly declared as evacuee properties and that as regards the transfer of other properties, the same amount of mala fides was present and as such these should also be included in the list of evacuee properties. The appeal to Custodian General was rejected and the appellant moved the Supreme Court by special leave. Four contentions were urged by the appellant: Firstly, that the Custodian General should have held that the Custodian acted without jurisdiction in interfering with the order passed by the Assistant Custodian that the hides business and the properties mentioned in Sch. A III of the notice were not evacuee properties and should be released. Secondly, that as against the Assistant Custodian 's order in respect of the hides business and the immoveable properties in Sch. A III the Custodian Department had not preferred any appeal, so that the Custodian could not interfere with it, in exercise of his appellate jurisdiction. The Custodian 's order in respect of these properties could not have been passed, in exercise of the revisional jurisdiction conferred on him by section 27 of the Administration of Evacuee Property Act as no notice of such intention to examine the records in revision had been issued to F. Thirdly, once the partnership business was dissolved, there could be no question of declaring the dissolved partnership as an evacuee property, in view of section 43 of the Indian Partnership Act. Fourthly, the transaction evidenced by the two deeds, viz., the sale deed and the dissolution were merely in furtherance of the winding up of the affairs of the dissolved partnership and therefore in determining the validity or otherwise of the transactions, F could not resist the claim of the other partner to wind up. Held, that where the Custodian had made an order against that portion of the order of the Assistant Custodian which was not before him in appeal it must be taken to have been passed in the exercise of the Custodian 's revisional jurisdiction and the mere fact that this was riot expressly stated in the order could 58 458 be no ground for holding that he was not exercising his revisional jurisdiction. It was quite another matter whether in the exercise of the revisional jurisdiction, he proceeded in accordance with law. The Custodian in exercising his revisional jurisdiction must give the party concerned a reasonable opportunity of being heard before any order prejudicial to him is made in revision. If this reasonable opportunity of being heard cannot be given without the service of notice, a notice must be served for otherwise the omission to serve the notice would be fatal, even though section 26 of the Administration of Evacuee Property Act did not specifically provide for service of notice by the Custodian. But in cases where the party affected is before the Custodian and has knowledge of the proceedings before him and is heard, the failure to issue a formal notice is immaterial or does not vitiate the order passed. Once the fact of dissolution is accepted, the declaration as regards the business must necessarily be construed as a declaration that the property that remained in the evacuee on the dissolution of the firm was evacuee property. Held, further, that where a deed of transfer by an 'evacuee ' was without good faith, section 40 of the Administration of Evacuee Property Act would come into operation, making the transfer of no effect and in the case of a firm its property on dissolution would become an evacuee property from the date of the execution of the deed of dissolution of the partnership and vest in the Custodian with all the rights under the provisions of the Partnership Act and the Custodian was not bound by the statements made in the deed of dissolution as regards the settlement of account. In the present case the Custodian did not act without juris diction or exercise his jurisdiction irregularly.

91 of 1956. Petition under article 32 of the Constitution of India for enforcement of fundamental rights. section P. Sinha, Shaukat Hussain, E. Udayarathnam and section section Shukla, for the petitioners. N. section Bindra, R. H. Dhebar and T. M. Sen, for the respondents Nos. 1 to 4. 1961. March 22. The Judgment of the Court was delivered by 532 SARKAR, J. One Abdul Hai died about 1943. He left certain immovable properties. He had three wives and children by each. One of his wives predeceased him. On his death the wives and children, surviving him, succeeded ' to these properties in certain shares. One of the surviving wives and a daughter died subsequently. It appears that the remaining wife of Abdul Hai and his six children by her, went to Pakistan but the time when they did so does not appear. It is not however disputed that they had become evacuees and their shares in the properties could be properly declared evacuee property. A notice under section 7 of the was in fact issued for the purpose of declaring these persons evacuees and their shares in the properties, evacuee property. Proceedings were taken pursuant to the notice and on August 14, 1952, an order was made declaring the migrants evacuees and a 4/7th share in certain properties, evacuee property as belonging to them. Thereafter other proceedings were taken under , and an order was made on March 23, 1954, under section 11 of this Act vesting the entirety of the properties referred to in the order of August 14, 1952 in the Custodian of Evacuee Properties, Bhopal. This petition under article 32 of the Constitution challenges the validity of the orders of August 14, 1952, and March 23, 1954, as violating the petitioners ' fundamental right to hold property, to wit, their shares in the properties covered by the orders. It is presented by the surviving children of Abdul Hai by his two deceased wives, excepting Abdul Aziz. Abdul Aziz however has been made a respondent to the petition but is not opposing it. It is not in dispute that the petitioners and Abdul Aziz never became evacuees and are entitled to undivided shares in the properties declared to have vested in the Custodian in their entirety. The petition is opposed by the other respondents, namely, the Government of India and various officers concerned with the Acts, and it will be convenient to describe them alone as the respondents. 533 The first question raised is as to the validity of the order dated August 14, 1952, made under the Act of 1950. It is said that the order is a nullity as the notice under section 7 of this Act on which it was based, was bad for the reason that it was issued to Abdul Aziz who was, admittedly, not an evacuee. It seems to us that it is unnecessary to decide this question for it is not a matter with which the petitioners are in any way concerned. The proceedings under that Act did not purport to affect their interest in the properties and they cannot, therefore, challenge the order made under it. Further, as we have earlier said, it is not in dispute that the shares of the surviving wife of Abdul Hai and her children in the properties could properly be declared evacuee property under the Act since they had migrated to Pakistan. The order of August 14, 1952, only declared what purported to be their shares, to be evacuee property. By such a declaration no right of the petitioners is affected. The second question raised concerns the order of March 23, 1954, made under the Act of 1951. This order vests the entirety of certain properties left by Abdul Hai including the petitioners ' shares in them, as evacuee property and, therefore, clearly affects the petitioners. We think that the petitioners ' grievance against this order is of substance and the order as it stands cannot be sustained. This order was made under section 11 of the Act of 1951. This Act was passed "to make special provisions for the separation of the interests of evacuees from those of other persons in property in which such other persons are also interested": see the preamble to the Act. It creates an officer called the "Competent Officer" for effecting such separation. The disputed order was made by such an officer. Section 2(d) defines "composite property", which, so far as is material, is in these terms: section 2(d). "composite property" means any property which, or any property in which, an interest has been declared to be evacuee property or has vested in the Custodian under the (XXXI of 1950) and 534 (i) in which the interest of the evacuee consists of an undivided share in the property held by him as a co sharer or partner of any other person, not being an. evacuee; or (ii) in which the interest of the evacuee is subject to mortgage in any form, in favour of a person, not being an evacuee; or (iii) in which the, interest of a person, not being an evacuee, is subject to mortgage in any form in favour of an evacuee; or. . Section 2(b) defines a "claim" as follows: section 2(b): "Claim" means the assertion by any per person, not being in evacuee, of any right, title or interest in any property (i) as a co sharer or partner of an evacuee in the property; or (ii) as a mortagagee of the interest of an evacuee in the property; or (iii) as a mortgagor having mortgaged the property or any interest therein in favour of an evacuee;. . . Section 6 authorises a Competent. Officer to issue, "for the purpose of determining or separating the evacuee interest in a composite property", notices requiring persons claiming interest in any composite property, to submit their claims to him. Section 7 deals with the procedure, the form and the time of making the claims. Section 8 lays down that on receipt of a the Competent Officer shall make an enquiries in the manner provided and pass an order determining the interest of the evacuee and the claimant in the property. It, also provides that the order shall contain, among others, the following particulars: (1) in any case where the evacuee and the claimant ire co sharers or partners, their respective shares in the property and the money value of such shares; (2) in any case where the claim is made by a mortgagor, the amount due to the evacuee; and (3) in any case, where the claim is made by a mortgage, the amount due under the claim in accordance with the provisions of section 9. 535 Sub section (2) of section 8 is in these terms: section 8(2): Where the Custodian under the (XXXI of 1950), has determined that the property in question or any interest therein is evacuee property, the decision of the Custodian shall be binding on the competent officer: Provided that nothing contained in this sub section shall debar the competent officer from determining the mortgage debt in respect of such property or any interest therein or from separating the interest of the evacuee from that of the claimant under section 10. Claims by mortgagees over evacuee properties are dealt with by section 9. Section 10 gives the Competent Officer power to separate the interests of the evacuee from those of the claimant. It provides that the Competent Officer "in particular may: (a) in the case of any claim of a co sharer. (i) direct the custodian to pay to the claimant the amount of money assessed in respect of his share in the composite property or deposit the same in a civil Court having jurisdiction over such property and deliver possession of the property to the Custodian and the claimant may withdraw the amount in deposit in the civil Court; or (ii) transfer the property to the claimant on payment by him of the amount of money assessed in respect of the share of the evacuee in the property; or (iii) sell the property and distribute the sale proceeds, thereof between the Custodian and the claimant in proportion to the share of the evacuee and of the claimant in the property; or (iv) partition the propert y according to shares of the evacuee and the claimant and deliver possession of the shares allotted to the evacuee and the claimant to the Custodian and the claimant respec tively;. . Then comes section 11 which, in certain circumstances, vests the entire property in a Custodian. It was under this section that the order now being considered 536 was passed and it will be convenient to set it out later. It is said on behalf of the respondents that notices under section 6 of the Act of 1951, both general and special,. the latter addressed to the petitioners, asking for submission of claims in respect of the properties had been issued but no claim was submitted by any one. The learned counsel for the respondents produced a copy of one of such notices which was in ' the form set" out below: "Subject: 105.10 acres agricultural land and one house in village Junapari Tahsil Berosia (4/7 share of Abdul Aleem etc. evacuees) To Shri Abdul Aziz and his two brothers village Junapani (Tahasil Berosia). FORM 'C ' WHEREAS information has been received that you have an interest in the composite property described in the Schedule hereto annexed. AND WHEREAS the evacuee interest in the said property is to be separated from other interests. I, NOW, hereby call upon you to submit your claim to me in the prescribed 'form within sixty days from the date of this notice. " Abdul Aleem mentioned in this notice is one of the children of Abdul Rai who had evacuated to Pakistan. The order that was passed by the Competent Officer under section 11 of the Act of 1951, on March 23, 1954, recited that notices inviting claims were issued but no claims had been submitted, and then concluded, "So it is proved that no claim is filed deliberately though the individual notice has been served by post under a postal certificate. The whole Composite property listed by Custodian shall vest free of encumbrances and liabilities in the Custodian Bhopal U/s 11 of the . " It is the validity of this order that is questioned by the petitioners. They admit that they filed no claims but they deny that any notice was served on them 537 and also otherwise challenge its validity. We do not think it necessary to go into the question of the validity of the notice for it seems to us that even if there was valid notice, the order challenged cannot be upheld. The question is, was the order justified by section II of the Act of 1951? That section so far as relevant reads thus: section 11(1). Where in respect of any property, notice under section 6 is issued but no claim is filed or found to exist or where any claim in respect of such property is found to exist and the competent officer separates the evacuee interest therein under section 10, the whole property, or, as the case may be, the evacuee interest in the property thus sepa rated shall vest in the Custodian free from all encumbrances and liabilities and any payment, transfer or partition made or effected under section 10, in satisfaction of any claim in respect of the property shall be a full and valid discharge of all claims in respect of the property. The respondents contend that the notice mentioned in the section having been issued and no claim pursuant thereto having been filed, the whole property had to vest in the Custodian and therefore the order of the Competent Officer was valid. This contention seems to us to proceed on a misreading of the section. Notices under section 6 are issued "for the purpose of determining or separating the evacuee interest in a composite property". The object of the notice can therefore be one or other of two things, namely, for determining the evacuee interest or for separating the evacuee interest, in a composite property. These are two entirely different things and are so treated in the Act as will appear from the definition of composite property and sections 8, 9 and 10. The question of determining the evacuee interest arises when the interest is either a mortgagor 's or mortgagee 's interest in property or an undivided share in property the extent of which is not known. The determination is then made as provided in cls. (b), (c) and (d) of section 8(1), ascertaining the quantum of the interest as mortgagor, 68 538 mortgagee or co sharer, as the case may be. A question as to separation of interest can arise, of course, only when that interest is known. This is done under section 10 of the Act. A case of separation may arise, for example, when the evacuee is found to have a definite undivided share in property. Now, an evacuee may be found to have a definite undivided share as a result of enquiry under section 8 of the Act of 1951 or under the order made by the Custodian under a. 7 of the Act of 1950. In the present case the Custodian had held under section 7 of the Act of 1950 that the evacuees were only entitled to 4/7th share in certain properties. This will appear from the notice under section 6 of the Act of 1951 which we have earlier set out. Section 8(2) says that the declaration by the Custodian under the Act of 1950 that any interest in property is evacuee property shall be binding on the Competent Officer, but this shall not prevent him from separating under section 10, the interest of the evacuee from that of the claimant. In the present case the notice was expressly for the purpose of separation. We have to read section 11 of the Act of 1951 in the light of the preceding sections. We have also, in doing so, to remember that the object of the Act of 1951 is not to vest in the Custodian property which was not evacuee property but to vest in him only the evacuee interest in property after determining or separating, as the case may be, that interest from the interests of other persons in the manner laid down. It has further to be remembered that it has been held by this Court that no property vests in the Custodian unless proceedings under section 7 of the Act of 1950 had been taken: Ebrahim Aboobaker vs Tek Chand Dolwani (1). Section 11 therefore cannot vest in the Custodian any property which was not evacuee property; it cannot have the effect of making the entire property vest in the Custodian as evacuee property where the order under section 7 of the Act of 1956 held that a certain share in it only was evacuee property. It would follow that when section 11 makes the whole property vest in the Custodian in the absence of a claim (1) ; 539 having been filed or such claim having been filed but found to be unsustainable, it deals with a case where the claim is as mortgagor or mortgagee or to an undivided share in a property where the order under section 7 of the Act of 1950 has declared the whole property to be evacuee property. If it were not to be so read, then it would enable property admittedly not belonging to an evacuee, to vest in the Custodian. Such could not have been the intention of the Act and would be against the decision of this Court earlier referred to. The section therefore does not warrant the order of March 23, 1954, which purported to vest the entire properties in the Custodian though the Order under B. 7 of the Act of 1950 found only a four seventh share therein to be evacuee property. We think it right to point out that it has not been contended on behalf of the respondent that the petition was .not maintainable. We have therefore not gone into that aspect of the case and are not to be understood as having decided any question as to the maintainability of the petition. In the result we get aside the order of March 23, 1954. There will be no order as to costs. This order will not however prevent proper steps being taken for the separation of the evacuees ' interest in the properties from the rest in accordance with the Act of 1951 or other provisions of law. Petition allowed.

IN-Abs

A Muslim died leaving some property and several heirs. Some of the heirs became evacuees and their 4/7th share in the property was declared under section 7 of the , to be evacuee property. There after, proceedings were taken for the separation of the interest of the evacuees, but as none of the claimants appeared, the Competent Officer passed an order under section II of the , vesting the entire property in the Custodian. Held, that the order vesting the entire property in the Cus todian was illegal. The share of the evacuees had been determined as 4/ 7ths and the Competent Officer was only required to separate it. Section II could not vest in the Custodian any property which was not evacuee property. This section deals only with cases where the whole property has been declared to be evacuee property and the claim is as mortgagor or mortgagee or to an undivided share in the property. In such cases in the absence of a claim having been filed or having been filed and found unsustainable, section II vests the whole property in the Custodian. Ebrahim Aboobaker vs Tek Chand Dolwani, ; , referred to.

140 and 177 to 191 of 1959. Petitions under Article 32 of the Constitution of India for enforcement of Fundamental Rights. M. R. M. Abdul Karim and K. R. Choudhury, for petitioners. K. N. Rajagopala Sastri and D. Gupta, for respondents. 513 1961. March 22. The Judgment of the Court was delivered by KAPUR, J. These are sixteen petitions under article 32 of the Constitution challenging the legality of the imposition of surcharge imposed on the income of the assessees under the Finance Acts of 1942, 1943, 1944 and 1945. The assessment relates to four assessment years 1942 43, 1943 44, 1944 45 and 1945 46. The petitioners are four partners of a firm named Mohammedaly Sarafaly & Co., Madras, which was carrying on business in hardware, stocks, shares, etc. For the assessment years 1942 43 to 1945 46 this firm was treated as a registered firm under the Indian Income tax Act and therefore the partners were assessed on their respective shares of the profits from the business of the firm. All assessments were completed before 1949 and total income for the purpose of assessment for those four years was about Rs. 29,00,000. In 1955 the petitioners under a 'Voluntary Disclosure Scheme ' with regard to profits which had escaped assessment made a disclosure of their income and proceedings were taken under section 34 of the Income tax Act. In the month of April, 1959, there was a reassessment on all the four partners and the total income for the four assessment years thus came to about Rs. 35 lakhs which included Rs. 29 lakhs already assessed. On that income, income tax, super tax, and surcharge were levied. The surcharge, according to the petition was Rs. 3,82,791. It is this surcharge which is impugned as being, without the authority of law inasmuch as the then Federal Legislature, it is submitted, was not competent to levy the surcharge. Provision for surcharge was made under section 8(1) of the Finance Act, 1942 (Act XII of 1942). This section may now be quoted: Section 8(1) "Subject to the provisions of sub sections (2) and (3), (a) income tax for the year beginning on the 1st day of April, 1942, shall be charged at the rates specified in Part I of Schedule II increased in the cases to which subparagraph (b) of paragraph A 65 514 and paragraph B of that part apply with a sur charge for the purposes of the Central Government at the rate specified therein in respect of each such rate of income tax, and (b) rates of super tax for the year beginning on the 1st day of April, 1942, shall, for the purpose of section 55 of the Indian Income tax Act, 1922, be those specified in Part II of Schedule II increased in the cases to which paragraphs A, B and C of that Part apply by a surcharge for the purposes of the Central Government at the rate specified therein in respect of each such rate of super tax. " It was contended that the Federal Legislature had no power under the Government of India Act, 1935,(25 and 26 Geo V, Ch. 42), to impose a surcharge "for the purposes of the Central Government". The legislative power of the Federal Legislature was given in section 100 of the Government of India Act, 1935, and the power to tax income was contained in item 4 of List I of the Seventh Schedule which was as follows: "Taxes on income other than agricultural income. " Part VII of the Government of India Act, 1935, deals with Finance, Property and Suits and the first chapter deals with Finance. The relevant section which has been relied upon by the petitioners, i.e., section 138(1) of that Act, is in that Part which deals with Distribution of Revenues between the Federation and the Federal Units. That section reads: Section 138(1) "Taxes on income other than agricultural income shall be levied and collected by the Federation. . . . Provided that (a). . . . . . . . . . . (b) the Federal Legislature may at any time increase the said taxes by a surcharge for Federal purposes and the whole proceeds of any such surcharge shall form part of the revenues of the Federation. " It was submitted that according to this section the power of the Federal Legislature to impose a surcharge was only for Federal purposes; that by section 8(1) of the Finance Act, 1942, and similar provisions in 515 the other Finance Acts of three following years, the surcharge had been levied "for the purposes of the Central Government" and that the terms "the purposes of the Central Government" and "for Federal purposes" were not the same but were two different concepts. Section 311 of the Government of India Act, 1935, deals with Interpretation but "Federal purposes" is Dot defined in that section. In subsection (3) of section 313 which is in Part XIII, dealing with Transitional Provisions, it is provided: Section 313(3) "References ' in the provisions of this Act for the time being in force to the Governor General and the Federal Government shall, except as respects matters with respect to which the Governor General is required by the said provisions to act in his discretion be construed as references to the Governor General in council, and any reference to the Federation, except where the reference is to the establishment of the Federation, shall be construed as a reference to British India, the Governor General in Council, or the Governor general, as the circumstances and the context may require. " On the basis of this section it was urged that the term "Federal purposes" in section 138(1)(b) of the Government of India Act, 1935, means the purposes of the Federal Government, i.e., of the Governor General in Council or the Governor General as the case may be and that in the context it is a term of lesser amplitude than the term "purposes of the Central Government". "Central Government" in section 3(8ab)(a) of the , was defined as follows: Section 3 (8ab) "Central Government ' shall (a) in relation to anything done or to be done after the commencement of of the Government of India Act, 1935, mean the Federal Government;". "Federal Government" was defined in the in section 18 a as follows: Section 18 a " 'Federal Government ' shall (a) in relation to anything done or to be done after the commencement of of the Government of India Act, 1935, but before the establishment of the Federation, mean, as respects matters 516 with respect to which the Governor General is by and under the provisions of the said Act for the time being in force required to act in his discretion, the Governor General and as respects other matters, the Governor General in Council; and shall include (i) in relation to functions entrusted under section 124(1) of the said Act to the Government of a Province, the Provincial Government acting within the scope of the authority given to it under that subsection; and (ii) in relation to the administration of a Chief Commissioner 's Province, the Chief Commissioner acting within the scope of the authority given to him under section 94(3) of the said Act;". From these sections it was argued that the term "Federal Government" in the Government of India Act 1935, only meant the Governor General or the Governor General in Council as the case may be but under the definition in the the term "Central Government" did not only denote the Governor General or the Governor General in Council as the case may be but also included for certain purposes the Provincial Governments acting within the scope of the authority given to them under a. 124(1) of the Government of India Act, 1935. This argument, in our opinion, is wholly fallacious. The power of the Federal Legislature to legislate was conferred by section 100, sub sections (1) and (2). The first sub section deals with the power of the Federal Legislature to legislate in regard to items contained in the First List which was exclusively within the power of the Federal Legislature. The Federal Legislature therefore had the power to legislate in regard to any subject contained in List I and item 54 relating to taxes on income was in that List. It has been held that the items have to be given the widest possible amplitude. But it was submitted that the power under item 54 howsoever wide it may be is subject to the limitation contained in section 138(1), proviso (b). Now "Federal purposes" is not defined in the Government of India Act, 1935, nor is it defined in the General 517 Clauses Act. But there is sufficient indication in section 138 itself that the amounts recovered as surcharge were to form part of the Revenues of the Federation and such Revenues were to be expended for the purposes there indicated. Under section 124(4) of the Government of India Act, 1935, where powers and duties are conferred by section 124 upon a Province or a Federated State there shall be paia by the Federation to the Province or the Federated State such sum as may be agreed Hence by the definitions given in . . . Hence by the given in the no different concept of the words "purposes of the Central Government" was intended from what was intended by the use of the words "Federal purposes" in section 138(1)(b) of the Government of India Act, 1935. These petitions therefore fail and are dismissed with costs. One hearing fee. Petitions dismissed.

IN-Abs

The petitioners as partners of a registered firm were assessed to income tax for the relevant assessment years. Thereafter they made a disclosure of their income under a "Voluntary Disclosure Scheme" regarding profits which had escaped assessment, and on reassessment of the disclosed income income tax, super tax and surcharge were levied. The levy of surcharge but not income tax and super tax was challenged as unauthorised. Held, that the power to legislate for levy of tax on income was conferred upon the Federal Legislature by section 100 sub sections (1) and (2) of the Government of India Act, 1935, and item 54 of List I of the Seventh Schedule and the Federal Legislature was competent under that entry to legislate in regard to the levy of a surcharge on tax; section 138(1) proviso (b) did not restrict the amplitude of that legislative power. The term "Federal purposes" in section 138 is not defined in the Government of India Act nor in the ; but there is sufficient indication in the section itself that surcharges were to form part of the Revenues of the Federation and such Revenues were to be expended for the purposes therein mentioned. The concept of the words "purposes of the Central Government" under the was not different from what was intended by the use of the words "Federal purposes" in section 138(i) proviso (b) of the Government of India Act.

Appeal No. 462 of 1957. Appeal by special leave from the judgment and decree dated April 18,1952, of the former Nagpur High Court in First Appeal No. 88 of 1942. C.B. Agarwala and K. P. Gupta, for the appellant No. 1. Har Dayal Hardy and N. N. Keswani, for respondent No. 1. 1961. March 16. The Judgment of the Court was delivered by SUBBA RAO, J. This appeal by special leave is directed against the judgment and decree of the High of Judicature at Nagpur confirming the judgment of the 2nd Additional District Judge, Jabalpur in Civil Suit No. 9 A of 1942, filed by respondents 2 to 7 herein claiming to be the reversioners of the estate of one Raja Ajitsingh. Ajit Singh was the Raja of Saliya Estate consisting of 73 villages and other property situate in Jabalpur and Saugor Districts. Ajit Singh died on January 2, 1910, leaving behind him two widows named Rani Khuman Kuar and Rani Anant Kuar and an illegitimate son named Ramraghuraj Singh. Rani Anant Kuar died in or about 1914 and Rani Khuman Kuar passed away on February 1, 1922. After the death of Raja Ajit Singh, the Estate was taken over by the Court of Wards on behalf of the widows in the year 1913 and remained in its possession till March 27, 1923. After the death of Rani Khuman Kuar, the local Government issued a notification recognizing Ramraghuraj Singh as the successor to the Estate; but, for one reason or other, the 349 Court of Wards continued to manage the Estate on his behalf from September 23, 1923. Ramraghuraj Singh died on April 23, 1932, and on his death the, first respondent, the son of Ramraghuraj Singh, was, declared as the ward of the Court of Wards which continued to manage the Estate on his behalf Respondents 2 to 6, claiming to be the reversioners to the Estate of Raja Ajit Singh, filed a suit on June 15, 1935, for recovery of possession of the Estate. Appellants 1 and 2 are alleged to be the assignees pendente lite of the interest of the alleged reversioners. The plaintiffs averred that RamraLhurai Singh was the son of one Jhutti by her husband one Sukhai and that as Raja Ajit Singh had no issue, he and the Ranies treated the boy as their son, that the Lodhi community to which Raja Ajit Singh belonged was not a sudra caste and that, therefore, even if Ramraghuraj Singh was the illegitimate son of Raja Ajit Singh, he was not entitled to a share, and that in any view half of the share of the widows in the Estate would devolve, on their death, on the reversioners to the exclusion of the illegitimate son. They further pleaded that the possession of the Court of Wards of the entire Estate from January 2, 1910 to February 1, 1922, was adverse to the illegitimate son and, therefore, he lost his title, if any, to the said Estate. The case of the first respondent was that Raja Ajit Singh belonged to the sudra caste, that Ramraghuraj Singh was the son of the said Raja by a continuously and exclusively kept concubine named Raj Dulari, that the widows never questioned the right of Ramraghuraj Singh to a share in the property of Raja Ajit Singh, that therefore there was no scope for the plea of adverse possession, and that, after the death of the widows, the succession to the Estate of Raja Ajit Singh in respect of one half share opened out and the illegitimate son, he being the nearest heir, succeeded to that share also. The trial court as well as the High Court concurrently gave the following findings: (1) Raja Ajit Singh belonged to the sudra caste; (2) Raja Raghuraj Singh was the son of Raja Ajit Singh by a continuously and 350 exclusively kept concubine by name Raj Dulari, who had passed into the coneubinage of Raja Ajit Singh after the death of her husband; (3) as the illegitimate son of Raja Ajit Singh, Ramraghuraj Singh succeeded to a moiety of the Estate of his putative father and the two widows of Raja Ajit Singh succeeded to the other moiety of his Estate; (4) as there was no daughter or daughter 's son, after the death of the widows, Ramraghuraj Singh, being the sole surviving heir of his putative father, inherited a moiety of the Estate which was held by the widows during their lifetime; (5) Ramraghuraj Singh was all along in joint possession of the Estate with the widows, and, although the Court of Wards had assumed superintendence on behalf of the Ranies, he was not out of possession during their lifetime and as such his title could not be extinguished by adverse possession; (6) the plaintiffs ' suit was barred under section 26 of the Central Provinces Court of Wards Act; and (7) the plaintiffs ' claim was barred by limitation. While the trial court held that it had not been established that the plaintiffs were the reversioners of Raja Ajit Singh, the High Court held that it had been proved. In the result the trial court dismissed the suit and, on appeal, the High Court confirmed it. The 2nd appellant died and his legal representatives were not brought on record and the appeal so far as the 2nd appellant is concerned has abated. The 1st appellant alone proceeded with the appeal. It is the usual practice of this Court to accept the concurrent findings of the courts below. There are no exceptional circumstances in this case, at any rate none was brought to our notice, to compel us to depart from the usual practice. We, therefore, accept the concurrent findings, namely, that Raja Ajit Singh was a member of the sudra caste and that Ramraghuraj Singh was the son of Raja Ajit Singh by a continuously and exclusively kept concubine named Raj Dulari, who passed into his concubinage after the death of her husband. The main question that arises in this appeal is whether an illegitimate son of a sudra vis a vis his selfacquired property, after having succeeded to a half 351 share of his putative father 's estate, will be entitled to succeed to the other half share got by the widow, after the succession opened out to his putative father on the death of the said widow. The answer to the question depends upon the content of the right of an illegitimate son to succeed to the self acquired property of his putative father. The source of his right is found in the relevant Hindu Law texts. Mitakshara in explanation of the texts of Manu and Yajnavalkya says in Chapter 1, section 12, in the following three verses thus: "1. The author next delivers a special rule concerning the partition of a Sudra 's goods. 'Even a son begotten by a Sudra on a female slave may take a share by the father 's choice. But, if the father be dead, the brethren should make him partaker of the moiety of a share: and one, who has no brothers, may inherit the whole property, in default of daughter 's sons '. 2.The son, begotten by a Sudra on a female slave, obtains a share by the father 's choice, or at his pleasure. But, after the demise of the father, if there be sons of a wedded wife, let these brothers allow the son of the female slave to participate for half a share: that is, let them give him half as much as is the amount of one brother 's allotment. However, should there be no sons of a wedded wife, the son of the female slave takes the whole estate, provided there be no daughters of a wife, nor sons of daughters. But, if there be such the son of the female slave participates for half a share only. 3.From the mention of a Sudra in this place it follows that the son begotten by a man of a regenerate tribe on a female slave, does not obtain a share even by the father 's choice, nor the whole estate after his demise. But, if he be docile, he receives a simple maintenance. " No mention of a widow is found in the above verses, but in Dattaka Chandrika, the author says in V. 30,31 thus: "If any, even in the series of heirs down to the 352 daughter 's son, exist, the son by a female slave does not take the whole estate, but on the contrary shares equally with such heir." The leading decision on the rights of an illegitimate son is that of the Judicial Committee in Raja Jogendra Bhupati Hurri Chundun Mahapatra vs Nityanund Mansingh (1). There, one Raja died leaving behind him a legitimate son and an illegitimate son. On the death of the legitimate son, who had succeeded to the Raja, it was held that the illegitimate son succeeded to him by survivorship. Sir Richard Couch cited two verses from Mitakshara Chapter 1, section 12. We have already extracted the said verses. Commenting upon these verses, the learned Judge observed at P. 132 thus: "Now it is observable that the first verse shews that during the lifetime of the father the law leaves the son to take a share by his father 's choice, and it cannot be said that at his birth he acquires any right to share in the estate in the same way as a legitimate son would do. But the language there is very distinct, that "if the father be dead the bre thren should make him partaker of the moiety of a share". So in the second verse the words are that the brothers are to allow him to participate for half a share, and later on there is the same expression: "The son of the female slave participates for half a share only". " On that interpretation, he accepted the view of the Bombay High Court and held that an illegitimate son and a legitimate son, being members of an undivided Hindu family governed by Mitakshara, the illegitimate son becomes entitled to the whole of the immoveable property of the family if the legitimate son dies without any male issue. The Judicial Committee again considered the right of an illegitimate son in Kamulammal vs Visvanathaswami Naicker (2). There it was held that in a competition between a widow and an illegitimate son to the property of his putative father, the illegitimate son takes half of the (1) (1890) L.R. 17 I.A. 128. (2) (1922) L.R. 50 I.A. 32. 353 property and the widow the other half. Sir Lawrence Jenkins observed at p. 37 thus: "Here the contest is between the illegitimate son and the widow, and though the widow is not named in the text it is well settled that as a preferential heir to the daughter 's son she is included among those who share with the illegitimate son, and it would serve no useful purpose to speculate why she was not mentioned in the text. " The status of the illegitimate son was subject of further scrutiny by the Privy Council in Vellaiyappa Chetty vs Natarajan (1). There the question arose in the context of an illegitimate son 's right to maintenance from a joint family property after the death of his father who left no separate property. The Judicial Committee held that he was entitled as a member of the family to maintenance out of the joint family property in the hands of the collaterals with whom the father was joint. In dealing with the question of status of an illegitimate son, Sir Dinshah Mulla, speaking for the Court, after considering the relevant Hindu Law texts and decisions, arrived at the following conclusion at p. 15: "On a consideration of the texts and the cases on the subject their Lordships are of opinion that the illegitimate son of a Sudra by a continuous concubine has the status of a son, and that he is a member of the family; that the share of inheritance given to him is not merely in lieu of maintenance, but in recognition of his status as a son;. . . It is not necessary to multiply decisions. The law pertaining to the right of inheritance of an illegitimate son to his putative father 's; self acquired property may be stated, thus: An illegitimate son has the status of a son under the Hindu Law and he is a member of the family. But his rights are limited compared to those of a son born in wedlock. He has no right by birth and, therefore, he cannot demand partition during his father 's lifetime. During the lifetime of his father, the law allows the illegitimate son to take (1) Mad. 1. 45 354 only such share as his father may give him. But on his father 's death, he takes his father 's self acquired property along with the legitimate son and in case the legitimate son dies, he takes the entire property by survivorship. Even if there is no legitimate son, the illegitimate son would be entitled to a moiety only of his father 's estate when there is a widow, daughter or daughter 's son of the last male holder. In the absence of any one of the three heirs, he succeeds to the entire estate of his father. From the premises it follows that an illegitimate son, except to the extent circumscribed by the. Hindu Law texts, has the status of a son and is heir to the self acquired property of his putative father. If that be his undoubted right under the Hindu Law, on what principle can he be deprived of his right of succession to the other moiety of his father 's property after the death of the widow? Under the Hindu Law, the death of the widow opens inheritance to the reversioners and the nearest heir at the time to the last full owner becomes entitled to possession. When the succession opens, in a competition between an illegitimate son and other reversioners, the illegitimate son is certainly a nearer heir to the last male holder than the other reversioners. If he was the nearest heir only yielding half a share to the widow at the time of the death of his putative father, how does he cease to be one by the intervention of the widow 's estate? As on the death of the widow the estate reverts back to the last male holder, the succession shall be traced to him, and, if so traced, the illegitimate son has a preferential claim over all other reversioners. In Mayne 's Hindu Law, 11th edn., this position has been controverted in the following manner at p. 637: "The illegitimate Bon, though he inherits on the death of his putative father, along with or in default of male issue, widow or daughter, cannot come in as a reversionary heir on the death of the widow or daughter, as he is undoubtedly neither a sagotra nor a bhinnagotra sapinda of the last, male holder within the text of Manu. " We regret our inability to accept this proposition. 355 for, if accepted, we would be speaking in two voices. Once it is established that for the purpose of succession an illegitimate son of a Sudra has the status of a son and that he is entitled to succeed to his putative father 's entire self acquired property in the absence of a son, widow, daughter or daughter 's son and to a share along with them, we cannot see any escape from the consequential and logical position that he shall be entitled to succeed to the other half share when succession opens after the widow 's death. The intervention of the widow only postpones the opening of succession to the extent of half share but it cannot divert the succession through a different channel, for she cannot constitute herself a new stock of descent. The opinion expressed in Mayne 's Hindu Law is sought to be supported by the author by reference to a decision of the Madras High Court in Karuppayee Ammal vs Ramaswami (1). But a reference to that judgment shows that no such proposition has been laid down therein. There the facts were that on the death of a sudra, the last male owner of an estate, his widow succeeded to a moiety thereof and his illegitimate son to the other moiety; the widow then died leaving behind her a son of the daughter of the last male owner and the illegi timate son above mentioned. The Madras High Court held that the daughter 's son was entitled to the moiety that had vested in the widow and the illegitimate son was not entitled to any portion thereof. The reason for that conclusion is found at p. 868 and it is: "The principle underlying the doctrine of reverter referred to is that the last male holder 's estate is inherited by females who have no free right of alienation and who hold a peculiar kind of estate called "woman 's estate" and on whose death the then heir of the last male holder succeeds to the last male holder 's estate. From its very nature, the doctrine could not apply legitimately to a case where the last male holder 's estate vested on his death not in a female heir but in a male heir also. In such a case, the doctrine as such would not strictly apply, nor has it been, so far as we are aware, applied to such a case." (1) Mad. 356 The reason of the decision is therefore clear and that is when a daughter 's son succeeds to an estate, there is no further scope for the application of the doctrine of reverter. The learned Judges expressly left open the present question when they said, "We are not now concerned with the question as to what would become of the property if the last of the daughters died without leaving a daughter son, in such circumstances". This decision cannot, therefore, be invoked in support of the contention that in a case where the doctrine of reverter applies the illegitimate son is excluded from succession. On the other hand, the Nagpur High Court in Bhagwantrao vs Punjaram (1) rightly came to the conclusion that where on a partition between a legitimate and an illegitimate son, the widow was allotted a share, on her death the illegitimate son was entitled to a share in the property. We, therefore, hold that on the death of the widow, the illegitimate son, the father of the first respondent herein, succeeded to the other half share of the estate of his putative father Raja Ajit Singh. It is. next contended that the widows acquired an absolute interest in the estate of Raja. Ajit Singh by adverse possession and, therefore, the property would devolve; not on Raja Ajit Singh 's heirs but on the heirs of the widows. On the question of adverse possession also, both the courts below have held against the appellant. But learned counsel argued that in the circumstances of this case the said find ing was a mixed question of fact and law. It was said that the courts below missed the point that the Court of Wards, representing the widows, held the Estate adversely to Ramraghuraj Singh in respect of his half share and, therefore, the fact that during its management the widows did not deny the title of Ramraghuraj Singh or the fact that they admitted his title could not affect the question of adverse possession. Assuming that learned counsel for the appellant was correct in his contention, we fail to see how the said legal position would advance the appellants case, for the Court of Wards admittedly managed only the (1) I.L.R. 357 widows ' limited estate and it is not the case of the appellant that the Court of Wards acquired on behalf of the widows an absolute interest in respect of the half share of Ramraghuraj Singh in the suit properties. The plaintiffs themselves claimed to hereversioners of Raja Ajit Singh on the ground that the succession to him opened out when the widows died; and if their contention be accepted, namely, that the widows acquired an absolute interest in half of the property, they would be non suited in respect thereof on the simple ground that their suit was not to recover the property as the heirs of the widows. But, as we have pointed out, the widows would have acquired a title by adverse possession in respect of the share of Ramraghuraj Singh only in their capacity as owners of a limited estate i.e., in regard to their half share they held it as widow 's estate and in respect of the other half share of Ramraghuraj Singh they acquired a right by adverse possession only a limited estate therein. The result would be, when the widows died the succession to the estate of Raja Ajit Singh would open out and the illegitimate son, as the nearest heir, would succeed to the entire estate. We, therefore, reject this contention. In the result, the appeal fails and is dismissed. The respondent will not get any costs as the Advocate for the respondent is absent in 'the Court when the judgment is being delivered. Appeal dismissed.

IN-Abs

A Sudra Hindu died leaving two widows and an illegitimate son by a continuously and exclusively kept concubine. The son succeeded to a moiety of the estate and the widows succeeded to the other moiety. The widows died without leaving any daughter or daughter 's son. The reversioners filed a suit for recovery of possession of the estate. The illegitimate son contended that on the death of his father he was entitled to succeed to half the estate the other going to the widows and that on the death of the widows he was entitled to the half share held by them. Held, that the illegitimate son succeeded to half the estate upon the death of the father and succeeded to the other half on the death of the widows. An illegitimate son has the status of a son under the Hindu Law; but he has no rights by birth and cannot claim partition during his father 's lifetime. On the father 's death he takes his father 's self acquired property along with the legitimate son and in case the legitimate son dies, he takes the entire property by survivorship. If there is no legitimate son, he would be entitled only to a half share when there is a widow, daughter ox daughter 's son of the last male holder. In the absence of any one of these three heirs, he succeeds to the entire state. If the widow succeeds to half the estate, upon her death succession again opens to half the estate of the last male 348 holder held by her and the illegitimate son, who has the status of a son, has a preferential claim over all other reversioners. Raja jogendra Bhupati Hurri Chundun Mahapatra vs Nityarnund Mansingh, (1890) L.R. 17 I.A. 128, Kamulammal vs Visvanathaswami Naicker, (1922) L.R. 50 I.A. 32 and Vallaiyappa Chetty vs Natarajan, Mad. 1, referred to. Karuppayee Ammal vs Ramaswami, Mad. 856, distinguished. Bhagwantrao vs Punjaram, I.L.R. , approved.

Appeal No. 16 of 1952. Appeal from the Judgment and Order dated February 6, 1951, of the High Court of Judicature at Madras (Rajamannar C. J. and Somasundaram J.) in Civil Miscellaneous Petition No. 11307 of 1950, arising out of Order dated November 10, 1950, made in C. No. 2216 A 3 49 on the file of the Regional Transport Authority, Tanjore. G. R. Jagadisa Iyer for the appellant. V. K. T. Chari, Advocate General of Madras, (V. V. Baghavan, with him) for the respondent. December 5. The Judgment of the Court was delivered by GHULAM HASAN J. This appeal brought by special leave under article 136 (1) of the Constitution is directed against the order dated February 6, 1951, of the High Court of Judicature at Madras, dismissing the petition of the appellant under article 226, praying for the issue of a writ of certiorari to quash the order dated November 10, 1950, passed by the respondent in the following circumstances : The appellant is the lessee of a site in the town of Tanjore in the State of Madras upon which he has a bus stand. The bus stand originally belonged to the Tanjore Municipality and the appellant merely held a licence from that authority. Later on, the title of the Municipality to the site was questioned by a third party and in a civil litigation which ensued the title of the Municipality was negatived. Thereupon the appellant obtained the lease hold right of the site from the true owner and constructed a bus stand conforming to the design approved by the Municipality. Besides sheds for passengers and vehicles it provided other amenities. It was situate near the Railway Station and most of the buses leaving Tanjore for 38 292 out station journeys used this bus stand both as the starting point and as the terminus. It appears that the site was approved as convenient and suitable for the bus stand both by the Municipality and the District authorities for buses plying from and into Tanjore. The appellant held the licence for running the bus stand year after year. In 1939 the Municipality granted him a licence for four months only instead of one year as required by section 270 (c) of the Madras Municipalities Act (V of 1920), and the appellant succeeded in vindicating his right for a whole year 's licence in the Civil Court by obtaining the relief for injunction and an order directing the issue of a licence against the Municipality for 1940 41. The appellant carried on the business without let or hindrance until 1950 when the Municipality refused to renew his licence, whereupon he obtained a mandatory injunction from 'the Civil Court directing the Municipality to grant him a licence for the year 1950 51. This decree was passed on October 7, 1950. On February 21, 1950, however, the Regional Transport Authority, Tanjore, which is the respondent in the present appeal, declared the bus stand as unsuitable with effect from April 1, 1950, and altered the starting and the terminal points from that date. This order resulted in the closing of the appellant 's bus stand. This decision which was given by means of a resolution was confirmed subsequently by another resolution passed on March 31, 1950. The appellant challenged the validity of these resolutions by a petition under article 226 before the Madras High Court on the ground that they were passed without jurisdiction and were contrary to the principles of natural justice as they were passed without notice to the appellant and without giving him an opportunity to defend his right. The resolutions purported to have been passed under section 76 of the , which runs thus: " The Provincial Government or any authority authorized in this behalf by the Provincial GovernMent ' may, in consultation with the local authority 293 having jurisdiction in the area concerned,determine places at which motor vehicles may stand either indefinitely or for a specified period of time, and may determine the places at which public service vehicles may stand either indefinitely or for a specified period of time, and may determine the places at which public service vehicles may stop for a longer time than is necessary for the taking up and setting down of passengers." The Division Bench of the Madras High Court consisting of the learned Chief Justice and another learned Judge quashed the two orders as prayed for by the appellant on the grounds that the orders were passed ex parte, and that section 76 did not authorize, the respondent to close the bus stand. In the opinion of the Bench, section 76 deals with provision for parking places and halting stations and has no applica tion to a permanent bus stand which is a sort of a radiating centre of all the bus traffic for the town. It was held therefore that the Regional Transport Authority could not under section 76 fix starting and terminus places for motor buses. Reference was made, in the course of the arguments, to rule 268, Madras Vehicles Rules, 1940, and the learned Judges observed that though the rule does empower the Transport Authority to fix starting places and termini between which public service vehicles other than motor cars shall be permitted to be used, but that this could be done only if starting places and termini had not already been fixed in accordance with the provisions of any statute. In the present case as these had already been fixed in accordance with rule 27 D, Motor Vehicles Rules, 1923, the Transport Authority could not fix new starting places and termini under rule 268 of the Rules passed in 1940. The Bench pointed out that the rule was defective and would lead to an impasse if the starting places and termini already fixed become unsuitable and have to be shifted. Accordingly they suggested that the rule should be amended and a provision introduced conferring on the appropriate 294 authority the requisite power to alter from time to time the starting places and termini. See T. E. Ebrahim Saheb vs The Regional Transport Authority Tanjore(1). It appears that within two months of the decision of the High Court rule 268 was amended by the Government. Before the decision of the High Court was given the bus stand was shifted to a place belonging to the Municipality in another area. Rule 268 as it originally stood ran thus: " In the case of public service vehicles (other than motor cabs) if starting places and termini have not been fixed in accordance with the provisions of any statute, the transport authority may, after consultation with such other authority as it may deem desirable, fix starting places and termini between which such vehicles shall be permitted to be used within its jurisdiction. A list of such places shall be supplied by such authority to every holder of a permit for such vehicles. When such places have been fixed, every such vehicle shall start only from such places. " By the amendment the words " if starting places and termini have not been fixed in accordance with the provisions of any statute " were deleted, and the words " and after notice to the parties affected, fix or alter from time to time for good and proper reasons," were added. As amended, the rule runs thus: " 268. In the cage of public service vehicles (other than motor cabs) the transport authority may after consultation with such other authority as it may consider desirable, and after notice to the parties affected, fix or alter from time to time for good and proper reasons, the starting places and termini between which such vehicles shall be permitted to be used within its jurisdiction. A list of such places shall be supplied by such authority to every holder of a permit for such vehicles at the time of grant of or renewal of permits. (1) A.I.R. 951 Mad. 419. 295 When such places have been fixed every such: vehicle shall start only from such places. " The respondent then issued a notice to the appellant on October 25, 1950, to show cause why the bus stand should not be shifted, the grounds given being that it was not satisfactorily maintained and was situated in a limited space which was inadequate to accommodate all the buses using the stand and that it did not permit of any improvements being carried out. The appellant filed a long written statement objecting to the notice and challenging the grounds, whereupon the respondent issued a fresh notice on November 2, 1950, in which the original grounds were dropped and were substituted by the ground "from ' the point of convenience of the travelling public". After hearing the appellant and the Municipality, the Board passed a resolution on November to, 1950, that for good and proper reasons, namely, the convenience of the travelling public, the Transport Authority had resolved to alter the starting places and termini of all public service vehicles (other than motor cabs) arriving, at and proceeding from Tanjore from the existing bus stand owned by the appellant to the Municipal bus stand in another area of the town. This order led to another petition being filed in the High Court at Madras, praying for a writ of certiorari under article 226. The appellant questioned the jurisdiction of the Transport Authority to pass the order in question. It was contended before the High Court that rule 268 as amended was itself ultra vires, firstly, because it was beyond the rulemaking power conferred by section 68, sub section (r), of the , and secondly because it was repugnant to article 19(1)(g) of the Constitution. Both these contentions were rejected by the High Court and the petition was dismissed. The contentions raised before the High Court have been repeated before us. We are satisfied that there is no good ground for differing from the view taken by the High Court. The contains 10 Chapters. Chapter IV of the Act deals with 296 control of transport vehicles. Section 4 7 (1) lays down that the Regional Transport Authority shall, in deciding whether to grant or refuse a stage carriage permit, have regard to the following matters, namely, (a) the interest of the public generally; (b) to (f). . . . . . . . Section 48 says that the Regional Transport Authority after consideration of the matters set forth in section 47, may attach to a stage carriage permit any prescribed condition or any one or more of the following conditions. Various conditions are set out one of which (v) is material for our purposes. It is to the effect " that within Municipal limits and in such other areas and places as may be prescribed, passengers shall not be taken up or set down at or except at specified points. " The material portion of section 68 may be set out here: "(1) A Provincial Government may make rules for the purpose of carrying into effect the provisions of this Chapter. (2) Without prejudice 'to the generality of the foregoing power, rules under this section may be made with respect to all or any of the following matters, namely: (r) prohibiting the picking up or setting down of passengers by stage or contract carriages at specified places or in specified areas or at places other than duly notified stands or halting places. . . ; " It is obvious from a plain reading of sub section (1) that the Government has got full power to make rules for the purpose of carrying into effect the. provisions contained in Chapter IV relating to the control of transport vehicles and according to subsection (2), without prejudice to this power, the Government has the power to frame rules with respect to matters set out in sub sections (2) (a). to (2) (za). It is significant to note that the Act does not follow the ordinary mode of providing at the end of the Act that the Government is empowered to make rules for the 297 purpose of carrying into effect the provisions of the Act but at the end of each of the Chapters, including Chapter IV, the power has been reserved to the Provincial Government to make rules for the purpose of carrying into effect the provisions of the Chapter. The purpose of Chapter IV is described by the compendious expression "control of transport vehicles" and the Provincial Government is invested with plenary powers to make rules for carrying out that purpose. Keeping in view the purpose underlying the Chapter we are not prepared to hold that the fixing or alteration of bus stands is foreign to, that purpose. It was contended that section 68, sub section 2(r), does not confer the power upon the transport authority to direct the fixing or the alteration of a bus stand and that rule 268 of the rules framed under that section was, therefore, ultra vires. We are not prepared to accede to this contention. Sub section 2(r) clearly contemplates three definite situations. It prohibits the picking up or setting down of passengers (i) at specified places (ii) in specified areas, and (iii) at places other than duly notified stands or halting places. If the power to make rules in regard to these, matters is given to the Government, then it follows that a specified place may be prohibited from being used for picking up or setting down passengers. This will inevitably result in the closing of that specified place for the purpose of picking up or setting down of passengers. Similarly a specified area may be excluded for the same purpose. The expression "duly notified stands" is not defined in the Act, but it is reasonable to presume that a duly notified stand must be one which is notified by the Transport Authority and by none other. There is no warrant for the presumption that it must be notified by the Municipality. ' Reference was Made to section 270(b), 270(c) 298 270(e), 1, 2 & 3 of the Madras District Municipalities Act (V of 1920), and it was argued that the authority which is clothed with a power to fix a stand is the Municipality. Section 270(b) empowers the Municipal Council to construct or provide halting places and cart stands, and the latter according to the Explanation appended to the section includes a stand for motor vehicles as well. Section 270(c) merely says that where a Municipal Council has provided a public landing place, halting place or cartstand, the executive authority may prohibit the use for the same purpose by any person within such distance thereof, as maybe determined by the Municipal Council, of any public place or the sides of any public street. Section 270(e) lays down that no person can open a new private cart stand or continue to keep open a private stand unless he obtains from the Council a licence to do so. These provisions do not affect the power of the Transport Authority to regulate traffic control or impose restrictions upon the licence of any such cart stand. If rule 268 is therefore within the power of the rule making authority, it follows that it cannot be challenged as being void because it is not consistent with some general law. Reliance was placed on a passage at page 299 of, Craies on Statute Law as laying down that a by law must not be_repugnant to the statute or the general law. But by laws and rules made under a rule making power conferred by a statute do not stand on the same footing, as such rules are part and parcel of the statute itself. Section 68, subjection 2(r), involves both s general prohibition. that the stand will cease to exist as well as a particular prohibition, namely that passengers shall not be picked up or set down at a specified point. The order passed by the Transport Authority properly construed falls within the ambit of section 68, sub section 2(r). Rule 268 under which the order impeached was passed is rule framed under the plenary rule making 299 power referred to in section 68, sub section (1). Sub section (2) (za) says that a rule may be made with respect to any other matter which is to be or may be prescribed. This shows the existence of residuary power vested in the rule making authority. It follows therefore that rule 268 is within the scope of the powers conferred under section 68 of the Act. The next contention was that the order is repugnant to article 19 (1) (g) of the Constitution, according to which all citizens must have the right to practise any profession or to carry on any occupation, trade or business. It cannot be denied that the appellant has not been prohibited from carrying on the business of running a bus stand. What has been prohibited is that the bus stand existing on the parti cular site being unsuitable from the point of view of public convenience, it cannot be used for picking up or setting down passengers from that stand for outstations journeys. But there is certainly no prohibition for the bus stand being used otherwise for carrying passengers from the stand into the town, and vice versa. The restriction placed upon the use of the bus stand for the purpose of picking up or setting down passengers to outward journeys cannot be con sidered to be an unreasonable restriction. It may be that the appellant by reason of the shifting of the bus stand has been deprived of the income he used to enjoy when the bus stand was used for outward journeys from Tanjore, but that can be no ground for the contention that there has been an infringement of any fundamental right within the meaning of article 19 (1) (g) of the Constitution. There is no fundamental right in a citizen to carry on business wherever he chooses and his right must be subject to any reasonable restriction imposed by the executive authority in the interest of public convenience. The restriction may have the effect of eliminating the use to which the stand has been put hitherto but the restriction cannot be regarded as being unreasonable if the authority imposing such restriction had the power to do so. Whether the abolition of the stand 39 300 was conducive to public convenience or not is a matter entirely for the transport authority to judge, and it is not open to the court to substitute its own opinion for the opinion of the authority, which is in the beat position, having regard to its knowledge of local conditions to appraise the situation. It was next contended that rule 268, if it is held to be intra vires, was not complied with as the Transport Authority could pass such an order only after consultation with such other authority as it may deem desirable. It is admitted that the Transport Authority;consulted the Municipality before passing the order in question. Rule 268 therefore was fully complied with. But then it is urged that the Municipality was not the proper authority in the circumstances as it was a partisan to the dispute and had been endeavouring to oust the appellant from the bus stand in order to set up its own bus stand. The Municipality is a public body interested in public welfare and if it sought the assistance of the Government or the Transport Authority to shift the busstand, it was actuated only by the demands of public interest. It was possible for the Transport Authority to consult the District Board or the Panchayat as suggested for the appellant, but it was not bound to do so. We do not think that in consulting the Municipality the Transport Authority acted otherwise than within the scope of its powers. Further, according to the language employed the consultation is not obligatory but only discretionary. It was suggested that the act of the Municipality was mala fide and reference was made to paragraphs 18 and 19 of the appellant 's affidavit dated November 20, 1950. They refer merely to the vagueness of the ground of public convenience and to he amendment of the rule not being bona fide. There is, however, no material to support this suggestion. The mere fact that in the first notice certain grounds were mentioned which were not adhered to in the second notice and convenience of the travelling public was alone mentioned as the ground cannot lead to the 301 inference that the order was mala fide. The rule was amended in pursuance of the suggestion of the High Court in order to overcome the difficulty which arose in the absence of requisite power to alter the busstands. It is significant that no allegation about mala fides was made before the High Court and the question was never discussed there. In the petition for special leave to appeal though there is reference to the ground of inconvenience being vague, yet there is no suggestion of mala fides. The question about mala fides appears to have been raised for the first time in paragraph 4 (f) and (g) of the statement of the case. We hold that the plea of mala fides has not It was also urged that the resolution is invalid as the District Collector who presided over the meeting of the Transport Authority which passed this resolution had opened the new Municipal bus stand on April I, 1950. The suggestion is that be did not bring to bear upon the question an impartial and unbiased mind. The District Collector was not acting in the exercise of judicial or quasi judicial functions so that his action can be subjected to the scrutiny which is permissible in the case of a judicial officer. He, was acting purely in his executive capacity and his conduct in presiding over the meeting of the Transport Authority in the exercise of his normal functions and also opening the Municipal stand which he was entitled to do as the head of the District, does not affect the validity or fairness of the order complained against. We do not think there is any merit in this contention. Accordingly we dismiss the appeal with costs. Appeal dismissed.

IN-Abs

Rule 268 of the Madras Motor Vehicles Rules, 1940, as it originally stood did not empower the Transport Authority to alter from time to time the starting places and termini for motor vehicles. The rule was amended in 1950 so as to empower the Transport Authority to do so, and after giving notice to the appellant who was the owner of a bus stand in a municipality, which was being used for several years as the starting place and terminus for motor buses plying to and from the municipality, the Transport Authority passed a resolution changing the starting place and terminus for the convenience of the public. The appellant applied for a writ of certiorari contending that r. 268 as amended was ultra vires as it went beyond the rule making powers conferred by section 68 (2) (r) of the and was also repugnant to article 19 (1) (g) of the Constitution: Held, (i) that the fixing and alteration of bus stands was not a purpose foreign to the " control of transport vehicles ", the purpose for which rules could be made under section 68 (1), and the power to make rules prohibiting the picking up or setting down of passengers at specified places mentioned in section 68 (2) (r) necessarily included the power to alter the situation of bus stands, and r. 268 as amended did not therefore go beyond section 68 (2) (r) ; (ii) the restriction placed upon the use of the bus stand for the purpose of picking up or getting down passengers to or from outward journeys cannot be considered to be an unreasonable restriction on the right to carry on any profession, trade or business of the appellant, and r. 268 was not in any way repugnant to article 19 (1) (g) of the Constitution. The expression " duly notified stand " in the Madras means a stand duly notified by the Transport Authority. There is no warrant for the view that it means a stand 291 notified by the municipality. The provisions of section 270 (b), (c) and (e) do not affect the power of the Transport Authority to regulate traffic control or impose restrictions upon the licence of cart stands.

minal Appeal No. 127 of 1960. Appeal by special leave from the judgment and order dated August 4, 1958, of the former High Court at Bombay in Criminal Revision Application No. 728 of 1958. B. P. Maheshwari, for the appellant. 452 Vir Sen Sawhney, R. H. Dhebar and T. M. Sen, for the respondent. March 17. The Judgment of the Court was delivered by RAGHUBAR DAYAL, J. This appeal, by special leave, is directed against the judgment of the Bombay High Court. The appellant was a ' Third Class Magistrate at Sanand in 1951. He received Rs. 200 in cash from Amar Singh Madhav Singh as deposit for security to be released on bail. This amount was not credited in the Criminal Deposit Rojmal and the appellant thereby committed criminal breach of trust with respect to the amount. The appellant was dismissed from service on April 4, 1953, as a result of a departmental enquiry. On June 9, 1954, a complaint was filed on behalf of the State against the appellant. He was convicted of the offence under section 409, Indian Penal Code, by the Trial Magistrate. The conviction was confirmed by the Extra Additional Sessions Judge, Ahmedabad. His revision was dismissed by the High Court. The only point urged in this appeal is that the learned Magistrate should not have taken cognizance of this offence without the previous sanction of the State Government in view of the provisions of section 197, Code of Criminal Procedure. It is not disputed that a Court could not have taken cognizance of this offence against the appellant if he had been a Magistrate on June 9, 1954. The appellant was not a Magistrate on June 9, 1954, when the complaint was filed. The question then is whether the provisions of section 197 of the Code of Criminal Procedure prohibit a Court from taking cognizance of an offence committed by a Magistrate while acting or purporting to act in the discharge of his official duty even when he is no longer a Magistrate on the date the Court takes cognizance. Sub section (1) of section 197, Code of Criminal Procedure, reads: "(1) When any person who is a Judge within the meaning of section 19 of the Indian Penal Code, or 453 when any Magistrate, or when any public servant who is not removable from his office save by or with the sanction of a State Government or the Central Government, is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction (a) in the case of a person employed in connection with the affairs of the Union, of the Central Government; and (b) in the case of a person employed in connection with the affairs of a State, of the State Government. " There cannot be much scope for the contention that a Court is prohibited from taking cognizance of an offence committed by a Judge while acting or purporting to act in the discharge of his official duty only when that person is a Judge at the time cognizance is taken, as otherwise full effect will not be given to the expression 'any person who is a Judge ', in the subsection. Similar expression is not used in describing a Magistrate or a public servant. But it is clear that those two persons should also be 'Magistrate or a public servant ' at the time cognizance is taken of an offence committed by them while acting or purporting to act in the discharge of official duty. In connection with 'public servant ' the expression who is not removable from his office save by or with the sanction of a State Government or the Central Government indicates that. It is only when the public servant concerned is in service that the question of his removal from office can arise. If the public servant has ceased to be a public servant, no such question arises. Therefore it seems proper to construe the expression 'when any Magistrate ' in the sub section to mean 'when a person who is a Magistrate '. Even if the expression be not construed in this form, the section says: 'when any Magistrate. is accused of any offence '. This indicates that it is only when the accusation is against a Magistrate that the Court will not take cognizance of an offence committed by 454 him while acting in the discharge of his official duty, without previous sanction. If a person is not a Magistrate at the time the accusation is made, the Court can take cognizance without previous sanction. It has been strenuously urged on behalf of the appellant that the expression 'when any Magistrate is accused of any offence ' refers to the stage when the accusation is first made against the Magistrate, that is to say, when it is alleged for the first time that the Magistrate has committed such an offence. There seems to be no justification to add the word 'first ' and read this expression as 'when any Magistrate is first accused of any offence '. The occasion when such an allegation is made for the first time against a Magistrate is not in connection with the Court 's taking cognizance of the offence but will always be either when a complaint is made to a superior officer in the department or to the police. Both these authorities are free to inquire into the accusation. It is only when the departmental enquiry or the police investigation leads to the conclusion that the matter is fit for going to Court that a complaint would be made or a police report would be submitted Io the proper Court for taking action against the Magistrate. It is at this stage that the Magistrate would be accused of the offence for the purposes of the Court and therefore it would be then that the Court will see whether the person proceeded against is a Magistrate or not. This view finds further support from the language of the clauses (a) and (b). The previous sanction, according to these clauses, will be of the Central Government if the Magistrate is employed in connection with the affairs of the Un ion and of the State Government if he is employed in connection with the affairs of a State. If the person is not employed, no sanction is necessary. Whether the person is so employed or not, is to be seen shortly before the submission of the complaint or police report to the Court. The sanction can be given by the proper authority on a consideration of the allegations and evidence available to establish them and therefore only after the investigation is complete. The submission of the 455 complaint or police report is expected to follow the grant of sanction within a reasonable time. A similar question arose in section A. Venkataraman vs The State (1) in connection with the interpretation of the provisions of section 6 of the Prevention of Corruption Act, 1947 (Act II of 1947). Sub section (1) of that section reads: "(1) No Court shall take cognizance of an offence punishable under section 161 or section 165 of the Indian Penal Code or under subsection (2) of section 5 of this Act, alleged to have been committed by a public servant except with the previous sanction (a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of the Central Government; (b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government, of the State Government; (c) in the case of any other person, of the authority competent to remove him from his office." This Court said at p. 1046: "The words in section 6(1) of the Act are clear enough and they must be given effect to. There is nothing in the words used in section 6(1) to even remotely suggest that previous sanction was necessary before a court could take cognizance of the offences mentioned therein in the case of a person who had ceased to be a public servant at the time the court was asked to take cognizance, although he had been such a person at the time the offence was committed. . A public servant who has ceased to be a public servant is not a person removable from any office by a competent authority. " The same can be said with respect to the provisions of section 197 of the Code of Criminal Procedure. We therefore hold that no previous sanction is necessary for a Court to take cognizance of an offence committed (1) [1958] S.G.R. 1037 456 by a Magistrate while acting or purporting to act in the discharge of his _official duty if he had ceased to be a Magistrate at the time the complaint is made or police report is submitted to the Court, i.e., at the time of the taking of cognizance of the offence committed. We accordingly dismiss the appeal. Appeal dismissed.

IN-Abs

The appellant, a Magistrate, was dismissed from service as a result of a departmental enquiry. On a complaint filed by the State Government he was convicted under section 409 of the Indian Penal Code. The point urged was that the trial Magistrate should not have taken cognizance of the offence without the previous sanction in view of the provisions of section 197 of the Code of Criminal Procedure. Held, that no previous sanction was necessary for a Court to take cognizance of an offence committed by a Magistrate while acting or purporting to act in the discharge of his official duty if he had ceased to be a Magistrate at the time the complaint was made or police report was submitted to the Court, i.e., at the time of the taking of cognizance of the offence committed. section A. Venkataraman vs The State, , applied.

32 of 1959. Petition under article 32 of the Constitution of India for enforcement of Fundamental Rights. V. A. Seyid Muhamad, for the petitioner. N. section Bindra, R. H. Dhebar and T. M. Sen, for the respondents. March 22. The Judgment of the Court was delivered by section K. DAS, J. This is a writ petition under article 32 of the Constitution. The relevant facts lie within a narrow compass, and the short point for decision is whether in the circumstances of this case the petitioner can complain of an infringement of the fundamental rights guaranteed to her under articles 19(1)(f) and 31 of the Constitution. The relevant facts are these. The petitioner 's husband Kunhi Moosa Haji, it is alleged, carried on a hotel business in Karachi which is now in Pakistan. The petitioner stated that her husband had been carrying on the said business since 1936. It is not in dispute, however, that in the relevant year, that is, 1947, when the separate dominion of Pakistan was set up, the petitioner 's husband was in Karachi. The petitioner stated that at the end of August, 1949, her husband returned to Malabar, in India. On behalf of ' respondent No. 1, the Ministry of Rehabilitation, Government of India, it is averred that the petitioner 's 507 husband surreptitiously returned to India without a valid passport in 1953 and was arrested for an alleged infringement of the provisions of the Foreigners Act. On December 7, 1953, Kunhi Moosa Haji transferred in favour of his wife his right., title and interest in seven plots of land, details whereof are not necessary for our purpose. On December 8, 1954, about a year after the transfer, a notice was issued to both the petitioner and her husband to show cause why Kunhi Moosa Haji should not be declared an evacuee and his property as evacuee property under the provisions of the , (hereinafter called the Act). The petitioner 's husband did not appear to contest the notice, but the petitioner entered appearance through her advocate. By an order dated January 29, 1955, the Assistant Custodian of Evacuee Property, Tellicherry, declared that Kunhi Moosa Haji was an evacuee under the provisions of section 2(d)(1) of the Act and the plots in question were evacuee property within the meaning of section 2(f) of the Act. From this decision the petitioner unsuccessfully carried an appeal to the Deputy Custodian of Evacuee Property, Malabar, who affirmed the decision of the Assistant Custodian, Tellicherry, by his order dated July 11, 1955. The petitioner then moved the Deputy Custodian of Evacuee Property, Malabar, for a review of his order under section 26(2) of the Act. This petition also failed. Then the petitioner moved the Custodian General of Evacuee Property, New Delhi, in revision against the order of the Deputy Custodian. This revision petition was dismissed by the Custodian General by his order dated April 9, 1956. The petitioner then made an application to the Ministry of Rehabilitation for an order of restoration of the property in her favour under the provisions of section 16(1) of the Act. This application was also rejected. The petitioner then moved the High Court of Kerala by means of a writ petition under article 226 of the Constitution. This petition was, however, withdrawn by the petitioner on the ground that the Kerala High Court had held in an earlier decision reported in 508 Arthur Import & Export Company, Bombay vs Colletor of Customs, Cochin (1) that when an order of an inferior tribunal is carried up in appeal or revision to a superior tribunal outside the court 's jurisdiction and the superior tribunal passes an order confirming, modifying or reversing the order, the High Court cannot issue a writ to an authority outside its territorial jurisdiction. Then, on March 5, 1959, the petitioner filed the present writ petition and the basis of her contentions is that the fundamental rights guaranteed to her under articles 19(1)(f) and 31 of the Constitution have been infringed and she is entitled to an appropriate writ or order from this Court for the restoration of the property transferred to her by her husband. In her petition, the petitioner has contested the validity of the notice issued on December 8, 1954, on the ground of noncompliance with certain rules. She has also contested on merits the correctness of the findings arrived at by the relevant authorities that Kunhi Moosa Haji was an evacuee and the property in question was evacuee property. Learned Counsel for the petitioner tried to argue that the invalidity of the notice issued under section 7 of the Act went to the root of jurisdiction of the subsequent orders. We do not, however, think that any question of lack of jurisdic tion is involved in this case. The petitioner appeared in response to the notice and raised no point of jurisdiction. In subsequent proceedings before the Deputy Custodian and the Custodian General she contested the correctness of the orders passed on merits: no question of jurisdiction was canvassed at any stage and we do not think that the notice suffered from any such defect as would attract the question of jurisdiction. We need only add that no question of the constitutionality of any law is raised by the, petitioner. In the view which we have taken, this petition is concluded by the decision of this Court in Sahibzada Saiye d Muhammed Amirabbas Abbasi vs The State of Madhya Bharat (2) and it is not necessary to consider on merits the contentions urged on behalf of the petitioner. The position as we see it is this. This Court (1) (1958) 18 k. L.J. 198. (2) ; 509 can exercise jurisdiction under article 32 of the Constitution only in enforcement of the fundamental rights guaranteed by Part III of the Constitution. In the present,case, the appropriate authorities of competent jurisdiction under the Act have determined the two questions which fell for their decision, namely, (1) that Kunhi Moosa Haji was an evacuee within the meaning of section 2(d) of the Act and (2) that his property was evacuee property. It was open to the petitioner to challenge the decision of the Custodian General, New Delhi, by moving the appropriate High Court in respect thereof; it was also open to the petitioner to move this Court by way of special leave against the decision of the Custodian General or of the other appropriate authorities under the Act. The petitioner did not, however ', choose to do so. The result, therefore, is that the order of the custodian General has become final. Under section 28 of the Act the order cannot be called in question in any court by way of an appeal or revision or in any original suit, application or execution proceeding. It is, indeed, true that section 28 of the Act cannot affect the power of the High Court under articles 226 and 227 of the Constitution or of this Court under articles 136 and 32 of the Constitution. Where, however, on account of the decision of an authority of competent jurisdiction the right alleged by the peti tioner has been found not to exist, it is difficult to see bow any question of the infringement of that right can arise as a ground for a petition under article 32 of the Constitution, unless the decision of the authority of competent jurisdiction on the right alleged by the petitioner is held to be a nullity or can be otherwise got rid of As long as that decision stands, the petitioner cannot complain of any infringement of a fundamental right. The alleged fundamental right of the petitioner is really dependent on whether Kunhi Moosa Haji was an evacuee and whether his property is evacuee property. If the decision of the appropriate authorities of competent jurisdiction on these questions has become final and cannot be treated as a nullity or cannot be otherwise got rid of, the petitioner cannot complain of any infringement of her 510 fundamental right under articles 19(1)(f) and 31 of the It is worthy of note that the relevant provisions of the Act have not been challenged before us as unconstitutional, nor can it be seriously contended before us that the orders of the appropriate authorities under the Act can be treated as null and void for want of jurisdiction. What is contended before us is that the orders were incorrect on merits. That is a point which the petitioner should have agitated in an appropriate proceeding either by way of an appeal from the order of the Custodian General with special leave of this Court or by an appropriate proceeding in the High Court having jurisdiction over the Custodian General. The petitioner did not take either of these steps, and we do not think that she can be permitted now to challenge the correctness on merits of the orders of the appropriate authorities under the Act on a writ petition under article 32 of the Constitution on the basis that her fundamental right has been infringed. In Sahibzada Saiyed Muhammed vs The State of Madhya Bharat (1) the facts were these. The petitioner who had migrated to West Pakistan applied to the High Court of Madhya Bharat for a writ of habeas corpus for directions to produce petitioners 2 and 3, his minor children, before the court on the allegation that they were wrongfully confined and, upon the dismissal of the said application, be applied to the District Judge of Ratlam under the Guardian and Wards Act for his appointment as guardian of the person and property of the said minors; the District Judge rejected the application and appointed another person as guardian; the petitioner then appealed to the High Court against the order of the District Judge and that appeal was dismissed. He applied for special leave to appeal to this Court and that application was also rejected. Thereafter be moved an application under article 32 of the Constitution and it wag held that where on account of the decision of a court of competent jurisdiction, the right alleged by the petitioner does not exist and, therefore, its infringement cannot arise, (1) ; 511 this Court cannot entertain a petition under article 32 for protection of the alleged right. We are of the opinion that the principle of this decision also applies to the present case. The circumstance that in Sahibzada Saiyed Muhammed vs the State of Madhya Bharat (1) an application for special leave was made and rejected makes no difference to the application of the principle. So far as the principle is concerned, the position is the same when an application is made and rejected and when no application is made. The re sult in both cases is that the decision becomes final and binding on the parties thereto. We must make it clear that we are not basing our decision on the circumstance that the High Court of Kerala rejected the application of the petitioner on the ground that it had no territorial jurisdiction. We are basing our decision on the ground that the competent authorities under the Act had come to a certain decision, which decision has now become final the petitioner not having moved against that decision in an appropriate court by an appropriate proceeding. As long as that decision stands, the petitioner cannot complain of the infringement of a fundamental right, for she has no ,such right. We would, accordingly, dismiss the petition with costs. Petition dismissed.

IN-Abs

The petitioner 's husband transferred certain property to the petitioner. A notice under section 7, , was issued to the petitioner and to her husband and the husband was declared an evacuee and the property was declared as evacuee property by the Assistant Custodian. An appeal to the Deputy Custodian and thereafter a revision petition to the Custodian General by the petitioner were dismissed. The petitioner applied to the Supreme Court under article 32 of the Constitution contending that her fundamental rights under 64 506 articles 19(1)(f) and 31 were infringed by the order of the Assistant Custodian and prayed for the restoration of the property. Held, that the petition under article 32 was incompetent as no question of violation of any fundamental right arose in the case. The decision of an authority of competent jurisdiction had negatived the existence of the right alleged by the petitioner and unless that decision was held to be a nullity or could be otherwise got rid of, the petitioner could not complain of any infringement of a fundamental right. The alleged fundamental right of the petitioner was dependent on whether her husband was an evacuee and whether his property was evacuee property. The decision on that question had become final and no question of lack of jurisdiction was involved. Sahibzada Saiyed Muhammed Amirabbas Abbasi vs The State of Madhya Bharat, ; , applied.

307 and 308 of 1960. Petitions under article 32 of the Constitution of India; for enforcement of Fundamental Rights. Porus A. Mehta, J. B. Gagrat and G. Gopalakrishnan, for the petitioner. H. J. Umrigar, R. H. Dhebar and T. M, Sen, for the respondents. March 23. The Judgment of the Court was delivered by section K. DAS, J. These are two writ petitions in respect of two orders 'dated August 3, 1960, b which the Joint Chief Controller of Imports, Madras, cancelled two import licences, Nos. A 863296 and 836640 dated January 18, 1960, and February 2, 1960, respectively, granted in favour of the petitioner, Messrs. Sinha Govindji of Bangalore Road, Bellary, for the purpose of importing cellulose nitrate sheets of the value of Rs. 75,000 each for two licensing periods, April/September, '1959, and October/ March, 1960. The complaint of the petitioner firm is that respondents 1 and 2 have cancelled the licences in circumstances which amounted to a denial of its right to be given a reasonable opportunity of being heard, as provided by cl. 10 of the Imports (Control) Order, 1955, before the impugned 'orders were passed 542 and thus arbitrarily and without authority of law deprived the petitioner of its fundamental right to carry on its business under article 19 of the constitution. The point for decision is a short one and we need only state such facts as bear upon that point. The petitioner 's case is that the proprietor of the firm is a citizen of India carrying on a business of the manufacture of celluloid and plastic bangles, etc, at Bellary in the Mysore State. The petitioner was granted the two licences referred to above and thereafter entered into firm commitments for the import of cellulose sheets to the clause of Rs. 99,000. On March 4, 1960, the petitioner was surprised to receive two letters from the Assistant Controller of Imports, Madras, calling upon the petitioner to let him know the extent to which the licenses had been utilised and asking the petitioner not to enter into fresh commitments against the said licenses without specific and prior approval of the Controllers ' office. This led to some correspondence between the petitioner and the Control authorities, details whereof are not necessary for our purpose. On May 27, 1960, the petitioner received two notices, only one of which we need set out in full. It stated: "It is hereby notified that in exercise of the powers conferred by cl. 9 of the Imports (Control) Order, 1955, the Government of India, in the Minis. try of Commerce and Industry propose to cancel licence No. A 836640/60/AU/M dated the Second February, 1960, valued at Rs. 75,000 (Rupees Seventy five thousand only) for import of Cellulose Nitrate Sheets from the Soft Currency area except South Africa, granted by the Joint Chief Controller of Imports and Exports, Madras to Messrs. Sinha Govindji, No. 18, Bangalore Road, Bellary 2, unless sufficient cause against this is furnished to the Joint Chief Controller of Imports and Exports, Madras, within ten days of the date of issue of this notice, by the said Messrs. Sinha Govindji, No. 18, Bangalore Road, Bellary 2 or any Bank, or any other party who may be interested in it. In view of what is stated above, Messrs. Sinha 543 Govindji, Bellary or any Bank, or any other party who may be interested in the said licence No.836640/60/AU/M dated Second February, 1960, are hereby directed not to enter into any commit Departments against the said license and return it immediately to the Joint Chief Controller of Imports and Exports, Madras. (Sd.) J. K. Sarkar, Deputy Chief Controller of Imports and Exports. " The notices, be it noted, did not state on what grounds falling within cl. 9 of the Imports (Control) Order, 1955, it was proposed to cancel the licences of the petitioner. Clause 9 of the Control Order states four grounds for cancellation of a licence, and we may read the clause here omitting those grounds which are not relevant for our case: "9. Cancellation of Licences: The Central Government or any other officer authorised in this behalf may cancel any licence granted under this Order or otherwise render it ineffective: (a) if the licence has been granted through inadvertence or mistake or has been obtained by fraud or misrepresentation; (b) (c) (d) By a letter dated May 30, 1960, the petitioner referred to the earlier correspondence on the subject and said inter alia: "Now clause (9) of the Import Control Order, 1955, under which action is proposed to be taken envisages the cancellation of a licence on various grounds. Your notice does not disclose on which of these grounds the proposed action is sought to be taken. Without knowing on what ground the proposed cancellation is to be effected it is impos sible for me to show cause against it. I may, however, state that I have not done anything justifying the cancellation of the licence under the said Rule and that as far as I can see, there is no ground whatsoever for such cancellation. " 544 Then, on August 4, 1960, the petitioner received two orders dated the previous day by which the two licences in favour of the petitioner were cancelled. The orders stated (we are quoting only one of the orders which are similar in terms): "Whereas M/s. Sinha Govindji, Bangalore Road, Bellary or any bank or any other person have not come forward furnishing sufficient cause, against Notice No. 1/LCL/60/CDN(1) dt. 27 5 1960, proposing to cancel licence No. A 863296/60/AU/Mdt. 18 1 60, valued at Rs. 75,000 for the import of Cellulose Nitrate Sheets from the Soft Currency Area except South Africa granted to the said M/s. Sinha Govindji, Bangalore Road, Bellary, by the Joint Chief Controller of Imports and Exports, Madras, Government of India, in the Ministry of Commerce and Industry in exercise of the powers conferred by clause 9 of the Imports (Control) Order, 1955, hereby cancel the said licence No. A 863296/60/AU/M dt. 18 1 60 issued to the said M/s. Sinha Govindji, Bellary. " It will be noticed that the orders also did not state on what ground the licences were cancelled. The petitioner complained that the cancellation of the two licences led the Customs authorities to hold back the goods of the petitioner which had already arrived at port and were awaiting clearance, resulting in heavy demurrage, etc. ; but the real ground on which the petitioner challenges the two cancellation orders is that (to quote the words of the petition) "no real opportunity at all to show cause against the proposed cancellation was given to the petitioner in total disregard of the provisions of cl. 10 of the Imports (Control) Order, 1955". We may read here that clause. Applicant or licensee to be heard. No action shall be taken under Clauses 7, 8 or 9 unless the licensee/importer has been given a reasonable opportunity of being heard. " On behalf of the respondents it has been stated that after the issue of the two licences a letter dated February 16, 1960, was received from the Director, Small Industries Service Institute, Bangalore, to the 545 effect that the petitioner had no machinery and equipment to manufacture the relevant articles from the imported raw material. On receipt of this letter a joint investigation was held by the Assistant Director of Industries, Bell, try, and the Deputy Director, Small, Industries Service Institute, Hubli, and it was found at the time of inspection that the petitioner firm had no machinery and equipment at the premises, nor did they possess any municipal licence or factory licence. On July 2, 1960, the Chief Controller of Imports & Exports wrote to the petitioner giving the above information and asking the petitioner to show cause why further issue of licences should not be suspended under cl. 8 of the Imports (Control) Order, 1955. We quote below the relevant extracts from this letter: "Gentleman, I write to refer to your letter dated the 21st May, 1960, and 30th May, 1960, on the above subject, and to say that a joint investigation conducted by the Deputy Director, Small Industries Service Institute, Hubli, and Assistant Director of Industries, Government of Mysore, Bellary, revealed that at the time of inspection of your firm by them, no machinery and equipment existed in your premises and that you had no Municipal licences or Factory licence or Factory. In view of this, it is clear that you had obtained the Essentiality Certificate from the Director of Industries fraudulently and by misrepresentation of facts and thereafter obtained the licences in question by producing the said Certificate to the Joint Controller of Imports & Exports, Madras. The above action on your part directly contravenes the Import Trade Control Regulations, within the meaning of para. 6(vii) of Chapter V of the Import Trade Control Hand Book of Rules and Procedure, 1956, read with clause 8(b) of the Imports (Control) Order No. 17/55 dated the 7th December, 1955. In view of this, the request made by you in the letters under reference cannot be acceded to. 69 546 On the other hand, you are called upon, under clause 10 of the said Imports (Control) Order, 1955, to show cause, within 15 (fifteen) days from the date of receipt of this letter, as to why further issue of licences to you should not be suspended, under clause 8 of the said Imports (Control) Order No. 17/55 dated the 7th December, 1955, for contravening the Import Trade Control Regulations. If your reply does not reach the undersigned within the stipulated period it will be assumed that you have no defence to urge in your favour and this office will proceed to adjudicate action against you, without making any further reference to you. " The contention urged on behalf of the respondents is that the letter dated July 2, 1960, stated the necessary ground for the cancellation of the licences to the petitioner, and as the petitioner furnished no sufficient cause against cancellation, the orders of cancellation were made on August 3, 1960. The argument on behalf of the respondents is that the provisions of cl. 10 of the Imports (Control) Order, 1955, have been sufficiently complied with by reason of what was stated in the letter of July 2, 1960. On a careful consideration of the facts and circumstances as stated in the affidavits of the parties we have come to the conclusion that the petitioner has had no reasonable opportunity of being heard before the cancellation orders were made on August 3, 1960. The cancellation orders are, therefore, bad and must be quashed. Our reasons are the following. It is not disputed that the notice dated May 27, 1960, did not state any ground for the proposed cancellation; it merely referred to cl. 9 without stating on which of the four grounds mentioned therein it was proposed to take action. Naturally, the petitioner stated in its letter dated May 30, 1960, that without knowing on what ground the proposed cancellation was to be made, the petitioner firm was not in a position to show cause. So far there is no dispute between the parties, and it is not seriously urged by the respondents that if the notice stood by itself, it could be held to have given the petitioner a reasonable 547 opportunity of being heard within the meaning of cl. 10. The respondents, however, rely on the letter dated July 2, 1960, in support of their contention that the petitioner has had a reasonable opportunity of showing cause against the cancellation of the two licences. On behalf of the petitioner it has been submitted, not without justification, that the letter dated July 2, 1960, related to a different matter, viz., the suspension of the grant of further licences under cl. 8 for which also a reasonable opportunity to be heard had to be given to the petitioner under cl. 10. In its operative part the letter stated: "you are called upon to show cause, within 15 days from the date of this letter, as to why further issue of licences to you should not be suspended under cl. 8". It, therefore, related to proposed action under cl. 8. The respondents, have, however, pointed out that the subject matter of the letter as indicated therein referred to the notices dated May 27, 1960, for cancellation of the licences and it also referred to the earlier, correspondence on the same subject, viz., the petitioner 's letters dated May 21, 1960, and May 30, 1960; therefore, the, contention is that the petitioner must Know as a result of the reference to the subject matter and earlier correspondence that the grounds given in the letter related to proposed action both under cl. 8 and cl. 9, even though the operative portion related to cl. 8 only. It is true that the contents of the letter dated July 2, 1960, should be considered from the point of view of substance rather than that of technical rules of construction of statutory instruments. So considered, it is difficult to hold that the letter asked the petitioner to show cause against cancellation of its licences, parti cularly in the light of the contents of the subsequent letters of the Department which would be referred to presently. Even if we assume that it did so, what is the position? Within 10 days of the receipt of the letter (which was received by the petitioner on July 5, 1960) the petitioner 's solicitor asked for a copy of the joint investigation proceeding and the report submitted as a result thereof The letter also asked for 548 other relevant documents in order to enable the petitioner to show cause. It said that the petitioner would show cause as soon as the relevant documents were received and it also said that 6. personal hearing would be asked for and prayed that in the meantime no further action should be taken. No reply was given by the respondents to the aforesaid letter of the petitioner 's solicitor till August 6, 1960, that is, three days after the cancellation orders had been made. The petitioner was not given a copy of the report of the investigation till as much later date, nor was any in formation given to the petitioner that the copy would not be available and the petitioner must show cause at once. As a matter of fact the petitioner was told nothing in reply to the letter dated July 15, 1960, till three days after the cancellation orders had been made. 'the cancellation orders blandly stated that no cause had been shown, when in fact the petitioner had specifically asked for an opportunity to show cause. By their letter dated August 6, 1960, the respondents said that the matter would be considered on receipt of a letter of authority from the solicitor in proper form and on stamped paper, without stating that in the meantime cancellation order, had been made. without waiting for any explanation. on August 10, 1960, the solicitor submitted a written authority, saying that it was unnecessary to (,all for it arid that the two licences had been cancelled arbitrarily and without giving the petitioner an opportunity of being heard. The correspondence, then continued with regard to the proposed action under cl. 8 and the petitioner challenged the correctness of the report of the joint investigation proceeding on many essential particulars including the alleged absence of machinery arid equipment. It, is not necessary to enter into details of that correspondence, because the proposed action under cl. 8 is not the subject matter of the present proceeding. It is enough to state that from what happened after the receipt of the letter dated July 2, 1960, it is abundantly clear that the petitioner has bad no real opportunity of being heard with regard to the ground alleged in the letter, before the cancellation orders were made 549 on August 3, 1960. There was, in our opinion, a clear violation of the requirement of cl. 10, which embodies the principles of natural justice. The cancellation orders are, therefore, bad and must be quashed. We allow the writ petitions and order accordingly. The petitioner is entitled to its costs; there will be one rearing fee. Petitions allowed.

IN-Abs

The petitioner who was carrying on the business of the manufacture of celluloid and plastic bangles etc. was granted two licences dated January 18, 1960, and February 2, 1060, for the purpose of importing cellulose nitrate sheets for two licensing periods, April/September, 1950, and October/March, 1960, On getting information that the petitioner had no machinery or equipment at the premises nor possessed any municipal licence or factory licence, the Imports and Exports authorities issued a notice dated May 27. 1960, to the petitioner to the effect that the Government of India proposed to cancel the licences granted to him, in exercise of the powers conferred by cl. 9 of the Imports (Control) Order, 1955, unless sufficient cause against this was furnished within ten days of the date of issue of the notice. The petitioner replied that as the notice did not disclose on which of the grounds specified in cl. 9 the proposed action was sought to be taken, it was not possible to show cause against it and that in any case he had not done anything justifying the cancellation of the licences under the said rule. On July 2, 1060, the Chief Controller of Imports and Exports wrote to the petitioner giving the information received as aforesaid and said: "In view of this it is clear that you had obtained the Essentiality Certificate from the Director of Industries fraudulently and by misrepresentation of facts and thereafter obtained the licences in question. . You are called upon under cl. 10 of the Imports (Control) Order, 1955, to show cause, within fifteen days from the date of receipt of this letter, as to why further issue of licences to you should not be suspended, under cl. 8 of the said Imports (Control) Order, 1955, for contravening the Imports Trade Control Regulations. . On August 4, 1960, the petitioner received two orders dated August 3, 1961, by which the two licences in favour of the petitioner were cancelled. The petitioner challenged the validity of the aforesaid orders on the grounds, inter alia, that no real opportunity at all to show cause against the proposed cancellation was given to him in total disregard of the provisions of cl. :co of the Imports (Control) 541 Order, 1955 which required that "No action shall be taken under cls. 7, 8 or 9 unless the licensee. has been given a reasonable opportunity of being heard", and that the cancellation of the licences arbitrarily deprived the petitioner of his fundamental right to carry on his business under article 19 of the Depi Constitution of India. The correspondence between the petitioner, and the Import authorities showed that after the receipt of the letter dated July 2, 1960, the petitioner had no real opportunity of being heard with regard to the ground alleged in the letter, before the cancellation orders were made on August 3, 1960. Held, that on the facts of the case, there was a. clear violation of the requirements of cl. 10 of the Imports (Control) Order 1955, which "embodied the principles of natural justice, and that the orders dated August 3, 1960, canceling the licences granted to the petitioner, were bad and must be quashed.

Appeal No. 89 of 1960. Appeal from the judgment and order dated April 12, 1957, of the Mysore High Court in Writ Petition No. 15 of 1956. 557, M. C. Setalvad, Attorney General for India, V. L. Narasimhamoorty, section N. Andley, J. section Dadachanji, Rameshwar Nath and P. L. Vohra, for the appellants. R. Gopalakrishnan and T. M. Sen, for the respondents. March 24. The Judgment of the Court was delivered by SHAH, J. With a view to enable him to assess cotton cess payable by the appellants under the Indian Cotton Cess Act, 1923 hereinafter called the Act the Deputy Commissioner, District Chitradurga, Mysore State purporting to exercise powers under section 6 of the Act called upon the managing agents of the appellants by letter dated January 13, 1956, to submit in the prescribed form a statement showing the total quantity of cotton consumed or processed in the factory. 'The appellants declined to carry out the requisition and filed a petition in the High Court of Mysore for a writ of mandamus, prohibition or other appropriate writ, direction or order restraining the Deputy Commissioner, Chitradurga and the State of Mysore from "collecting assessments under the Indian Cotton Cess; Act XIV of 1923" in enforcement of the order dated January 13, 1956. The sole ground urged in support of the petition was that the appellants were bound to furnish returns under the Act to the Collector who alone could assess the cess, and the Deputy Commissioner not being a "Collector" within the meaning of the Act and not being an officer appointed by the Central Government to perform the duties of the Collector under the Act, the demand for returns was "unconstitutional". The High Court rejected the petition and against that order, this appeal is preferred with certificate of fitness granted by the High Court. The area in which the mill of the appellants is situ. ate was originally part of the Indian State of Mysore. The State of Mysore became a Part B State within the Union of India on the promulgation of the Constitution on January 26, 1950. The Act was one of the many enactments of the Indian Legislature applied 588 to the State of Mysore by the "Part B States Laws Act" 3 of 1951. The Act provides for the levy of a cess on cotton and for effectuating that purpose imposes by section 6 a duty upon the owner of a mill to submit to the Collector monthly returns of cotton consumed or processed in the mill. The authority to assess cess is by section 7 of the Act vested in the "Collector" which expression in the Act means "in reference to cotton consumed in a mill, the Collector of the district in which the mill is situated or any other officer appointed by the Central Government to perform the duties of a Collector under this Act". The powers of the Collector under the Act can therefore be exercised by the Collector of the district in which the mill is situate or by the officer appointed by the Central Government to perform the duties of a Collector. It is common ground that the Central Government has not issued an order appointing the Deputy Commissioners in the Mysore area to exercise powers under the Act. The power to assess cotton ceases in the Mysore State area can therefore be exercised by the Collector and no other officer. The expression "Collector of the district" which is a component of the first part of the definition is not defined in the Act. But the X of 1897 defines "Collector" as meaning "in a Presidency town, the Collector of Calcutta, Madras or Bombay as the case may be, and elsewhere the Chief Officer in charge of the revenue administration of a district". The revenue administration of a district under the Mysore Land Revenue Code is entrusted to the Deputy Commissioner and he is the chief officer in charge of the revenue administration of a district. The Deputy Commissioner is therefore a Collector within the meaning of the . Counsel for the appellants however contends that the X of 1897 was not extended by the Part B States Laws Act to the State of Mysore and therefore the definition of "Collector" under the cannot be requisitioned in aid to interpret the expression "Collector" used in the Act. But the argument proceeds upon a fallacy as to the 559 true nature of the . By section 3 of that Act, in all Central Acts and Regulations made, after the commencement of the , ' unless there is anything repugnant in the subject or context, the various expressions therein set out shall have the meanings ascribed to them by that Act. The effect of section 3 is to incorporate it as it were as an interpretation section in all Central Acts and Regulations made after the commencement of the . Whenever the Central Act or Regulation made after March 11, 1897, is enacted, the becomes statutorily a part thereof and by its own force it applies to the interpretation of every such enactment. Its vitality does not depend upon any territorial extension. Existence of a definition of the expression "Collector" in the Act in section 2(a) is not necessarily indicative of an intention that the is not to apply to the interpretation of that expression used in that Act. The first part of section 2, cl. (a) of the Act is in truth not a definition at all: it merely states that the Collector of the district in which the mill is situate is the Collector for the purpose,% of the Act. For determining who the Collector is, one has to go to the . It is said that bodily importing the definition of "Collector" in the into section 2(a) of the Act results in tautology, because by the definition in the a Collector (outside the Presidency towns) is an officer in charge of the revenue administration of a district. But by the definition in the , the quality of the power and the duties of the officer concerned are indicated whereas by the use of the expression "of the district" in the definition of Collector in section 2(a) of the Act, the officer in charge of the revenue administration of the district within whose area the mill is situate is indicated. There is in our judgment no tautology, and no ground for not applying the definition of Collector in the to the interpretation of the Act. The appeal fails and is dismissed with costs. Appeal dismissed.

IN-Abs

The appellants declined to carry out the requisition by the Deputy Commissioner to submit certain returns on the ground that tinder the Indian Cotton Cess Act, 1923, which Act Se came applicable to the State of Mysore by the Part B States Laws Act, 1951, the Collector alone could assess the cess and the Deputy Commissioner not being a "Collector" within the meaning of the Act and not being an officer appointed by the Central Government to perform the duties of the Collector under the Act, the demand for return was "unconstitutional". The case of the appellant was that the , was not extended by the Part B States Laws Act, 1951, to the State of Mysore, and, therefore, the definition of "Collector" under the could not be requisitioned in aid to interpret the expression "Collector" used in the Act. Held, that the effect of section 3 of the , was to incorporate it as it were an interpretation section in all the Central Acts and Regulations made after the commencement of the . Whenever a Central Act or Regulation made after March II, 1897, was enacted, the became statutorily a part thereof and by its own force applied to the interpretation of every such enactment. Its vitality did not depend upon any territorial extension. Section 2(a) of the Indian Cotton Cess Act, 1923, does not really give the definition of "Collector", and for determining who the Collector under the Act is, one has to go to the .

22 of 1960. Petition under article 32 of the Constitution of India for enforcement of Fundamental Rights. H.J. Umrigar and B. P. Maheshwari, for the petitioner. A.C. Mitra, B. Das and P. K. Bose, for the respondents Nos. 1 and 2. P. K. Mukherjee, for respondent No. 3. 1960, December 9. The Judgment of Kapur, Gajendragadkar and Wanchoo, JJ., was delivered by Wanchoo, J., and that of Sinha, C.J., and Subba Rao, J., was delivered by Subba Rao, J. WANCHOO, J. This petition under article 32 of the Constitution challenges the constitutionality of section 39 of the Calcutta Police Act, No. IV of 1866, (hereinafter called the Act). The facts necessary for our purpose are these. On August 11, 1954, the petitioner entered into an agreement with one Haripada Bhowmick, who is respondent No. 3 with respect to an eating house named 'Kalpatoru Cafeteria ', situate in No. 2 Chowranghee Road, Calcutta. The petitioner was appointed a contractor by this agreement and was given the exclusive use and occupation of the said eating house upon certain terms and conditions. A licence has to be taken out with respect to an eating house under section 39 of the Act. It appears that originally the licence was in the name of Bhowmick, and one of the conditions of the licence was that the eating house should not be sublet 139 without permission of the Commissioner of Police (hereinafter referred to as the Commissioner). On the date of the agreement, Bhowmick held a licence for the eating house, which was to expire on March 31, 1955. It is said that under the agreement the licence was to remain in the name of Bhowmick while the petitioner was to carry on the business as a contractor. The petitioner carried on the business from after the date of the agreement and no application for a fresh licence was made by him before March 31, 1955, when the licence in the name of Bhowmick was to expire. It was only on August 8, 1955, that an application for licence was made by the petitioner on behalf and in the name of Bhowmick, though the business was continued to be run by him all the time after March 31, 1955. It appears that the application made in the name of Bhowmick was rejected on December 27, 1956; but in the meantime Bhowmick was prosecuted on September 10, 1955, for running the eating house without a licence and was fined on December 12, 1955. Thereafter a notice was issued to Bhowmick on September 7, 1956, to show cause why his application for licence should not be refused inasmuch as he had not applied in time and violated the condition of the licence by sub letting the eating house to the petitioner. Thereafter the petitioner applied on September 21, 1956, for the issue of a licence in his own name. It may be mentioned that in the meantime there had been disputes between Bhowmick and the petitioner and a suit had been filed by Bhowmick against the petitioner in October 1956 in that connection. It may also be mentioned that though the petitioner applied for the first time on September 21, 1956, for licence he had already been prosecuted in October, 1955, for keeping an eating house without a licence and convicted in November 1955. The application made by the petitioner on September 21, 1956, was eventually rejected on March 30, 1958, though in the meantime the petitioner was all along continuing the business of the eating house without having obtained a licence. After the rejection of his application the petitioner applied to the High 140 Court under article 226 of the Constitution challenging the constitutionality of section 39 and also challenging the order of the Commissioner rejecting his licence on various grounds. This application was dismissed on August 7, 1958. Thereupon the petitioner went up in appeal to a Division Bench of the High Court which was disposed of on March 4, 1959. The Division Bench held section 39 to be constitutional. It further held that as extraneous matters had been taken into account in rejecting the application of the petitioner for a licence the rejection was not in accordance with law. However, as the period of one year for which a licence is valid under section 39 had expired in September 1957, and the judgment was being delivered in March 1959, the appeal was dismissed on the ground that application could not be considered in 1959. Thereupon the petitioner made another application to the Commissioner on March 30, 1959, for the period from April 1, 1959 to March 31, 1960. During all this time the petitioner was carrying on his business as a keeper of the eating house without a licence. This application was found defective and another application was made on May 14, 1959. In the meantime, the petitioner again applied to the High Court on or about May 8, 1959, under article 226 of the Constitution in order to compel the Commissioner to issue him a licence or in the alternative to compel him not to prosecute him for keeping an eating house without a licence and for such other orders as the High Court might deem fit to pass. It may be mentioned that day to day prosecution of the petitioner had begun from February 1956 under section 40 of the Act for continuing to keep an eating house without a licence. This writ application filed in the High Court was withdrawn by the petitioner on May 13, 1959, as his application to the Commissioner of March 30, was defective. On May 30, 1959, the Commissioner rejected the application of the petitioner for a licence on the ground that his antecedents and his present conduct showed that he would not keep good behavior and further that he would not be able to prevent drunkenness or disorder among the persons frequenting or using the eating 141 house ' The petitioner 's complaint is that he was not heard before the order rejecting his application was passed. Then on June 15, 1959, the petitioner again applied under article 226 of the Constitution to the High Court against the rejection of his application on May 30. On February 11, 1960, the High Court allowed the petitioner to withdraw the application with liberty to move such application as he may be advised before, this Court, in case such liberty was necessary. Thereafter the petitioner moved this Court by his present application on February 15, 1960. His main contention before us is that section 39 of the Act confers naked and uncanalised powers on the Commissioner to grant or refuse a licence and that no criteria have been laid down anywhere in the Act to guide the discretion of the Commissioner. Further, no opportunity is provided to an applicant for a licence to be heard either orally or in writing before passing orders on an application for licence; in consequence, the Commissioner has been given completely arbitrary powers either to grant or to refuse a licence and this amounts to an unreasonable restriction on the fundamental right of the petitioner to carry on the trade of eating house keeper. Besides this attack on the constitutionality of section 39 the petitioner also contends that the order is mala fide and should be struck down on this ground. There are some other grounds in the petition but they have not been pressed before us and it will not be necessary to consider them. The first question therefore that falls for consideration is whether section 39 of the Act is a reasonable restriction within the meaning of article 19(6) on the fundamental right to practise any profession or to carry on any occupation, trade or business contained in article 19 (1)(g). 39 is in these terms: "The Commissioner of Police, may, at his discretion, from time to time, grant licences to the keepers of such houses or places of public resort and entertainment as aforesaid for which no licence as is specified in the Bengal Excise Act, 1909, is required upon such conditions, to be inserted in every such 142 licence, as he, with the sanction of the said State Government from time to time shall order, for securing the good behaviour of the keepers of the said houses or places of public resort or entertainment, and the prevention of drunkenness and disorder among the persons frequenting or using the same; and the said licences may be granted by the said Commissioner, for any time not exceeding one year. " Learned counsel for the petitioner contends that the language of section 39 shows that an absolute discretion; untrammelled by any considerations, is conferred on the Commissioner by this section and there is nothing either in the section or anywhere in the Act to guide the discretion of the Commissioner in the matter of granting such licences. Therefore, according to learned counsel, the power conferred on the Commissioner is arbitrary and unguided and such power is necessarily to be struck down on the ground that it cannot be a reasonable restriction on the fundamental right to carry on trade. There is no doubt that if the section empowers the Commissioner to grant or refuse a licence without any criteria to guide him, it would be an unreasonable restriction on the right to carry on trade. We have therefore to see whether there is any guidance either in the section or in the Act to regulate the exercise of discretion of the Commissioner in the matter of granting such licences. In this connection it must be remembered that the Act was passed in 1866 when there were no fundamental rights and we cannot expect that meticulousness of language which should be found in statutes passed after January 26, 1950. It may also be mentioned that the Act replaced two earlier Acts, namely, Act XIII of 1856 and XLVIII of 1860. The Act of 1860 also contained provisions for licences for eating houses in sections II and 12 thereof, though the language of those sections was somewhat different. 11 laid down that in the towns of Calcutta, Madras and Bombay no eating house shall be kept without licence and provided for a penalty for the same. 12 then laid down that the Commissioner shall from time to time grant licences to 143 keepers of such houses upon conditions for securing the good behaviour of the keepers of the said houses and for the prevention of drunkenness and disorder among the persons frequenting or using the same. The language of section 39, however, is different inasmuch as it provides that the Commissioner may at his discretion from time to time grant licences. The Act of 1860 was interpreted by the Bombay High Court in Rustom J. Irani vs H. Kennedy (1) as giving no discretion to the Commissioner to refuse a licence if the person applying for the licence was willing to fulfil the conditions imposed thereunder. In the case of Calcutta, however, section 39 made a change in the language contained in the earlier Act giving discretion to the Commissioner in the matter of grant of licences. The question therefore is whether the word "discretion" introduced by section 39 means an absolute and unguided discretion and would therefore now become an unreasonable restriction on the fundamental right of a citizen to carry on the trade of keeping an eating house. There is no doubt, as we have already indicated, that the section does not say as many of the provisions of laws passed after January 26, 1950, do that the Commissioner would grant licence on certain specified considerations. The contention on behalf of the petitioner is that the first part of section 39 confers an absolute discretion on the Commissioner to grant or to refuse a licence just as he pleases and that the second part of the section merely provides for certain conditions to be imposed in case the Commissioner pleases to grant a licence. We are however of opinion that when we are judging a law passed in 1866 to decide whether it satisfies the test of constitutionality based on article 19(1)(g) and article 19(6), we should take the section as a whole and see whether on a fair reading of the section it can be said that there is no guidance for the Commissioner in the matter of granting or refusing licences and his power is arbitrary. If such guidance can be found on a fair reading of the section, there would be no reason for striking it down simply because it has not been worded in a manner which (1) Bom. 144 would show immediately that considerations arising from the provisions of article 19(1)(g) and article 19(6) were in mind naturally those considerations could not be in the mind of the legislature in 1866. We have therefore to see whether an Act passed before the Constitution came into force can be reasonably and fairly read as containing guidance in the matter of licensing, as in this case. If it can be fairly and reasonably read to contain guidance it should not be struck down. If, on the other hand, on a fair and reasonable construction of the section as a whole, we come to the conclusion that there is no guidance in it and the discretion vested in the Commissioner is absolute and arbitrary it will have be struck down. What then does the section provide? It certainly gives powers to the Commissioner to grant licences at his discretion. Those words, however, by themselves do not necessarily mean that the Commissioner has the power to act arbitrarily and grant licences where he pleases and refuse where he does not please to do so. The section provides further that the licence has to be granted upon certain conditions and those conditions have to satisfy two objects, namely, (i) securing of the good behaviour of the keepers of the said houses or places of public resort and entertainment and (ii) the prevention of drunkenness and disorder among the persons frequenting or using the same. Of course, it is implicit in the section that a licence will only be granted to a person who is the keeper of an eating house. We cannot read the section as laying down that the discretion is absolute and that the im. posing of conditions for the aforesaid two objects only arises after that absolute discretion has been exercised in favour of the grant of licences. We see no unfairness or unreasonableness in reading the section to mean that the Commissioner shall satisfy himself (i) that the person applying for a licence is the keeper of an eating house, meaning thereby that he has a place where he can carry on the business or trade and that he actually and effectively has control and possession of that place, (ii) that the keeper is a person of good behaviour so that the eating house may not become 145 a resort of criminals and persons of ill repute, and (iii) that the keeper is in a position to prevent drunkenness and disorder among those who come to the eating house. This section appears in the Police Act, the purpose of which is to maintain law and order and that is why we find that the two objects to be secured when granting licences are the good behaviour of the keeper himself and the prevention of drunkenness and disorder among those who frequent the eating house. It seems therefore to us that section 39 clearly provides that the Commissioner will use his discretion in deciding whether the person applying for a licence is in actual and effective control and possession of the place where the eating house is to be kept and is thus the keeper thereof. He will also satisfy himself that the keeper is a person of good behaviour and further that he is able to prevent drunkenness and disorder in the eating house. If he is satisfied on these three matters, it seems to us that the section contemplates that the discretion will be exercised in favour of the grant of a licence. We cannot accept that even though the Commissioner may be satisfied that the person applying for a licence has actual and effective control of the place where he is going to keep the eating house, is a person of good behaviour and can prevent drunkenness and disorder among the clientele, he will still go on to refuse the licence. The discretion that is given to him is to satisfy himself on these three points and if he is satisfied about them he has to grant the licence. On the other hand if he is not satisfied on any one or more of these points he will exercise the discretion by refusing the licence. As for the conditions which will be inserted in the licence, they are only for the purpose of carrying on the two objects specified in the section. They will naturally be more detailed in order to carry out the two objects aforesaid. But these two objects in our opinion along with the obvious implication in the section that the person applying must have actual and effective control of the place where he is going to keep the eating house are the criteria which will govern the exercise 146 of discretion by the Commissioner in the matter of granting or refusing a licence. We cannot agree with the learned counsel for the petitioner that the two parts of section 39 should be read separately, as if one has no effect on the other. Reading them together, it is in our opinion fair and reasonable to come to the conclusion that the discretion of the Commissioner in this matter is guided by the two objects mentioned in the section and by the necessary implication contained in it that the person applying must be in actual and effective control and possession of the place where he is going to keep the eating house. The argument therefore that section 39 confers an arbitrary and uncanalised power Without any criteria for guiding the discretion of the licensing authority must fail and the section cannot be held to be an unreasonable restriction on the right to carry on trade on this ground. Then it is urged that even if there is guidance in the section it provides for no hearing either oral or written of the person applying for a licence. Further it provides for no grounds to be given for refusing a licence. Therefore, though there may be some guiding principle in the matter of granting licences, the absence of a provision for hearing and for giving reasons for refusal would also make the provision unconstitutional as an unreasonable restriction on a fundamental right. Reference in this connection was made to State of Madras vs V. G. Row (1) where it was observed that "In considering the reasonableness of laws imposing restrictions on fundamental right, both the substantive and procedural aspects of the impugned law should be examined from the point of view of reasonableness and the test of reasonableness, wherever prescribed, should be applied to each individual statute impugned and no abstract standard or general pattern of reasonableness can be laid down as applicable to all cases. " There is no doubt that procedural provisions of a statute also enter into the verdict as to its reasonableness; but at the same time there can be no abstract or 147 general principles which would govern the matter and each statute has to be examined in its own setting. It is undoubtedly correct that no provision has been made for giving a hearing to a person applying for a licence and the Commissioner has not to give reasons when refusing the licence; but it cannot be laid down as a general proposition that where in the case of licensing statute no provision is made for hearing and there is no provision for giving reasons for refusal the statute must be struck down as necessarily an unreasonable restriction on a fundamental right. No case has been cited before us which lays down such a general proposition. We have therefore to examine the section in its setting to decide whether the absence of a provision for hearing and for requiring the Commissioner to give reasons for refusal would make this section unconstitutional. The section appears in the Police Act, which deals generally with matters of law and order and the two objects specified in the section are also for the same purpose. The discretion is vested in a high police officer who, one would expect, would use it reasonably. There is no provision for appeal and there is no lis as between the person applying for a licence and the Commissioner; the exercise of the discretion depends upon the subjective satisfaction of the Commissioner as to whether the person applying for a licence satisfies the three conditions mentioned above. It is true that the order when made one way or the other affects the fundamental right of carrying on trade, but in the circumstances it cannot but be an administrative order (see, Nagendra Nath Bora vs The Commissioner of Hills Division and Appeals, Assam (1)), and though the Commissioner is expected to act reasonably there is no duty cast on him to act judicially. In Nakkuda Ali vs M. F. De section Jayaratne (2), the Privy Council pointed out that it was Quite possible to act reasonably without necessarily actinG judicially and that it was a long step in the argument to say that because a man is expected to act reasonably he cannot do so without a course of conduct analogous to the judicial process. The compulsion of hearing before (1) ; ,1253. (2) 148 passing the order implied in the maxim 'audi alteram partem ' applies only to judicial or quasi judicial proceedings: (see, Express Newspapers (P.) Ltd. vs The, Union of India (1)). Therefore, the fact that no hearing is required to be given by the Commissioner before he decides to grant or refuse a licence would not make the provisions as to licensing in the circumstances of this case unreasonable restrictions on the fundamental right of carrying on a trade. For the same reasons it cannot be said that because the reasons for refusal are not communicated to the person applying that would make the licensing provision unconstitutional. The person applying knows that under the law there are three conditions (already set out above) which the Commissioner has to consider in granting or refusing the licence. If he thinks that he fulfills the three conditions and the Commissioner has acted unreasonably in rejecting his application he is not without a remedy; he can apply to the High Court under article 226 and compel the Commissioner to disclose the reasons for refusal before the Court and if those reasons are extraneous or are not germane to the three matters arising under section 39, the High Court will compel the Commissioner to act within the scope of section 39. We are therefore of opinion that in the circumstances of this case and in the setting in which section 39 appears the mere absence of a provision for a hearing or a provision for communicating the reasons for refusal to the person applying, does not make section 39 unconstitutional as an unreasonable restriction on a fundamental right. The attack therefore on the constitutionality of section 39 must fail. Then we turn to the question of mala fides. It is not the case of the petitioner that the Commissioner has any personal animus against him or that he is favouring Bhowmick. What he says in ground 41 of his petition in this connection is that the reasons given by the Commissioner in his order dated May 30, 1959, for refusing the licence are not correct and that the Commissioner is annoyed with him because he went to the High Court by means of a writ application. (1) 106. 149 These in our opinion are no grounds for holding that the order of the Commissioner passed in this case on May 30, 1959, is malafide. The petition therefore fails and is hereby dismissed with costs. SUBBA RAO, J. We regret our inability to agree with Wanchoo, J. Our learned brother in his judgment has stated the facts fully and it is not necessary to restate them here. The petitioner applied to the Commissioner of Police, Calcutta, for a licence to enable him to carry on the business of an eating house known as "Kalpatoru Cafeteria". The Commissioner by his order dated May 30, 1959, rejected the application made by the petitioner for a licence on two grounds, namely, that he was not satisfied that from "the antecedents and resent conduct" of the petitioner it would be reasonable to think that the petitioner would keep good behaviour and would be able to prevent drunkenness or disorder among the persons frequenting the eating house. The application was rejected under section 39 of the Calcutta Police Act, No. IV of 1866 (hereinafter called the Act). The short question raised is whether section 39 of the Act is constitutionally valid. Section 39 of the Act reads: "The COMMISSIONER of Police, may, at his. discretion, from time to time, grant licenses to the keepers of such houses or places of public resort and entertainment as aforesaid for which no license as is specified in the Bengal Excise Act, 1909, is required upon such conditions, to be inserted in every such license, as he, with the sanction of the said State Government from time to time shall order, for securing the good behaviour of the keepers of the said houses or places of public resort or entertainment, and the prevention of drunkenness and disorder among the persons frequenting or using the same; and the said licenses may be granted by the said Commissioner, for any time not exceeding one year. " Learned counsel for the petitioner contends that 150 the petitioner has under article 19(1)(g) of the Constitution a fundamental right to carry on the business of an eating house and that the provisions of section 39 of the Act impose unreasonable restrictions on the exercise of his right and, therefore, the said section is void. Before scrutinising the provisions of that section it would be convenient at the outset to notice the relevant aspects of the law vis a vis the concept of reasonable restrictions on a fundamental right. The concept of reasonableness has been clearly defined by Patanjali Sastri, C. J., in State af Madras vs V. G. Row (1) thus: "It is important in this context to bear in mind that the test of reasonableness, wherever prescribed, should be applied to each individual statute impugned, and no abstract standard, or general pattern, of reasonablenes s can be laid down as applicable to all cases. The nature of the right alleged to have been infringed, the underlying purpose of the restrictions 'imposed, the extent and urgency of the evil sought Co be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict". There the constitutional validity of section 15(2)(b) of the Indian Criminal Law Amendment Act, 1908, was impugned on the ground that it fell outside the scope of authorized restrictions in article 19(4) of the Constitution. The issue of a notification by the State Government declaring an association unlawful was made to depend upon its subjective satisfaction of certain objective factors. The Act also provided for an enquiry before an Advisory Board and the subsequent review of the order by the Government on the basis of the said enquiry. It was pressed upon this Court to hold that the said restriction passed the test laid down in article 19(4) of the Constitution. In rejecting the con tention, Patanjali Sastri, C. J., observed thus: "The formula of subjective satisfaction of the Government or of its officers, with an Advisory (1)[1952] S.C.R. 597, 607, 608. 151 Board thrown in to review the materials on which the Government seeks to override a basic freedom guaranteed to the citizen, may be viewed as reasonable only in very exceptional circumstances and within the narrowest limits, and cannot receive judicial approval as a general pattern of reasonable restrictions on fundamental rights. " The learned Chief Justice adverting to the procedural aspect of the restriction criticised the absence of a provision in the impugned Act for personal service on the association and thus depriving its members of the opportunity to make their representations. Compared with section 39 of the Act, the impugned provisions of the Criminal Law Amendment Act impose more stringent control on the exercise of the discretionary power by the Government. Yet the Court struck down the provisions. The attempt made to distinguish that decision on the ground that it related to the fundamental right of freedom of speech cannot be justified as the freedom to do business is also one of the important fundamental rights under the Constitution, The case of Thakur Raghubir Singh vs Court of Wards, Ajmer (1) was concerned with the question of the reasonableness of the provisions of section 112 of the Ajmer Tenancy and Land Records Act (XLII of 1950) which provided that "if a landlord habitually infringes the rights of a tenant under this Act, he shall, notwithstanding anything in section 7 of the Ajmer Government Wards Regulation, 1888 (1 of 1888), be deemed to be a 'landlord who is disqualified to manage his own property ' within the meaning of section 6 of the said Regulation and his property shall be liable to be taken under the superintendence of the Court of Wards. " The determination of the question whether a landlord habitually infringed the rights of a tenant was left to the Court of Wards. This Court held that section was void as being unreasonable restriction on the right in property as the restriction made the enjoyment of that right to depend upon the mere discretion of the (1)[1953] S.C.R. 1049, 1055. 152 executive. Mahajan, J., as he then was, observed as under: "When a law deprives a person of his possession of his property for an indefinite period of time merely on the subjective determination of an executive officer, such a law can, on no construction of the word "reasonable" be described as coming within that expression, because it completely negatives the fundamental right by making its enjoyment depend on the mere pleasure and discretion of the executive, the citizen affected having no right to have recourse for establishing the contrary in a, civil court. " Though section 112 of the Ajmer Tenancy and Land Records Act laid down an objective test, namely,"a landlord habitually infringing the rights of tenants under that Act", and, therefore, may be said to have laid down some policy for the exercise of the discretion by the Court of Wards, the section was struck down as the discretion was uncanalised and no effective procedure was prescribed to remedy the grievance of an aggrieved party. It cannot be said that the Commissioner of Police has a higher status than the Court of Wards or that the taking over of the management of an estate affects a larger right than preventing a person from doing his business. The decision in Messrs. Dwarka Prasad Laxmi Narain vs The State of Uttar Pradesh (1) dealt with cl. 4(3) of the Uttar Pradesh Coal Control Order, 1953, whereunder the licensing authority was given absolute power to grant or refuse to grant, renew or refuse to renew, suspend, revoke, cancel or modify any licence under the said Order and the only thing he had to do was to record reasons for the action he took. Under the clause the State Coal Controller could delegate power to any other officer. This Court held that the said Order was void as it imposed unreasonable restrictions on the freedom of trade and business guaranteed under article 19(1)(g) of the Constitution and not coming within the protection afforded (1)[1954] S.C.R. 803, 811. 153 by cl. (6) of the Article. Mukherjea, J., as he then was, observed to the following effect: "The power of granting or withholding licences or of fixing the prices of the goods would necessarily have to be vested in certain public officers or bodies and they would certainly have to be left with some amount of discretion in these matters. So far no exception can be taken; but the mischief arises when the power conferred on such officers is an arbitrary power unregulated by any rule or principle and it is left entirely to the discretion of particular persons to do anything they like without any check or control by any higher authority. " We shall now notice some of the decisions cited at the Bar on behalf of the Commissioner in support of the validity of the impugned provisions. In Babul Chandra vs Chief Justice and Judges, High Court of Patna (1) it was held that the proviso to s ub section (1) of section 9 of the Indian Bar Councils Act was not void as being an unreasonable restriction upon the freedom to practise a profession, or to carry on an occupation, trade or calling. The proviso to section 9(1) states expressly that the rules "shall not limit or in any way affect the power of the High Court to refuse admission to any person at its discretion". Under section 8 of the Indian Bar Councils Act, no person is entitled as of right to practise in any High Court, unless his name is entered in the roll of the Advocates of that Court maintained under the Act. Under section 9 of that Act, the Bar Council can frame rules with the sanction of the High Court to regulate the admission of persons as Advocates. The proviso saves the overriding power of the High Court to refuse admission in its discretion. It was contendedthat an unfettered and uncontrolled discretion wasgiven to the High Court and that was unreasonable. This Court pointed out that there could not be a better authority than the High Court in that State to which the discretion could be entrusted. This decision turned upon three considerations, namely, (1) no person was entitled as of right to practise; (2) the discretion to refuse was vested in the (1)A.I.R. 20 154 highest judicial body in the State; and (3) it was implicit in the power of discretion that the High Court would give notice before rejecting an application. On that basis this Court held that the restrictions imposed by the proviso to section 9(1) were reasonable. Nor does the decision in Harishankar Bagla vs The State of Madhya Pradesh (1) lay down any different principle. There this Court was concerned with cl. 3 of the Cotton Textile (Control of Movement) Order, 1948, promulgated by the Central Government under section 3 of the Essential Supplies (Temporary Powers) Act, 1946, which required a citizen to take a permit from the Textile Commissioner to enable him to transport cotton textiles purchased by him. It was contended in that case that the requirement of a permit was an unreasonable restriction on the citizen 's right under sub cls. (f) and (g) of article 19(1) of the Constitution. This Court rejected the contention and affirmed the validity of the law. Mahajan, C. J., speaking for this Court gave four reasons in support of his conclusion and they were: (1) the Legislature passed the Essential Supplies (Temporary Powers) Act during a period of emergency when it was necessary to impose control on the production, supply and distribution of commodities essential to the life of the community; (2) cl. 3 of the Control Order did not deprive a citizen of the right to dispose of or transport cotton textiles purchased by him, but only required him to take a permit from the Textile Commissioner to enable him to transport them; (3) if transport of essential commodities by rail or other means of conveyance was left uncontrolled, it might well have seriously hampered the supply of these commodities to the public; and (4) the policy underlying the Order was clearly enunciated by the provisions therein and that policy governed the exercise of the discretion by the Textile Commissioner. On these considerations this Court maintained the validity of that Order. The said decision has no analogy to the provisions of section 39 of the Act in question. The decision in Union of India vs Bhana Mal Gulzarimal Ltd. (2) related to the question of validity of (1) (2) ; , 641. 155 cl. 11B of the Iron and Steel (Control of Production and Distribution) Order, 1941. This Court held, having regard to the provisions of that Order and those of the Essential Supplies (Temporary Powers) Act, 1946, that the Legislature had clearly enunciated its legislative policy and that cl. 11B of the Order laid down the object which was intended to be achieved. Gajendragadkar, J., delivering the judgment of the Court, observed thus: "Therefore reading cl. 11B by itself we do not see how it would be possible to hold that the said clause is violative of article 19. In fact, if sections 3 and 4 are valid and cl. 11B does nothing more than prescribe conditions for the exercise of the delegate 's authority which are consistent with section 3 it is only the actual price structure fixed by the Controller which in a given case can be successfully challenged as violative of article 19." The learned Judge considered the price structure fixed by the notification and observed that the respondents therein did not seriously challenge the validity of the notification in respect of price structure and, that apart, it was not proved that the notification adversely affected a large class of dealers taken as a whole. The judgment, therefore, does not help the respondents. Nor is the decision of this Court in Mineral Development Ltd. vs State of Bihar (1) of any help to the respondents. There the constitutional validity of section 25(1) of the Bihar Mica Act (10 of 1948) was impugned as violating the petitioners ' fundamental right under article 19(1)(f) and (g), of the Constitution. Under section 25(1)(c) of that Act discretion was given to cancel a licence to the State Government, but cl. (c) was hedged in by two important restrictions, namely, (i) the failure to comply with the provisions of that Act or the rules made thereunder should be a repeated failure and not a mere sporadic one, i.e., the defaulter must be a recalcitrant one; (ii) before canceling the licence the State Government should afford reasonable opportunity to the licensee to show cause why his license (1) , 619. 156 should not be cancelled. This Court in upholding the validity of the said section observed thus: "The power given to the State Government is only to achieve the object of the Act, i.e., to enforce the said provisions, which have been enacted in the a interest of the public; and that power, as we have indicated, is exercisable on the basis of objective tests and in accordance with the principles of natural justice. We cannot, therefore, hold that section 25(1)(c) of the Act imposes an unreasonable restriction on the petitioner 's fundamental rights under article 19(1)(f) and (g) of the Constitution. " This decision far from helping the respondents is, to some extent, against their contention. The result of the discussion may briefly be summarized in the form of the following propositions: A fundamental right to do business can be controlled by the State only by making a law imposing in the interest of the general public reasonable restrictions on the exercise of the said right; restrictions on the exercise of a fundamental right shall not be arbitrary or excessive or beyond what is required in the interest of the general public; the reasonableness of a restriction shall be tested both from substantive and proce dural aspects; an uncontrolled and uncanalised power conferred on an officer is an unreasonable restriction on such right; though a legislative policy may have been clearly expressed in a statute, it must also pro. vide a suitable machinery for implementing that policy in accordance with the principles of natural justice; whether a restriction is reasonable or not is a justiciable concept and it is for the Court to come to one conclusion or the other having regard to the considerations laid down by Patanjali Sastri, C.J., in State of Madras vs V. G. Row (1).and similar others; in taking an overall picture of the relevant circumstances, the Court may legitimately take into consideration the fact that the discretion is entrusted to a State Government or a highly placed officer, but that in it self is of minor importance for the simple reason that the fundamental right itself is guaranteed against the (1)[1952] S.C.R. 597. 157 action of the State, which is defined to include not only the Union or the State Governments but also Parliament, Legislatures and all local or other authorities within the territory of India; the distinction between an administrative authority and a judicial authority is not of much relevance in the context of a reasonable restriction, except perhaps a Court may more readily be inclined to uphold a restriction if a matter is entrusted to an impartial judicial authority than to an executive authority. Bearing the aforesaid principles in mind, let us look at the impugned provisions of the Act. The section has been extracted supra. The first part of the section confers a free and unqualified discretion on the Commissioner to grant a licence. A discretionary power to issue a licence necessarily implies a power to refuse to issue a licence. The word "may" is an enabling one and in its ordinary sense means "Permissible". When coupled with the words "at his discretion" it emphasises the clear intention of the legis lature to confer on the Commissioner an unrestrained freedom to act according to his own judgment and conscience. If the section stops there, it is common case that the power of the Commissioner is.uncontrolled and uncanalised. The second part of the section deals with the nature of the conditions to be inserted in the licence. The conditions to be imposed are for securing the good behaviour of keepers of public resort and for the prevention of drunkenness and disorder among the persons frequenting or using such places. No doubt the said conditions must have the sanction of the State Government. This part, therefore, ensures the peaceful and orderly conduct of business. The section is clear and unambiguous in terms and it is not disputed that the plain terms of the section will not enable the conditions of a licence to be projected into the matter of the exercise of the discretion. But what is contended is that the conditions laid down a precise policy for guiding the discretion of the Commissioner to give or not to give a licence. There are many objections to this approach 158 to the problem. Firstly, it is to rewrite the section. If the legislature intended to guide the discretion by laying down objective criteria it would have stated so in express terms; it would not have left the matter to the absolute discretion of the Commissioner. Secondly, if the two conditions only of the licence control the exercise of the discretion, the Commissioner cannot travel beyond the said two conditions. As a result the amplitude of the discretion is drastically cut down. The Commissioner would be able to refuse a licence only if he was satisfied that the applicant could not be relied upon to comply with the said conditions; if he was so satisfied, he could not refuse a licence in spite of the fact that there were many other good and relevant reasons for doing so. Thirdly, if the conditions are not exhaustive but only illustrative, the section would continue to suffer from the same vice, as it would still be open to the Commissioner to refuse a licence for any other reason. Fourthly, discretion based upon an anticipatory breach of conditions will be as arbitrary as in the case of absolute discretion, particularly in the case of new applicants, as more often than not it will have to be exercised on the basis of surmises, gossip or information, which may be false or at any rate untested. Lastly, by this unwarranted search for an undisclosed policy in the crevices of the statute, this Court will not only be finding an excuse to resuscitate an invalid law but also be encouraging the making of laws by appropriate authorities in derogation of fundamental rights. The provisions of sections 47 and 48(3) of the (IV of 1939), bring out in bold relief the distinction between the exercise of a discretion to issue a licence and the imposition of conditions in a licence. Section 47 enjoins on the Regional Transport Authority in considering an application for a stage carriage permit to have regard to the matters enunciated in that section. Section 48(3) enables the Regional Transport Authority to attach to the permit the conditions detailed in that sub section. While the former section regulates the exercise 159 of the discretion of the Regional Transport Authority issuing a permit, the latter describes the nature of the conditions to be inserted in the permit. These provisions no doubt cannot be invoked to construe the provisions of section 39 of the Act, but we are referring to them only to show the legislative practice in such matters and to emphasize the fact that the scope of the discretion to issue a licence and that of the power to impose conditions in a licence are different. Therefore, on a true construction of the plain words of the statute we cannot hold that any policy reasonably capable of controlling the discretion of the Commissioner has been laid down. Even if the two conditions can be read into the first part of section 39, the arbitrariness is writ large in the manner of exercising the so called guided discretion. In this context it is not necessary to come to a definite conclusion on the question whether the discretion is judicial or executive, for whatever be the nature of the discretion it must be tested from the standpoint of reasonableness of the restrictions imposed on a person 's right to do business. A citizen of India, for the purpose of eking out his livelihood, seeking to do an extensive business of an eating house, applies to the Commissioner for a licence, for without that licence he cannot do business, and if he does he will be liable to prosecution. The Commissioner can reject the application on two grounds, namely, (1) from his antecedents and present conduct it would be unreasonable to think that the petitioner would keep good behaviour, and (2) the Commissioner is not satisfied that the petitioner would be able to prevent drunkenness and disorder among the persons frequenting or using the eating house. Admittedly this order is made without giving any opportunity to an applicant to prove that he would satisfy both the tests laid down by section 39 of the Act. The Commissioner is not legally bound to give any reasons for his refusal to give a licence. Even if reasons are given, there is no machinery for getting such an order revoked or vacated. The section does not impose a duty on the Commissioner to give reasonable opportunity to an 160 applicant to clear his character or to disprove any un warranted allegations made against him or to prove that he would satisfy both the tests laid down by section 39 of the Act. Nor does the section provide for an appeal against the order of the Commissioner to an appropriate authority. The suggestion that the authority is a high officer in the police department and that he can be relied upon to exercise his discretion properly does not appeal to us for two reasons, namely, (1) as we have already pointed out, the Constitution gives a guarantee for the fundamental right against the State and other authorities; and (2) the status of an officer is not an absolute guarantee that the power will never be abused. Fundamental rights cannot be made to depend solely upon such presumed fairness and integrity of officers of State, though it may be a minor element in considering the question of the reasonableness of a restriction. Therefore, it is clear to our mind that the exercise of the power also suffers from a statutory defect as it is not channelled through an appropriate machinery. We have, therefore, no hesitation to hold that section 39 of the Act infringes the fundamental right of the petitioner under article 19(1)(g) of the Constitution both from substantive and procedural aspects. The next question is whether a mandamus will issue against the Commissioner. The Commissioner admittedly has launched criminal proceedings against the petitioner under the provisions of the Act for not taking out a licence under section 39 of the Act. As we have held that section 39 of the Act is constitutionally void, a writ of mandamus will issue against the Commissioner of Police, Calcutta, directing him not to take any further proceedings against the petitioner for not taking out a licence under the provisions of the Act. BY COURT. In accordance with the opinion of the majority, this Petition is dismissed with costs.

IN-Abs

By section 39 of the Calcutta Police Act, 1866, "The Commissioner of Police, may, at his discretion from time to time, grant licenses to the keepers of such houses or places of public resort and entertainment as aforesaid for which no licence as is specified in the Bengal Excise Act, 1909 is required upon such conditions, (1) (1934) L.R. 61 I.A. 398. 136 to be inserted in every such license, as he, with the sanction of the said State Government from time to time shall order, for securing the good behaviour of the keepers of the said houses or places of public resort or entertainment, and the prevention of drunkenness and disorder among the persons frequenting or using the same; and the said licenses may be granted by the said Commissioner, for any time not exceeding one year". The petitioner, whose application for a license in respect of an eating house was refused by the Commissioner of Police, Calcutta, under the section, challenged its constitutional validity on the ground that it conferred arbitrary and unguided powers on the Commissioner to grant or refuse a license without hearing the applicant and was, therefore, an unreasonable restriction on his fundamental right to carry on his trade guaranteed by article 19(1)(g) of the Constitution. Held, (per Kapur, Gajendragadkar and Wanchoo, JJ.), that in order to decide whether a provision in a pre Constitution statute, like the one in question, satisfies. the test of constitutionality laid down by article 19(i)(g) read with article 19(6) of the Constitution, the impugned section has to be read as a whole in a fair and reasonable manner and it should not be declared void simply because the considerations relevant to those Articles are not immediately apparent from its language. It is not correct to say that the discretion conferred on the Commissioner by the first part of the section is absolute and that the question of imposing the two conditions mentioned by the second part can arise only after the grant of the license. The two parts, read together, can lead only to the conclusion that the discretion vested in the Commissioner is guided by the two conditions mentioned in the section, namely, the securing of good behaviour and the prevention of drunkenness and disorder and a third by necessary impli cation, that the applicant must have actual and effective control and possession of the place where he keeps the eating house. Section 39 of the Calcutta Police Act, 1866, therefore, con fers no arbitrary or uncanalised discretion on the Commissioner, unguided by any criteria, and does not constitute an unreasonable restriction on the fundamental right to carry on trade under article 19(i)(g) of the Constitution. Rustom jamshed Irani vs Harley Kennedy, Bom. 386, inapplicable. Although there can be no doubt that procedural provisions of a statute also enter into the verdict as to its reasonableness, it cannot be laid down as a general proposition that if a licensing statute omits to provide for a hearing or for the giving of reasons for refusal, such omission must necessarily constitute an unreasonable restriction on a fundamental right. The Commissioner in passing an order under the section acts administratively and although he must act reasonably, there is no duty cast on him 137 to act judicially. Regard being had to the setting in which the impugned section appears in the Act and the circumstances of ,.this case, it could not be said that section 39 of the Act was such a restriction. State of Madras vs V. G. Row, ; , Nagendra Nath Bora vs The Commissioner of Hills Division and Appeals, Assam, ; , Nakkuda Ali vs M. F. De section jayaratne, and Express Newspapers (P.) Ltd. vs The Union of India, , relied on. If an applicant thinks that he has fulfilled the three con ditions and the Commissioner has unreasonably rejected his application, he has his remedy under article 226 of the Constitution. Per Subba Rao, J. It is well settled that restrictions on fundamental rights must not be arbitrary or excessive or beyond what is required in the interest of the general public. Such restrictions have to be tested both from the substantive and the procedural aspects. An uncontrolled or uncanalised power constitutes an unreasonable restriction. Even though the statute may clearly express the legislative policy that cannot be enough unless it provides a suitable machinery for implementation of that policy in accordance with the principles of natural justice. Restrictions are justifiable and in deciding whether a restriction is reasonable or not, the Court cannot attach much importance to the fact that the impugned statute vests discretion in the State Government or a high officer. Nor can the distinction between an administrative authority and a judicial one have much relevance except that the Court may be more inclined to uphold the discretion if vested in an impartial judicial authority rather than in an administrative one. State of Madras vs V. G. Row, ; , Thakur Raghubir Singh vs Court of Wards, Ajmer, ; and M/s. Dwarka Prasad Laxmi Narain vs The State of Uttar Pradesh, ; , relied on. Babulal Chandra vs Chief justice and judges, High Court of Patna, A.I.R. 1954 S.C. 524, Harishankar Bagla vs The State Of Madhya Pradesh, , Union of India vs Bhana Mal Gulzarimal Ltd.; , and Mineral Development Ltd., State of Bihar, considered. Thus viewed, the plain words of the impugned section cannot be said to lay down any policy reasonably capable of controlling the discretion vested in the Commissioner. The word 'may ' coupled with the words 'at his discretion ' in the first part of the section clearly emphasises the intention of the Legislature to confer absolute power on the Commissioner. The second part deals with the nature of the conditions to be inserted in the license. But the scope of the discretion to issue 18 138 the license and the power to impose conditions in a license are two different matters. Even if the two conditions mentioned in the second part could be read into the first, the discretion conferred by the section would still be arbitrary since the section neither requires that the Commissioner should give reasonable opportunity to the applicant to prove that he satisfies both the tests prescribed by it nor that he should give reasons for refusing the license and no appeal is provided for. Consequently , from the substantive as much as the proce dural aspect, section 39 of the Act infringes the fundamental right of the petitioner guaranteed by article 19(i)(g) of the Constitution.

Appeal No. 327 of 1958. Appeal from the judgment and decree dated March 6, 1956, of the Allahabad High Court in Civil Misc. Writ Petition No. 967 of 1953. WITH CIVIL APPEAL Nos. 363 to 369 of 1958. Appeals from the judgments and decrees dated February 1, 1957, of the Allahabad High Court in Civil Misc. Writ Petitions Nos. 51 (Lucknow Bench), 523, 524, 607, 632, 633 and 634 of 1955. G. section Pathak and S.P. Varma, for the appellant (In C. A. No. 327 of 1958). 424 C. B. Agarwala, G. C. Mathur and C. P. Lal, for respondents Nos. 3 to 4 (In C. A. No. 327 of 1958). H. N. Sanyal, Additional Solicitor General for, India, H. section Brar, section N. Andley, J. B. Dadachanji, Rameshwar Nath and P. L. Vohra, for the appellants (In C. As. 363 to 369 of 1958). C. B. Agarwala and. C. P. Lal, for respondent No. 1 (In C. AB. 363 to 369 of 1958). Bhawani Lal and Dharam Bhusan, for respondent No. 4 (In C. A. No. 369 of 1958). J. P. Goyal, for respondent No. 4 (In C. As. Nos. 366 and 368 of 1958). section C. Das in person, for respondent No. 4 (In C. A. No. 367 of 1958). March 17. The Judgment of the Court was delivered by WANCHOO, J. This group of appeals raises a question about the constitutionality of section 3 of the United Provinces , (U. P. XXVIII of 1947), (hereinafter referred to as the Act) and the validity of two general orders passed thereunder an March 15, 1951. The appellants are certain industrial concerns. There were disputes between them and their workmen which were referred for adjudication to industrial tribunals alleged to have, been set up under the general orders of March 15, 1951. Certain awards were passed which were taken in appeal by the present appellants to the Labour Appellate Tribunal and they failed there also. They then filed petitions under article 226 of the Constitution in the Allahabad High Court challenging the constitutionality of section 3 of the Act and the validity of the two general orders passed on March 15, 1951, by which industrial tribunals were set up. The High Court held that section 3 of the Act was constitutional. It however held that the two general orders dated March 15, 1951, were invalid; but it went on to hold that orders of reference passed in these cases were special orders as envisaged under section 3 of the Act and were therefore not invalid; in consequence it dismissed 425 the petitions. The appellants then applied for and obtained certificates for leave to appeal, and that is how the matter has come up before us. It is unnecessary to set out the facts further in respect of these appeals, as the only points argued before us are about the constitutionality of section 3 and the validity of the two general orders of 1951 and also of the references made in these cases. It is not disputed that if the appellants fail on these points their appeals in this Court must fail. We shall therefore first take up the question, of the constitutionality of section 3 of the Act. The relevant provision of section 3 in 1,951 with which we are concerned was in these terms: "If, in the opinion of the State Government it is necessary or expedient so to do for securing the public safety or convenience, or the maintenance of public order or supplies and services essential to the life of the community, or for maintaining employment, it may, by general or special order, make provision (c) for appointing industrial courts; (d) for referring any industrial dispute for conciliation or adjudication in the manner provided in the order; (g) for any incidental or supplementary matters which appear to the State Government necessary or expedient for the purpose; of the order: The main contention of the appellants is that section 3 is unconstitutional as it delegates essential legislative function to the Government so far 'as cls. (c), (d) and (g) are concerned. Reliance in this connection is placed on the following observations of Kania C. J. in In re The (1), where he. was considering the meaning of the word "delegation": "When a legislative body passes an Act it has exercised its legislative function. The essentials of such function are the determination of the legislative policy and its formulation as a rule of conduct. (1) ; ,767 54 426 These essentials are the characteristics of a legislature by itself. . Those essentials are preserved, when the legislature specifies the basic conclusions of fact, upon ascertainment of which, from relevant data, by a designated administrative agency, it ordains that its statutory command is to be effective. The legislature having thus made its laws, it is clear that every detail for working it out and for carrying the enactments into operation and effect may be done by the legislature or may be left to another subordinate agency or to some executive officer. While this also is sometimes described as a delegation of legislative powers, in essence it is different from delegation of legislative power which means a determination of the legislative policy and formulation of the same as a rule of conduct. " To the same effect were the observations of Mukherjea J. in that case at p. 982: "The essential legislative function consists in the determination or choosing of the legislative policy and of formally enacting that policy into a binding rule of conduct. It is open to the legislature to formulate the policy as br oadly and with as little or as much details as it thinks proper and it may delegate the rest of the legislative work to a subordinate authority who will work out the details within the framework of that policy. 'So long as a policy is laid down and a standard established by statute no constitutional delegation of legislative power is involved in leaving to selected instrumentalities the making of subordinate rules within prescribed limits and the determination of facts to which the legislation is to apply '. " What we have to see therefore is whether the legislature in this case performed its essential legislative function of determining and choosing the legislative policy and of formally enacting that policy into a binding rule of conduct. It was open to the legislature to formulate that policy as broadly and with as little or as much details as it thought proper. Thereafter once a policy is laid down and a standard established by statute, there is no question of delegation of 427 legislative power and all that remains is the making of subordinate rules within prescribed limits which may be left to selected instrumentalities. If therefore the legislature in enacting section 3 has chosen the legislative policy and has formally enacted that policy into a binding rule of conduct, it could leave the rest of ' the details to Government to prescribe by means of subordinate rules within prescribed limits. Now section 3 lays down under what conditions it would be open to Government to act under that section; it also lays down that the Government may act by passing general or special order, once those conditions are fulfilled; it also provides what will be contained in the general or special order of Government. The power given to Government is inter alia to appoint industrial courts, to refer any industrial dispute for conciliation or adjudication in the manner provided in the order, and to make any incidental or supplementary provision which may be necessary or expedient for the purposes of the order. Thus the legislature has indicated its policy and has made it a binding rule of conduct. It has also indicated when the Government shall act under section 3 and how it shall act. It has further indicated what it shall do when it acts under section 3. In these circumstances we are of the opinion that it cannot be said that the delegation made by section 3 is excessive and goes beyond permissible limits. The order to be passed by the Government under section 3 would provide, inter alia, for appointment of industrial courts, for referring any industrial dispute for conciliation or adjudication, and for incidental or supplementary matters which may be necessary or expedient. The Government will have to act within those prescribed limits when it passes, an order under section 3 which will have the force of subordinate rules. What has been urged on behalf of the appellants is that the section does not indicate what powers the industrial courts will have, what will be the qualifications of persons constituting such courts and Where they will sit; and it is urged that these are essential matters which the legislature should have provided for itself Reference in this connection was made to the observations of the Privy Council in 428 Queen vs Burah (1), which was a case of conditional legislation. The Privy Council observed there that the proper legislature having exercised its judgment as to place, person, laws and powers and the result of that judgment having been conditional legislation as to all these things, the legislation would be absolute as soon as the conditions a re fulfilled. These observations have in our opinion nothing to do with such matters of detail as the place where a court or tribunal will sit or the qualifications of persons constituting the tribunal; they refer to more fundamental matters when the words "place" and "person" are used therein. The place there must mean the area to which the legislation would apply; and so far as that is concerned, the legislature has determined the area in this case to which section 3 will apply, namely, the whole of the State of Uttar Pradesh. Similarly, the word "Person" used there refers to persons to whom legislation will apply and that has also been determined by the legislature in this case, namely, it will apply to employers and employees of industrial concerns. We have already said that the conditions under which the order will be passed have also been set out in the opening part of section 3, and how the Government will act is also set out, namely, by referring any industrial dispute that may arise for conciliation or adjudication. As to the power of the industrial court that in our opinion is also provided by section 3, namely, that an industrial court will adjudicate on the industrial dispute referred to it. Therefore all that was left to the Government to provide was to set up machinery by means of a general order which has the force of subordinate rules to carry out that legislative policy which has been enacted in broad details in section 3 and has been formally enacted into a binding rule of con. We are therefore of opinion that section 3 is not unconstitutional in any manner, for there is no delegation of essentials of legislative function thereunder. All that has been left to the Government by that section is to provide by subordinate rules for carrying out the purpose of the legislation. We must therefore reject (1) (1878) L.R. 5 I.A. 178 429 the contention that section 3 is unconstitutional on the ground that it suffers from the vice of excessive delegation. This brings us to the validity of the general order No. 615 of March 15, 1951, passed under section 3. The preamble to that order was in these terms: "In exercise of the powers conferred by clauses (b), (c), (d) and (g) of section 3 and section 8 of the U. P. , (U. P. Act No. XXVIII of 1947) and in supersession of Government order No. 781(L)/XVIII dated March 10, 1948, the Governor is pleased to make the following order, and to direct, with reference to section 19 of the said Act, that notice of this Order be given by publication in the Official Gazette. " Then follows the order setting up conciliation boards for the purpose of conciliation and industrial tribunals for the purpose of adjudication. The main contention on behalf of the appellants is that section 3 prescribes certain conditions precedent before an order could be passed thereunder and those conditions precedent must be recited in the order in order that it may be a valid exercise of the power conferred by section 3. Now there is no doubt that section 3 gives power to the State Government to make certain provisions by general or special order, if, in its opinion, it is necessary or expedient so to do for securing public safety or convenience, or the maintenance of public order or supplies and services essential to the life of the community or for maintaining employment. The forming of such opinion is a condition precedent to the making of the order. The preamble to the second order also does not contain a recital that the State Government had formed such opinion before it made the order. It is therefore contended on behalf of the appellants that the orders were bad as the condition precedent for their formulation was not recited in the orders themselves. At a later stage the appellants also contended that in any case the orders were bad because as a fact they were passed without any satisfaction of the State Government as required under section 3, though no affidavit was filed by the appellants in this behalf in support 430 of this averment. Unfortunately, the State also filed no affidavit to show that the conditions precedent provided ins. 3 had been complied with, even though there was no recital thereof on the face of the order. We should have expected that even though the appellants did not file an affidavit in support of their case on this aspect of the matter, the State would as a matter of precaution have filed an affidavit to indicate whether the conditions precedent set out in section 3 had been complied with, considering that it was a general order which was being attacked under which a large number of adjudications must have taken place. The High Court has commented on this aspect of the matter and has said that the State Government did not file any affidavit in this connection to show that as a matter of fact the State Government was satisfied as required by section 3 even though there was no recital of that satisfaction in the order itself Taking into account, however, the importance of the matter, particularly as it must affect a large number of adjudications affecting a large number of employers and workmen, we asked the State Government if it desired to file an affidavit before us even at this stage. Thereupon the State Government filed an affidavit sworn by the Secretary to Government, Labour Department. The affidavit says that the drafts of G. O. No. 615 and the consequential order G. O. No. 671 passed on March 15, 1951, were put up before the then labour Minister. The said notifications were issued only after all the aspects of the matter were fully considered by the State Government and it had satisfied itself that it was necessary and expedient to issue the same for the purpose of securing public convenience, and maintenance of public order and supplies and services essen tial to the community and for the maintenance of employment. We accept this affidavit and it follows therefore that the satisfaction required as a condition precedent for the issue of an order under section 3 of the Act was in fact there before the order No. 615 was passed on March 15, 1951, followed by the consequential order No. 671 of the same date. In view of this the only question that we have to consider is whether 431 it is necessary that the satisfaction should be recited in the order itself and whether in the absence of such recital an order of this nature would be bad. The first contention of Shri Patliak, who appears for one of the appellants, is that where a condition precedent is laid down for a, statutory power being ' exercised it must be fulfilled before a subordinate authority can exercise such delegated power. As to this contention there can be no dispute. Further, according to Shri Pathak, there must be a recital. in the order that the condition is fulfilled before the subordinate authority acts in the exercise of such delegated power. If there is no such recital in the instrument by which the delegated power is exercised, the defect cannot be cured by an affidavit filed in the proceedings and the order would be bad ab initio. It is urged that where subordinate rules of this nature have to be made and they affect the general public or a section thereof, conditions precedent to the exercise of the power must be recited when the power is exercised in order that the public may know that the rules are legal and framed after satisfying the conditions necessary for the, purpose. Moreover, some of the subordinate rules may have to be enforced by courts and tribunals and it is necessary that courts and tribunals should also know by the presence of the recital in the order that the rules are legal and binding and have been 'framed after the condition precedent had been satisfied. In particular, it is urged that where the rules are of a general nature and are subordinate legislation the satisfaction of the condition precedent becomes a part of the legislative process so far as the subordinate authority is concerned and the defect in legislative process cannot be remedied later by affidavit. Shri C. B. Aggarwala on the other hand contends that where a statute gives power to make an order subject to certain conditions then unless the statute requires the conditions to be set out in the order it is not necessary that the conditions should appear on the face of the order and in such a case it should be presumed that the condition was satisfied unless the 432 contrary is established. He drew a distinction between those cases where the condition precedent is the subjective opinion of the subordinate ' authority and those where the statute requires a hearing and a finding. In the former case he contends that the presumption should be in favour of the opinion having been formed before the order was passed though in the latter case it may be that the order should show that there was a hearing and a finding. The power to pass an order under section 3 arises as soon as the necessary opinion required thereunder is formed. This opinion is naturally formed before the order is made. If therefore such an opinion was formed and an order was passed thereafter, the subsequent order would be a valid exercise of the power conferred by the section. The fact that in the notification which is made thereafter to publish the order, the formation of the opinion is not recited will not take away the power to make the order which had already arisen and led to the making of the order. The validity of the order therefore does not depend upon the recital of the formation of the opinion in the order but upon the actual formation of the opinion and the making of the order in consequence. It would therefore follow that if by inadvertence or otherwise the recital of the formation of the opinion is not mentioned in the preamble to the order the defect can be remedied by showing by other evidence in proceedings where challenge is made to the validity of the order, that in fact the order was made after such opinion had been formed and was thus a valid exercise of the power conferred by the law. The only exception to this course would be where the statute requires that there should be a recital in the order itself before it can be validly made. There is no doubt that where a statute requires that certain delegated power may be exercised on fulfilment of certain conditions precedent, it is most desirable that the exercise should be prefaced with a recital showing that the condition had been fulfilled. But it has been held in a number of cases dealing with executive orders that even if there is some lacuna of 433 this kind, the order does not become ab initio invalid and the defect can be made good by filing an affidavit later on to show that the condition precedent was satisfied. In The State of Bombay vs Purushottam Jog Naik (1), which was a case relating to preventive detention it was held by this Court that even if the order was defective in form it was open to the State Government to prove by other means that it was validly made. In Biswabhusan Naik vs The State of Orissa (2), which was a case relating to sanction under the Prevention of Corruption Act, No. II of 1947, this Court held that "it is desirable to state the facts on the face of sanction, because when the facts are not set out in the sanction, proof has to be given aliunde that sanction was given in respect of the facts constituting the offence charged; but an omission to set out the facts in the sanction is not fatal so long as the facts can be and are proved in some other way". In a later case in The State of Bombay vs Bhanji Munji (3) which was a case of requisition under the Bombay Land Requisition Act, this Court held that it was not necessary to set out the purpose of the requisition in the order; the desirability of such a course was obvious because when it was not done proof of the pur pose must be given in other ways. But in itself an omission to set out the purpose in the order was not fatal so long as the facts were established to the satisfaction of the court in some other way. We see no difficulty in following this principle in the case of those orders also which are in the nature of subordinate legislation. Whether orders are executive or in the nature of subordinate legislation their validity depends on certain conditions precedent being satisfied. If those conditions precedent are not recited on the face of the order and the fulfilment of the conditions precedent can be established to the satisfaction of the court in the case of executive orders we do not see why that cannot be made good in the same way in the case of orders in the nature of (1) ; (2) ; (3) [1955] 1 S.C.R. 777. 55 434 subordinate legislation. We cannot accept the extreme argument of Shri Aggarwala that the mere fact that the order has been passed is sufficient to raise the presumption that conditions precedent have been satisfied, even though there is no recital in the order to that effect. Such a presumption in our opinion can only be raised when there is a recital in the order to that effect. In the absence of such recital if the order is challenged on the ground that in fact there was no satisfaction, the authority passing the order will have to satisfy the court by other means that the conditions precedent were satisfied before the order was passed. We are equally not impressed by Shri Pathak 's argu ment that if the recital is not there, the public or courts and tribunals will not know that the order was validly passed and therefore it is necessary that there must be a recital on the face of the order in such a case before it can be held to be legal. The presumption as to the regularity of public acts would apply in such a case; but as Boon as the order is challenged and it is said that it was passed without the conditions precedent being satisfied the burden would be on the authority to satisfy by other means (in the absence of recital in the order itself) that the conditions precedent had been complied with. The difference between a case where a general order contains a recital on the face of it and one where it does not contain such a recital is that in the latter case the burden is thrown on the authority making the order to satisfy the court by other means that the conditions precedent were fulfilled but in the former case the court will presume the regularity of the order including the fulfilment of the conditions precedent; and then it will be for the party challenging the legality of the order to show that the recital was not correct and that the conditions precedent were not in fact complied with by the a uthority: [see the observations of Spens C. J. in King Emperor vs Sibnath Banerjee (1), which were approved by the Privy Council in King Emperor vs Sibnath Banerjee (2)]. Nor are we impressed with the contention of Shri Pathak that conditions become a part of (1) , 42. (2) , 216 7. 435 legislative process and therefore where they are not complied with the subordinate legislation is illegal and the defect cannot be cured by an. affidavit later. It is true that such power may have to be exercised subject to certain conditions precedent but that does not assimilate the action of the subordinate executive authority to something like a legislative procedure, which must be followed before a bill becomes a law. Our conclusion therefore is that where certain conditions precedent have to be satisfied before a subordinate authority can pass an order, (be it executive or of the character of subordinate legislation), it is not necessary that the satisfaction of those conditions must be recited in the order itself, unless the statute requires it, though, as we have already remarked, it is most desirable that it should be so, for in that case the presumption that the conditions were satisfied would immediately arise and burden would be thrown on the person challenging the fact of satisfaction to show that what is recited is not correct. But even where the recital is not there on the face of the order, the order will not become illegal ab initio and only a further burden is thrown on the authority passing the order to satisfy the court by other means that the conditions precedent were complied with. In the present case this has been done by the filing of an affidavit before us. We are therefore of opinion that the defect in the two orders of March 15, 1951, has been cured and it is clear that they were passed after the State Government was satisfied as required under section 3 of the Act. Therefore Government Orders Nos. 615 and 671 of March 15, 1951, with which we are concerned in the present appeals are valid under section 3 of the Act. It remains to consider certain cases cited by Shri Pathak in support of his contention. The first case to which reference may be made is Wichita Railroad & Light Company vs Public Utilities Commission of the State of Kansas (1). That was a case of a Commission which had to give a hearing and a finding that they were unreasonable before contract rates with a public (1) ; 436 utility company could be changed. After referring to section 13 of the Act under consideration, the U. section Supreme Court held that "a valid order of the Commission under the act must contain a finding of fact after hearing and investigation, upon which the order is founded, and that, for lack of such a finding, the order in this case was void". It rejected the argument that the lack of express finding might be supplied by implication and by reference to the averments of the petition invoking the action of the Commission and rested its decision on the principle that an express finding of unreasonableness by the Commission was indispensable under the statutes of the State. This case in our opinion is based on the provision of the statute concerned which required such a finding to be stated in the order and is no authority for the proposition that an express recital is necessary in the order in every case before a delegate can exercise the power delegated to it. The next case is Herbert Mahler vs Howard Eby That was a case dealing with deportation of aliens. The statute provided for deportation if the Secretary (Labour) after hearing finds that such aliens were undesirable residents of United States. But the Secretary made no express finding so far as the warrant for deportation disclosed it. Nor was the defect in the warrant of deportation supplied before the court. The court held that the finding was made a condition precedent to deportation and it was essential that where an executive is exercising delegated legislative power he should substantially comply with all the statutory requirements in its exercise, and that, if his making a finding is a condition precedent to this act, the fulfilment of that condition should appear in the record of the act, and reliance was placed on the case of Wichita Railroad & Light Company vs Public Utilities COmmission (2). This again was a case of a hearing and a finding required by the statute to be stated in the order and must therefore be distinguished from a case of the nature before us. It may however be added that the court did not discharge the deportees and (1) ; (2) ; 437 gave a reasonable time to the Secretary (Labour) to correct and perfect his finding on the evidence produced at the original hearing or to initiate another proceeding against them. The last case is Panama Refining Company vs A. D. Ryan(1). In that case section 9 (e) of the National Industrial Recovery Act of 1933 was itself struck down on the ground of excessive delegation, though it was further held that the executive order contained no finding and no statement of the grounds of the President 's action in enacting the prohibition. This case in our opinion is not in point so far as the matter before us is concerned, for there the section itself was struck down and in consequence the executive order passed thereunder was bound to fall. We are therefore of opinion that section 3 of the Act is constitutional so far as els. (c), (d) and (g) are concerned and orders Nos. 615 and 671 passed on March 15, 1951 are legal and valid. In the circumstances it is not necessary to consider whether the High Court was right in holding that the orders of references in these cases were special orders under section 3 and the references under those orders were therefore valid. In this view of the matter, the appeals fail and are hereby dismissed. In the circumstances we pass no order as to costs. Appeals dismissed. (1) (1935) 79 L. Ed 446.

IN-Abs

Clauses (c), (d) and (9) of section 3 of the U. P. , empower the State Government to make provision, by general or special order, for appointing industrial courts, for referring any industrial dispute for conciliation or adjudication in the manner provided in the order and for any incidental or supplementary matters which appear to the State Government necessary or expedient for the purposes of the order. Section 3 provides that such a general or special order is to be made if, in the opinion of the State Government it is necessary or expedient to do so for securing the public safety or convenience, or the maintenance of public order or supplies and services essential to the life of the community, or for maintaining employment. On March 15, 1951, the State Government made a general order No. 615 under these provisions but did not recite in the order its opinion as to the existence of the conditions prescribed in section 3. A reference of an industrial dispute was made under the G. O. and an award was given against the appellant. The appellant contended that the G. O. setting up the industrial tribunals was invalid as section 3 of the Act was unconstitutional as it delegated essential legislative functions to the Government so far as cls. (c), (d) and (g) were concerned and that the G. O. was bad as the condition precedent for its formulation was not recited in the order itself. The respondent filed an affidavit that Government had formed the requisite opinion before making the G. O. Held, that section 3 was not unconstitutional as there was no delegation of essential legislative functions to the Government. The legislature has indicated its policy and has made it a binding rule of conduct. Section 3 lays down the conditions in which the Government is to act; it lays down that Government may make general or special order if the conditions are satisfied; it SC6213 423 also provides what those orders are to contain. All that is left to the Government is to provide by subordinate rules for carrying out the purpose of the legislation. In re The ; , and Queen vs Burah, (1878) L.R. 5 I.A. 178, applied. Held, further, that the G. O. was valid and the failure to mention the condition precedent in the order itself was remedied by the filing of the affidavit. Where a condition precedent has to be satisfied before a subordinate authority can pass an order, (executive or in the nature of subordinate legislation), it is not necessary that the satisfaction of the condition should be recited in the order itself, unless the statute requires it. But it is desirable that it should be so mentioned for ' then the presumption that the condition was satisfied would immediately arise and the burden would be on the persons challenging the order to show that the recital is not correct. Even when the recital is not made in the order, it will not become void abinitio and only a further burden is cast on the authority passing the order to satisfy the court by other means, e. g., by filing an affidavit, that the condition precedent was satisfied. The State of Bombay vs Purushottam jog Naik, [1952] S.C.R. 674, Biswabhusan" Naik vs The State of Orissa, ; and The State of Bombay vs Bhanji Munji, [19551, S.C.R. 777, applied. King Emperor vs Sibnath Banerjee, and King Emperor vs Sibnath Banerjee,. , referred to. Wichita Railroad & Light Company vs Public Utilities Com mission of. the State of Kansas; , , Herbert Mahler vs Howard Eby, ; and Panama Refining Company vs A. D. Ryan, (1935) 79.L. Ed. 446. distinguished.

Appeal No. 270 of 1955. Appeal by special leave from the judgment and decree dated March 24, 1952, of the Judicial Commissioner 's Court, Vindhya Pradesh, in First Appeal No. 16 of 1958. Appeal by special leave from the judgment and decree dated March 24, 1952, of the Judicial Commissioner 's Court, Vindhya Pradesh, in First Appeal No. 16 of 1952. L.K. Jha, A. D. Mathur and R. Patnaik, for the appellant. N.C. Chatterjee, and D. N. Mukherjee, for respondent No. 1. 1961. March 16. The Judgment of P. B. Gajendragadkar, K. Subba Rao, K. N. Wanchoo and J. R. Mudholkar, JJ., was delivered by Mudholkar, J. A. K. Sarkar, J., delivered a separate Judgment, MUDHOLKAR, J. This is an appeal by Special leave and the main point involved in it is whether the Rewa State Pre emption Act, 1949, is unconstitutional on the 360 ground that it places an unreasonable restriction upon the right to acquire property enumerated in cl. (1)(f) of article 19 of the Constitution. But before we hear arguments upon this point it is necessary to dispose of the preliminary objection raised on behalf of ' the plaintiff respondent No. 1 by Mr. N. C. Chatterjee to the effect that the defendant appellant is precluded from proceeding with the appeal because subsequent to the grant. of special leave to appeal, to him he withdrew the price of pre emption which was deposited by the respondent No. 1 in the court below. He contends that by withdrawing the pre emption price the appellant must be deemed to have accepted the decree which alone entitled him to the amount and that, therefore, he cannot be heard to say that the decree is erroneous. In short, Mr. Chatterjee relies upon the doctrine that a person cannot be allowed to approbate and reprobate. In support of his contention, learned counsel has relied upon the well known case of Tinkler vs Hilder (1) and other cases which follow that decision or which proceed on the same reason as that in Tinkler 's case (1). Those decisons are: Banku Chandra Bose vs Marium Begum ( 'a); Ramendramohan Tagore vs Keshabchandra Chanda (2); Mani Ram vs Beharidas (3); section K. Veeraswami Pillai vs Kalyanasundaram Mudaliar & Ors. (4); Venkatarayudu vs Chinna (5) and Pearce vs Chaplin (6). The two English decisions just referred to and some of the Indian decisions were considered in Venkata. rayudu vs Chinna (5). Dealing with them Venkatasubba Rao, J., observed as follows: "What is the principle underlying these decisions When an order shows plainly that it is intended to take effect in its entirety and that several parts of it depend upon each other, a person cannot adopt one part and repudiate another. For instance, if the Court directs that the suit shall be restored on the plaintiff paying the costs of the opposing party, (1) ; (2) Cal. (4) A.I.R. 1927 Mad. 1009. (1a) (1915] (3) A.I.R. 1955 Raj. (5) (6) ; [1846] 9 Q.B. 802: 361 there is no intention to benefit the latter, except on the terms mentioned in the order itself. If the party receives the costs, his act is tantamount to adopting the order. . According to Halsbury this rule is an application of the doctrine "that a person may not approbate and reprobate" (13 Halsbury, para 508). . . . In other words,to allow a party, who takes a benefit under such an order, to, complain against it, would be to permit a breach of faith". The view taken in the other cases proceeds on similar reasoning But what has to be noted is that in all these cases the benefit conferred by the order was something apart from the merits of the claim in, volved in these cases. What we are called upon to decide is whether the appellant by withdrawing the pre emption price can be said to have adopted the decree from which he had already preferred an appeal. The appellant did not seek to execute the decree, and indeed the decree did not confer a right upon him to sue out execution at all. The decree merely conferred a right upon the plaintiff respondent No. 1 to deposit the price of pre emption and upon his doing so, entitled him to be substituted in the sale deed in place of the vendee. The act of the appellant in withdrawing the pre emption price after it was deposited by the respondent No. 1 cannot clearly amount to, an adoption by him of the decree which he had specifically challenged in his appeal. Upon the principles underlying the aforesaid decisions a person who takes benefit under an order de hors the claim on merits cannot repudiate that part of the order which is detrimental to him because the order is to take effect in its entirety. How can it be said that a vendee in a pre emption suit against whom a decree is passed takes any "benefit" thereunder? No doubt, he has a right to be paid the pre emption price before the pre emption decree becomes effective but tile price of pre emption cannot be characterised as a benefit under the decree. It is only in the nature of compensation to the vendee for the loss of his property. 46 362 For this reason the principle of the aforesaid decision would not apply to such a decree. A question similar to the one before us had arisen in the Punjab in several cases and in particular in the judgment of Lal Chand, J., in Sundara Das vs Dhanpat Rai (1). What the court held there is that the right of appeal is not forfeited by the vendee merely because he has withdrawn the money deposited by the preemptor in whose favour a decree for pre emption has been passed. No reference is made by the learned judge to the decisions in Tinkler 's case (2) and in Pearce 's, case (3) and, therefore, this decision and other similar decisions are of little assistance in considering the "argument advanced by Mr. Chatterjee. It seems to us however, that in the absence of some statutory provision or of a well recognised principle of equity, no one can be deprived of his legal rights including a statutory right of appeal. The phrase "approbate and reprobate" is borrowed from Scotch Law where it is used to expres the principle embodied in the English doctrine of election, namely, that no party can accept and reject the same instrument (per Scrutton, L. J., in Verschures Creameries vs Hull and Netherlands Steamship. , Co.,(4). The House of Lords further pointed out in Lissenden vs C. A. V. Bosch, Ltd. (5) that the equitable doctrine of election applies only when an interest is conferred as an act of bounty by some instrument. In that case they held that the withdrawal by a workman of the compensation money deposited by the employer could not take away the statutory, right of appeal conferred upon him by the Workmen 's Compensation Act. Lord Maugham, after pointing out the limitations of the doctrine of approbate and reprobate observed towards the conclusion of his speech: "It certainly cannot be suggested that the receipt of the sum tendered in any way injured the respondents. Neither estoppel nor release in the ordinary sense was suggested. Nothing was less served than (1) (1907] P. R. No. 16. (2) ; (3) ; (1846) 9 Q.B. 802: (4) (5) [1940] A.C 412. 363 the principles either of equity or of justice." (pp. 421 422). Lord Wright agreed with Lord Maugham and Lord Atkin and declined to apply the "formula" to the appeal before the House because there was no question of the appellant having alternative or mutually exercisable right to choose from. No doubt, as pointed out by Lord At that in a conceivable case the receipt of a remedy under a judgment may be made in such circumstances as to preclude an appeal. But he did not think it necessary to discuss in what circumstance the statutory right of appeal may be lost and added: "I only venture to say that when such cases have to be considered it may be found difficult to apply this doctrine of election to cases where the only right in existence is that determined by the judgment: and the only conflicting right is the statutory right to seek to set aside or amend that judgment: and that the true solution may be found in the words of Lord Blanesburgh in Moore vs Cunard Steamship Co. (1)". According to Lord Blanesburgh when an order appealed against and later set aside, has been acted upon in the meantime "any mischief so done is undone" by an appropriate order. Thus the only question which has to be considered is whether the party appealing has so conducted himself as to make restitution impossible or inequitable. Thus, according to the House of Lords it is to cases in which a party has so conducted himself as to make restitution impossible or inequitable that the principle on which the decision in Tinkler 's case (2), is. based, may apply. Referring to this case and three other similar cases Lord Atkin observed: "In any case they form very flimsy foundation for such a wide reaching principle applicable to all appeals Its was asserted in this case: and if they did lead to that result should not be followed. 428 429). (3) The Lissenden case has thus in clear terms (1) (2)(1849) 4 Ex 187; ; (3) 364 indicated what the limitations of the Scotch doctrine are. If, therefore, what was laid down in this case is the common law of England according to its highest judicial tribunal, it is only that law which the courts in this country may apply on the principles of natural justice and not what was supposed to be the common law in certain earlier decisions. It seems to us that a statutory right of appeal cannot be presumed to have come to an end because the appellant has in the meantime abided by or taken advantage of something done by the opponent under the decree and there is no justification for extending the rule in Tinkler 's case (1) to cases like the present. In our judgment it must be limited only to those cases where a person has elected to take a benefit otherwise than on the merits of the claim in the lis under an order to which benefit he could not have been entitled except for the order. Here the appellant, by withdrawing the preemption price has not taken a benefit de hors the merits. Besides, this is not a case where restitu tion is impossible or inequitable. Further. it seems to us that the existence of a choice between two rights is also one of the conditions necessary for the applicability of the doctrine of approbate and reprobate. In the case before us there was no such choice before the appellant and, therefore, his act in withdrawing the preemption price cannot preclude him for continuing his appeal. We., therefore, overrule the preliminary objection. The appeal will now be set down for hearing on merits. The costs of this hearing will be costs in the appeal. SARKAR, J. It seems to me that the objection to the maintainability of this appeal must succeed. The appellant having taken the benefit of the decree cannot now challenge its validity. The decree was passed in a suit for preemption brought in May, 1951 by the respondent Baijnath, whom I will call the respondent. against the appellant, the purchaser of certain property and the vendors, the other respondents who have not appeared in this appeal. The suit was dismissed by the trial Court but (1) ; 365 on appeal it was decreed by the Judicial Commissioner Vindhya Pradesh, on March 24,1952. The learned Judicial Commissioner held that the respondent had the right of pre emption and that the purchase money payable by him to the appellant for preemption of the property, *as Rs. 3,000 and directed the respondent to pay this sum into court within four months. The respondent duly paid this sum into court. The appellant obtained special, leave from this Court to appeal from the judgment of the learned Judicial Commissioner and thereafter withdrew from court the amount paid in by the respondent. The present appeal arises under this leave. The decree that was drawn up only stated that the appeal was allowed with costs and the period of grace was four months. In view of Or. XX, r. 14, of the Code of Civil Procedure, the decree, in spite of its informality, must be understood as providing that upon the respondent paying the amount found payable as purchase money into court within the time fixed, the appellant would deliver possession of the property to him and his title to it would be deemed to have accrued from the date of the payment into court and that, in default of such payment the suit would stand dismissed with costs. Now, there is not the slightest doubt that in with. drawing the money from court the appellant had acted entirely on his free choice; he had in no way been compelled to do so, nor been induced thereto by any act of the respondent. The respondent had done nothing to put the decree in execution and obtain possession of the property from the appellant. The appellant need not have withdrawn the money if he so liked and that would not in the least have prejudiced his interest. He has all along been in possession of the property since he purchased it on June 7, 1950 and he has been in enjoymeint of the money also sine( he withdrew it from court on November 14, 1953. It seems to me that on these facts the appellant cannot proceed with the appeal. He cannot be permitted to pursue inconsistent courses of conduct. By withdrawing the money, he has of his free choice, 366 adopted the decree and must, therefore, be precluded from challenging its validity. He had no right to the money excepting such as the decree gave him. Having exercised that right he cannot be heard to say that the decree was invalid and, therefore, the right which he had exercised, had never existed. The rule is well established in England as well as in our country, that a litigant is not permitted such inconsistent courses of conduct and, so far as I am aware, never been departed from. As early as 1849 in Tinkler vs Hilder (1), Pollock, C. B., in dealing with a rule to set aside an order said, "It might be discharged simply on this narrow ground, that, under the circumstances of this case, the party applying to set aside the order in question in point of fact has adopted it by taking something under it". In King vs Simmonds (2) and Pearce vs Chaplin (3) the same line of reasoning was adopted. It is true that in these cases the orders were said to have been adopted because costs, for the payment of which they had provided, had been received. It is also true that the orders were not such to which the parties directed to pay the costs, were entitled as a matter of right. But all these do not seem to me to make any difference. The question is, are the circumstances such that it would be inconsistent conduct to accept a benefit under an order and then to challenge it? I should suppose that for this purpose costs are as much benefit as anything else given by the order. Likewise when the orders were discretionary or such to which there was no right ex debito justitiae, there would be no reason to say that there could be no inconsistency if they were challenged after benefits under them had been accepted. For deciding such inconsistency, I am unable to discover that the discretionary nature of the order has any materiality. Coming to more recent times, we get the case of Dexters Ld. vs Hill Crest Oil Co. Ld. There a person, who had taken money under an award made in a commercial arbitration in accordance with which a (1) ; (3) (1846) 9 Q B 802. (2) ; (4) [1926] 1 K.B 348. 367 judgment had been entered in a special case stated to court, was held precluded from appealing from that judgment. This, it will be noticed, was not a case where an order was considered to have been adopted because of receipt of costs given by it but because of the receipt of the sum of money which was claimed and which was given by the award. Scrutton, L. J., observed, (p. 358) "It startles me to hear it argued that a person can say the judgment is wrong and at the same time accept payment under the judgment as being right". I will conclude the reference to the English authorities by reading what Lord Russel of Killowen said in Evans vs Bartlam (1), "a man having accepted a benefit given him by a judgment cannot allege the invalidity of the judgment which conferred the benefit". Of the cases on the point in our country I may refer to Manilal Guzrati vs Harendra Lal (2), Banku Chandra Bose vs Marium Begum (3), Humrybux Deora vs Johurmull Bhotoria (4) and Venkatarayudu vs Chinna (5). Hurrybux Deora 's case (4) was an appeal from a decree in a suit for the redemption of a mortgage. The plaintiff had accepted the amount found by the decree passed by the trial Court to be due to him from the mortgagee in possession and receipt of the income of the mortgaged property, and had thereafter filed the appeal asking that he was entitled to more. Rankin, C. J., who delivered the judgment of the Court, held that there was no inconsistency in the conduct of the appellant and the rule 1 had so long been discussing had, therefore, no application. This was plainly right. The appellant had accepted the decree passed and in the appeal did not challenge its correctness so far as it went but only contended that it had not gone far enough. As has been said, he was not blowing hot and cold but only blowing hotter: see per Greer, L.J., in Mills vs Duckworth (6). Referring to King vs Simmonds (7), Pearce vs Chaplin (8) and Tinkler vs Hilder (9) which I have earlier (1) , 483.(2) (3) (5) 32 1. (7) ; (1846) 9 Q.B. 802. (9) (1849) 4 Exc 1187: ; 368 cited, Rankin, C.J., said (p. 714) that they "are clearly inapplicable except upon the basis that the Defendant is seeking to challenge an order after accepting the benefit of a term or condition imposed upon the Opposite, Party at whose instance the order was made". He was of the view that this basis did not exist in the case which he had before him. Rankin, C.J., also referred to another old English case, namely, Kennard vs Harris (1). , There, a rule to set aside an award of an arbitrator was discharged when it was shown that the party who had obtained the rule had accepted the costs of the reference and the award. Rankin, C.J., said with reference to this case that (p. 713), "A person who accepts costs payable under an award or any other sum of money given to him by an award is held to be precluded from asking the Court to set aside the award". He however also observed that An award is bad unless it deals with the whole matter submitted and prima facie cannot be set aside in part only". It may be that Rankin, C.J., was making a distinction, which is obviously correct, between an award which can be set aside only as a whole because it is one and indivisible and a judgment which might be in severable parts in which case, the adoption of a part by a party would not preclude him from challenging another part which was independent. Rankin, C.J., did not think, and if I may say so with respect, correctly, that the principle of Kennard vs Harris (1) had any application to the facts of the case before him, for, there no part of the judgment was sought to be challenged by the appeal, excepting perhaps an independent part which by implication rejected the appellant 's claim to a larger sum. In Venkatarayudu 's case (2), Venkatasubba Rao, J., after discussing various cases, to some of which I have referred, observed, (p. 141) "What is the principle underlying these decisions? When an order shows plainly that it is intended to take effect in its entirety and that several parts of it depend upon each other, (1) ; (1824) 2 B. & C. 80; (2) 369 a person cannot adopt one part and repudiate another". It seems to me beyond doubt that the principle of these cases is applicable to the facts of the present appeal. Here we have a decree which is one and indivisible. The effect of it is that upon the respondent paying the money into court he would be entitled to the property and to obtain possession of it and the appellant would be entitled to withdraw the money. The appellant has no right to the money whatsoever independent of the decree; he had no right to compel the respondent to purchase the property from him on payment of a price. Indeed the appellant had been contending that the respondent was not entitled to purchase the property from him by paying the price. The appellant could have drawn out the money only on the basis that the decree had been properly passed. Therefore, by withdrawing the money he adopted its correctness and cannot now say it is incorrect. It seems to me that the observation of Venkatasubba Rao, J., in Venkatarayudu 's case (1) (P. 141) that " to allow a party, who takes a benefit under such an order, to complain against it, would be to permit a breach of faith", would apply fully to the conduct of the appellant. So would the observations of Rankin, C. J., in Hurrybux Deora 's case (2) on King vs Simmonds (3), Pearce vs Chaplin (4) and Tinkler vs Hilder (5). The present is a case where the appellant was seeking to challenge an order after accepting the benefit of a term or condition, that is to say, as to the payment of money into court, imposed upon the respondent at whose instance the order was made; that the obligation to pay money was a term or condition 'imposed upon the respondent is manifest because the decree provided that if the money was not paid, the suit would stand dismissed with costs. Again the judgment in the present case is like an award for it is one whole and cannot be set aside in parts. Therefore what (1) (3) ; (2) (4) (1846) 9 Q.B. 802. (5) ; 47 370 Rankin, C. J., said in regard to Kennard vs Harris which turned on an award, namely, that a person who accepts costs or a sum of money given to him by an award cannot ask to have it set aside, would also be applicable. I find it impossible to conceive that this judgment consists of several parts or that such parts are severable. The learned counsel for the appellant was able to refer us to only one case in support of his contention that the appeal could be proceeded with and that was Sunder Das vs Dhanpat Rai (2). That was also a case of pre emption. There, however, the plaintiff who had obtained the decree for pre emption in his favour, had executed that decree and obtained possession of the property concerned. The defendant appealed from the decree but was unsuccessful. in the first appellate court. He then appealed to the Chief Court at Lahore and when the appeal was pending there, withdrew the purchase money paid into court by the plaintiff under the decree of the trial Court. The Chief Court held that this (lid not preclude the defendant from proceeding with the appeal before it. The facts of that case were substantially different from those before us. It may be said that the defendant having been compelled to part with the property, was justified in withdrawing of the money from the court and that a withdrawal in such circumstances did not amount to an adoption of the decree. That cannot be said in the present case. Whether on the facts, Sunder Das 's case (2) was rightly decided or not, is not a matter on which I feel called upon to express any opinion. If however that case intended to lay down a principle which would warrant the appellant on the facts of the case in band in proceeding_ with this appeal, I am unable to agree with it. It would then be in conflict with all the authorities on the point and none of these was noticed in the judgment, in that case. I do not think that Sunder Das 's case (2) is of sufficient authority to warrant a departure from the principle uniformly followed by the courts. (1) ; (2) 1907 P.R. No 16. 371 It is necessary, however, before I conclude, to refer to the comparatively recent case of Lissenden vs C. A. V. Bosch Ltd. (1). That was a case in which a workman who had been awarded compensation for partial incapacity up to a certain date accepted the compensation so awarded and thereafter preferred an appeal claiming that compensation should have been awarded to him beyond that date and so long as he should be incapacitated. The Court of Appeal feeling itself bound by its earlier decision in Johnson vs Newton Fire Extinguisher Company (2) had held, somewhat reluctantly, that the workman having accepted money under the award could not challenge its validity by an appeal. In Johnson 's case (2), it appears to have been held that a workman could not. accept part of an award and claim to amend another part for that would be an attempt to "approbate and reprobate" the award and this could not be allowed. The House of Lords in Lissenden 's case (1) held that Johnson 's case (2) had been wrongly decided and that the workman before it was entitled to proceed with the appeal. The reason for, this view was that acceptance by the workman of what had been found to be due to him does not operate to prevent him from appealing for some further relief. The case therefore was the same as that before Rankin, C. J., in Hurrybux Deora vs Johurmull Bhotoria (3). The substance of the decision of the House of Lords was that there was no inconsistency between the appeal and the adoption of the award. That however cannot be said in the case before us now. The House of Lords also pointed out that the Court of Appeal had misunderstood the doctrine against " approbating and reprobating". It was said that that was a doctrine of Scottish law which in England had been held by High authorities to be equivalent to the equitable principle of election. It was observed that that equitable principle depended for its application on the intention of the executant of an instrument and was, therefore, not applicable to a case like the (1) [1940) A.C. 412. (2) (3) 372 one the House of Lords had before it. It was also pointed out that the common law principle of election had no application either for, it depended on the h existence of two rights or remedies, one alone of which could be chosen and in the case of an appeal there were no two rights or remedies. I do not think the observations of the House of Lords on the doctrine against "approbating and reprobating" affect the question before us. All the learned Judges who delivered opinions in the case, including Lord Atkin, who expressed himself with some reservation, accepted tile position that a litigant may lose his right of appeal by reason of his conduct after the judgment or award for, by such conduct he may be estopped from appealing or may be considered in equity or at law as having released his right of appeal: see p. 420,429, 430 and 434. Lissenden 's case (1) does not, therefore, in my view throw any doubt on the principle that a litigant may be precluded from proceeding with an appeal if that would be inconsistent with his previous conduct in regard to the decree challenged by the appeal. It seems to me that the courts in England have taken the same view of Lissenden 's case (1). In Baxter vs Eckersley (2) the Court of Appeal expressly approved of the principle laid down in Dexter 's case(3). In Banque Des Marchands De Moscou vs Kindersley (4) Evershed, M. R., referring to the phrases "approbating and reprobating" and "blowing hot and blowing cold" said at p. 119, "These phrases must be taken to express, first, that the party in question is to be treated as having made an election from which he cannot resile, and, second, that he will not be regarded, at least in a case such as the present, as having so elected unless lie has taken a benefit under or arising out of the course of conduct which he has first pursued and with which his pre sent action is inconsistent". These two cases, it will be observed, were decided after Lissenden 's case (1). All these authorities leave no doubt in my mind that the rule preventing inconsistent conduct is firmly (1) (3) (2) (4) 373 established. I think, for the reasons earlier mentioned, that the rule is properly applicable in the present case and the appellant cannot be allowed to proceed with the appeal. I wish however to make it clear that the applicability of the rule will depend on the facts of each case; it will depend on whether there has been actual inconsistency. I have found that there has been adoption in the present case and the prosecution of the appeal will result in the conduct of the appellant becoming inconsistent. That is, all that I decide. Before leaving the case, I think I ought to observe that the fact that the appellant had withdrawn the money after he had obtained leave from this Court makes no difference to the applicability of the principle. It was by such withdrawal that he adopted the decree and thereafter he is precluded from proceeding with the appeal. There is as much inconsistency in the present case as there would have been, if the appellant had withdrawn the money before he had obtained the leave. For these reasons I would dismiss the appeal with costs. By COURT: In accordance with the majority judgment, the preliminary objection is overruled. The appeal will now be set down for hearing on merits. Preliminary objection overruled. Appeal set down for hearing.

IN-Abs

In a suit instituted by the respondent for the enforcement of the right of pre emption against the appellant, the trial court dismissed the suit but on appeal a decree was passed on March 24, 1952 under which upon the respondent paying the amount found payable as purchase money into court within four months, his title to the property would be deemed to have accrued from the date of the payment into court. The appellant applied for special leave to appeal to the Supreme Court and leave was granted on May 20, 1953, confining the appeal to the constitutional point raised therein, that the Rewa State Pre emption Act, 1949, was unconstitutional on the ground that it placed an unreasonable restriction upon the right to acquire property enumerated in article 19(1)(f) of the Constitution of India. In the meantime, the respondent deposited the price of pre emption into court within the time fixed in the decree and on November 14, 1953, the appellant withdrew the money from court. The appeal to the Supreme Court came on for hearing in due course and the question arose on a preliminary objection raised by the respondent whetber the appellant was precluded from proceeding with the appeal on the ground that by withdrawing the pre emption price he must be deemed to have accepted the decree and that he could not, therefore, be heard to say that the decree was erroneous. The respondent relied upon the doctrine that a person cannot be allowed to approbate and reprobate. Held (Sarkar, J., dissenting), that the act of the appellant in withdrawing the pre emption price did not amount to an adoption by him of the decree which he had specifically challenged in his appeal and, in the absence of some statutory provision or of a well recognised principle of equity, he could not be deprived of his statutory right of appeal. Accordingly, the appellant was not precluded from proceeding ;with the appeal. The principle that a person who takes benefit under an order cannot repudiate that part of the order which is detrimental to him, on the ground that he cannot be allowed to approbate and reprobate, is applicable only to cases where the 359 benefit conferred by the order is something apart from the merits of the claim involved. A vendee in a pre emption suit against whom a decree is passed has a right to be paid the pre emption price before the decree becomes effective, but the price cannot be characterised as a benefit under the decree; it is only in the nature of compensation to the vendee for the loss of his property. Tinkler vs Hilder, ; , VerschuYes Creameries vs Hull and Netherlands Steamship CO., , Lissenden vs C. A. V. Bosch Ltd., , Venkatarayudu vs Chinna, and Sundra Das vs Dhanpat Rai, 1907 P.R. No. 16, considered. Per Sarkar, J. The decree was one and indivisible and the appellant had no right to the money whatsoever independent of the decree and he could have drawn out the money only on the basis that the decree had been properly passed. By withdrawing the money he adopted its correctness and cannot now say it is incorrect. The prosecution of the appeal will result in the conduct of the appellant becoming inconsistent and he cannot, therefore, be allowed to proceed with the appeal. Case law reviewed.

Appeal No. 153 of 1958. Appeal by special leave from the judgment and order dated January 9, 1956, of the Bombay High Court in Special Civil Application No. 2258 of 1955 J. B. Dadachanji, section N. Andley, and Rameshwar Nath, for the appellant. section P. Sinha, M. I. Khowaja and A. C. Dave, for respondent No. 1. 1961. March 27. The Judgment of the Court was delivered by WANCHOO J. This appeal by special leave against the judgment of the Bombay High Court raises a question of the interpretation of a. 34 (2 A) of the 569 Bombay Tenancy and Agricultural Lands Act, No. LXVII of 1948 (hereinafter called the Act). The brief facts necessary for present purposes are these: The appellant is the landlord and the respondent a protected tenant. The appellant gave notice of termination of tenancy to the respondent on December 31, 1951, under section 34(1) of the Act. The notice was for one year as required by section 34(1) and the tenancy was to terminate from after March 31, 1953. The landlord therefore made an application on April 7, 1953, under section 29(2) of the Act for obtaining possession of the land to the Mamlatdar. In the meantime, an amendment. was made to the Act by the insertion of sub section (2 A) to section 34 by the Amending Act No. XXXIII of 1952, which came into force on January 12, 1953. By this amendment certain further restrictions were placed on the right of the landlord to terminate the tenancy of a protected tenant. The relevant part of sub section (2 A) is in these terms: "If the landlord bona fide requires the land for any of the purposes specified in sub section (1) then his right to terminate the tenancy shall be subject to the following conditions, namely (1) The land held by the protected tenant on lease stands in the record of rights in the name of the landlord on the first day of January, 1952, as the superior holder. (2) If the land held by the landlord is in area equal to the agricultural holding or less, the landlord shall be entitled to terminate the tenancy of the protected tenant, in respect of the entire area of such land. (3) If the land held by the landlord is more than the agricultural holding in area, the right of the landlord to terminate the tenancy of the protected tenant shall be limited to an area which shall, after such termination, leave with the tenant half the area of the land leased. (4) The tenancy in respect of the land left with the protected tenant after termination under this section shall not at any time be liable to be terminated on the ground that the landlord bona fide 72 570 requires the said land for any of the purposes specified in sub section (1). Explanation. The "agricultural holding" shall mean sixteen acres of jirayat land or four acres of irrigated or paddy or rice land, or lands greater or less in area than the aforesaid areas in the same proportion: The restriction contained in sub section (2 A) is in addition to the restrictions in sub section (2), which lays down that the landlord shall have no right to terminate the tenancy of a protected tenant, if the landlord at the date on which the notice is given or at the date on which the notice expires has been cultivating personally other land fifty acres or more in area, provided that if the land which is being cultivated personally is less than fifty acres, the right of the landlord to terminate the tenancy of the protected tenant and to take. possession of the land leased to him shall be limited to such area as will be sufficient to make the area of the land which he has been cultivating to the extent of fifty acres. When therefore the landlord applied for possession of the land under section 29(2) of the Act, the tenant objected and claimed the benefit of the third clause of subs. (2 A), and the question that arose for determination was whether the tenant was entitled to the protection contained in this clause The Mamlatdar to whom the application under section 29 (2) was made allowed the application. The respondent thereupon appealed but his appeal was dismissed. He then went in revision to the Revenue Tribunal, which was rejected. The tenant then filed an application under article 227 of the Constitution before the High Court and contended that the provision of section 34(2 A) should have been taken into consideration by the Revenue Courts in deciding the application of the landlord under section 29(2) and that the revenue courts were wrong in the view they had taken that that sub section did not apply to the present proceedings. The High Court allowed the application of the tenant, relying on its previous Full Bench decision in Durlabbhai Fakirbhai vs Jhaverbhai Bhikabhai (1), where it was held that as the tenancy had (1) 571 terminated and the right to obtain possession had accrued to the landlord after the coming into force of the Amending Act, the Amending Act applied and therefore the landlord, if he fails to satisfy the further conditions under the Amending Act, would not be entitled to possession. It further held that the Amending Act would apply to all proceedings where the period of notice had expired after the Amending Act had come into force and that what tile Amending. Act did was that it imposed a new limitation on the tight of the landlord to obtain possession and if the landlord failed to satisfy the court at the date when the tenancy expired and he became entitled to possession that he was so entitled in law as it then stood, he could not claim relief from the court. It is the correctness of this view which is being challenged before us in the present appeal. The contention on behalf of the appellant is that section 34(1) gives a right to the landlord to terminate the tenancy by one year 's notice, which was given in this case in December 1951 before the Amending Act came into force. Therefore the notice having been given before the Amending Act came into force, the further limitation put on the right of the landlord by subs. (2 A), introduced by the Amending Act, would not apply to notices given before the Amending Act came into force. The appellant further contends that the right to terminate a tenancy having arisen when the notice was given, the law to be applied, in case of notices given before the Amending Act came into force, would be the law existing on the date of notice. We are of opinion that there is no force in this contention. If we look at the words of sub section (2 A), it provider, certain conditions subject to which the right to terminate the tenancy shall be exercised. It may be that section 34(1) requires one year 's notice in order to exercise this right to terminate, but flubs. (2 A) imposer, restrictions on the landlord 's right to terminate the tenancy and does not speak of any notice at all. Therefore, when we have to look to the application of sub section (2 A) it is the date on which 572 the tenancy terminates which determines its application. The restriction by sub section (2 A) is on the right to terminate the tenancy and this restriction would come into play on the day on which the landlord 's right to terminate the tenancy is perfected, namely, the day on which the tenancy actually terminates in consequence of the notice given to terminate, it. A notice under section 34(1) is merely a declaration to the tenant of the intention of the landlord to terminate the tenancy; but it is always open to the landlord not to carry out his intention. Therefore, for the application of the restriction under sub section (2 A) on the right of the landlord to terminate the tenancy, the crucial date is not the date of notice but the date on which the right to terminate matures, that, is, the date on which the tenancy stands terminated. It is on ', $hat date that the court has to enforce the right of the landlord arising out of the notice of termination and therefore the court has to see whether the termination is in accordance with the restrictions imposed by subs.(2 A) on the date the right is to be enforced. Nor are we impressed by the argument that by applying sub section (2 A) to notices issued before the Amending Act came into force we would be taking away the vested right of the landlord. As we have already pointed out, the notice under section 34 (1) is merely a declaration to the tenant of the landlord 's intention to terminate the tenancy and no further proceedings may be taken by the landlord in consequence thereof It is only when the period of notice has expired and the tenancy has terminated that the landlord acquires a vested right to obtain possession of the land. Therefore, the Amending Act did not affect any vested right of the landlords till the tenancy actually stood terminated after the expiry of the notice. Consequently, the provisions of the Amending Act which came into force before the tenancy stood terminated by the notice will have to be taken into consideration in determining the right of the landlord in the matter of the termination of tenancy, for the Amending Act put certain fetters on this right of termination. In the circumstances, we are of opinion 573 that the view taken by the High Court is correct and sub section (2 A) would apply to all cases where notices might have been given but where the tenancy had not actually terminated before the coming into force of the Amending Act. This view, which appears to us to be plain enough on the words of sub section (2 A), is further enforced by another consideration, even if there is any doubt as to the meaning of sub section (2 A). That consideration is that the Amending Act is a piece of beneficent legislation meant for the protection of tenants. Therefore, if there is any doubt about the meaning of sub section (2 A) that doubt should be resolved in favour of the tenant, for whose benefit the Amending Act was passed. In this view it is obvious that the legislature could not have intended that the benefit of this beneficent measure should not be extended to tenants in whose cases the tenancy had not yet terminated, though notices had been given, when the further restrictions were being put on the right to terminate the tenancy. Learned counsel for the appellant has drawn our attention in this connection to Jeebankrishna Chakrabarti vs Abdul Kader Chaudhuri (1). In that case, the Bengal Tenancy Act was amended and the amendment provided that a tenant would be liable to ejectment on one year 's notice by the landlord. The earlier law provided for a notice of ejectment but did not provide that the notice should be for one year; it pro vided no period of notice whatsoever and it was sufficient under it to give notice expiring with the end of an agricultural year in order to effect ejectment, howsoever short might be the period of notice. The question therefore arose whether the amendment applied to notices given under the old law, and the Calcutta High Court held that it did not. The circumstances under which that decision was given are entirely different from the circumstances of the present case. In that case the contents of notice were changed; while formerly what was required was a notice without any particular period, the amendment required a notice of one year. There was no provision in the (1) (1933) I.L.R. LX Cal. 1037 574 Amending Act making notices which were in accordance with the previous law ineffective. In these circumstances the Calcutta High Court was right in holding that the amendment did not affect notices already given. No such question however arises in the present case. The period of notice is the same before and after the amendment in the present case, and what we have to see is whether the crucial date for the application of the new sub section (2 A) is the date of the notice or the date of the termination of the tenancy. We have already held that that date must be the date of the termination of the tenancy. In the circumstances the appeal fails and is hereby dismissed with costs. Appeal dismissed.

IN-Abs

Sub section (2A) of section 34 of the Bombay Tenancy and Agri cultural Lands Act, 1948, as amended by the Amending Act of 1952, applied from the date when the tenancy stood terminated on expiry of the notice of ejectment served on the tenant by the landlord under section 34(1) of the Act and not from the date of the notice. The Amending Act could not be said to divest the landlord of any vested right since he could have none till the period of notice terminated and the tenancy came to an end. Consequently, where the landlord gave notice of ejectment under section 34(1) of the Act, but the Amending Act came into force before the period of notice expired the landlord could be entitled to possession only after satisfying the provisions of that subsection. Durlabbhai Fakirbhai vs jhaverbhai Bhikabhai, (1956) 58 Bom. L. R. 85, referred to. Jeebankrishna Chakrabarti vs Abdul Kader Choudhuri, (1933) I.L.R. LX Cal. 1037, distinguished.

Civil Appeal No. 191 of 1958. Appeal by special leave from the judgment and decree dated February 13, 1956, of the High Court of Judicature at Calcutta in First Appeal No. 191 of 1949. B. Sen and Sadhu Singh, for the appellant. 561 Vidyadhar Makajan and T. M. Sen, for the respondent. March 27. The Judgment of the Court was delivered by WANCHOO, J. This is an appeal by special leave against the judgment of the Calcutta High Court. The brief facts necessary for present purposes are these: The appellant, section N. Dutt, is the sole proprietor of the business known as "section N. Dutt & Co." and carried on this business under that name and style at Krishnagore in the district of Nadia in 1944. On May 17, 1944, section N. Dutt & Co. obtained an order from the military authorities for the supply of 10,000 baskets of mangoes to be delivered at Sealdah Railway Station, every day from May 24, 1944, for ten days at the rate of 1,000 baskets, per day. The military authorities made arrangements with the Bengal and Assam Railway for the supply of 30 covered wagons at Jiaganj Railway Station at the rate of three wagons per day commencing from May 22, 1944 for this purpose, and this was communicated to the appellant on May 19, 1944. On May 18,1944, the Divisional Superintendent, Sealdah informed the Station Master at Jiaganj that contractor section N. Dutt would book and load 30 wagons of mangoes at Jiaganj at the rate of three wagons per day from May 22, 1944 and directed him to accept the booking and allot wagons for the said purpose. The appellant thereupon placed indents with the Station Master Jiaganj for. the supply of the said wagons and began to bring to the Jiaganj Railway Station baskets of mangoes from May 21, 1944. It appears however that wagons were not supplied regularly, with the result that whatever consignments reached Sealdah were spoilt and were rejected by the military authorities. On May 30, 1944, the military authorities informed the contractor that the contract had been cancelled on account of the unsatisfactory nature of the supplies. The result of this was that 5004 further baskets of mangoes could not be despatched, though they had been stacked at the railway station at Jiaganj. In consequence the mangoes were spoilt 71 562 and had to be thrown away. The appellant claimed that he had sustained a heavy loss due to the misconduct, gross negligence and carelessness on the part of the Bengal and Assam Railway administration. Consequently he Submitted a claim for damages for over Rs. 84,000 to the Chief Commercial Manager and the General Manager of the Railway. Subsequently on November 4, 1944, he gave two notices under section 80 of the Code of Civil Procedure to the Secretary to the Governor General of India in Council representing the Bengal and Assam Railway and followed it up by instituting the suit on July 21, 1945 claiming over Its. 84,000 as damages. The suit was resisted by the Governor General in Council, now represented by the Union of India. Among other defenses with which we are not concerned in the present appeal, it was contended on behalf of the Union of India (respondent) that the appellant was not entitled to maintain the suit as the two notices under section 80 of the Code of Civil Procedure were not valid and sufficient, but were defective. When the matter came to trial before the Subordinate Judge, he hold in favour of the appellant on the question whether there was negligence or misconduct on the part of the Railway administration; but he dismissed the suit on the ground that the two notices under section 80 were defective inasmuch they had been issued by section N. Dutt and Co. and not on behalf of the appellant. There was then an appeal by section N. Dutt before the High Court. The High Court agreed with the Subordinate Judge that the notices under section 80 were defective and the suit was rightly dismissed. Further on the merits, the High Court did not agree with the Subordinate Judge that any misconduct or negligence had been proved which would entitle the appellant to any damages except in the matter of one small consignment. The appeal therefore failed. Thereupon the appellant applied for a certificate to appeal to this Court which was refused. He then came to this Court by petition for special leave which was granted; and that is bow the matter has came up before us. 563 The main point therefore that arises in this appeal is whether the notices in question were in conformity with section 80 of the Code of Civil Procedure; if they were not, the suit would fail on the ground of non compliance with that provision. Section 80 inter alia lays down that "no suit shall be instituted against the Central Government, until the expiration of two months next after notice in writing has been delivered to, or left at the office of the Secretary to that Government, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims; and the plaint shall contain a statement that such notice has been so delivered". The defect in the present case is in regard to the name, it being not disputed that there is no other defect in the notice; and the question that arises is whether the defect in name makes the notices ineffective and therefore the suit becomes not maintainable in view of the bar of section 80. As far back as 1927, the Privy Council in Bhagchand Dagadusa vs Secretary of State for India in Council (1) had to consider the true application of section 80 and held that section 80 was explicit and mandatory and admitted of no implications or exceptions and had to be strictly complied with and was applicable to all forms of action and all kinds of relief. In particular, with reference to the name the Privy Council had to consider the matter in Al. Vellayan Chettiar vs Government of the Province of Madras (2). In that case the suit was brought by two plaintiffs but the notice was given by only one of them. The Privy Council hold that this could not be done and observed that " section 80,according to its plain meaning, requires that there, should be identity of the person who issues the. notice with the person who brings the suit". Finally, in Government of the Province of Bombay vs Pestonji Ardeshir Wadia the Privy Council had again to consider the scope of section 80. In that case the notice bad been given by two trustees. Before however the suit could be brought, one of the trustees (1) (1927) L.R. 54 I.A. 138 (2) (1947) L R. 74 I.A,. (3) (1949) L. R. 76 I. A. 85. 564 died and was replaced by two other trustees. The suit was brought by the three trustees, only one of whom had given the notice while two had not. The Privy Council again reiterated that the provisions of a. 80 were imperative and must be strictly complied with. It went on to say that "there is no provision in the Code enabling the trustees to sue in the name of the trust, as members of a firm may sue in the name of the firm. In the case of a trust, the plaintiffs are bound to be the trustees and not the trust and where no notice has been served under section 80, specifying the names and addresses of all the trustees, the provisions of the section have not been complied with and the suit is incompetent. " Learned counsel for the appellant, however, relies on Dhian Singh Sobha Singh and another vs The Union of India (1), where the following observations occur: "The Privy Council no doubt laid down in BhagChand Dogadusa vs Secretary of State (L.R. 54 I.A. 338) that the terms of this section should be strictly complied with. That does not however mean that the terms of the notice should be scrutinized in a pedantic manner or in a manner completely divorced from common sense. As was stated by Pollock C. B. in Jones vs Nicholls, ; , 150), 'We must import a little common sense into notices of this kind '. Beaumont C. J., also observed in Chandulal Vedilal vs Government of Bombay (I.L.R. One must construe section 80 with some regard to common sense and to the object with which it appears to have been passed. " The next case to which reference was made is The State of Madras vs C. P. Agencies (2 ). The question in that case was whether the cause of action had been stated as required by section 80, and this Court held that the cause of action had been stated in the notice. This Court also observed that it was not necessary in that case to consider the two decisions of the Privy Council (to which reference has already been made by us) requiring the identity of the person who issues a notice with the person who brings the suit. (1) ; , 795. (2) A.I.R. (1960) S C. 1309. 565 It is urged that these observations show that the strictness which 'the Privy Council emphasised in these cases has not been accepted by this Court. It must however be remembered that the defect with which this Court was dealing in these cases was in the matter of cause of action and relief, and this Court pointed out that it was necessary to use a little common sense in such circumstances. Where the matter (for example) concerns the relief or the cause of action, it may be necessary to use common sense to find out whether section 80 has been complied with. But ,Where it is a question of the name of the plaintiff, there is in our opinion little scope for the use of common sense, for either the name of the person suing is there in the, notice or it is not. No amount of common sense will put the name of the plaintiff there, if it is not there. Let us therefore examine the notices and the plaint in this case to see whether the suit is by the same person who gave the notices, for it cannot be gain said that the identity of the person who issues the notice with the person who brings the suit must be there, before it can be said that section 80 has been complied with. Now the relevant part of the two notices was in these terms: "Under instructions from my client Messrs. section N. Dutt and Co. of Krishnagar, I beg to give you notice that my said client will bring a suit for damages in the court of the Subordinate Judge of Nadia at Krishnagar against the B & A Railway Administration". In the plaint, the description of the plaintiff was in these terms: "Surrendra Nath Dutta sole proprietor of a business carried on under the name and style of section N. Dutt & Co. of Krishnagar, P. section Krishnagar, District Nadia". It will be immediately obvious that the notices were in the name of Messrs. section N. Dutt and Co., while the suit was filed by section N. Dutt claiming to be the sole proprietor of Messrs. section N. Dutt and Co. It is urged on behalf of the appellant that the reason why the 566 suit was filed in the name of section N. Dutt as sole proprietor of Messrs. section N. Dutt and Co. was that no suit could have been filed in the name of Messrs. section N. Dutt and Co., as that was not a firm; that was merely the name and style in which an individual, namely section N. Dutt, was carrying on the business. The question therefore that immediately arises is whether section N. Dutt who filed the suit was the person who gave the notices and the answer is obvious that it is not so. It may be that section N. Dutt is the sole proprietor of Messrs. section N. Dutt and Co. and is carrying on business in that name and style; but that does not mean that these notices were by section N. Dutt. Any one reading these notices would not necessarily come to the conclusion that Messrs. section N. Dutt and Co. was merely the name and style in which an individual was carrying on business. The Prima facie impression from reading the notices would be that Messrs. section N. Datt and Co. was some kind of partnership firm and notices were being given in the name of that partnership firm. It cannot therefore be said on a comparison of the notices in this case with the plaint that there is identity of the person who issued the notices with the person who brought the suit. Besides if Messrs. section N. Dutt and Co., not being a partnership firm, could not file a suit in that name and style on behalf of its members, we cannot see how section N. Dutt and Co. could give a valid and legal notice in that name and style on behalf of an individual, section N. Dutt. As was pointed out by the Privy Council in Peslon Ardeshir Wadias case (1), the case of members of a firm stood on a different footing, for the members of a firm might sue in the name of the firm; but in the present case Messrs. section N. Dutt and Co. is not a firm; it is merely the name and style in which an individual (namely, section N. Dutt) is carrying on business and though the individual may in certain circumstances be sued in name and style, he would have no right to sue in that none. There ,fore, where an individual carries on business in some name and style the notice has to ' be given by the individual in his own name, for the suit can only be filed in the name, (1) (1949) L.R 76 I.A. 85. 567 of the individual. The present suit is analogous to the case of trustees where the suit cannot be filed in the name of the trust; it (,,an only be filed in the name of the trustees and the notice therefore has also to be given in the name of all the trustees who have to file a suit. Therefore comparing the notices given in this suit with the plaint, and remembering that Messrs. section N. Dutt and Co. is not a partnership firm but merely a name and style in which an individual trades, the conclusion is inescapable that the person giving the notices is not the same as the person suing. It was urged on behalf of the appellant that the Railway Administration knew the position that Messrs. section N. Dutt and Co. was merely the name and style in which an individual (namely, section N. Dutt) was trading. But even this in our opinion is not correct as a fact, for, as pointed out by the High Court, there are documents on the record which show that section N. Dutt gave himself out as a partner of Messrs. section N. Dutt and Co., thus suggesting that section N. Dutt and Co. was a firm. That was the reason why a plea was raised on behalf of the Union of India that the suit was barred under section 69 of the Partnership Act as the firm was not a registered firm. In this connection learned counsel for the appellant referred us to certain cases in which in similar cir cumstances the notice was considered to be valid under section 80. These cases are: Kamta Prasad vs Union of India (1) and Secretary of State vs Sagarmal Mar. wari (2). In view of what we have said above, we cannot agree with the view taken in these oases and must hold that they were wrongly decided. In this view of the matter, there is no force in this appeal and it is hereby dismissed with costs. Appeal dismissed.

IN-Abs

The appellant was the sole proprietor of a business styled section N. Dutt SE Co. He gave a notice under section 80 of the Code of Civil Procedure to the respondent in the name of "section N. Dutt & Co.". After the requisite period he filed a suit against the respondent describing the plaintiff as: "Surendra Nath Dutt sole proprietor of a business carried on under the name and style of section N. Datt & Co." The suit was dismissed on the ground that the notice was defective as it was issued by section N. Dutt & Co. and not the plaintiff. The appellant contended that the notice was valid as section N. Dtitt carried on business and that no suit could have been filed in the name of section N. Dutt & Co. as it was not a firm. Held, that the notice was defective and that the suit had been rightly dismissed. The person who issued the notice was not the same as the person who filed the suit. Since section N. Dutt & Co. could not file the suit in that name it could not give a valid and legal notice in that name. A valid notice could have been given only in the name of section N. Dutt. A defect in the notice as to the name of the plaintiff has to be viewed strictly. Bhagchand Dagadusa vs Secretary of State for India in Council, (1927) L.R. 54 I.A. 338, Al. Velayan Chettiar vs Government the Province Madras, (1947)223 and Government of the Province of Bombay vs Pestonji L.R. Wadia, (1949) L.R. 76 I.A. 85, referred to. Dhian Singh Subha Singh vs TheUnion of India, ; and The State of Madras vs C. P. Agencies, A.I.R. , distinguished. Kamta Prasad vs Union of India, and Secretary of State vs Sagarmal Marwari, A.I.R. 1941 Pat. 517, disapproved.

No. LXX of 1949. Appeal from the judgment of the Allahabad High Court (Verma and Yorke JJ.) dated the 22nd April, 1943. 100 782 M.C. Setalvad, Attorney General for India (Sri Narain And ley, with him), for the appellant. P.L. Banerjee (H. J. Urnrigal, with him), for the respondents. November 14. MLKHERJEA J. This is an appeal against a judjment and decree of a Division Bench of the Allahabad High Court dated April 22, 1943, which reversed on appeal those of the Civil Judge of Basti dated 6th of November 1939. The suit, out of which the appeal arises, was commenced by the plaintiff, whose successor the present appellant is, to recover a sum of Rs. 11,935 by enforcement of a simple mortgage bond. The mortgage deed is dated the 8th of March 1926 and was executed by Raja Pateshwari Partap Narain Singh, the then holder of Basti Raj which is an impartible estate governed by the rule of primogeniture, in favour of Bhikhiram Sahu, the father of the original plaintiff Ramdeo, to secure a loan of Rs. 5,500 advanced by the mortgagee on hypothecation of certain immovable properties appertaining to the estate of the mortgagor. The loan carried interest at the rate of 9 per cent per annum and there was a stipula tion to pay the mortgage money within one year from the date of the bond. The mortgagor and the mortgagee were both dead at the time when the suit was instituted, and the plaintiff in the action was Ramdeo Sahu, the son and heir of the mortgagee, while the principal defendant was the eldest son of the mortgagor who succeeded to the Basti estate under the rule of primogeniture. It was stated in the plaint that absolutely nothing was paid by the mortgagor or his succes sor towards the mortgage dues and the plaintiff claimed the principal amount of Rs. 5,500 together with interest at the rate of 9 per cent. per annum up to the date of the suit. A number of pleas were taken by the contesting defend ant in answer to the plaintiff 's claim, most of which are not relevant for our present purpose. The 783 substantial contentions raised by the defendant were of a three fold character. In the first place, it was urged that the document sued upon was not a properly attested or valid ly registered document and could not operate as a mortgage instrument in law. The second contention raised was that there was no consideration in support of the transaction, at least to the extent of Rs. 2,000, which was represented by items 3 and 4 of the consideration clause in the document. The third and the last material defence related to a claim for relief under the United Provinces Agriculturists ' Relief Act. The trial Judge held in favour of the defendant on the last point mentioned above and negatived his other pleas. The result was that he made a preliminary decree for sale in favour of the plaintiff for recovery of the principal sum of Rs. 5,500 with interest at certain rates as are sanctioned by the U.P. Agriculturists ' Relief Act; and agreeably to the provisions of that Act the decretal dues were directed to be paid in a number of instalments. Against this decision, the defendant took an appeal to the High Court of Allahabad which was heard by a Division Bench consisting of Verma and York JJ. The learned Judges reversed the judgment of the trial Judge and dismissed the plaintiff 's suit on one ground only, viz., that the bond was not attested in the manner required by law and consequently could not rank as a mortgage bond; and as the suit was instituted beyond 6 years from the date of the bond, no money decree could be claimed by the plaintiff. It is against this judgment that the plaintiff has come up on appeal to this court, and the main contention raised by the learned Attorney General, who appeared in support of the appeal, is that in arriving at its decision on the question of attestation, the High Court approached the matter from a wrong standpoint altogether and on the materi als in the record it had no justification for reversing the findings of the trial court on that point. The question for our consideration is undoubtedly one of fact, the decision of which depends upon the 784 appreciation of the oral evidence adduced in the case. In such cases, the appellate court has got to bear in mind that it has not the advantage which the trial Judge had in having the witnesses before him and of observing the manner in which they deposed in court. This certainly does not mean that when an appeal lies on facts, the appellate court is not competent to reverse a finding of fact arrived at by the trial Judge. The rule is and it is nothing more than a rule of practice that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of the witnesses, then unless there is some special feature about the evidence of a par ticular witness which has escaped the trial Judge 's notice or there is a sufficient balance of improbability to dis place his opinion as to where the credibility lies, the appellate court should not interfere with the finding of the trial Judge on a question of fact(1). The gist of the numer ous decisions on this subject was clearly summed up by Viscount Simon in Watt vs Thomas(2), and his observations were adopted and reproduced in extenso by the Judicial Committee in a very recent appeal from the Madras High Court(3). The observations are as follows: "But if the evidence as a whole can reasonably be re garded as justifying the conclusion arrived at at the trial, and especially if that conclusion has been arrived at on confliciting testimony by a tribunal which saw and heard the witnesses, the appellate court will bear in mind that it has not enjoyed this opportunity and that the view of the trial Judge as to where credibility lies is entitled to great weight. This is not to say that the Judge of first instance can be treated as infallible in determining which side is telling the truth or is refraining from exaggeration. Like other tribunals, he may go wrong on a question of fact, but it is a cogent circumstance that a Judge of first instance, when (1) Vide Lord Atkin 's observations in W.C. Macdonald vs Fred Latinmer, AI.R. 1929 P.C. 15, 18. (2) at p. 486. (3) Vide Saraveeraswami vs Talluri, A.I.R. 785 estimating the value of verbal testimony, has the advantage (which is denied to Courts of appeal)of having the witnesses before him and observing the manner in which their evidence is given. " It is in the light of these observations that we propose to examine the propriety of the decision of the s learned Judges of the High Court in the present case. It will appear that the mortgage deed besides containing the signature of the executant, purports to bear the signatures of three other persons, two of whom are described as attesting wit nesses and the third one as the scribe. Harbhajan Lal and Jawala Prasad Tewari purport to have signed the document as attesting witnesses and Jawala Prasad Patwari is the person who has signed it as the scribe. Jawala Prasad Tewari was admittedly dead when the suit was brought and Harbhajan Lal, the only surviving attesting witness was called on behalf of the plaintiff to prove the execution of the deed as is required under section 68 of the Indian Evidence Act. Harbhajan Lal stated in the witness box that he did sign the document as a witness and so did Jawala Prasad Tewari, but neither of them signed it in the presence of the mortgagor; nor did the mortgagor sign in their presence. On this statement being made, the witness was declared hostile and he was allowed to be cross examined by the plaintiff 's Counsel. He was cross examined by the defendant also and in answer to the questions put to him by the defendant 's lawyer, he stated that he signed the deed at the Collector ate Kutchery, meaning thereby the Bar Library, where he used to sit as a petition writer and the document was taken to him at that place by Bhikhi Ram Sahu, the mortgagee, Ghur Lal, a Karinda of the mortgagor, and Jawala Prasad Patwari, the scribe. Jawala Prasad Tewari signed the deed after him. The mortgagor certainly did not come to that place and his signature was already on the deed when the witness signed it. The details of the defendant 's version relating to execution of this document were given by Jawala Prasad Patwari, who was the principal witness on the 786 side of the defendatnt. He says that he prepared the draft at the sherista or the office of the Raja Sahib which is outside his Kot or palace. The draft was prepared under instructions from Bhikhi Ram, the mortgagee. and Ghur Lal, the Karinda of the mortgagor, both of whom were present when the draft was prepared. After the draft was fair copied and stamped, the witness signed it as the scribe and then it was taken by Bhikhi Ram and Ghur Lal to the Kot or palace of the Raja for his signature. After obtaining the Raja 's signa ture, Bhikhi Ram went away to his house and some time later he as well as Bhikhi Ram and Ghur Lal went to the Collector ate Kutchery, where they took the signatures of Harbhajan Lal and Jawala Prasad Tewari. They then went to the registration office, where the document was presented for registration by Jainarayan Sukul who held a general power of attorney for the Raja. As against this, there is a completely different version given by the plaintiff himself and his witness Buddhu Lal. According to the plaintiff, the document was executed and attested at one and the same sitting in the Kot or palace of the Raja; the terms had been settled beforehand between Bhikhi Ram and the mortgagor and on the 8th of November 1926 the plaintiff himself, and not his father, went to the Raja 's palace at about 10 or 11 A.M. in the morning to get the document executed. He was accompanied by three persons to wit Harbhajan Lal, the deed writer of his father, Buddhu Lal, an old servant of the family, and Jawala Prasad Tewari who was also well known to the plaintiff and was taken to bear witness to the deed. They found Jawala Prasad Patwari already with the Raja when they reached the Kot. The draft was prepared by Buddhu Lal at the suggestion of the Raja. It was the plaintiff 's desire that the final document should be scribed by Harbhajan Lal but as the Raja wanted to oblige Jawala Prasad Patwari, who was the Patwari of Basti proper, the deed was faired out and scribed by Jawala Prasad patwari. After the Raja had put his signature on the 787 document in the presence of Harbhajan Lal and Tewari, both the latter signed the document in the presence of the Raja. The subsequent events narrated by the plaintiff relate to the registration of the document and we do not consider them to be material for our present purpose. This story of the plaintiff is supported materially and on all points by Buddhu Lal, who was an old servant of the family, though he was no longer in service when he deposed in court. There were thus two conflicting versions placed before the court and each side attempted to substantiate its case by verbal testimony of witnesses. The trial Judge was to decide which of the two versions was correct and he ac cepted the story of the plaintiff and rejected that of the defendant. The learned Judges of the High Court in dealing with the appeal do observe, at the beginning of their discussions, that on a question of fact the appellate court should be slow to differ from the conclusions arrived at by the trial Judge who had seen and heard the witnesses; but in their opinion, this rule did not apply to the present case as the trial Judge here did not base his conclusions on the impres sions created in his mind by the witnesses who deposed before him. What the trial Judge relied upon, it is said, was not the demeanour of the witnesses as index of their credibility but upon the inherent improbability of the circumstances deposed to by the defendant 's witnesses. It is observed by the High Court that the trial Judge, when he found the defendant 's story to be improbable, should have considered whether or not there were improbable features in the plaintiff 's case also, and whether the evidence of the plaintiff and his servant Buddhu Lal merited credence at all. The learned Judges of the High Court then proceed to examine and discuss at great length the different reasons put forward by the trial Judge in support of his finding that the defendant 's case was unreliable. These reasons are held to be inconclusive and unsound and the High Court further found that the plaintiff 's story 788 as narrated by him and his servant is improbable and not worthy of belief. In our opinion, the High Court 's approach to the case has not been proper and its findings are unsupportable on the materials in the record. Here was a case where the controversy related to a 'pure question of fact which had to be determined by weighing and appraising of conflicting oral testimony adduced by the parties. It cannot be denied that in estimating the value of oral testimony, the trial Judge, who sees and hears the witnesses, has an advantage which the appellate court does not possess. The High Court was wrong in thinking that it would detract from the value to be attached to a trial Judge 's finding of fact if the Judge does not expressly base his conclusion upon the impressions he gathers from the demeanour of witnesses (1). The duty of the appellate court in such cases is to see whether the evidence taken as a whole can reasonably justify the conclusion which the trial court arrived at or whether there is an element of improba bility arising from proved circumstances which, in the opinion of the court, outweighs such finding. Applying this principle to the present case, we do not think that the High Court was justified in reversing the finding of the trial Judge on the question of attestiation of the document. In the opinion of the High Court the story narrated by the plaintiff and his servant is untrue, and the main reason given is that it is not at all probable that the plaintiff and not his father Bhikhi Ram was present at the palace of the Raja when the document was executed. The mortgagor, it is said, was an influential person in the locality occupying a very high social position and it would be indecorous and against Indian customs for a man like Bhikhi Ram not to be personally present when the Raja was going 'to execute a document in his favour. The learned Judges seem to think that the plaintiff was not really at the spot when the mortgage deed was executed and as Bhikhi Ram was dead, this story was manufactured by the plaintiff in order to Vide the observations of Lord Carson in Nether landsche Handel Maatschappij v, R.M.P. Chettiar Firm and Others, A.I.R 1929 P.O. 202, 205. 789 enable him to prove attestation. Mr. Banerjee appearing for the defendant respondent went to the length of suggesting that it was only after Harbhajan Lal turned hostile in the witness box and denied that he attested the document that the new story was invented by the plaintiff. We think that this argument rests on an extremely flimsy basis which does not bear examination. It may be that the Raja was a man of high social position, but it should be remembered that he was in the position of a borrower and moreover it was not the first time that he was borrowing money from Bhikhi Ram. As, however, he was the Raja of Basti, the document was executed at his palace and not in the house of the mortgagee and if as the plaintiff says, the terms were already settled between Bhikhi Ram and the Raja and the only thing left was to embody the agreed terms in writing, we fail to see why it was absolutely necessary for Bhikhi Ram to wait upon the mortgagor personally; and why his adult son, who was sufficiently old and experienced in business affairs, could not represent him in the transac tion. The suggestion of Mr. Banerjee that the new story was invented after the plaintiff had seen Harbhajan Lal giving evidence against him in the witness box is not worthy of serious consideration having regard to the fact that the plaintiff himself stepped into the witness box immediately after Harbhajan Lal had finished his deposition. It seems to us also that the presence of Harbhajan Lal and Buddbu Lal at the sitting when the mortgage transaction took place was quite a probable and natural thing which cannot give rise to any suspicion. It appears from the evidence on the record that Harbhajan Lal, who was a pro fessional deed writer, was usually employed for writing deeds of the plaintiff 's father and he figured either as a scribe or as an attesting witness in various documents to which the plaintiff 's father was a party. It was quite natural for the plaintiff in such circumstances to take Harbhajan Lal alongwith him to the Raja 's palace on the day that the 790 mortgage bond was executed and we see no reason to disbe lieve the plaintiff 's statement that his original intention was to have the deed scribed by Harbhajan Lal. It is said by the High Court that in the mofussil districts in the United Provinces the Patwari is the person generally em ployed for drafting and scribing deeds. This cannot mean that all the people in the district of Basti used to have their deeds drafted and scribed by the Patwari. We have exhibited documents in the records of this case where the name of Harbhajan Lal appears as the scribe; and so far as the plaintiff 's father was concerned, there is no doubt whatsoever that Harbhajan Lal was the scribe ordinarily employed to do his work. In this case also if Jawala Prasad Patwari had not been present on the spot, the plaintiff would certainly have the document scribed by Harbhajan Lal, as so many documents in favour of the plaintiff 's father had been scribed by this man on previous occasions. We see nothing improbable in the story that it was out of deference to the wishes of the Raja that the plaintiff consented to the document being scribed by Jawala Prasad Patwari. As regards Buddhu Lal, it is not disputed that he was an old and a trusted servant of the plaintiff 's family. That he was trusted in business matters is clear from the fact that his name appears as a witness in the registered receipt (exhibit 10) given by Sheo Balak Ram, to whom a sum of Rs. 500 was paid by Bhikhi Ram under the terms of the dis puted mortgage deed. We fail to see why it was improbable that Buddhu Lal would accompany the plaintiff to the Raja 's palace on the day of the execution of the document. The trial Judge relied to some extent upon the fact that the signatures of the executant and Harbhajan Lal were in the same ink in support of his conclusion that Harbhajan Lal signed the document at the place of its execution and not at the Collectorate Kutchery as alleged by him. Speak ing for ourselves, we do not attach much importance to the similarity in the ink which is after all not a very reliable test; but we do agree wit.h the trial Judge in holding that Harbhajan 791 Lal must have signed the document at the time when it was executed and not afterwards; and it is really inconceivable that an old and experienced deed writer like him did not know the requirements of proper attestation. On his own evidence he had attested numerous documents and he could not recall. a single instance where he signed the document in such manner as he did in the present case. The ' way in which the learned Judges of the High Court have attempted to explain away this part of Harbhajan Lal 's evidence does not appear to be satisfactory. The other observation made by the High Court in this connection that in this particular province there are many persons who are acquainted with law but do not care to comply with its requirements on account of carelessness, indifference, sloth or over confidence is not relevant and need not be taken seriously. Whatever that may be, we have no hesitation in holding that Harbhajan Lal knew perfectly well what attestation means in law and he did sign the document as an attesting witness at the Raja 's Kot after the document was executed. Jawala Prasad Patwari is apparently a man under the control of the defendant and cannot be trusted. Why Harbha jan Lal did go over to the defendant 's side is a question which may not admit of an easy answer. The trial Judge seems to be of opinion that it was probably due to the influence exercised by Jawala Prasad Patwari, who is a co villager of Harbhajan. We think it unnecessary to specu late upon these matters, for in our opinion Harbhajan Lal stands condemned by his own statement in court. Our conclusion is that the finding of the trial Judge on the question of attestation is perfectly consistent with the circumstances and probabilities of the case and the learned Judge did not omit anything which ought to have been present to his mind in coming to a conclusion. The evidence on the record taken as a whole fully supports the finding, and in our opinion the High Court has reversed it on totally inade quate grounds. The result is that the appeal must be allowed and the judgment of the High Court should be 792 set aside. As the High Court, however, has dismissed the suit only on the ground of non attestation of the mortgage bond and did not consider the other points which were raised before it, the case must go back to that court in order that the other matters, which have been left undecided, may be heard and decided by the learned Judges and the case dis posed of in accordance with law. The plaintiff appellant is entitled to costs of this hearing as well as the costs of the High Court against defendant No. 1. Appeal allowed.

IN-Abs

When there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of the witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial judge 's notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lies, the appellate court should not interfere with the finding of the trial judge on a question of fact. It would not detract from the value to be attached to a trial judge 's finding of fact if the judge does not express ly base his conclusion upon the impressions he gathers from the demeanour of witnesses. The rule is, however, only a rule of practice and does not mean that the court of first instance can be treated as infallible in determining which side is telling the truth or is refraining from exaggeration. [Where the High Court reversed a finding of fact arrived at by the trial court depending on oral evidence on the ground that the rule that the appellate court should be s1ow to differ from the conclusions arrived at by the trial judge who had seen and heard the witnesses did not apply to the case as the trial judge did not base his conclusions on the impressions created in his mind by the witnesses who deposed before him, but upon the inherent improbability of the circumstances deposed to ,the Supreme Court held that the high court 's approach to the case was not proper and, after weighing the whole evidence in case reversed the finding of the High Court.] W.C. Macdonald vs Fred Latimer (A.I.R. 1929 P.C.15 at p. 18), Watts vs Thomas ([1947] A.C. 484 at p. 486), Sarave eraswami vs Talluri (A.I.R. 1949 P. C. 39.), Nether landsche Handel Maatschappij vs R.M.P. Chettiar Firm and Others (A.I.R. ,205), referred

Appeal No. 63 of 1952. Appeal from the Judgment and Order dated 7th November, 1950, of the High Court of Judicature at Hyderabad (Siddique, Rao and Deshpande JJ.) in Civil Case No. 9 A 5 1 of 1950. M. C. Setalvad, Attorney General for India, and C. K. Daphtary, Solicitor General for India (G. N. Joshi and Ghulam Ahmad Khan, with them) for the appellants. B. Somayya and Akbar Ali Khan (B. V. Subharayudu, with them) for the respondents. December 9. The Judgment of the Court was delivered by MUKHERJEA J. This appeal which has come before us on a certificate granted by the High Court of Hyderabad under article 132 (1) of the Constitution is directed against a judgment of a Full Bench of that Court dated November 7, 1950, passed on a petition under article 226 of , the Constitution. By this judgment the learned Judges of the High Court declared an Act, known as the Waliuddowla Succession Act of 1950, void under article 13(2) of the Constitution to the extent that it affected the 'rights of the present, respondents 1 to 12 who were the petitioners 'in the article 226 proceeding. The object of the impugned Act, which received the assent of H.E.H. the Nizam as Rajpramukh of Hyderabad on April 24, 1950, was to put an end to the disputes that existed at the time regarding succession to the matrooka or personal estate of Nawab Waliuddowla ', 'a wealthy nobleman and a high dignitary of Hyderabad, and what, in substance, the Act provided was to dismiss the claims of succession to the said properties put forward by two of the alleged wives of the late Nawab, named Mahboob Begum and Kadiran Begum, and their children. These two ladies as Well as their 406 children filed a petition before the Hyderabad High Court under article 226 of the Constitution challenging the validity of the Act mentioned aforesaid inter alia on the grounds that it conflicted with the petitioners ' fundamental rights guaranteed under articles 1419(1)(1) and 31(1) of the Constitution and praying for appropriate reliefs by way of declaration and writs of certiorari and prohibition. The claim was resisted by Ameerunnissa Begum, an admitted wife of the late Nawab, and her children, and they are the persons who would primarily be benefited by the provisions of the impugned Act. The High Court ,substantially accepted the contentions of the petitioners and declared the Act to be void so far as it affected them. Against this decision the present appeal has been taken to this court by Ameerunnissa Begum and her children. To appreciate the contentions that have been raised by the parties, a brief resume of the antecedent events leading up to the passing of the disputed legislation would be necessary. Nawab Waliuddowla, who was one of the Paigah noblemen of Hyderabad and was at one time, the President of the Executive Council of the State, died at Medina on February 22, 1935, while on a pilgrimage to Hedjaz. Besides extensive jagir properties appertaining to the Paigah which fetched him an annual income of nearly Rs. 1,36,000 he left behind him matrooka or personal estate of considerable value. As regards the surviving relations of the Nawab, who could claim rights by inheritance to his estate, it is not disputed that Ameerunnissa Begum was one of the legaly wedded wives of the Nawab and that she and the five children which the Nawab had by her are entitled to their legitimate shares in the properties left by the deceased, There is also no dispute that the Nawab went through a legal marriage with a lady named Fatima Begum who is still alive. It appears, however, that she left her husband soon after marriage and did not return to him any time thereafter. During the period, which is material for our present purpose, the 407 only claim which she put forward against the estate of the Nawab was one for recovery of her dower debt &mounting to one lakh of rupees. The whole dispute between the parties to this litigation really centered round the point as to whether the other two ladies, namely Mahoob Begum and Kadiran Begum,who are respectively respondents I and 5 in this appeal, were, the lawfully married wives of the late Nawab or were they merely in his keeping as. kavases or permanent concubines? If there was no legal marriage between them and the Nawab, it is not disputed that their children, though admittedly begotten on them by the Nawab, would not be entitled to any share in the matrooka or personal estate left by the deceased. , This dispute first arose before the Paigah Trust Committee whose duty it was to distribute the income of the Paigah estate amongst the heirs of the late Nawab. In April, 1935, shortly after Ameerunnissa Begum, who had accompanied her husband to Mecca, returned to Hyderabad after the death of the latter, the Committee addressed letters to Ameerunnissa Begum, Fatima Begum and also to Mahboob Begum enquiring about the wives and children left, by the Nawab. No letter, it seems, was sent to Kadiran Bi. On a consideration of the replies given by the several addressees and also of the statements made on their behalf at the hearings before the Committee, the latter submitted a report to the Executive Council of the Nizam. The Paigah Committee proceeded on the footing that the Nawab 's marriage with Ameerunnissa Begum was beyond dispute, but as Mahboob Begum did not produce her marriage certificate even after repeated demands by the Committee, she as well as Kadiran Bi were treated as concubines. The Committee recommended that the annual income of the Paigah should be divided in the proportion of 60 to 40 amongst the legitimate and illegitimate relations of the Nawab 60% of the income was to go to Ameerunnissa Begum and her issues and the remaining 40% was to be paid to Mahboob and Kadiran as well as to 53 408 their children. These recommendations were approved by the Nizam in a Firman dated 9th July, 1936. Previous to this, express intimations were given to the surviving relations of Waliuddowla under orders of the Nizam that whatever disputes might exist among them regarding the matrooka or personal estate of the Nawab, should be decided by proper proceedings in a court of law and pending such decision the estate might be kept ' under the supervision of the Paigah Committee. On the 8th February, 1938, Mahboob Begum and her children filed a suit in the Dar ul Quaza, which was a court established under the law for deciding rights of succession, marriage, divorce etc. of the Muslims in the Hyderabad State, praying for a declaration that Mahboob Begum was the legally married wife of the Nawab and the children were his legitimate children and for other consequential reliefs in the shape of participation in the matrooka and recovery of the dower debt payable to Mahboob Begum. Both Ameerunnissa Begum and Kadiran Bibi as well as their children were among the defendants impleaded in the suit. During the pendency of the suit and before it came on for actual hearing, there was a Firman issued by the Nizara on the 9th February, 1937, on the application of Ameerunnissa Begum, directing the withdrawal of the suit from the Dar ul Quaza court and the appointment of a Special Commission consisting of Nawab Jiwan Yar Jung, the then Chief Justice of Hyderabad and the Judge of Dar ul Quaza before whom the suit was pending, to investigate the matter and submit a report to the Nizam through the Executive Council. Proceedings before the Special Commission commenced on 27th March,1939. Kadiran Bibi filed a plaint before the Commission claiming on behalf of herself and her children the identical reliefs which were claimed by Mahboob Begum and her children, and though this plaint was at first rejected by the Commission it was subsequently entertained under specific orders of the Executive Council. It appears that Fatima Bibi also lodged a plaint in respect of 409 her Mahar against the estate of the Nawab and ,this matter was also directed to be investigated by the Commission. The enquiry before the commission was a long affair in which a large volume of evidence, both oral and documentary, was adduced. The Commission submitted the report on October 16, 1944, and their findings, in substance, were that both Mahboob Begum and Kadiran Begum were legally married wives of Waliuddowla and hence they as well as their children were entitled to have their legitimate shares in the matrooka. Fatima Begum was also held to be a legally wedded wife of the Nawab, and as such entitled to the dower claimed by her. When the report came up for consideration by the Executive Council the Members of the Council were divided in their opinion. A minority was in favour of accepting the findings of the Commission but the majority view was that further expert opinion should be taken in the matter. Eventually on the advice of the Council the Nizam directed by his Firman dated 27th August, 1945, that the report of the Special Commission should be scrutinised by an Advisory Committee consisting of three persons, namely, two Judges of the High Court and the Legal Adviser of the State. This Committee was directed to examine fully the bulky report of the Special Commission and submit their opinion with a view to assist the Executive Council in coming to their decision. They were not to take any fresh evidence or hear any further arguments from the parties. The Advisory Committee submitted their report on 24th November, 1945, and the Committee held differing from the view taken by the Special Commission that neither Mahboob Begum nor Kadiran Begum was the legally wedded wife of Nawab Waliuddowla. Despite this report, the majority of the Executive Council recommended that the findings of the Special Commission should be accepted. The Nizam accepted this recommendation and by his Firman dated 26th June, 1947, directed that the findings of the Special Commission should be implemented at an early date. 410 There was a proposal at the beginning that the members of the Special Commission themselves should be asked to implement their findings, but eventually it was decided by a resolution of the Executive Council dated 22nd September, 1947, that the task of en forcing the recommendations of the Commission should be entrusted to the Chief Justice of the Hyderabad High Court. It appears that in subsequent communications to the Executive Council the Nizam expressed doubt regarding the status of Mahboob Begum and Kadiran Begum and suggested the replacement of the Firman of 26th June, 1947, by now orders in the nature of a compromise. The Executive Council, however, stuck to their decision and on 17th June, 1948, the findings of the Special Commission were transferred to the Chief Justice for executing the same as early as possible. On 2nd July, 1948, another Firman was issued by the Nizam directing that the Chief Justice before making the final distribution of the matrooka should submit his report through the Executive Council to His Exalted Highness for his sanction. This direction was embodied in a resolution of the Executive Council dated 2nd September, 1948. The police action in Hyderabad commenced soon after that and it was on 25th September, 1948, after the police action had terminated and a Military Governor was placed in charge of the Hyderabad State that a formal communication of the resolution mentioned above was made to the Chief Justice. Soon afterwards on the application of Ameerunnissa Begum made to the Military Governor the execution proceedings before the Chief Justice were stayed by an order dated 16th October, 1948. This stay order was again cancelled on 5th November, 1948, and the execution proceedings were allowed to continue. On 5th December, 1948, the Chief Justice submitted his report regarding the distribution of the matrooka to the Executive Council. Strangely, however, by a Firman dated 24th February, 1949, the Nizam purporting to set under the advice of the Military 411 Governor directed that the findings of the three men Advisory Committee, who differed from the views taken by the Special Commission, should be given effect to. In other words, the claims of Mahboob Begum and Kadiran Begum were dismissed and Ameerunissa Begum was directed to pay one lakh of rupees to Fatima, Begum as the dower due to the latter. Protest was lodged against the decision by Mahboob Begum and Kadiran Begum and again a Firman was issued by the Nizam under the advice of the Military Governor on 7th of September, 1949. By this Firman the earlier order of 24th February, 1949, was revoked and the whole case was referred for opinion and report to Sir George Spence, the Legal Adviser to the Military Governor, who was directed to hear the parties and take such further evidence as he considered necessary. The enquiry then began before the Legal Adviser but neither party adduced any evidence. Sir George Spence submitted his report on 7th January, 1950. The material findings and recommendations in his report were as follows: " 76. My finding on the case is that neither Mahboob Begum nor Kadiran Begum was married to the Nawab with the result that these ladies and their children are not entitled to participate in the distribution of the matrooka. 77.If this finding is accepted, the order required for its implementation would be an order dismissing the claims of Mahboob Begum and Kadiran Begum on the matrooka and directing Ameerunnissa Begum to pay one lakh of rupees out of the matrooka to Fatima Begum on account of Haq Mahar. " The Constitution of India came into force on 26th January, 1960. As Hyderabad was integrated with the Indian Union and the Nizam lost the absolute power which he could exercise previously, it was no longer within his competence to issue a Firman on the terms of the report of Sir George Spence and make it legally binding on the parties. Recourse was 412 therefore had to legislation and on April 24, 1950, this impugned Act was passed which purported to give a legislative sanction to the findings in the report of Sir George Spence. The material provision of the Act is contained in section 2, clause (1), which *lays down that " the claims of Mahboob Begum and Kadiran Begum and of their respective children to participate in the distribution of the matrooka of the late Nawab Waliuddowla are hereby dismissed". The second clause of this section provides that a sum of one lakh of rupees shalt be paid to Fatima Begum on account of her Haq Mahar. Under section 3, the decisions affirmed in section 2 cannot be called in question in any court of law and finally section 4 provides that the High Court of Hyderabad shall, on the application of any person interested in the decision affirmed in section 2, execute the said decision as if it were a decree passed by itself and such person was a decree holder. It is this Act which has been pronounced to be invalid by the High Court of Hyderabad to the extent that it dismisses the claims of Mahboob Begum and Kadiran Begum as well as of their children to the personal estate of Nawab Waliuddowla. It may be conceded that before the coming in of the Constitution, the Nizam of Hyderabad practically enjoyed unfettered sovereign authority and however much the various Firmans, which were issued by him in connection with the present dispute, may appear to be capricious and arbitrary, strictly speaking they were not 'unconstitutional in the sense that they were beyond his competence as the supreme legislature in the State. After the Constitution came into force and prior to the setting up of a duly constituted legislature in the Hyderabad State, the legislative authority undoubtedly vested in the Nizam as the Rajpramukh of the State under the provision of article 385 of the Constitution read with article 212 A (2) inserted by the President 's (Removal of Difficulties) Order No. II dated 26th January, 1950; but the legislative power exercisable by the Nizam was a strictly limited power. The Rajpramukh 413 was not only to act in conformity with the provision of article 246 of the Constitution and keep within the bounds of the legislative sphere laid down with reference to the entries in the different legislative lists, but the legislation must not be in conflict with any of the fundamental rights guaranteed under Part&, III of the Constitution. The impugned Act, as its title and preamble show, was passed with the avowed object of terminating the disputes relating to succession to the estate of the late Nawab Waliuddowala. Although in the report of Sir George Spence it was held that Mahboob Begum and Kadiran Begum were not the legally wedded wives of the Nawab and their children were not legitimate, there was no express declaration to that effect in the operative portion of the Act which merely lays down that the claims of these two ladies as well as of their children to participate in the distribution of the matrooka of the late Nawab are dismissed. The legislation may be said to relate to succession and indirectly to marriage also and as such may come within the purview of entry 5, List III of the Seventh Schedule to the Constitution. It has not been argued by Mr. Somayya, who appeared for the respondents, that a legislation on these topics must be a general legislation; but it has not been disputed by either side that no valid legislation could be passed under these heads which is discriminatory in its character and offends against the equal protection clause embodied in article 14 of the Constitution. The contention of the learned Attorney General is that the legislation in the present case does not violate the principles of the equality clause and he has attempted to combat with much force the decision of the High Court on this point. This is the main question in the case which requires to be examined carefully. The nature and scope of the guarantee that is implied in the equal protection clause of the Constitution have been explained and discussed in more than one decision of this court and do not require repetition. It is well settled that a legislature which 414 has to deal with diverse problems arising out of an infinite variety of human relations must, of necessity, have the power of making special laws to attain particular objects ; and for that purpose it must have large powers of selection or classification of persons and ,*things upon which such laws are to operate. Mere differentiation or inequality of treatment does not per so amount to discrimination within the inhibition of the equal protection clause. To attract the operation of the clause it is necessary to show that the selection or differentiation is unreasonable or arbitrary; that it does not rest on any rational basis having regard to the object which the legislature has in view. The learned Attorney General in the course of his argument laid considerable stress upon the decision of this court in Chiranjit Lal vs The Union of India(1) and he attempted to call in his aid the two propositions recognised and relied upon in that decision, namely, (1) that the presumption is always in favour of the constitutionality of an enactment, and (2) a law may be constitutional even though it relates to a single individual, family or corporation. The pro positions themselves may be well founded but whether or not they would apply to a particular case would depend upon the facts and circumstances of that case. In Chiranjit Lal 's case (1), it is to be noted, the circumstances were somewhat exceptional. The legislation in that case related to a company which was engaged in production of a commodity vitally essential to the community, and in judging the reasonableness of the classification in such cases the court has undoubtedly to look to the social, political and economic interest of the community as a whole. In doing so, as Prof Willis observed, the court will assume the existence of any state of facts which can reasonably be conceived of as existing at the time of legislation and capable of sustaining the classification made by it("). In the case before us what the legislature has done is to single out two groups of persons consisting of two (1) ; , (2) Willis on constitutional Law, p. 580, 415 ladies and their respective children out of those who claim to be related to the late Nawab Waliuddowla and prevent them from getting any share in the personal property of the latter to which they might be entitled under the general law of the land. They ' claim to be wives and children of the deceased and, as such entitled to have shares in his personal estate, and no competent court of law has as yet negatived their claims in this respect. On what principle then, it may be asked, was the disability imposed upon these persons alone while the claim of the other claimants was, accepted ? Nay, the legislation goes further than this and denies to these specified individuals a right to enforce their claim in a court of law, in accordance with the personal law that governs the community to which they belong. They, in fact, have been discriminated against from the rest of the community, in respect of a valuable right which the law secures to them all and the question is, on what basis this apparently hostile and discriminatory legislation can be supported. It is not suggested that it was for serving a public purpose or securing some advantage to the community as a whole that the legislature chose in this case to interfere with private rights. The only purpose of the legislation, as appears from the preamble, was to end certain private disputes. It is true that the quarrel between the two rival parties regarding succession to the estate of the deceased Nawab was going on since, 1938; and after several vicissitudes, for which the Nizam himself or his Legal Advisers were prima rily responsible, there was a report prepared by the Legal Adviser to the State in a particular way, which, contrary to the opinion given by an 'earlier ' Special Commission, negatived the claims of these two ladies and their children. It is also true that because of the introduction of the Constitution it was no longer possible for the Nizam to issue a Firman embodying this report. That may be the reason for passing this legislation but it would not furnish any rational basis 54 416 for the discrimination that it made. The continuance of a dispute even for a long period of time between two sets of rival claimants tot he property of a private person is not a circumstance of such unusual nature as would invest a case with special or exceptional features and make it a class by itself justifying its differentiation from all other cases of succession disputes. As appears from the preamble to the Act, the only ground for depriving the two ladies and their children of the benefits of the ordinary law is the fact that there was an adverse report against them made by the State Legal Adviser. This ground is itself arbitrary and unreasonable. The dispute regarding succession to the estate of the Nawab was a legal dispute pure and simple and without, determination of the points in issue by a properly constituted judicial tribunal a legislation based upon the report of a nonjudicial authority and made applicable to specific individuals, who are deprived thereby of valuable rights which are enjoyed by all other persons occupying the same position as themselves, does, in our opinion, plainly come within the constitutional inhibition of Article 14. The analogy of private Acts of the British Parliament, to which reference was made by the learned Attorney General in the course of his arguments, is not at all helpful. The British Parliament enjoys legislative omnipotence and there are no constitutional limitations upon its authority or power. There were indeed a few statutes passed by the Provincial Legislature in India during British days which regulated succession to the estates of certain princely families. The Bijni Succession Act (Act. II of 1931) passed by the 'Assam Legislature is an enactment of this type and it did shut out the rights of certain persons who claimed the Bijni estate under the law of inheritance. But at that time the Governor General of India had express authority under the provisions of the Government of India Act, 1915, to authorize the Provincial Legislatures to make laws regarding subjects of a private nature. Quite apart from this, no 417 question of infraction of the equal protection rule could arise in pre Constitution days. We are not unmindful of the fact that the presumption is in favour of the constitutionality of an enactment ; but when on the ' face of it a piece of legislation is palpably unreasonable and discriminatory and the selection or classification made by it cannot be justified on any conceivable or rational ground, the court has got to invalidate the enactment on the ground of its violating the equal protection clause. The learned Attorney General contended before us that the High Court was wrong in holding that there was a concluded decree in the present case in favour of respondents 1 to 12 on the basis of the recommendations of the Special Commission, and that this decree was a property within the meaning of law of which these respondents have been deprived by the impugned legislation. The point is not free from doubt, and much could be said on both sides. We think, therefore, that it would not be proper on our part to express,any opinion upon it in the present appeal. We understand that the respondents have filed an execution application in the City Civil Court of Hyderabad which has ordered that execution should proceed and that objections have been taken to this application by the present appellants who have raised inter alia the point that there is no final and effective decree which is capable of execution. As the point is still pending hearing by the Civil Court of Hyderabad, we do not desire to influence their decision in any way by expressing any opinion on this matter. We only desire to state that notwithstanding the observations made by the High Court referred to above, the question shall be treated as an open one. The applicability of article 14 of the Constitution in the present case is, however, not at all dependent upon the fact as to whether or not the respondents have already acquired property in the shape of a decree. Their claim to the estate of the late Nawab which they wanted to assert under the general law of the land is itself a valuable right, and 418 the deprivation of that right by a piece of discriminatory legislation would be sufficient to bring the case within the purview of article 14 of the Constitution. Having regard to the view that we have taken, it as unnecessary to consider whether the impugned Legislation violates the provisions of article 31(1) or article 19(1) (f) of the Constitution. The result is that the appeal is dismissed with costs. Appeal dismissed. Agent for respondents Nos. 1 to 12 M. section H. Sastri.

IN-Abs

The continuance of a dispute even for a long period of time between two sets of rival claimants to the property of a private person is not a circumstance of such unusual nature as Would invest a case with special or exceptional features and make it a class by itself justifying its differentiation from all other cases of succession disputes, and the fact that a non judicial authority had made a report against one set of the claimants is not a reasonable ground for depriving them by legislation of their ordinary rights under the law and prohibiting them from having resort to courts of law for establishing their rights. A nobleman of Hyderabad died in 1936 when it was under the rule of the Nizam, and disputes as to succession arose between his legally married wife and two ladies, Mahboob Begum and Kadiran Begum, who claimed to be his wives. After protracted proceedings before several non judicial bodies a report adverse to the latter was made in January, 1950, but before the Nizam could issue a firman in accordance with it, Hyderabad became a part of the Indian Union and the Constitution of India came into force. An enactment called the Waliuddowla Succession Act, 1950, was therefore passed by the Hyderabad Legislature which provided that " the claims of Mahboob Begum and Kadiran Begum and of their respective children to participate in the distribution of the matrooka of the late Nawab are hereby dismissed" and that the above decision "cannot be called in question in any court of law Held, that in singling out two groups of persons consisting of two ladies and their children out of those who claimed to be related to the late Nawab and preventing them from establishing their rights under the personal law which governed the community, in Courts of law, the Act was discriminatory ; that there was no rational or reasonable basis for the discrimination, and the Act contravened the provisions of article 14 of the Constitution and was therefore void. The analogy of private Acts of the British 405 Parliament is not helpful as the British Parliament enjoys legislative omnipotence and there are no constitutional limitations on its authority or power.

Appeal No. 446 of 1958. Appeal from the judgment and order dated April 18, 1956, of the High Court of Judicature at Madras in Tax Revision Case No. 93 of 1955. M. C. Setalvad, Attorney General of India, section Swaminathan and K. L. Mehta, for the appellants. V. K. T. Chari, Advocate General of Madras, M. M. Ismail and T. M. Sen, for the respondent. N. A. Palkhivala, J. B. Dadachanji, section N. Andley, Rameshwar Nath and P. L. Vohra, for the Intervener (Tata Loco & Engineering Co. Ltd., Bombay). March 28. The Judgment of the Court was delivered by section K. DAB, J. This is an appeal on a certificate granted by the High Court of Madras. The firm of Messrs. Ashok Leyland Ltd., Ennore, is the appellant before us. For brevity and convenience, we shall hereinafter refer to the firm as the assessee. The State of Madras through the Commercial Tax Officer, Saidapet, is the respondent before us. The assessee is a firm with its factory at Ennore in the State of Madras, where it manufactures, assembles and sells motor vehicles and spare parts and accessories thereof, through an elaborate organisation spread over several States. It is, perhaps, necessary to indicate briefly the organisational set up in order to appreciate the point on which the case was heard in the High Court and argued before us. The system of distribution of its motor vehicles, spare parts and 609 accessories at one uniform price to consumers in the various States which the assessee adopted, consisted of the appointment of a distributor (called a dealer) with a definite territorial jurisdiction, both inside and outside the State of Madras. To every such dealer it granted the sole right of selling the products of the firm within the territory allotted to him. If the territory of the dealer was outside the State of Madras, the agreement entered into by the dealer provided for the delivery of the products of the firm by consignment, by rail or steamer or road transport. The agreement specifically stipulated that the dealer must not canvass or sell the products outside the territory allotted to him, and in the event of infringement or breach of the undertaking by the dealer, the assessee was entitled to terminate the agreement forthwith. On such termination, the assessee reserved the right to call upon the dealer to return all or any of the products remaining unsold at the date of such termination. The case set up by the assessee was that a substantial number of motor vehicles and accessories thereof were consigned to the dealers in other States either by rail or steamer; but due to want of such transport facilities, a number of vehicles were also transported by road. In the year relevant to the assessment year 1952 53, the total turnover of the asaessee in respect of all its sales came to Rs. 1,43,67,007 odd. The Deputy Commercial Tax Officer, Madras, computed the taxable turnover of the assessee for that year by excluding the sum of Rs. 1,12,21,707 odd which represented the value of vehicles, spare parts, etc., sold outside the State of Madras and consigned by rail or steamer or transported by road. The balance of Rs. 31,45,299 odd was determined to be the net assessable turnover of the company. The tax levied thereon was a sum of Rs. 1,45,655 13 3 and this sum was duly paid by the assessee. Sometime thereafter, the Commercial Tax Officer, Madras, purporting to act under the powers of revision given to him by section 12 of the Madras General Sales 77 610 Tax Act, 1939 (Madras Act IX of 1939), hereinafter called the Act, called upon the assessee to produce its books of account for the purpose of satisfying himself as to the legality or propriety of the assessment made. After scrutinising the accounts and other records produced by the assessee, the Commercial Tax Officer issued a notice proposing to revise the assessment by including a sum of Rs. 42,98,068 odd on the ground that the delivery of motor vehicles, etc., in respect of sales covered by the aforesaid sum was made within the State of Madras and was therefore liable to tax under the Act. The assessee submitted its objection to the revision of the assessment and contended that on the sum of. Rs. 42 lacs odd the assessee was not liable to pay sales tax as the transactions were in the course of inter State trade and commerce. This objection was, however, overruled by the Commercial Tax Officer except to a very small extent. From that decision of the Commercial Tax Officer, an appeal was taken to the Sales Tax Appellate Tribunal, Madras, and the assessee contended in that appeal that the revision of the assessment by the Commercial Tax Officer was without, jurisdiction and that the inclusion of Rs. 42 lacs odd in the taxable turnover was contrary to the provisions of article 286 of the Constitution. The Tribunal rejected the plea of absence of jurisdiction, but held on merits that the sum of Rs. 12,48,403 odd representing the value of vehicles driven away on their own motive power through the assessee 's own drivers to the places of business of the non resident dealers was not liable to sales, tax. The assessee then preferred a revision to the High Court of Madras under section 12B(1) of the Act and repeated the contention that the sales in question were in the course of inter State trade and commerce and not liable to sales tax by reason of the provisions of article 286(2) of the Constitution. In the High Court the liability to tax was challenged by the assessee in respect of the following four items only: (1) A sum of Rs. 1,43,072 odd which represented the value of vehicles delivered ex factory to the 611 dealer 's drivers. The vehicles were driven away by those drivers after temporary registration of the vehicles in the name of the dealer, outside the State of Madras. (2) A sum of Rs. 28,01,357 odd which represented the value of vehicles delivered to the drivers of the dealers, which were driven away under the trade number of the dealers, outside the State of Madras. (3) A sum of Rs. 7,866 odd which represented the value of spare parts or other accessories delivered along with the cars. (4) A sum of Rs. 15,000 which represented the value of spare parts consigned to the dealers. These were delivered to the dealers outside the State of Madras and the consignments were sent by rail or steamer. The High Court repelled the contention of the assessee in respect of the first three item,,; aforesaid, holding that they fell outside the purview of the ban imposed by article 286(2) of the Constitution. It modified the order of the Tribunal with respect to the fourth item, as in its view that item came within the scope of article 286(2). The assessee then moved the High Court and obtained the necessary certificate under article 133 of the Constitution. When the learned Attorney General appearing for the assessee opened the appeal, he submitted in the forefront of his argument that the High Court was in error in holding that the transactions coming under the three items (1), (2) and (3) above were outside the ban imposed by article 286(2) of the ' Constitution, and contended that the transactions were within the purview of the ban. We then drew his attention to the Sales Tax Laws Validation Act, 1956 (hereinafter called the Validation Act), and asked him to consider the question whether the transactions in question came within the protection of the Validation Act, an aspect of the case which does not appear to have been considered in the High Court. The argument before us then centered round the question whether the assessment in respect of the three items came within the protection of the Validation Act, and it was conceded by the 612 learned Attorney General that if it did, no other question would survive and it would be unnecessary to determine in this appeal the true scope and effect of article 286(2) of the Constitution and whether the transactions in question came within the ban imposed thereby. On behalf of an intervener (Tata Locomotive & Engineering Co. Ltd,, Bombay) we have been pressed to decide, on merits, whether the transactions under consideration here come within the ban of article 286(2) of the Constitution, on the ground that such decision will be of assistance in a pending case to which the intervener is party. We do not think that we can do so for the benefit of the intervener. The intervener has no right to ask us to decide a question which does not fall for decision if the Validation Act applies; for it is conceded that if the Validation Act applies, that will be decisive of the whole appeal. We must, therefore, reject the plea of the intervener. We proceed now to consider the main point argued in this appeal, namely, whether the Validation Act applies to the transactions in question. It is convenient to read here section 2, which is the relevant section, of the Validation Act: "Section 2. Notwithstanding any judgment, decree or order of any court, no law of a State imposing or authorising the imposition of, a tax on the sale or purchase, of any goods where such sale or purchase took place in the course of interstate trade or commerce during the period between the 1st day of April, 1951, and the 6th day of September, 1955, shall be deemed to be invalid or ever to have been invalid merely by reason of the fact that such sale or purchase took place in the course of inter State trade or commerce; and all such taxes levied or collected or purporting to have been levied or collected during the aforesaid period, shall be deemed always to have been validly levied or collected in accordance with law". It will be noticed at once that the transactions under consideration in the present appeal came within the period mentioned in the Validation Act. being transactions of a period between April 1, 1951, and 613 March 31, 1952. Indeed, this is not disputed before us. It is also clear that the wording of a. 2 is general and wide enough to take in "the sale or purchase of any goods where such sale or purchase took place in the course of inter State trade or commerce during the period between the 1st day of April, 1951, and the 6th day of September, 1955. " The section states in effect that notwithstanding any judgment, decree or order of any court, no law of a State imposing a tax on the sale or purchase of goods referred to therein shall be deemed to be invalid or ever to have been invalid merely by reason of the fact that such sale or purchase took place in the course of inter State trade or commerce. The learned Attorney General has advanced two arguments in support of his contention that the Validation Act does not apply to the transactions under consideration here. His first argument is that the Validation Act applies only when the law of the State imposes, in express terms, a tax on the sale or purchase of any goods in the course of inter State trade or commerce. He emphasises the expression "where such sale or purchase took place in the course of inter State trade or commerce" occurring in the section and from that expression he has drawn the inference that the law must in express terms say that it is taxing transactions in the course of interState trade and commerce. His second argument is that by reason of section 22 of the Act, inserted by the amending Act of 1957, being Madras Act I of 1957, the Act imposes no tax on transactions under consideration in this appeal; it merely imposes a tax on transactions which are generally known as Explanation sales referable to the Explanation to article 286(l)(a), such as were considered in the decision of this Court in M. P. V. Sundararamier & Co. vs The State Of Andhra Pradesh & Another (1). We shall consider these two arguments one after the other. It appears to us the first argument does not correctly reflect the true scope and effect of section 2 of the Validtion Act. It is necessary, perhaps, to advert to the circumstances which led, to the enactment of (1) 1958 J.s. S.C.R. 1422 614 the Validation Act. The true meaning and scope of the Explanation to article 286(1) of the Constitution came up for consideration before this Court in The State of Bombay and Another vs The United Motors (India) Ltd and Others (1). It was therein held by the majority that though the sales falling within the Explanation would, in fact, be in the course of interState trade. they became intrastate sales by the fiction introduced by the Explanation and were liable to be taxed by the State within which the goods were delivered for consumption. Then, came the decision in The Bengal Immunity Company Limited vs The State of Bihar and Others (2) where this Court held, again by a majority, that the sales falling within the Explanation being inter State in character, could not be taxed by reason of article 286(2) unless Parliament lifted the ban, that the Explanation to article 286(l)(a) controlled only that clause and did not limit the operation of article 286(2), and that the law in this respect had not been correctly laid down in the United Motors ' case (2). The decision in The Bengal Immunity 's case (2) was rendered on September 6, 1955. The Sales Tax Validation Ordinance No. III of 1956 was promulgated on January 30, 1956, and that was later replaced by the Validation Act. The constitutionality of the Validation Act was challenged before this Court and in M. P. V. Sundararami 's case (3) this Court upheld its validity, though the sales referred to in the arguments in that case were Explanation sales. The Validation Act is legislation by Parliament, and it lifts the ban imposed by article 286(2). Clause (2) of article 286 as it stood before the Constitution (Sixth Amendment) Act, 1956, in these terms: "(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." In M. P. V. Sundraramier 's case(3) this court observed: (1) ; (2) [1955] 2 S.C.R.603 (3) 615 "Section 2 of the impugned Act which is the only substantive enactment therein makes no mention of any validation. It only provides that no law of a State imposing tax on sales shall be deemed to be invalid merely because such sales are in the course of inter State trade or commerce. The effect of this provision is merely to liberate the State laws from the fetter placed on them by article 286(2) and to enable such laws to operate on their own terms. The true scope of the impugned Act is, to adopt the language of this Court in the decisions in the United Motors case (1) and The Bengal Immunity Company 's case (2), that it lifts the ban imposed on the States against taxing inter State sales and not that it vali dates or ratifies any such law. " It should be obvious that in 1939, long before the coming into force of the Constitution, the Act could not have said in express terms that it was taxing sales in the course of inter State trade. What we have to see is that the fetter under article 286(2) having been removed, does the Act operating on its own terms affect the transactions in question even though they be in the course of inter State trade? If it does, the assessment is no longer liable to challenge on the ground of the ban imposed by article 286(2). This brings us to the second argument of the learned Attorney General. One has merely to see the definitions of 'sale ' and 'turnover ' and section 3, the charging section, to come to the conclusion that the Act operating on its own terms makes the transactions under consideration in this appeal liable to sales tax. Explanation (2) to the definition of 'sale ' says: "The sale or purchase of any goods shall be deemed, for the purposes of this Act, to have taken place in this State, wherever the contract of sale or purchase might have been made (a) if the goods were actually in this State at the time when the contract of sale or purchase in respect thereof was made, or (b) in the case the contract was for the sale on purchase of future goods by description, then, if the (1) ; (2) 616 goods are actually produced in this State at any time after the contract of sale or purchase in respect thereof was made. " There can be no doubt that the Explanation brings the transactions in question within the definition of 'sale ' under the Act. The point now is does section 22 of the Act make any difference ',? We are clearly of the opinion that it does not. A little history of that section is necessary here. Section 22 of the Act, as it stood before the amending Act of 1957, was inserted by the Adaptation of Laws (Fourth Amendment) Order, 1952, made by the President in exercise of the powers conferred on him by article 372(2) of the Constitution. The section was then almost a verbatim reproduction of article 286(l) and (2) of the Constitution. The effect of the section as it stood then, was considered in M. P. V. Sundararamier 's case (1) and it was held that it had a positive content and the Explanation in the context of section 22 (as it then stood) authorised the State of Madras to impose a tax on sales falling within its purview. Then came the Validation Act in 1956, which lifted the ban imposed by article 286(2). In 1957 new section 22 was inserted in the Act with restrospective effect from January 26, 1950, and old section 22 was repealed. The new section reads: "Section 22. Sale or purchase deemed to have taken place inside the State in certain cases (1) Any sale or purchase which took place on or before the 6th day of September, 1955, shall be deemed to have taken place inside the State if the goods have actually been delivered as a direct result of such sale or purchase for the purpose of consumption in the 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, and. be subject to tax under this Act accordingly. (2) The provisions of this section shall not affect the liability to tax of any sale or purchase under any other provision of this Act. " The argument of the learned Attorney General is that (1)[1958] S.C.R. 1422. 617 the now section which operates retrospectively from January 26, 1950, talks of sales in which the goods are delivered for consumption in the State of Madras; in other words, of Explanation sales only; therefore, the Act does not operate on sales of an interState character other than Explanation sales. We are unable to agree. First of all, sub section (2) of new section 22 makes it quite clear that the section does not affect the liability to tax of any sale or purchase under any other provision of the Act. Secondly, after Parliament had lifted the ban imposed by article 286(2), it was unnecessary to repeat the provisions of that Article in the Act and old section 22 in so far as it repeated article 286(2) became otiose. Therefore, new section 22 has not the effect of subtracting something from the power to tax conferred on the State by the charging section, section 3, read with the definition of 'sale ' in section 2(h). To repeat what we have said earlier: after the removal of the fetter of article 286 (2), the Act operating on its own terms makes the transactions in question liable to tax, and new section 22 makes no difference to that position. For these reasons, we are unable to accept as correct the arguments advanced on behalf of the assessee. In our view, the Validation Act applies and the assessment on the transactions in question cannot now be challenged on the ground alleged by the assessee. The appeal fails and is dismissed with costs. Appeal dismissed.

IN-Abs

The appellant firm had its factory in the State of Madras, where it manufactured, assembled and sold motor vehicles, spare parts and accessories. For the assessment year 1952 53, the sales tax authority computed the appellant 's taxable turnover of sales for that year excluding a sum which represented the value of vehicles etc., sold outside the State of Madras, but on revision, the taxable turnover was increased by including a sum which related to certain transactions with dealers outside the State of Madras on the ground that the sales covered thereby were made within the State of Madras and were therefore liable to tax under the Madras General Sales Tax Act, 1939. The appellant claimed that these sales were in the course of inter State trade and commerce and not liable to sales tax by reason of the provi sions of article 286(2) Of the Constitution of India. The matter was taken up to the Supreme Court and in the meantime, the Sales Tax Laws Validation Act, 1956, had been passed by Parliament. The question was whether the transactions in question, even if they were considered as having taken place in the course of inter State trade, came within the protection of the Validation Act of 1956 and, therefore, the assessment in the present case was valid. The appellant contended (1) that the Validation Act was applicable only when the law of the State imposed, in express terms, a tax on the sale or purchase of any goods in the course of inter State trade or commerce, and (2) that the new section 22 inserted in the Madras General Sales Tax Act, 1939, by Madras Act 1 of 1957, which operated retrospectively from January 26, 1950, talked of sales in which the goods were delivered for consumption in the State of Madras, and, therefore, the Validation Act did not operate on sales of an inter State character other than such sales. Held: (1) that the effect of the Sales Tax Laws Validation Act, 1956, was to liberate the State laws from the fetter placed on them by article 286(2) of the Constitution of India and enable such laws to operate on their own terms. Consequently, the transactions in question were liable to tax under the provisions 608 of the Madras General Sales Tax Act, 1939, and it was not necessary to provide in that Act in express terms that it was taxing sales in the course of the inter State trade. M. P. V. Sundararamier & Co. vs The State of Andhra Pradesh and Another, , relied on. (2) that the transactions in question came within the definition of sale in section 2(h) of the Madras General Sales Tax Act, 1939, and the power to tax conferred on the State by the charging section, section 3, was not affected by section 22 in view of sub section (2) therein.

Appeal No. 399 of 1957. Appeal from the judgment and decree dated July 27, 1954 of the High Court of Judicature at Hyderabad in Civil Appeals Nos. I and 2 of 1954 55. 619 section T. Desai, C. Krishna Reddi, T. Ramachandra Rao and M. section K. Sastri, for the appellants. Sadashiv Rao, J. B. Dadachanji and section N. Andley, for the respondent. March 28. The Judgment of the Court was delivered by WANCHOO, J. This is an appeal on a certificate granted by the former High Court of Hyderabad. A suit was brought by the respondent in 1920 with respect to village Timmapet. The case of the respondent was that the village had been granted to his ancestor Harinarayan alias Raja Nemiwant Bahadur by the Nizam in 1787. On the death of Raja Harinarayan, the village was conferred by another sanad on his son Raja Govind Narayan in 1811. Ever since then the village had continued in the possession of the descendants of Raja Govind Narayan. In 1817, Raja Govind Narayan granted this village on Tahud (i.e., lease) to Raja Rama Krishna Rao, ancestor of the defendants. Inam inquiries with respect to this village started in 1901 and then an objection was made on behalf of the appellants that the village had been granted to their ancestors by the Nizam and the respondent was only entitled to the pan mukta of the village and no more. Pan mukta means a fixed sum which is payable in perpetuity for any land granted by the Ruler or the jagirdar to any person. The respondent 's case further was that the lease money was being regularly paid, though some time before the suit there was some default. The respondent had to file a suit to recover the lease money which was decreed and the decretal amount was recovered. In 1917 disputes arose between the parties and consequently in 1918 the respondent asked the appellants to vacate the village. They, however, refused to do so. Thereupon the present suit was filed in 1920 and the respondent 's case was that the lease granted to the appellants was not a permanent lease and could only enure for the lifetime of the grantor and therefore the respondent was entitled to possession of the 620 village, particularly as the appellants had begun to assert a title adverse to the respondent. The suit was resisted by the appellants, and their main defence was that the village had been granted as bilmakta with a fixed pan makta in their favour by the Nizam and therefore the respondent was only entitled to the fixed pan makta per year and could not claim to dispossess them from the village. As an alternative, defence of limitation was also pleaded, though the written statement did not make it clear whether the bar of limitation was under article 142 or article 144 of the Limitation Act. There were other defenses also with which we are however not concerned in the present appeal. The trial court framed a large number of issues, which were answered in favour of the respondent and the suit was decreed and the plaintiff was held entitled to obtain possession of the village as well as to recover mesne profits at the rate of Rs. 931 12 0 0. section per year. On the two main defenses, the trial court held that the village had not been granted by the Nizam to the appellants as claimed by them and the appellants were liable to ejectment as they could not claim the rights of a permanent losses under the lease granted to their ancestor by the respondent 's ances tor. Further on the question of limitation, the trial court held that the suit was not barred by article 142. It does not appear that the case of adverse possession was put forward in the trial court. There were two appeals to the High Court; one of them was by the appellants and the other by the respondent. The respondent 's appeal was confined only to the rate of mesne profits while the appellants reiterated their two main contentions as to the nature of their right and limitation. The appeals were heard by a Division Bench of the High Court, the Judges composing Which however differed. Schri Ran, J., agreed with the trial court as to the nature of the rights of the 'respondent as well as on the question of limitation and was of the opinion that the appeal of the appellants should be dismissed. It appears that in the High Court a plea 621 of adverse possession was also raised in the matter of limitation; but that plea was also negatived by Schripat Rau, J. Further Schripat Rau, J., was of the View that the appeal of the respondent should be allowed and the amount of mesne profits per year should be _ raised to Rs. 4,381 12 11. The other learned Judge, Khalilulzaman Siddiqu, J., seems Lo have held in favour of the appellants both on the questions of title and adverse possession and was of the view that the suit should be dismissed in toto. There was then a reference to a third learned Judge, Ansari, J. He agreed with Schripat Rau, J., on the questions of title and limitation; but as by the time he came to deliver judgment the Hyderabad (Abolition of Jagirs) Regulation, No. LXIX of 1358 F had come into force from 1951 and possession could not be granted to the respondent, Ansari, J., held that the respondent would be entitled to the compensation payable on the abolition of jagirs. As Ansari, J., had per force to differ from Schripat Rau, J., as to the part of the relief to be granted to the respondent because of the abolition of jagirs, the case was referred to a Full Bench of three Judges in view of section 8 of the Hyderabad High Court Act. The Full Bench held that as Ansari and Schripat Rau, JJ., were in agreement on the questions of title and limitation these matters did riot fall to be decided before them and would be concluded by the judgment of Ansari, J. But on the nature of relief on which Ansari, J., per force had to differ from the view of Schripat Rau, J., the Full Bench upheld the view of Ansari, J. Thereafter the appellants applied for a certificate for leave to appeal to this Court, which was granted; and that is how the matter has come up before us. Learned counsel for the appellants has urged only two points before us. In the first place, lie submits that on the evidence it has been proved that the Nizam granted a bilmakta sanad to the appellants which included this village also and therefore the appellants were entitled to the possession of the village permanently subject only to the payment of pan 622 makta to the respondent. In the second place, he submits that even if it be held that the Nizam did not grant a bilmakta sanad including this village, the appellants had perfected their title by adverse possession to the limited right of being permanent lessees under the respondent subject to payment of a fixed amount of rent per year. The first question therefore that arises is whether the appellants ' case that this village is included in the bilmakta sanad granted to them by the Nizam and therefore by virtue of that sanad they are entitled to hold this village permanently subject only to the payment of a certain sum annually to the respondent, is proved. It is now no longer in dispute that the village was granted in jagir to the ancestors of the respondent. It is also not in dispute that in 1817 Raja Govind Narayan granted a kowl in favour of the appellants ' ancestor. Under the terms of that kowl the village was granted on Tahud (lease) for the fixed sum of Rs. 1027 10 0 per year to the appellants ' ancestor. No term is mentioned in the kowl as to its duration; but after reciting that the village had been granted on Tahud for a certain fixed amount annually, the kowl goes on to say that the grantee should with entire confidence rehabilitate old and new riots and pay the amount of Tabud annually as per fixed installments, in every crop season. As one reads the kowl, on its plain terms it cannot be read to confer on the appellants ' ancestor a permanent lease on a fixed sum which was not liable to be varied at all. But the appellants claim that they had been in uninterrupted possession since 1817 for over 100 years. on the same rent when the suit was filed and this shows that the village must have been granted to them as a permanent lease. We cannot accept this contention and the fact that the appellants and their ancestors have continued in possession over 100 years on the same rent would not make the kowl of 1817 a permanent, lease in the face of its plain terms. The courts below were therefore right in the view that the kowl does not show a grant of a permanent lease on a fixed annual payment to the appellants. 623 The appellants however relied on what happened soon after the kowl was granted to them. It appears that soon after 1817 the appellants ' ancestor made a vajab ul arz (i.e., application to the Nizam) with various prayers. One of the prayers was for grant of bilmakta sanad. This was obviously with respect to certain Government lands, which the ancestors of the appellants held. In para 6 of the vajab ul arz it is said that "in these days your devotee has regularly paid Government dues and expects that he should receive sanads of bilmakta with the seal of Diwani". In para 3 it is said that "from out of the Government Talukas whichever is entrusted on Tahud, your petitioner will pay the Tahud amount and will look after and improve the Taluka". On a fair reading of the vajabul arz there can be little doubt that the ancestor of the appellants was praying that he should be granted a bilmakta sanad of lands held by him from the Government. To this vajab ul arz was appended a list of villages which apparently the ancestor of the appellants hold. This list contained 88 villages. There is no difficulty about 85 of these villages which were apparently field by the ancestor of the appellants from the Government; but about three villages there was a special mention in the list. These were:(1) Timmapet, Jagir Raja Nemivant, Makta of Zamindar of Sugur. It may be mentioned that the ancestor of the appellants was the Zamindar of Sugur and that is how he prayed for a sanad of bilmakta; (2) the village Korotkal, attached to Jagir Bahrami, makta Zamindar Sugur; and (3) Palmur, including hamlet Gattalpalli. These three villages were obviously not of the same kind as the other 85 villages. Village Timmapet was in the jagir of the ancestor of the respondent and Could not therefore ordinarily be granted to the ancestor of the appellants. Village Korotkal was an attached jagir which has handed over to one Bakhshi Ismail Khan while village Palmur had been granted to the ancestor of the appellants. Village himself in lieu of seri. Strictly speaking these three villages which stood apart should not have been included in the list of villages for which bilmakta 624 sanad was prayed for. Anyhow the order of the Government on this vajab ul arz was that a sanad with seal of Niabat Diwani be granted. The actual sanad which was granted by virtue of this order has not been strictly proved, though a copy of it appears in a judgment copy of which has been filed. We do not therefore propose to refer to this copy. It appears however that in 1880 a bilmkta sanad was again granted by the Nizam himself to the ancestor of the appellants on the death of the previous holder. The amount of bilmakta (i.e., fixed annual payment) was fixed at Rs. 1,05,412. This amount is made up of the revenue of 85 villages out of the 88 villages which were included in the list along with the vajab ul arz. The remaining three villages which we have mentioned above, were also shown in the schedule to this sanad under the heading "Deduct 3 villages of separate Jagir". The three villages under this heading are Timmapet, Korotkal and Palmur. It is the meaning of these words under the heading of which these villages appear which; required interpretation in the present suit. The contention of the respondent was that the heading showed that the bilmakta sanad granted by the Nizam excluded these villages, for the revenue of these villages amounting to Rs. 2,101 was not included in the bilmakta amount of Rs. 1,05,412. It is further contended on behalf of the respondent that the, reason why these three villages were mentioned in this manner in the schedule attached to the bilmakta sanad was that the appellants ' ancestor had wrongly included these ' villages in his list filed with the vajab ul arz and ever, since then these villages were included in the schedule to the sanads but were always shown as deducted from the bilmakta. We are of opinion that this contention of the respondent is correct and the courts below were right in accepting the respondent 's contention in this behalf. The very fact that the revenue of these villages is not included in the bilmakta amount of Rs. 1,05,412 shows that they could not be part of the bilmakta grant by the Nizam. We cannot accept the argument on behalf of the appellants that the revenue of these villages was 625 not included because the ancestor of the appellants had to pay the amount of this revenue in the case of Timmapet and Korotkal to the jagirdars and the revenue of Palmur was given to him free in seri. The very fact that these three villages appear under the heading " 'deduct three villages of separate jagir" along with the fact that their revenue is not included in the bilmakta grant of Rs. 1,05,412 shows that they were not part of the bilmakta sanad. It is true that they have been mentioned in the schedule, and strictly speaking they should not have been so mentioned there; but the reason for that in our opinion is that the appellants ' ancestor had included them in his list and they seem to have been put down in the schedule to the sanad from that list. But the way in which they were put in the schedule to the sanad shows that they were not part of the sanad granted by the Nizam. Our attention was also drawn to the Avarja said to have been prepared in 1836 in which also these three villages are included. But Avarja is merely a paper in which a note of the sanads issued each day is mentioned. The fact therefore that these; three villages were mentioned in the Avarja can be easily explained by the fact that they were mentioned in the sanads which were prepared from the list of villages supplied by the appellants ' ancestor along with his vajab ul arz. The presence of these three villages in the Avarja would not establish that the villages were granted as bilmakta by the Nizam to the appellants ' ancestor, unless the sanads granted by the Nizam establish it. We have already examined the sanad of 1880 which is on the record and have no difficulty in agreeing with the courts below that the bilmakta sanad excluded these villages and was only confined to the remaining villages for which the appellants ' ancestor paid Rs. 1,05,412 to the Nizam as the fixed annual amount. It was urged on behalf of the appellants that the Nizam was an absolute Ruler and it Was open to him to take away any land from a jagirdar and grant it to any other person. That is undoubtedly so; but even where an absolute Ruler takes away some land from 79 626 a jagirdar and gives it to another person, it seems to us clear that he would inform the jagirdar that he had taken away in whole or in part what he had granted to him and would also make it clear by proper words in the sanad granted to the other person that he was giving him the land taken away from the jagirdar. In any case where the land was granted earlier to the jagirdar, there must be a clear indication in the sanad to another person that what had been granted to the jagirdar had been taken away and was being granted to this other person. As we read the sanad of 1880 we find no clear indication in it that the village of Timmapet which was granted along with other villages as jagir to the respondent 's ancestor was being taken away at any rate in part and that in future the respondent 's ancestor would only be entitled to a fixed sum from the appellants ' ancestor with respect to this village and no more. On the other hand, in the recital of the sanad unfortunately there is nothing clear for the words "etc. " appear therein in more than one place as to the land granted. We have therefore to turn to the schedule for whatever help we can get from it. The schedule shows that these three villages were under the heading "deduct three villages of separate jagir". From that the only inference can be that these three villages were not being included in the bilmakta sanad. In any case we cannot infer from that the Nizam was intending to take away a part of the rights of the respondent 's ancestor in village Timmapet and confer them on the appellants ' ancestor. Further there is nothing to show that the respondent 's ancestors were ever informed that the Nizam had taken away part of their rights in village Timmapet. If anything, as late as 1918 village Timmapet along with others was conferred perpetually in favour of the respondent as zat jagir subject to the payment of 2 per centum of haq malkana. At that time the appellants ' ancestor had raised some dispute about his right as bilmaktadar of Timmapet but that was left undecided. On a review therefore of the evidence in this case the conclusion is inescapable that the appellants ' ancestor was never granted bilmakata sanad by the Nizam which 627 included the village of Timmapet. Their rights in this village therefore depend entirely on the kowl of 1817, which, as we have already pointed out, did not confer a permanent lease. The case of the appellants therefore based on their title on the sanads granted to them by the Nizam must fail. We now turn to the question of limitation. The case put forward before us in that connection is that the appellants have prescribed for the limited right of being permanent lessees of this land by adverse possession and the genesis of this is traced to what happened in 1875. It appears that there was trouble between the then ancestors of the parties about this village about that time. The ancestor of the respondent appears to have made an application to the Government and the Revenue Member had issued orders for delivery of possession of this village to him. Thereupon the ancestor of the appellants made a representation to the Prime Minister against that order in which it was said that the ancestor of the respondent had conferred the said village on the ancestor of the appellants by way of bilmakta (i.e., on a fixed amount) more than eighty years ago and the ancestor of the appellants had been in possession all along and had been regularly paying the amount due; the ancestor of the appellants therefore prayed that the order of delivery of possession of the land to the respondent 's ancestor be set aside. It is remarkable that in this representation the case put forward was that the village had been granted bilmakta,by the ancestor of the respondent to the appellants ' ancestor and not by the Nizam or the Government to the appellants ' ancestor. However that may be, the Prime Minister ordered that as the ancestor of the appellants had been in possession for a long time, no order could be passed dispossessing him. The ancestor of the res pondent then tried to get this order of the Prime Minister changed but failed and in consequence the appellants ' ancestor remained in possession thereof. It is urged that this shows that the ancestor of the appellants asserted that he was entitled to possession as a permanent lessee against the respondent 's ancestor and this claim was resisted by the respondents 628 ancestor and the resistance failed. Therefore it must be held that adverse possession of this limited kind was asserted to the knowledge of the respondent 's ancestor and in consequence twelve years after 1875 the adverse title would be perfected and article 144 would bar the present suit for ejectment. There is no doubt that there can be adverse possession of a limited interest in property as well as of the full title as owner: see Sankaran vs Periasami(1); Thakore Fatehsingji Dipsangji vs Bamanji Ardeshir Dalal (2); and Shrimat Daivasikhamani Ponnambala Desikar vs Periayanan Chetti (9). The present however is a case where the original kowl was granted by a jagirdar and the question arises whether in the case of a jagir there can be adverse possession of a limited interest in the nature of a permanent lease. In that connection one has to look to the incidents of a jagir, and the first incident of a jagir is that it must be taken Prima facie as an estate granted, for life: Gulabdas Jugjivandas vs The Collector of Surat. (4) In the present. case also the indication is that the jagir that was granted to Raja Harinarayan in 1787, was for life, for we find that on the death of Raja Harinarayan a fresh sanad was granted to his son Raja Govind Narayan in 181 1. Similar conclusion can be drawn from the fact that as late as 1880 a bilmakta sanad was granted to Raja Rameshwar Rao, an ancestor of the appellants on the death of his father in spite of certain sanads in favour of previous holders of bilmakta. But the appellants contend that after 1811 no fresh sanads were granted to the descendants of Raja Govind Narayan and therefore it must be held that the jagir became hereditary and was not merely for the lifetime of the grantee after Raja Govind Narayan 's death. There is no doubt that there are no sanads on the record which might have been granted to the descendants of Raja Govind Narayan; but there is equally no evidence on behalf of the appellants that no such sanads were in fact granted to the descendants of Raja Govind Nara yan, due to change in State Policy. Reliance has been (1) Mad. 467. (2) Bom. (3) (1936) L.R. 63 I.A. Mad. (4) (1878) L.R. 6 1.A. 54. 629 placed on behalf of the appellants on a publication of the Government of Hyderabad called "Jagir Administration", Vol. I, at P. 3, where the following passage appears. "Zaot or personal grants were originally tenable for lifetime only. If, however, the Sanad conferring such grant contains any words indicative of permanency the grant was treated as one in perpetuity. Formerly on the death of the grantee, the Jagir was attached and re issued in favour of his eldest son by another Sanad. " It is urged on the basis of this that the system of attachment of jagir and reissue of new sanads in favour of the eldest son fell into disuse in Hyderabad and therefore jagirs became hereditary. In the first place this passage does not show when the system of attachment of jagir and re issue of another sanad came to an end. In the second place, even this passage shows that jagirs were tenable only for life unless there was something in the terms of jagir grant to show that it was perpetual. The jagir grant of Raja Govind Narayan is on the record and there is nothing in it to show that it was granted perpetually, Therefore, it must be held to be a grant for life time only; at any rate it is clear that the system of granting sanads on each succession was certainly in force when Raja Govind Narayan succeeded, for he was granted a fresh sanad. In his case it must therefore be held that the jagir was granted to him only for life. Reliance was also placed on Raje Vinaykrao Nemiwant Brahmin vs Raje Shriniwasrao Nemiwant Brahmin (1) where a letter of 1877 from the Government of India, Foreign Department,, is quoted as saying that "The Governor General in Council also accepts the view that these inams are held in accordance with the custom of the Hyderabad State, which permits the continuance of such jagheers to posterity, notwithstanding the absence of specific provision on the point, but at the same time reserves to the State the right of resuming such grants at pleasure. " (1) I.L.R. 630 But even this letter shows that the State has got the right to resume the grant at pleasure and if that is so it cannot be said that the jagirs granted in Hyderabad were permanent and hereditary, though it may be that a son was allowed to succeed to " 'the father in the normal course. The State however had always the right to resume the grant at pleasure. The nature of jagirs in Hyderabad came to be considered by a bench of five judges of the former High Court of Hyderabad in Ahmad un Nissa Begum vs State ( '). Ansari, J., after referring to two cases of the Privy Council of the former State of Hyderabad as it was before 1947 and certain firmans of the Ruler observed as follows as to the nature of jagirs in Hyderabad: "The cumulative effect of the authorities referred to above is that the jagir tenures in this State consisted of usufructuary rights in lands which were terminable on the death of each grantee, were inalienable during his life, the heirs of the deceased holder got the estate as fresh grantees and the right to confer the estate was vested in the Ruler and exercisable in his absolute discretion. Nevertheless, the Jagirdars had during their lives valuable rights of managing their estates, enjoying the usufructs and other important privileges which conferred considerable monetary benefits on them." This view of Ansari, J., as to the nature of jagirdari tenure was accepted by the other learned Judges composing the Bench. Therefore the mere fact that sanads granted to the successors of Raja Govind Narayan have not been produced in this case or even the fact that no such sanads were granted lo them would make no difference to the nature of the jagirdari tenure in Hyderabad. It is only in 1918 for the first time that we know that this village along with other villages was conferred in perpetuity on the respon dent. There is nothing to show that before that the respondent 's ancestors had permanent hereditary rights in the jagir. The initial presumption therefore that jagirs are only for the lifetime of the grantee must prevail in the present case till we come to the sanad of 1918. Therefore upto that time it must be (1) A.I.R. 1952 Hyd. 163, 167. 631 held that the jagirs were held by various ancestors of the respondent only for their lives. In such a case where a grant is continued in a family from generation to generation and each grantee holds it for his life the limitation against any one grantee starts to run from the date his title arose. This was recognized by the Privy Council in Jagdish Narayan vs Nawab Saeed Ahmed Khan (1), where it was observed that where each grantee holds an estate for his lifetime the limitation would start to run against an heir from the date when his title accrued on the death of the previous heir. From the very fact that the grant of a jagir is only for the life time of the grantee and that his son when he gets the jagir gets a fresh grant, it follows that it was not open to a jagirdar to make an alienation which would enure beyond his lifetime and thus a jagirdar could not grant a permanent lease, unless he was specifically entitled to do so, under the sanad or the law of the State. Similarly in such cases limitation would only run against an heir from the date when his title accrued on the death of the previous heir. Consequently the appellants cannot take advantage of what happened in 1875 in the time of Raja Ramarao as the starting point of adverse possession against the respondent. So far as the respondent is concerned, he apparently succeeded to the jagir in 1910 and in his case limitation would start from 1910. The present suit was brought in 1920 and therefore so far as the respondent is concerned, there is no question of perfecting even the limited title by adverse possession as against him. ' Learned counsel for the appellant drew our attention in this connection to the case of Daivasikhamani (2), where the Privy Council held that the suits were barred under article 144 of the Limitation Act. That was however a case where a permanent kowl of temple lands was granted by a manager. It was held in view of certain facts proved in that case that the lessee had acquired permanent rights by adverse pos session, even though the manager of a temple has no authority, except in certain circumstances, to grant a permanent lease. That case is in our opinion clearly (1) A.I.R. 1946 P.C. 59. (2) (1935)) 1 [I.L. R 632 distinguishable from the facts of the present case. It is true that the manager of a temple has generally speaking no authority except in certain circumstances to grant a permanent lease of temple property; there fore a permanent lease granted by the manager of a temple may be voidable but is not void ab initio and so unless it is avoided by the succeeding manager, it may not be rendered inoperative. Further the temple in that case was the owner of the property and there was no question of any succession from father to son. In the case of a jagir on the other hand, the holder for the time being is not the owner of the property; his son when he succeeds holds the property as a fresh grantee and not on the basis of hereditary succession. A jagirdar has no right to make a permanent alienation of any part of the jagir granted to him; if he makes a permanent alienation even by way of permanent lease the same may be good in his lifetime, but it is void and inoperative after his death; the succeeding jagirdar need not avoid it; he can just ignore it as void. Therefore, while it may be possible in the case of a permanent lease granted by a manager of a temple which is the owner of the property to prescribe for a limited permanent interest by adverse possession it would be impossible to do so in the case of a jagir, for the limitation in such a case would start to run against the heir from the date when his title accrues on the death of the previous heir and no advantage can be taken of any running of time against the previous holder of the jagir. Besides, in the case of such temple grants, long lapse of time may sometimes give rise to the inference that the alienation was in such circumstances as would justify a permanent lease. No such inference is however possible in the case of permanent leases granted by jagirdars. In this view therefore the case of the appellants that they have prescribed for the limited interest of a permanent lessee against the respondent must fail. The appeal therefore. fails and is hereby dismissed with costs. Appeal dismissed.

IN-Abs

Although title to a limited interest in property can be acquired by adverse possession, no limited interest in the nature of a permanent lease can be ordinarily acquired in a jagir which must initially be presumed to enure for the life time of the grantee unless the grant itself shows otherwise. Sankaran vs Periasami, Mad. 467, Thakore Fatehsingji Dipsangji vs Bamanji Ardeshir Dalal, Bom. 5I5, Shrimat Daivasikhamani Ponnambala Desikar vs Periayanan Chetti, (1936) L.R. 63 I.A. 261 and Gulabdas,Jugjivandas vs The Collector of Surat, (1878) L.R. 6 I A 54, referred to. Although in the former State of Hyderabad a son might in normal course be allowed to succeed to the father 's jagir, it could not be said that jagirs granted by the State were therefore permanent and hereditary in character, for the State generally .had the right to resume the grant. Raje Vinaykrao Nemiwant Brahmin vs Raje Shriniwasrao Nemiwant Brahmin, I.L.R. and Ahmad un Nissa Begum vs State, A.I.R. 1952 Hyd. 163, referred to. Where, therefore, a grant was continued in a family from generation to generation, each grantee must be taken to hold it for his life and limitation against each must start from the date of his title. Since a jagirdar could not grant a lease beyond his lifetime unless specifically empowered by the sanad or the law of the State, the period of adverse possession against one jagirdar could not be tacked to that against another for the purpose of article I44 Of the Indian Limitation Act. In this respect a jagirdar stood on a different footing from that of the manager of a temple. Jagdish Narayan vs Nawab Saeed Ahmed Khan, A.I.R. 1946 P.C. 59, referred to. Shrimat Daivasikhamani Ponnambala Desikay vs Periyannan Chetti, (1936) L.R. 63 I.A. 26i, distinguished.

minal Appeal No. 165 of 1960. Appeal by special leave from the judgment and order dated December 19, 1958, of the Allahabad High Court in Criminal Appeal No. 1010 of 1956. Jai Gopal Sethi, C. L. Sareen and R. L. Kohli, for the appellants. O. C. Mathur and C. P. Lal, for the respondent. March 28. The Judgment of the Court was delivered by RAGHUBAR DAYAL, J. This appeal, by special leave, is by four persons against the order of the High Court of Judicature at Allahabad dismissing their appeal and confirming their conviction for several offences including one under section 302 read with section 149, I.P.C., by the Sessions Judge, Saharanpur. 603 These appellants, along with three other persons, were alleged to have forcibly taken two carts loaded with sugarcane from the field of Suraj Bhan through the field of Harphool, in transporting the sugarcane from the field, about a furlong and a half away, to the public passage running by the side of Harphool 's field, and to have beaten Harphool and others on Harphool 's protesting against the conduct of the appellants ' party at the damage caused to his wheat and gram crop. Ram Chandar, one of the appellants, was armed with a hatchet (kulhari) and the others were armed with lathis. Harphool and others who came to his help struck the appellants ' party also in self defence. Harphool died as a result of the injuries received in this incident. The appellants admitted their taking the carts through Harphool 's field and alleged that at Harphool 's protest they asked to be excused, promised not to take the carts through the fields in future and pleaded for the carts being allowed to cross the very small portion of the field which remained to be covered before reaching the public passage. The accused state that in spite of all this meek conduct on their part, Harphool and his companions attacked them and that then they also struck Harphool and others in self defence. Both the learned Sessions Judge and the learned Judges of the High Court arrived at concurrent findings of fact an& held that (i) there was no passage through or along the boundary of Harphool 's field; (ii) when the carts were near the passage and Harphool protested, the appellants ' party began the attack; and (iii) the appellants ' party had no right of private defence of person but had formed an unlawful assembly with the common object of committing criminal trespass over Harphool 's field and using force to the extent of causing death, if necessary, in case they were prevented from taking the carts through the fields. They accordingly convicted the appellants of the various offences. Mr. Sethi, learned counsel for the appellants, has raised four contentions: (i) Any right of private 604 defence of property which Harphool had against the offence of criminal trespass committed by the appellants ' party, had ceased when the criminal trespass was over or when the trespassers indicated their intention to cease the criminal trespass; (ii) If one of the rioters causes injury for which the other rioters are to be liable under section 149, I.P.C., the injury must have been caused in prosecution of the common object; (iii) An assembly ceases to be an unlawful assembly after the completion of its common object and only that member of the unlawful assembly would be liable for any criminal act committed later, who has actually committed it; and (iv) The learned Judges of the High Court misdirected themselves in raising certain inferences from the facts found. It is clear, from the first three contentions raised, that they are all based on the supposition that the criminal trespass which the appellants ' party was committing had come to an end when Harphool is said to have prevented them from committing criminal trespass and that it was Harphool who began the attack. There is no such finding recorded by the High Court. The two carts had not left Harphool 's field and reached the public passage. They were inside the field when the incident took place. They were near the boundary of Harphool 's field. They must, in, the circumstances, have been several yards inside the field. Criminal trespass had not therefore come to an end and therefore Harphool had the right to prevent the appellants ' party from continuing to commit criminal trespass for whatever short distance they had still to cover before reaching the public pathway. It is true that the appellants ' party had to get out of the field and that this they could not have done without committing further criminal trespass. But it does not follow that this difficult position in which the party found itself gave them any right for insisting that they must continue the criminal trespass. They had to abide by the directions of Harphool, whatever be the degree of patience required in case they were not allowed to move in any direction in order to leave the field. If Harphool had started the attack in the 605 circumstances alleged by the appellants, there may have been some scope for saying that he acted unreasonably in taking recourse to force in preference to taking recourse to public authorities or to such action which a less obstinate person would have taken and had therefore lost any right of private defence of property against the offence of criminal trespass. We are therefore of opinion that the three propositions of law which, as abstract propositions of law, are sound to some extent, do not arise in the present case. The fourth contention is really directed against the view of the High Court that the common object of the appellants ' party was to force their way through the fields of Harphool and to use force to the extent of causing death, if necessary, and that the death of Harphool was caused in prosecution of that common object. We do not agree with the contention. It is clear from the site plan, and has been so held by the Courts below, that the appellants ' party could have taken their carts to the same public passage by going northwards from Suraj Bhan 's sugarcane field. In so doing, they would have had to cover a shorter distance up to the public pathway and would have had the necessity to trespass through one field only, and that too, of one of their own community Sandal Rajput. The other fields lying on the way were of Suraj Bhan himself. Their choosing a longer route which made them take their carts through the fields of several Sainis including Harphool, could not be justified. It must have been obvious to them that in so doing they would cause damage to the crops growing in the number of fields through which they would have to pass. Such damage must give rise to protests by the persons to whom loss is caused. It could be expected that some such persons might object to the passing of the carts and that unless they be prepared to cover back the distance to their own field, they would have to insist on proceeding through the objector 's field. Such instances must lead to a clash and to the use of violence. The objector is not expected to be prepared for such a conduct of the appellants ' party and therefore for using force. 606 The appellants ' party consisted of a number of persons one of whom was armed with a hatchet. It is therefore not unreasonable to conclude that the appellants ' party was prepared to use force against such an objector to achieve their object of taking the carts to the public pathway by a short cut. The northern route, previously mentioned, was certainly shorter to reach the public passage, but that route, along with the longer portion of the public passage to be covered before reaching the spot near which the incident took place, was longer than the westerly route through the field which the party had taken. When several persons are armed with lathis and one of them is armed with a hatchet and are agreed to use these weapons in case they are thwarted in the achievement of their object, it is by no means incorrect to conclude that they were prepared to use violence in prosecution of their common object and that they knew that in the prosecution of such common object it was likely that some one may be so injured as to die as a result of those injuries. Harphool did receive seven injuries one of which was an incised wound, bone deep, on the right side of the head. Another injury consisted of a contused wound, bone deep, on the left side of the head. Harphool died within twenty four hours of his receiving injuries. The death was due to shock and hemorrhage caused by the injuries of the skull bone and brain on account of the wounds on the head. The offence made out on account of the death of Harphool caused by the concerted acts of the members of the appellants ' party has been rightly held to be the offence of murder. In view of what we have stated we do not see any force in this appeal. It is accordingly dismissed. Appeal dismissed.

IN-Abs

The appellants one of whom was armed with hatchet and others with lathis, on being prevented by one 'H ' and his suppor ters through whose field they were committing criminal trespass with the common object to reach a public passage with two loaded carts, are alleged to have attacked 'H ' and his supporters, as 76 602 a result of which 'H ' died. The defence was that on 'H 's protest the appellants asked to be excused and pleaded to be allowed to cross the remaining small portion of the field to reach the public passage, whereupon they were attacked and in self defence they attacked back. The appellants ' case was that H 's right of private defence of the property had ceased for the reasons that the criminal trespass was over on the appellants having indicated their intention to do so, and they were no more an unlawful assembly as their common object had ceased and thereafter all were not responsible for acts of another. Held, that when a criminal trespass had been committed it did not come to an end on the trespasser 's expressing regret and then pleading to be allowed to proceed further with a view to end such a trespass. The aggrieved party had the right to prevent the trespasser from continuing to commit such further criminal trespass, and his directions had to be abided by the trespasser, whatever be the degree of patience required; the trespasser had no right to insist on proceeding further even if not allowed to move in any direction in order to leave the field. Held, further, that when several persons were with lathis and one of them was armed with hatchet and were agreed to use these weapons in case they were thwarted in the achievement of their object, it would be concluded that they were prepared to use violence in prosecution of their common object and that they knew that in the prosecution of such common object it was likely that some one might be so injured as to die as a result of those injuries.

ivil Appeal No. 34 of 1958. Appeal by special leave from the order dated July 6, 1956, of the Calcutta High Court in appeal to the section C. No. 32 of 1955. N. C. Chatterjee and D. N. Mukherjee, for the appellants. Syamdas Bhattacharya and section N. Mukherjee, for the respondents. March 29. The Judgment of the Court was delivered by GAJENDRAGADKAR, J. The short question of law which arises in this appeal is whether the Calcutta High Court had jurisdiction to extend the time for 645 furnishing security for costs of the respondents under 0. 45, r. 7, of the Code of Civil Procedure. The Calcutta High Court has held that it had no jurisdiction to extend time as prayed for by the appellants, and so the certificate already granted by it to the appellants to appeal to this Court against its own decree has been cancelled. The order canceling the said certificate has given rise to this appeal by special leave; and so the only question which we are ca. led upon to consider is one of construing 0. 45, r. 7, of the Code as well as 0. XII, r. 3, of the Supreme Court Rules. The relevant facts leading to the present controversy are not in dispute. The appellants had instituted a suit (No. 73 of 1944) in the First Additional Court of the Subordinate Judge of 24 Parganas against the six respondents. In this suit they claimed a declaration of title to the immovable property in question and prayed for recovery of possession of the said property together with mesne profits. The learned trial judge decreed the suit on March 20, 1948. Two appeals were then filed against the said decree by two sets of respondents (Appeals Nos. 111 of 1948 and 135 of 1948). Of these two appeals Appeal No. 135 of 1948 was dismissed but Appeal No. III of 1948 was partly allowed and the decree passed in favour of the appellants granting possession and mesne profits to the appellants against respondent 3 was set aside. Thereupon the appellants applied for and obtained a certificate from the Calcutta High Court to enable them to appeal to this Court. The decree under appeal was one of reversal and the valuation of the subject matter of the dispute both in the trial court and in the intended appeal before this Court exceeded the statutory limit prescribed in that behalf and so the appellants 'were in fact entitled to a certificate under article 133 (1)(a) of the Constitution. Accordingly a certificate was issued on May 18, 1956. The last date for the deposit of the security amount of Rs. 2,500 and the printing cost of Rs. 1,184 was June 29, 1956. According to the appellants owing to circumstances over which they had no control they could not deposit 646 he said two amounts on the due date. Consequently in July 4, 1956, they filed an application before the High Court praying that the requisite amounts tendered by them be accepted after condoning the delay made by them in the payment of the said amounts. This application was rejected on the ground that according to the uniform current of decisions in the said Court it had no jurisdiction to extend the time for depositing the amount of security. It is against this order that the appellants have come to this Court by special leave. O. 45, r. 7, of the Code occurs in the Chapter dealing with appeals to the Supreme Court, and it deals with the security and deposit which are required to be furnished and made on grant of certificate to a party intending to prefer an appeal to this Court. 0. 45, r. 7(l)(a), provides that where the certificate is granted the applicant shall, within ninety days or such further period, not exceeding sixty days, as the Court may upon cause shown allow, from the date of the decree complained of, or within six weeks from the date of the grant of the certificate, whichever is the later date, furnish security in cash or in Government Securities for the costs of the respondent. The word "within ninety days or such further period not exceeding sixty days" which occur in the first part of the rule have been added by Act 26 of 1920 in substitution for the words "six months" which were originally enacted in the said rule. It is common ground, and indeed it is not disputed, that prior to the amendment made in 1920 High Courts had jurisdiction to extend time for furnishing security for cogent and satisfactory reasons. In Burjore and Bhawani Pershad vs Mussumat Bhagana (1) the Privy Council had held, agreeing with the view taken by the Full Bench of the Calcutta High Court that the words in section 602 of the Code of 1877 (Act X of 1877), in regard to extending time for giving security in appeal were directive only and there was jurisdiction in the High Court to grant extension of time for cogent reason. In other words, the time of six months prescribed by the (1) [1883] L.R. 11 I.A. 7. 647 statute could not be departed from without cogent reason. As a result of this decision under the provisions of 0. 45, r. 7, as they stood until the amending ' Act 26 of 1920 was passed, all the High Courts consistently exercised their jurisdiction in the matter of furnishing securities and extended time where they were satisfied that there was a proper and valid reason to do so. The question which arises for our decision is whether by the amendment made in 1920 this position has been altered. There can be no doubt that the object of the amendment was to expedite the final decision of the appeals which were taken before the Privy Council, and so the restrictive words have now been introduced whereby the period prescribed by the first part of the rule can. not be extended beyond 150 days; but, does the use of these restrictive words indicate that there is no jurisdiction in the High Courts to extend the period for a sufficient cause ? Having regard to the fact that even before the amendment the period of six months had been indicated it seems somewhat difficult to hold that by restricting the period to 150 days by the use of the restrictive words the Legislature had intended to take away the preexisting jurisdiction of the High Courts to extend the period for a reasonable cause. The jurisdiction to enlarge the period for a good cause shown could not have been intended to be taken away by implication merely by the use of the restrictive clause introduced in the amendment. Besides, it is significant that even after the amendment there is no specific provision which provides for the effect of failure to comply with 0. 45, r. 7. Rule 8 deals with cases where security has been furnished and deposit made, and it provides that on the security being furnished and deposit made the Court shall declare the appeal admitted, give notice thereof to the respondent, transmit to the Supreme Court the record, as therein provided, and give to either party one or more authenticated copies as specified. There is no rule which prescribes the consequence of non compliance with the order made under r. 7. Failure to make this provision is not without significance because r. 11 648 expressly provides for the effect of failure to comply with the order made under r. 10. In other words, where the Court makes an order calling upon the appellant to furnish within a time to be fixed by it other and sufficient security, or to make within like time the required payment, and the appellant fails to comply with the said order, r. 11 expressly provides that on such failure of the appellant the proceeding shall be stayed and the appeal shall not proceed without an order in that behalf of the Supreme Court and in the meantime execution of the decree appealed from shall not be stayed. It would thus be seen that where the Legislature intended that failure to comply with a specific order should lead to the consequence of a specific result it has made an appropriate provision in that behalf, and so failure to make any such provision in regard to the consequence of non compliance with the order made under r. 7 may suggest that the jurisdiction of the Court to extend time was not intended to be taken away. Since it is open to the Court to extend time, the Legislature may have thought that it should be left to the discretion of the Court to decide whether the failure to comply with its order under r. 7 should be condoned and the period extended for furnishing security, or whether the default should not be condoned and the certificate should therefore be cancelled. In our opinion, therefore, reading 0. 45, r. 7, as amended along with the other relevant provisions of the said Order it would be difficult to hold that the High Court has no jurisdiction to extend time for furnishing security under the said rule. High Courts had jurisdiction to extend time prior to the amendment of 1920 and the amendment of 1920 has made no difference in that behalf. There is another statutory provision which leads to the same conclusion, and that is 0. XII, r. 3, of the Supreme Court Rules framed by this Court in exercise of its rule making powers under article 145 of the Constitution. Rule 3 reads thus: "Where an appellant, having obtained a certificate from the High Court, fails to furnish the security or make the deposit required, that Court 649 may, on its own motion or on application in that behalf made by the respondent, cancel the certificate, and may give such directions as to the costs of the ' appeal and the security entered into by the appellant as it shall think fit or make such further or other order as the justice of the case requires. " This rule corresponds exactly to r. 9 of the Privy Council Rules. On a fair construction of this rule there appears to be no doubt that if a party having obtained a certificate from the High Court fails to furnish security or to make the required deposit it is open to the High Court to adopt either of two courses; it may cancel the certificate and may give directions as to the costs of the appeal and the security entered into by the appellant or it may make such further or other order as the justice of the case may require; and that clearly suggests that the High Court has jurisdiction to consider the question as to whether the justice of the case requires that the certificate already granted should not be cancelled and further time should be given to the party to furnish the security or to make the required deposit. The last clause of r. 3 refers to such further or other order as the justice of the case requires, and that must necessarily mean an order other than, and different from, the order canceling the certificate. It is true that the intention behind this rule might have been differently and better expressed but the object of the rule is plain and unambiguous and its construction presents no difficulty whatever. Failure to furnish the security or to make the deposit in time does not inevitably and in every case lead to the cancellation of the certificate. Despite the said failure some further or other order according to the justice of the case may still be passed by the Court in its discretion, and that, in our opinion, must mean an order condoning the default and granting further time to furnish the security or to make the required deposit. If this be the true position about the effect of 0. XII, r. 3, of the Supreme Court Rules it would follow that the High Courts would have jurisdiction to extend time for furnishing security even 82 650 if r. 7 of 0. 45 after its amendment in 1920 had taken away the said jurisdiction. Section 112 of the Code expressly provides that nothing contained in the Code shall be deemed, inter alia, to interfere with any rules made by the Supreme Court, and for the time being in force, for the presentation of appeals to that Court or their conduct before that Court. Therefore, if 0. xII, r. 3, expressly recognises and gives jurisdiction to the High Courts to extend the time for furnishing the security or to make the deposit in a, proper case that provision would not be interfered with by r. 7 of 0. 45. That is how, apart from the provisions of r. 7 of 0. 45, we reach the conclusion that the Calcutta High Court had jurisdiction to extend time for furnishing the security in the present case. However, as we have already held the amendment of r. 7 of O. 45 does not really take away the preexisting jurisdiction of the High Courts to extend time and so there is complete harmony between the said rule and 0. XII, r. 3, of the Supreme Court Rules. On this question there appears to be consensus of judicial opinion in the decisions of all the High Courts in India except the Calcutta High Court which for some years past has struck a note of dissent. It is unnecessary to deal with a catena of decisions on which Mr. Chatterjee relied in support of his contentions. It would be enough merely to mention them. It appears that in some High Courts the present question was referred to a Full Bench and the decisions of the Full Bench have negatived the view which appears to have been taken by the Division Benches in the said High Courts on the earlier occasions that the High Courts had no jurisdiction to extend time (Vide: Nilkanth Balwant Natu & Ors. V. Shri Satchidanand Vidya Narsinha Bharati & Ors. (1) (Full Bench); Bishnath Singh & Ors. vs Balwant Rao Naik Kalia & Ors. (Full Bench); Gulam Hussain vs Mansurbeg & Ors. (Full Bench); Lachmeshwar Prasad Shukul vs Girdhari Lal Chaudhuri (4) (Full Bench); Ghulam Rasul V. Ghulam Qutabud din (5) (Full Bench); Thota Pitchaiah (1) Bom. (3) I.L.R. (2) I.L.R. [1939] All. 549. (4) (1040) I.L.R. 19 Pat. (5) Lah. 447. 651 & Or8. 'V. M. Vedanta Narasimhacharyulu & Ors. (1) (Full Bench); and Ismail Piperdi vs Momin Bi Bi & Ors. (2) (Full Bench). Even in Calcutta it was held by the Calcutta High Court by a Full Bench in Roy Jotindranath Chowdhury & Ors. vs Rai Prasanna Kumar Banerjee Bahadur & Ors. (3) that the High Court had power to extend time as provided by section 602 of the Code for depositing the estimated cost of translating, transcribing, indexing and transmitting to the Privy Council the records of the case under appeal, but it was added that the Court should not extend time without some cogent reason. In support of this conclusion the High Court relied upon the decision of the Privy Council in the case of Burjore and Bhawani Pershad (4). The same view was expressed by the said High Court in Harendra Lal Choudhry vs Sm. Hari Dasi Debei (5) where it was held that High Court had power to extend the time for depositing costs in Court but it ought not to do so without some cogent reasons. In reaching this conclusion the Court followed its earlier decision in the case of Roy Jyotindranath Chowdhury (3). It, however, appears that in Raj Kumar Govind Narayan Singh & Ors. V. Shamlal Singh & Ors.(6) Chief Justice Rankin and Ghose, J., took a contrary view and held that there was no jurisdiction to extend time for furnishing the security under 0. 45, r. 7, as amended in 1920. With respect, the question does not appear to have been fully argued before the Court, for the judgment does not discuss the question of construing the relevant provisions of 0. 45, r. 7 or of r. 9, of the Privy Council Rules, and indeed the earlier decisions of the Court on that point do not appear to have been cited either. Even so, this decision was subsequently followed and that led to a consistent practice in the said High Court on which the learned judges have relied in rejecting the appellant 's application for extension of time in the present case. In this connection it may be relevant. to note that when this question was raised before the (1) I.L.R. [1956] Andhra 55. (3) (5) (2) (4) (1883) L.R. 111 I. A. 7. (6) 652 Calcutta High Court again in Akimuddin Chowdhury vs Fateh Chand Mahesri & Ors. (1) Chief Justice Derbyshire was referred to the Full Bench decision of the Bombay High Court in Nilkanth Balwant Natu (2) in support of the argument that there was a jurisdiction to extend time for furnishing security, but he observed that though he had great respect for the said Full Bench decision there was a contrary decision of the Calcutta High Court in the case of Raj Kumar Govind Narayan Singh( ') and so he was bound to follow the said decision and conform to the practice prevailing in the Calcutta High Court. In our opinion, the practice prevailing in the Calcutta High Court since the decision of Chief Justice Rankin in the case of Raj Kumar Govind Narayan Singh (3) is not justified either by the provisions of 0. 45, r. 7, of the Code or 0. XII, r. 3, of the Supreme Court Rules. We must accordingly hold that the High Court was in error in holding that it had no jurisdiction to entertain the application made by the appellants to extend time for furnishing the security. On the view which it took the High Court naturally did not examine the merits of the appellants ' case that there were sufficient and cogent reasons for condoning the delay. We would therefore allow the appeal, set aside the order passed by the High Court and remit the matter to that Court for disposal of the appellants ' application in accordance with law. In the circumstances of this case there would be no order as to costs. Appeal, allowed. (1) [1939]44 C.W.N. 920. (2) Bom.

IN-Abs

On an application made by the appellant, the Calcutta High Court granted a certificate on May 18, 1956, enabling him to appeal to the Supreme Court against the judgment and decree of the High Court. Under 0. 45, r. 7(1)(a), of the Code of Civil Procedure, 1908, the appellant had to deposit the security amount for costs of the respondent within ninety days or such further period, not exceeding sixty days, as the court may upon cause shown allow, from the date of the decree complained of, or within six weeks from the date of the grant of the certificate, whichever was the later date. Being unable to deposit 644 the amount on the due date, the appellant filed an application on July 4, 1956, before the High Court praying that the amount tendered by him be accepted after condoning the delay, but the High Court rejected it on the ground that according to the uniform current of decisions of that Court it had no jurisdiction to extend the time for depositing the amount. Held, that reading 0. 45" r. 7, of the Code of Civil Procedure, 1908, along with the other relevant provisions Of the said Order, a High Court has jurisdiction to extend time for furnishing security under the rule, and that the decisions of the Calcutta High Court to the contrary are erroneous. Order XII, r. 3, of the Supreme Court Rules, 1950, expressly recognises and gives jurisdiction to the High Courts to extend the time for furnishing the security in a proper case. Raja Kumar Govind Narayan Singh and others vs Shamlal Singh and others, 1 and Akimuddin Chowdhury vs Fateh Chand Mahesri & others, , disap proved. Roy Jyotindranath Chowdhury & Ors. vs Rai Prasanna Kumar Banerjee Bahadur, (1906) 11 C.W.N. I 104, Harendra Lal Choudhry vs Sm. Hari Dasi Debei, , Nilkanth Balwant Natu & Ors. vs Shri Satchidanand Vidya Narsinha Bharati & Ors., Bom. 430, Bishnath Singh & Ors. vs Balwant Rao Naik Kalia & Ors., I.L.R. [1939] All 549, Ismail Piperdi vs Momin BiBi & Ors, , Lachmeshway Prasad Shukul vs Girdhari Lal Choudhuri, Pat. 123, Ghulam Rasul vs Ghulam Qutabud din, (1942) I.L.R.23 Lah.447, Gulam Hussain vs Mansurbeg & Ors., I.L.R. and Thota Pitchaiah Andhra 55, approved.

82 of 1959. Petition under article 32 of the Constitution of India for enforcement of Fundamental Rights. 519 section K. Kapur, Jai Gopal Chagnani, K. K. Jain and B. P. Maheshwari, for the petitioners. C. K. Daphtary, Solicitor General of India, G. C. Kasliwal, Advocate General, Rajasthan and D. Gupta, ' for the respondent. March 22. The Judgment of the Court was delivered by HIDAYATULLAH, J. This is a petition under article 32 of the Constitution. The petitioners, who are seven in number, challenge as unconstitutional and ultra vires certain provisions of the Rajasthan Passengers and Goods Taxation Act, 1959, the Rajasthan Passengers and Goods Taxation Rules, 1959, and a notification issued under R. 8. For brevity, we will refer to them in this judgment, as the Act, the Rules and the notification respectively. The first petitioner is a registered firm, petitioners Nos. 2 to 6 are the partners of that firm, and petitioner No. 7 is the General Manager of the firm. Petitioner No. 7 holds a public carrier permit for the whole of Rajasthan in his individual name. The petitioners also hold 59 stage carriage permits from the Regional Transport Authority, Jodhpur, for diverse routes over roads which have different kinds of surfaces, some being sandy or katcha and others, metalled., tarred, etc. The Act was passed in 1959 for levying a tax on passengers and goods carried by road in motor vehicles. The power to enact the Act purports to be derived from Entry No. 56 of the State List in Sch. VII to the Constitution, which reads: "156. Taxes on goods and passengers carried by road or on inland waterways. " The Act received the assent of the President on April 27, 19.59, and was published in the Rajasthan Gazette on April 30, 1959. The same day, the Rules framed in exercise of the powers conferred by section 21 of the Act were also published, and the notification was also issued. The Rules were subsequently amended, and we are concerned with the Rules, as amended. Before we deal with the case further, it is convenient to see how the Act is constructed and what the 520 Rules and the notification provide. The Act, which consists of 21, sections, came into force in the whole of the State of Rajasthan on May 1, 1959. The Act contains the usual provisions to be found in all taxing statutes about appeals, revision, offences and penalties, power to compound offences, recovery of tax as arrears of land revenue, bar of proceedings, exclusion of the jurisdiction of Civil Courts, refunds and power to make rules, to which detailed reference need not be made. ' We are only concerned with the imposition of the tax and the mode of its recovery, and will refer to those provisions which are relevant. Section 3 is the charging section, and section 4 deals with the method of collection of the tax. Since these sections are the main subject of attack, we quote them in full: "3. Levy of tax. (1) There ' shall be levied, charged and paid to the State Government, a tax on all fares and freights in respect of all passengers carried and goods transported by motor vehicles 'at such rate not exceeding one eighth of the value of the fare or freight, in the case of cemented, tarred, asphalted, metalled, gravel and kankar roads and not exceeding one twelfth of such value in other cases, as may be notified by the State Government from time to time subject to a minimum of one naya paisa in any one case, the amount of tax being calculated to the nearest nays paisa. Explanation. When passengers are carried and goods are transported by a motor vehicle, and no fare or freight has been charged, the tax shall be levied and paid as if such passengers were carried or goods transported at the normal rate prevalent on the route. (2) Where any fare or freight charged is a lump sum paid by a person on account of a season ticket or as subscription or contribution for any privilege, right or facility which is combined. with the right of such person being carried or his goods transported by a motor vehicle without any further payment or at a reduced charge, the tax shall be levied on the amount of such lump sum or on such amount as appears to the prescribed authority to be fair and 521 equitable having regard to the fare or freight fixed by a competent authority under the Motor Vehicles Act, 1939(Central Act 4 of 1939). (3) Where passengers are carried or goods transported by a motor vehicle from any place outside the State to any place within the State, or from any place within the State to any place outside the State, the tax shall be payable in respect of the distance covered within the State at the rate laid down in sub section (1) and shall be calculated on such amount as distance covered in the State bears to the total distance of the journey: Provided that where passengers are carried or goods transported by a motor vehicle from any place within the State to any other place within the State through the intervening territory of another State, the tax shall be levied on the full amount of the fare or freight payable for the entire journey and the owner shall issue a single ticket or receipt, as the case may be, accordingly. (4) Method of collection of tax. The tax shall be collected by the owner of the motor vehicle and paid to the State Government in the prescribed manner: Provided that in case of public carriers the State Government may accept a lump sum in lieu of the tax chargeable on freight in the manner prescribed: Provided further that in case of contract carriages the State Government may accept a lump sum in lieu of the tax chargeable on fare in the manner prescribed. " Section 5 lays down the method of levy, and enjoins the issuance of a ticket showing the tax paid of a receipt showing the freight charged and the tax paid. It includes a proviso that in the case of passengers the tax becomes chargeable only on entry in the State, if the journey began outside the State. Section 6 requires the owner to keep accounts and to submit periodic returns and provides for levy of penal ties in case of failure, which penalties are laid down in section 8. Section 7 deals with the appointment of taxing authorities, and a. 12 gives the power of entry the 522 officers into vehicles, garages, and offices for inspection and checking. Section 10 enjoins upon the owners the duty of furnishing tables of fares and freights, time tables,, etc. Section 9 enables the State Government to grant to any person or class of persons,. exemption from all or any of the provisions of the Act. The Rules prescribe those matters which are required under the Act to be prescribed by the Rules. It is not necessary to refer to them beyond Rules 8 and 8 A, which have been challenged. Rule 8(i) prescribes the method of payment of tax by means of stamps to be affixed to the tickets, and the second proviso is to the following effect: "Provided further that the tax payable under the Act on fare by the owner of a motor cycle, rickshaw or a motor cab shall be paid to the State Government in lump sum, of which the amount shall be fixed by the State Government from time to time by, Notification in this behalf." Rule 8(ii) then provides: "The owner of a public carrier shall pay to the State Government a lump sum in lieu of the tax ,chargeable under the Act on freight and the amount of such lump sum shall be fixed by the State Government from time to time by Notification in this behalf. " Rule 8 A, in so far as material to this case, reads: "Provisions for payment of lump sum in lieu of tax on fare or freight.((1) In cases covered by the second. proviso to sub rule (1) of rule 8 and by subrule (ii) of that rule the lump sum fixed by the State Government as payable in lieu of the tax on fare or freight, as the case may be, shall be deposited in cash into a Government Treasury or a Sub Treasury in equal quarterly instalments payable within 15 days from the 31st day of March, the 30th day of June, the 30th day of September and the 31st day of December every year; and in case of such vehicles not registered in Rajasthan to the incharge of the check post or barrier at the time of their entry into the State of Rajasthan or to the officer of the Excise and Taxation Department nearest to the point of 523 entry into the State and having jurisdiction over that area: Provided that Provided that (a) for the quarter ending on the 30th day of June ', 1959, such payment shall be made for the months of May and June, 1959, at the rate of 1/12 of the said sum for each month, (b) where the owner has not plied his vehicle for the entire quarter immediately preceding any of the aforesaid dates a proportionate decrease in the amount due for that quarter may be made, (c) if the owner ceases to ply his vehicle on a date preceding any of the aforesaid dates, the proportionate amount for the quarter shall be paid by him immediately upon such cessation, and (d) where the owner has not plied his vehicle for a continuous period of not less than three months and produces a certificate from the authority competent under the Rajasthan Motor Vehicles Taxation Act, 1951, or the rules made thereunder to the effect that he has been refunded the tax for that period under section 7 of the said Act, no amount by way of tax under the Act shall be payable for such period. (2) The owner shall inform the Assessing Authority as soon as his vehicle goes out of use. When the vehicle is again put on the road, an intimation to that effect shall be sent to the Assessing Authority immediately. " The notification which was issued under R. 8 prescribing lump sum rates, is as follows: "Jaipur, April 30, 1959 No. F. 15(5) E & T/59. In pursuance of rule 8 of the Rajasthan Passengers and Goods Taxation Rules, 1959, the Government of Rajasthan hereby directs that the tax chargeable on fare or freight in respect of the following cl. was of Motor Vehicles, shall be paid in lump sum of which the amount is mentioned opposite each such class: 3. Public carriers (Goods Vehicles): (a) Holding a general permit under the , to use all roads in Rajasthan; 524 (i) Load carrying capacity below 5 Tons Rs. 420 per annum. (ii) Load carrying capacity 5 Tons and above . Rs. 540 per annum. (b) Holding a permit under the , for plying within the limits of any region or on fixed routes in any one region: (i)Load carrying capacity below 5 Tons . Rs. 360 per annum. (ii) Load carrying capacity 5 Tons and above Rs. 480 per annum. "4 Public Carriers (Goods Vehicles) plying on hire on temporary permits under the . (b) Public Carriers (Goods Vehicles) d(i) Load carrying capacity below 5 Tons . Rs. 2 for each calendar day (ii) Load carrying capacity 5 Tons and above. Rs. 4 for each calendar day This shall have effect on and from the 1st May, 1959" The petitioners challenged the Act, the Rules and the notification from many angles, in the petition; but at the hearing before us, the arguments were more restrained. The main objection to the Act is that the tax has not been laid upon "passengers and goods" as authorised by Entry No. 56 but upon "fares and freights", which are different entities, and in support of the contention that there is a difference, reference is made to Entry No. 89 of the Union List, where power is conferred to tax "fares and freights". It is submitted that a tax on fares and freights being a different tax, cannot be levied under the Entry, and thus, the tax is without authority of law. The Act and the Rules are further challenged on the grounds that they are repugnant to articles 301 and 304 as being a restriction upon inter State trade, commerce and intercourse, to article 19 as involving an unreasonable restriction upon the business of the petitioners, and also to article 14 as discriminating between this mode of transport and the Railways. The Act is further challenged on the ground that it concedes to the State 525 Government the power to fix the amount of lump sum payment without guidance. The rates and lump sum payment are challenged because they involve discrimination between routes involving roads of different surfaces. Rules 8 and 8 A and the notification are challenged as, it is submitted, they go beyond the Act by making the lump sum payment compulsory, even though under the Act it is optional, and involve payment of tax even when no passengers or goods are transported. Lastly, it is said that by making tax payable even though the route between two intra State point passes outside the State, the Act has an extra territorial operation which is ultra vires the legislature. The first and the 'Main contention is that the Act in the guise of taxing passengers and goods, taxes really the income of the petitioners, or, at any rate, fares and freights, and is thus unconstitutional. It is argued that the tax is borne by the operators because of competition with the Railways. That the petitioners are required to bear the tax themselves to stand competition with the Railways is a matter of policy ', which the petitioners follow and is not something which flows inevitably from the provisions of the Act. We do not agree that the Act, in its pith, and substance, lays the tax upon income and not upon passengers and goods. Section 3, in terms, speaks of the charge of the tax "in respect of all passengers carried and goods transported by motor vehicles", and though the measure of the tax is furnished by the amount of fare and freight charged. it does not cease to be a tax on passengers and goods. The Explanation to section 3(1) lays down that even if passengers are carried or goods transported without the charge of fare or freight,, the ' tax has to be paid as if fare or freight has been charged. This clearly shows that the incidence of the tax is upon passengers and goods, though the amount of the. tax is measured by the fares and freights. A similar argument was not accepted by the Madras High Court in Mathurai vs State of Madras (1), and the same view was expressed in Atma Ram Budhia vs State of Bihar (2). In our opinion, the charging section does (1) I.L.R. (2) (1952) I.L.R 31 Pat 493 (S.B.). 526 not go outside Entry No. 56. The tax is still on passengers and goods, though what it is to be is deter,mined by the amount of fare or freight. It is clear that if the tax were laid on passengers irrespective of the distance travelled by them, it would lead to anomalies if the amount charged be the same in every case. This if; additionally clear in the case of goods where the weight, bulk or nature of the goods may be different, and a scale of payments must inevitably be devised. Though the tax is laid on passengers and goods, the amount varies in the case of passengers according to the distance travelled, and in the case of goods because the freight must necessarily differ on account of weight, bulk and nature of the goods transported. The tax, however, is still a tax on passengers and goods, and the argument that it is not so, is not sound. We are also of opinion that no inter State trade, commerce or intercourse is affected. The tax is for purposes of State, and falls upon passengers and goods carried by motor vehicles within the State. No doubt, it falls upon passengers and goods proceeding to or from an extra State point but it is limited only to the fare and freight proportionate to the route within the State. For this purpose, there is an elaborate scheme in R. 8 A to avoid a charge of tax on that portion of the route which lies outside the State. There is thus no tax on fares and freights attributable to routes outside the State except in one instance which is contemplated by the proviso to sub a. (3) of section 3 and to which reference will be made separately. In our opinion, the levy of tax cannot be said to offend articles 301 and 304 of the Constitution. The next contention is that the Act allows an option to pay a lump sum in lieu of the tax, but Rules 8 and 8 A and the notification make the payment of the lump sum compulsory. There is no doubt that ex facie the two provisos to a. 4 employ language which is permissive, while the two Rules and the notification employ language which is imperative. The two provisos to a. 4 are enabling, and thereby authorise the State Government to accept a lump sum payment in lieu of the tax actually chargeable. The 527 word "accept" shows that the election to pay a lump sum is with the taxpayer, who may choose one method of payment or the other. The inclusion of such a provision is designed to promote easy observance of the Act and also its easy enforcement. The charge of tax calculated on fares and freights involves difficulties for the operators who have to keep accounts and also difficulties for the taxing authorities, who have to maintain constant checks and inspections. The lump sum payment is a convenient mode by which an amount is payable per year irrespective of whether the tax would be more or less if calculated on actual fares or freights. The operators pay the lump sum if they so choose, to avoid having to maintain accounts and to file returns, and the Government accepts it to avoid having to inspect accounts and to keep a check. The rates which are prescribed for a lump sum payment per year are for those who wish to avail of them. It is, however, contended that though the section creates an option, the Rules and the notification make the payment compulsory, and attention is drawn to the word "shall" used both in Rules 8 and 8 A and the notification, whereas the words in the two provisos to section 4 are "may accept". The word "shall" is ordinarily mandatory, but it is sometimes not so interpreted if the context or the intention otherwise demands. In re Lord Thurlow Ex Parte Official Receiver (1), Lord Esher, M. R., observed at p. 729 that "the word 'shall ' is not always obligatory. It may be directory", and Lopes L. J., at p. 731 added: "It is clear that the word 'shall ' is not always used in a mandatory sense. There is abundance of authority to the contrary in cases where it has been held to be directory only". It was thus that the word 'shall ' was held to be directory only, in that case, by Coutts Trotter, C. J., in Manikkam Pattar vs Nanchappa Chettiar (2), by Russel, J., in In re Rustom (3), by Venkatasubba Rao, J., (1) (1895) 1 Q.B 724 (2) (3) Bom. 396; 528 in Jethaji Peraji Firm vs Krishnayya (1) and by the Judicial Committee in Burjore and Bhavani Pershad V. Mussumat Bhagana (2). Now, Rules 8 and 8 A and the notification only lay down what lump sum payment has to be in each case, if a lump sum is being paid. The mandatory language is used to fix peremptorily the amount of the lump sum. Rules 8 and 8 A and the notification cannot be said to overreach the section to which they are subordinate and from which they must take their colour and meaning. If the Act creates an option, it cannot be negatived by the Rules. The Act and the Rules must be read harmoniously, and reading them so, it is plain that the apparent mandatory language of the Rules and the notification still retains the permissive character of the section, but only lays down what the amount of the lump sum must be, if lump sum payment is made in lieu of payment of the tax calculated on actual fares and freights. If the two Rules and the notification are read in this way, the mandatory language is limited to the prescribing of the lump sum rates. In our opinion, the two Rules and the notification are not void and contradictory of the Act. It is contended that the power to fix lump sums in lieu of tax has been conferred upon Government without guidance, and is, therefore, unconstitutional. It is also urged that the levy of a lump sum leads to the result that even if passengers or goods are not transported, the tax is still payable. These arguments, in our opinion, cannot be accepted. The learned Advocate General pointed out that the lump sum rates work out at a very low figure, the minimum being less than Re. 1/ per day and the maximum, Rs. 1.50 nP. per day. The rates are no doubt very reasonable, but this hardly meets the argument of the petitioners. There are, however, good reasons for upholding the fixation of lump sums. The payment of the lump sum is not obligatory, and a person can elect to pay tax calculated on actual fares and freights. (1) (1929) I.L.R , 656. (2) (1883) L.R. 11 I. A. 7. 529 The fares and freights are fixed by competent authority under the , and that takes into account the average earnings, and the lump sum is fixed as an average of what tax would be realised if calculated on actual fares and freights. There is no compulsion for any operator to elect to pay a lump sum if he does not choose to do so. Nor is the argument that there may be. vacant periods when no passengers or goods are transported but the tax is payable, is of any force, because there may be days when the business done might result in tax in excess of the lump sum payable. The lump sum figure is based on averages, and cannot be impeached by reference to a possibility that on some days no business might be done. The next contention that there is discrimination between road transport and rail transport is also without force. The entry in the State List is limited to a tax on passengers and goods transported by road or inland waterways. , The comparison with Railways is not admissible, because tax on railway fares and freights is a Union subject, and is not available to the State Legislature. There is thus a clear classification made by the Constitution itself. No discrimination between operators of public motor vehicles using roads has been pointed out, and all operators are equally affected by the, Act. Some manner of support for the argument was sought from section 9, where the State Government is empowered to grant exemption from the Act by general or specific order to any person or class of persons. But we were informed that no exemption has been granted except to hospitals or charities. It is next urged that the imposition of a higher rate of tax for cemented, tarred, asphalted, metalled, gravel and kankar roads than that for other roads discriminates between operator, This argument overlooks the very object and purpose of a tax. As is well known, taxes are burdens or charges imposed by legislative power upon persons or property to raise money for public purposes. The power to tax is thus 67 530 indispensable to any good government, and the imposition of the tax is justified on the assumption of a return in the shape of conveniences. If this be the true import of a tax, it is but natural that taxes will be graded according as they involve more or less of such conveniences. They will be heavy in case of roads requiring greater expenditure to construct and to maintain, than in case of roads not requiring such expenditure. All operators using the better kind of roads have to pay the heavier tax, and there is no discrimination between them as a class. Discrimination can only be found if it exists between persons who are comparable, and there is no comparison between persons using the better kind of roads and those who use roads which are not so good. It is the cost of construction and maintenance which makes the difference in the tax, and no case of discrimination can be said to be made out. The last contention is that the proviso to sub section (3) of section 3 is extra territorial in nature, because it makes the tax payable on fares and freights attributable to the territory of another State when the route passes through such territory, even though the journey starts and ends in Rajasthan. We were informed that now there are no such routes, but even otherwise, such portions must have been very short and negligible. No affidavit was sworn to show how many such routes were involved and what their extent was, and in view of lack of adequate averments, we must reject the contention. In the result, the petition fails, and is dismissed with costs. Petition dismissed.

IN-Abs

The petitioners who were partners of a registered firm hold ing public carrier and stage carriage permits challenged the constutionality of certain provisions of the Rajasthan Passengers and Goods Taxation Act, 1959, the Rajasthan Passengers and Goods Taxation Rules, 959, and a notification issued under r. 8. The Act was passed for levying a tax on passengers and goods 518 carried by road in motor vehicles the power to enact being derived from Entry 56 of the State List in Sch. VII of the Constitution. Section 3(4) of the Act prescribed the method of collection of the tax and provided that the State Government may accept a lump sum in lieu of the tax chargeable". Rule 8(i) prescribed the method of payment and provided that the tax "shall be paid in lump sum" and the notification in question prescribed the rates of the tax. Held, that the incidence of the tax was upon "passengers and goods" and not upon income of the petitioners though the amount of the tax was measured by the fares and freights. The charging section, namely, section 3 did not go outside Entry 56. Mathurai vs State of Madras, I.L.R. , Alma Ram Budhia vs State of Bihar, Pat. 493, referred to. The tax did not offend articles 301 and 304 of the Constitution and no inter State trade, commerce or intercourse was affected by it. Although the tax fell upon passengers and goods proceeding to or from an extra State point, it was limited only to the fare and freight proportionate to the route within the State. The word "shall" is ordinarily mandatory but it is sometimes interpreted as directory, and in the present case the word "shall" used in rr. 8 and 8A and the notification should be interpreted as directory as section 4 of the Act from which the Rules and the notification derive their authority, creates an option by using the words "may accept". The Act, the Rules and the notification must be read harmoniously. The mandatory language was used to fix peremptorily the amount of the lump sum if paid in lieu of the tax. In Re Lord Thurlow Ex Parte Official Receiver, (1895) 1 Q.B. 724, Mannikam Patter vs Nanchappa Chettiar, (1928) M.W.N. 441, In re Rustom, 369, jethaji Peraji Firm v: Krishnayya, Mad. 648 and Burjore and Bhavant Pershad vs Mussumat Bhagana, (1883) L.R. II I.A. 7, followed. The lump sum figure was based on averages and could not be impeached by reference to a possibility that on some days no business might be done. Comparison with Railways which is a union subject was not admissible. There was no discrimination between operators of public motor vehicles using roads all of whom were affected by the Act, There could be no comparison between persons using better kind of roads and those using roads which were not so good. All operators using better kind of roads had to pay heavier tax, and there was no discrimination between them as a class.

Appeal No.193 of 1958. Appeal by special leave from the judgment and decree dated October 3, 1955, of the High Court of Judicature, Madhya Bharat, Indore, in Civil First Appeal No. 58 of 1952. C. B. Aggarwala and Bhagwan Das Jain, for the appellant. Radhey Lal Aggarwal and A. G. Ratnaparkhi, for respondent No. 1. 1961. March 29. The Judgment of the Court was delivered by WANCHOO, J. This is an appeal by special leave from the judgment of the High Court of Madhya Bharat. A suit was filed by firm Messrs. Harishchandra Dwarkadas (hereinafter called the respondent) against the appellant firm Messrs. Murlidhar Chiranjilal and one Babulal. The case of the respondent was that a contract had been entered into between the appellant and the respondent through Babulal for sale of certain canvas at Re. I per yard. The delivery was to be made through railway receipt for Calcutta f. o. r. Kanpur. The cost of transport from Kanpur to Calcutta and the labour charges in that connection were to be borne by the respondent. It was also agreed that the railway receipt would be delivered on August 5, 1947. The appellant however failed to 655 deliver the railway receipt and informed the respondent on August 8, 1947, that as booking from Kanpur to Calcutta was closed the contract had become impossible of performance; consequently the appellant cancelled the contract and returned the advance that had been received. The respondent did not accept that the contract had become impossible of performance and informed the appellant that it had committed a breach of the contract and was thus liable in damages. After further exchange of notices between the parties, the present suit was filed in November, 1947. Written statements were filed both by the appellant and Babulal. The contention of Babulal was that the contract had become incapable of performance and was therefore rightly rescinded. Further Babulal contended that he was not in any case liable to pay any damages. The appellant on the other hand denied all knowledge of the contract and did not admit that it was liable to pay any damages. Certain other pleas were raised by the appellant with which we are however not concerned in the present appeal. Three main questions arose for determination on the pleadings of the parties. The first was whether Babulal had acted as agent of the appellant in the matter of this contract; the second was whether the contract had become impossible of performance because the booking of goods from Kanpur to Calcutta was stopped; and the last was whether the respondent was entitled to damages at the rate claimed by it. The trial court held that Babulal had acted as the agent of the appellant in the matter of the contract and the appellant was therefore bound by it. It further hold that the contract had become impossible of performance. Lastly it hold that it was the respondent 's duty when the appellant had failed to perform the contract to buy the goods in Kanpur and the respondent had failed to prove the rate prevalent in Kanpur on the date of the breach (namely, August 5, 1947) and therefore was not entitled to any damages. On this view the suit was dismissed. The respondent went in appeal to the High Court 656 and the two main questions that arose there were about the impossibility of the performance of the contract and the liability of the appellant for damages. The High Court held that the contract had not become impossible of performance as it had not been proved that the booking between Kanpur and Calcutta was closed at the relevant time. It further held that the respondent was entitled to damages on the basis of the rate prevalent in Calcutta on the date of breach and after making certain deductions decreed the suit for Rs. 16,946. Thereupon there was an application by the appellant for a certificate to appeal to this Court, which was rejected. This was followed by an application to this Court for special leave which was granted; and that is how the matter has come up before us. The same two questions which were in dispute before the High Court have been raised before us on behalf of the appellant. We think it unnecessary to decide whether the contract had become impossible of performance, as we have come to the conclusion that the appeal must succeed on the other point raised on behalf of the appellant. The necessary facts in that connection are these: The contract was to be performed by delivery of railway receipt f. o. r. Kanpur by the appellant to the respondent on August 5, 1947. This was not done and therefore there was undoubtedly a breach of the contract on that date. The question therefore that arises is whether the respondent has proved the damages which it claims to be entitled to for the breach. The respondent 's evidence on this point was that it proved the rate of coloured canvas in Calcutta on or about the date of the breach. This rate was Rs. 1 8 3 per yard and the respondent claimed that it was therefore entitled to damages at the rate of Re. 0 8 3 per yard, as the contract rate settled between the parties was R.s. 1 per yard, The quantum of damages in a case of this kind has to be determined under section 73 of the Contract Act, No. IX of 1872. The relevant part of it is as follows: 657 "When a contract has been broken, the party who suffers by such breach is entitled to receive, from the party who has broken the contract, compensation for any loss or damage caused to him thereby, which naturally arose in the usual course of things from such breach, or which the parties knew, when they made the contract, to be likely to result from the breach of it. " Explanation In estimating the loss or damage arising from a breach of contract, the means which existed of remedying the inconvenience caused by the non performance of the contract must be taken into account. " The contention on behalf of the appellant is that the contract was for delivery f. o. r. Kanpur and the respondent had therefore to prove the rate of plain (not coloured) canvas at Kanpur on or about the date of breach to be entitled to any damages at all. The respondent admittedly has not proved the rate of such canvas prevalent in Kanpur on or about the date of breach and therefore it was not entitled to any damages at all, for there is no measure for arriving at the quantum of damages on the record in this case. Where goods are available in the market, it is the difference between the market price on the date of the breach and the contract price which is the measure of damages. The appellant therefore contends that as it is not the case of the respondent that similar canvas was not available in the market at Kanpur on or about the (late of breach, it was the duty of the respondent to buy the canvas in Kanpur and rail it for Calcutta and if it suffered any damage because of the rise in price over the contract price on that account it would be entitled to such damages. But it has failed to prove the rate of similar canvas in Kanpur on the relevant date. There is thus no way in which it can be found that the respondent suffered any damage by the breach of this contract. The two principles on which damages in such cases are calculated are well settled. The first is that, as far as possible, he who has proved a breach of a bargain . 83 658 to supply what he contracted to get is to be placed, as far as money can do it, in as good a situation as if the contract had been performed; but this principle is qualified by a second, which imposes on a plaintiff the duty of taking all reasonable step" to mitigate the loss consequent on the breach, and debars him from claiming any part of the damage which is due to his neglect to take such steps: (British Westinghouse Electric and Manufacturing Company Limited vs Underground Electric Railways Company of London (1)). These two principles also follow from the law as laid down in section 73 read with the Explanation thereof If therefore the contract was to be performed at Kanpur it was the respondent 's duty to buy the goods in Kanpur and rail them to Calcutta on the date of the breach and if it suffered any damage thereby because of the rise in price on the date of the breach as compared to the contract price, it would be entitled to be reimbursed for the loss. Even if the respondent did not actually buy them in the market at Kanpur on the date of breach it would be entitled to damages on proof of the rate for similar canvas prevalent in Kanpur on the date of breach, if that rate was above the contracted rate resulting in loss to it. Bat the respondent did not make any attempt to prove the rate for similar canvas prevalent in Kanpur on the date of breach. Therefore it would obviously be not entitled to any damages at all, for on this state of the evidence it could not be said that any damage naturally arose in the usual course of things. But the learned counsel for the respondent relies on that part of section 73 which says that dam ages may be measured by what the parties knew when they made the contract to be likely to result from the breach of it. It is contended that the contract clearly showed that the goods were to be transported to and sold in Calcutta and therefore it was the price in Calcutta which would have to be taken into account in arriving at the measure of damages for the parties knew when they made the contract that the goods were to be sold in Calcutta. Reliance in this connection is placed on (1) 689. 659 two cases, the first of which is Re. R. and H. Hall Ltd. and W. H. Pim (Junior) & Co. 's Arbitration (1). In that case it was held that damages recoverable ' by the buyers should not be limited merely to the difference between the contract price and the market price on the date of breach but should include both the buyers ' own loss of profit on the resale and the damages for which they would be liable for their breach of the contract of resale, because such damages must reason ably be supposed to have been in the contemplation of the parties at the time the contract was made since the contract itself expressly provided for are sale before delivery, and because the parties knew that it was not unlikely that such resale would occur. 'That was a case where the seller sold unspecified cargo of Australian wheat at a fixed price. The contract provided that notice of appropriation to the contract of a specific cargo in a specific ship should be given within a specified time and also contained express provisions as to what should be done in various circumstances if the cargo should be resold one or more times before delivery. That was thus a case of a special type in which both buyers and seller knew at the time the contract was made that there was an even chance that the buyers could resell the cargo before delivery and not retain it themselves. The second case on which reliance was placed is Victoria Laundry (Windsor) Ltd. vs Newman Industries Ltd, (2). That was a case of a boiler being sold to a laundry and it was held that damages for loss of profit were recoverable if it was apparent to the defendant as reasonable persons that the delay in delivery was liable to lead to such loss to the plaintiffs. These two cases exemplify that provision of section 73 of the Contract Act, which provides that the measure of damages in certain circumstances may be what the parties knew when they made the contract to be likely to result from the breach of it. But they are cases of a special type; in one case the parties knew that goods purchased were likely to be resold before delivery and therefore any loss by the breach of contract eventually (1) (2) 660 may include loss that may have been suffered by the buyers because of the failure to honour the intermediate contract of resale made by them; in the other the goods were purchased by the party for his own business for a particular purpose which the sellers were expected to know and if any loss resulted from the delay in the supply the sellers would be liable for that loss also, if they had knowledge that such loss was likely to result. The question is whether the present is a case like these two cases at all. It is urged on behalf of the respondent that the seller knew that the goods were to be sent to Calcutta; therefore it should be presumed to know that the goods would be sold in Calcutta and any loss of profit to the buyer resulting from the difference between the rate in Calcutta on the date of the breach and the contract rate would be the measure of damages. Now there is no dispute that the buyer had purchased canvas in this case for resale; but we cannot infer from the mere fact that the goods were to be booked for Calcutta that the seller knew that the goods were for resale in Calcutta only. As a matter of fact it cannot be denied that it was open to the buyer in this case to sell the railway receipt as soon at it was received in Kanpnr and there can be no inference from the mere fact that the goods were to be sent to Calcutta that they were meant only for sale in Calcutta. It was open to the buyer to sell them any where it liked. Therefore this is not a case where it can be said that the parties knew when they made the contract that the goods were meant for sale in Calcutta alone and thus the difference between the price in Calcutta at the date of the breach and the contract price would be the measure of damages as the likely result from the breach. The contract was for delivery for Kanpur and was an ordinary contract in which it was open to the buyer to sell the goods where it liked. We may in this connection refer to the following observations in Chao and others vs British Traders and Shippers Ltd. (1), which are, apposite to the facts of the present case: (1) ,797. 661 "It is true that the defendants knew that the plaintiffs were merchants and, therefore, had bought for resale, but every one who sells to a merchant knows that he has bought for are sale, and it does not, as I understand it, make any difference to the ordinary measure of damages where there is a market. What is contemplated is that the merchant buys for are sale, but, if the goods are not delivered to him, he will go out into the market and buy similar goods and honour his contract in that way. If the market has fallen he has not suffered any damage, if the market has risen the measure of damages is the difference in the market price. " In these circumstances this is not a case where it can be said that the parties when they made the contract knew that the likely result of breach would be that the buyer would not be able to make profit in Calcutta. This is a simple case of purchase of goods for resale anywhere and therefore the measure of damages has to be calculated as they would naturally arise in the usual course of things from such breach. That means that the respondent had to prove the market rate at Kanpur on the date of breach for similar goods and that would fix the amount of damages, in case that rate had gone above the contract rate on the (late of breach. We are therefore of opinion that this is not a case of the special type to which the words "which the parties knew, when they made the contract, to be likely to result from the breach of it" appearing in section 73 of the Contract Act apply. This is ,in ordinary case of contract between traders which is covered by the words "which naturally arose in the usual course of things from such breach" appearing in section 73. As the respondent had failed to prove the rate for similar canvas in Kanpur on the date of breach it is not entitled to any damages in the circumstances. The appeal is therefore allowed, the decree of the High Court set aside and of the trial court restored with costs to the appellant throughout.

IN-Abs

The appellant entered into a contract with the respondent for the sale of certain canvas at Re. 1 per yard under which the delivery was to be made through railway receipt for Calcutta for Kanpur. The cost of transport from Kanpur to Calcutta and the labour charges in that connection were to be borne by the respondent and it was agreed that the railway receipt would be delivered on August 5, 1947. The appellant was unable to deliver the railway receipt on the due date because booking from Kanpur to Calcutta was closed, and, therefore, cancelled the contract. The respondent instituted a suit for the recovery of damages for the breach of the contract and claimed that as the seller knew that the goods were to be sent to Calcutta and must therefore be presumed to know that the goods would be sold in Calcutta, any loss of profit to the buyer resulting from the difference between the rate in Calcutta on the date of the breach and the contract rate would be the measure of damages. Held: (1) that it is well settled that the two principles relating to compensation for loss or damage caused by breach of contract as laid down in section 73 Of the , read with the Explanation thereof, are (i) that, as far as possible, he who has proved a breach of a bargain to supply what he contracted to get is to be placed, as far as money can do it, in as good a situation as if the contract had been performed, but (ii) that there is a duty on him of taking all reasonable steps to mitigate the loss consequent on the breach and debars him from claiming any part of the damage which is due to his neglect to take such steps. British Westinghouse Electric and Manufacturing Company, Limited vs Underground Electric Railway Company of London, , relied on. (2) that the contract in the present case was for delivery for. Kanpur in which it was open to the buyer to sell the goods where it liked, and no inference could be drawn from the mere fact that goods were to be booked for Calcutta that the seller knew that the goods were for resale in Calcutta only. The contract was therefore not of the special type to which the words "which the parties knew, when they made the contract, 654 to be likely to result from the breach of it" appearing in section 73 of the , would apply, but an ordinary contract, for which the measure of damages would be such as "naturally arose in the usual course of things from such breach" within the meaning of that section. The damages would be the difference between the market price in Kanpur on the date of breach and the contract price. But as the respondent bad failed to prove the rate for similar canvas in Kanpur on the date of breach, it was not entitled to any damages as there was no measure for arriving at the quantum. Chao and others vs British Traders and Shippers Ltd., , relied on. Re. R and H. Hall Ltd. and W.P. Pim (junior) & Co. 's Arbi tration, and Victoria Laundry (Winsdsor) Ltd.v. Newman Industries Ltd., , distinguished.

No. 139 of 1957. Petition under article 32 of the Constitution of India for enforcement of Fundamental rights. R. V. section Mani, for the petitioner. 689 C. K. Daphtary, Solicitor General of India, B. Sen and R. H. Dhebar, for respondent No. 2. 1961. March 30. The Judgment of the Court was delivered by WANCHOO, J. This petition challenges the constitutionality of a provision in the Constitution (Application to Jammu and Kashmir) Order, 1954 (hereinafter called the Order), made by the President under article 370(1) of the Constitution. The case of the petitioner is that he is registered as an elector in the Parliamentary Constituency of Delhi. As such he has a right to stand for election from any Parliamentary constituency in India. Six seats are allotted to the State of Jammu and Kashmir in the House of the People (Lok Sabha). Ordinarily, the election to these seats should have been by direct election from the territorial constituencies in the States as provided by article 81(l); but the President modified that Article in so far as it relates to the State of Jammu and Kashmir by Para. 5(c) of the Order in these words: "Article 81 shall apply subject to the modification that the representatives of the State in the House of the People ,hall be appointed by the President on the recommendation of the Legislature of the State." The petitioner contends that the President had exceeded his powers when he made this modification, for he thereby substituted direct election to the House of the People by nomination which he could not do. This, it is said, was alteration in article 81 as applied to the State of Jammu and Kashmir and was not justified as a modification under article 370(l). He therefore prays that the modification made may be declared unconstitutional and a writ of quo warranto be issued against the persons nominated to the House of the People on the recommendation of the Legislature of the State of Jammu and Kashmir prohibiting them from acting as members of Parliament. Apart from the question whether the petitioner has any fundamental right to maintain this petition under 87 690 article 32, we are of opinion that there is no force in it. The relevant part of article 370 with which we are concerned is in these words: "Notwithstanding anything in this Constitu tion, . . . . . . . (d) such of the other provisions of this Constitution shall apply in relation to that State (i.e., the State of Jammu and Kashmir) subject to such exceptions and modifications as the President may by order specify. " Article 370 clearly recognises the special position of the State of Jammu and Kashmir and that is why the President is given the power to apply the provisions of the Constitution to that State subject to such exceptions and modifications as the President may by order specify. The President thus has power to say by order that certain provisions of the Constitution will be excepted from application to the State of Jammu and Kashmir and 'on such order being made those provisions would not apply to that State. Besides this power of making exceptions by which certain provisions of the Constitution were not to apply to that State the President is also given the power to apply the provisions of the Constitution with such modifications as he thinks fit to make. The contention on behalf of the petitioner is that the modification envisaged in article 370(l) did not mean amendment of the Constitution for the purpose of application to that State and would not certainly include such amendment as would make a radical alteration in the provisions of the Constitution. In this connection he relies on the observations of Kania, C.J., and Mahajan, J., in In re The (1). Kania, C.J., after dealing with the meaning of the word " modify" seems to have held that the word "modify" as used in the context in which he was speaking only implied alteration without radical transformation. Mhajan, J., also said that the word "modification" Use in the context before him did not involve "any material or substantial alteration". The petitioner therefore urges (1) ; 691 that as the Order substituted direct election by nomination there has been a radical alteration in article 81 by the President in its application to the State of Jammu and Kashmir and therefore is not justified by the word 'modification" used in article 370(l) and the President had exceeded his power under that Article in making this radical alteration. Before we consider what the word "modification" means in the context of article 370(l), let us see what the President has actually done in the matter of modification of article 81. The modification prescribes that the six seats in the House of the People from the State of Jammu and Kashmir would be filled by nomination by the President on the recommendation of the Legislature of that State. Now in form the seats will be filled by nomination by the President; but in reality what the modification provides is indirect election in place of direct election to these seats in the House of the People. The modification lays down that the President will nominate members to these six seats on the recommendation of the Legislature of the State. The President must therefore nominate only those who have been recommended by the Legislature of the State, which is elected on adult suffrage. Now the only way the Legislature can make a recommendation for this purpose is by voting. Therefore, in effect the modification made by the President is that the six seats to the House of the People from the State of Jammu and Kashmir will be filled by indirect election and not by direct election. The element of election still remains in the matter of filling these seats, though it has been made indirect. In these circumstances it may not be possible to say that there has been a radical alteration in article 81 by the modification effected by the Order. But even assuming that the introduction of indirect election by this modification is a radical alteration of the provisions of article 81(l), the question still remains whether such a modification is justified by the word "modification" as used in article 370(1). We are here dealing with the provision of a Constitution which cannot be interpreted in any narrow or pedantic sense 692 The question that came for consideration in In re Delhi Laws Act case( ') was with respect to the power of delegation to a subordinate authority in making subordinate legislation. It was in that context that the observations were made that the intention of the law there under consideration when it used the word "modification" was that the Central Government would extend certain laws to Part C States without any radical alteration in them. But in the present case we have to find out the meaning Of the word "modification" used in article 370(l) in the context of the Constitution. As we have said already the object behind enacting article 370(l) was to recognise the special position of the State of Jammu and Kashmir and to provide for that special position by giving power to the President to apply the provisions of the Constitution to that State with such exceptions and modifications as the President might by order specify. We have already pointed out that the power to make exceptions implies that the President can provide that a particular provision of the Constitution would not apply to that State. If therefore the power is given to the President to efface in effect any provision of the Constitution altogether in its application to the State of Jammu and Kashmir, it seems that when he is also given the power to make modifications that power should be considered in its widest possible amplitude. If be could efface a particular provision of the Constitution altogether in its application to the State of Jammu and Kashmir, we see no reason to think that the Constitution did not intend that he should have the power to amend a particular provision in its application to the State of Jammu and Kashmir. It seems to us that when the Constitution used the word "modification" in article 370(l) the intention was that the President would have the power to amend the provisions of the Constitution if he so thought fit in their application to the State of Jammu and Kashmir. In the Oxford English Dictionary (Vol. VI) the word 'modify" means inter alia "to make partial changes in; to change (as object) in 693 respect of some of its qualities; to alter or vary without radical transformation". Similarly the word "modification" means "the action of making changes in an object without altering its essential nature or character; the state of being thus changed; partial alteration". Stress is being placed on the meaning "to alter or vary without radical transformation" on behalf of the petitioner; but that is not the only meaning of the words "modify" or "modification". The word "modify" also means "to make partial changes in" and "modification" means "partial alteration". If therefore the President changed the method of direct election to indirect election he was in essence making a partial change or partial alteration in article 81 and therefore the modification made in the present case would be even within the dictionary meaning of that word. But, in law, the word "modify" has even a wider meaning. In "Words and Phrases" by Roland Burrows, the primary meaning of the word "modify" is given as "to limit" or "restrict" but it also means " 'to vary" and may even mean to "extend" or "enlarge". Thus in law the word "modify" may just mean "vary", i.e., amend; and when article 370(l) says that the President may apply the provisions of the Constitution to the State of Jammu and Kashmir with such modifications as he may by order specify it means that he may vary (i.e., amend) the provisions of the Constitution in its application to the State of Jammu and Kashmir. We are therefore of opinion that in the context of the Constitution we must give the widest effect to the meaning of the word 'modification" used in article 370(l) and in that sense it includes an amendment. There is no reason to limit the word "modifications" as used in article 370(1) only to such modifications as do not make any "radical transformation". We are therefore of opinion that the President had the power to make the modification which he did in article 81 of the Constitution. The petition therefore fails and is hereby dismissed with costs. Petition dismissed.

IN-Abs

Six seats are allotted to the State of Jammu and Kashmir in the House of People (Lok Sabha) and election to those seats should ordinarily have been by direct election under article 81(1) of the Constitution but the President modified that Article under article 370(1) by Para. 5(c) of the Constitution (Application to Jammu and Kashmir) Order, 1954, to the effect that "the representatives of the State in the House of People shall be appointed by the President on the recommendations of the Legislature of the State". The petitioner who claimed to be a registered elector and as such eligible for election from any Parliamentary constituency in India contended that the President had exceeded his powers when he made this modification for he thereby substituted direct election to the House of People by nomination which he could not do, and that the said modi fication amounted to radical alteration in article 81 and was not justified under article 370(1). Held, that the word "modification" used in article 370(I) must be given the widest meaning in the context of the Consti tution and in that sense it includes an amendment and it cannot be limited to such modifications as do not make any "radical transformation". The modification lays down that the President will make the nomination on the recommendation of the State Legislature which can do so only by voting, and in effect it provides that the seats will be filled by indirect election and not direct election. The element of election being thus still present there was no radical alteration in article 81 and the President had the power to make the modification which he did. In re ; , , distinguished.

145 and 149 to 158 of 1959. Writ Petition under article 32 of the Constitution of India for enforcement of Fundamental Rights. Sardar Bahadur, for the petitioners. C. K. Daphtary, Solicitor General of India, R. Ganapathy Iyer and T. M. Sen, for the respondents. March 30. The Judgment of the Court was delivered by WANCHOO, J. These eleven petitions raise a common point and will be disposed of together. The brief facts necessary for present purposes are these. The petitioners are dealers in motor spirit in Hyderabad. In 1949 the Hyderabad Sales of Motor Spirit Taxation Regulation, No. XXIV of 1358 Fasli (hereinafter called the Regulation) was passed and the petitioners were registered as retail dealers of petroleum products under the Regulation. In 1957 the petitioners and others filed writ petitions in the High Court of Andhra Pradesh questioning the validity of the Regulation. There was also a prayer for stay of the levy and collection of the tax and the High Court ordered that all further proceedings in the matter of levy, demand and collection of tax including cancellation of registration certificate and threatened attachment of property and the launching of criminal proceedings in pursuance of the Regulation be stayed. The petitioners allege that on this stay being granted by the High Court, they thought that section 3 of the Regulation was suspended during the period of stay and therefore they stopped collecting the tax from consumers. While these petitions were pending in the High Court, the Madras Sales of Motor Spirit Taxation (Andhra Pradesh Extension and Amendment) Act, No. V of 1958 (hereinafter called the Act), was passed by which 696 the Madras Sales of Motor Spirit Taxation Act, No. VI of 1939 was applied to Andhra Pradesh with some modifications and the Regulation was repealed. This Act, like the Regulation, had provisions for registration of dealers and in consequence fresh registration certificates were issued to the petitioners as well as to all other dealers in the State. In August 1958 the petitions challenging the validity of the Regulation were dismissed. In September 1958 notice& were issued to the petitioners informing them that they had failed to submit returns showing sales of motor spirit from March 1957 to March 1958 and they were required to submit returns within seven days, failing which best judgment assessments would be made under the relevant provision of the Regulation. The petitioners made repre sentations against this order and their main case was that they had not collected any tax from consumers during this period and it would therefore be harsh to demand tax from them in the circumstances. Thereupon it is said that best judgment ' assessments were made against the petitioners and they were required to pay the tax, though liberty to pay in installments was granted to them for this purpose. As however the petitioners failed to deposit the tax even in installments, the registration certificate of one of the petitioners was cancelled and other petitioners were threatened with cancellation of their registration certificates about October 1959. Consequently, the present petitions were filed soon after challenging the provisions of the Act relating to cancellation of registration certificates on the ground that such cancellation was not a reasonable restriction on the fundamental rights of the petitioners to carry on business under article 19 (1) (g) of the Constitution. The petitioners therefore pray for a declaration that sub sections (1) and (6) of section 4 of the Act and r. 14 purported to be framed thereunder are ultra vires as being violative of article 19 (1) (g) of the Constitution and for consequential orders against the respondents, namely, the State of Andhra Pradesh and its officers, from enforcing the said provisions. The petitions have been opposed by the respondents 697 and their case is that the provisions in question are reasonable restrictions on the right guaranteed under article 19 (1) (g) and are therefore perfectly valid and constitutional. The respondents also say that the allegation of the petitioners that they did not collect the tax during the period of the stay orders from consumers is false. In order to decide the constitutionality of the provisions which have been challenged it is necessary to look into the purpose and object of the Act in which those provisions appear. The Act was passed in order to levy and collect tax on retail sales of motor spirit in the interest of the general revenues of the State. Section 2 of the Act is the definition section. Section 3 is the charging section and provides the rates at which the tax is to be levied on all retail sales of motor spirit. Section 4 (1) which is being challenged is in these terms: "No person shall, after the commencement of this Act, carry on business in motor spirit as an importer or as a wholesale or retail dealer at any place in the State unless he has been registered as such under this Act. " Sub sections (2) and (3) make certain ancillary provisions and sub section (4) is in these terms: "Registration may be made subject to such conditions, if any, as may be prescribed including in the case of an applicant for registration as a retail dealer, the making of such deposit or the furnishing of such security as the registering authority may consider necessary to ensure the due payment of the tax which may from time to time be payable by him." Sub section (5) is unnecessary for our purpose, and sub section (6) is in these terms: "Any registration under sub section (1) may be suspended or cancelled by such authority, for such reasons, and in such manner, as may be prescribed. " It is not necessary to refer to other sections which make various provisions necessary for the enforcement of the Act till we come to section 26 which gives power to 88 698 the State Government to make rules to carry out the purposes of the Act. Rule 14 which has been attacked has been made under the power conferred under section 26 and it is not being disputed that if the main provisions contained in section 4 are constitutional, the rule is within the ambit of the Act and the rule making power of the State Government. It will be clear from this analysis of the impugned provisions of the Act that the purpose and object of the Act is to levy and collect tax for purposes of the general revenues of the State and the liability for payment is placed under section 3 upon the person effecting the sale. He is required by section 5 of the Act to keep books of account in the prescribed form and to submit to the Commercial Officer and to such other officers as may be prescribed, a I return in such form, 'containing such particulars and at such intervals, as may be prescribed. Along with the return, under section 6 he is required to pay the amount of tax due in respect of the motor spirit sold by him in retail during the preceding month according to the return. In order therefore that the State may have a check on the person from whom the tax is due section 4(l) provides for registration of dealers who carry on the business in motor spirit. Without such registration it would be impossible for the State to know the persons who are selling motor spirit and from whom the tax is due. The provision therefore under section 4(l) for registration of dealers is an eminently reasonable provision in order to carry out the object of the Act, namely, the levy and collection of this tax for purposes of the State. It is really no restriction on carrying on business in motor spirit; any one who carries on such business is free to do so and all that he has to do is to ask for registration, which he will get subject to the provisions of sub section That sub section has not been challenged in these petitions and therefore we proceed on the assumption that it is constitutional. It follows therefore that all that anyone who wants to carry on business in motor spirit has to do is to ask for registration which he will get under the rules, and the purpose behind registration is that those on whom the liability to pay tax 699 that it may realise the tax from them. The challenge therefore to the constitutionality of section 4(1) must fail. Then we turn to sub section (6), which provides that any registration under sub section (1) may be suspended or cancelled by such authority, for such reasons, and in such manner, as may be prescribed. The main attack of the petitioners is on this sub section. They contend that this sub section authorises the State to cancel a registration. The effect of such cancellation read with sub section (1) is that a person whose registration is cancelled cannot carry on business in motor spirit as he was doing before the cancellation. It is said that cancellation results in the total extinction of the business of the person whose registration is cancelled and thus the provision as to cancellation is an unreasonable restriction on the fundamental right to carry on business. There is no doubt that if a registration is cancelled under sub section (6) it will not be possible for the person whose registration is so cancelled to carry on his business in motor spirit. Rule 14 provides conditions under which the registration may be cancelled and we are in the present case concerned with two of them, namely, where the holder of at. registration certificate (a) fails to pay the tax or any other amount payable under the Act and (b) fraudulently evades the payment of the tax. The reasonableness of this provision as to cancellation of registration certificate has to be judged in the background of what we have already said about the purpose of the levy and its liability on the seller. It is true that there are other provisions in the law for realisation of public dues from those who default in making payments; but generally speaking cancellation of registration in cases like these is one more method of compelling payment of tax which is due to the State. Collection of revenue is necessary in order that the administration of the State may go on smoothly in the interest of the general public. The State has therefore armed itself with one more coercive method in order to realise the tax in such cases. It is true 700 that cancellation of registration may result in a dealer being unable to carry on the business, but the same result may even follow from the application of other coercive processes for realisation of dues from a trader, for his assets may be sold off to pay the arrears of tax and lie may thereafter be not in a position to carry on the business at all. Therefore the provision for cancellation of registration for failure to pay the tax or for fraudulently evading the payment of it is an additional coercive process which is expected to be immediately effective and enables the State to realise its revenues which are necessary for carrying on the administration in the interest of the general public. The fact that in some cases restrictions may result in the extinction of the business of a dealer would not by itself make the provision as to cancellation of registration an unreasonable restriction on the fundamental right guaranteed by article 19(1)(g). We may in this connection refer to Narendra Kumar vs The Union of India (1), where it was held that: "the word 'restriction ' in articles 19(5) and 19(6) of the Constitution includes cases of 'prohibition ' also; that where a restriction reaches the stage of total restraint of rights special care has to be taken by the Court to see that the test of reasonableness is satisfied by considering the question in the background of the facts and circumstances under which the order was made, taking into account the nature of the evil that was sought to be remedied by such law, the ratio of the harm caused to individual citizens by the proposed remedy, the beneficial effect reasonably expected to result to the general public, and whether the restraint caused by the law was more than was necessary in the interests of the general public. " Applying these tests we are of opinion that the cancellation of registration will be justified even though it results in the extinction of business as such cancellation is in respect of a tax meant for the general revenues of the State to carry on the administration in the interest of the general public. (1) ; 701 Besides, there is another consideration to which we may advert in the end, though even otherwise the cancellation is justified. Though there is no provision in the Act or the Rules specifically authorising the seller to pass on the tax to the consumer, what actually happens is that the seller includes the tax in the price and thus passes it oil to the consumer. Then in his turn the seller pays the tax to the State. In effect by thus passing on the tax to the consumer through the price, the dealer has already collected the tax. Therefore the compulsion of payment which arises because of the provision for cancellation of registration is under the circumstances justified and there is no reason why he should fail to pay it to the State or evade payment thereof fraudulently. The fault for failure to pay the tax or fraudulent evasion in payment thereof lies in the circumstances entirely on the dealer and he cannot be heard to complain that cancellation of registration in such a case is a disproportionate restriction on the right to carry on business which cannot be justified in the interests of the general public. Under the circumstances we are of opinion that the ratio of Narendra Kumar 's case (1) applies fully to the present case and the provision contained in sub section (6) of section 4 is a reasonable restriction within the meaning of article 19(6) of the Constitution. The petitions therefore fail and are hereby dismissed with costs; there will be one set of hearing costs only. Petitions dismissed.

IN-Abs

The Madras Sales of Motor Spirit Taxation Act (Mad. VI of 1939) was made applicable to the, State of Andhra Pradesh by the Madras Sales of Motor Spirit Taxation (Andhra Pradesh Extension and Amendment) Act (Andhra Pradesh V of 1958). The purpose and object of the Act was to levy and collect tax on retail sales of motor spirit and the liability for payment was placed upon the person effecting the sale. In order that the State may know the persons from whom tax was due section 4(1) provided for registration of dealers and section 4(6) provided for the suspension of such registration in the event of some contraventions. All that any one who wanted to carry on business had to do was to ask for registration which he would get under the rules. The petitioners who were dealers in motor spirit in Hyderabad filed writ petition challenging the provisions of the said section 4 Of sub sections (1) and (6) on the ground that such registration and cancellation were not reasonable restrictions on the fundamental rights of the petitioners to carry on business under article 19(1)(g) of the Constitution particularly as the cancellation of registration resulted in the total extinction of the business and was an unreasonable restriction and prayed that sub sections (1) and (4) Of section 4 Of the Act and r. 14 framed under section 26 of the Act be declared ultra vires. Held, that the provisions of section 4(1) of the Act were consti tutional. Registration of dealers under section 4(1)was an eminently reasonable provision in order to carry out the object of the Act, the purpose behind the registration being that those on whom the liability to pay tax under section 3 of the Act lay, were known to the State, so that it could realise the tax from them. The provision Of section 4(6) for cancellation of registration for failure to pay the tax or for fraudulently evading the payment of it was an additional coercive process which was expected to be immediately effective and enabled the State to realise its revenue. The fact that in some cases restriction might result in the extinction of the business of a dealer would not by itself 695 make the provision as to cancellation of registration an un reasonable restriction on the fundamental right guaranteed by article 19(1)(g) of the Constitution. Narendra Kumar vs The Union of India, ; , referred to.

Appeal No.180 of 1959. Appeal from the judgment and order dated June 30, 1955 of the former Nagpur High Court in Misc. First Appeal No. 162 of 1949. 80 634 N. C. Chatterjee and B. P. Maheshwari, for the appellant. G. C. Mathur, for the respondents. March 29. The Judgment of the Court was delivered by HIDAYATULLAH, J. This appeal, by certificate under articles 132(l) and 133(l)(c) of the Constitution, has been filed against an order of the High Court at Nagpur dated June 30, 1955. Though the facts necessary to decide the appeal lie within a comparatively narrow compass, the case itself has had a long and somewhat unique history. In July, 1922, the Municipal Committee, Khandwa, resolved to impose a tax on the trade of ginning and pressing cotton by means of steam, or mechanical process, and after sundry procedure, a notification was published on November 25, 1922 in the Central Provinces and Berar Gazette, imposing the tax. Certain traders including the appellant, affected by the tax, filed suits seeking injunction against the Municipal Committee on the ground that the tax was invalid and illegal. Meanwhile, the Municipal Committee had served notices on the present appellant, and demanded and recovered the tax for 1923 24. The appellant then filed a second suit for refund of the tax paid by her on the ground that the imposition of the tax was illegal and ultra vires. The suits had varying fortunes in the Courts in India, till they reached the Privy Council. The Judicial Committee by its first decision remitted the cases for additional evidence, while the appeals were kept pending. The decision of the Judicial Committee is reported in Radhakrishan Jaikishan vs Khandwa Municipal Committee (1). After the additional evidence was received, the Judicial Committee pronounced its decision, which is reported in Badhakishan Jaikishan vs Municipal Committee, Khandwa (9). The Judicial Committee held that the tax was not validly imposed by the Municipal Committee, and reversing the decree of the Judicial Commissioner, decreed the suits. (1) (1933) L.R. 611 A. 125. (2) 635 The Provincial Legislature then passed the Khandwa Ginning and Pressing Cotton Tax Validating Act 8 of 1938, validating, the tax. The Act contained only one operative section, which read as follows: "2. Notwithstanding anything contained in the Central Provinces Municipal Act, 1903, or the Central Province Municipalities Act, 1922, or any decree or order of a civil court, the tax on the trade of ginning and pressing cotton by means of steam or mechanical process within the limits of the Khandwa municipality which was imposed by Notification No. 2639 1298 VIII, dated the 21st November, 1922, shall be deemed to have been legally imposed from the date of its imposition to the date on which this Act comes into force. Explanation. All decrees or orders of a civil court directing a refund of the tax already recovered by the committee of the said municipality or restraining the committee from recovering the tax shall be deemed to have no legal effect. " The appellant had, in the meanwhile, applied for the execution of the decrees, and the Validating Act was pleaded in bar. This plea was upheld by the executing Court, but the High Court at Nagpur, on appeal, rejected it and ordered the executions to proceed. The decision of the High Court is reported in Firm Radhakishan vs Municipal Committee, Khandwa (1). The reason given by the High Court was that the Explanation, though not the operative part of the Validating Act, conflicted with 0. 45 R. 15 of the Code of Civil Procedure, and that the assent of the Governor General had not been obtained, as required by is. 107(2) of the Government of India Act, 1935. Meantime, the Provincial Legislature had been dissolved, and the Governor had assumed all the powers of the Provincial Legislature under section 93 of the Government of India Act,. The Governor, with the assent of the Governor General enacted the second Validating Act intituled the Khandwa Municipality (Validation of Tax) Act, 1941,(16 of 1941), which received the assent of the Governor Genera I on June (1) (1940) N.L.J. 638. 636 30, 1941, and was published in the C. P. and Berar Gazette on July 11, 1941. That Act, omitting parts not relevant here, read as follows: "2. The tax the imposition of which purported to be sanctioned in the Notification of the Local Government (Ministry of Local Self Government) No. 2639 1298 VIII, dated the 21st November 1922, shall be, and shall be deemed always to have been, validly recoverable by the Municipal Committee of Khandwa in respect of the period from the 21st November 1922 to the 31st March 1938 (both dates inclusive). Where the net sum recovered from any person before the commencement of this Act on account of the said tax is less than the aggregate of the sum recoverable from such person, the balance shall be payable to the said Municipal Committee on demand made at any time after the commencement of this Act and, if not paid within fifteen days from the date of the demand, shall be recoverable by any method available under the Central Provinces Municipalities Act,, 1922, for the recovery of a tax imposed thereunder or by such other method as the Provincial Government may by rule prescribe. For the purposes of section 3 the net sum recovered from any person means the aggregate sum recovered from such person less any sum refunded to him and less so much of the amount of any decree or order for the payment of money executed by him against the said Municipal Committee as represents an amount previously paid by him on account of the said tax. Nothing in this Act shall preclude the execution against the said Municipal Committee of any decree or order for the payment of money arising out of a payment on account of the said tax but upon the execution of such decree or order so much of the amount thereof as represents a sum previously paid on account of the said tax shall be payable to and recoverable by the said Municipal Committee in accordance with section 3. 6. The Khandwa Ginning and Pressing Cotton Tax Validating Act, 1938, is hereby repealed. " 637 The Provincial Government framed a rule, which, shortly stated, provided for the recovery of the IV amount by way of execution application made to the very Court, which executed the decree. The Municipal Committee deposited the decretal amount in Court, which was withdrawn by the appellant on furnishing security. On August 7, 1947, the Municipal Committee filed its application under the rule for execution of the decree. Objections were raised by the appellant, but were disallowed, and the Municipal Committee realised the amount of the tax from the surety. The appellant had raised many objections, but we are concerned with one only, viz., that the Act was ultra vires the Provincial Legislature and consequently the Governor, being repugnant to a. 142 A, which was introduced in the Government of India Act, 1935, and which imposed a limit of Rs. 50 on taxes on professions, trades and callings after March 31, 1939. On November 16,1949, an appeal was taken by the present appellant to the High Court at Nagpur. This appeal was heard by Sinha, C. J., and Mudholkar, J. (as they then were). Mudholkar, J. held that by the second Validating Act which was passed after March 31, 1939, the limit of Rs. 50 per annum imposed by the second sub section of section 142 A was exceeded, 'and that the Act was thus ultra vires, the Governor. Sinha C., J., was of the contrary opinion. The case was then laid before Deo, J., who agreed with Sinha, C. J., and the appeal was dismissed. The appellant then obtained the certificate, and filed this appeal. Section 142 A of the Government of India Act, 1935, is as follows: "142 A. (1) Notwithstanding anything in section one hundred of this Act, no Provincial Law relating to taxes for the benefit of a Province or of a municipality, district board, local board or other local authority therein in respect of professions, trades," callings or employments shall be invalid on the ground that it relates to a tax on income. (2) The total amount payable in respect of any 638 one person to the Province or to any one municipality, district board, local board, or other local authority in the Province by way of taxes on professions, trades, callings, and employments shall not, after the thirty first day of March nineteen hundred and thirty nine, exceed fifty rupees per annum: Provided that if in the financial year ending with that date there was in force in the case of any Province or any such municipality, board or authority a tax on professions, trades, callings, or employments the rate, or the maximum rate, of which exceeded fifty rupees per annum, the preceding provisions of this sub section shall, unless for the time being provision to the contrary is made by a law of the Federal Legislature, have effect in relation to that Province, municipality, board or authority as if for the reference to fifty rupees per annum there were substituted a reference to the rate or maximum rate, or such lower rate, if any, (being a rate greater than fifty rupees per annum) as may for the time being be fixed by a law of the Federal Legislature; and any law of the Federal Legislature made for any of the purposes of this proviso may be made either generally or in relation to any specified Provinces, municipalities, boards or authorities. (3) The fact that the Provincial Legislature has power to make laws as aforesaid with respect to taxes on professions, trades, callings and employments, shall not be construed as limiting, in relation to professions, trades, callings and employments, the generality of the entry in the Federal Legislative List relating to taxes on income." Simultaneously with the introduction of section 142 A, Entry No. 46 in the Provincial Legislative List, which had till then stood as "Taxes on professions, trades, callings and employments" was amended by the addition of the words "subject, however, to the provisions of section 142 A of this Act". The impugned Act was passed by the Governor under section 90 of the Government of India Act, 1935. Under sub section (3) of that section, it had the same force and 639 effect and was subject to disallowance in the same manner as an Act of the Provincial Legislature assent led to by the Governor. The impugned Act was enacted with the concurrence and assent of the Governor General and thus complied with all the formalities required for such enactment. The powers of the Provincial Legislatures under the Legislative Lists have been the subject of numerous decisions by the Federal Court and also by this Court. It has been pointed out that these powers are as large and plenary as those of Parliament itself. These powers, it has been held, include within themselves the power to make retrospective laws; and as pointed out by Gwyer, C.J. in The United Provinces vs Atiqa Begum (1), the burden of proving that Indian Legislatures "were subject to a strange and unusual prohibition against retrospective legislation lay upon those who asserted it". This has not been asserted in this case, as, indeed, it could not be, after the decision of the case cited by us. In the case before the Allahabad High Court, out of which the appeal before the Federal Court had arisen [sub nom Mst. Atiqa Begum vs U. P. (2)], it was held that retrospective legislation was not possible in view of the provisions of section 292 of the Government of India Act, 1935, which continued all law in force in British India immediately before the commencement of Part III of the Act, until altered or repealed or amended by a competent Legislature or other competent authority. This view was not accepted by the Federal Court, which held that section 292 of the Act did not prevent Legislatures in India from giving retrospective effect to measures passed by them. There have been numerous occasions on which retrospective laws were passed, which were upheld by the Federal Court and also by this Court. It is not necessary to cite instances, but we refer only to the decision in M. P. V. Sundararamier & Co. vs The State of Andhra Pradesh (3), where this Court approved the dictum of the Federal Court. Retrospective legislation being thus open to the (1) (2) A.I.R. (1940) All. 272. (3) ; 640 Provincial Legislatures, the Act of the Governor had the same force. Retrospective laws, it has been held, can validate an Act, which contains some defect in its enactment. Examples of Validating Acts which rendered inoperative, decrees or orders of the Court or alternatively made them valid and effective, are many. In Atiqa Begum 's case (1), the power of validating defective laws was held to be ancillary and subsidiary to the powers conferred by the Entries and to be included in those powers. Later, the Federal Court in Piare Dusadh,v. King Emperor (2) considered the matter fully, and held that the powers of the Governor General which were conterminous with those of the Central Legislature included the power of validation. The same can be said of the Provincial Legislatures and also of the Governor acting as a Legislature. The only question thus is whether the power to pass a retrospective and validating law was taken away by the enactment of section 142 A and the amendment of the Entry in the Government of India Act. It is on this point that the difference in the High Court arose. The amendment of the Entry is of no special significance, because it only subjects the otherwise plenary powers to the provisions of section 142 A. Apart from the implications arising from that section, the supremacy of the Legislature to pass retrospective and validating laws was unaffected. We have thus to see what section 142 A enacted and to what extent it trenched upon the powers of the Provincial Legislature and the Governor. Mr. N. C. Chatterjee, in arguing the case, adopted the line of reasoning of the minority view in the High Court. He pointed out that a. 142 A was enacted to achieve three purposes. The first was that it removed doubts whether the charge of tax on professions, etc., would be regarded as income tax. The second was that it put a limit upon the powers of the Provincial Legislature to enact a law imposing a tax in excess of rupees fifty after March 31, 1939;and thirdly it preserved only existing valid laws already in force, which imposed a tax in excess of the amount indicated. He (1) (2) 641 contended that the second sub section and the proviso covered the entire field, and a law passed after March 31, 1939, could not freshly impose a tax in excess of the limit and this was such a law. Under the scheme of the Government of India Act, 1935, income tax, though a Central levy, was, under section 138 (1), distributable among the Provinces and for which an elaborate scheme prepared by Sir Otto Niemyer was accepted and embodied in the Government of India (Distribution of Revenues) Order in Council, 1936. The Centre could levy a surcharge for federal purposes. Taxes on trades, professions and callings, which were taxes already leviable by the Provinces under Schedule 11 of the Rules made by the Governor General in Council under .s. 80A(3)(a) of the Government of India Act, were also included in the Provincial Legislative List as a source of revenue for the Provinces. It was, however, felt that these taxes might come into clash with tax on income in the Federal List, and also if unlimited in amount, might become a second tax on income to be levied by the Provinces. It was to remove these contingencies that section 142 A was enacted. Sub section (1) provided I ,hat, a tax on professions, etc., would not be invalid on the ground that it related to a tax on income. Sub section (3) was a counterpart of sub section (1), and provided that the, generality of the Entry in the Federal Legislative List relating to taxes on income would not be construed as in any way limited by the power of the Provincial Legislature to levy a tax on professions, etc. The fields of the two taxes were thus demarcated. No other implication arises from these two sub sections. It was also apprehended that under the (guise of taxes on professions, etc., the Provincial Legislatures might start their own scheme of a tax on income, thus subjecting incomes from professions etc., to an additional tax of the nature of income tax. A limit was therefore placed upon the amount which could be collected by way of tax on professions, etc., and that limit, was Rs. 50 per annum per person. The, second 642 sub section achieved this result. It was, however, realised that the tax being an old tax, there were laws under which the limit of Rs. 50 was already exceeded in relation to a Province, municipality, board or like authority, and the imposition of such a limit might displace their budgets after March 31, 1939. A proviso was, therefore, added to the second sub section that if in the financial year ending with the thirty first day of March, nineteen hundred and thirty nine there was in force in the case of any Province, etc., a tax on professions, trades, callings or employments the rate or the maximum rate of which exceeded Rs. 50 per annum, the provisions of the second sub section shall have effect, (unless for the time being provision to the contrary was made by a law of the Federal Legislature) as if instead of Rs. 50 per annum there was substituted a reference to the rate or maximum rate exceeding Rs. 50. Where no such law was passed by the Federal Legislature, the tax even in excess of Rs. 50 continued to be valid. There can be no doubt that if a law was passed after the amendment and sought to impose taxes on professions etc., for any period after March 31, 1939, it had to conform to the limit prescribed by section 142A (2). The prohibition in the second sub section operated to circumscribe the legislative power by putting a date line after which a tax in excess of Rs. 50 per annum per person for a period after the date line could not be collect id unless it came within the proviso. But neither sub section (2) nor the proviso speaks of a period prior to March 31, 1939. The sub section speaks only of "the total amount payable. after the thirty first day of March, nineteen hundred and thirty. nine". These words are important. They create a limit on the amount leviable as tax for a period after that date. But if a law was passed validating another which imposed a tax for a period prior to the date indicated, it would be taxing professions etc., in excess of Rs. 50 not after March 31, 1939, but before it. Neither the Entry nor the section either directly or indirectly prohibited this, nor did they create any limit for the prior period. The Validating Act, though 643 passed in 1941, can be read only as affecting a period for which there was no limit. If the sub section said that tax shall not be payable in excess of Rs. 50 without indicating the period or date, the argument would have some support, but it puts in a date, and the operation of the prohibition is confined to a period after that date. The Validating Act, being thus completely within the powers of the Governor, could remove retrospectively the defect in the ' earlier Act. Though it reimposed the tax from the date of the earlier Act, it took care to impose the tax for a period ending with March 31, 1938. The impugned Act did not need the support of the proviso, because it did not fall within the ban of the second sub section. In our opinion, the Validating Act of 1941 was within the powers of the Governor, and was a valid piece of legislation. The appeal fails, and is dismissed with costs. Appeal dismissed.

IN-Abs

In 1922, the Municipal Committee, Khandwa imposed a tax on the trade of ginning and pressing cotton by means of steam or mechanical process. Certain suits were filed challenging the validity of the tax and ultimately in 1937, the Privy Council held that the tax had not been validly imposed. In 1941, the Governor enacted the Khandwa Municipality (Validation of Tax) Act, 1941, which sought to validate the tax imposed in 1922. In the meantime, section I42 A was introduced in the Government of India Act, 1935, sub section (2) Of which provided that the 'total amount payable in respect of any one person by way of taxes on professions, trades, callings and employments shall not, after March 31, 1939, exceed Rs. 50 per annum '. The appellant contended that the validating Act was hit by section 142 A(2) and to the extent that it imposed a tax above Rs. 50 per person per annum it was invalid. Held, that the Validating Act was not hit by section I42 A (2) Government of India Act, 1935. The powers of the Indian Legislatures included a power to pass retrospective and validating laws. Section 142 A(2) which put a limit on the amount of tax did not affect laws relating to a period prior to March 31, 1939, but affected only those relating to periods after that date. It circumscribed the legislative power by putting a date line after which a tax in excess of Rs. 50 for a period after the dateline could not be collected unless it came within the proviso. The Validating Act imposed the tax in excess of Rs. 5o not after March 31, 1939, but before it. The United Provinces vs Atiqa Begum, and Piare Dusadh vs King Emperor, [1944] F.C . R. 61, referred to.

Appeals Nos. 25 and 26 of 1958. Appeals from the judgments and orders dated August 7, 1956, of the Allahabad High Court in Special Appeals Nos. 151 and 152 of 1955. C. B. Agarwala, A. N. Goyal and Mohan Lal Agarwala, for the appellant. Gopi Nath Dikshit and C. P. Lal, for the respondents. March 30. The Judgment of the Court was delivered by GAJENDRAGADKAR, J. These two appeals arise out Gajen, of two writ petitions filed by the appellant Raja Harish Chandra Raj Singh against the respondents the Deputy Land Acquisition Officer and another in the Allahabad High Court and they were based on the same facts and asked for the same relief. Both of them raise a short common question of limitation the decision of which would depend upon the determination of the scope and effect of the provisions of the proviso to section 18 of the Land Acquisition Act I of 1894 (hereafter called the Act). Since the facts in both the appeals are substantially the same we would refer to the facts in Civil Appeal No. 25 of 1958. The decision in this appeal would govern the decision of the other appeal, Civil Appeal No. 26 of 1958. The appellant Raja Harish Chandra Raj Singh was the proprietor of a village Beljuri in the District of Nainital. It appears that proceedings for compulsory acquisition of land including the said village for a public purpose were commenced by respondent 2, the State of Uttar Pradesh; notifications under sections 4 and 6 of the Act were issued in that behalf, and the 678 provisions of section 17 were also made applicable. Accordingly, after the notice under section 9(1) of the Act was published possession of land was taken by the Collector on March 19, 1960. Thereupon the appellant filed his claim to compensation for the land acquired in accordance with section 9(2), and proceedings were held by the Deputy Land Acquisition Officer, respondent 1, for determining the amount of compensation. It appears that in these proceedings an award was made, signed and filed in his office by respondent I on March 25, 1951. No notice of this award was, however, given to the appellant as required by section 12(2) and it was only on or about January 13, 1953 that he received information about the making of the said award. The appellant then filed an application on February 24, 1953 under a. 18 requiring that the matter be referred for the determination of the Court, as, according to the appellant, the compensation amount determined by respondent I was quite inadequate. Respondent I took the view that the application thus made by the appellant was beyond time under the proviso to section 18 and so he rejected it. The appellant then filed a writ petition in the Allahabad High Court on December 21,1953 in which he claimed appropriate reliefs in respect of the order passed by respondent I on his application made under a. 18. This petition was heard by Mehrotra, J. and was allowed. The learned Judge directed respondent 1 to consider the application made by the appellant on the merits and deal with it in accordance with law. He held that in dealing with the said application respondent 1 should treat the application as filed in time. Against this decision the respondents preferred an appeal to a Division Bench of the said High Court. Mootham, C. J. and Chaturvedi, J., who heard this appeal took the view that the application filed by the appellant under section 18 of the Act was barred by time, and so they allowed the appeal, set aside the order passed by Mehrotra, J. and dismissed the writ petition filed by the appellant. The appellant then moved for and obtained a certificate from the said High Court and it is with this certificate that he has come to this 670 Court in the present appeal; and so the short question which the appellant raises for our decision is whether the application filed by him under section 18 of the Act( was in time or not. Before proceeding to construe the material provisions of section 18 it is necessary to refer very briefly to, some other sections of the Act which are relevant in( order to appreciate the background of the scheme in relation to land acquisition proceedings. Section 4 deals with the publication of the preliminary notification and prescribes the powers of the appropriate officers. Whenever it appears to the appropriate Government that land in any locality is needed for any public purpose a notification to that effect shall be published in the official gazette and a public notice of its substance shall be given at convenient places in the said locality; that is the effect of section 4(1). Sec tion 4(2) deals with the powers of the appropriate authorities. Section 5 A provides for the hearing of objections filed by persons interested in any land which has been notified under section 4(1). After the objections are thus considered a declaration that land is required for a public purpose follows under section 6(1). Section 6(2) provides for the publication of the said declaration; and section 6(3) makes the declaration conclusive evidence that the land is needed for a public purpose. Section 9 requires the Collector to give public notice in the manner specified stating that the Government intend to take possession of the land and calling for claim,% to compensation in respect of all interests in such land. Section 9(2) prescribes the particulars of such notice, and section 9(3) an 4) provide for the manner of serving such notice. Section II deals with the enquiry and provides for the making of the award by the Collector. Section 12(l) then lays down that the award when made by the Collector shall be filed in his office, and shall, except as otherwise provided, be final and conclusive evidence as between the Collector and the persons interested whether they have respectively appeared before the Collector or not, of the true area and value of the land, and the apportionment of the compensation 680 among the persons interested. Section 12(2) is important. It makes it obligatory on the Collector to give immediate notice of his award to such of the persons interested as are not present personally or by their representatives when the award is made. It is common ground that no such notice was given by respondent 1 to the appellant. That briefly is the scheme of the relevant provisions of Part II of the, Act which deals with acquisition. Part III which deals with reference to Court and procedure thereon opens with section 18. Section 18(1) provides that any person interested who has not accepted the award may, by written application to the Collector, require that the matter be referred by him for determination of the Court, inter alia, whether the amount of compensation is adequate or not. It is under this provision that the appellant made an application from which the present appeal arises. Section 18(2) requires that the application shall state the grounds on which objection to the award is taken. These grounds have been stated by the appellant in his application. The proviso to section 18 deals with the question of limitation. It prescribes that every such application shall be made (a) if the person making it was present or represented before the Collector at the time when he made his award within six weeks from the date of the Collector 's award; (b) in other cases within six weeks of the receipt of the notice from the Collector under section 12(2), or within six months from the date of the Collector 's award whichever shall first expire. The appellant 's case falls under the latter part of el. (b) of the proviso. It has been held by the Allahabad High Court that since the application made by the appellant before respondent I was made beyond six months from the date of the award in question it was beyond time. The view taken by the High Court proceeds on the literal construction of the relevant clause. As we have already seen the award was signed and delivered in his office by respondent 1 on March 25, 1951 and the application by the appellant was made under section 18 on February 24, 1953. It has been held that the effect of the relevant 681 clause is that the application made by the appellant is plainly beyond the six months permitted by the said clause and so respondent I was right in rejecting it as barred by time. The question which arises for our decision is whether this literal and mechanical way of construing the relevant clause is justified in A law. It is obvious that the effect of this construction is that if a person does not know about the making of the award and is himself not to blame for not knowing about the award his right to make an application under section 18 may in many cases be rendered ineffective. If the effect of the relevant provision unambiguously is as held by the High Court the unfortunate consequence which may flow from it may not have a material or a decisive bearing. If, on the other hand, it is possible reasonably to construe the said provision so as to avoid such a consequence it would be legitimate for the Court to do so. We must therefore enquire whether the relevant provision is capable of the construction for which the appellant contends, and that naturally raises the question as to what is the meaning of the expression "the day of the Collector 's award". In dealing with this question it is relevant to bear in mind the legal character of the award made by the Collector under section 12. In a sense it is a decision of the Collector reached by him after holding an enquiry as prescribed by the Act. It is a decision, inter alia, in respect of the amount of compensation which should be paid to the person interested in the property acquired; but legally the award cannot be treated as a decision; it is in law an offer or tender of the compensation determined by the Collector to the owner of the property under acquisition. If the owner accepts the offer no further proceeding is required to be taken; the amount is paid and compensation proceedings are concluded. If, however, the owner does not accept the offer section 18 gives him the statutory,, right of having the question determined by Court, and ' it is the amount of compensation which the Court may determine that would bind both the owner and 86 682 the Collector. In that case it is on the amount thus determined judicially that the acquisition proceedings would be concluded. It is because of this nature of the award that the award can be appropriately described as a tender or offer made by the Collector on behalf of the Government to the owner of the property for his acceptance. In Ezra vs The Secretary of State (1). It has been held that "the meaning to be attached to the word "award" under section 11 and its nature and effect must be arrived at not from the mere use of the same expression in both instances but from the examination of the provisions of the law relating to the Collector 's proceedings culminating in the award. The considerations to which we have referred satisfy us that the Collector acts in the matter of the enquiry and the valuation of the land only as an agent of the Government and not as a judicial officer; and that consequently, although the Government is bound by his proceedings, the persons interested are not concluded by his finding regarding the value of the land or the compensation to be awarded. " Then the High Court has added that such tender once made is binding on the Government and the Government cannot require that the value fixed by its own officer acting on its behalf should be open to question at its own instance before the Civil Court. The said case was taken before the Privy Council in Ezra vs Secretary of State for India (2 ), and their Lordships have expressly approved of the observations made by the High Court to which we have just referred. Therefore; if the award made by the Collector is in law no more than an offer made on behalf of the Government to, the owner of the property then the making of the award as properly understood must involve the communication of the offer to the party concerned. That is the normal requirement under the contract law and its applicability to cases of award made under the Act cannot be reasonably excluded. Thus considered the date of the award cannot be determined solely by reference to the time when the award is signed by the Collector or delivered by him in his office; it must (1) Cal. 36, 86. (2) Cal. 683 involve the consideration of the question as to when it was known to the party concerned either actually or constructively. If that be the true position then the literal and mechanical construction of the words "the date of the award" occurring in the relevant section would not be appropriate. There is yet another point which leads to the same conclusion. If the award is treated as an administrative decision taken by the Collector in the matter of the valuation of the property sought to be acquired it is clear that the said decision ultimately affects the ' rights of the owner of the property and in that sense, like all decisions which affect persons, it is essentially fair and just that the said decision should be communicated to the said party. The knowledge of the party affected by such a decision, either actual or constructive, 'is an essential element which must be satisfied before the decision can be brought into force. Thus considered the making of the award cannot consist merely in the physical act of writing the award or signing it or even filing it in the office of the Collector; it must involve the communication of the said award to the party concerned either actually or constructively. If the award is pronounced in the presence of the party whose rights are affected by it can be said to be made when pronounced. If the date for the pronouncement of the award is communicated to the party and it is accordingly pronounced on the date previously announced the award is said to be communicated to the said party even if the said party is not actually present on the date of its pronouncement. Similarly if without notice of the date of its pronouncement an award is pronounced and a party is not present the award can be said to be made when it is communicated to the party later. The knowledge of the party affected by the award, either actual or constructive, being an essential requirement of fair play and natural justice the expression "the date of the award" used in the proviso must mean the date when the award is either communicated to the party or is known by him either actually or constructively. In our opinion, therefore, it would be unreasonable to 684 construe the words "from the date of the Collector 's award" used in the proviso to section 18 in a literal or mechanical way. In this connection it is material to recall the fact that under section 12(2) it is obligatory on the Collector to give immediate notice of the award to the persons interested a,, are not present personally or by their representatives when the award is made. This requirement itself postulates the necessity of the communication of the award to the party concerned. The Legislature recognised that the making of the award under section 11 followed by its filing under section 12(1) would not meet the requirements of justice before bringing the award into force. It thought that the communication of the award to the party concerned was also necessary, and so by the use of the mandatory words an obligation is placed on the Collector to communicate the award immediately to the person concerned. It is significant that the section requires the Collector to give notice of the award immediately after making it. This provision lends support to the view which we have taken about the construction of the expression "from the date of the Collector 's award" in the proviso to section 18. It is because communication of the order is regarded by the Legislature as necessary that section 12(2) has imposed an obligation on the Collector and if the relevant clause in the proviso is read in the light of this statutory requirement it tends to show that the literal and mechanical construction of the said clause would be wholly inappropriate. It would indeed be a very curious result that the failure of the Collector to discharge his obligation under section 12(2) should directly tend to make ineffective the right of the party to make an application under section 18, and this result could not possibly have been intended by the legislature. It may now be convenient to refer to some judicial decisions bearing on this point. In Magdonald vs The Secretary of State, for India in Council (1) Rattigan and Shah Din, JJ. held that under the proviso to section 18 until an award is announced or communicated to the parties concerned it cannot be said to be legally made. (1) (1005) 4 Ind. C. 914. 685 An award under the Act, it was observed in the judgment, is in the nature of a tender and obviously no tender can be made unless it is brought to the( , knowledge of the person to whom it is made. The learned Judges observed that this proposition seemed to them to be self evident. The same view has been expressed by the Oudh Judicial Commissioner in Hari Das Pal vs The Municipal Board, Lucknow (1). On the other hand, in Jehangir Bomanji vs G. D. Gaikwad (2) the Bombay High Court has taken the view that the element of notice is only an essential ingredient of the first part of cl. (b) of the proviso to s.18 which prescribes the period of limitation as six weeks from the date of the receipt of the notice from the Collector, not of the second part which prescribes the maximum period of six months from the date of the Collector 's award in absolute terms. According to that decision, as far as the limitation under the latter part is concerned it runs from the date of the award and the date of the award has nothing whatever to (lo with the notice which the Collector has to give under section 12(2). In our opinion this decision is based on a misconstruction of the relevant clause in the proviso to section 18. The same comment falls to be made in regard to the decision of the Kerala High Court in State of Travancore Cochin vs Narayani Amma Ponnamma (3). It may, however, be pertinent to point out that the Bombay High Court has taken a somewhat different view in dealing with the effect of the provision as to limitation prescribed by section 33A(2) of the Indian Income tax Act. This provision prescribes limitation for an application by an assessee for the revision of the specified class of orders, and it says that such an application should be made within one year from the date of the order. It is significant that while provid ing for a similar period of limitation section 33(1) specifically lays down that the limitation of sixty days therein prescribed is to be calculated from the date on which the order in question is communicated to the (1) (1914) 22 Ind. C. 652. (2) A.I.R. 1954 Bom. 419, (3) A.I.R. (1958) Kerala 272. 686 assessee. In other words, in prescribing limitation section 33(1) expressly provides for the commencement of the period from the date of the communication of the order, whereas section 33A(2) does not refer to any such communication; and naturally the argument was that communication was irrelevant under section 33A(2) and limitation would commence as from 'the making of the order without reference to its communication. This argument was rejected by the Bombay High Court and it was hold that it would be a reasonable interpretation to hold that the making of the order implies notice of the said order, either actual or constructive, to the party affected by it. It would not be easy to reconcile this decision and particularly the reasons given in its support with the decision of the same High Court in the case of Jehangir Bomanji (1). The relevant clause under section 33A(2) of the Indian Income tax Act has also been similarly construed by the Madras High Court in O.A.O.A.M. Muthia Chettiar vs The Commissioner of Income tax, Madras (2). "If a person is given a right to resort to a remedy to get rid of an adverse order within a prescribed time", observed Rajamannar, C.J., "limitation should not be computed from a date earlier than that on which the party aggrieved actually knew of the order or had an opportunity of knowing the order, and therefore must be presumed to have the knowledge of the order". In other words the Madras High Court has taken the view that the omission to use the words "from the date of communication" in section 33A(2) does not mean that limitation can start to run against a party even before the party either knew or should have known about the said order. In our opinion this conclusion is obviously right. A similar question arose before the Madras High Court in Annamalai Chetti vs Col. J. G. Cloete(3). Section 25 of the Madras Boundary Act XXVIII of 1860 limited the time within which a suit may be brought to set side the decision of the settlement officer to two months from the date of the award, and (1) A.I.R 1954 Bom. (2) I.L.R. (3) Mad. 687 so the question arose as to when the time would begin to run. The High Court held that the time can begin to run only from the date on which the decision is communicated to the parties. "If there was any decision at all in the sense of the Act", says the judgment, "it could not date earlier than the date of the communication of it to the parties; otherwise they might, be barred of their right, of appeal without any knowledge of the decision having been passed". Adopting the same principle a, similar construction has been placed by the Madras High Court in K. V. E. Swaminathan alias Chidambaram Pillai vs Letchmanan Chettiar (1). On the limitation provisions contained in sections 73(1) and 77(l) of the Indian Registration Act XVI of 1908. It was held that in a case where an order was not passed in the presence of the parties or after notice to them of the date when the order would be passed the expression "within thirty days after the making of the order" used in the said sections means within thirty days after the date on which the communication of the order reached the parties affected by it. These decisions show that where the rights of a person are affected by any order and limitation is prescribed for the enforcement of the remedy by the person aggrieved against the said order by reference to the making of the said order, the making of the order must mean either actual or constructive communication of the said order to the party concerned. Therefore, we are satisfied that the High Court of Allahabad was in error in coming to the conclusion that the application made by the appellant in the present proceedings was barred under the proviso to section 18 of the Act. In the result we allow the appeal, set aside the orders passed by Mootham, C. J. and Chaturvedi, J., and restore those of Mehrotra, J. In the circumstances of this case there would be no order as to costs. Appeal allowed. (1) Mad 491.

IN-Abs

Certain lands belonging to the appellant were compulsorily acquired. The Collector made an award with respect to the amount of compensation, signed and filed it in his office as required by section 12(1) Land Acquisition Act on March 19, 1950. But no notice of the award, as required by section 12(2), was given to the appellant. The appellant came to know of the award on or about January 13, 1953, and on February 24, 1953, he filed an application under section 18 requiring that the matter be referred for the determination of the Court. The proviso to section 18 prescribes that in cases where a person was not present or represented at the time of the making of the award the application under section 18 shall be made within six weeks of the receipt of the notice from the Collector under section 12(2), or "within six months from the date of the award", whichever shall expire first. The appellant 's application was dismissed as time barred on the ground that it was made beyond six months of the date of the award. Held, that the application made by the appellant under section 18 of the Act was not beyond time. The award of the Collector was not a decision but an offer of compensation on behalf of the Government to the owner of the property and it was not effective until it was communicated to the owner. The making of the award did not consist merely in the physical act of writing the award or signing it or filing it in the office of the Collector; it also involved the communication of the award to the owner either actually or constructively. Consequently, the expression "the date of the award" in the proviso to section 18 meant the date when the award was communicated to the owner or is known by him either actually or constructively. The application in the present case was made within six months of the date when the appellants came to know of the award and was within the period prescribed. Ezra vs The Secretary of State, Cal. 36 and Ezra vs Secretary of State for India, Cal, 605, applied. Magdonald vs The Secretary of State for India in Council, (1905) 4 Ind. C. 914 and Hari Das Pal vs The Municipal Board, Lucknow, (1914) 22 Ind. C. 652, approved. 677 Jahangir Bemanji vs G. D. Gaikwad, A.I.R. 1954 Bom. 419 and State of Travancore Cochin vs Narayani Amma Ponnamma, A.I.R. 1958 Kerala 272, disapproved. O. A. O. A. M. Muthia Chettiar vs The Commissioner of Income tax, Madras, I.L.R. , Annamalai Chetti vs Col. T. G. The Cloeta, Mad. 189. and E. V. E. Swaminathan. The Alias Chidambaram Pillai vs Letchmanan Chettiar, (1930) I.L.R.Acqu , referred to.

l Appeal No. 173 of 1951. Appeal from the Judgment and Decree dated February 22, 1949, of the High Court of Judicature at Calcutta (Blank and Lahiri JJ.) in Appeal from Original Decree No. 23 of 1944 &rising out of Judgment and Decree dated August 25, 1943, of the Court of the Subordinate Judge, Zilla Midna pore, in Title Suit No. 30 of 1941. Panchanan Ghose (S.N. Mukharjee, with him) for the appellant. Sarat Chandra Jana and Bijay Kumar Bhose for respondent No. 1. Arun Kumar Dutta for respondents Nos. 2 (b) and 15. 278 1952. December2. The Judgment of the Court was delivered by MAHAJAN J. The circumstances under which this ,appeal arises are as follows Touzi No. 2409 of the Midnapore Collectorate consists of several mouzas including mouza Dingol. The annual land revenue payable in respect of the entire touzi is Rs. 2,892 8 0. This touzi was distributed into two shares, one being a separate account bearing No. 249/1 and the other being the residuary share. Both these shares came in course of time to be held by a single person, viz., Jiban Krishna Ghosh and from him they devolved upon his two sons, Sudhir Krishna Ghosh and Sunil Krishna Ghosh, defendants 2 and 3 in the present suit. Both the two accounts were recorded in their names as joint proprietors. Under touzi No. 2409 there was a patni which included mouza Dingol. In the year 1885 Kritibas Hui purchased a share of the said patni. His father Ramnath Hui purchased some transferable occupancy ryoti lands under the said patni. These lands are described in schedule " Ka " of the plaint. Kritibas Hui, while he was a co sharer patnidar, purchased some transferable ryoti lands under the patni described in schedule " Kha " of the plaint. Kritibas Hui died in the year 1906 or 1907 and his father Ramnath died in the year 1908 or 1909 soon after the death of his son. On the death of Kritibas Hui, the plaintiff s, four in number, being his sons and nephews, inherited the patni and the other properties left by him. Subsequently on the death of Ramnath, the plaintiff s while they were co sharer patnidars, inherited the aforesaid transferable occupancy ryoti lands under the patni purchased by Ramnath. Occupancy ryoti lands in schedule " Ga " of the plaint were purchased by the plaintiffs by different kabalas on different dates, after they had inherited the lands mentioned in schedules " Ka " and " Kha of the plaint. Similarly the niskar lands mentioned in schedule " Gha " of the plaint were purchased by 279 the plaintiffs after they had taken the inheritance of their father and grandfather. By the same process they acquired the mokarrari maurashi interest under the Bahali niskar lands of Sree Ishwar Dwar Basuli Thakurani mentioned in schedule "Una" annexed to the plaint. On the 22nd April, 1938, by a registered kabala the plaintiffs sold their interest in the patni to one Upendranath Pal. Upendranath Pal thus became the patnidar of the six anna share that was held by the plaintiffs prior to the year 1938. The rest of the interest in the patni which had been acquired by Satish Chandra Hui, respondent No. 1, was also sold to one Gouranga Sundar Das Gupta along with Upendranath Pal. The plaintiffs thus ceased to have any interest in the patni and remained in possession of the lands in the status of occupancy ryots or undertenure holders. When the plaintiffs in the year 1938 sold their patni interest they were heavily indebted to their landlords Sudhir Krishna Ghosh and Sunil Krishna Ghosh for arrears of patni rent. On the 25th March 1939, the landlords filed a suit claiming a sum of Rs. 16,835 3 6 as arrears of rent due to them from April, 1935, to March, 1939, in the court of the subordinate judge of Midnapore against the recorded patnidars (viz., the plaintiffs) without recognizing the transfer made by them. While this suit was pending, the landlords failed to pay the March kist of the revenue and cesses of the touzi in both the accounts, with the result that both the undivided half shares of the touzi represented by separate account No. 1 and by residuary account were advertised for sale on 24th June, 1939, under section 6 of the Bengal Land Revenue Sales Act (XI of 1859). The notice advertising the sale is exhibit H. It notified sale of the shares in the estate as such and did not state that the entire estate would be sold. In column of the notification the arrears due from the two shares were entered separately. Both these shares were actually sold on the issue of a single notice and at a 280 single sale and were purchased by defendent 15 the appellant before us. The sale certificate shows that what was certified to have been purchased by the appellant was the separate account share as also the residuary share making up between them the totality of the touzi. On the 9th January, 1940, defendant 15 (the appellant) in exercise of the rights conferred by section 37 of the Revenue Sales Act as purchaser of an entire estate in the revenue sale served a notice on the maha expressing his unequivocal intention to annul and avoid all under tenures including patnis and darpatnis. On the same date he is alleged to have taker possession of some plots of land in possession on under tenure holders, encumbrance holders and niskardars. The revenue sale held on 24th June, 1939, has lead to a crop of litigations. As already stated, the land lords had sued for the recovery of the arrears of rent due from the patnidars, viz., the plaintiffs, before the sale took place. That suit was decreed on the 14th May, 1940. An application was made for execution of the decree on 21st June, 1940, by attachment and sale of certain plots in possession of the judgment debtors On behalf of the judgment creditors it was contended that the entire touzi having been sold under the revenue sale, the purchaser had become entitled to annul the tenure under section 37 of the Revenu Sales Act and as a matter of fact had annulled the same and consequently the tenure itself having expired, section 168 A of the Bengal Tenancy Act did not apply and the decree was executable against other properties of the judgment debtors. This con tention was upheld by the subordinate judge but was negatived in appeal by the High Court, and it was held that the revenue sale was a sale of the shares on the touzi under section 13 of the Revenue Sales A and the purchaser did not acquire any right to and the tenures, he not being a purchaser of the entire estate as such and therefore the patni being in existence, the decree holder could not execute the decre 281 for arrears of rent of the patni against other properties of the judgment debtors. (Vide Satish Chandra Hui vs Sudhir Krishna Ghosh (1), decided in February, 1942, during the pendency of the present suit). The appellant was not a party to those proceedings. For the second time the question whether at the same revenue sale defendant 15 purchased the entire estate or two separate shares only arose in a case wherein he was impleaded as a party. Bimal Kumar Hui and another brought a suit some time in the year 1941 for establishment of their rent free title in certain lands and for confirmation of their possession. The present appellant was impleaded as defendant 2 in the suit as purchaser of the touzi and as claiming to have annulled the plaintiffs ' interest. Defendant 2 pleaded that an entire touzi had been purchased by him at the revenue sale and he had thereafter annulled the interest held by the plaintiffs and they were disentitled to relief as they had no subsisting interest in the plots of land claimed by them. , This plea was negatived up to the High Court and the plaintiffs ' suit was decreed. (Vide ' Gunendranath Mitra vs Bimal Kumar Hui (2) decided in September, 1948). Harries C. J. and Chakravarti J. in a very well considered and reasoned judgment reached the conclusion that the revenue sale in favour of the appellant was a sale of two separate shares under the provisions of section 13 of Act XI of 1859 and not of the entire estate and that he had not acquired the. right to annul the encumbrances under section 37 of the Revenue Sales Act. The third occasion on which the effect of the revenue sale held on 24th June, 1939, came up for consideration by the High Court arose in the suit which has given rise to the present appeal. On the 28th June, 1941, the plaintiff respondents, Satish Chandra Hui and others, instituted title suit No. 30 of 1941 for a declaration of title and confirmation of possession of certain plots of land in the court of (1) (2) 282 the subordinate judge of Midnapore. There was the usual preliminary skirmish between the parties antecedent to the suit, resulting in proceedings under section 144, Criminal Procedure Code. Possession of the paddy crop growing on a number of plots was taken by the District Magistrate and eventually under the orders of the High Court the crop was handed over to defendant 1, an employee of the appellant. In this suit the present appellant was impleaded as defendant 15. In the plaint it was averred that the plaintiffs were in possession of the plots of land mentioned in schedules " Ka", " Kha" and " Ga " of the plaint as occupancy tenants, that in respect of the lands mentioned in schedules " Gha " and " Una they had niskar rights and that as in the revenue sale the appellant did not purchase the entire estate he was not entitled to annul the patni and the other tenures or the rent free grants; and that the plaintiffs having transferred the patni rights to Upendranath ,Pal which still subsisted, none of the encumbrances could be said to have been extinguished. The appellant pleaded that he was the purchaser of the entire touzi at the revenue sale held on 24th June, 1939, and had acquired the power to avoid and annual the encumbrances and that by a notice duly published on the 9th January, 1940, he had annulled all under tenures including the patni and that the transfer of the patni to Upendranath Pal was a benami transaction and that even if it was held genuine the plaintiffs ' rights in the ryoti land had been extinguished as the ryoti rights had merged with the patni rights under section 22 of the Bengal Tenancy Act as it was in force before its amendment in 1928 and that by a sale of the patni to Upendranath Pal. the plaintiffs ' rights in those lands stood transferred to him and they were not entitled to maintain any suit in respect of those plots. The trial judge decreed the suit in respect of some of the plots detailed at page 144 of the paper, book. The plaintiffs ' claim in respect of other lands mentioned in schedule " Gg " of the plaint was dismissed. 283 Plaintiffs were also given a decree for Rs. 416 4 0 against defendant 1 on account of the paddy of 55 1/2 bighas of the land out of schedules. "Ka ", " Kha " and " Ga ", to which they had proved their title and of which they were entitled to recover khas possession. It was held that at the revenue sale the entire touzi did not pass to the appellant and he had acquired no right to annul or avoid the under tenures and encumbrances, that the ryoti holdings of the plaintiffs had merged in the patni and had passed to, Upendranath Pal on the sale of the patni to him on 22nd April, 1938, but that Upendranath Pal had resettled these lands with the plaintiffs and they being settled the ryots of the village had acquired occupancy rights in these plots. The plots of land described in schedule Ga " were held as not assessed to revenue and that being so, defendant 15 was held not entitled to possession of these niskar lands. Defendant 15 preferred an appeal to the High Court against the judgment of the subordinate judge, while the plaintiffs preferred cross objections. The appeal and the cross objections were both dismissed by the High Court and the findings of the trial judge were maintained. It was contended before the High Court that the revenue sale, though held in fact under section 13 of Act XI of 1859, should be deemed to have been held under section 3 and that the appellant had acquired all the rights of the purchaser of an entire estate. The High Court negatived this con tention and observed that on a plain reading of section 13 the contention could not be sustained, the essential conditions for the exercise of jurisdiction under section 13 being the existence of a separate account or accounts, and the liability of the entire estate for sale for revenue arrears and that both these conditions having been fulfilled in this case, the Collector rightly proceeded under section 13 to sell the shares and that the additional provisions mentioned in the second paragraph of the section need only be complied with in cases where there does exist a share from which no arrear is due it was further 37 37 284 hold that though the old occupancy rights of the plaintiffs merged in the patni and passed to Upendranath Pal after the sale of the patni to him, the action of Upendranath Pal in realizing the rent from the plaintiffs amounted to a resettlement and that by his action he had conferred a right of tenancy upon the plaintiffs who being settled ryots of the village acquired a right of occupancy in all the lands in respect of which rents were realized. ' This decision was announced by the High Court on the 22nd February, ' 1948, and is in appeal before us on a certificate granted by the High Court on 25th August, 1960. For the fourth time the same question came up for consideration before the High Court after the decision under appeal and the view expressed in its earlier judgments by the High Court was followed. [Vide Gowranga Sundar vs Rakhal Majhi (1).] Mr. Ghosh for the appellant argued two points before us : (1) that defendant 1 5 being the purchaser of an entire estate at a revenue sale had all the rights conferred upon him by section 37 of the Bengal Land. Revenue Sales Act, and all under tenures stood annulled and plaintiffs had no rights in the lands in suit in which they had no occupancy rights, and (2) that the plaintiffs were not entitled to a decree on the basis of the resettlement of land, which case was never made out by them, and which was inconsistent with the pleadings and evidence and that on the facts proved there could not be any legal inference of resettlement. In our opinion, neither of these contentions is well founded. Section 6 of Act XI of 1859 authorizes the Collector after the latest day of payment fixed in the manner prescribed in section 3 of the Act has expired, to issue a notification specifying the estates or shares of estates which have to be sold for recovery of arrears of revenue, and further authorizes him to put up to public auction on the date notified for sale, the estates or (1) 285 shares of estates so specified. The contents of the notifi cation issued for the sale in question in unambiguous terms indicate that two separate units of the estate from which separate items of arrears ' were due were notified for sale. No entry was made in the notification in the column meant to be filled in when the entire estate is to be put up for sale. In the face of these facts it was conceded by Mr. Ghosh that the sale in fact took place as provided for in section 13 of Act XI of 1859 and what was actually put up for sale were two separate shares in the estate which made up the totality of the estate. The learned counsel, however, contended that the sale should be deemed to have been of an entire estate, as both the shares sold con stituted the totality of the estate and because section 13 could have had no application to a case wherein both the accounts were in default, the section having application only in cases where there at least exists a share that is not in default and which needs protection against the default of the, other co sharers. This argument, though attractive, is fallacious. To hold that a sale, which in fact was of two different accounts, is to be deemed to be a sale of the entire estate would be tantamount to converting a fact into a fiction by a judicial verdict. The notification under section 6 issued by the Collector must, in our opinion, be considered as conclusive on the point as to what the subject matter of the sale was, i.e., whether what was sold was the entire estate or two shares. The appellant is really on the horns of a dilemma. If the contention of his learned counsel that the sale by the Collector of shares of the estate was not authorized by section 13 is taken seriously, the sale would then be a nullity as under none of the provisions in the Revenue Sales Act such a sale could be held in the manner adopted and the appellant would have no title under it whatsoever; if such a sale is authorized by section 13 of the Act, then it gives him no rights to annul the undertenures. In either event, be cannot resist the plaintiffs ' suit. In our judgment, it has been rightly held 286 in the courts below that the appellant at this revenue sale did not become the purchaser of the entire touzi as such and did not become entitled to the privileges conferred on such a purchaser by the provisions of section 37 of Act XI of 1859. The contention of Mr. Ghosh that the provisions of section 13 are not attracted to a case where all the shares in an estate are in default and that in that event the only authority that the Collector has is to put up for auction the entire estate is again, in our opinion, not well founded. Before the Revenue Sales Act was passed in 1869 estates were being put up for sale for arrears irrespective of the question whether the majority of the cosharers had deposited their shares of the revenue or whether the amount due was large or small. The cosharers who had paid their shares within the due date were affected seriously by such sales. Provision was therefore made in 1859 for affording protection to the cosharers who were willing to pay and had ' paid their share of the revenue. On the application of the parties the Collector began to keep a record of separate accounts in the names of the different cosharers. The liability of the entire estate for the total amount of revenue was not in any way affected by this arrangement. 'The only privilege given was that if the cosharers had got separate accounts opened in the collectorate the revenue apportioned for the particular cosharers would be receivable by the Collector. At the initial stage the shares belonging to such of the cosharers who duly paid the amount allotted in their share would not be put up to sale even if there be a default on the part of one or more of the other cosharers. Only the defaulting separate accounts would be put up to sale in the first instance. If the Collector found that the total amount of the revenue in arrears was not realizable from such sale, he would thereupon stop the sale of the defaulting share and give notice that the entire estate would be put up to sale. The paramount consideration governing the whole of this Act is to preserve intact the 287 ultimate security of government for the revenue demand against the estate. By permitting the opening of separate accounts the Act seeks to give recorded sharers of a joint estate an easy means of protecting their shares from sale for the default of their cosharers, but there is no ultimate protection if the government demand is still unsatisfied. Even in cases where all the shares are in default, this protection cannot be denied because the amount of arrears due from them may be different sums of money. Sections 13 and 14 of the Act on which the argument rests are in these terms: 13. " Whenever the Collector shall have ordered a separate account or accounts to be kept for one or more shares if the estate shall become liable 'to sale, for arrears of revenue, the Collector or other officer as aforesaid in the first place shall put up, to sale only, that share or those shares of the estate from which,, according to the separate accounts, an arrear of revenue may be due. In all such cases notice of the intention of excluding the share or shares from which no arrear is due shall be given in the advertisement of sale prescribed in section 6 of this Act. The share or shares sold, together with the share or shares excluded from the sale, shall continue to constitute one integral estate, the share or shares sold being charged with the separate portion, or the aggregate of the several separate portions, of jama assigned thereto. If in any case of a sale held according to the provisions of the last preceding section the highest offer for the share exposed to sale shall not equal the amount of arrear due thereupon to the date of sale, the collector or other officer as aforesaid shall stop the sale, and shall declare that the entire estate will be put up to sale for arrears of revenue at a future date,unless the other recorded sharer or sharers or one or more of them, shall within ten days purchase the share in arrear by paying to the Provincial Government the whole arrear due from such share. 288 If such purchase be completed, the Collector or other officer as aforesaid shall give such certificate and delivery of possession as are provided or in sections 28 and 29 of this Act to the purchaser or purchasers, who shall have the same rights as if the share bad been purchased by him or them at the sale. If no such purchase be made within ten days. as aforesaid I the entire estate shall be sold, after notification for such period and publication in such manner as is prescribed in section 6 of this Act. " The concluding words of section 14 furnish a key to the construction of these sections. When a contingency arises in a case, where two separate accounts have been kept, to sell an entire estate, a fresh notification has to issue in accordance with the provisions of section 6 of the Act notifying that the entire estate is for sale. In the absence of such a notification a sale of an entire estate is not authorised in such a case. Section 13 thus empowers the Collector where separate accounts are kept, to sell the shares in default as such, there being no scope for the operation of paragraph 2 of the section where all the shar ers ' are in default. There is nothing in that section which disentitles the Collector where two separate accounts have been kept and both of them are in default, to notify for sale the separate accounts for recovery of arrears due from each of them separately, or to bring several defaulting shares to sale all at once without following the procedure laid down in section 13. If the Collector proposes to sell the entire estate, where there are several accounts, the first step he has to take is to close the separate account or accounts or merge them into one demand and the next step would be to issue a notification for sale of the entire estate under section 6 and it is only when the Collector has followed this procedure that he would have authority to bring to sale the entire estate and not otherwise . In this case no such thing was done. The demands against the two shares were not merged into one item and the entire estate could not 280 be sold for two separate demands. It could only be notified for sale for recovery of a single sum of arrears due from the entire estate. In our judgment, therefore, it is not right to hold as was contended by Mr. Ghosh that a sale for arrears of revenue is not a sale under section 13 unless there is a share from which no arrear is due and unless a notice of the intention of excluding that share is given in the advertisement of sale under section 6 of the Act that that share is excluded from sale. The second point of Mr. Ghosh that no inference should have been drawn in this case that the lands in suit were resettled by the purchaser of the patni on the plaintiffs is also without force. The facts from which an inference of resettlement has been drawn by the courts below were alleged in the plaint and on those facts such an inference could be justifiably raised. The plaintiffs had been paying rent to the purchaser of the patni on the land in their possession and this was accepted by the purchaser as if they were his tenants. In those circumstances the absence of a 'specific pleading as to resettlement could not in any way be said to prejudice defendant 15 's case. Upendranath Pal having treated the plaintiffs as tenants, defendant 15 has no right to question their interest and it must 'be held that their claim was rightly decreed in the courts below to the extent that they were able to establish it. The appeal before us was limited to the plots of land which were not covered by the sanads or regarding which plaintiffs hid not been able to prove that they were occupancy tenants. In view of our findings, however, the appeal even as regards those plots has no merits. For the reasons given above the appeal fails and is dismissed with costs. Appeal dismissed. Agent for respondents Nos. 1, 2 (b) & 15; section C.Bannerjee.

IN-Abs

Under the Bengal Land Revenue Sales Act (XI of 1859) if this Collector proposes to sell the entire estate where there art separate accounts for the several shares which constitute the estate, he has first to close the separate account or accounts or merge them into one demand and then he has to issue a notification for the sale of the entire estate under section 6 of the Act and it is only when the Collector has followed this procedure that he would have authority to bring to sale the entire estate. Where a touzi was held in two shares in respect of which separate accounts were kept in the Collector 's records and, as the shares were in arrears a notification was issued putting up for sale the two separate units of the estate and showing the separate items of arrears due from each unit, and both the shares were sold: Held, that the sale cannot be treated as a sale of the entire estate even though the two shares constituted the whole estate, and the purchaser was not entitled to the privileges conferred on the purchaser of an entire estate by section 37 of the Bengal Land Revenue Sales Act, 1859. The notification issued under section 6 of the Act was conclusive as to whether the subject matter of the sale was the entire estate or the separate shares constituting the estate.

minal Appeal No. 156 of 1960. Appeal by special leave from the judgment and order dated August 1, 1958, of the Rajasthan High Court, at Jodhpur in Criminal Appeal Nos. 98 and 155 of 1957 and Criminal Revision No. 116 of 1957. Jai Gopal Sethi, C. L. Sareen and R. L. Kohli, for the appellant. H. J. Umrigar, H. R. Khanna, Bipin Behari Lal, R. H. Dhebar and D. Gupta, for the respondent. 663 1961. March 30. 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 Rajasthan dated August 1, 1958, confirming the Judgment of the Additional Sessions Judge, Churu, dated May 3, 1957, in so far as he convicted the appellant under sections 347, 365 and 386, Indian Penal Code, and setting aside his order acquitting the appellant under section 458, Indian Penal Code, and convicting the appellant under section 452, Indian Penal Code. The learned Additional Sessions Judge sentenced the appellant for the offences under sections 347, 365 and 386, Indian Penal Code, to undergo rigorous imprisonment for I year, 2 years and 3 1/2 years respectively. Tile High Court enhanced the sentences in respect of the offences under so. 347 and 386, Indian Penal Code, to 3 years and 8 years respectively, and also imposed a fine of Rs. 20,000 on the appellant; the sentence in regard to the offence under section 365, Indian Penal Code, was confirmed. The High Court further found that the appellant was guilty under section 352, Indian Penal Code, also and for that offence it sentenced him to undergo rigorous imprisonment for 7 years. At the outset it would be convenient to state briefly the case of the prosecution. One Kashiram, a prosperous businessman, was residing at Sidhmugh. His only son Suraj Bhan was living at Rajgarh where lie was carrying on an independent business of his own. On November 12,1954, when Suraj Bhan was at his desk in his house, somebody made an enquiry whether one Rameshwar was there, to which Suraj Bhan replied in the negative. A few minutes thereafter, two men with masks entered the room and one of them was armed with a revolver. The said two persons threatened to shoot Suraj Bhan if he made any noise and then took him outside the house where two camels were kept waiting attended by two other persons similarly masked. After covering the face of Suraj Bhan by tying a cloth round his neck, he was made to mount one of the camels. The two persons who pulled Suraj Bhan out of his house also 664 mounted the same camel, one in front of Suraj Bhan and the other behind him. After firing some shots in the air, presumably to prevent pursuit, the said per sons, along with Suraj Bhan, left the place. After riding for 3 or 4 hours, the camels were made to stop on a railway line, the said persons got down from the camel, Suraj Bhan was also made to get down, and all of them went along the railway line for 3 or 4 furlongs. Thereafter, Suraj Bhan was taken to the house of Dee Chand, the appellant, in village Kalari and was kept there in confinement in a small room for 17 days. During the entire period he was kept blindfolded. Two or three days after the abduction, Suraj Bhan was made to write three letters to his father and put down his father 's address on the envelopes. He was made to write these letters under the cover of a blanket after his bandage was removed temporarily. In the first letter he was made to write that if his father reported the matter to the police, he would not see his son again in the second letter, he was made to inform his father that in view of the attempts made by his father to trace him, his abductors had made up their minds not to release him, but in view of his entreaties they had agreed to release him on payment of a ransom of Rs. 60,000; and in the third letter, he was made to write that the money should be handed over to the bearer of the letter and that he would be released on such payment. After the receipt of the first two letters by Kashi Ram, the abductors entered on the second stage of negotiations. Meanwhile, to facilitate the smooth conduct of the negotiations, on November 29, 1954, Suraj Bhan was removed to the house of one Lachhman and was confined there till his release. Kashi Ram has a son in law by name Shiv Bhagwan, the son of one Durga Parshad. Dhannaram and Shiv Bhagwan knew each other. Dhannaram offered to help Kashi Ram to get the release of his son. Dhannaram gave a letter addressed to Deep Chand to Durga Parshad wherein Deep Chand was requested to render his help in the matter of the release of Suraj Blian. On the basis of the letter, Durga Parshad contacted Deep Chand, who promised 665 to do his best in the matter. After further talks, Dhannaram met Shiv Bhagwan and told him that Suraj Bhan was alive but a large sum would be required as ransom to get his release. He also warned him not to divulge the secret, for, if he did so, not only the life of Suraj Bhan but also of other relations would be in danger. He demanded Rs. 70,000 as ransom, but after some higgling it was fixed at Rs. 50,000. The third letter written by Suraj Bhan at the instance of Deep Chand was shown to Shiv Bhagwan and to his father Durga Parshad to assure them that Suraj Bhan was alive. After satisfying themselves ' of the bona fides of the negotiations conducted by Dhannaram, Shiv Bhagwan and Durga Parshad went to the house of Dhannaram where they found Deep Chand. The sum of Rs. 50,000 was paid to Dhannaram and Deep Chand; and both of them counted the money. The money was paid on December 17,1954, and Suraj Bhan was released on December 20, 1954. Five persons, namely, Deep Chand, Sisram, Jiwan Ram, Dhannaram and Ramji Lal, were prosecuted in the Sessions Court for the aforesaid offences. The learned Sessions Judge acquitted Ramji Lal, Dhannaram and Jiwan Ram, and convicted Sisram under sections 347 and 365, Indian Penal Code, and Deep Chand as aforesaid. Nothing more need be said about the conviction of Sisram, as on appeal he was acquitted by the High Court and no appeal was preferred by the State against his acquittal. The learned Sessions Judge, on a consideration of the entire evidence placed before him, held that there was overwhelming evidence to show that Deep Chand detained Suraj Bhan in his house for sometime and thereafter in Lachhman 's house and released him on payment of a ransom. But he held that there was not sufficient evidence to find definitely that Deep Chand participated in the abduction of Suraj Bhan on November 12, 1954, from the latter 's house. On these findings, he convicted Deep Chand under sections 347, 365 and 386, Indian Penal Code. Deep Chand preferred an appeal against his conviction, and the State filed an appeal 84 666 against the judgment of the learned Sessions Judge in so far as he acquitted Deep Chand of the offence under section 458, Indian Penal Code. The State also preferred a revision for enhancing the sentences passed on Deep Chand. All the matters were heard together by the High Court and, on a resurvey of the entire evidence, it agreed with the Sessions Judge that Suraj Bhan was confined in the house of Deep Chand and later on in the house of Lachhman and that he extorted money from Kashi Ram by putting him under fear of death of his son, Suraj Bhan. Disagreeing with the Sessions Judge, the High Court further held that it had been established on the evidence that Deep Chand was one of the persons who abducted Suraj Bhan from his house on November 12, 1954. In the result, the High Court convicted the appellant not only under sections 347, 365 and 386, Indian Penal Code, but also under section 452 thereof. In the matter of enhancement of the sentences, it was of the view that the case deserved an exemplary punishment and, therefore it enhanced the sentences as aforesaid. Deep Chand preferred the present appeal by special leave. Learned counsel for the appellant in an attempt to dislodge the findings arrived at by the High Court raised the following points before us: (1) The High Court erred in relying upon the statement made by Suraj Bhan before the Magistrate at the time of verification proceedings, though it was not recorded in compliance with the provisions of section 164 of the Code of Criminal Procedure, and if the said statement and the verification proceedings based on that statement were excluded, it is not possible to predicate that the High Court would have accepted the evidence of Suraj Bhan in respect of his version that he was confined in the house of Deep Chand. (2) The High Court also went wrong in upholding the privilege claimed by Shri section Gajender Singh, the District Magistrate, in respect of important questions put to him in the cross examination; and if the claim of privilege had not been upheld, answers would have been elicited from him which might have established that Suraj Bhan was lying in the witness stand and that his previous 667 statements represented the truth. (3) The High Court erred also in setting aside the order acquitting the appellant under section 458, Indian Penal Code, without sufficient and compelling reasons and in convicting him under section 452, Indian Penal Code. To appreciate the said questions, it is necessary to notice briefly the facts found by the courts below. On the first part of the episode, that is, the abduction of Suraj Bhan, the High Court accepted the evidence of Suraj Bhan. Suraj Bhan stated in his evidence that when he was writing his accounts at about 7 15 p.m. in his house on November 12, 1954, two persons with their faces covered with masks entered his house and by threatening to shoot him, forcibly took him away on one of the two camels brought by them. He further alleged that he recognized one of the abductors who threatened him with a revolver as Deep Chand, as he was a local Congressman known to Suraj Bhan from before. This identification of Deep Chand as one of the accused was not accepted by the Sessions Judge, but the High Court accepted it for the reason given in its judgment. As regards the second stage, namely, the confinement of Suraj Bhan in Deep Chand 's house, the High Court accepted the evidence of Suraj Bhan identifying the said house by giving particulars thereof. Suraj Bhan 's version was as follows: During his confinement in the house, he used to loosen the bandage and see through the chinks in the wall of the room in which he was interned. He was in that house for 17 days and he had heard the voice of Deep Chand whom he knew before. During his confinement there, he also heard a lady enquiring whether Deep Chand had gone out and another lady answering the query. He had also given in detail the landmarks he gathered in the course of his journey from his house to the house of Deep Chand which substantially tallied with those leading to Deep Chand 's house. This evidence of Suraj Bhan was corroborated by the evidence of Devisingh, the Magistrate, Randhawa and Ratan Singh. The Magistrate took Suraj Bhan along with him to the house of Deep Chand. He inspected the house and got the plan, exhibit P 28, prepared under his 668 supervision by P.W. 25, the Reserve Inspector, Churu. He also recorded the memorandum, exhibit P 27, in which his observations and the statements made by Suraj Bhan were noted down. ' The Magistrate gave evidence as P.W. 21 and in his evidence he described the building of Deep Chand and also proved the memorandum prepared by him. His evidence is further corroborated by the evidence of two witnesses, P.W. 25, Randhawa, and P.W. 39. The memorandum prepared by the Magistrate, his evidence and the evidence of P.Ws. 25 and 39 establish that there used to be chinks in the wall through which Suraj Bhan used to see a tree and that these chinks had been recently closed "by pointing the room from inside" and that two new rooms were constructed towards the north of the house. P.W. 27 deposed that these two new constructions were made about the beginning of the year 1955. This evidence, which was accepted by the courts below, supported the evidence of Suraj Bhan in regard to the condition of the building at the time he was interned therein. On the basis of the said evidence, both the courts concurrently held that the house in which Suraj Bhan was interned for 17 days was the house of Deep Chand. Now coming to the third stage of the journey, that is, the confinement of Suraj Bhan in Lachhman 's house, Lachhman, as P.W. 3, deposed that on a request made by Jiwan Ram on behalf of Deep Chand he agreed to keep a lady whom Jiwan Ram and Deep Chand would bring to his house for a few days and on the next day, Deep Chand and Sisram brought in the midnight Suraj Bhan instead of a lady. He also described in detail the instructions given to him by Deep Chand and the manner in which he attended on Suraj Bhan, during his stay of 21 days in his house. This house was also identified by Suraj Bhan. Suraj Bhan further gave some details of the surroundings of the house and also the name of the son of Lachhman. This evidence proves that Suraj Bhan was shifted by Deep Chand to the house of Lachhman on the eve of the negotiations. The High Court held against the appellant, even without calling in aid the evidence of Lachhman, on the basis of other facts. 669 Then there is the evidence of Shiv Bhagwan and Durga Parshad, who actually paid the ransom. These witnesses spoke about the negotiations and also the actual payment of Rs. 50,000 to Deep Chand. This evidence was again accepted by both the courts. Then there was the evidence of Lachi Ram and Amar Singh, who carried on negotiations with Deep Chand for the return of the ransom in the presence of Chowdhuri Kumbbaram, the then Home Minister of Rajasthan. This evidence was also accepted by both the courts. The aforesaid evidence, along with other circumstances, according to the High Court, brought home the guilt to the appellant on all charges. It is the usual practice of this Court to accept the concurrent findings of fact arrived at by the courts below and there are no exceptional circumstances in this case to depart from the usual practice. We shall now proceed to consider the arguments of learned counsel for the appellant seriatim. His first criticism is directed against the verification proceedings conducted by the Magistrate at the house of Deep Chand. On the basis of the statement made by Suraj Bhan giving the particulars of the building, the Magistrate got a plan, exhibit P 28, prepared and also a memorandum, exhibit P 27. He also gave evidence in the court. It is said that the High Court went wrong in acting upon the said memorandum by the Magistrate. The relevant provisions are section 164 of the Code of Criminal Procedure and section 9 of the Evidence Act. The material part of section 164 of the Code of Criminal Procedure reads: "(1) Any Presidency Magistrate, any Magistrate of the first class and any Magistrate of the second class specially empowered in this behalf by the State Government may, if he is not a police officer record any statement or confession made to him in the course of an investigation under this Chapter or under any other law for the time being in force or at any time afterwards before the commencement of the inquiry or trial. (2) Such statements shall be recorded in such of the manners hereinafter prescribed for recording 670 evidence as is, in his opinion, best fitted for the circumstances of the case. Such confessions shall be recorded and signed in the manner provided in section 364, and such statements or confessions shall then be forwarded to the Magistrate by whom the case is to be inquired into or tried. " Section 9 of the Evidence Act says that facts which. establish the identity of any thing or person whose identity is relevant, are relevant in so far as they are necessary for that purpose. These two sections deal with different situations: section 164 of the Code of Criminal Procedure prescribes a procedure for the Magistrate recording statements made by a person during investigation or before trial; section 9 of the Evidence Act, on the other hand, makes certain facts which establish the identity of a thing as relevant evidence for the purpose of identifying that thing. If a statement of a witness recorded by a Magistrate in derogation of the provisions of section 164 will go in as evidence under section 9 of the Evidence Act, the object of section 164 of the said Code will be defeated. It is, therefore, necessary to resort to the rule of harmonious construction so as to give full effect to both the provisions. If a Magistrate speaks to facts which establish the identity of any thing, the said facts would be relevant within the meaning of s, 9 of the Evidence Act; but if the Magistrate seeks to prove statements of a person not recorded in compliance with the mandatory provisions of section 164 of the Code of Criminal Procedure, such part of the evidence, though it may be relevant within the meaning of section 9 of the Evidence, ' Act, will have to be excluded . By such a construction of the provisions a satisfactory solution could be evolved. The decision of the Judicial Committee in Nazir Ahmad vs The King Emperor (1) is rather instructive. There, a Magistrate gave evidence in court on the strength of a confession made to him which was not recorded under section 164 of the Code of Criminal Procedure. The question was whether the said evidence was admissible against the accused. The Judicial Committee quoted and approved the well recognized rule that (1) Lahore 629. 671 where power is given to do a certain thing in a certain way, the thing must be done in that way or not at all, and other methods of performance are necessarily forbidden. Adverting to section 164 of the Code of Criminal Procedure, the Judicial Committee proceeded to state at p. 642 thus: "It is also to be observed that, if the construction contended for by the Crown be correct, all the precautions and safeguards laid down by sections 164 and 364 would be of such trifling value as to be almost idle." The Judicial Committee also stated the policy underlying the section thus at p. 643: "In the result they would indeed be relegated to the position of ordinary citizens as witnesses and then would be required to depose to matters transacted by them in their official capacity unregulated by any statutory rules of procedure or conduct whatever. " These are weighty observations and we respectfully adopt them. But this decision does not preclude, a Magistrate from deposing to relevant facts if no statute precludes him from doing so either expressly or impliedly. Neither the Evidence Act nor the Code of Criminal Procedure prohibits a, Magistrate from deposing to relevant facts within the meaning of section 9 of the Evidence Act. In Legal Remembrancer vs Lalit Mohan Singh Roy (1), a Magistrate sought to give evidence of an unrecorded statement made to him by the accused. The court rightly held that it was not permissible. The same remarks we made in regard to the decision of the Privy Council would apply to this case. In this context a few relevant decisions bearing on the admissibility in evidence of verification proceedings could conveniently be noticed. In Amiruddin Ahmed vs Emperor (2), a Magistrate conducted verification proceedings with a view to test the truth of a confession made by the accused. Teunon, J., made the following observations at p. 564: "They are undertaken, it would seem, with a view (1) Cal. 167. (2) Cal 557. 672 to testing the truth of a confession and to obtain evidence either corroborating the confession or indicating its falsity. In so far at least as such evidence may be obtained, for instance, in ascertaining that the prisoner is familiar with, or wholly ignorant of, the localities of which he has spoken, or in furnishing clues to further enquiry, such proceedings may be useful. In connection with such proceeding the main concern of the Court would seem to be to ensure that evidence not strictly admissible is not admitted. In the present case that precaution has not been taken: for we find that the verifying Magistrate has been permitted to speak to statements said to have been made to him in the course of his proceedings. Such additional statements being statements made in the course of an investigation, when not recorded in the manner provided in section 164 of the Code of Criminal Procedure, are, in my opinion, inadmissible." The other learned Judge, Shamsul Huda, J., made the following statement at p. 572: "I think, 'verification ' under conditions such as these lends itself to very great abuses and should be avoided. There is perhaps nothing objectionable in a verification made independently of the confessing accused and unaided by him". We are not concerned in this case with the propriety of verification proceedings in regard to a confession made by an accused. This decision is an authority for the position that the evidence given by a Magistrate on the basis of the verification proceedings conducted by him is relevant evidence ' though he could not speak of statements made by the accused or a witness recorded by him in contravention of section 164 of the Code of Criminal Procedure. The same distinction was pointed out by the Special Bench of the Calcutta High Court in Jitendra Nath vs Emperor (1). In that case, the learned Judges observed at p. 110 thus: "In one case there was a verification report so far as the confessional statement of an accused person was concerned, which it would appear was fairly (1) A.I.R. 1937 Cal. 673 supported by other evidence bearing on matters covered by the said report by the Magistrate by whom it was recorded, and which cannot be ruled out on the ground that it was inadmissible in evidence, seeing that the Magistrate himself was examined as a witness in the case, and spoke to the contents of the report made by him, which is placed on record as evidence, in support of the confessional statement of Sudhir Bbattacharjya. " Then the learned Judges proceeded to state, "Statements made by the accused to the verifying Magistrates in the course of the proceedings, if they are not recorded in the manner provided in section 164, Criminal Procedure Code, are however inadmissible. " It is, therefore, clear that the memorandum prepared by the Magistrate describing the present condition of the house and the evidence given by him on the basis of that memorandum would be relevant evidence under section 9 of the Evidence Act; but *.he statements made by Suraj Bhan to the Magistrate said to be not recorded in the manner prescribed by section 164 of the Code of Criminal Procedure would be inadmissible. We are proceeding on the basis that the said statements were not recorded in compliance with the provisions of section 164 of the Code of Criminal Procedure and we should not be understood to have expressed any opinion on the question whether they have been so recorded or not, or whether mere irregularities, if any, committed in the manner of recording such statements by Magistrates under section 164 of the Code of Criminal Procedure would make such statements inadmissible. That apart, exhibit P 27 and the evidence given by the Magis trate were only used by the court as corroborating the evidence of Suraj Bhan in regard to his evidence describing the house of Deep Chand. Apart from the Magistrate 's evidence there is also other. evidence in the case in regard to the original condition of the building and the subsequent additional structures put up by Deep Chand. As the High Court accepted that evidence, even if the evidence of the Magistrate was excluded it would not have made any difference in the result. We, therefore, hold that the evidence of the 85 674 Magistrate, excluding that part pertaining to the statements made to him by Suraj Bhan, was relevant evidence in the case. The second contention turns upon the claim of privilege raised by witness Gajender Singh and allowed by the learned Sessions Judge. Some of the relevant facts may now be stated. Suraj Bhan was released on December 20, 1954. On February 14, 1955, one Shiv Dutt made a statement before the District Magistrate, section Gajendar Singh, and the said Magistrate recorded the same under section 164 of the Code of Criminal Procedure. In that statement Shiv Dutt stated that Suraj Bhan told him the present version of the prosecution. On March 12, 1955, Suraj Bhan was examined by the police and he made a statement (exhibit D 8). Therein he gave an altogether different version contradicting the statement of Shiv Dutt, On April 29, 1955, Suraj Bhan filed an affidavit, exhibit P 5, in the: Court of the Additional District Magistrate, Ganganagar, stating that Deep Chand had nothing to do with the offence ' On May 5, 1955, the prosecution got five copies of the said affidavit made and attested. On May 23, 1956, for the first time, Suraj Bhan implicated Deep Chand in the crime. Regarding the question whether Shiv Dutt made such a statement on February 14,1955, Gajender Singh and Shiv Dutt were examined and both of them spoke to that fact. The argument is that important questions put to Gajender Singh were illegally disallowed and if they had not been disallowed the accused would have been in a position to establish that Gajender Singh was not speaking the truth and that if that evidence was eliminated, the High Court might not have accepted the reasons advanced by the prosecution explaining away the inconsistent versions given by Suraj Bhan. At the outset it may be stated that it is not quite correct to state that the High Court explained away the earlier versions given by Suraj Bhan on the basis of the evidence given by Gajender Singh. On the other hand, both the courts have given convincing reason why Suraj Bhan and the members of his family did not come forward immediately with the true version of the incident; for, at one stage, they were anxious to 675 save the life of Suraj Bhan and at a later stage they were equally anxious to get back the money paid as ransom by Suraj Bhan 's father. The courts have also accepted the evidence of Shiv Dutt. That apart, the question of privilege was not raised before the High Court. In the circumstances, we would not be justified in allowing the appellant to raise before us the question of privilege based upon ' the disallowance of a few questions put to one of the witnesses. This objection is, therefore, rejected. The third argument has no merits either. The High Court considered, and in our view rightly that there was no reason to disbelieve the evidence of Suraj Bhan when he identified Deep Chand at the time of abduction. Suraj Bhan knew the accused before and he also knew his stature and voice. Suraj Bhan was in the company of Deep Chand from the time of his abduction till he was finally released. When Suraj Bhan, in the circumstances, stated that he identified Deep Chand, there is no valid reason to reject his evidence. In the circumstances, the High Court was quite justified in setting aside the order of acquittal under section 458, Indian Penal Code, and convicting him for the offence under section 452 there of Finally learned counsel for the appellant made an impassioned appeal on the question of sentence. He said that the learned Sessions Judge had awarded a reasonable sentence to the accused and the High Court was not justified in enhancing the said sentence. The Sessions Judge held that the accused was guilty of a grave and heinous crime and we are surprised that he should have sentenced the accused to undergo rigorous imprisonment for one year under section 347, 2 years under section 365 and 3 1/2 years under section 386, Indian Penal Code, and direct the sentences to run concurrently. When the Sessions Judge gave such a disproportionately lenient sentences, it was the duty of the High Court to rectify such an obvious error. In our view, the learned Judges of the High Court rightly enhanced the sentence imposed on the appellant. In the result, the appeal fails and is dismissed. Appeal dismissed.

IN-Abs

In a verification proceeding held by him the Magistrate. prepared a memorandum recording his own observations as also the statements made to him by a prosecution witness but not in the manner prescribed by section 164 Of the Code of Criminal Procedure. He proved the memorandum in court and gave his evidence. It was contended that the High Court was wrong in acting upon the said memorandum. Held, that although section 164 Of the Code of Criminal Procedure and section 9 of the deal with two different matters, they must be read together and harmoniously con strued so as to give full effect to both of them. So construed, there could be no doubt that the evidence of the Magistrate himself on the basis of the memorandum would be relevant under section 9 of the Evidence Act and as such admissible in evidence but the statements made to him by the prosecution witness, having been recorded in contravention of the mandatory provisions of section 164 Of the Code, must be excluded as inadmissible ' on evidence. Nazir Ahmad vs The King Emperor, Lah. 620, Legal Remembrancer vs Lalit Mohan Singh Roy, (192I) I.L.R. considered. Amiruddin Ahmed vs Emperor, Cal. 557, and jitendra Nath vs Emperor, A.I.R. 1937 Cal. 99, referred to.

iminal Appeal No. 37 of 1960. Appeal by special leave from the judgment and order dated the April 7, 1958, of the Punjab High Court (Circuit bench) at Delhi in Criminal Writ No. 57 D of 1957. M. C. Setalvad, Attorney General of India, B. Sen and T. M. Sen, for the appellants. H. L. Anand and Janardan Sharma, for respondent. April 4. The Judgment of the Court was delivered by 94 746 SARKAR, J. This is an appeal by the Union of India from a judgment of the High Court of Punjab allowing the respondent 's application under article 226 Of the Constitution for a writ quashing an order made against him on January 29, 1958, under section 3(2)(c) of the . That order was made by the Chief Commissioner of Delhi and was in these terms: "The Chief Commissioner of Delhi is pleased to direct that Mr. Ghaus Mohd. . a Pakistan national shall not remain in India after the expiry of three days from the date on which this notice is served on him. . . The order was served on the respondent on February 3, 1958. The respondent did not comply with that order but instead moved the High Court on February 6, 1958, for a writ to quash it. The High Court observed that "There must be prima facie material on the basis of which the authority can proceed to pass an order under section 3(2)(c) of the . No doubt if there exists such a material and then the order is made which is on the face of it a valid order, then this Court cannot go into the question whether or not a particular person is a foreigner or, in other words, not a citizen of this country because according to Section 9 of the , this question is to be decided by a prescribed authority and under the Citizenship Rules, 1956, that authority is the Central Government. " The High Court then examined the materials before it and held, "in the present case there was no material at all on the basis of which the proper authority could proceed to issue an order under Section, 3(2)(c) of the ." In this view of the matter the High Court quashed the order. It was contended on behalf of the Union of India that section 9 of the , had no application to this case. We think that this contention is correct. That section deals with the termination of citizenship of a citizen of India in certain circumstances. It is not the Union 's case nor that of the respondent that the latter 's citizenship came to an end 747 for any of the reasons mentioned in that section. The reference to that section by the High Court for the decision of the case, was therefore not apposite. That section had no application to the facts of the case. Section 2(a) of the , defines a "foreigner" as "a person who is not a citizen of India Sub section (1) of section 3 of that Act gives power to the Central Government by order to provide for the presence or continued presence of foreigners in India. Sub section (2) of section 3 gives express power to the Government to pass orders directing that a foreigner shall not remain in India. It was under this provision that the order asking the respondent to leave India was made. There is no dispute that if the respondent was a foreigner, then the order cannot be challenged. The question is whether the respondent was a foreigner. Section 8(l) of the to which we were referred, deals with the case of a foreigner who is recognised as its national by more than one foreign country or when it is uncertain what his nationality is. In such a case this section gives certain power to the Government to decide the nationality of the foreigner. Sub section (2) of this section provides that a decision as to nationality given under sub sec. (1) shall be final and shall not be called in question in any court,. We entirely agree with the contention of the Union that this section has no application to this case for that section does not apply when the question is whether a person is a foreigner or an Indian citizen, which is the question before us, and not what the nationality of a person who is not an Indian citizen, is. Section 9 of this Act is the one that is relevant. That section so far as is material is in these terms: Section 9. "If in any case not falling under section 8 any question arises with reference to this Act or any order made or direction given thereunder, whether any person is or is not a foreigner. . the onus of proving that such person is not a foreigner . shall, notwithstanding anything contained in 'the (1 of 1872), lie upon such person. " 748 It is quite clear that this section applies to the present case and the onus of showing that he is not a foreigner was upon the respondent. The High Court entirely overlooked the provisions of this section and misdirected itself as to the question that arose for decision. It does not seem to have realised that the burden of proving that he was not a foreigner, was on the respondent and appears to have placed that burden on the Union. This was a wholly wrong approach to the question. The question whether the respondent is a foreigner is a question of fact on which there is a great deal of dispute which would require a detailed examination of evidence. A proceeding under article 226 of the Constitution would not be appropriate for a decision of the question. In our view, this question is best decided by a suit and to this course neither party seems to have any serious objection. As we propose to leave the respondent free to file such a suit if he is so advised, we have not dealt with the evidence on the record on the question of the respondent 's nationality so as not to prejudice any proceeding that may be brought in the future. We think, for the reasons earlier mentioned, that the judgment of the High Court cannot be sustained and must be set aside and we order accordingly. On behalf of the Union of India the learned Attorney General has stated that the Union will not take immediate steps to enforce the order of January 29, 1958, for the deportation of the respondent so that in the meantime the respondent may if he so chooses, file a suit or take any other proceeding that he thinks fit for the decision of the question as to whether he is a foreigner. In the result the only order that we make is that the order and the judgment of the high Court are set aside. Appeal allowed.

IN-Abs

An order had been made under section 3(2)(C) Of the , directing that the respondent, "a Pakistan national 745 shall not remain in India after the expiry of three days". The respondent moved the High Court of Punjab under article 226 of the Constitution to quash the order contending that he was not a Pakistan national. The High Court held that if there was Prima facie material to show that a person was a foreigner, a civil court would not go into the question whether he was a foreigner for under section 9 of the , that question had to be decided by the prescribed authority which under the Rules framed under the Act, was the Central Government. The High Court came to the conclusion that there was no Prima facie material on the basis of which an order under section 3(2)(C) Of the could be passed against the respondent and in that view quashed the order. On appeal by the Union of India by special leave, Held, that section 9 of the dealt with the termi nation of the citizenship of an Indian citizen and had no application to this case as the Union did not contend that the respondent had been an Indian citizen whose citizenship had terminated. Section 8 of the which made the decision` of the Central Government on a question of the nationality of a foreigner who is recognised as its national by more than one foreign country or when it is uncertain what his nationality is final, also did not apply as the only question in this case was whether the respondent was a foreigner or an Indian Citizen. The case was governed by section 9 of the under which when a question arises whether a person is or is not a foreigner, the onus of proving that he is not a foreigner is on that person. The High Court was in error In placing on the Union of India the burden of proving that the respondent was a foreigner.

ons Nos. 93 and 125 of 1959. Petitions under article 32 of the Constitution of India for enforcement of Fundamental Rights. V. M. Limaye, E. Udayarathnam and section section Shukla, for the petitioners. 734 H.N. Sanyal, Additional Solicitor General of India, R. Ganapathy Iyer and D. Gupta, for the respondent. W. section Barlingay and A. G. Ratnaparkhi, for the Interveners. April 4. The Judgment of the Court was delivered by GAJENDRAGADKAR, J. These two writ petitions have been filed under article 32 of the Constitution and they seek to challenge the validity of the Bombay Tenancy and Agricultural Lands Act 99 of 1958 (hereafter called the Act). The impugned Act in substance is intended to extend to Vidarbha region and Cutch area which had then become a part of the Greater Bi Lingual State of Bombay the provisions of the Bombay Tenancy and Agricultural Lands (Amendment) .Act, 1956 (Act XIII of 1956). The preamble to the impugned Act shows that it was intended to amend the law relating to tenancies of agricultural lands and sites used for allied purposes in the two areas of the State of Bombay and to make certain other provisions in regard to those lands. In extending the provisions of the earlier Bombay Act XIII of 1956 to the two areas the legislature has conformed to the pattern set up by the said earlier Act. The policy underlying the Act and the object intended to be achieved by it are the same and the method adopted in achieving that object is also the same. The validity of the earlier Bombay Act (XIII of 1956) was challenged before this Court in Sri Ram Ram Narain Medhi vs The State of Bombay (1) but the challenge failed and the Act was held to be constitutional. One of the points which arose for decision in that case was whether the impugned Act was protected by article 31A(2)(a) of the Constitution, and the answer to that question depended upon the determination of another issue which was whether the lands to which the said Act applied were an "estate" as required by article 31A(2)(a). In dealing with that question this Court held that the word "estate" as defined by section 2(5) of the Bombay Land Revenue Code, 1879, clearly applied to the lands (1) [1959] Supp. 1 S.C.R. 489. 735 covered by the Act and so article 31A(2)(a) was applicable. Having regard to this decision the only point which Mr. Limaye attempted to raise before us in support of the two writ petitions is that the lands belonging to the two petitioners are not an "estate" within the meaning of article 31A(2)(a), and so the impugned Act is outside the protection of article 31A. If this contention is not upheld then it is obvious that( the writ petitions must fail; if the said contention is upheld then of course the other contentions raised by the two writ petitions against the validity of certain specific provisions of the Act may fall to be consi dered. The two petitioners are Namdeorao Baliramji and Mahadeo Paikaji Kolhe respectively. The first one resides at Amraoti and the second at Yeotmal. The first owns about 80 acres dry lands situated in Amraoti out of which 43 acres are under his personal cultivation and the rest in the possession of the tenants. The second petitioner owns about 1168 acres dry lands situated in Yeotmal out of which 400 acres are under his personal cultivation and the rest with the tenants. The lands in both the cases are charged to the payment of land revenue. The case for both the petitioners is that the lands thus held by them are not an "estate" within the meaning of article 31A(2)(a). Article 31A(2)(a) provides, inter alia, that the expression "estate" shall in relation to any local area have the same meaning as that expression or its local equivalent has in the existing law relating to land tenures in force in that area. The existing local law, it is common ground, is the Madhya Pradesh Land Revenue Code, 1954 (II of 1955), and so it is necessary to find whether the lands belonging to the petitioners can be said to be an 'estate ' within the meaning of the said Code. Before we do so, however, it may be pertinent to refer to the relevant definitions in the impugned Act. Section 2(17) of the Act defines land as meaning, inter alia, land which is used or capable of being used for agricultural purposes and includes the sites of farm buildings appurtenant to such land. Section 2(18) defines a land holder as meaning a 736 tenure holder whom the State Government has declared on account of tile extent and value of the, land or his interests therein to be a land holder for the purposes of this Act. Now,s.27 of the Madhya Pradesh Land Revenue Code in question defines a holding as meaning, inter alia,a parcel of land separately assessed to land revenue,and section 2(20) defines a tenure holder as meaning a person holding from the State Government as a Bhumiswami or a Bhumidari. Chapter XII of the Code deals with tenure holders. Section 145 provides that there, shall be two classes of tenure, holders of lands held from the State, namely, Bhumiswami and Bhumidhari. Section 146 deals with Bhumiswami. It provides that "every person who at the coming into force of this Code belongs to any of the classes specified in clauses (a) to (f) of the said section shall be called a Bhumiswami and shall have all the rights and is subject to all the liabilities conferred or imposed upon a Bhumiswami by or under this Code". Amongst these classes is the class covered by el. (e) which relates to persons in respect of lands held by them as occupants in Berar. Thus reading the relevant definitions along with the provisions of section 146 of the Code it would follow that the land in the possession of the Bhumiswami who is a tenure holder is in substance all estate. It is true that the word "estate" as such has not been employed in the Code, but it must be borne in mind that article 31A(2)(a) refers not only to estate but also to its local equivalent. It was realised that in many areas the existing law relating to land tenures may not expressly define all estate as such though the said areas had their local equivalents described and defined. That is why the relevant provision of the Constitution has deliberately used both the word "estate" as well as its local equivalent". The petitioners hold lands under the State and they pay land revenue for the, lands thus held by them. Therefore, there is no difficulty in holding that under the existing law relating to land tenures the lands held by them fill within the class of the local equivalents of the word "estate" as contemplated by 737 article 31A(2)(a). If that is so the contention raised by Mr. Limaye that the impugned Act is not protected by article 31A cannot succeed. As we have already indicated it is not disputed that if article 31A applies there can be no further challenge to the validity of the impugned statute. The writ petitions accordingly fail and are dismissed with costs one SEt of hearing costs. Petitions dismissed.

IN-Abs

The petitioners challenged the constitutional validity of the Bombay Tenancy and Agricultural Lands (Vidarbha Region and Kutch Area) Act, 1958, which extended the provisions of the Bombay Tenancy and Agricultural Lands (Amendment) Act, 1956, to Vidarbha and Kutch. That Act was declared valid by this Court in Sri Ram Narain Medhi vs The State of Bombay, [1950] Supp. 1 S.C.R. 489, and one of the reason , for doing so was that the lands covered by that Act fell within the definition of the word 'estate ' contained in the Bombay Land Revenue Code, 1879. The lands in question in the present petitions were situated in Amraoti and Yeotmal and the existing law relating to land tenures in force in that area was the Madha Pradesh Land Revenue Code, 1954. This Code did not employ the word ,estate ' and it was contended by the petitioners that the impugned Act was not within the protection of article 31A of the Constitution. Held, that the contention must fail. Although the Madhya Pradesh Land Revenue Code, 1954, did not employ the word 'estate ', the relevant definition contained in sections 2(17) and 2(18) of impugned Act and sections 2(7), 2(20) of the Code read with sections 145 and I46 thereof leaves no manner of doubt that the lands in the possession of the petitioners were tenures and in substance ,in estate. Since the petitioners held the lards tinder the State and paid land revenue for them, the lands fell within the class of local equivalents of the word 'estate. ' as contemplated by article 31A(2)(a) of the Constitution.

Appeal No. 388 of 1956. Appeal by special leave from the judgment and order dated the August 19, 1955, of the Bombay High Court in Appeal No. 53 of 1955. 755 C. K. Dhaphtary, Solicitor General of India, K. B. Choudhuri and B. H. Dhebar, for the appellant. N. section Bindra and R. section Narula, for respondent No. 1. B. H. Dhebar, for respondent No. 2. 1961. April 4. The Judgment of P. B. Gajendragadkar, IC. R. Wanchoo, K. C. Das Gupta and N. Rajagopala Ayyangar, JJ., was delivered by Ayyangar, J. A. K. Sarkar, J., delivered a separate judgment. AYYANGAR, J. This appeal by special leave is against the judgment and order of a Division Bench of the Bombay High Court by which a writ of mandamus or certiorari granted to the respondent was confirmed on appeal preferred by the appellant now before us. A few facts are necessary to be stated to understand the matters in controversy and the points raised for our decision. The respondent carries on business in Bombay and he was granted on August 18, 1954, a licence under the Imports and Exports (Control) Act, 1947, for the import of fountain pens at not less than Rs. 25 C.I.F. value each from soft currency area, up to a defined amount. He placed an order for the import of Sheaffer pens from Australia and a consignment of these was received by air in Bombay in Octo ber 1954. The fountain pens thus imported had nibs which were gold plated and also caps and clips of similar composition. The question in controversy relates to the rate of duty to be charged on these im. ported pens. The Schedule to the Indian Tariff Act, 1934, has an item numbered 45(3) in relations to the article described, as "fountain pens complete", the rate of duty being 30 per cent and valorem. It was the case of the respondent that the imported goods fell within this item and were liable to be charged with duty at that rate '. The Custom authorities, however, considered that the consignment fell within the description "articles plated with gold or silver" being item 61(8) on which duty was payable at 781 per cent. 756 The Assistant Collector of Customs adjudicated the duty on this latter basis and thereafter the respondent having filed an appeal to the Collector of Customs, the levy was upheld by order dated February 22, 1955. Section 191 of the enables any person aggrieved by an order of the Collector of Customs to file a revision to the Central Government. The respondent, without resorting to this remedy, filed a writ application in the High Court of Bombay to quash the imposition of the duty at the higher rate (certiorari) and to direct the release of the goods on payment of duty at 30 per cent. (mandamus). The application was resisted by the Collector of Customs, who raised substantially two points: (1) that on the merits the goods imported were "gold plated articles" notwithstanding their being fountain pens and that the proper rate of duty was that which had been determined by the Assistant Customs Collector, (2) that the respondent had another remedy open to him, viz., to file a revision to the Central Government and that he was, therefore., disentitled to move the High Court under article 226 of the Constitution before availing himself of the remedy specially provided by statute. The writ petition came on for hearing before justice Tendolkar, who by his order dated July 5, 1955, recorded that on any reasonable construction of the items in the Schedule to the Indian Customs Tariff, fountain pens did not cease to be fountain pens" because they contained parts which were plated with silver or gold and that so long as they were "fountain pens complete", subject to any exceptional cases of which this was not one, only duty at 30 per cent. under item 45(3) could be levied. The learned Judge further held that the interpretation that he placed upon item 45(3) in the context of the other entries in the Tariff Schedule can "only be one and it is not reasonably possible for any person to take a contrary view". In other words, the learned Judge was of the opinion that the construction put upon the entry by the Customs authorities was unreasonable or perverse. 757 The objection to the writ petition based upon the petitioner before him not having exhausted the statutory remedies available to him was repelled by the learned Judge on the ground that on the facts the decision to levy duty at 783 per cent. was without jurisdiction. The petition was, therefore, allowed and the Customs authorities were, by order of Court, restrained from enforcing payment of any duty higher than 30 percent. The Collector of Customs filed an appeal against this order which was disposed of by a judgment delivered on behalf of the Bench, by Chagla, C. J. The learned Chief Justice was equally emphatic that no reasonable person could, on the construction of the relevant items in the Schedule to the Tariff Act, hold that the consignment of fountain pens could fall under any item other than 45(3) or be charged a duty other than the 30 per cent. provided under that item. Dealing with the other point about the writ petitioner not having exhausted his statutory remedy of Revision to the Government, the learned Chief Justice disagreed with the view of the learned Single Judge that the Customs authorities lacked or exceeded their jurisdiction in assessing duty at a higher figure than was justified by the relevant items of the Schedule to the Tariff Act. The learned Chief Justice, after pointing out that it was the settled practice of the Bombay High Court not to entertain writ petitions by parties who had not exhausted their statutory remedies, however, held that in the case before the Bench the remedy of applying in Revision to the Central: Government had become time barred by the date ' of the hearing of the appeal, and that on that ground he would not interfere with the order of the learned Single Judge. The appeal was, therefore, dismissed. The Collector of Customs having obtained special leave from this Court has brought this appeal before US. The learned Solicitor General appearing for the appellant argued the appeal on the basis that the view of the learned Judges of the Bombay High Court that on any reasonable interpretation of the items in 758 the Schedule to the Tariff Act the consignment imported by the respondent could have been liable only to a duty of 30 per cent. under item 45(3) was correct. We might add that even apart from this concession bay for the purpose of argument, we entirely agree with the learned Judges that the tariff items in the Schedule are not reasonably capable of any other construction. In reaching this conclusion we have taken into account the fact that "fountain pens complete" were taken out of the general item 45 'Stationery etc. ' under which they were originally included, by an amendment effected in 1949 in pursuance of an international agreement and that though the duty on stationery was thereafter increased from 30 to 37 1/2 per cent., under the provisions of the Finance Act, 1949, the duty of 30 per cent. fixed on fountain pens re mained unchanged. This at least showed that they were treated as a specialized class of stationery which required separate treatment. The only question therefore is whether a fountain pen in which certain of its essential parts are gold or silver plated falls outside the category of "fountain pens complete". It cannot be again said that anib, cap and clip are essential parts of a fountain pen and not more accessories, and that without them there would be no question of having a "fountain pen complete". Next it is a well known and recognized fact that most fountain pens in ordinary use have nibs 'Which are gold plated. In this connection it should not be overlooked that gold, apart from being a store of value, is a metal which has industrial uses by its malleability and its resistance to oxidation on contact with acids and chemicals which enter into the composition of ink. The use of gold plating for nibs is therefore for increasing the utility of the nib for its primary function of writing and not with a view to enhancing its value by the cost of the metal. In the case before us it would be noticed that the pens permitted to be imported had to be not less than Rs. 25 each C.I.F. value, presumably with a view to protect the market for cheaper pens of indigenous manufacture. Most pens of the 759 value specified in the licence, it need hardly be added, would have gold plated nibs. It could certainly not be that it was the intention of the authorities that notwithstanding Entry 45(3) reading "fountain pens complete" there could practically be no import of pens under that item, because with the limit of value prescribed in the licence, the permitted pens would mostly have gold plated nibs. Different considerations might arise when gold or gold plating is used not for poses essential for the utility of the pen as such, Purmerely as an addition to its value. These cases have been excepted by Justice Tendolkar and we endorse his remarks on this point. No such question arises on the pens imported by the respondent and it was obviously because of this, that the learned Solicitor General did not address us on the correctness of the interpretation placed on relative scope of entries 45(3) and 61(8), by the learned Judges of the High Court. The only point, therefore, requiring to be considered is whether the High Court should have rejected the writ petition of the respondent in limine because he had not exhausted all the statutory remedies open to him for having his grievance redressed. The contention of the learned Solioitor General was that the existence of an alternative remedy was a bar to the entertainment of a petition under article 226 of the Constitution unless (1) there was a complete lack of jurisdiction in the officer or authority to take the action impugned, or (2) where the order prejudicial to the writ petitioner has been passed in violation of the principles of natural justice and could, therefore, be treated as void or non est. In all other cases, he sub mitted, Courts should not entertain petitions under article 226, or in any event not grant any relief to such petitioners. In the present case, he urged, the High Court in appeal had expressly dissented from the reasoning of the learned Single Judge as regards the lack of jurisdiction of the Customs Officers to adjudicate regarding the item under which the article imported fell and the duty leviable thereon. Nor was there any complaint in this case that the order had been passed without an opportunity to the importer 760 to be heard, so as to be in violation of the principles of natural justice. The learned Solicitor General questioned the correctness of the reasoning of the learned Chief Justice in condoning the conduct of the respon dent in not moving the Government in revision by taking into account the time that had elapsed between the date of the impugned order and that on which the appeal was heard. The submission was that if this were a proper test, the rule as to a petitioner under article 226 having to exhaust his remedies before he approached the Court would be practically a dead letter because in most cases by the date the petition comes on for hearing, the time for appealing or for applying in revision to the departmental authorities would have lapsed. We see considerable force in the argument of the learned Solicitor General. We must, however, point out that the rule that the party who applies for the issue of a high prerogative writ should, before he approaches the Court, have exhausted other remedies open to him under the law, is not one which bars the jurisdiction of the High Court to entertain the petition or to deal with it, but is rather a rule which Courts have laid down for the exercise of their discretion. The law on this matter has been enunciated in several decisions of this Court but it is sufficient to refer to two cases: In Union of India vs T. R. Varma(l), Venkatarama Ayyar,J., speaking for the Court said: "It is well settled that when an alternative and equally efficacious remedy is open to a litigant, he should be required to pursue that remedy and not invoke the special jurisdiction of the High Court to issue a prerogative writ. It is true that the existence of another remedy does not affect the juris diction of the Court to issue a writ; but, as observed by this Court in Rashid Ahmed vs Municipal Board, Kairana ( 'a), 'the existence of an adequate legal remedy is a thing to be taken into consideration in the matter of granting writs '. Vide also (1) [1958] S.C.R. 499 503,504. (1a) ; 761 K.S. Rashid and Son vs The Income tax Investigation Commission( '). And where such remedy exists, it will be a sound exercise of discretion to refuse to interfere in a petition under article 226, unless there are good grounds therefore. " There is no difference between the above and the formulation by Das, C. J., in The State of Uttar Pradesh vs Mohammad Nooh (2), where he observed: ". . It must be borne in mind that there is no rule, with regard to certiorari as there is with mandamus, that it will lie only where there is no other equally effective remedy. It is well established that, provided the requisite grounds exist, certiorari will lie although a right of appeal has been conferred by statute. The fact that the aggrieved party has another and adequate remedy may be taken into consideration by the superior court in arriving at a conclusion as to whether it should, in exercise of its discretion, issue a writ of certiorari to quash the proceedings and decisions of inferior courts subordinate to it and ordinarily the superior court will decline to interfere until the aggrieved party has exhausted his other statutory remedies, if any. But this rule requiring the exhaustion of statutory remedies before the writ will be granted is a rule of policy, convenience and discretion rather than a rule of law and instances are numerous where a writ of certiorari has been issued in spite ,of the fact that the aggrieved party had other ade quate legal remedies. " After referring to a few cases in which the existence of an alternative remedy had been held not to bar the issue of a prerogative writ, the learned Chief Justice added: "It has also been held that a litigant who has lost his right of appeal or has failed to perfect an appeal by no fault of his own may in a proper case obtain a review by certiorari." In the result this Court held that the existence of other legal remedies was not per se a bar to the issue (1) [1954] S.C.R 738. 96 (2) ; , 605 607. 762 Of a writ of certiorari and that the Court was not bound to relegate the petitioner to the other legal remedies available to him. The passages in the judgments of this Court we have extracted would indicate (,I) that the two exceptions which the learned Solicitor General formulated to the normal rule as to the effect of the existence of an adequate alternative remedy were by no means exhaustive, and (2) that even beyond them a discretion vested. in the High Court to have entertained the petition and granted the petitioner relief notwithstanding the existence of an alternative remedy. We need only add that the broad lines of the general principles on which the Court should act having been clearly laid down, their application to the facts of each particular case must necessarily be dependent on a variety of individual facts which must govern the proper exercise of the discretion of the Court, and that in a matter which is thus preeminently one of discretion, it is not possible or even if it were, it would not be desirable to lay down inflexible rules which should be applied with rigidity in every case which comes up before the Court. The question that we have now to consider is has the discretion which undoubtedly vested in the Court been so improperly exercised as to call for our interference with that order. We might premise this discussion by expressing our opinion on two matters merely to prevent any misunderstanding. First we entirely agree with Chagla, C. J. that the order of the Assistant Collector of Customs in assessing duty at 781 per cent. or of the Collector of Customs in confirming the same, was not void for lack of jurisdiction. The interpretation they put on the relevant items in the Tariff Schedule might be erroneous, even grossly erroneous, but this error was one committed in the exercise of their jurisdiction and had not the effect of lacing the resulting order beyond their jurisdiction. Secondly, as we have already indicated, we must express our dissent from the reasoning by which the learned Judges of the High Court held that the writ petitioner was absolved from the normal obligation to 763 exhaust his statutory remedies before invoking the jurisdiction of the High Court under article 226 of the Constitution. If a petitioner has disabled himself from availing himself of the statutory remedy by his own fault in not doing so within the prescribed time, he, cannot certainly be ' permitted to urge that as a ground for the Court dealing with his petition under article 226 to exercise its discretion in his favour. Indeed, the second pass age extracted from the judgment of the learned C. J. in Mohammad Nooh 's case. (1) with its reference to the right to appeal being lost "through no fault of his own" emphasizes this aspect of the rule. The question, however, still remains whether in the circumstances of this ease we should interfere with the decision of the High Court. In considering this, we cannot lose sight of three matters: (1) that the levy of the duty at 78 3/4 per cent. was manifestly erroneous and cannot be supported on any reasonable construction of the items in the Tariff Schedule, (2) it was stated by the Customs authorities in answer to the writ petition, in the grounds of appeal to the High Court under the Letters Patent, as also in the statement of case before us, that the Central Board of Revenue had issued a ruling to the effect that fountain pens with nibs or caps which were gold platled fell within item61(8). This might be some indication that the adjudication by the Assistant Collector of Customs and by the Customs Collector on appeal was in pursuance of a settled policy of the entire hierarchy of the department. Without going so far as to say that a Revision to the Central Government might in the circumstances be a mere futility, we consider that this is not a matter which would be wholly irrelevant for being taken into account in disposing of the appeal before us. After all, the basis of the rule by which Courts insist upon a person exhausting his remedies before making application for the issue of a prerogative writ is that the Court 's jurisdiction ought not to be lightly invoked when the subject can have justice done to him by resorting to the remedies prescribed by statutes. (3) Lastly, the learned (1) ; , 605 607. 764 Solicitor General does not dispute the correctness of the principle of law as enunciated by Chagla, C. J., his complaint is that the law as laid down by the learned Chief Justice has not. been properly applied to the facts of the case before him. If the challenge to the judgment of the High Court were of the former type, this Court might have to interfere to lay down the law correctly lest error creep into the administration of justice. But where the error is only in the application of the law correctly understood to the, facts of a particular case, we should be persuaded that there has been a miscarriage of justice in the case before us before being invited to interfere; and this the learned Solicitor General has not succeeded in doing. It would be remembered that the question is not whether if the respondent 's application were before us, we should have directed the writ to issue, but whether the learned Judges of the High Court having in their discretion which they admittedly possessed made an order, there is justification for our interfering with it. The two matters set out earlier should suffice to show that no interference could be called for in this appeal. We consider, therefore, on the whole and taking into account the peculiar circumstances of this case that the High Court has not exercised its discretion improperly in entertaining the writ application or granting the relief prayed for by the respondent and that no care for interference by us in an appeal under article 136 of the Constitution has been made out. The appeal fails and is dismissed with costs. SARKAR, J. In this case the respondent had imported a certain number of fountain pens plated with gold. The goods were assessed to import duty by an assessing officer of the Indian Customs under item 61(8) of the first schedule to the Customs Tariff which dealt with "Articles, other than cutlery and surgical instruments, plated with gold or silver" and provided for a duty of 78 3/4 per cent. ad valorem. The respondent appealed from this assessment to the Collector of Customs under a. 188 of the , on the ground that the assessment should have been 765 under item 45(3) of that schedule which dealt with "Fountain pens, complete" and provided for a duty of 30 percent ad valorem. He did not dispute that the fountain pens imported by him were, gold plated. His appeal was dismissed. The respondent then moved the High Court at Bombay for a writ to quash the order of assessment under item 61(8). The application was allowed by Tendolkar T. who issued a writ of mandamus directing the Collector of Customs to release the goods upon payment of the duty specified in item 45(3). The appeal by the Collector of Customs from the order of Tendol 'kar, J., to an appellate bench of the High Court was dismissed. The Collector has therefore filed the present appeal. The first question is, whether the writ should have been refused on the ground that the respondent had another remedy, namely, an application to the Central Government under section 191 of the to revise the order of the Collector. Tandolkar, J., held that the writ could issue though the other remedy had not been pursued, as the order of assessment under item 51(8) was without jurisdiction. This was clearly wrong. The Collector had ample jurisdiction to decide under which item in the schedule the fountain pens had to be assessed to duty, and if he made a mistake in his decision that did not make his order one without jurisdiction: cp. Gulabdas & Co. vs Assistant Collector of Customs (1). The learned Judges of the appellate bench held that the writ was properly issued, not because the assessing authority had no jurisdiction to assess the goods under item 61(8), but because at the date the matter had come before them, the other remedy had become barred. This again is,in my view, plainly erroneous for a party who by his own conduct deprives himself of the remedy available to him, cannot have a better right to a writ than a party who has not so deprived himself. Normally and the present has not been shown to be other than a normal case a writ of mandamus is not issued if other remedies are available. There would be stronger reason for following this rule where the obligation (1) A.1,R. 1957 S C 733 766 sought to be enforced by the writ is created by a statute and that statute itself provide,% the remedy for its breach. It should be the duty, of the courts to see that the statutory provisions are observed and, therefore, that the statutory authorities are given the opportunity to decide the question which the statute requires them to decide. The fact that the Central Government had on a prior occasion decided, as appears in this case to have happened, that fountain pens of the kind which the respondent had imported, were liable to ditty under item 61(8) cannot furnish any reason justifying a departure from the normal rule or the issue of a writ without that government having been moved under section 191. This prior decision of the Central Government could be a reason for such departure only on the presumption that it would not change its view even if that view was shown to be incorrect. I cannot imagine that a court can ever make such a presumption. Therefore, it seems to me that it would have been proper to refuse the writ on the ground that the respondent had another remedy available to him which he had not pursued. On the present occasion, however, I do not wish ' to decide the case on that ground. Next, I feel the gravest doubt if the case is one for the issue of a writ of mandamus. It is of interest to observe that the respondent had in his petition to the High Court himself asked for a writ of certiorari. A writ of mandamus issues in respect of a ministerial duty imposed by a statute; it cannot issue where the duty to be performed is of a judicial nature, except for the purpose of directing that the judicial duty should be performed, that is, a decision should be given on the question raised. In John Shortt 's book on Informations, Mandamus and Prohibition it is stated at p. 256: "If the duty be of a judicial character a mandamus will be granted only where there is a refusal to perform it in any way; not where it is done in one way rather than another, erroneously instead of properly. In other words, the Court will only 767 insist that the person who is the judge shall act as such; but it will not dictate in any way what his judgment should be. If, however, the public act to be performed is of a purely ministerial kind, the Court will by mandamus compel the specific act to be done in the manner which to it seems lawful. " It does not seem to me that the duty which the created and the performance of which was sought to be enforced by a writ in the present case, can properly be said to be a ministerial duty. That duty was to decide which item in the Customs Tariff was applicable to the respon dent 's goods and to realise the customs duty specified in that item. In so far as the statute required the officer to realise the Customs levy, I find it difficult to see how it can be said to be a public duty to the performance of which the respondent had a legal right and without this right he was not entitled to the mandamus: see Ex parte Napier( '). In so far again, as the Act required the Customs Officer to choose the proper item in the Customs Tariff for assessment of the customs levy on goods, it in my view involves performance of work of a quasi judicial nature. The observation of Das, J., in Province of Bombay vs K. section Advani (), which I am about to read, fully fits this case: "If a statutory authority has power to do any act which will prejudicially affect the subject, then, although there are not two parties apart from the authority and the contest is between the authority proposing to do the act and the subject opposing it, the final determination of the authority will yet be a quasi judical act provided the authority is required by the statute to act judicially." 'Now the empowers the Customs authorities to impose a certain duty on goods imported and this no doubt prejudicially affects the importer. The Act, further clearly requires the authorities to proceed judicially in imposing that duty when a dispute arises, that is, after giving a hearing to the party affected: see as. 29, 31 and 32 of the Act. In this case a hearing (1) ; (2) , 725. 768 was in fact given to the respondent. This taken with the provisions as to a right of appeal from the decision Of the first assessing officer and as to the right to move the government in revision from the decision in the appeal, would clearly indicate that the authorities have to act judicially. In Gulabdas & Co. vs Assistant Collector(1) this Court proceeded on the basis that the duty of assessing the customs levy was of a judicial nature. Therefore I feel the gravest doubt, if the present is a case where a mandamus could at all issue. No doubt if a mandamus could not issue because the act which the statute required to be performed was not a ministerial one but judicial in its character, the case might be a fit one for the issue of a writ of certiorari. But that writ cannot, in any event, issue unless the proceedings disclosed an error apparent on their face. In issuing a certiorari again, the Court does not examine the judicial act questioned as if it was hearing an appeal in respect of it: see Satyanarayan Laxminarayan Hegde vs Mallikarjun Bhavanappa Tirumale(2). I do not propose to discuss this question further in the present case, for it was not considered by the High Court nor raised at our bar. I proceed on the basis that it was a case where an application for a mandamus Jay. The respondent, in substance, asked for and obtained a writ directing the Customs authorities to release the goods on payment of duty at the rate of 30 per cent. ad valorem as prescribed by item 45(3). This was on the basis that the duty should have been levied under that item and not under item 61(8) as the Customs authorities had done. The question then is, was there a clear duty on the assessing authorities to assess the goods under item 45(3) dealing with "Fountain pens, completed and not to do so under item 61(8) dealing with "Articles, other than cutlery and surgical instruments, plated with gold". All the learned Judges of the High Court agreed that this clear duty had to be established before the respondent could be held entitled to a mandamus and they found that the Act created such (1) A.I.R. 1957 S.C. 733. (2) [1960] 1 S.C.R. 890, 901. 769 a duty. They said that item 45(3) was a specific provision and therefore it had to be applied in preference to item 61(8) which was a general provision. I am unable to agree with this view. What, apparently, the learned Judges had in mind and applied, was the rule of construction of statutes that when two provisions in an Act are inconsistent with each other, if one is specific and the other general, the specific provision prevails over the general. Now, this rule like all other rules of construction, derives its justification from the fact that it assists in ascertaining the intention of the legislature. The reason why it so assists is this. When two provisions enacted by the legislature, are inconsistent and one cannot operate at all if the other is given full effect, a question arises as to what the legislature intended. Clearly, it could not have intended that a provision that it enacted should have no operation at all. Therefore it is to be presumed that the legislature intended that both the provisions would at least have some effect, if they could not have their full effect. The rule under discussion gives effect to this presumed intention of the legislature. In order to give effect to this intention, the rule provides that the provision with a narrower scope of operation should have effect so far as it goes, in preference to the provision with the larger scope of operation so as to restrict the operation of the latter which, without such restriction, would have wiped the narrower provision out of the statute book altogether. This rule permits both the provisions to have effect; it reduces the scope of one and prevents the other from becoming a dead letter. This aspect of the rule would, I believe, appear clearly from a statement of it by Sir John Romillyn pretty vs Solly(1) which I now set out: "The rule is, that wherever there is a particular enactment and a general enactment in the same statute, and the latter, taken in its most comprehensive sense, would overrule the former, the particular enactment must be operative, and the general (1) ; ; 770 enactment must be taken to affect only the other parts of the statute to which it may properly apply. " The test of the applicability of the rule, therefore, is that one enactment must overrule the other. The one overruled is called specific only in comparison with the other which is in the same way only, called general. There need be nothing inherent in the nature of the enactments which, apart from a consideration of their comparative scopes, mark one out as specific and the other as general. When one overrules the other, it must include within its scope that other and so becomes general in comparison with the other. If two provisions were merely in conflict with each other, each affecting the other and none overruling the other and itself remaining in force, no question of calling one general and the other specific would arise. I should suppose, when Sir John Romilly talked of one enactment overruling the other. he meant completely overruling. That would make the rule sensible for, then it would clearly be a guide to the intention of the legislature which is that, all tile provisions are intended to have effect. This reason to support the rule would not exist if it was applied to a case where the provisions only partially affected each other for, then, both the provisions would have at least some operation. It would further be impossible to say from a comparison of the degrees of the effect of each on the other, if such comparison was possible, what the intention of the legislature was. I am not aware that it has ever been said that when two pro. visions partially affect each other, without one completely overruling the other, the legislature intended the one less affected should yield to the other or even the other way about. To such a case the rule would, in my view, have no application. The present is a case of that kind. I now confine myself only to items 45(3) and 61(8) for, no question as to any other item in the Tariff arises for applying the rule. If gold plated fountain pens were assessed under item 61(8), there would still be plenty of scope left for item 45(3) to operate upon, for, there would 771 be many kinds of complete fountain pens without gold plating. Likewise also if gold plated fountain pens were assessed under item 45(3), there might be many other gold plated articles for being assessed under item 61(8). Item 61(8) cannot be said to overrule item 45(3) completely. Item 61(8) cannot be said to be a general provision and item 45(3) a specific one. There is no scope here of applying the rule giving effect to a specific enactment in preference to the general. What then should be done? Under which item should the gold plated fountain pens then be assessed to duty? In my view, they were properly assessed under item 61(8). The item is clearly intended to apply to all gold plated articles other than the two expressly excepted, namely, cutlery and surgical instruments. There is no reason why this intention should not be given effect to. The Customs Tariff Schedule no doubt makes separate provisions for various individual articles. A fountain pen is one of such articles. If a gold plated fountain pen is for the reason that fountain pens are separately provided for, to be taken out Of item 61(8), all other articles separately dealt with in the schedule would have for the same reason, to be taken out of that item even though they happen to be plated with gold. The result of that would be that item 61(8) would apply to those articles which are not ,separately provided, and as Customs Tariff Schedules are made as exhaustive as they can be, there would be very few articles, if any, left to which item 61(8) might be applied. It does not, seem to me that this could have been intended. Item 61(8), as already stated, is intended to take in all gold plated articles except cutlery and surgical instruments. A proper construction of this item must give effect to this intention. Item 45(3) applies to fountain pens. Now it is not necessary for a fountain pen to be gold plated at all. Indeed the large majority of them are not gold plated. It is true that a fountain pen does not cease to be a fountain pen because it is plated with gold. It is, however, equally true that a gold plated fountain pen is an article plated with gold. A fountain pen may or may not be 772 gold plated but a gold plated article can only be a gold plated article. Therefore, it seems to me that item 45(3) was intended to apply to fountain pens simpliciter, that is, without gold plating or other embellishments which might properly bring them under another item in the schedule. This, in my view, would best harmonise the different items in the Tariff schedule and carry out the intention of the legislature. This can be illustrated by an example. Suppose a fountain pen was Studded with diamonds. Could it then be said that the legislature intended to pose on them a duty of 30 per cent. ad valorem under item 45(3) and the diamonds were not intended to be assessed under item 61(10) which deals with jewels and provides for a higher duty. I do not think that a possible view to take. I think, therefore, that the assessment in the present case under item 61(8) was proper. I would hence allow the appeal. By COURT: In accordance with the opinion of the majority, this appeal is dismissed with costs. Appeal dismissed.

IN-Abs

Under a licence granted for the import of fountain pens at not less than Rs. 25 C.I.F. value, the respondent imported Sheaffer pens from Australia, which had nibs which were gold plated and also caps and clips of similar composition. The imported goods were assessed to duty by the customs authorities under item 61(8) of the First Schedule to the Indian Tariff Act, 1934, dealing with "Articles, other than cutlery and surgical instruments, plated with gold or silver" which provided for a duty Of 781 per cent. ad valorem, while the respondent claimed that the goods fell within item 45(3) which related to the article described as "Fountain pens, complete", the rate of duty being 30 per cent. ad valorem. Section 191of the , enabled any person aggrieved by an order of the Collector of Customs to file a revision to the Central Government, but the respondent, without resorting to this remedy filed a writ application in the High Court of Bombay under article 226 of the Constitution of India to quash the imposition of the duty at the higher rate and to direct the release of the goods on payment of duty at 30 per cent. The Single judge who disposed of the application took the view that fountain pens did not cease to be fountain pens though they contained parts which were plated with gold, that so long as they were "Fountain pens, complete" only duty under item 45(3) could be levied and that, in the context of the items in the Tariff Schedule, it was not reasonably possible for any person to take a contrary view. Accordingly, the customs authorities were restrained from enforcing payment of any duty higher than 30 per cent. On appeal, the Appellate Bench of the High Court agreed with the interpretation of the tariff items and held that, though it was not the practice to entertain writ petitions by parties who had not exhausted their statutory remedies, as the remedy of applying in revision to the 95 754 Central Government had become time barred by the date of hearing of the appeal, it would not interfere with the order of the Single judge. Held, that the High Court was in error in its view that though the respondent had failed to exercise his statutory remedy, the fact that it had become time barred at the date of the hearing of the appeal against the order in the petition under article 22 6, was a good ground for the Court to exercise its discretion in granting the relief prayed for by the respondent in his petition. Held, further (Sarkar, J., dissenting): (i) that the consignment imported by the respondent was liable only to a duty of 30 per cent. under item 45(3) in the First Schedule to the Indian Tariff Act, 1934, and that the tariff items in the Schedule were not reasonably capable of any other construction. (2) that as in the present case the levy of the duty under entry 61(8) was manifestly erroneous, and the Central Board of Revenue had issued a ruling to the effect that fountain pens with nibs or caps which were gold plated fell with entry 61(8), it could not be said that the High Court had exercised its discretion improperly in entertaining the writ application so as to justify interference in an appeal under article I36 of the Constitution. Per Gajendragadkar, Wanchoo, Das Gupta and Rajagopala Ayyangar, JJ. The rule that a party who applies for the issue of a high prerogative writ should, before he approaches the court, have exhausted other remedies open to him under the law, is not one which bars the jurisdiction of the Court to entertain the petition or to deal with it, but is rather a rule which courts have laid down for the exercise of their discretion. Union of India vs T. R. Varma, [1958] S.C.R. 499 and The State of Uttar Pradesh vs Mohammad Nook, ; , relied on. Per Sarkar, J. Item 61(8) in the First Schedule to the Indian Tariff Act, 1934, is intended to apply to all gold plated articles other than cutlery and surgical instruments, while item 45(3) is applicable to fountain pens simpliciter, that is, without gold plating. Such a view would harmonise the different items in the Tariff Schedule and carry out the intention of the legislature. The customs authorities were correct in assessing gold plated fountain pens under entry 61(8).

Appeal No. 157 of 1959. Appeal from the judgment and decree dated January 5, 1956, of the Allahabad High Court in Special Appeal No. 205 of 1954 and Civil Appeal No. 158 of 1959. Appeal by special leave from the judgment and order dated January 15, 1952, of the Labour Appellate Tribunal of India, Allahabad, in Appeal No. Cal. 47 of 1951. M.C. Setalvad, Attorney General for India and G. C. Mathur, for the appellant. M. R. Krishna Pillai, for respondent No. 5 (In C.A. No. 157/1959). C. P. Lal, for the State of U. P. and Respondents Nos. 2 and 4 (In C. A. No. 157/59). O. P. Verma, for respondent No. 5 (in C. A. No. 158/59). December 12. The Judgment of the Court was delivered by DAs GUPTA, J. These two appeals raise the question of the maintainability of an application made by the Employers ' Association of Northern India, Kanpur on behalf of , the J. K. Cotton and Weaving Mills 187 Co., Ltd., a member of the Association in connection with the proposed termination of service of certain members of its Watch and Ward Staff. But before we come to the consideration of this question it is necessary to indicate in brief the long and tortuous path this matter has traveled before coming to us. The application of the Employers ' Association purported to be under clause 5(a) of the Government order dated March 10, 1948, as amended by a later order of May 15, 1948. This order was issued by the Governor of the United Provinces in exercise of the powers conferred on him by cl. (b), (c), (d) and (g) of section 3 and by section 8 of the U. P. The application after stating that a number of thefts of Dhoties had taken place in the Mill further stated that it was obvious to the management of the J. K. Cotton Spinning and Weaving Mills Co., Ltd., that this state of affairs could not exist and continue if Watch and Ward staff were carrying out their duties vigilantly, correctly and honestly. It stated further that the management having lost confidence in the honesty of the Watch and Ward Staff had decided to terminate the services of all the per. sons of the Watch and Ward Staff and to recruit fresh men from the employment exchange and that in lieu of notice of termination of service the management would pay to these persons 12 days ' wages in accordance with Standing Order No. 17A. The prayer made in the application was that "the Board be pleased to record the award entitling the J. K. Cotton and Weaving Mills Co., Ltd., to terminate the services of all the members of the Watch and Ward Staff whose names appear in Annexure A". During the pendency of the application before the Board the applicant withdrew its prayer as regards 5 of the workmen. As regards the remaining workmen, after rejecting the preliminary objection raised on their behalf that the Board had no jurisdiction to entertain the application, the Board held that "it would not be in the interests of either party or in the interest of industry to allow the remaining 27 sepoys to continue in the employment of the Mills" and the Board 188 accordingly made the award permitting the appellants to terminate the services of these 27 sepoys after giving them compensation at the rates set out by it starting with 15 days full wages and compensation for those with one year of service with additional amount of compensation on a graduated scale for longer periods of service. Against this order both the parties appealed to the Industrial Court. That court agreed with Board 's conclusion on the question of jurisdiction but pointed out that the "procedure adopted by the employers association was defective inasmuch as the mills did not apply to the Regional Conciliation Officer to discharge the sepoys in question". On merits the court held that the evidence justified the conclusion of the Board that the management had lost confidence in the members of the Watch and Ward Staff and that having regard to the Standing Orders their services should be terminated in accordance with the Standing Orders. It accordingly directed in modification of the order made by the Board "that the services of the 27 sepoys in question be terminated in accordance with the Standing Orders and that they would not be paid extra compensation as directed by the Board. " The workmen then appealed to the Labour Appellate Tribunal of India. The appellate tribunal held relying on an earlier decision of its own in Kanpur Mill Mazdoor Union vs Employers ' Association of Northern India (1) that the application under cl. 5(a) of the Government Order was not maintainable. Accordingly it allowed the appeal and set aside the award of the Board as well as the Industrial Court. J.K. Cotton and Weaving Mills Co., Ltd., thereupon filed an application under article 226 of the Constitution to the High Court of Judicature at Allahabad praying for a writ in the nature of certiorari calling for the records of the case from the Labour Appellate Tribunal of India and quashing the order of the Tribunal which has been mentioned above. Mr. Justice Chaturvedi, before whom this application came up for hearing held that the application under (1)(1952) 189 cl. 5(a) was maintainable and the Appellate Tribunal had erred in holding otherwise. Being however, of opinion that there had been undue delay in making this application for a writ, he dismissed the petition on that ground. In the Letters Patent appeal preferred by the company against this decision a preliminary objection was raised on behalf of the Union representing the workmen that the Allahabad High Court could not call for the records and quash the order of the Labour Appellate Tribunal of India as those records were in Calcutta and consequently beyond the reach of the Court. The learned Judges who heard the appeal upheld this objection and dismissed the appeal. They however issued a certificate under article 132(1)and article 133(1)(c) of the Constitution. Thereafterthe company also obtained special leave from this court to appeal directly against the order of the Labour Appellate Tribunal of India. These two appeals preferred one on the certificate granted by theHigh Court and the other on the strength of the special leave granted by this Court, have been heard together. The main controversy, as already indicated, is on the question of the maintainability of the application under cl. 5(a) of the Government order. This order issued by the Governor of the United Provinces in exercise of the powers conferred on him by the U. P. 'contains detailed provisions as regards the settlement of industrial disputes. The first clause provides for the constitution of Conciliation Boards consisting of three members. Clause 2 provides for the appointment of conciliation officers for specified areas. Clause 5 contains the important provisions as to commencement of proceedings before the Boards. It provides two ways of starting these proceedings: one mentioned in cl.(b) is by an order made in writing by the Provincial Government for enquiring into a matter in respect of which an industrial dispute has arisen or is likely to arise. The other method is by means of an application by an employee or recognised association of employers or registered trade union of workers or where there is 190 no such registered trade union the representatives not more than five in number duly elected by a majority of the workmen in the industry. Any of these may by an application in writing move the Board to inquire into an industrial dispute. This provision is in cl. 5(a) which may be set out in full: "5(a). Any employee or recognised association of employers or registered Trade Union of workmen or, where no registered trade union of workmen exists in any particular concern or industry, the representatives not more than five in number of the workmen in such concern or industry duly elected in this behalf by a majority of the workmen, in such concern or industry as the case may be, at a meeting held for the purpose, may by application in writing move the Board to enquire into any industrial dispute. The application shall clearly state the industrial dispute or disputes which are to be the subject of such inquiry. " Clause 10 provides for the constitution of industrial courts for specified areas. Clause 12 provides for appeals to this Court against the awards made by the Board. The other clauses up to clause 22 deal with the powers and procedure of the Board or the Industrial Court and with the duties of employers to permit certain meetings to be held. Then comes cl. 23 which is in these words: "Save with the written permission of the Regional Conciliation Officer or the Additional Regional Conciliation Officer concerned, irrespective of the fact whether an inquiry is pending before a Regional Conciliation Board or the Provincial Concilia tion Board or an appeal is pending before the Industrial Court, no employer, his agent or manager, shall during the continuance of an inquiry or appeal, discharge or dismiss any workman. " Section 24 provides that every order made or direction issued under the provisions of this Government order shall be final and conclusive. Clause 26 provides for penalties for contravention or an attempt to contravene any of the provisions of the order. A consideration of the scheme of this legislation 191 makes it clear that while two modes are provided in clauses 5(a) and 5(b) for the commencement of proceedings for settlement of industrial disputes generally, a special provision is made in clause 23 that if an enquiry is proceeding before a Regional Conciliation Board or the Provincial Conciliation Board or an appeal is pending before the Industrial Court, no workman shall be discharged except with the written permission of the Regional Conciliation Officer or the Additional Conciliation Officer concerned. The consequence in cl. 26 is that if any workman is discharged or dismissed during the continuance of such enquiry or appeal without such permission the employer shall be liable to fine or to imprisonment not exceeding three years or both. The heavy punishment provided for contravention of the order shows the importance attached by the legislating authority to the directions given by the Order. In deciding whether an application under cl. 5(a) was maintainable in the facts of the present case two questions arise for consideration. The first is whether an industrial dispute comes into existence as soon as an employer decides on the dismissal of some of the workmen and proposes to give effect to such decision. One view is that it is only the party aggrieved by the proposed dismissal, in other words, the workmen, who by objecting to the same can raise the dispute and that the employer cannot by his own proposal to dismiss the workmen be heard to say that a dispute had come into existence even before the workmen had a chance to object to the dismissal. The contrary view which has found favour with Mr. Justice Chaturvedi of the High Court is that even at the stage the employer proposes to dismiss his workmen it is a case of contemplated non employment which will come within the expression "industrial dispute". The other question is whether the provisions of cl. 23 of the order bar an application under cl. 5(a) during the con tinuance of any enquiry before the Regional Conciliation Board or the Additional Conciliation Board or during the pendency of the appeal before the Industrial Court. There is no dispute that on June 13, 192 1950 when the application under clause 5(a) was made an inquiry was in fact pending before a Conciliation Officer. It appears that on July 9, 1949 the Governor of the United Provinces made an order directing the Labour Commissioner of the United Provinces or a Conciliation Officer nominated by him in this behalf to redstart the adjudication proceedings between the J. K. Cotton & Weaving Mills Co., and section N. Shukla, a dismissed employee of the concern. The Adjudica tor was directed to conclude the adjudication and submit his award by August 15,1949. The time was extended by subsequent orders first to November 15, 1949 and then to March 31, 1950, again to June 30, 1950 and thereafter to September 30, 1950. It is true that at the time these orders extending time for submission of award were made the Governor had no authority to make these orders and these orders were invalid. They were validated by the provisions of section 3 of the U.P. Act XXIII of 1953. In view of this position of the law the learned Attorney General has not disputed that on June 13, 1950 when the application under cl. 5(a) was made an enquiry was actually pending before a Conciliation Officer. Consequently, before the management could make any order discharging or dismissing any of its workmen it was required by cl. 23 to obtain permission for the same from the Regional Conciliation Officer. The question is whether in spite of this provision in cl. 23 the employer could make and the Board entertain an application under cl. 5(a) on this question of proposed dismissal. We propose to consider this question first and for that purpose assume that an industrial dispute comes into existence as soon as the employer decides to dismiss his workmen and proposes to do so and that ordinarily he can make an application in such a dispute to the Board under the provisions of cl. 5(a). If such application is decided against the employer and no permission is given to make the proposed dismissal, no difficulty arises. What however is the position if on such an application the Board makes an order granting the employer the requisite permission to 193 dismiss his workmen? Under cl. 24 this order unless modified in appeal will be final and conclusive and shall not be questioned by any party thereto. So far as the workmen are concerned they will not be able to dispute the correctness of the order except in the mode provided in the Government order itself. What however is the position of the employer if in pursuance of the order made on his application under cl. 5(a) he discharges or dismisses his workmen? By doing so he will have clearly contravened the provisions of cl. 23, and will become liable to the severe penalty provided in cl. 26 a, penalty which might even extend to imprisonment up to three years. To remove this incongruity, says the learned Attorney General, apply the rule of harmonious construction and hold that cl. 23 of the order has no application when an order is made on an application under cl. 6(a). On the assumption that under cl. 5(a) an employer can raise a dispute sought to be created by his own proposed order of dismissal of workmen there is clearly this disharmony as pointed out above between two provisions viz., cl. 5(a) and cl. 23; and undoubtedly we have to apply the rule of harmonious construction. In applying the rule however we have to remember that to harmonise is not to destroy. In the interpretation of statutes the court,% always presume that the legislature inserted every part thereof for a purpose and the legislative intention is that every part of the statute should have effect. These presumptions will have to be made in the case of rule making authority also. On the construction suggested by the learned Attorney General it is obvious that by merely making an application under cl. (5) on the allegation that a dispute has arisen about the proposed action to dismiss workmen the employer can in every case escape the requirements of cl. 23 and if for one reason or other every employer when proposing a dismissal prefers to proceed under cl. 5(a) instead of making an application under cl. 23, cl. 23 will be a dead letter. A construction like this which defeats the intention of the rule making authority in cl. 23 must, if possible, be avoided. 25 194 It is hardly necessary to mention that this rule in cl. 23 was made with a definite purpose. The provision here is very similar to section 33 of the before its amendment, though there are some differences. It is easy to see however that the rule making authority in making this rule was anxious to prevent as far as possible the recrudescense of fresh disputes between employers and workmen when some dispute was already pending and that purpose will be directly defeated if a fresh dispute is allowed to be raised under cl. 5(a) in the very cases where cl. 23 in terms applies. There will be complete harmony however if we hold instead that cl. 5(a) will apply in all other cases of proposed dismissal or discharge except where an inquiry is pending within the meaning of cl. 23. We reach the same result by applying another well known rule of construction that general provisions yield to special provisions. The learned Attorney General seemed to suggest that while this rule of construction is applicable to resolve the conflict between the general provision in one Act and the special provision in another Act, the rule cannot apply in resolving a con flict between general and special provisions in the same legislative instrument. This suggestion does not find support in either principle or authority. The rule that general provisions should yield to specific provisions is not an arbitrary principle made by lawyers and judges but springs from the common understanding of men and women that when the same person gives two directions one covering a large number of matters in general and another to only some of them his intention is that these latter directions should prevail as regards these while as regards all the rest the earlier direction should have effect. In Pretty vs Solly (1) (quoted in Craies on Statute Law at p. 205, 5th Edition) Romilly, M.R. mentioned the rule thus:"The rule is, that whenever there is a particular enactment and a general enactment in the same statute and the latter, taken in its most comprehensive sense, would overrule the former, the particular enactment (1) ; , 610. 195 must be operative, and the general enactment must be taken to affect only the other parts of the statute to which it may properly apply". The rule has been applied as between different provisions of the same statute in numerous cases some of which only need be mentioned: De Winton vs Brecon (1), Churchill vs Crease (2), United States vs Chase (3) and Carroll vs Greenwich Ins. Applying this rule of construction that in cases of conflict between a specific provision and a general provision the specific provision prevails over the general provision and the general provision applies only to such cases which are not covered by the special provision, we must hold that cl. 5(a) has no application in a case where the special provisions of cl. 23 are applicable. As in the present case an inquiry was in fact pending before a Conciliation Officer, cl. 23 applied in respect of any discharge or dismissal of a workman and the employer could not take advantage of cl. 5(a) of the Government Order and such an application could not in law be entertained by the Board. In view of this conclusion it is unnecessary for us to consider the other question that was raised, viz., whether an industrial dispute within the meaning of cl. 5(a) comes into existence as soon as an employer decides on the dismissal of some of its workmen and proposes to give effect to such a decision. On the above conclusions we hold that the Labour Appellate Tribunal of India rightly held that the application under cl. 5(a) filed on June 13, 1950 was not maintainable and rightly set aside the awards of the Conciliation Board and the Industrial Court. The appeal against the order of the Labour Appellate Tribunal of India is therefore dismissed. As we have already pointed out above the order made by the appellate Bench of the High Court in the writ petition was based on its acceptance of the preliminary objection that the records of the Labour Appellate Tribunal being in Calcutta could not be (1)(1858) (2)(1828) 5 Bing. (3)(1890) ; (4)(1905) ; 196 reached by any writ of the Allahabad High Court. In view of our conclusion that the application under cl. 5(a) was not maintainable, the appellant was on merits not entitled to any writ and on that ground the appeal against the High Court 's order must also be dismissed. It is unnecessary to consider the question whether the High Court was right in its view as regards the preliminary objection and we express no opinion on the same. Both the appeals are accordingly dismissed with costs to the contesting respondent. There will be one set of hearing fee. Appeals dismissed.

IN-Abs

Under sections 3 and 8 of the U. P. the Governor issued an Order dated March 10, 1948, making dletailed provisions for the settlement of Industrial Disputes. Clause 5(a) of the Government Order empowered, among others, a recognised association of employers to refer an industrial dispute for adjudication to the Conciliation Board. Clause 23 provided that no employer shall discharge or dismiss any workman during the pendency of an inquiry except with the written permission of the Regional Conciliation Officer, and Cl. 26 provided for penalties for contravention of Cl. 23. The appellant proposed to dismiss certain workmen. Though at the time there was a dispute pending inquiry, the appellant did not seek permission under cl. 23 to dismiss the workmen; but the Employers ' Associa tion of Northern India made an application under cl. 5(a) to the Board to adjudicate and give an award that the appellant was entitled to dismiss the workmen. The workmen contended that the reference under cl. 5(a) was incompetent as the appellant had ,not first taken proceedings under Cl. Held, that the application under cl. 5(a) of the G. O. was not 24 186 maintainable, as the employer could not take advantage of cl. 5(a) during the pendency of an inquiry when Cl. 23 was applicable. If cls. 5(a) and 23 were held to ' apply at the same time there would be disharmony as by resorting to cl. 5(a) when Cl. 23 was applicable, the employers would be contravening cl. 23 and rendering themselves liable to the penalties under section 26. But there was complete harmony if it was held that cl. 5(a) applied in all other cases of dismissal or discharge except where an inquiry was pending within the meaning of Cl. 23. Besides Cl. 23 was a special provision which prevailed over the general provisions in cl. Kanpur Mill Mazdoor Union vs Employers ' Association of Northern India, , approved. De Winton vs Brecon, , Churchill vs Crease, (182S) 5 Bing. 177 and United States vs Chase, ; , referred to.

minal Appeal No. 192 of 1959. Appeal by special leave from the judgment and order dated October 27, 1958, of the Andhra Pradesh High Court at Hyderabad in Criminal Revision Case No. 395 of 1958. M. C. Setalvad, Attorney General of India, T. V. R. Tatachari and T. M. Sen, for the appellant. R. Thiagarajan for N. section Mani, for respondent. April 4. The Judgment of the Court was delivered by SARKAR, J. The respondent was convicted by the Judicial Magistrate of Adoni in the State of Andhra Pradesh, under section 14 of the . His appeal to the Sessions Judge of Kurnool was dismissed. He then moved the High Court of Andhra Pradesh in revision and the revision petition was allowed. Hence the present appeal by the State of Andhra Pradesh. The facts found were these: On January 20, 1955, the respondent had come to Adoni on a passport granted by the Government of Pakistan which bore the date January 10, 1955. The passport had endorsed on it a visa granted by the Indian authorities which permitted the respondent to stay in India up to April 14, 1955. The respondent continued to stay on in India after that date. On some date, not precisely ascertainable from the record, he appears to have made a representation to the Government of India for extension of his visa till September 2, 1957, on grounds of health. The records do not however show what order, if any, was made on this representation. On September 3, 1957, an order dated August 9, 1957, made by the Government of Andhra, Pradesh requiring him to leave India, was served on the respondent As the respondent did not leave India as directed by this order, he was prosecuted with the result earlier stated. The passport showed that the respondent was born at Adoni in 1924 The respondent appears to have 740 produced an extract from the municipal birth register, which is not on the record, but presumably showed that he was so born. The only evidence on the record of the date when he left India, shows that must have been at the end of 1954 or early in 1955. There is evidence to show that he had been paying rent for his ,hop at Adoni for about ten years prior to 1958 and his parent section brothers, wife, and children were. and bad always been in India. The respondent was charged with the breach of the order to leave India which had been made under section 3 (2)(c) of the . Now the order could not be made on him, neither could he be convicted for breach of it, if lie was not a foreigner. That was the defence of the respondent, namely that he was not a foreigner. The question is, was a foreigner? The learned Judicial Magistrate found that by obtaining the passport from the Pakistan authorities, "he has disowned Indian nationality and has ceased to be an Indian National." He also held that section 9 of the did not apply to the case but section 8 of that Act did and that under that section a decision made by the Government that a person is a foreigner is final and such a decision had been made in this case regarding the respondent as the Government had decided not to grant him an extension of his visa. On these grounds he found that the respondent was a foreigner. It seems to us that both these grounds are untenable. Section 8 applies to a case where "a foreigner is recognised as a national by the law of more than one foreign country or where for any reason, it is uncertain what nationality if any is to be ascribed to a foreigner. " The section provides that in such cases the prescribed authority has power to decide of which country the foreigner is to be treated as the national and such decision shall be final. The section, therefore, applies to a person who is a foreigner and the question is of which foreign country he is a national. In the case of the respondent no such question arose and no decision could be or was made by any prescribed authority of such question. The learned Magistrate therefore clearly went wrong in relying on section 8. 741 As regards the passport, the learned Magistrate did not come to the finding that it proved the respondent to have been a Pakistani national all along. What he Al did was to think that the respondent who had earlier been an Indian national, had by obtaining it, disowned Indian nationality and ceased to be an Indian national. Now, section 9(2) of the , provides that if any question arises as to whether an Indian citizen has acquired the citizenship of another country, it shall be determined by such authority and in such manner as may be prescribed. Under r. 30 of the rules framed under that Act,, the authority to decide that question is the Central Government. So the question whether the respondent, an Indian citizen, had acquired Pakistani citizenship cannot be decided by courts. The learned Magistrate had no jurisdiction therefore to come to the finding on the strength of the passport that the respondent, an Indian citizen, had acquired Pakistani citizenship. Nor was there anything before the learned Magistrate to show that the Central Government had decided that the respondent had renounced Indian citizenship and acquired that of Pakistan. The learned Magistrate thought that the fact that the Central Government had refused to extend the respondent 's visa proved that it had decided that he had acquired Pakistani nationality. This view again was not warranted. There is nothing to show that the Central Government had refused to extend the respondent 's visa. Even if it had, that would not amount to a decision by it, that the respon dent, an Indian citizen, had acquired subsequently Pakistani nationality for there may be such refusal when an applicant for the extension had all along been a Pakistani national. Furthermore, in order that there may be a decision by the Central Government that an Indian citizen has acquired foreign nationality, an enquiry as laid down in r. 30 of the rules framed under the has to be made and no such enquiry had at all been made. That being so, it cannot be said that the Central Government had decided that the respondent, an Indian citizen, had acquired the citizenship of Pakistan. 742 The question whether a person is an Indian citizen or a foreigner, as distinct from the question whether a person having once been an Indian citizen has renounced that citizenship and acquired a foreign nationality, is not one which is within the exclusive jurisdiction of the Central Government to decide. The courts can decide it and, therefore, the learned Magistrate could have done so. He, however, did not decide that question, that is, find that the respondent had been a Pakistani national all along. On the evidence on the record such a finding would not have been warranted. For all these reasons we think that the conviction of the respondent by the learned Magistrate was not well founded. Coming now to the decision of the learned Sessions Judge, he seems to have based himself on the reasoning that the "conduct of the appellant" that is, the respondent before us, "in applying for extension of time shows that he is not a citizen of India and that he has acquired citizenship of Pakistan. If he were a citizen of India, he could have raised this plea and this question could have been decided by the Central Government as envisaged by Rule 30, sub Rule I of the Rules made under the and there was no necessity to apply for extension. " Quite plainly, the learned Sessions Judge was proceeding on the basis that the respondent had renounced his Indian citizenship and acquired Pakistani citizenship. As we have said earlier, that is not a question which is open to a court to decide and there is no evidence to show that it has been decided by the Central Government who alone has the power to decide it. The learned Sessions Judge did not direct himself to the question which lie could decide, namely whether the respondent had from the beginning been a Pakistani citizen. His decision, therefore, cannot also be sustained. We have examined the evidence on the record our.,elves and are unable to say that a conviction can be based on it. There can be no conviction unless it can be held on the evidence that the respondent is a foreigner, that is to say, a person who is not an Indian 743 citizen: see section 2(a) of the as amended by Act 11 of 1957. The evidence shows that the respondent did go to Pakistan, but the only evidence with regard to that is that he went there about the end of 1954 or the beginning of 1955. This evidence also indicates that he stayed there for a short time. He was all along paying the rent for his shop in Adoni. His family bad always been there. Therefore it can be said that he had never migrated to Pakistan. Clearly, a short visit to Pakistan would not amount to migrating to that country. The passport obtained by him from Pakistan would no doubt be evidence that he was a Pakistani national. As on the facts of this case he must be held to have been an Indian citizen on the promulgation of the Constitution, the passport can show no more than that he renounced Indian citizenship and acquired Pakistani nationality. Such evidence would be of no use in the present case for, in view of section 9(2) of the , a Court cannot decide whether an Indian citizen has acquired the citizenship of another country. The position then is this. The respondent has clearly discharged the onus that lay on him under section 9 of the to prove that he was not a foreigner, by proving that he was born and domiciled in India prior to January 26, 1950, when the Constitution came into force and thereby had become an Indian citizen under article 5(a) of the Constitution. He has further proved that he had never migrated to Pakistan. It has not been shown that the Central Government had made any decision with regard to him under section 9 of the that he has acquired a foreign nationality. Therefore, it cannot be held by any court that the respondent who was an Indian citizen has ceased to be such and become a foreigner. That being so, it must be held for the purpose of this case that the respondent was not a foreigner and no order could be made against him under section 3(l)(c) of the . Conviction for breach of such an order by the respondent would be wholly illegal. 744 Though we are upholding the decision of the High Court, we wish to observe that we do not do so for the reasons mentioned by it. It is unnecessary to discuss those reasons but we would like to point, out one thing, namely. that the High Court seems to have been of the opinion that article 7 of the Constitution contemplates migration from India to Pakistan even after January 26, 1950. We desire to make it clear that we should not be taken to have accepted or en dorsed the correctness of this interpretation of article 7. The reference in the opening words of article 7 to articles 5 and 6 taken in conjunction with the fact that both articles 5 and 6 are concerned with citizenship (at the commencement of the Constitution) apart from various other considerations would appear to point to the conclusion that the migration referred to in article 7 is one before January 26, 1950, and that the contrary construction which the learned Judge has put upon article 7 is not justified, but in the view that we have taken of the facts of this case, namely, that the respondent had never migrated to Pakistan, we do not consider it necessary to go into this question more fully or finally pronounce upon it. In the result we dismiss the appeal. Appeal dismissed.

IN-Abs

The respondent was born in India in 1924 and had lived there all along till about the end of 1954. He had been paying rent for his shop in India for ten years upto about 1958 and his family was and had always been in India. At the end of 1954 or the beginning of 1955 lie went to Pakistan from where he returned on January 20, 1955, on a passport granted by the Pakistan Government which had a visa endorsed on it by the Indian authorities permitting him to stay in India up to April, 1955. The respondent applied to the Central Government for extension of the time allowed by the visa but the records did not Show What order, if any, had been made on it. As the respondent had stayed beyond the time specified in the visa, he was on September 3, 1957, served with an order made by the Government of Andhra Pradesh under section 3(2)(C) Of the , i946 requiring him to leave India. The order described him as a Pakisthan National. on his failure to comply with this order 93 738 he was prosecuted under section 14 of the . His defence was that he was an Indian national. The trying magistrate rejected this defence and convicted him holding (a) that the fact that the respondent obtained a Pakistan passport proved that he had disowned Indian nationality and ceased to be an Indian national and (b) that by refusing to extend the time fixed by the visa the Central Government had decided that the respondent was a foreigner and under section 8 of the , such a decision was final. An appeal by the respondent was dismissed by the Sessions judge on the ground that the respondent 's application for extension of the time fixed by the visa proved that he had renounced his Indian nationality and had acquired the citizenship of Pakistan. The High Court of Andhra Pradesh set aside the conviction in revision. On appeal by the State of Andhra Pradesh, Held, that neither the Magistrate nor the Sessions Judge was competent to come to a finding of his own that the respon dent, an Indian national, had disowned his nationality and acquired Pakistan nationality for under section 9(2) of the , that decision could only be made by the prescribed authority which under the Rules framed under the Act was the Central Government. The fact that the Central Government had refused to extend the visa did not show that it had decided under the section that the respondent had renounced his Indian nationality and acquired Pakistan citizenship. In any event, in order that the Central Government might come to a decision under section 9(2) of the an enquiry as laid down in r. 30 Of the Rules framed under the Act had to be made and no such inquiry had been made. On the facts established, the respondent became an Indian citizen under article 5(a) of the Constitution when it came into force. He thereby discharged the onus laid on him by section 9 of the to prove that he was an Indian citizen when that was in dispute. The passport obtained by the respondent from the Pakistan Government would, therefore, only be evidence that the respondent had renounced Indian nationality and acquired Pakistan citizenship. Such evidence was however of no use in a court for no court could in view of section 9(2) of the decide whether an Indian citizen had renounced his citizenship and acquired the citizenship of a foreign country. Section 8 of the had no application to the case as it only applied where a foreigner is recognised as a national by the law of more than one foreign country or where it is uncertain what nationality is to be ascribed to a foreigner and in the present case that was not the question but the question was whether the respondent was an Indian or a foreigner. The respondent 's short visit to Pakistan had not amounted to a migration to that country. Query, whether article 7 of the Constitution contemplates migration from India to Pakistan after January 26, 1950.

ons Nos. 66 and 67 of 1956, 8 of 1960, 77 of 1957, 15 of 1957 and 5 of 1958. Writ Petitions under Article 32 of the Constitution of India for the enforcement of Fundamental Rights. Naunit Lal, for the petitioner in W. Ps. Nos. 66 and 67 of 1956. C. P. Lal, for respondent No. 1 in W. Ps. Nos. 66 and 67 of 1956. Bhawani Lal and P. C. Agarwal, for respondents Nos. 3a and 4 in W. Ps. Nos. 66 and 67 of 1956. C. B. Agarwala and K. P. Gupta, for the petitioner in W. P. No. 8 of 1960. Veda Vayasa and C. P. Lal, for respondent in W. P. No. 8 of 1960. Pritam Singh Safeer, for the petitioner in W. P. No. 77 of 1957. section M. Sikri, Advocate General, Punjab, N. section Bindra and D. Gupta, for respondent No. 1 in W. P. No. 77 of 1957. Govind Saran Singh, for respondent. No. 2 in W. P. No. 77 of 1957. A. N. Sinha and Raghunath, for petitioner in W. P. No. 15 of 1957. C. K. Daphtary, Solicitor General for India, N. S Bindra and R. H. Dhebar, for respondent in W.P. No 15 of 1957. 577 B. R. L. lyengar, for the petitioner in W. P. No. 5 of 1958. C. K. Daphtary, Solicitor General for India, R. Gana Dar pathy Iyer and R. H. Dhebar, for the respondent in W. P. No. 5 of 1958. March 27. The Judgment of the Court was delivered by GAJENDRAGADKAR, J. These six writ petitions filed Gaje, under article 32 of the Constitution have been placed before the Court for final disposal in a group because though they arise between separate parties and are unconnected with each other a common question of law arises in all of them. The opponents in all these petitions have raised a preliminary objection against the maintainability of the writ petitions on the ground that in each case the petitioners had moved the High Court for a similar writ under article 226 and the High Court has rejected the said petitions. The argument is that the dismissal of a writ petition filed by a party for obtaining an appropriate writ creates a bar of res judicata against a similar petition filed in this Court under article 32 on the same or similar facts and praying for the same or similar writ. The question as to whether such a bar of res judicata can be pleaded against a petition filed in this Court under article 32 has been adverted to in some of the reported decisions of this Court but it has not so far been fully considered or finally decided; and that is the preliminary question for the decision of which the six writ petitions have been placed together for disposal in a group. In dealing with this group we will set out the facts which give rise to Writ Petition No. 66 of 1956 and decide the general point raised for our decision. Our decision in this writ petition will govern the other writ petitions as well. Petition No. 66 of 1956 alleges that for the last fifty years the petitioners and their ancestors have been the tenants of the land described in Annexure A attached to the petition and that respondents 3 to 5 are the proprietors of the said land. Owing to communal 73 578 disturbances in the Western District of Uttar Pradesh in 1947, the petitioners had to leave their village in July, 1947; later in November, 1947, they returned but they found that during their temporary absence respondents 3 to 5 had entered in unlawful possession of the said land. Since the said respondents refused to deliver possession of the land to the petitioners the petitioners had to file suits for ejectment under section 180 of the U. P. Tenancy Act, 1939. These suits were filed in June, 1948. In the trial court the petitioners succeeded and a decree was passed in their favour. The said decree. was confirmed in appeal which was taken by respondents 3 to 5 before the learned Additional Commissioner. In pursuance of the appellate decree the petitioners obtained possession of the land through Court. Respondents 3 to 5 then preferred a second appeal before the Board of Revenue under section 267 of the U. P. Tenancy Act, 1939. On March 29, 1954, the Board allowed the appeal preferred by respondents 3 to 5 and dismissed the petitioner 's suit with respect to the land described in Annexure A, whereas the said respondents ' appeal with regard to other lands were dismissed. The decision of the Board was based on the ground that by virtue of the U. P. Zamindary Abolition and Land Reforms (Amendment) Act XVI of 1953 respondents 3 to 5 had become entitled to the possession of the land. Aggrieved by this decision the petitioners moved the High Court at Allahabad under article 226 of the Constitution for the issue of a writ of certiorari to quash the said judgment. Before the said petition was filed a Full Bench of the Allahabad High Court had already interpreted section 20 of the U. P. Land Reforms Act as amended by Act XVI of 1953. The effect of the said decision was plainly against the petitioners ' contentions, and so the learned advocate who appeared for the petitioners had no alternative but not to press the petition before the High Court. In consequence the said petition was dismissed on March 29, 1955. It appears that section 20 has again been amended by section 4 of Act XX of 1954. It is under these 579 circumstances that the petitioners have filed the present petition under article 32 on March 14, 1956. It is plain that at the time when the present petition has been filed the period of limitation prescribed for an appeal under article 136 against the dismissal of the petitioners ' petition before the Allahabad High Court had already expired. It is also clear that the grounds of attack against the decision of the Board which the petitioners seek to raise by their present petition are exactly the same as the grounds which they had raised before the Allahabad High Court; and so it is urged by the respondents that the present petition is barred by res judicata. Mr. Agarwala who addressed the principal arguments on behalf of the petitioners in this group contends that the 'principle of res judicata which is no more than a technical rule similar to the rule of estoppel cannot be pleaded against a petition which seeks to enforce the fundamental rights guaranteed by the Constitution. He argues that the right to move the Supreme Court for the enforcement of the fundamental rights which is guaranteed by article 32(1) is itself a fundamental right and it would be singularly inappropriate to whittle down the said fundamental right by putting it in the straight jacket of the technical rule of res judicata. On the other hand it is urged by the learned Advocate General of Punjab, who led the respondents, that article 32(1) does not guarantee to every citizen the right to make a petition under the said article but it merely gives him the right to move this Court by appropriate proceedings, and he contends that the appropriate proceedings in cases like the present would be proceedings by way of an application for special leave under article 136 or by way of appeal under the appropriate article of the Con stitution. It is also suggested that the right to move which is guaranteed by article 32(1) does not impose on this Court an obligation to grant the relief, because as in the case of article 226 so in the case of article 32 also the granting of leave is discretionary. In support of the argument that it is in the discretion of this Court to grant an appropriate relief or refuse to do so reliance has been placed on the observations 580 made in two reported decisions of this Court. In Laxmanappa Hanumantappa Jamkhandi vs The Union of India & Another (1), this Court held that as there is a special provision in article 265 of the Constitution that no tax shall be levied or collected except by authority of law, cl. 1 of article 31 must be regarded as concerned with deprivation of property otherwise than by imposition or collection of tax and as the right conferred by article 265 is not a fundamental right con ferred by Part III of the Constitution, it cannot be enforced under article 32. In other words, the decision was that the petition filed before this Court under article 32 was not maintainable; but Mahajan, C.J. , Who spoke for the Court, proceeded to observer that "even otherwise in 'the peculiar circumstances that have arisen it would not be just and proper to direct the issue of any of the writs the issue of which is discretionary with this Court". The learned Chief Justice has also added that when this position was put to Mr. Sen he fairly and rightly conceded that it was not possible for him to combat this position. 'To the same effect are the observations made by the same learned Chief Justice in Dewan Bahadur Seth Gopal Das Mohta vs The Union of India & Another (2). It will, however, be noticed that the observations made in both the cases are obiter, and, with respect, it would be difficult to treat them as a decision on the question that the issue of an appropriate writ tinder article 32 is a matter of discretion, and that even if the petitioner proves his fundamental rights and their unconstitutional infringement this Court nevertheless can refused. to issue an appropriate writ in his favour Besides, the subsequent decision of this Court in Basheshar Nath vs The Commissioner of Income tax, Delhi and, Rajasthan (3) tender to show that if a petitioner makes out a case of illegal contravention of his fundamental rights he may be entitled to claim an appropriate relief and a plea of waiver cannot be raised against his claim. It is true that the question of res judicata did not fall to be considered in that case but the tenor of all the judgments, which no doubt disclose a (1) , 772, 773 (2) ; , 776. (3) [1959] SUPP. 1 S.C.R. 528 581 difference in approach, seems to emphasise the basic importance of the fundamental rights guaranteed by, the Constitution and the effect of the decision appears to be that the citizens are ordinarily entitled to appropriate relief under article 32 once it is shown that their fundamental rights have been illegally or unconstitutionally violated. Therefore, we are not impressed by the argument that we should deal with the question of the applicability of the rule of res judicata to a petition under article 32 on the basis that like article 226 article 32 itself gives merely a discretionary power to the Court to grant an appropriate relief. The argument that article 32 does not confer upon a citizen the right to move this Court by an original petition but merely gives him the right to move this Court by an appropriate proceeding according to the nature of the case seems to us to be unsound. It is urged that in a case where the petitioner has moved the High Court by a writ petition under article 226 all that he is entitled to do under article 32(1) is to move this Court by an application for special leave under article 136; that, it is contended, is the effect of the expression "appropriate proceedings" used in article 32(1). In our opinion, on a fair construction of article 32(1) the expression "appropriate proceedings" has reference, to proceedings which may be appropriate having regard to the nature of the order, direction or writ which the petitioner seeks to obtain from this Court. The appropriateness of the proceedings would depend upon the particular writ or order which he claims and it is in that sense that the right has been conferred on the citizen to move this Court by appropriate proceedings. That is why we must proceed to deal with the question of res judicata on the basis that a fundamental right has been guaranteed to the citizen to move this Court by an original petition wherever his grievance is that his fundamental rights have been illegally contravened. There can be no doubt that the fundamental right guaranteed by article 32(1) is a very important safeguard for the protection of the fundamental rights of the citizen, and as a result of the said guarantee this 582 Court has been entrusted with the solemn task of upholding the fundamental rights of the citizens of this country. The fundamental rights are intended not only to protect individual 's rights but they are based on high public policy. Liberty of the individual and the protection of his fundamental rights are the very essence of the democratic way of life adopted by the Constitution, and it is the privilege and the duty of this Court to uphold those rights. This Court would naturally refuse to circumscribe them or to curtail them except as provided by the Constitution itself. It is because of this aspect of the matter that in Romesh Thappar vs The State of Madras (1), in the very first year after the Constitution came into force, this Court rejected a preliminary objection raised against the competence of a petition filed under article 32 on the ground that as a matter of orderly procedure the petitioner should first have resorted to the High Court under article 226, and observed that "this Court in thus constituted the protector and guarantor of the fundamental rights, and it cannot, consistently with the responsibility so laid upon it, refuse to entertain applications seeking protection against infringements of Ruch rights". Thus the right given to the citizen to move this Court by a petition under article 32 and claim an appropriate writ against the unconstitutional infringement of his fundamental rights itself is a matter of fundamental right, and in dealing with the objection based on the application of the rule of res judicata this aspect of the matter had no doubt to be borne in mind. But, is the rule of res judicata merely a technical rule or is it based on high public policy? If the rule of res judicata itself embodies a principle of public policy which in turn is an essential part of the rule of law then the objection that the rule cannot be invoked where fundamental rights are in question may lose much of its validity. Now, the rule of res judicata as indicated in section 11 of the Code of Civil Procedure has no doubt, some technical aspects, for instance the rule of constructive res judicata may be said to be technical; but the basis on which the said rule rests is (1) ; 583 founded on considerations of public policy. It is in the interest of the public at large that a finality should attach to the binding decisions pronounced by Courts ' of competent jurisdiction, and it is also in the public interest that individuals should not be vexed twice over with the same kind of litigation. If these two principles form the foundation of the general rule of res judicata they cannot be treated as irrelevant or inadmissible even in dealing with fundamental rights in petitions filed under article 32. In considering the essential elements of res judicata one inevitably harks back to the judgment of Sir William de Grey, (afterwards Lord Walsingham) in the leading Duchess of King8ton 's case (1). Said Sir William de Grey, (afterwards Lord Walsingham) "from the variety of cases relative to judgments being given in evidence in civil suits, these two deductions seem to follow as generally true: First, that the judgment of a court of concurrent jurisdiction, directly upon the point, is as a plea, a bar, or as evidence, conclusive between the same parties, upon the same matter, directly in question in another court; Secondly, that the judgment of a court of exclusive jurisdiction, directly upon the point, is in like manner conclusive upon the same matter, between the same parties, coming incidentally in question in another court for a different purpose". As has been observed by Halsbury, "the doctrine of res judicata is not a technical doctrine applicable only to records; it is a fundamental doctrine of all courts that there must be an end of litigation" (2 ). Halsbury also adds that the doctrine applies equally in all courts, and it is immaterial in what court the former proceeding was taken, provided only that it was a court of competent jurisdiction, or what form the proceeding took, provided it was really for the same cause" (p. 187, paragraph 362). "Res judicata", it is observed in Corpus Juris, "is a rule of universal law pervading every well regulated system of jurisprudence, and is put upon two grounds embodied in various maxims of the common law; the one, (1) 2 Smith Lead. 13th Ed., pp. 644, 645. (2) Halsbury 's Laws of England, 3rd, Ed., Vol. 15, para. 584 public policy and necessity, which makes it to the, interest of the State that there should be an end to s litigation interest republican ut sit finis litium; the other, the hardship on the individual that he should be vexed twice for the same cause nemo debet bis vexari pro eadem causa" (1). In this sense the recognised basis of the rule of res judicata is different from that of technical estoppel. "Estoppel rests on equity able principles and res judicata rests on maxims which are taken from the Roman Law" (2). Therefore, the argument that res judicata is a technical rule and as such is irrelevant in dealing with petitions under article 32 cannot be accepted. The same question can be considered from another point of view. If a judgment has been pronounced by a court of competent jurisdiction it is binding between the parties unless it is reversed or modified by appeal, revision or other procedure prescribed by law. Therefore, if a judgment has been pronounced by the High Court in a writ petition filed by a party rejecting his prayer for the issue of an appropriate writ on the ground either that he had no fundamental right as pleaded by him or there has been no contravention of the right proved or that the contravention is justified by the Constitution itself, it must remain binding between the parties unless it is attacked by adopting the procedure prescribed by the Constitution itself. The binding character of judgments pronounced by courts of competent jurisdiction is itself an essential part of the rule of law, and the rule of law obviously is the basis of the administration of justice on which the Constitution lays so much emphasis. As Halsbury has observ ed "subject to appeal and to being amended or set aside a judgment is conclusive as between the parties and their privies, and is conclusive evidence against all the world of its existence, date and legal consequences"(3). Similar is the statement of the law in Corpus Juris: "the doctrine of estoppel by judgment does not rest on any superior authority of the court rendering the judgment, and a judgment of one court is a bar to an (1) Corpus juris, VOl. (2) Ibid. P. 745 (3) Halsbury 's Laws of England, 3rd Ed., VOl. 22, P 780, paragraph 1660. 585 action between the same parties for the same cause in the same court or in another court, whether the latter has concurrent or other jurisdiction. This rule is subject to the Limitation that the judgment in the former action must have been rendered by a court or tribunal of competent jurisdiction" (1). "It is, however ' essential that there should have been a judicial determination of rights in controversy with a final decision thereon" In other words, an original petition for a writ under article 32 cannot take the place of an appeal against the order passed by the High Court in the petition filed before it under article 226. There can be little doubt that the jurisdiction of this Court to entertain applications under article 32 which are original cannot be confused or mistaken or used for the appellate jurisdiction of this Court which alone can be invoked for correcting errors in the decisions of High Courts pronounced in writ petitions under article 226. Thus, on general considerations of public policy there seems to be no reason why the rule of res judicata should be treated as inadmissible or irrelevant in dealing with petitions filed under Art,. 32 of the Constitution. It is true that the general rule can be invoked only in cases where a dispute between the parties has been referred to a court of competent jurisdiction, there has been a contest between the parties before the court, a fair opportunity has been given to both of them to prove their case, and at the end the court has pronounced its judgment or decision. Such a decision pronounced by a court of competent jurisdiction is binding between the parties unless it is modified or reversed by adopting a procedure prescribed by the Constitution. In our opinion, therefore, the plea that the general rule of res judicata should not be allowed to be invoked cannot be sustained. This Court had occasion to consider the application of the rule of res judicata to a petition filed under article 32 in Pandit M. section M. Sharma vs Dr. Shree Krishna Sinha (3). In that case the petitioner had moved this (1) Corpus juris Secundum, VOI. 50 (judgments), p. 603. (2) Ibid. p. 608. (3) 74 586 Court under article 32 and claimed an appropriate writ against the Chairman and the Members of the Committee of Privileges of the State Legislative Assembly. The said petition was dismissed. Subsequently he filed another petition substantially for the same relief and substantially on the same allegations. One of the points which then arose for the decision of this Court was whether the second petition was competent, and this Court held that it was not because of the rule of res judicata. It is true that the earlier decision on which res judicata was pleaded was a decision of this Court in a petition filed under article 32 and in that sense the background of the dispute, was different, because the judgment on which the plea was based was a judgment of this Court and not of any High Court. Even so, this decision affords assistance in determining the point before us. In upholding the plea of res judicata this Court observed that the question determined by the previous decision of this Court cannot be reopened in the present case and must govern the rights and obligations of the parties which are substantially the same. In support of this decision Sinha, C. J., who spoke for the Court, referred to the earlier decision of this Court in Raj Lakshmi Dasi vs Banamali Sen (1) and observed that the principle underlying res judicata is applicable in respect of a question which hag been raised and decided after full contest, even though the first Tribunal which decided the matter may have no jurisdiction to try the subsequent suit and even though the subject matter of the dispute was not exactly the same in the two proceedings. We may add incidentally that the Court which tried the earlier proceedings in the case of Raj Lakshmi Dasi (1) was a Court of exclusive jurisdiction. Thus this decision establishes the principle that the rule of res judicata can be invoked even against a petition filed under article 32. We may at this stage refer to some of the earlier decisions of this Court where the presedt problem was posed but not finally or definitely answered. In Janardan Reddy vs The State of Hyderabad (2), it (1) ; (2) ; , 370 587 appeared that against the decision of the High Court a petition for specialleave had been filed but the, same had been, rejectedand this was followed by petitions under article 32.These petitions were in fact entertained though on the merits they were dismissed, and in doing so it was observed by Fazl Ali, J., who delivered the judgment of the Court, that "it may, however, be observed that in this case we have not considered it necessary to decide whether an application under article 32 is maintainable after a similar application under article 226 is dismissed by the High Court, and we reserve our opinion on that question". To the same effect are the observations made by Mukherjea, J., as he then was, in Syed Qasim Razvi vs The State of Hyderabad (1). On the other hand, in Bhagubhai Dullabhabhai Bhandari vs The District Magistrate, Thana (2) the decision of the High Court was treated as binding between the parties when it was observed by reference to the said proceedings that "but that is a closed chapter so far as the Courts including this Court also are concerned inasmuch as the petitioner 's conviction stands confirmed as a result of the refusal of this Court to grant him special leave to appeal from the judgment of the Bombay High Court". In other words, these observations seem to suggest that the majority view was that if an order of conviction and sentence passed by the High Court would be binding on the convicted person and cannot be assailed subsequently by him in a proceeding taken under article 32 when it appeared that this Court had refused special leave to the said convicted person to appeal against the said order of conviction. The next question to consider is whether it makes any difference to the application of this rule that the decision on which the plea of res judicata is raised is a decision not of this Court but of a High Court exercising its jurisdiction under article 226. The argument is that one of the essential requirements of section 11 of the Code of Civil, Procedure is that the Court which tries the first suit or proceeding should be competent (1) (2) ; 588 to try the second suit or proceeding, and since the High Court cannot, entertain an application under article 32 its decision cannot be treated as res judicata for the purpose of such a petition. It is doubtful if the technical requirement prescribed by section 11 as to the Competence of the first Court to try the subsequent suit is an essential part of the general rule of res judicata; but assuming that it is, in substance even the said test is satisfied because the jurisdiction of the High Court in dealing with a writ petition filed under Art,. 226 is substantially the same as the jurisdiction of this Court in entertaining an application tinder article 32. The scope of the writs, orders or directions which the High Court can issue in appropriate cases under article 226 is concurrent with the scope of similar writs, orders or directions which may be issued by this Court under article 32. The cause of action for the two applications would be the same. It is the assertion of the existence of a fundamental right and its illegal contravention in both cases and the relief claimed in both the cases is also of the same character. Article 226 confers jurisdiction oil the High Court to entertain a suitable writ petition, whereas article 32 provides for moving this Court for a similar writ petition for the same purpose. Therefore, the argument that a petition under article 32 cannot be entertained by a High Court under article 226 is without any substance; and so the plea that the judgment of the High Court cannot be treated as res judicata on the ground that it cannot entertain a petition under article 32 must be rejected. It is, however, necessary to add that in exercising its jurisdiction under article 226 the High Court may sometimes refuse to issue an appropriate writ or order on the ground that the party applying for the writ is guilty of laches and in that sense the issue of a high prerogative writ may reasonably be treated as a matter of discretion. On the other hand, the right granted to a citizen to move this Court by appropriate proceedings under article 32(1) being itself a fundamental right this Court ordinarily may have to issue an appropriate writ or order provided it is shown that 589 the petitioner has a fundamental right which has been illegally or unconstitutionally contravened. It is not unlikely that if a petition is filed even under article 32 after a long lapse of time, considerations ma arise whether rights in favour of third parties which may, have arisen in the meanwhile could be allowed to be ' affected, and in such a case the effect of laches on the, part of the petitioner or of his acquirence may have to be considered; but, ordinarily if a petitioner makes out a case for the issue of an appropriate writ or ' order he, would. be entitled to have such a writ or, order under article 32 and that may be said to constitute a difference in the right conferred on a citizen to move the High Court under article 226 as distinct from the right conferred on him to move this Court. This difference must inevitably mean that if the High, Court has refused to exercise its discretion on the ground of laches or on the ground that the party has an efficacious alternative remedy available to him then of course the decision of the High Court cannot generally be pleaded in support of the bar of res judicata. if, however, the matter has been considered on the merits and the High Court has dismissed the petition for a writ on the ground that no fundamental right is proved or its breach is either not established or is shown to be constitutionally justified there is no reason why the said decision should not be treated as a bar against the competence of a subsequent petition filed by the same party on the same facts and for the same reliefs under article 32. In this connection reliance has been placed on the fact that in England habeas corpus petitions can be filed one after the other and the dismissal of one habeas corpus petition is never held to preclude the making of a subsequent petition, for the same reason. In our opinion, there is no analogy between the petition for habeas corpus: and petitions filed either under article 226 or under article 32. For historical reasons the writ for habeas corpus is treated as standing in a category by itself; but, even with regard to a habeas corpus petition it has now been held in England in Re, Hastings (No. 2) (1) that "an applicant for a writ (1) (1958) 3 All E.R. Q.B.D. 625. 590 of habeas corpus in a criminal matter who has once been heard by a Divisional Court of the Queen 's Bench Division is not entitled to be heard a second time by another Divisional Court in the same Division, since a decision of a Divisional Court of the Queen 's Bench Division is equivalent to the decision of all the judges of the Division, just as the decision of one of the old common law courts sitting in bank was the equivalent of the decision of all the judges of that Court. " Lord Parker, C. J., who delivered the judgment of the Court, has elaborately examined the historical genesis of the writ, several dicta pronounced by different judges in dealing with successive writ petitions, and has concluded that "the authorities cannot be said to support the principle that except in vacation an applicant could go from judge to judge as opposed to going from court to court" (p. 633), so that even in regard to a habeas corpus petition it is now settled in England that an applicant cannot move one Divisional Court of the Queen 's Bench Division after ano ther. The said decision has been subsequently applied in Re Hastings (No. 3) (1) to a writ petition filed for habeas corpus in a, Divisional Court of tile Chancery Division. In England, technically an order passed on a petition for habeas corpus is not regarded as a judgment and that places the petitions for habeas corpus in a class by themselves. Therefore we do not think that the English analogy of several habeas corpus applications can assist the petitioners in the present case when they seek to resist the application of res judicata to petitions filed under article 32. Before we part with the topic we would, however, like to add that we propose to express no opinion on the question as to whether repeated applications for habeas corpus would be competent under our Constitution. That is a matter with which we are not concerned in the present proceedings. There is one more argument Which still remains to be considered. It is urged that the remedies available to the petitioners to move the High Court under article 226 and this Court under article 32 are (1) [1959] 1 AR E.R. Ch.D. 698. 591 alternate remedies and so the adoption of one remedy cannot bar the adoption of the other. These remedies are not exclusive but are cumulative and so no bar of res judicata can be pleaded when a party who has filed a petition under article 226 seeks to invoke the jurisdiction of this Court under article 32. In support of this contention reliance has been placed on the decision of the Calcutta High Court in Mussammat Gulab Koer vs Badshah Bahadur (1). In that case a party who had unsuccessfully sought for the review of a consent order on the ground of fraud brought a suit for a similar relief and was met by a plea of res judicata. This plea was rejected by the Court on the ground that the two remedies though co existing were not inconsistent so that when a party aggrieved has had recourse first to one remedy it cannot be precluded from subsequently taking recourse to the other. In fact the judgment shows that the Court took the view that an application for review was in the circumstances ail inappropriate remedy and that the only remedy available to the party was that of a suit. In dealing with the question of res judicata the Court examined the special features and conditions attaching to the appli cation for review, the provisions with regard to the finality of the orders passed in such review proceedings and the limited nature of the right to appeal provided against such orders. In the result the Court held that the two remedies cannot be regarded as parallel and equally efficacious and so no question of election of remedies arose in those cases. We do not think that this decision can be read as laying down a general proposition of law that even in regard to alternate remedies if a party takes recourse to one remedy and a contest arising therefrom is tried by a court of competent jurisdiction and all points of con troversy are settled the intervention of the decision of the court would make no difference at all. In such a case the point to consider always would be what is the nature of the decision pronounced by a Court of competent jurisdiction and what is its effect. Thus considered there can be no doubt that if a writ petition filed by a party has been dismissed on the merits (1)(1909) 1 592 by the High Court the,, judgment thus pronounced is binding between the parties and it cannot be circumvented or by passed by his taking recourse to article 32 of the Constitution. Therefore, we are not satisfied that the ground of alternative remedies is well founded. We, must now proceed to state our conclusion on the preliminary objection raised by the respondents. We hold that if a writ petition filed by a party under article 226 is considered on the merits as & contested matter, and is dismissed the decision thus pronounced would continue to bind the parties unless it is otherwise modified or reversed by appeal or other appropriate proceedings permissible under the Constitution. It would not be open to a party to ignore the said judgment and move this Court under article 32 by an original petition made on the same facts and for obtaining the same or similar orders or writs. If the petition filed in the High Court under article 226 is dismissed not on the merits but because of the laches of the party applying for the writ or because it is held that the party had an alternative remedy available to it, then the dismissal of the writ petition would not constitute a bar to a subsequent petition under article 32 except in cases where and if the facts thus found by the High Court may themselves be relevant even under article 32. If a writ petition is dismissed in limine and an order is pronounced in that behalf, whether or not the dismissal would constitute a bar would depend upon the nature of the order. If the order is on the merits it would be a bar; if the order shows that the dismissal was for the reason that the petitioner was guilty of laches or that he had an alternative remedy it would not be a bar, except in cases which we have already indicated. If the petition is dismissed in limine without passing a speaking order then such dismissal cannot be treated as creating a bar of res judicata. It is true that, prima facie, dismissal in limine even without passing a speaking order in that behalf may strongly suggest that the Court took the view that there was no substance in the petition at all; but in the absence of a speaking order it would not be easy to decide 593 what factors weighed in the mind of the Court and that makes it difficult and unsafe to hold that such a summary dismissal is a dismissal on merits and as such constitutes a bar of res judicata against a similar The petition filed under article 32. If the petition is dismissed as withdrawn it cannot be a bar to a subsequent Gaj petition under article 32, because in such a case there has been no decision on the merits by the Court. We wish to make it clear that the conclusions thus reached by us are confined only to the point of res jadirata which has been argued as a preliminary issue in these writ petitions and no other. It is in the light of this decision that we will now proceed to examine the position in the six petitions before us. In Petition No. 66 of 1956 we have already seen that the petition filed in the High Court was on the same allegations and was for the same relief The petitioners had moved the High Court to obtain a writ of certiorari to quash the decision of the Revenue Board against them, and when the matter was argued before the High Court in view of the previous decisions of the High Court their learned counsel did not press the petition. In other words, the points of law raised by the petition were dismissed on the merits. That being so, it is a clear case where the writ petition has been dismissed on the merits, and so the dismissal of the writ petition creates a bar against the competence of the present petition under article 32. The position with regard to the companion petition, No. 67 of 1956, is exactly the same. In the result these two petitions fail and are dismissed; there would be no order as to costs. In Writ Petition No. 8 of 1960 the position is substantially different. The previous petition for a writ filed by the petitioner (No. 68 of 1952) in the Allahabad High Court was withdrawn by his learned counsel and the High Court therefore dismissed the said petition with the express observation that the merits had not been considered by the High Court in dismissing it and so no order is to costs was passed. This order the writ petition withdrawn which was 75 594 passed on February 3, 1955, cannot therefore support the plea of res judicata against the present petition. It appears that a co lessee of the petitioner had also filed a similar Writ Petition, No. 299 of 1958. On this writ petition the High Court no doubt made certain observations and findings but in the end it came to the conclusion that a writ petition was not the proper proceeding for deciding such old disputes about title and so it left the petitioner to obtain a declaration about title from a competent civil or revenue court in a regular suit. Thus it would be clear that the dismissal of this writ petition (on 17 3 1958) also cannot constitute a bar against the competence of the present writ petition. The preliminary objection raised against this writ petition is therefore rejected and it is ordered that this writ petition be set down for hearing before a Constitution Bench. In Petition No. 77 of 1957 the petitioner has stated in paragraph 11 of his petition that he had moved the High Court of Punjab by a writ petition under articles 226 and 227 but the same was dismissed in limine on July 14, 1957. It is not clear from this statement whether any speaking order was passed on the petition or not. It appears that the petitioner further filed an application for review of the said order under O. 47, r. 1 read with section 151 of the Code but the said application was also heard and dismissed in limine on March 1, 1957. It is also not clear whether a speaking order was passed on this application or not. That is why, on the material as it stands it is not possible for us to deal with the merits of the preliminary objection. We ' would accordingly direct that the petitioner should file the two orders of dismissal passed by the Punjab High Court. After the said orders are filed this petition may be placed for hearing before the Constitution Bench and the question of res judicata may be, considered in the light of our decision in the present group. In Petition No. 15 of 1957 initially we had a bare recital that the writ petition made by the petitioner in the Punjab High Court had been dismissed. Subsequently, however, the said order itself has been 595 produced and it appears that it gives no reasons for dis missal. Accordingly we must hold that the said order does not create a bar of res judicata and so the petition will have to be set down for hearing on the merits. In Writ Petition No. 5 of 1958 the position is clear. The petitioner had moved the Bombay High Court for an appropriate writ challenging the order of the Collector in respect of the land in question. The contentions raised by the petitioner were examined in the light of the rejoinder made by the Collector and substantially the petitioner 's case was rejected. It was held by the High Court that the power conferred on the State Government by section 5(3) of the impugned Act, the Bombay Service Inam (Useful to the Community) Abolition Act, 1953, was not arbitrary nor was its exercise in this particular case unreasonable, or arbitrary. The High Court also held that the land of the petitioner attracted the relevant provisions of the said impugned statute. Mr. Ayyangar 'for the petitioner realised the difficulties in his way, and so he attempted to argue that the contentions which he wanted to raise in his present petition are put in a different form, and in support of this argument he has invited am attention to grounds 8 and 10 framed by him in paragraph X of the petition. We are satisfied that a change in the form of attack against the impugned statute would make no difference to the true legal position that the writ petition in the High Court and the present writ petition are directed against the same statute and the grounds raised by the petitioner in that behalf are substantially the same. Therefore the decision of the High Court pronounced by it on the merits of the petitioner 's writ petition under article 226 is a bar to the making of the present petition, under article 32. In the result this writ petition fails and is dismissed. There would be no order as to costs. Petition dismissed.

IN-Abs

Where the High Court dismisses a writ petition under article 226 of the Constitution after hearing the matter on the merits on the ground that no fundamental right was proved or contravened or that its contravention was constitutionally justified, a subsequent petition to the Supreme Court under article 32 of the Constitution on the same facts and for the same reliefs filed by the same party would be barred by the general principle of res judicata. There is no substance in the plea that the judgment of the High Court cannot be treated as res judicata because it cannot 575 under article 226 entertain a petition under article 32 of the Constitution. Citizens have ordinarily the right to invoke article 32 for appropriate relief if their fundamental rights are illegally on unconstitutionally violated and it is incorrect to say that article 32 merely gives this Court a discretionary power as article 226 does to the High Court. Basheshar Noth vs Commissioner of Income tax, Delhi and Rajasthan, [1959] SUPP. 1 S.C.R. 528, referred to. Laxmanappa Hanumantappa jamkhandi vs The Union of India; , , and Diwan Bahadur Seth Gopal Das Mohla vs The Union of India, ; , considered. The right given to the citizens to move this Court under article 32 is itself a fundamental right and cannot be circumscribed or curtailed except as provided by the Constitution. The expression "appropriate proceedings" in article 32,(1), properly construed, must mean such proceedings as may be appropriate to the nature of the order, direction or writ the petitioner seeks from this Court and not appropriate to the nature of the case. Romesh Thappar vs The State of Madras, ; , referred to, Even so the general principle of res judicata, which has it. ; foundation on considerations of public policy, namely, (1) that binding decisions of courts of competent jurisdiction should be final and (2) that no person should be made to face the same kind of litigation twice over, is not a mere technical rule that cannot be applied to petitions under article 32 of the Constitution, Duchess of Kingston 's case, 2 Smith Lead. 13th E d. 644, referred to. The binding character of judgments of courts of competent jurisdiction is in essence a part of the rule of law on which the administration of justice, so much emphasised by the Constitution, is founded and a judgment of the High Court under article 226 passed after a hearing on merits as aforesaid must bind the parties till set aside in appeal as provided by the Constitution and cannot be circumvented by a petition under article 32. Pandit M. section M. Sharma vs Dr. Shree Krishna Sinha, and Raj Lakshmi Dasi vs Banamali Sen, [1053] S.C.R. 154, relied on. Janardan Reddy vs The State of Hyderabad, ; , Syed Qasion Rezvi vs The State of Hyderabad, [1953] S.C.R. 589 and Bhagubhai Dullabhabhai Bhandari vs The District magistrate, Thana; , , referred to. It was not correct to say that since remedies under article 226 and article 32 were in the nature of alternate remedies the adoption of one could not bar the adoption of the other, Mussammat Gulab Koer vs Badshah Bahadur, (1909) 13 1197 held inapplicable. 576 Consequently, (1) where the petition under article 226 is considered on the merits as a contested matter and dismissed by the High Court, the decision pronounced is binding on the parties unless modified or reversed by appeal or other appropriate proceedings under the Constitution; (2) Where the petition under article 226 is dismissed I not on the merits but because of laches of the party applying for the writ or because an alternative remedy is available to him, such dismissal is no bar to a subsequent petition under article 32 except in cases where the facts found by the High Court may themselves be relevant even under article 32; (3) Where the writ petition is dismissed in limine and an order is pronounced, whether or not such dismissal is a bar must depend on the nature of the order; (4) if the petition is dismissed in limine without a speaking order, or as withdrawn, there can be no bar of res judicata.

Appeal No. 12 of 1958. Appeal by special leave from the judgment and order dated April 6,1953, of the Madras High Court in Appeal against order No. 54 of 1949. section T. Desai and K. R. Choudhri, for the appellant. K. N. Rajagopala Sastri and T. V. B. Tatachari, for respondents Nos. I to 5. April 5. The Judgment of the Court was delivered by MUDHOLKAR, J. In this appeal by special leave from the decision of the High Court of Madras the appellant challenges the validity of an award made by an arbitrator appointed by the Court in a suit for partition and recovery of possession filed by the appellant of his half share in certain properties upon three grounds. The first ground is that the reference to arbitration was itself invalid because the Court failed to comply with the mandatory requirements of section 23, sub section (1) of the (10 of 1940) in the matter of specifying the time within which the award was to be made. The second ground is that the award was filed in Court by the arbitrator after the expiry of the time subsequently granted by the court for filing the award. The third ground is that the arbitrator erred in allotting to the appellant less than half the share in the properties in suit. In our opinion there is no substance in any of these grounds. It is undoubtedly true that sub section (1) of a. 23 requires that an order thereunder referring a dispute to an arbitrator must specify the time within which the award is to be made. What is imperative is the fixation of the time for making the award. But it does not follow that where the Court omits to specify the time in the order of reference but does so elsewhere in the proceedings, the reference is bad. In Raja Har Narain Singh vs Chaadhrain Bhagawant Kuar and another (1) which was a case under the Code of Civil (1) (1981) L.R. 18 I.A. 55. 786 Procedure, 1882, the Privy Council had to consider the provisions of section 508 which correspond to those of section 23(l) of the . While pointing out that the provisions of section 508 are mandatory and imperative they held that though the failure of the Court, to specify the time for making the award in the order of reference was not a strict compliance of the terms of the section still the fact that the Court fixed a date for hearing of the case "might be sufficient. " There also, as here, subsequent to the mak ing of the reference the Court repeatedly made orders enlarging the time and in those orders Axed the time within which the award was to be made. Thus the emphasis laid by the Privy Council was on the fixation of time in some manner and not on the necessity of expressly specifying the time in the order of reference itself. Here the B Form Diary of the court shows that the dispute was referred to arbitration on January 22, 1948. The entry in the diary of that date reads thus: "Subject matter of suit is referred to Arbitration on joint petition. Call on. 24 2 1948". The words "call on" must be interpreted to mean that the arbitrator was required to file his award by the date for which the suit stood adjourned, that is, February 24, 1948. In our opinion this entry should be read along with the order of reference. Reading them together it would follow that time was in fact fixed for filing the award by February 24, 1948. The mere omission to mention this date in the order of reference itself did not vitiate the reference. As regards the failure of the arbitrator to file the award within the time fixed the argument of learned counsel is that though on March 25, 1948, time was fixed for filing the award by June 23, 1948, the award was not actually filed till July 6, 1948. A reference to the B Form Diary discloses that on February 24, 1948, the case was adjourned to March 25, 1948. The Diary contains the remark "call on" and this remark precedes the mention of the adjourned date. The High Court has interpreted this to mean that the time was extended by the Court on February 24, 1948, to March 25, 1948. The entry dated March 25, 1948, contains the following: 787 "Further time wanted. File Award 23 6 1948". Three further entries are relevant and they are as follows: "23 6 1948 Call on . 28 6 1948 28 6 1948 Call on. 6 7 1948 6 7 1948 Award filed. Objections 13 7 1948". It is obvious from these entries that time was extended by the Court to file the award on three occasions. The award was actually ready on June 28, 1948, and was filed in Court on July 6, 1948. Learned counsel for the appellant faintly urged that on July 2, 1948, that is, before the award was actually filed, he had made an application to the Court for superseding the arbitration and that, therefore, the award could not be filed thereafter. A mere application of the kind could not affect the reference. Apart from that, the award had actually been made before that date and, there fore, the attempt to seek the supersession of the arbitration was, in any case, belated. As regards the last point the High Court has come to the conclusion that though the area of the land allotted to the appellant is less than half the total area of the land in suit there is nothing to indicate that the value of that land is less than half that of the entire land in suit. We agree that upon the material on record it would not be possible to say that the appellant has in fact received less than his due share of property. Apart from that, however, we may point out that under section 30 of the Act an award can be set aside only on the following three grounds: (a). that an arbitrator or umpire has misconducted himself or the proceedings; (b). that an award has been made after the Issue of an order by the Court superseding the arbitration or after arbitration proceedings have become invalid in under section 35; (c). that an award has been improperly procured or is otherwise invalid. Plainly this objection would not fall either under el. (a) or under cl. (b) nor under the first part of cl. 788 The question is whether it could possibly fall within the second part of cl. (c), that is, whether the award is I otherwise invalid". In order to bring the objection within this clause learned counsel contended that the award was bad on its face. It is difficult for us to appreciate bow the award could be said to be bad on its face. When a dispute is referred to arbitration, the arbitrator has to decide it to the best of his judgment, of course acting honestly. Here, in his judgment the arbitrator has allotted to the appellant certain lands the total area of which is less than half that of the entire I and in suit. The appellant 's contention is that he is entitled to half the entire land. This contention was before the arbitrator. In spite of that he has made the award in the terms in which he has made it. There appears to be no suggestion that the arbitrator acted dishonestly. How can it then be said that this award is on its face bad? Agreeing with the High Court we dismiss this appeal with costs to the contesting respondent. Appeal dismissed.

IN-Abs

The questions for determination in the appeal were whether the award in question was invalid, (1) by reason of the court failing to comply with the mandatory requirement of section 23(l) Of the , that the time within which the award is to be made, must be specified in the order, and (2) whether the arbitrator was in error in allotting to the appellant less than half share in the properties. Held, that under section 23(l) Of the , it is imperative that the time for making the award must be fixed; but that does not mean that where the court omits to specify the time in the order of reference and does so elsewhere in the proceedings, the reference is invalid. Consequently, in a case where the order sheet of the court read with the order of reference made it clear that the arbitrator was to file his award by the date to which the suit was adjourned, it could not be said that the section had not been complied with. Raja Har Narain Singh vs Chaudbrain Bhagwant Kuar (1891) L.R. 18 I.A. 55, referred to. Held, further, that the award could not be said to be bad on the face of it and "otherwise invalid" merely because the appellant had received less than his due share. The court cannot interfere with the findings of an arbitrator based on the best of his judgment unless it is shown that he has acted dishonestly.

il Appeals Nos. 273 to 277 of 1960. Appeals by special leave granted by the Supreme Court by its order dated December 15, 1958, from the judgment and order dated February 4, 1957, of the High Court of Orissa in O. J. C. Nos. 184 to 188 of 1955. H. N. Sanyal, Additional Solicitor General of India and B. P. Maheshwari, for appellants (In C. As. Nos. 273 and 274 of 1960) and respondents (In C. As. 275 277 of 1960). C. K. Daphtary, Solicitor General of India, B. R. L. Iyengar and T. M. Sen, for respondents (In ( 'J. As. Nos. 273 and 274 of 1960) and appellants (In C. As. 275 277 of 1960). March 24. The Judgment of the Court was delivered by SHAH, J. The Orient Paper Mills Ltd., thereinafter called the assessees are a public limited company having their registered office at Brajrajnagar in the 551 district of Sambalpur, Orissa State. The assessees are manufacturers of paper and paper boards and are registered as dealers under the Orissa Sales Tax Act, 1947 hereinafter referred to as the Act. The assessees used to collect tax from the purchasers on all sales effected by them including sales to dealers in other States. For the quarters ending March 31, 1950, June 30, 1950, September 30, 1950, December 31, 1950 and March 31, 195 1, the assessees paid Sales tax which they were assessed by the Assistant Collector of Sales tax to pay, on their turnover which included sales outside the State of Orissa. After this court delivered the judgment in The State of Bombay and Another vs The United Motors (India) Ltd. and Others (1) the assessees applied for refund under section 14 of the Act of tax paid in respect of goods despatched for consumption outside the State of Orissa contending that according to the law expounded by this court, the transactions of sales outside the State were not taxable under the Act because of the prohibition imposed by article 286(1) (a) of the Constitution read with the Explanation. Refund was refused by the Assistant Sales Tax Officer and the order was confirmed by the Board of Revenue. In the view of the taxing authorities, the orders of assessment in respect of the five periods had become final on the diverse dates on which they were made and were not liable to be reopened merely because the law applicable to the transactions was not correctly appreciated by the taxing authorities. In petitions moved by the assessees for writs of certiorari and mandamus against the orders of the Board of Revenue, the High Court of Orissa held that the only restriction upon the right of a dealer to apply for refund which "is found within the four corners of section 14 of the Act" being the law of limitation prescribed by the proviso to than section, transactions in question not being liable to tax as they were interstate transactions, the tax collected must be refunded on applications submitted within the period prescribed. The High Court then proceeded to hold that the recovery of tax paid for the first two (1) ; 552 quarters was barred by limitation but not recovery of tax paid for the remaining three quarters, and issued id. an order in the nature of mandamus directing refund of tax in respect of the last three quarters. The State of Orissa and the assessees have appealed with special leave against the judgment of the High Court by these five appeals. Counsel for the State of Orissa contends that no refund could be granted because the orders of assessment had become final and section 14 of the Act applied only to cases of refund in which a superior taxing authority in appeal or revision against the order of assessment directs or declares that the tax has not been properly collected, and it does not apply to cases of assessment which have become final, even if made on an erroneous view of the law. The assessees support the view of the High Court that section 14 applies to all claims for refund and also contend that the recovery of tax paid for the first two quarters was not barred by the law of limitation. It is unnecessary for the purposes of these appeals to consider the respective contentions of the parties. In our view the claim of the assesses must fail because of the retrospective amendment of the Act by the Orissa Legislature. By section 14A which was incorporated by the Orissa Sales Tax (Amendment) Act, 28 of 1958, it was provided: "Notwithstanding anything contained in this Act where any amount is either deposited by any person under sub section (3) of section 9B or paid as tax by a dealer and where such amount or any part thereof is not payable by such person or dealer, a refund of such amount or any part thereof can be claimed only by the person from whom such person or dealer has actually realised such amounts whether by way of sales tax or otherwise and the period of limitation provided in the proviso to section 14 shall apply to the aforesaid claims. " In terms, the section provides that refund of tax "id which the dealer was not liable to pay can ' only be claimed by the person from whom the dealer has actually realised it whether as sales tax or otherwise. 553 The section therefore deprives the assessees of the common law right to claim refund of the amounts paid as tax under an error of law that it was recoverable by the taxing authority. Counsel for the assessees does not dispute that by the amending provision, the right to obtain refund of tax is denied to him by the Legislature. He contends that the Act is beyond the competence of the State Legislature, and in any event, it is void because it imposes an unreasonable restriction upon the assessees ' fundamental right guaranteed under article 19(1)(f) of the Constitution. By item 54 of List II of Schedule 7 to the Constitution, the State Legislature was indisputably competent to legislate with respect to taxes on sale or purchase of papers and paper boards. The power to legislate with respect to a tax comprehends the power to impose the tax, to prescribe machinery for collecting the tax, to designate the officers by whom the liability may be enforced and to prescribe the authority, obligations and indemnity of those officers. The diverse heads of legislation in the Schedule to the Constitution demarcate the periphery of legislative ' competence and include all matters which are ancillary or subsidiary to the primary head. The Legislature of the Orissa State was therefore competent to exercise power in respect of the subsidiary or ancillary matter of granting refund of tax improperly or illegally collected, and the competence of the Legislature in this behalf is not canvassed by counsel for the assessees. If competence to legislate for granting refund of sales tax improperly collected be granted, is there any reason to exclude the power to declare that refund shall be claimable only by the person from whom the dealer has actually realised the amounts by way of sales tax or otherwise We see none. The question is one of legislative competence and there is no restriction either express or implied imposed upon the power of the Legislature in that behalf. article 19(1)(f) of the Constitution prescribes the right to freedom of citizens to acquire, hold and dispose of property; but the right is by cl. (5) subject to tile 70 554 operation of any law, existing or prospective, in so far as it imposes reasonable restrictions on the exercise of that right in the interest of the general public. Assuming that by enacting that refund of tax shall only be made to the purchasers from whom the tax has been collected by the dealers and not to the dealers who have paid the tax the fundamental right under article 19(1)(f) is restricted, we are unable to hold that the restriction imposed by section 14A of the Act is not in the interest of the general public. The Legislature by section 9B(1) of the Act authorised registered dealers to collect tax from the purchasers which they may have to pay on their turnover. The amounts collected by the assessees therefore primarily belonged not to the assesssees but to the purchasers. On an erroneous assumption that tax was payable, tax was collected by the assessees and was paid over to the State. Under section 9B, cl. (3) of the Act as it stood at the material time, the amounts realised by any person as tax on sale of any goods shall, notwithstanding anything contained in any other provision of the Act, be deposited by him in a Government treasury within such period as may be prescribed if the amount so realised exceeded the amount payable as tax in respect of that sale or if no tax is payable in respect thereof. As the tax collected by the assessees was not exigible in respect of the sales from the purchasers, a statutory obligation arose to deposit it with the State and by paying that tax under the assessment, the assessees must be deemed to have complied with this requirement. But the amount of tax remained under section 9B of the Act with the Government of Orissa as a deposit. If with a view to prevent the assessees who had no beneficial interest in those amounts from making a profit out of the tax collected, the Legislature enacted that the amount so deposited shall be claimable only by the persons who had paid the amounts to the dealer and not by the dealer, it must be held that the restriction on the right of the assessees to obtain refund was lawfully circumscribed in the interest of the general public. Counsel for the assessees contended that they stood 555 in danger of being compelled at the instance of the purchasers to repay the amount collected as tax even after it is deposited with or paid by them to the State, Government, and a statutory provision which deprives them of their right to claim refund amounts to an unreasonable restriction, because they are under an obligation to pay the amount to purchasers but they cannot reimburse themselves by recourse to the State which holds the amounts. But by section 9B, the assessees were liable to deposit the amount in excess of what was lawfully recoverable from the purchasers as tax ' When under the orders of assessment they paid amounts to the State, requirements of section 9B were complied with and the amount remained with the State in deposit, subject to the obligation, if a demand was made within the period prescribed, to restore the same to the persons from whom the assessees had recovered it. We do not think that there is any reason to hold that the assessees would be exposed to any enforceable claims at the instance of the purchasers to refund the tax collected by them if they have deposited it with the State in discharge of the statutory obligation incurred by them. Appeals Nos. 273 and 274 of 1960 will therefore be dismissed and Appeals Nos. 275 to 277 of 1960 will be allowed. As the State succeeds relying upon a statute enacted after the judgment was pronounced by the High Court, we direct that there shall be no order as to costs of the appeals in this court. Appeals Nos. 273 and 274 of 1960 dismissed. Appeals Nos. 275 to 277 of 1960 allowed.

IN-Abs

The appellants who were registered as dealers under the Orissa Sales Tax Act, 1947, used to collect sales tax from the purchasers on all sales effected by them including sales to dealers in other states. They were assessed to and paid tax on their turnover which included sales outside the State of Orissa, but after the decision of this Court in State of Bombay vs The 'United Motors (India) Ltd.; , , they applied under section 14 of the Act for refund of tax paid on the ground that sales outside the State were not taxable under cl. (1)(a) of article 286 of the Constitution read with the Explanation. Refund was refused by the Sales Tax Authorities and the Board of Revenue. In petitions moved by the appellants for writs of certiorari and Mandamus against the orders of the Board of ,Revenue the High Court ordered refund of tax paid for certain periods and refused it in regard to other periods. The Orissa Sales Tax Act was, however, amended in 1958 with retrospective effect incorporating section 14 A which provided that refund could be claimed only by the person from whom the dealer had realised the amount by way of sales tax or otherwise. 550 Held, that under section 14 A of the Orissa Sales Tax (Amendment) Act, 1958, refund of tax which the dealer was not liable to pay could 'be claimed by the person from whom the dealer had actually realised it whether as sales tax or otherwise, and not by the dealer. The legislature was competent to legislate for granting )IS refund of sales tax improperly collected; there, is no reason to exclude the power to declare that refund shall be claimable only by the person from whom the dealer has realised the amount as sales tax or otherwise. Under section 9B, cl. 3 of the Act, if the amount realised by the assessee exceeded the amount payable as tax such amount must be deposited in the Government treasury, and the assessee having no beneficial interest in such amount the enactment that the amount shall be claimable only by the persons who paid the amounts to the dealers as sales tax is a reasonable restriction imposed on the right of the assessee to obtain refund in the interest of the general public, and does not infringe the provisions of article 19(1)(f) of the Constitution. If the assessees discharge their statutory obligation to deposit the amount collected by them as sale tax in the Government treasury they cannot be exposed to any claim for refund by the persons from whom the tax is collected, even though such persons were in the first instance not liable to pay the tax.

No. 96 of 1959. Petition under article 32 of the Constitution of India for enforcement of Fundamental Rights. 750 section Shaukat Hussain and P. C. Aggarwala, for the petitioners N. section Bindra, R. H. Dhebar and T. M. Sen, for the respondents. April 4. The Judgment of the Court was delivered by SARKAR, J. This is a petition raising a question of violation of the fundamental right to hold property guaranteed by article 19 (1) (f) of the Constitution. It arises out of an order made under the , declaring two houses to be evacuee property. What had happened was that sometime in September, 1951, two notices were issued under section 7 of the Act addressed respectively to Nusrat Ali and Fateh Ali, requiring them to show cause why they should not be declared evacuees and their properties, being the two houses in dispute, to be evacuee property. Neither of these two persons having appeared, a declaration was made by the Custodian on January 10, 1952, under that section that Nusrat Ali and Fateh Ali were evacuees and the houses were evacuee property. Upon such declaration the houses vested in the Custodian under the provision of section 8 of the Act and he took possession of them. These houses were the property of one Khadim Ali who had never been declared an evacuee and had died on or about October 1, 1950, leaving three sons and five daughters, who thereupon became entitled to them in certain shares. Nusrat Ali and Fateh Ali were two of the sons of Khadim Ali. The Petitioners are his other son and two of his daughters. No notice under section 7 had at any time been issued to them nor were they ever declared to be evacuees. These facts are not in dispute. The Petitioners contend that they have been wrongly deprived of their rights in the houses by the action of the Custodian. They say that for a, long time they had no knowledge of the proceedings taken under the Act in respect of the houses and when they came to know of the order of the Custodian, they took various steps to protect their rights but were unsuccessful. 751 One of such steps appears to have been an appeal preferred by the male petitioner on behalf of all the petitioners to the Custodian General against the order of January 10, 1952. On this appeal being rejected, they moved this Court by the present petition. The question is whether the Custodian was entitled to declare the entirety of the two houses evacuee property and deprive the petitioners of their rights in them. It is well established and not disputed, that no property of any person can be declared to be evacuee, property unless that person had first been given a notice under B. 7 of the Act: see Ebrahim Aboobaker vs Tek Chand Dolwani (1). Admittedly, no such notice had been issued to the petitioners. Their interest in the houses, therefore, could not have vested in the Custodian. Learned counsel for the respondents, the officers concerned with evacuee properties, concedes that so far as the female petitioners were concerned, their interest could not in any way be affected by the order made under section 7 of the Act. He however contends that the male petitioner, Zafar Ali, having filed the appeal to the Custodian General against the order of January 10, 1952, he personally at least, is bound by the order dismissing the appeal, that order being a quasi judicial decision. It is said that be cannot, there fore, maintain this petition. We do not think that this contention is well founded. Zafar Ali was not a patty to the proceeding in which the order in dispute had been made. Strictly speaking, no appeal by him against that order lay or was necessary. Then again the appeal did not decide any question as to the right of Zafar Ali to the houses for, it was dismissed on the sole ground that it bad been filed beyond the time prescribed for it. There was no judicial determination by the Custodian General of any fact affecting Zafar Ali 's right in the houses. If, as was conceded, Zafar Ali 's share in the houses could not vest in the Custodian without due notice to him, then we are unable to appreciate how the position becomes different because Zafar Ali filed an appeal (1) ; , 702. 752 which was dismissed as time barred and which he need never have filed at all. The order of January 10, 1952, was without jurisdiction so far as Zafar Ali 's share in the house was concerned, and it remained so in spite of the appeal. In our view, the appeal furnishes no answer to the claim made in the petition. As no notice had been issued to the petitioners under section 7, their interest in the two houses never vested in the Custodian. The acts of the Custodian in so far as they deprive the petitioners of their property cannot be upheld. It was also said on behalf of the respondents that the properties had already been acquired under the , and therefore the petitioners had, no longer, any claim to them. Sub section (2) of section 12 of this Act provides that "On the publication of a notification under sub section (1), the right, title and interest of any evacuee in the evacuee property specified in the notification shall, on and from the beginning of the date on which the notification is so published, be extinguished and the evacuee property shall vest absolutely in the Central Government free from all encumbrances. " It was said that a notification mentioned in this section had been issued. It seems to us that this section does not affect the petitioners ' rights. It only affects the rights of an evacuee which the petitioners, on the admitted facts, are not. We may mention here that the petitioner Zafar Ali claims that his father left a will giving him a larger share in the houses than he would have got on intestacy. We are not concerned in this case with his rights under the will, if any, and say nothing about them. In the result, we allow the petition and set aside the order of January 10, 1952, in so far as it affected the rights of the petitioners in the properties concerned. There will be no order as to costs. Petition allowed.

IN-Abs

The Custodian of evacuee properties made a declaration that two houses were evacuee properties. Notice under section 7 of the , which initiated the proceedings resulting in the declaration had been served on two persons as owners. These persons did not appear and contest the proceedings. The petitioners claimed to be entitled to certain shares in the houses. No notice under section 7 Of the Act had at any time been served on them and they had never been declared evacuees. One of the petitioners filed an appeal under the Act to the Custodian General which was dismissed as time barred. The petitioners then filed a petition under article 32 Of the Constitution of India on the ground that they were being wrongfully deprived of their shares in the houses. Held, that as no notice under section 7 of the Act had been ser ved on the petitioners, their shares in the houses had never become evacuee property nor vested in the Custodian. The petitioner who had filed the appeal did not thereby lose his rights in the houses either as the appeal did not decide any question as to such rights but was dismissed on the sole ground that it was filed beyond the time prescribed for it. Strictly, no appeal by him lay as he was not a party to the proceeding resulting in the declaration. Section 12 of the , only affects the rights of an evacuee in his property. The notification made under that section did not have the effect of extinguishing the petitioners ' rights in the houses as they had never been declared evacuees. Ebrahim Aboobaker vs Tek Chand Dolwani, ; , referred to.

vil Appeal No. 139 of 1951. Appeal from the Judgment and Decree dated February 10, 1960, of the High Court of I Judicature at Calcutta (Harries C.J. and Sarkar J.) in Appeal from Original Order No. 95 of 1945, arising out of Judgment and, Order dated January 30, 1945, of the Court of Subordinate Judge at Asansol of Zilla Burdwan in Miscellaneous Case No. 70 of 1941. N. C. Chatterjee '(B. C. Boy and A. E. Mukherjea, with him) for the appellant. Dr. N. C. Sen Gupta (B. L. Pal, with him) for res pondent No. I. 379 1962. December 9. Das J. and Ghulam Hassan J. delivered separate judgments. The judgment of Mahajan J. and Vivian Bose J. was delivered by MAHAJAN J. MAHAJAN J. In our opinions the decision can be rested on either of the ground, which have been raised by our brothers Das and Ghulam Hasan respectively. We would therefore allow the appeal on both the grounds. DAS J. I have had the privilege of perusing the judgment delivered by my learned brother Hasan and I agree with his conclusion that this appeal should be allowed. I would, however, prefer to rest my decision on a ground different from that which has commended itself to my learned brother and as to which I do not wish to express any opinion on this occasion. The relevant facts material for the purpose of disposing of this appeal have been very clearly and fully set forth in the judgment of Hasan J. and I need not set them out in detail here. Suffice it to say that on June 12, 1931, the High Court, Original Side, which is the Court which had passed the decree, transmitted the same for execution to the Asansol Court through the District Judge of Burdwan and that the Asansol Court thereupon acquired jurisdiction to execute the decree against properties situate within its territorial limits. The application for execution made by the decree holder which was numbered 296 of 1931 was, however, on February 27, 1932,dismissed for default and on March 11, 1932, the Asansol Court sent to the High Court what in form purported to be a certificate under section 41 of the Code. There is no dispute, however, that the Asansol Court did not return to the High Court the certified copy ' of the decree and other documents which had been previously transmitted by the High Court The decree holder on November24, 1932 filed in the Asansol Court another petition for 380 execution of the decree against the same judgment debtors with the same prayer for the realisation of the decretal amount by sale of the same properties as mentioned in the previous execution case. The application 'was registered as Execution Case No. 224 of 1932. The judgment debtors ' contention is that the certificate sent by the Asansol Court to the High Court on March 11, 1932, was and was intended to be in form as well as in substance a certificate under section 41 of the Code, and that thereafter the Asansol Court ceased to have jurisdiction as the executing Court and that as there was no fresh transmission of the decree by the High Court the Asansol court could not entertain Execution Case No. 224 of 1932 and consequently all subsequent proceedings in the Asansol Court were void and inoperative for lack of inherent jurisdiction in that Court. This contention was rejected by the Subordinate Judge of, the Asansol Court in his judgment delivered on January 30, 1945, in Miscellaneous Case No. 70 of 1941 but found favour with the High Court in its judgment delivered on February 10, 1950, which is now under appeal before us. It appears that on. March 17,1933, the decreeholder took out a Master 's summons in the Original Side of the High Court being the Court which passed the decree in Suit No. 1518 of 1923 praying, interalia, that the Official Receiver be discharged from further acting as Receiver in execution, that leave be given to the Asansol Court to sell the colliery in execution of the decree dated June 25, 1923, and the order dated February 7, 1924, and that leave be given to the plaintiff to bid for and purchase the Sripur colliery. This summons was supported by an affidavit affirmed by one Pramatha Nath Roy Chowdhury, an assistant in the employ of the plaintiff. This affidavit refers to the consent decree of January 25, 1923, passed in the said suit and the additional terms of settlement embodied in the order of February 7, 1924, the payments made by the judgment debtors from time to time amounting to 381 Rs. 30,437 8 0 besides a sum of Rs. 3,500 which bad been paid on account of settled costs and states that, the balance of the decretal amount was still due and that there had been no other adjustment of the decree. It refers to a previous application by tabular statement for execution of the decree by the appointment of a Receiver and by the sale of the Sripur colliery which was charged under the order of February 7, 1924, and to the order made by the High ' Court on that tabular statement on June 21, 1926, appointing the Official Receiver of the High Court as Receiver of the Sripur colliery. The affidavit then recites that the Official Receiver who had been given liberty to sell the colliery on certain terms took steps to put up the same to sale but had been prevented from actually doing so by reason of an injunction obtained by one of the judgment debtors Benoy Krishna Mukherjee in Suit No. 843 of 1928 filed by him. The affidavit further refers to the fact that the said Suit No. 843 of 1928 had since then been dismissed and that no appeal had been preferred against that decree of dismissal and that no order had been made for stay of execution of the said decree. Paragraph 13 of the affidavit then states as follows : " that the plaintiff was advised that charge should be enforced and Sripur colliery should be sold in execution of the said order by the Asansol Court in the local jurisdiction of which the colliery is situate and the plaintiff accordingly by an order made on the 15th of April, 1931, obtained leave of the Court to execute the decree against Basantidas Chatterjee, Srimantodas Chatterjee and Bholanath Chatterjee as sons, heirs and legal representatives of the deceased Prankristo Chatterjee and the other defendants judgment debtors and caused the certified copies of the decree dated 25th June, 1923, and the order dated 7th February, 1924, to be transmitted to the District Judge at Burdwan who in his turn sent the decree to the Subordinate Judge of Asansol to execute the decree. Such execution proceedings are 382 now pending before the Asansol Subordinate Judge 's Court being Execution Proceedings No.224 of 1932. " In the circumstances the plaintiffs asked for directions on the lines mentioned in the summons. The summons was duly served on all the judgment debtors as mentioned in the affidavit of service filed in Court and referred to in the order made by the Court on the Master 's summons on March 27, 1933. The operative part of the said order of the High Court was as follows: " It is ordered that Official Receiver of this Court who was appointed the Receiver in this suit of the Sripur colliery pursuant to the said order dated the 21st day of June, 1926, be and he is hereby discharged from further acting as such Receiver as aforesaid: And it is further ordered that the said Receiver do pass his final accounts before one of the Judges of this Court and it is further ordered that the Subordinate Judge of Asansol be at liberty in execution of the said decree and order dated the 7th day of February, 1924, to sell either by public auction or by private treaty to the best purchaser or purchasers that can be got for the same provided the said Subordinate Judge shall consider that a sufficient sum has been offered the Sripur colliery aforesaid charged under the said order dated the 7th day of February, 1924 And it is further ordered that the plaintiff be at liberty to bid for and purchase the said colliery at the said sale and if declared the purchaser to set off the amount of the purchase money pro tanto against the balance of his claim under the said decree: And it is further ordered that the plaintiff be also at liberty to add his costs of and incidental to this application to be taxed by the Taxing Officer of this Court to his claim under the said decree. " The order sheet of Execution Case No. 224 of 1932 has not been printed in extenso but there can be no doubt that this order of the High Court was communicated to the Asansol Court, for it was after this order 383 that the Asansol Court proceeded with the execution 2case and sripur colliery was sold for the first time on June 9, 1933, and the decree holder purchased the same for Rs. 20,000. This sale of course was eventually set aside, but this order made by the High Court on the Original Side being the Court which passed the decree in Suit No. 1518 of 1923 appears to me to involve and imply, and may well be regarded as in substance amounting to, an order for transmission of the decree to the Asansol Court for execution under section 39 of the Code of Civil Procedure. The Civil Procedure Code does not prescribe arty particular form for an application for transmission of a decree under section 39. Under sub section (2) of that section the Court can even suo motu send the decree for ,execution to another Court. It is true that Order XXI, rule 6, provides that the Court sending a decree for execution shall send a copy of the decree, a% certifi cate setting forth that satisfaction of the decree hid not been obtained by execution within the jurisdiction of the Court and a copy of the order for the execution of the decree but there is authority to the effect that an omission to send a copy of the decree or an omission to transmit to the ' Court executing the decree the certificate referred to in clause (b) does not prevent the decree holder from applying for execution to the Court to which the decree has been transmitted. Such omission does not amount to a material irregularity within the meaning of Order XXI, rule 90, and as such cannot be made a ground for setting aside a sale in execution. Further, the fact remains that the certified copy of the decree and the certificate of non satisfaction which had been sent by the High Court 2to the Asansol Court on April 15, 1931, through the District Judge of Burdwan who forwarded the same to the Subordinate Judge at Asansol were still lying on the records of that Court and the sending of another certified copy of the decree and a fresh certificate of non satisfaction by the High Court would have been nothing more than a formality. In the circumstances, the omission to send those documents 384 over again to the Asansol Court was a mere irregularity which did not affect the question of jurisdiction of the executing Court. In my opinion, after the order made by the High Court on March 27, 1933, had been communicated to the Asansol Court the Asansol. Court became fully seized of jurisdiction as the executing Court and none of the proceedings had thereafter in that Court can be questioned for lack of inherent jurisdiction. I would, therefore, on this ground alone accept this appeal and concur in the order proposed by my learned brother. GHULAM HASAN J. This case is illustrative of the difficulties which a decree holder has to encounter in recovering the money in execution after he has obtained the decree of court. It is one of those cases, by no means rare, in which the execution proceedings in the courts below have dragged on to inordinate lengths and led to consequent waste of public time and expense to the parties. The decree in the present case was passed upon a compromise in Suit No. 1518 of 1923 on the original :side of the Calcutta High Court as long ago as June 25, 1923, in favour of one Nagarmull Rajghoria against Pran Krishna Chatterjee and 5 others, hereinafter referred to as the Chatterjees. The decree was for a sum of Rs. 75,000 with interest at twelve per cent. per annum with quarterly rests. The Chatterjees hypothecated their Kbradauga colliery as security for the payment of the decretal amount. Subsequent to this decree the Chatterjees entered into an agreement ,With one Benoy Krishna Mukherjee hereinafter referred to as Mukherjee on January 24, 1924, appointing the latter as Managing Agent of the aforesaid colliery whereby he became entitled to receive royalty of another colliery called Sripur colliery. The decree was adjusted on March 18, 1924, by making Mukherjee liable as surety and by the Chatterjees charging their Sripur colliery as additional security. The hypothecated properties were situate at Asansol and 50 385 Nagarmull obtained an order from the High Court for permission to execute the decree at Asansol with the direction that a certified copy of the decree, a copy of the order of transmission and a certificate of partial satisfaction of the decree should be transferred to the court of the Subordinate Judge at Asansol. ' This order was passed on April 15, 1931, and the three documents aforementioned were sent to the transferee court at Asansol through the District Judge, Burdwan on June 12, 1931. (Order XXI, rule 6, Civil Procedure code.) On August 20, 1931, Nagarmull filed his first appli cation for execution of the decree by sale of Sripur colliery. The execution case is numbered as 296 of 1931. Notices under Order XXI, rule 22, rule 64 and rule 66, of the Civil Procedure Code were issued and served on various dates. The case was fixed for February 16, '1932. On this date Nagarmull applied for time to prove service of the notices and the case was adjourned to February 23 1932. He again applied for time on that date and the case was adjourned to February 27, 1932. On this latter date Nagarmull was again not ready and asked for more time. But this was refused, and the execution case was dismissed for default without any amount being realized under the decree. The transferee court sent to the High Court what purported to be a certificate under section 41 of the Civil Procedure Code, stating that the execution case was dismissed for default on February 27, 1932. Neither the copy of the decree, nor any covering letter as required by the rules of the High Court was sent along with the certificate. The certificate was received by the High Court on March 11, 1932. It appears that the decree holder filed a second application for execution of the decree on November 24, 1932, by sale of the Sripur colliery. This case was numbered as Execution Case 224 of 1932. Notices under Order XXI, rule 22 and rule 66, 'of the Civil Procedure Code were duly served and the executing court ordered the issue of a sale proclamation fixing April 8, 1933, as the date of the sale, It 386 appears that the decree holder received only partial satisfaction of the decree out of the sale proceeds of Koradanga colliery which had been sold at the instance of the superior landlords and by certain cash payments. He applied for execution of the decree by appointment of a Receiver and by sale of the Sripur colliery. The Receiver was appointed on June 21, 1926, and he was directed to sell the Sripur colliery to the highest bidder permitting the decree holder at the same time to bid for and purchase the property, but he was restrained from proceeding with the sale by an order of court passed in a certain suit filed by Mukherjeo against the decree holder. This suit was dismissed by the High Court. Accordingly the. decree holder applied on March 17, 1933, to the High Court praying that the Receiver be discharged and leave be given to the executing court to sell the Sripur colliery in execution of the decree of June 25, 1923, in which Execution Proceedings No. 224 of 1 932 were pending at the time. He also asked: that leave be given to him to bid for and to, purchase the property. Notices of this application were duly served on the parties and on March 27, 1933, the High Court granted all the , prayers (Exhibit F. 5). The property was sold on the 9th of June, 1933, and was purchased by the decree holder for Rs. 20,000. Mukherjee, however, filed an application on July 7, 1933, under section 47 and Order XXI, rule 90, of the Civil Procedure Code for setting aside the sale. The application was numbered as Miscellaneous ,Case No. 63 of 1933. The Chatterjees also started two Miscellaneous Cases Nos. 64 and 55 of 1933 on July 8, 1933. During the pendency of the three miscellaneous cases, the appellant Mohanlal Goenka purchased the decree on January 10, 1934. Miscellaneous Case No. 53 of 1933 was allowed and the sale was set aside on January 29, 1934, and Cases Nos. 54 and 55 of 1933 were dismissed for default. The result of these miscellaneous cases was communicated to the High Court in a document which purports to be a certificate under section 41 of the 387 Civil Procedure Code and wag received on February 1, 1934. Two appeals were preferred by the decreeholder on April 18, 1934, but the order setting aside the gale was confirmed and resale of the Sripur properties was ordered by the High Court. The properties were again sold on April 22, 1936, and were purchased by the decree holder for Rs. 12,000. Mukherjee filed an appeal in the High Court and during the pendency of the appeal he filed an application under section 47 and Order XXI, rule 90 of the Civil Procedure Code for setting aside the sale. The appeal was disposed of by consent of parties and it was agreed that the application under Order XXI, rule 90, be heard by the executing court. Accordingly the application was heard and the sale set aside. Mukherjee then applied under section 47 on April 4, 1938, stating that Mohanlal Goenka could not continue the proceedings started by Nagarmull, but the application was dismissed and May 22, 1938, was fixed for the sale of the property,. He filed an appeal in the High Court which was dismissed under Order XLI, rule II, of the Civil Procedure Code. The property was sold for the third time and was purchased by the decree holder for Rs. 2,60,000 on May 27, 1938. Mukherjee applied under section 47 and Order XXI, rule 90, of the Civil Procedure Code for setting aside this sale on June 27, 1938 : (E 4) (Miscellaneous Case No. ' 76 of 1938). The application was dismissed on June 30, 1938, and the sale was confirmed. Execution Case No. 224 of 1932 was dismissed for part satisfaction. The executing court on July 9, 1938, sent to the High Court a certificate under section 41 of the Civil Procedure Code, accompanied with the covering letter communicating the result of the execution case. This was received by the High Court on July 12, 1938. Mukherjee carried the matter in appeal to the High Court but the appeal was dismissed on August 5, 1940: (Exhibit F). Mukherjee filed an application for review under Order XLVII, rule 1, of the Civil Procedure Code against. the aforesaid order on November 25, 1940, 388 (Exhibit B). He also. filed on November 28, 1940,7 an application for leave to appeal to the Privy Council (Exhibit A). The review application was dismissed on May 8,1941, and leave was refused on June 16, 1941. On May 12, 1941, Mukherjee filed an application under sections 47 and 151 of the Civil Procedure Code (Miscellaneous Case No. 70 of 1941) and it is this application which has given rise to the present appeal before us. The application was supported by an affidavit filed on may 26, 1941. The present appellant filed an objection on July 5, 1941, to the, application. The application was dismissed by the Subordinate Judge on January 30, 1945 but the order was set aside on appeal by the High Court on February 10, 1950. Leave to appeal to this Court was granted by the ' High Court on July 28, 1950. The case put forward by Mukherjee before the Subordinate Judge was that after the dismissal of Execution: Case No. 296 of 1931 on Februarv 27. 1932, and the sending of a certificate under section 41 to the High Court, the decree was never again transferred to the Asansol court for execution. According to him, the decree holder fraudulently detached the certificate of non satisfaction from the Execution Case No. 296 of 1931 and attached it to the second Execution Case No. 224 of 1932, inducing the court to believe that the certificate had been obtained from the High Court for taking fresh proceedings in execution, Mukherjee had instituted Title Suit No. ' 3 of 1936 to recover some money and to enforce a charge against the Sripur colliery and for, permission to redeem the charge declared in favour of the decree holder if it was prior to his own claim ' The suit was dismissed but on appeal the High Court, allowed him to redeem the charge in favour of the decree holder. In order to ascertain the amount of the charge Mukherjee instructed his attorney to search the record of Suit No. 1518 of of 1923 and he came to know for the first time on August 23, 1940, that after the dismissal of 'the first 389 application & certifioate under section 41 of the Civil Procedure Code had been sent by the Asansol Court to the High Court and the, latter never retransferred the decree for execution. Accordingly his case was that the Asansol Court had no jurisdiction to entertain Execution Case No. 224 of 1932, and all, the proceedings in connection therewith were null and void. , He therefore urged that the auction sale should be set aside. The present appellant denied the allegations of the judgment debtor. He pleaded that no certificate under section 41 of the Civil Procedure Code was sent to the High Court in Execution Case No. 296 of 1931 and the execution court retained jurisdiction throughout, that the High Court had authorised the sale of the property in execution of the decree and that no fresh certificate of non satisfaction was required to give jurisdiction to the Asansol Court to proceed with Execution Case No. 224 of 1932. The judgment debtor was aware that the copy of the decree and the certificate of non satisfaotion were not sent to the High Court and he could not possibly have laboured under a wrong impression that a fresh certificate had been ,sent by the High Court for taking execution prooeedings and that the decree holder practised no fraud upon him. He also pleaded that the application was barred, by limitation, that it was barred by the principle of res judicata as the objection now raised had previously been made and either not pressed, or rejected and that the judgment debtor was fully aware of all the proceedings that had taken place in connection with the decree. The Subordinate Judge framed the following three main issues in the case: 1. Is this Miscellaneous Case maintainable under section 151 of the Civil Procedure Code? 2.Did this court act in accordance with section 41, Civil Procedure Code ? If so, was the decree retransmitted to this court for fresh execution in 1932 ? If not, had this court jurisdiction to execute the decree again in 1932 ? 390 3. Is this Miscellaneous Case barred according to the principle of res judicata ? Upon the first point the learned Subordinate Judge held that the executing court did not lose jurisdiction to execute the decree, that the allegation about the detaching of certificate of non satisfaction from the records in the custody of the court and its surreptitious insertion in Execution Case No. 224 of 1932 constitute grounds for a suit, and a fresh application under section 151 of the Civil Procedure Code, was not maintainable. Upon the second point the court held that having regard to the circumstances of the case, no certificate of non satisfaction of the decree as required by section 41 was sent by the executing court to the High Court, that no re transmission of the decree by the High Court was required to start Execution Case No. 224 of 1932 and that the executing court retained seisin of the execution and, could execute the same without a further direction from the High Court. Upon the third point, the learned Subordinate Judge held that Mukherjee had alleged in para. 15 of his petition in Miscellaneous Case No. 53 of 1933 that the decree and the certificate were not sent by the High Court for starting the execution case afresh, but this objection to jurisdiction was not pressed at the time of the hearing. Again in para. 20 of his petition in Miscellaneous; ,Case No. 76 of 1938 he had urged the same point but ,it was not pressed. Mukherjee admitted in his evidence as P. W. 4 that all his applications were drawn up according to his instructions but despite this fact he did not press the allegations made in the miscellaneous cases. It was accordingly held on the authority of Annada Kumar Roy and Another vs Sheik Madan and Others (1) and Mahadeo Prasad Bhagat vs Bhagwat Narain Singh (2) that the principle of constructive resjudicata is applicable to execution proceedings. The view taken by the Court was that having made the allegations in the miscellaneous oases and then abandoned them, the judgment debtor (1) (2) A.I.R. 1938 Patna 427. 391 was precluded from raising the plea of jurisdiction of the court to execute the decree: Mukherjee preferred an appeal to the High Court. The matter came up before Harries C. J. and Sarkar J. The learned Chief Justice held that the Asansol Court not only sent what purported to be a certificate under section 41 of the Civil Procedure Code to the High Court, but intended such certificate to be a certificate of non satisfaction. He did not agree with the Subordinate Judge that the document was not intended to be a certificate and was merely an intimation that the first attempt at execution ' had failed. In the view of the learned Chief Justice there was no need for the Court at Asansol to send any intimation at all. The learned Chief Justice agreed that upon a true construction of section 41, failure to execute the decree at the first attempt for non appearance of the decree holder was not the total failure to, execute the decree as contemplated in that section. He, however, held that the fact that the certificate was sent when it should not have been sent cannot affect the question if, as he held, the certificate was intended to be a certificate of non satisfaction. The learned Chief Justice referred to a number of authorities in support of his conclusion. He accordingly held that the Asansol Court had ceased to have jurisdiction to execute the decree and was not entitled to entertain the second application for execution. Upon the question of res judicata the learned Chief Justice observed that " a judgment delivered by a Court not competent to deliver it cannot operate as res judicata and the order of the Subordinate Judge of Asansol, being wholly without jurisdiction, cannot be relied upon to found a defence upon the principle of res judicata. " He went on to say: "It is true that the appellant could and should have raised the question in the second execution case that the Asansol Court had no jurisdiction ' in the absence of a certificate of non satisfaction from the High Court to entertain the application. But in my view though this, point was neither made nor pressed, these orders of the learned 392 Subordinate Judge in the second execution application cannot be urged as a bar to the present application under the doctrine of res judicata. It is true that section 11 of the Code of Civil Procedure does not apply to execution proceedings, but it has been held by their Lordships of the Privy Council that the principles of the law relating to resjudicata do apply to execution proceedings and Mr. Atul Gupta has urged that the present application is barred by res judicata. . . He drew a ' distinction between the case of an irregular assumption of jurisdiction and want of inherent jurisdiction and holding that the order of the Subordinate Judge at Asansol fell under the latter category, he came to the conclusion that the order is wholly null and void and cannot be pleaded in bar of the application on the principle of res judicata. It has been contended before us on behalf of the appellant (assignee decree holder) that the execution Court at Asansol never lost jurisdiction over the execution proceedings and that what purported to be a certificate under section 41 of the Civil Procedure Code was no more than a mere intimation to the High Court that the execution case had been dismissed only for default, that it was no failure to execute the decree within the meaning of section 41 of the Civil Procedure Code, that in any case the subsequent orders of the High Court passed from time to time in the presence of the parties conferred jurisdiction upon the execution Court to proceed with the execution and that in any event the question whether the execution Court had or had not jurisdiction to execute the decree was barred by the principle of res judicata. Having heard learned counsel for the parties, we are of opinion that the appeal can be dis posed of on the ground of res judicata without entering into other questions. It cannot be disputed that the transferee Court was invested with jurisdiction by the High Court when its decree was transferred to it for execution. The first application for execution of the decree was dismissed 393 for default on February 27, 1932, and a document purporting to be a certificate of non satisfaction under section 41 of the Civil Procedure Code was sent by the execution Court to the High Court. The decree was admittedly not retransmitted for execution by the High Court. Despite this fact the decreeholder made a second application for execution on November 24, 1932, (Execution Case No. 224 of 1932). Notice was duly served upon the judgmentdebtor but he preferred no objection before the execution Court that it had no jurisdiction to execute the decree. This is the first occasion on, which he could have raised the plea of jurisdiction. The second occasion arose when the decree holder filed an affidavit (Exhibit C) before the High Court on March 17, 1933, praying that certain directions should be given to the execution Court for the sale of Sripur properties and for an order discharging the Receiver. Notice was duly served upon the judgment debtors, including Mukherjee (Exhibit 13) and the order granting the prayers of the decree holder was passed on March 27, 1933 (Exhibit F. 5). The judgmentdebtor could have pointed out that the Asansol Court was functus officio after sending the certificate under section 41 and had no further jurisdiction to sell the property in execution but no such objection was raised. This order clearly recites that notice was sent to the Chatterjees as well as to Mukherjee and was proved by an affidavit to have been duly served upon them. The decree holder 's prayer was granted and in pursuance of the order of the High Court the property was sold and was purchased by the decreeholder for Rs. 20,000, whereupon Mukherjee started Miscellaneous Case No. 53 of 1933 for setting aside the sale. In this application (Exhibit E) the judgment debtor raised the question of jurisdiction in paragraph 19 which runs thus: " As the said decree has not been sent to this court for execution nor has any certificate come to this Court therefore the execution proceedings and the auction sale are wholly irregular, illegal, fraudulent and collusive. " 394 The order of the Subordinate Judge dated January 29, 1934, by which he set aside the sale does not mention that the plea raised in paragraph 19 of the application was pressed. The decree holder who was aggrieved by this order preferred two appeals Nos. 254 and 255 of 1934. The order of the High Court (Exhibit F. 2) dated July 11, 1935, shows that the decision of the Subordinate Judge setting aside the sale was confirmed. It appears that the judgmentdebtors had raised the question that the decree could not be executed 'without the decree holder applying for making the decree absolute. In view of this dispute the learned Judges added in the order that although they were confirming the order of the Subordinate Judge setting aside the sale, the judgment debtors will not be entitled to raise any objection as to the nature of the decree which in their opinion was executable under the terms of the compromise arrived at by the parties concerned. Here again no objection was raised by the judgment debtors that the execution Court had no jurisdiction to execute the decree and sell the property. The next occasion when the objection to jurisdiction should have been raised was when the property was to be resold. Mukherjee started Miscellaneous Case No. 62 of 1936 on April 2, 1936, (Exhibit 1), in which he raised all sorts of objections to the execution but nowhere stated that the execution Court had no jurisdiction to sell the property after the certificate under section 41 of the Civil Procedure Code had been sent to the High Court. The property was sold for the second time and was purchased by the decreeholder on April 22, 1936. Mukherjee preferred an appeal No. 238 of 1936 and at the same time started a Miscellaneous Case No. 80 of 1936 in the execution. Court to set aside the sale. No plea of jurisdiction was raised either in the grounds of appeal to the High Court or in the application f or setting aside the execution sale. The appeal was disposed of by consent of parties with the direction that Miscellaneous Case No. 80 of 1936 should be reheard by the 395 execution Court. The sale was set aside on rehearing. Mukherjee then started Miscellaneous Case No, 40 of 1938 under section 47 of the Civil Procedure Code on April 4, 1938. The objection of lack of jurisdiction in the execution Court was again missing in this application. The application was dismissed and the appeal against it was also dismissed on May 25, 1938. When a the property was sold for the third time, Mukherjee started Miscellaneous Case No. 76 of 1938 on June 27, 1938, for setting aside the sale (Exhibit E. 4). In paragraph 20 of his application he stated: "That this court has no jurisdiction to entertain this application for execution without a fresh certificate (sic) the court passing the decree under executions The previous certificate creating jurisdiction in the present court has long expired after the dismissal of the previous execution case. The whole proceeding and the sale thereunder is not only illegal and materially irregular but is absolutely void for want of jurisdiction. " This plea was apparently not pressed and the Miscellaneous Case was dismissed on June 30, 1938. Mukherjee filed an appeal F. M. A. No. 262 of 1938 (Exhibit F.) on August 23, 1938, but the appeal was dismissed on August 5, 1940, on the ground, that there was no material irregularity in publishing the sale and the colliery had not been sold at an inadequate price on ' account of any such irregularity. This again shows that no question of jurisdiction was raised before the learned Judges of the High Court. Then followed the review application (Exhibit B) presented on November 25, 1940, to the High Court. Paragraphs 11, 12 and 13 of this application are important and they run as follows " 11. That after passing the '. judgment in F.A. No.246 of 1937 on 13th August, 1940,your petitioner got the records of Suit No. 1518 of 1923 of the Original Side of this Hon 'ble Court searched for ascertaining the amount due under the decree of the said 396 suit and came to, know for the first time on 23rd August, 1940, that after dismissal of the old Execution Case No. 296 of 1931 by the Subordinate Judge of Asansol on 27th February, 1932, the result of the said execution case was sent to the Original Side of this Hon 'ble Court under section 41, Civil Procedure Code, and that was received on 11th March, 1932, and that no fresh , certificate of non satisfaction of the decree was sent by the Original Side of this Hon 'ble Court for fresh execution and so there was no basis on which the Execution Case No. 224 of 1932 could be started in the Court of the Subordinate Judge of Asansol. That your petitioner submits that the copies of the decree and certificate of non satisfaction were taken by the decree holder on detaching the same from the records of old used Execution Case No. 296 of 1931 and fraudulently used afterwards in Execution Case No. 224 of 1932 by practising fraud upon the Court. That your petitioner further begs to submit that he was misled by order of the Court of the Subordinate Judge which runs as follows: S 'Register. Let the certificate of non satisfaction received be annexed to the record. ' " This application was rejected on May 8, 1941, and the order of the learned Judges which is brief may be reproduced in full: "The ground for review is that after the dismissal of the said appeal the petitioner discovered that the execution proceedings in which the sale took place was held by the executing Court although that Court did not receive any certificate of non satisfaction from the Court which passed the decree under execution. This objection does not properly come for investigation in a proceeding under Order XXI, rule 90, Civil Procedure Code. Even if the allegation of the petitioner about the discovery of new matter is correct, it cannot affect the decision of the appeal which we have dismissed. " 397 The foregoing narrative of the various stages through which the execution proceedings passed from time to time will show that neither at the time when the execution application was made and a notice served upon the judgment debtor, nor in the applications for setting aside the two sales made by him did the judgment debtor raise any objection to execution being proceeded with on the ground that the execution Court had no jurisdiction to execute the decree. The failure to raise such an objection which went to the root of the matter precludes him from raising the plea of jurisdiction on the principle of constructiveres judicata after the property has been sold to the auction purchaser who has entered into possession. There ate two occasions on which the judgment debtor raised the question of, jurisdiction for the first time. He did not, however, press it with the result that the objection must be taken to have been impliedly overruled. One such occasion was when the property was sold for the second time and was purchased by the decree holder for Rs. 20,000. In paragraph 19 of his application dated July 7, I 933 (Exhibit E) to set aside the sale he challenged the jurisdiction of the Court, but the order of the Court dated the 29th January, 1934, does not show that the plea was persisted in. The second occasion was when the property was sold for the third time and in his application (Exhibit E.4) dated June 27, 1938, for setting aside the sale he raised the question in paragraph 20. The objection application was dismissed but there is no trace of the judgment debtor having pressed this objection. When he preferred an appeal to the High Court, he did not make the plea of jurisdiction a ground of attack against the execution of the decree and the appeal was dismissed on other points. Finally he filed a review application and in paragraphs 11, 12 and 13 he raised the objection to execution in more elaborate words, but the application was rejected by the High Court on the ground that such an objection did not fall within the purview of Order XXI, rule 90, of the Code of Civil Procedure 398 This order therefore became final. The judgmentdebtor admitted that the two applications (Exhibits E and E. 4) were prepared according to his instructions. It is not possible therefore for the judgmentdebtor to escape the effect of the above orders which became binding upon him. That the principle of constructive res judicata is applicable to execution proceedings is no longer open to doubt. See Annada Kumar Boy and Another vs Sheik Madan and Others (1), and Mahadeo Prasad Bhagat vs Bhagwat Narain Singh(2). In the first case an application was made by a certain person for execution of a decree and no objection was raised that the decree was not maintainable at the instance of the applicant and the application was held to be maintainable. It was held that no further objection on the score, of the maintainability of a fresh application for execution on the part of the same applicant could be raised. In the second case a money decree had been obtained on the foot of a loan which was the subject matter of a mortgage and the property was sold in execution. The judgment debtor raised the question of the validity of the execution proceedings and objected that the execution court had no jurisdiction to sell the property in execution of a money decree as no sanction of the Commissioner had been obtained under section 12 A,Chota Nagpur Encumbered Estates Act. The objection was not decided but the objection petition was dismissed with the result that the property came into the possession of the auction purchaser. In an action for a declaration that the sale to the purchaser was void for want of sanction of the Commissioner it was held that as the point was raised although not decided in the objection petition under section 47, it was res judicata by reason of Explanation IV to section 11. The Privy Council as early as 1883 in Ram Kirpal Shukul vs Mussamat Rup Kuari(3) held that the decision (1) (3) (1884) 11 I. A. 37. (2) A.I. R. 1938 Patna 428. 399 of an execution Court that the decree on a true construction awarded future mesne profits was binding between the parties and could not in a later stage of the execution proceedings be set aside. Their Lordships ruled that the binding force of such a decision depends upon general principles of law and not upon section 13, Act X of 1877, corresponding to section 11 of the present Code. In that case the Subordinate Judge and the District Judge had both held that the decree awarded mesne profits, but their decision was reversed by the Calcutta High Court. The Full Bench of that Court also held that the law of res judicata did not apply to proceedings in execution of the decree. This decision was reversed in appeal by the Privy Council. At page 43, Sir Barnes Peacock, who delivered the judgment of the Board, observed "The High Court assumed jurisdiction to decide that the decree did not award mesne profits, but, whether their construction was right or wrong, they erred in deciding that it did not, because the parties were bound by the decision of Mr. Probyn, who, whether right or wrong, had decided that it did; a decision which, not having been appealed, was final and binding upon the parties and those claiming under them. " In Raja of Bamnad vs Velusami Tevar and Others(1) an assignee of a partially executed decree applied to the Subordinate Judge to be brought on the record in place of the decree holder. The judgment debtor denied the assignment and the liability of certain properties to attachment and alleged that the right to execute the decree was barred by limitation. The Subordinate Judge recognized the assignment, allowed the assignee to execute the decree and gave his permission to file a fresh application for attachment. This order was not appealed against. In the final proceedings. The Subordinate Judge permitted to judgment debtors to raise again the plea of limitation. In the course of the judgment Lord Moulton observed as follows: (1) (1921) 48 I.A.145, 52 400 "Their Lordships are of opinion that it was not open to the learned Judge to admit this plea. The, order of December 13, 1915, is a positive order that the present respondent should be allowed to execute the decree. To that order the plea of limitation, if pleaded, would according to the res pondents ' case have been a complete answer, and therefore it must be taken that a decision was against the respondents on the plea. No appeal was brought against that order, and therefore it stands as binding between the parties. Their Lordships are of opinion that it is not necessary for them to decide whether or not the plea would have succeeded. It was not only competent to the present respondents to bring the plea forward on that occasion but it was incumbent on them to do so if they proposed to rely on it,, and moreover it was in fact brought forward and decided upon. " Sha Shivraj Gopalji vs Edappakth Ayissa Bi and Others (1) : In this case the decree holder in t e earlier execution proceedings could have raised a plea that the judgment debtor had an interest in certain property which could be attached under his decree but the plea was not raised through his own default and the execution was dismissed. It was held under such circumstances that the dismissal operates as res judicata in the subsequent execution proceedings and even apart from the provisions of section 11 of the Civil Procedure Code, it is contrary to principle to allow the decree bolder in fresh proceedings to renew the same claim merely because he neglected at a proper stage in previous proceedings to support his claim by the argument of which he subsequently wishes to avail himself. There is ample authority for the proposition that even an erroneous decision on a question of law operates as resjudicata between the parties to it. The correctness or otherwise of a judicial decision has no bearing upon the question whether or not it operates as res judicata. A decision in the previous execution (1) A.I.R. 1949 P.C. 302; 54 C.W.N, 54. 401 case between the parties that the matter was not within the competence of the executing Court even though erroneous is binding on the parties; see Abhoy Kanta Gohain vs Gopinath Deb Goswami and Others(1). The learned Chief Justice concedes that the principle of res judicata applies to the execution proceedings but he refused to apply it to the present case on the ground that there was lack of inherent jurisdiction in the execution Court to proceed with the execution. He relied upon Ledgard and Another vs Bull (2). This case is distinguishable upon the facts. This was a suit instituted before the Subordinate Judge for infringement of certain exclusive rights secured to the plaintiff by three Indian patents. Under the Patents Act the suit could be brought only before the District Judge. The defendant raised an objection to the jurisdiction of the Court. It appears that , subsequently the defendant joined the plaintiff in petitioning the District Judge to transfer the case to his own Court. This was done. The suit was transferred under section 25 of the Civil Procedure Code. It was admitted that the suit could not be transferred unless the Court from which the transfer was sought to be made had jurisdiction to try it. The defendant adhered to the plea of jurisdiction throughout the proceedings but it was urged that by his subsequent conduct he had waived the objection to the irregularity in the institution of the suit. Their Lordships held that although a defendant may be barred by his own conduct from ' objecting to the irregularity in the institution of the suit, yet where the Judge had no inherent jurisdiction over the subject matter of the suit, the parties cannot by their mutual consent convert it into a proper judicial process. This decision has no bearing upon the present case as no question of constructive res judicata arose in that case. The cases of Gurdeo Singh V. Chandrika Singh and Chandrikah Singh vs Rashbehary Singh (3) and (1) A.I.R. 1943 Cal. 460. (2) (1886) 13 I.A. 134. (3) Cal. 402 Rajlakshmi Dasee vs Katyayani Dasee (1) are both dis tinguishable as they did not involve any question of constructive res judicata. Two cases of the Allahabad High Court (1) Lakhmichand and Others vs Madho Rao (2), (2) Baghubir Saran and Another vs Hori Lal and Another (3) were also relied upon in the judgment under appeal. , The first was a case of the grant of assignment of the, land revenue of a village in favour of the grantee. He mortgaged it and a suit brought on foot of the mortgage was decreed. In a subsequent suit for a declaration that the previous decree of the Court was null and void by reason of the fact that the suit was not cognisable in the absence of a certificate from the Collector as required by the Pensions ' Act authorizing the trial of such a suit, it was held that the decree was one without jurisdiction and that it did not operate as res judicata in the subsequent suit for which the certificate was obtained. It was obvious that the statutory provisions of the Act forbade the trial of any suit without the certificate of the Collector. There was, therefore, an initial lack of jurisdiction to try the case and the case is inapplicable to the facts of the present case. The second case which involved the question of territorial jurisdiction was in our view not correctly decided. There a suit against a minor for enforcement of the mortgage was decreed in respect of property which was beyond the territorial jurisdiction of the Court passing the decree. When the decree was transferred for execution to the Court within whose jurisdiction the property was situate, it was objected that the decree was a nullity. The objection was overruled and the objector was referred to file a regular suit. In the regular suit filed by him it was decided that an independent suit was maintainable for avoiding the decree although no objection was raised to jurisdiction in the Court passing the decree. It was also held that the bar of section 11, Explanation IV, of (1) Cal. 639 (2) (1030) I. L.R. 52 All. 868. (3) All. 403 the Code of Civil Procedure did not apply to the case. We think that although section 21 of the Code of Civil Procedure did not apply in terms to the case, there is no reason why the principle underlying that section should not apply even to a regular suit. The objection to jurisdiction must be deemed to have been waived and there was no question of inherent lack of jurisdiction in the case. The suit was clearly barred by the principle of res judicata and was wrongly decided. The question which arises in the present case is not whether the execution Court at Asansol had or had not jurisdiction to entertain the execution application after it had sent the certificate under section 41 but whether the judgment debtor is precluded by the principle of constructive resjudicata from raising the question of jurisdiction. We accordingly hold that the view taken by the High Court on the question of res judicata is not correct. We allow the appeal, set aside the judgment and the decree,of the High Court and restore that of the Subordinate Judge dismissing the application of the judgment debtor. The appellant will be entitled to his costs here and hitherto. Appeal allowed. Agent for the appellant ': P. K. Chatterjee. Agent for the respondent No. 1: B. B. Biswas.

IN-Abs

A decree passed by the Calcutta High Court on its Original Side in 1923, was transferred by that Court for execution to the Court of the Subordinate Judge of Asansol in 1931 with a certified of the decree, copy of, the order of transmission and certificate of partial satisfaction. The decree holder applied for execution to the Asansol Court but the application was dismissed for default in February,, 1932, and the Asansol Court sent to the Calcutta High Court what purported to be a certificate under section 41, Civil Procedure Code, stating that the execution case was dismissed for default, but neither the copy of the decree nor a covering letter was sent to the High Court. The decree holder again applied for execution in November, 1932, and a certain colliery was proclaimed for sale on April 3, 1933. Meanwhile, other application of the decree holder, the High Court passed an order on March 27, 1933, discharging a Receiver who had been appointed in 1926 and granting liberty to the Court of Asansol to sell the colliery in execution by public auction. After this order was communicated to the Asansol Court, it sold the colliery in auction. The sale was set aside and the colliery was resold. Again the sale was set aside and after the property was sold for the third time the judgment debtor applied under section 47 and 0. XXI, r. 90, Civil Procedure Code, for setting aside the sale on the ground that after the dis missal of the execution case in February, 1932, and the transmission of a certificate under section 41 to the High Court, the Asansol Court had no jurisdiction to execute the decree. Held per DAS J. The order of the High Court dated March 27, 1933, may well be regarded as in substance &mounting to,an order of transmission of the decree to the Asansol Court for execution under section 39, Civil Procedure Code, and after the order had been communicated to the Asansol ' Court, the latter became fully seized of jurisdiction as the executing Court. The omission to send 378 a copy and a fresh certificate of non satisfaction was a mere irregularity which did not affect the jurisdiction of the Asansol Court: Per GHULAM HASAN J. As the judgment debtor did not raise the present objection either when the decree holder made a second application for execution to the Asansol Court in November, 1932, or when the decree holder applied to the High Court in March, 1933, for giving liberty to the Asansol Court to proceed with the execution by sale of the colliery, or in the proceedings for setting aside the sales of the colliery in 1936 or in the appeals therefrom though several other objections were raised, and on one or two occasions when he did raise it, he never pressed the objection, he was precluded from raising the plea at a later stage on the principle of constructive res judicata. The mere fact that the question related to the jurisdiction of the Court would not prevent the operation of the rule of res judicata. MAHAJAN and VIVIAN BOSE JJ. On either of the grounds stated by DAS J. and GHULAM HASAN J., the judgment debtor was precluded from raising the objection that the Court of Asansol had no jurisdiction to execute the decree. Ledgard and Another vs Bull ([1886] 13 I.A. 134), Gurdeo Singh vs Chandrika Singh ([1909] I.L.R. , Rajlakshmi Dasi vs Katyayannee ([1911] I.L.R. and Lakhmichand and others vs Madho Rao ([1930] I.L.R. 52 All. 868)distinguished. Raghubir Saran vs Horilal and Another ([1931] I.L.R. 53 All. 560) overruled. Annada Kumar Boy and Another vs Sheik Madan and Others , Mahadeo Prasad Bhagat vs Bhagwat Narain Singh (A.I.R. 1938 Pat. 428), Bam Kirpal Sukul vs Mussamat Rup Kueri ([1884] 11 I.A. 37), Raja of Ramnad vs Veluswami Tevar and Others ([1921]48 I.A. 45) and Sha Shivraj Gopalji vs Edappakath Ayissa Bi and Others (A.I.R. referred to.

Appeal No. 501 of 1957. Appeal by special leave from the judgment and order dated September 13, 1954, of the Bombay High Court in Income tax Reference No. 13 of 1954. K. N. Rajagopala Sastri and D. Gupta, for the appellant. A. V. Viswanatha Sastri and P. L. Vohra, for the respondent. April 6. The Judgment of section K. Das, J. L. Kapur, M. Hidayatullah and T. L. Venkatarama Aiyar, JJ. was delivered by Venkatarama Aiyar, J. J. C. Shah, J. delivered a separate Judgment. VENKATARAMA AIYAR, J. The respondents were the owners of a steamship called "El Madina". That was requisitioned by the Government during the last world war, and was lost by enemy action on March 16, 1944. As compensation therefore, the Government paid the respondents Rs. 20,00,000 on July 17, 1944; Rs. 23,00,000 on December 22, 1944; and Rs. 33,333 on August 10, 1946. The original cost of the ship was Rs. 24,95,016 and its written down value at the commencement of the year of account was Rs. 15,68,484. The difference between the cost price and the written. down value viz., Rs. 9,26,532 represents the deductions which had been allowed year after year on account of depreciation. As the total compensation received exceeded the cost price, the respondents have recouped themselves all the amounts deducted for depreciation. 792 On these facts, the point in controversy between the respondents and the Department is whether the amount of Rs. 9,26,532 is liable to be included in the total income of the company for the year of assessment which is 1946 47. The provision of law under which the charge is sought to be imposed is section 10(2)(vii) of the Indian Income tax Act, 1922, hereinafter referred to as the Act, and that is, omitting what is not relevant, as follows: "(2) Such profits or gains shall be computed after making the following allowances, namely: (vii) in respect of any such building, machinery or plant which has been sold or discarded or demolished or destroyed, the amount by which the written down value thereof exceeds the amount for which the building, machinery or plant, as the case may be, is actually sold or its scrap value: Provided further that where any insurance, salvage or compensation moneys are received in respect of any such building, machinery or plant as aforesaid, and the amount of such moneys exceeds the difference between the written down value and the scrap value no amount shall be allowable under this clause and so much of the excess as does not exceed the difference between the original cost and the written down value less the scrap value shall be deemed to be profits of the previous year in which such moneys were received:". It is not disputed by the respondents that the sum of Rs. 9,26,532 would be profits liable to be taxed under this proviso, if it applies. Equally it is not disputed by the appellant that apart from this proviso the amount in question could only be regarded as capital receipt, not liable to be taxed. Before the income tax authorities, the respondents sought to avoid the application of this proviso on the ground that on representations made by them with reference to this very matter, the Board of Revenue had directed that for the purpose of Rule 4, Schedule II, of the Excess Profits Tax Act, 1940, the amount payable as 793 compensation (both the initial advance as well as any further payment that may be made) should be taken into account as though it had actually been received within thirty days of the date of the loss of the ship; and that in consequence the amount should be deemed to have been received on April 16, 1944. If that contention is correct, the amounts would have been received not in the year of account which was July 1, 1944, to June 30, 1945, but in the year previous there to, and they could not therefore be included in the income of the company for the year of assessment. This contention, however, was rejected by all the income tax authorities. Dealing with it, the Appellate Tribunal observed in its Order dated July 15, 1953, that the concession which the Board of Revenue had intended to give was limited to excess profits tax, and could not in any event be relied on for the purpose of cutting down the operation of the statutory provision enacted in the relevant proviso ins. 10(2)(vii); and that the material date was when the compensation was in fact received and that was in the year of account and not when it became due and payable, in the year previous thereto. In the result, the Tribunal held that the amount was liable to be included in the total income of the company. The respondent then filed an application before the Tribunal, under section 66(l) of the Act, requiring certain questions to be referred to the court, and one of them was as follows: "Whether in view of the fact that the 4th proviso to section 10(2)(vii) of the Indian Income tax Act did not apply to the assessment for the Assessment year 1945 46 and under the law in force as applicable to that assessment year the sum of Rs. 9,26,532 which accrued in the previous year relevant to that Assessment year was not taxable at all, and the fact that having regard to the Assessee 's method of accounting the said sum should not be assessed in any other year, the Assessment in respect of the ' said sum in the subsequent Assessment year 1946 47 was valid in law." 794 By its order dated February 9, 1954, the Tribunal referred the following question for the opinion of the court: "whether the sum of Rs. 9,26,532 was properly included in the assessee company 's total income computed for the assessment year 1946 47. " The reference came up for hearing before a Bench of the Bombay High Court consisting of Chagla, C.J., and Tendolkar, J., and then the respondents raised the contention that the proviso to section 10(2)(vii) under which the charge was made could not be taken into account in making the present assessment, as the same had been introduced by the Income tax (Amendment) Act, 1946 (VIII of 1946), which came into force on May 4, 1946, whereas the liability of the company to be taxed fell to be determined as on April 1, 1946, when the Finance Act, 1946, came into force. The appellant raised a preliminary objection to this question being raised for the first time before the court, on the ground that it did not arise out of the Order of the Tribunal, having been neither raised before it nor dealt with by it, and that further it had not been referred to the court. Overruling this objection, the learned Judges observed that the form in which the question was framed was sufficiently wide to take in the new contention, that even if the particular aspect of the question had not been argued before the Tribunal, it was implicit in the question as. framed, and that therefore the assessee could raise it. On the merits they held that as the proviso was not retrospective in its operation, the amount in question was not liable to be included in the taxable income and answered the question in the negative. It is against this decision that the present appeal by special leave is directed. The main contention urged before us by the appellant is that it was not open to the High Court in the present reference to go into the question as to the applicability of the proviso to section 10(2)(vii), as it was neither raised before the Tribunal nor considered by it, and could not therefore be said to be a question arising out of the order of the Tribunal, which alone could be 795 referred for the decision of the court under section 66(l). The court had no jurisdiction, it is argued, to allow a question to be raised before it, which could not be referred to it under the section. The contention of the respondents is that all questions of law which arise on the findings given by the Tribunal in its order can properly be said to arise out of its order, and that in making a reference under section 66(l), the Tribunal is not limited to those questions only which were raised before it and dealt with in its order, nor even to those questions which were raised in the application for reference under section 66(l). It is further contended that in the present case, the question as framed and refer red was wide enough to take in the contention as to the applicability of the proviso and that the High Court was in consequence within its power in entertaining it and deciding the reference on it. We may now refer to the provisions of law bearing on the question. Section 66(l) of the Act confers on the assessee and the Commissioner a right to apply to the Tribunal in the prescribed form to refer any question of law arising out of its order for the decision of the High Court. If the Tribunal is satisfied that a question of law arises, then it has to draw up a statement of the case, and refer it to the decision of the High Court. But if it considers that no question of law arises on its order, and dismisses the application under section 66(l), then the assessee or the Commissioner, as the case may be, has a right to move the court under section 66(2), and if the court is not satisfied about the correctness of the decision of the Tribunal, it can require it to state the case and refer it to its decision. Under section 66(4) the High Court can, for the purpose of disposing of the reference which comes to it under section 66(l) and (2), call for additional statement from the Tribunal. Under section 66(5) the High Court is to decide the question of law raised in the case and send a copy of its judgment to the Tribunal and the latter is to pass appropriate orders for giving effect to it. Section 59 of the Act confers on the Central Board of Revenue power to make rules for carrying out the purpose of the Act and under sub section (5), the rules 796 made thereunder shall on publication in the official gazette have effect as if enacted under the Act. Rule 22A framed under this section provides that: "An application under sub ,section (1) of section 66 requiring the Tribunal to refer to the High Court any question Of law shall be in the following form. " The form is R(T) of which paragraphs 3 to 5 are relevant for the present discussion, and they are as follows: "3. that the facts which are admitted and/or found by the Tribunal and which are necessary for drawing up a statement of the case, are stated in the enclosure for ready reference. 4. .that the following questions of law arise out of the order of the Tribunal: (3) 5. .that the applicant, therefore, requires under sub section (1) of section 66 of the aforesaid Act that a statement of the case be drawn up and the questions of law numbered out of the questions of law referred to in paragraph 4 above be referred to the High Court. " On these provisions, the question that arises for decision is whether in a reference under section 66, the High Court can consider a question which had not been raised before the Tribunal and/or dealt with by it in its order even though it be one of law. On the answer to be given to it there has been a difference of opinion among the High Courts and that turns on the meaning to be given to the words, "any question of law arising out of" the order of the Tribunal. There is no pronouncement of this Court which concludes this ques tion, though there are decisions which afford guidance in the determination thereof. These decisions will now be considered. In Commissioner of Income tax, Madras vs Mtt. Arunachalam Chettiar (1), an order of assessment made by the income tax officer was corrected by the Appellate Tribunal not in an appeal under section 33(4) but in a miscellaneous application presented to it under (1) (1953] S.C.R. 463 471. 797 section 35. The Commissioner being dissatisfied with the order applied for a reference under section 66(l). The Tribunal was of the opinion that the order in question could be made in the exercise of its inherent jurisdiction and referred the question of its legality to the court under section 66(l). The Madras High Court declined to answer it on the ground that as the order was not one passed in an appeal, the reference under section 66(l) was incompetent, as under that provision the power of the Tribunal to refer was limited to questions of law arising out of an order passed in an appeal. In affirm ing this decision, this Court observed: "The jurisdiction of the Tribunal and of the High Court is conditional on there being an order by the Appellate Tribunal which may be said to be one under section 33(4) and a question of law arising out of such an order." This is an authority for the position that the jurisdiction of the Tribunal to make, and of the High Court to hear, a reference must be strictly sought within the four corners of section 66. In The Commissioner of Income tax, Bombay South vs Messrs. Ogale, Glass Works Ltd. (1), the question referred by the Tribunal under section 66(l) was whether certain amounts received by the assessee from the Government by cheques drawn on the Reserve Batik at Bombay were income received in British India within section 4(l)(a) of the Act. The High Court had held that. as the cheques were received in the State of Aundh, in unconditional discharge of the claim, the receipt was not in British India. On appeal to this Court, it was contended that as the cheques were posted in British India, the income must be held to have been received in British India. An objection was put forward to this contention being raised, on the ground that it was not argued before the Tribunal or decided by it and that therefore it did not arise out of its order as required by section 66(l). But this Court hold that as the question as framed and referred was of sufficient amplitude to cover the new point urged, and as no contention was raised that the question had not (1). [1955] 1 S.C.R. 185, 197. 798 been properly referred under section 66(l), it could be decided under section 66(5), and that in that view, it was not necessary "to express any opinion on the larger question as to the scope, meaning and import of the words 'any question of law arising. out of ' the Tribunal 's order on the interpretation of which there exists a wide divergence of judicial opinion". There was accordingly no decision on the point now under consideration. In New Jehangir Vakil Mills Ltd. vs Commissioner of Income tax (1) the point under discussion wag whether the High Court was competent under section 66(4) to call for additional statement with reference to a question which had not been referred to it under section 66(l) or section 66(2). This Court held that the scope of a reference under section 66(2) was coextensive with that of one under section 66(l) of the Act, that therefore the court had no power under section 66(2) to travel beyond the ambit of section 66(l), that under both these provisions it is only a question of law arising out of the order that could be referred, that the object of section 66(4) was to enable the court to obtain additional statements only for the purpose of deciding questions referred under section 66(l) and (2) and that accordingly no investigation could be ordered in respect of new questions which were not and could not be the subject matter of a reference under section 66(l) and (2). Here again there was no decision on the meaning of the words, "any question of law arising out of" the order of the Tribunal. In Kusumben D. Mahadevia vs Commissioner of Income tax (2), the question actually referred 'under section 66(l) to the court was whether a sum of Rs. 47,120 received by the assessee had accrued to her in the former State of Baroda or whether it had accrued or should be deemed to have accrued to her in British India. On this reference the High Court resettled the question so as to raise the contention as to whether the assessee was entitled to any concession under the Merged States (Taxation Concessions) Order, 1949, as regards the income of Rs. 47,120, and holding that she was not, answered the reference against her (1) ; (2) [196O] 3 S.C.R. 417. 422. 799 without deciding the question as to where the income accrued. Against this Judgment, the assessee appealed to this Court and contended that the High Court was in error in not deciding the question which was actually referred. This Court accepted this contention and remanded the case to the High Court for hearing on that point. So far this decision does not bear on the present controversy. But a further point was discussed and considered by this Court, and that was that it was not open to the court to raise the question about the applicability of the Merged States (Taxation Concessions) Order, 1949, as that was not a question which was raised before or considered by the Tribunal or referred under section 66(l). In agreeing with this contention, this Court observed: "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 not 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." These observations bear on the question now under consideration but the actual decision was one remanding the case with a direction to the High Court to decide the question that was referred to it. In Zoraster & Co. vs Commissioner of Income tax (1), the assessees were manufacturers of certain kinds of goods in Jaipur. The Government of India purchased these articles and paid the price by cheques on the Bombay branch of the Reserve Bank of India. The Tribunal held that the profits of these sales had been received in British India, but on the application of the assessees referred that question to the court. The High Court remanded the case to the Tribunal under section 66(4) for a supplemental statement observing that (1) [1961] 1 S.C. It. 800 "it would be necessary for the Appellate Tribunal to find, inter alia, 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 correctness of this order was challenged by the assessee on the ground that the court had no power to call for a fresh statement for the investigation of a new point and reliance was placed on the decision in New Jehangir Vakil Mills Ltd. vs Commissioner of Income tax (1). This Court held, following that decision, that the jurisdiction to call for supplemental statement was confined (a) to the facts on record and/or found by the Tribunal, and (b) to the question which would arise from the Tribunal 's order; and that further it could be exercised with reference to a new question, if it was an integral or even incidental part of the question which had been referred. This decision also proceeds on the view that a question which is unconnected with the question already referred cannot be agitated for the first time in the reference. There being thus no direct decision of this Court on the precise meaning of the words "any question of law arising out of" the order of the Tribunal, we must examine the decision of the High Courts on the question, and as already stated they are in a state of conflict. In A. Abboy Chetty and Co. vs Commissioner of Income tax, Madras (2), the application of the assessee under section 66(l) required the Tribunal to refer a question of res judicata to the court. The Tribunal declined to do so on the ground that question had not been argued before it. The assessee then moved the court under section 66(2) for an order requiring the Tribunal to refer that question. Dismissing that application, Patanjali Sastri, J., as be then was, observed as follows: " Mr. Radhakrishnayya for the petitioner contends that a question, though not raised before the Appellate Tribunal, can well be said to 'arise out of its order ', if, on the facts of the case appearing from the order, the question fairly arises. I am unable (1) ; (2) ,444. 801 to agree with that view. I am of opinion that a question of law can be said to arise out of an order of the Appellate Tribunal only if such order discloses that the question was raised before the Tribunal. " Adverting to the contention that the Privy Council had in M. E. Moola Sons Limited vs Burjorjee (1) allowed a question of law arising on the facts found, to be raised for the first time before it, the learned Judge observed: "The case furnishes no useful analogy as the scope of the remedy under section 66 of the Indian Income tax Act has to be determined with reference to the language of the statute". This decision was followed by the Madras High Court in Commissioner of Income tax vs Modern Theatres Ltd., (2) and in The Trustees, Nagore Durgah vs Commissioner of Incometax (3). In G. M. Chenna Basappa vs Commissioner of Income tax (4), the Andhra High Court followed the decision in A. Abboy Chetty and Co. vs Commissioner of Income tax, Madras (5) and observed that a question not raised before the Tribunal "cannot be said to arise out of its order even if it could be sustained on the facts in the statement of the case by the Tribunal", and that further the order of the Tribunal should disclose that the point of law was raised before it. The same view was adopted by the Patna High Court in Maharaj Kumar Kamal Singh vs Commissioner of Income (ax (6). There, discussing the question with reference to the language of section 66(1) and (2) and Rule 22A, the court observed as follows: "The provisions of Section 66(1) and Section 66(2) do not confer upon the High Court a general jurisdiction to correct or to decide a question of law that may possibly arise out of the income tax assessment. The section, on the contrary, confers a special and limited jurisdiction upon the High Court to decide any specific question of law which (1) Rang. (3) (5) , 444. (2) (4) (6) , 86. 802 has been raised between the assessee and the Department before the Income tax Tribunal and upon which question the parties are at issue. " It was accordingly held that only a question of law which had been actually raised before the Tribunal or actually dealt with by it could be referred under section 66(1). This is also the view consistently held by the Calcutta High Court, III Commissioner of Excess Profits Tax vs Jeewanlal Ltd. (1), it was held, agreeing with the decision in A. Abboy Chetty and CO. V. Commissioner of Income tax, Madras (2), that a question of law not raised before the Tribunal could not be said to arise out of its order even if on the facts of the case appearing from the order the question fairly arises. In Chainrup Sampatram vs Commissioner of Income, tax (3), the assessee had applied under section 66(1) of the Act to refer the question whether a sum of Rs. 2,20,887 was on a true construction of section 14(2)(c) of the Act assessable to tax. The Tribunal dismissed the application on the ground that the question sought to be raised had not been mentioned at the hearing of the appeal and had not been dealt with by the Tribunal and was therefore not one which arose out of its order. The question having been brought up before the court under section 66(2), Chakravartti, J. held that under section 66(1) it was only a question that arose out of the Tribunal 's order that could be referred, and that that must be some question which was actually raised before the Tribunal and dealt with by it; and that under section 66(2) the words, "no question of law arises" could only mean that the question of which reference had been asked for by the applicant did not arise,, and that the High Court could not require the Tribunal to refer some question which was not proposed before it. The learned Judge then went on to observe: "The Indian Income tax Act has not charged the High Court with the duty of setting right in all respects ill assessments that might come to its notice; its jurisdiction is not either appellate or revisional; (1) (2) ,444. (3) , 495. 803 nor has it a general power of superintendence under Section 66. Its sole duty is to serve as the appointed machinery for resolving any conflict which may arise between an assessee or the Commissioner on the one hand and the Tribunal on the other regarding some specific question or questions of law. If, on an application under section 66(2), the High Court finds that the question which the applicant required the Tribunal to refer was not a question that arose out of the Tribunal 's appellate order, it ought, in my view, to refuse to require the Tribunal to refer any such question. " The same view was taken in Allahabad Bank Ltd. vs Commissioner of Income tax (1) and in Commissioner of Income tax vs State Bank of India (2). In Mash Trading Co. vs Commissioner of Income tax (3), a Full Bench of the Punjab High Court had to consider the true character of the jurisdiction under section 66. Therein Kapur, J., as he then was, held, on an examination of the section and on a review of the authorities that under section 66(1) it is only questions which had been raised before and dealt with by the Tribunal that could be referred to the High, Court, that the power of the High Court under section 66(2) to direct a reference is limited to questions which could be referred under section 66(1) and which the applicant required it to refer, that the Tribunal has no power to raise a question suo motu, and likewise the High Court cannot raise any question which had not been referred to it either under section 66(1) or section 66(2), but when once a question is properly raised and referred to the High Court, the High Court is bound to answer that question. In this view, it was held that a reference to the High Court on a question which was not raised before or considered by the Tribunal was not compe tent. Falshaw, J., while generally agreeing with this view considered that there might be cases in which strict adherence to this view might work injustice, as for example when a point raised before the Tribunal had not been dealt with by it owing to mistake or (1) (2) (3) 804 inadvertence, or when its jurisdiction itself was ques tioned. The learned Judge added that in the former case the point might be deemed to have been decided against the assessee in the order, thereby attracting section 66. It should be noted that all the Judges agreed in holding that the reference in question was incompetent as the point had not been raised before the Tribunal. We must now consider the decisions which have taken a somewhat different view. Vadilal Lallubhai Mehta vs Commissioner of Income tax (1) was a case under section 66 of the Act, as it stood prior to the amendment of 1939 and what was held there was that even though the assessee had not stated in his application for reference the questions which really arose out of the order, it was for the Commissioner to formulate the correct questions and refer them to the court, and where he had failed to do so, the court could direct him to do so. This is not a decision on the question as to whether questions not raised before or decided by the Commissioner could be held to be questions arising out of his order. In New Piece goods Bazar Co. Ltd. V. Commissioner of Income tax (2), the question that was referred under section 66(1) was whether taxes paid on urban immovable property by the assessee were an allowable deduction under section 9(1)(iv) and section 9(1)(v) of the Indian Income tax Act. An objection was raised before the court that the question as to the application of section 9(1)(iv) had not been argued before the Tribunal and therefore it could not be referred. Repelling this contention, Kania, J., as he then was, observed that the specific question had been put forward as a ground of appeal, and that was "quoted by the Tribunal in its judgment" but not dealt with by it, and that in the circumstances the proper order to pass was to refer the case back to the Tribunal and "invite it to express ' its opinion on this aspect of the contention and raise a proper question of law on that point also." This judgment. again proceeds on the view that it is only a question raised before and dealt with by the Tribunal (1) (2) 805 that could be referred under section 66(1), and that is clear from the observations of the learned Judge that the decisions of the Privy Council in Commissioner of Income tax vs Kameshwar Singh(1) and National Mutual Life Association V. Commissioner of Income tax (2), deprecating the practice of raising new questions in the, stage of argument on the reference in the High Court did not stand in the way of the case being referred back to the Tribunal. In Madanlal Dharnidharka V. Commissioner of Income tax (3), the Tribunal referred under section 66(1) the following question for the decision of the court: "Whether the remittance of Rs. 2,01,000 out of profits, made by the assessee in the years preceding the Maru year 1999 2000 as a nonresident, could be included tinder section 4(1)(b)(iii) of the Indian Income tax Act in his total income of the year of account in which he was a resident in British India?" This question had not been argued before the Tribunal, but the Tribunal itself referred it because it considered that it arose out of its order. The reference was heard by Chagla, C. J. and Tendolkar, J. Before them an objection was raised that the Tribunal could not refer this question under section 66(1) as the same had not been raised before it. Chagla, C. J., observed: "In my opinion it is necessary clearly to re state the jurisdiction of this court. This is not a Court of appeal. This court merely exercises an advisory jurisdiction. Its judgments are in the nature of advice given on the questions submitted to it by the Tribunal. Its advice must be confined to questions referred by the Tribunal to this court and those questions must be questions of law which must arise out of the order made by the Tribunal. Now, looking at the plain language of the section apart from any authority, I should have stated that a question of law arose out of the order of the Tribunal if such a question was apparent on the order itself or it could be raised on the facts found by the (1) (2) (3) , 233, 234. 806 Tribunal and which were stated in the order. I see no reason to confine the jurisdiction of this court to such questions of law as have been argued before the Tribunal or are dealt with by the Tribunal. The section does not say so and there is no reason why we should construe the expression 'arising out of such order ' in a manner unwarranted by the ordinary grammatical construction of that expression. This court has no jurisdiction to decide ques tions which have not been referred by the Tribunal. If the Tribunal does not refer a question of law under section 66(1) which arises out of the order then the only jurisdiction of the court is to require the Tribunal to refer the same Under section 66(2). It is true that the court has jurisdiction to resettle questions of law so as to bring out the real issue between the parties but it is not open to the court to raise new questions which have not been referred to it by the Tribunal. " Expressing next his disagreement with the decision of the Madras High Court in A. Abboy Chetty and Co. vs Commissioner of Income tax, Madras (1), the learned Judge observed: "The decision of the Madras High Court would also result in this extraordinary situation. An assessee may raise a question and argue it before the Tribunal, but if the Tribunal thought fit to ignore that argument and not to refer to that point of law in its order, then the court would have no jurisdiction to call upon the Tribunal to refer that question of law to the High Court. It is true that the Income tax Act is a very technical statute, but I see no reason why when the plain grammatical construction of the section does not make it necessary to come to that conclusion it is necessary to do so and arrive at such an anomalous result. " In Mohanlal Hiralal vs Commissioner of Income tax (2) a Bench of the Nagpur High Court, hearing a reference under section 66(1), held that on the statement of the case by the Tribunal, the question of law as framed was not correct. Then observing that in view (1) (2) , 452 453. 807 of the decision of the Privy Council in Commissioner of Income tax vs Kameshwar Singh (1), it could not itself resettle it, called for a fresh statement from the Tribunal under section 66(4). Thus far the judgment is on the same lines as New Piecegoods Bazar Co. Ltd. vs Commissioner of Income tax (2) and an earlier decision of the Nagpur High Court in Beohar Singh vs Commissioner of Income tax (3). When the case came back on the further statement under section 66(4), criticising certain remarks therein, that the court had no power to direct the Tribunal to refer a question not argued before it, the Court observed that they were made under a misconception, and quoted the observations of Chagla C.J., in Madanlal Dharnidharka vs Commissioner of Income tax (4) extracted above, with approval. This can hardly be said to be a decision on the present point. It will be seen from the foregoing review of the decisions that all the High Courts are agreed that section 66 creates a special jurisdiction, that the power of the Tribunal to make a reference and the right of the litigant to require it, must be sought within the four corners of section 66(1), that the jurisdiction of the High Court to hear references is limited to questions which are properly referred to it under section 66(1), and that such jurisdiction is purely advisory and extends only to deciding questions referred to it. The narrow ground over which the High Courts differ is as regards the question whether it is competent to the Tribunal to refer, or the High Court to decide, a question of law which was not either raised before the Tribunal or decided by it, where it arises 'on the facts found by it. On this question, two divergent views have been expressed. One is that the words, "any question of law arising out of" the order of the Tribunal signify that the question must have been raised before the Tribunal and considered by it, and the other is that all questions of law arising out of the facts found would be questions of law arising out of the order of the Tribunal. The 1latter is the view (1) (3) (2) (4) , 233. 234. 808 taken by the Bombay High Court in Madanlal Dharnidharka vs Commissioner of Income tax(1), and approved by the Nagpur High Court in Mohanlal Hiralal vs Commissioner of Income tax (2). The former is the view held by all the other High Courts. Now the argument in support of the latter view is that on the plain grammatical construction of section 66(1), any question of law that could be raised on the findings of fact given by the Tribunal, would be questions that arise out of the order, and that, to hold that they meant that the question must have been raised before the Tribunal and decided by it, would be to read into the section words which are not there. In support of this contention Shri Viswanatha Sastri, learned Counsel for the respondents, argued that it was a fundamental principle of jurisprudence that the duty of the litigants was only to state the facts and that it was for the court to apply the appropriate law to the facts found, arid he relied on the observations of Atkin, L. J., in Attorney General vs Avelino Aramavo & Co.(1), that the court was not limited to particular questions raised by the Commissioners in the form of questions on the case, and that if the point of law or the erroneous nature of the determination of the point of law was apparent on the case as stated and there were no further facts to be found, the court could give effect to it. , He also maintained that the position under the Indian law was the same as under the British statute, because under section 66(1) of the Act, the Tribunal has to refer not only questions of law arising out of its order, but also a statement of the case, that under section 66(2) the court can likewise require the Tribunal to state the case and refer it and that under section 66(5) the court has to decide the question of law raised by the case. We are unable to agree with this contention. Under the British statute when once a decision is given by the Commissioners, it is sufficient that the assessee should express his dissatisfaction with it and ask that the matter be referred to the decision of the High Court. (1) [1948]16 I.T.R. 227. (2) (3) 809 It is then for the Commissioners to draw up a statement of the case and refer it for the decision of the court. The British statute does not cast, as does section 66(1) of the Act, a duty on the assessee to put in an application stating the questions of law which he desires the Commissioners to refer to the court and requiring them to refer the questions which arise out of that order. In Commissioner of Income tax, Madras vs Mtt. section Ar. Arunachalam Chettiar (1), this Court has decided that the requirements of section 66(1) are matters affecting the jurisdiction to make a reference under that section. The attempt of the respondents to equate the position under section 66(1) of the Act with that under the British statute on the ground that the Tribunal has to draw up a statement of the case and refer it, and that the court is to decide questions of law raised by it, must break down when the real purpose of a statement in a reference is kept in view. A statement of case is in the nature of a pleading, where in all the facts found are set out. There is nothing in it which calls for a decision by the court. It is the question of law referred under section 66(1) that calls for decision under section 66(5) and it is that that constitutes the pivotal point on which the jurisdiction of the court hinges. The statement of the case is material only as furnishing the facts for the purpose of enabling the court to decide the question referred. It has been repeatedly laid down by the Privy Council that the Indian Act is not in pari materia with the British statute and that it will not be safe to construe it in the light of English decisions, vide Commissioner of Income tax vs Shaw Wallace & Co. (2). In view of the difference between section 66(1) and the corresponding provision in the British statute, we consider that no useful purpose will be served by referring to the English decisions for interpreting section 66. But the main contention still remains that the language of section 66(1) is wide enough to admit of questions of law which arise on the facts found by the Tribunal and that there is no justification for cutting (1) ; , 471. (2) (1932) L.R. 59 I. A. 206.102 810 down its amplitude by importing in effect words into it which are not there. There is considerable force in this argument. But then there are certain features, which distinguish the jurisdiction under section 66, and they have to be taken into consideration in ascertaining the true import of the words, "any question of law arising out of such order. " The jurisdiction of a court in a reference under section 66 is a special one, different from its ordinary jurisdiction as a civil court. The High Court, hearing a reference under that section, does not exercise any appellate or revisional or supervisory jurisdiction over the Tribunal. It acts purely in an advisory capacity, on a reference which properly comes before it under section 66(1) and (2). It gives the Tribunals advice, but ultimately it is for them to give effect to that advice. It is of the essence of such a jurisdiction that the court can decide only questions which are referred to it and not any other question. That has been decided by this Court in New Jehangir Vakil Mills Ltd. vs Commissioner of Income tax(2); Kusumben D. Mahadevia vs Commissioner of Income tax(2) and Zoraster & Co. vs Commissioner of Income tax (3). If the true scope of the jurisdiction of the High Court is to give advice when it is sought by the Tribunal, it stands to reason that the Tribunal should have had an occasion to consider the question so that it may decide whether it should refer it for the decision of the court. How can it be said that the Tribunal should seek for advice on a question which it was not called upon to consider and in respect of which it had no opportunity of deciding whether the decision of the court should be sought? It was argued for the respondents, that, in view of the fact that the court could compel the Tribunal to refer a question of law under section 66(2) for its decision, not much significance could be attached to the advisory character of its jurisdiction. It is not conceivable, it was said, that any authority should have a right to compel another authority to take its advice. We see no force in this contention. Section 66(2) (1) ; (2) ; (3) ; 811 confers on the court a power to direct a reference only where the Tribunal was under a duty to refer under section 66(1), and it is, therefore, subject to the same limitations as section 66(1). That has been held by this court in New Jehangir Vakil Mills Ltd. vs Commissioner of Income tax (1) and in Zoraster & Co. vs Commissioner of Income tax (2). Moreover, the power of the court to issue direction to the Tribunal under section 66(2) is, as has often been pointed out, in the nature of a mandamus and it is well settled that no mandamus will be issued unless the applicant had made a distinct demand on the appropriate authorities for the very reliefs which he seeks to enforce by mandamus and that had been refused. Thus, the power of the court to direct a reference under section 66(2) is subject to two limitations the question must be one which the Tribunal was bound to refer under section 66(1) and the applicant must have required the Tribunal to refer it. R(T) is the form prescribed under Rule 22A for an application under section 66(1), and that shows that the applicant must set out the questions which he desires the Tribunal to refer and that further, those questions must arise out of the order of the Tribunal. It is, therefore, clear that under section 66(2), the court cannot direct the Tribunal to refer a question unless it is one which arises out of the order of the Tribunal and was specified by the applicant in his application under section 66(1). Now,, if we are to hold that the court can allow a new question to be raised on the reference, that would in effect give the applicant a right which is denied to him under section 66(1) and (2), and enlarge the jurisdiction of the court so as to assimilate it to that of an ordinary civil court of appeal. It is again to be noted that, whereas section 6P(1), as it stood prior to the amendment of 1939, conferred on the Commissioner a power to refer a question of law to the court suo motu, that power has been taken away under the present section and it has accordingly been held that under section 66(1), as it now stands, there is no power in the Tribunal to refer a question of law suo motu for the decision of the court. If, as contended (1) ; (2) ; 812 for by the respondents, the court is to be held to have power to entertain in a reference, any question of law, which arises on the facts found by the Tribunal, its jurisdiction under section 66(5) must be held to be wider than under section 66(1) and (2). The correct view to take, in our opinion, is that the right of the litigant to ask for a reference, the power of the Tribunal to make one, and the jurisdiction of the court to decide it are all co extensive and, therefore, a question of law which the applicant cannot require the Tribunal to refer and one which the Tribunal is not competent to refer to the court, cannot be entertained by the court under section 66(5). In view of the above considerations, we are unable to construe the words, "any question of law arising out of such order," as meaning any question of law arising out of the findings in the order of the Tribunal. One of the reasons given by Chagla, C. J., in Madanlal Dharnidharka vs Commissioner of Income tax(1) for differing from the decision in A. Abboy Chetty and Go. vs Commissioner of Income tax, Madras (2) that it is only a question which was raised before the Tribunal that could be said to arise out of its order was that that view must result in great injustice in a case in which the applicant had raised a question before the Tribunal but it had failed to deal with it owing to mistake or inadvertence. In such a, case, it was said, the applicant would be deprived, for no fault of his, of a valuable right which the legislature had intended to give him. But we see no difficulty in holding that in those cases the Tribunal must be deemed to have decided the question against the appellant, as Falshaw, J. was disposed to do in Mash Trading Co. vs Commissioner of Income tax (3). This is only an application of the principle well known to law that a relief asked for and not granted should be deemed to have been refused. It is on this footing that Kania, J. held in New Piecegoods Bazar Co. Ltd. vs Commissioner of Income tax (4) that, in the circumstances stated above, the court could call upon (1) , 233, 234. (3) (2) (4) 813 the Tribunal to state a supplemental case after giving its own decision on the contention. That was also the procedure adopted in Mohanlal Hiralal vs Commissioner of Income tax(1). Such cases must be exceptional and cannot be founded on for putting a construction different from what the language of section 66(1) would otherwise warrant. There was also some argument as to the position under section 66(1) when the Tribunal decides an appeal on a question of law not raised before it. That would undoubtedly be a question arising out of the order, and not the less so because it Was not argued before it, and this conclusion does not militate against the construction which we have put on the language of section 66(1). The result of the above discussion may thus be summed up: (1) When a question is raised before the Tribunal and is dealt with by it, 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, 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. , it will not be, a question arising out of its order notwithstanding that it may arise on the findings given by it. Stating the position compendiously, 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. In this view, we have next to consider whether the question which was raised before the High Court was one which arose out of the order of the Tribunal, as interpreted above. Now the only question on which the parties were at issue before the income tax authorities was whether the sum of Rs. 9,26,532 was assessable to tax as income received during the year of (1) 814 account 1945 46. That having been decided against the respondents, the Tribunal referred on their application under section 66(1), the question, whether the sum of Rs. 9,26,532 was properly included in the assessee company 's total income for the assessment year 194647, and that was the very question which was argued and decided by the High Court. Thus it cannot be said that the respondents had raised any new question before the court. But the appellant contends that while before the income tax authorities the respondents disputed their liability on the ground that the amount in question had been received in the year previous to the year of account, the contention urged by them before the court was that even on the footing that the income had been received in the year of account, the proviso to section 10(2)(vii) had no application, and that it was a new question which they were not entitled to raise. We do not agree with this contention. 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, trenching 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 which 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 itself a distinct question for the purpose of section 66(1) of the Act. That was the view taken by this Court in The Commissioner of Income tax, Bombay vs Messrs. Ogale Glass Works Ltd. (1) and in Zoraster & Co. vs Commissioner of Income tax (2), and we agree with it. As the question on which the parties were at issue, which was referred (1) (2) ; 815 to the court under section 66(1), and decided by it under s.66(5) is whether the sum of Rs. 9,26,532 is liable to be included in the taxable income of the respondents, the ground on which the respondents contested their liability before the High Court was one which was within the scope of the question, and the High Court rightly entertained it. It is argued for the appellant that this view would have the effect of doing away with limitations which the legislature has advisedly imposed on the right of a litigant to require references under section 66(1), as the question might be framed in such general manner as to admit of new questions not argued being raised. It is no doubt true that sometimes the questions are framed in such general terms that, construed literally, they might take in questions which were never in issue. In such cases, the true scope of the reference will have to be ascertained and limited by what appears on the statement of the case. In this connection, it is necessary to emphasize that, in framing questions, the Tribunal should be precise and indicate the grounds on which the questions of law are raised. Where, however, the question is sufficiently specific, we are unable to see any ground for holding that only those contentions can be argued in support of it which had been raised before the Tribunal. In our opinion, it is competent to the court in such a case to allow a new contention to be advanced, provided it is within the framework of the question as referred. In the present case, the question actually referred was whether the assessment in respect of Rs. 9,26,532 was proper. Though the point argued before the Income tax authorities was that the income was received not in the year of account but in the previous year, the question as framed is sufficient to cover the question which was actually argued before the court namely that in fact the assessment is not proper by reason of the proviso being inapplicable. The new contention does not involve re framing of the issues. On the very terms of the question as referred which are specific, the question is permissible and was open to the respondents. Indeed the very order of reference 816 shows that the Tribunal was conscious that this point also might bear on the controversy so that it cannot be said to be foreign to the scope of the question as framed. In the result, we are of opinion that the question of the applicability of the proviso is really implicit, as was held by Chagla, C.J., in the question which was referred, and, therefore, it was one which the court had to answer. On the merits, the appellant had very little to say. He sought to contend that the proviso though it came into force on May 5, 1946, was really intended to operate from April 1, 1946, and he referred us to certain other enactments as supporting that inference. But we are construing the proviso. In terms, it is not retrospective, and we cannot import into its construction matters which are ad extra legis, and thereby alter its true effect. Then it was argued that the amount of Rs. 9,26,532 having been allowed as deduction in the previous years, may now be treated as profits received during the year of assessment, and thereby subjected to tax. But this is a point entirely new and not covered by the question, and on the view taken by us as to the scope of a reference under section 66(1), it must be disallowed. In the result, this appeal is dismissed with costs. SHAH, J. The Income tax Appellate Tribunal, Bombay Bench "A" referred the following question to the High Court of Judicature at Bombay under section 66(1) of the Indian Income tax Act: "Whether the sum of Rs. 9,26,532 was properly included in the assessee company 's total income computed for the assessment year 1946 47. " The question comprehends two component parts, (1) whether the amount of Rs. 9,26,532 was properly included in the assessee 's income, and (2) whether the amount was properly included in the taxable income of the assessees for the assessment year 1946 47. The amount sought to be taxed was part of compensation received by the assessees from the Government of India for loss in 1944 by enemy action of their ship "El Madina." The assessees maintained before the 817 taxing authorities and the Tribunal that the compensation accrued to them on April 16, 1944. This plea was rejected, but rejection of that plea was not sufficient to make the amount taxable. it had still to be decided whether the amount which was received in the months of July and December, 1944, war, taxable as income. It is common ground that before the amendment by Act 8 of 1946 of section 10, sub section (2), cl. (7), by the inclusion of the fourth proviso, compensation received for loss of a capital asset like a ship was not taxable as income under the Indian Income tax Act. The tribunal observed that the compensation accrued when it was ascertained and was received by the assessees in the year of account and the amount, was therefore rightly brought to tax in the year of assessment 1946 47. Manifestly, the tribunal its attention to the statutory provision on the application of which the exigibility of the tax depended. But proviso IV to section 10, sub section (2), cl. (7) came into force on May 4, 1946. It was not in force on April 1, 1946, the day on which the liability to pay tax for the year of assessment 1946 47 crystallized. The tribunal erroneously assumed that the amending Act was in force at the date of commencement of the year of assessment and the assessees did not attempt to remove that misapprehension. But the question whether the amount sought to be taxed was properly included did arise out of the order of the tribunal, the tribunal having held that the amount of compensation was taxable by virtue of section 10, sub section (2), cl. (7), proviso IV. The question whether the statutory pro vision relied upon to tax the assessees was applicable to the amount sought to be assessed as income was as much a question arising out of the order of the tribunal as the question whether the interpretation placed by the tribunal upon that proviso was correct, may be. The assessees had maintained that they were not liable to be taxed under section 10, sub section (2), el. (7), proviso IV because the amount sought to be taxed was received before the year of account relevant for the 103 818 assessment year 1946 47. The tribunal held, negativing the contention, that it was taxable under section 10, sub section (2), el. (7), proviso IV. A question of law whether the amount was properly included in the taxable income for the year of assessment clearly arose and that question was referred by the tribunal to the High Court. The High Court under section 66, cl. (5) of the Income tax Act has to record its opinion on the questions arising out of the order of the tribunal and not on the arguments pro and con advanced before the tribunal. In my view, the High Court had jurisdiction on the question arising out of the order of the tribunal and referred, in deciding that the Act which made the amount taxable was not in operation at the material date. This would be sufficient to dispose of the appeal but counsel for the revenue submits that as it was never urged before the tribunal by the assessees that the amending Act 8 of 1946 which made the compensation received by the assessees, taxable as income, was brought into operation after the commencement of the year of assessment 1946 47, and the tribunal never directed its attention to that plea, it had no jurisdiction to refer that question to the High Court arid the High Court was not competent to answer that question even if on the facts found the question clearly arose out of the order of the tribunal. Counsel urges that the question arising out of the order of the tribunal is only that specific question which has been raise(] and argued before the tribunal and on which the tribunal has given its decision. We have heard elaborate arguments on the true meaning of the expression "any question of law arising out of such order" and the nature of the jurisdiction exercised by the High Court under section 66 of the Income tax Act. There is wide divergence of opinion oil the true import of this clause. Before I refer to the authorities, it would be useful to set out the scheme of the Income tax Act relating to reference of questions to the High Court under section 66, and the nature of the jurisdiction which the High Court exercises. 819 "(1) 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 require the Appellate Tribunal to refer to the High Court any question of law arising out of such order and the Appellate Tribunal shall draw up a statement of the case and refer it to the High Court: Provided. . (2) If on any application being made under sub section (1)the Appellate Tribunal refuses to state a case on the ground that no question of law arises, the assessee or the Commissioner as the case may be, may 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 a case and to refer it,, and on receipt of any such requisition the Appellate Tribunal shall state the ease and refer it accordingly. (3). . . (4) 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. (5) The High Court upon the hearing of any such case shall decide the questions of law raised thereby and shall deliver its judgment thereon containing the ground, 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. (6) (7) (7A) (8). . . . Under the scheme of the Indian Income tax Act, the appellate tribunal is the sole judge of facts. The High Court indisputably exercises a special advisory 820 jurisdiction to record its opinion on questions submitted, by the tribunal; it does not act as a court of appeal or revision on questions of law or fact. After the disposal of the appeal by the tribunal under section 33(4) of the Income tax Act, the revenue or the tax payer may call upon the tribunal to state a case on the questions of law arising out of the order. If the tribunal refuses to state a case, the party aggrieved may move the High Court to call upon the tribunal to state a case and the High Court may so direct if it is not satisfied as to the correctness of the decision of the tribunal refusing to state a case. The question must be one of law and not, of fact and not merely academic; it must be a concrete problem bearing directly on the rights and obligations of the revenue or of the assessees. The power of the High Court is to require the tribunal to state a case only if it is satisfied that the view of the tribunal (not on the merits of the order under section 33, el. (4)) but on the application under section 66(1) is erroneous. If the tribunal is not called upon to refer a question, the High Court cannot arrogate to itself the power to call upon the tribunal to refer questions which arise out of the findings recorded by the tribunal but which the tribunal was not called upon to refer. But there is in my judgment no warrant for the view that the question which the tribunal may refer or which the High Court on the refusal of the tribunal may call upon the tribunal to refer, must be a question which was raised and argued before the tribunal at the hearing under section 33(4). The statute does not specifically impose such a restriction nor is it implied. To import in the meaning of the expression "any question of law arising out of such order" the concept that the question must have been argued before and dealt with by the tribunal in its judgment deciding the appeal, is to impose a fetter upon the jurisdiction of the High Court not warranted by the plain intendment of the statute. The source of the question must be the order of the tribunal; but of the question it is not predicated that the tribunal must have been asked to decide it at the hearing of the appeal. It may very well happen and frequently 821 cases arise in which the question of law arises for the first time out of the order of the tribunal. The tribunal may wrongly apply the law, may call in aid a statutory provision which has no application, may even misconceive the question to be decided, or ignore a statutory provision which expressly applies to the facts found. These are only illustrative cases: analogous cases may easily be multiplied. It would indeed be perpetrating gross injustice in such cases to restrict the assessee or the Commissioner to the questions which have been raised and argued before the tribunal and to refuse to take cognisance of questions which arise out of the order of the tribunal, but which were not argued, because they could not (in the absence of any indication as to what the tribunal was going to decide) be argued. A concrete question of law having a direct bearing on the rights and obligations of the parties which may be founded on the decision of the tribunal is one which in my judgment arises out of the order of the tribunal even if it is not raised or argued before the tribunal at the hearing of the appeal. It is the duty of the tribunal to draw up a statement of the case and to frame questions; that duty can only be performed adequately if specific questions relating directly to the dispute between the parties are raised. If the import of the question is unduly large, the High Court has, and is indeed bound in dealing with it to restrict it to its true content in the light of the findings recorded by the tribunal. But in dealing with the question, the High Court may not only entertain those aspects of the case which were argued before the tribunal, but all such aspects as have fairly a direct bearing on the dispute. The jurisdiction of the High Court is by statute not expressly circumscribed to recording its opinion on arguments advanced before the tribunal, and the nature of the jurisdiction exercised by the High Court does not demand that such a limitation should be implied. The court has jurisdiction to decide questions which arise out of the order of the tribunal, not merely those which were raised and argued before the tribunal. 822 On the meaning of the expression "question of law arising out of such order," judicial opinion in the High Courts is divided, and this court has not expressed any authoritative opinion thereon. No useful purpose will be served by entering upon an analysis of the decisions of ' the High Courts and there are many on this question. The decisions fall into two broad divisions. On the one hand it is ruled that "a question of law can be said to arise out of an order of the Appellate Tribunal within the meaning of section 66(1) of the Indian Income tax Act, only if such order discloses that the question was raised before the tribunal. A question not raised before the tribunal cannot be said to arise out of its order even if on the facts of the case appearing from the; order the question fairly arises. " The leading cases in support of this view are A. Abboy Chetty & Co. vs Commissioner of Income tax, Madras (1) and The Commissioner of Excess Profits Tax, West Bengal vs Jeewanlal Ltd., Calcutta (2). This view has been adopted with some variations in the norms of expression in the following cases: Maharaj Kumar Kamal Singh vs Commissioner of Income tax (3), G. M. Chenna Basappa vs Commissioner of Income tax, Hyderabad (4) and Punjab Distilling Industries Ltd. Commissioner of Income tax, Punjab (5). On the other hand is the view expressed by Chagla, C. J. in Madanlal Dharnidharka vs Commissioner of Income tax (6) where the learned Chief Justice recorded his conclusion as follows: "I should have stated that a question of law arose out of the order of the Tribunal if such a question was apparent on the order itself or it could be raised on the facts found by the Tribunal and which were stated in the order. I see no reason to confine the jurisdiction of this Court to such questions of law as have been argued before the Tribunal or are dealt with by the Tribunal. he section does not say so and there is no reason why we should construe the expression arising out of such order ' in a manner unwarranted by the (1) (3) (5) (2) (4) (6) 823 ordinary grammatical construction of that expression. " For the reasons already set out, in my view, the interpretation placed by Chagla, C. J. on the expression "arising out of such order" is the correct one. Appeal dismissed.

IN-Abs

By section 66 (1) of the Indian Income tax Act, 1922 "the assessee or the Commissioner may, by application in the prescribed form . require the Appellate Tribunal to refer to the High Court any question of law arising out of such order and the Appellate Tribunal shall . draw up a statement of the case and refer it to 789 the High Court. " The respondents, who received compensation from the Government as owners of a requisitioned steamship lost in enemy action, were assessed to tax under the fourth proviso to section 1O(2)(Vii) of the Indian Income tax Act, which was inserted into the Act by the Income tax (Amendment) Act, 1946 (VIII Of 1946) that came into force on May 4, 1946. Before the Tax Authorities the respondents sought to resist the liability on the ground that the income was received not in the year of account but in the previous year but failed. No question as to the applicability of the said proviso was either raised before the Tribunal or dealt with by it. The question that was referred to the High Court was as follows: "Whether the sum of Rs. 9,26,532 was properly included in the assessee company 's total income computed for the assess ment year 1946 47." In the High Court the respondents contended that the said proviso had no application. The appellant took a preliminary objection to this contention being raised on the ground that it was not raised and argued before the Tribunal but the High Court overruled the objection and held that the compensation amount was not liable to charge as the proviso in question was not in force on the material date. Against this decision the Commissioner of Income tax appealed. The point for determination in the appeal was whether the High Court in answering a reference under section 66 could decide a question not raised or argued before the Tribunal. Held (per Das, Kapur, Hidayatullah and Venkatarama Aiyar, jj.), that the jurisdiction of the High Court under section 66 of the Indian Income tax Act is purely advisory and therefore different from its ordinary jurisdiction as a Civil Court. It is of the essence of such a jurisdiction that the High Court can decide only such questions as are referred to it and that implies that the questions must necessarily be those that the Tribunal had occasion to consider. The words "any question of law arising out of such order" in section 66(1) of the Indian Income tax Act, 1922, do not in the context mean any question of law arising out of the findings in the order of the Tribunal but only such questions as were raised before, or decided by the Tribunal. The Indian Income tax Act, I 922, is not in Pari materia with the British Statute and in view of the difference between section 66(i) and the corresponding provisions of the British Statute no useful purpose can be served by referring to English decisions for interpreting section 66 of the Indian Act. Commissioner of Income tax vs Shaw Wallace & Co., (1932) L.R. 59 I.A. 2o6, referred to. Attorney General vs Avelino Armavo & Co., , considered. 790 The power the High Court has under s: 66(2) Of the Act to direct a reference can make no difference since such power is subject to the same limitations as that of the Tribunal under section 66(i) of the Act. Commissioner of Income tax, Madras vs Mtt. section Ar. Arunachalam Chettiar, (1953] S.C.R. 463, New jehangir Vakil Mills Ltd. vs Commissioner of Income tax, [1960] 1 S.C.R. 249, Kusumben D. Mahadevia vs Commissioner of Income tax, and Zoraster & Co. vs Commissioner of Income tax, ; , referred to. Madanlal Dharnidharka vs Commissioner of Income tax, , disapproved. Case law reviewed. The jurisdiction of the High Court in deciding a reference under section 66(5) is co extensive with the right of the litigant to ask for a reference and the power of the court to make one. Therefore the High Court has jurisdiction in a reference to decide questions of law arising out of the order of the Tribunal, that is question of law raised and decided by the Tribunal, or question of law raised before the Tribunal but not decided by it or question of law decided by Tribunal, though not raised before it, but not questions not raised or decided by the Tribunal even though it may arise from its findings. A question of law may have more than one aspect and section 66(1) of the Act does not contemplate that each aspect of a question is by itself a distinct question. It only requires that the question of law which is referred to the Court must have been in issue before the Tribunal. It does not further require that the reference should be limited to those aspects of the question which had been argued before the Tribunal. The Commissioner of Income tax, Bombay South vs M/s. Ogale Glass Works Ltd. [1955] I S.C.R. 185 and Zoraster & Co. vs Commissioner of Income tax; , , approved. In the instant case, the question referred to the High Court was wide enough to cover the contention raised by the respondent and the High Court was right in holding that the fourth proviso to section 10(2)(Vii) Of the Act, not being retrospective in operation, bad no application. Per Shah, J. Section 66 of the does not contemplate that the question which tire Tribunal may refer, or which the High Court may call upon the Tribunal to refer, must be one that is raised and argued before the Tribunal at the hearing under section 33(4) Of the Act. The section does riot specifically impose such a restriction nor is it implied. To import into the expression "any question of law arising out of such order" any limitation that the question must either have been argued before the Tribunal or dealt with by it, would be not only to impose fetters upon the jurisdiction of the High 791 Court which were plainly not intended by the statute and in certain cases might involve gross injustice to the parties. Madanlal Dharnidharka vs Commissioner Of Income tax, , approved. Under section 66(5) Of the Act, the court has to record its opinion on the questions arising out of the order of the Tribunal and not on the arguments advanced before it. In the instant case the High Court, on the question arising out of the order of the Tribunal and referred to it, had jurisdiction to decide that the proviso which made the amount taxable was not in operation at the material date.

ivil Appeal No.18 of 1961. Appeal by special leave from the judgment and order dated January 23, 1960, of the Madhya Pradesh High Court at Indore in Second Appeal No. 473 of 1959. Z. F. Bootwala, E. Udayarathanam and section section Shukla, for the appellants. M. C. Setalvad, Attorney General of India, B. Sen and T. M. Sen, for respondent No. 1. H. L. Khaskalam and 1. N. Shroff, for the respondents Nos. 2, 3. 1961. April 5. The Judgment of the Court was delivered by SARKAR, J. This appeal raises the question whether the suit filed by the appellants was property dismissed on the ground that a civil court had no jurisdiction to entertain it. The Courts below held that a civil court 's jurisdiction to entertain the suit was barred by section 9 of the . The appellants had filed the suit for a declaration that they were citizens of India and for an injunction restraining the defendants from removing them from India. The defendants were the Union of India, the State of Madhya Pradesh and the District Magistrate, Jhabua, in Madhya Pradesh. The appellants stated in the plaint that they were citizens of India and had not ceased to be such citizens. They said that in the beginning of 1953 they went to Pakistan for a temporary visit without a passport but when they wanted to return they were compelled to obtain Pakistani passports. They stated that they obtained these passports only as a device for securing their return to India and had really been compelled to obtain the passports against their will. They further stated that, therefore, they could not be said to have acquired citizenship of Pakistan. They also stated that they had made all efforts for the cancellation of the passports and to obtain permission to stay in India permanently but were unsuccessful. They said that the 781 State of Madhya Pradesh served on them an order dated November 11, 1955, under section 3(2) of the , asking them to leave the country. They contend that this order was illegal and without justification as they were not foreigners. In the written statement filed by the defendants it was stated that the appellants had left India between March and May, 1948, and they returned for the first time on a temporary Pakistani passport sometime in the early part of 1955. It was also stated that the permits granted to them to remain in India were extended from time to time and ultimately up to about October, 1955, and thereafter they were served with orders to quit India. The defendants further stated that the appellants were not citizens of India as they had voluntarily acquired Pakistani citizenship by obtaining passports from that country . The suit was dismissed as it was held not to be maintainable in view of the provisions of sub see. (2) of a. 9 of the . That sub section is in these terms: Section 9 (2). "If any question arises as to whether, when or how any person has acquired the citizenship of another country, it shall be determined by such authority, in such manner, and having regard to such rule % of evidence, as may be prescribed in this behalf. " Rule 30 of the Rules framed under this Act provides that such a question shall be determined by the Central Government, who for that purpose shall have regard to the rules of evidence specified in Schedule III to the Rules. It seems to us clear that sub see. (2) of B. 9 of the bars the jurisdiction of the civil court to try the question there mentioned because it says that those questions shall be determined by the prescribed authority which necessarily implies that it cannot be decided by anyone else. The only question, however, which a civil court is prevented by section 9(2) of the from determining is the question whether a citizen of India has acquired citizenship of another country or when or how he acquired it. The 782 civil courts are not prevented by this provision from determining other questions concerning nationality of a person. There is no doubt that the suit by the appellants raised the question whether they had lost their Indian citizenship by acquiring the citizenship of Pakistan. The appellants themselves had raised that question by pleading in their plaint that they had not voluntarily acquired the citizenship of Pakistan. To that extent, it has to be held that the appellants ' suit was barred. It seems to us however that the suit raised other questions also. The appellants ' claim to the citizenship of India was resisted on the ground that having migrated to Pakistan in 1948, they had never acquired Indian citizenship. That might follow from article 7 of the Constitution. The jurisdiction of a civil court to decide that question is not in any way affected by section 9(2) of the . Therefore it seems to us that the entire suit should not have been dismissed. The Courts below should have decided the question whether the appellants had never been Indian citizens. If that question was answered in the affirmative, then no further question would arise and the suit would have to be dismissed. If it was found that the appellants had been on January 26, 1950, Indian citizens, then only the question whether they had renounced that citizenship and acquired a foreign citizenship would arise. That question the Courts cannot decide. The proper thing for the court would then have been to stay the suit till the Central Government decided the question whether the appellants had renounced their Indian citizenship and acquired a foreign citizenship and then dispose of the rest of the suit in such manner as the decision of the Central Government may justify. The learned Attorney General appearing for the respondents, the defendants in the suit, conceded this position. He did not contend that there was any other bar to the suit excepting that created by section 9 of the . What we have said disposes of this case but we think we should express our views on some of the arguments of the learned counsel for the appellants. 783 He first contended that it is only when a right is created by a statute and a Tribunal is set up for the determination of that right by that statute that the jurisdiction of a civil court as to a question concerning that right is taken away and that,, therefore, the jurisdiction of a civil court to entertain the appellants suit was not taken away. We are unable to accept this contention. A competent legislature may take away a civil court 's jurisdiction to try other questions also. No authority has been shown that this cannot be done. Another argument advanced by him was that the appellants had no right to approach the Central Government to decide the question whether they had lost their Indian citizenship and therefore the appellants ' right to resort to a civil court to decide that, question cannot be deemed to have been barred. Reliance was placed in support of this contention on Sharafat Ali Khan vs State of U.P. (1). This question really does not arise because the learned Attorney General appearing for the respondents has conceded the appellants ' right to apply to the Central Government for a decision of the question. Even apart from this concession the view expressed in Sharafat Ali Khan vs State of U. P. (1) would seem to be open to grave doubt. But in the circumstances of this case we do not feel called upon to say more on that matter. For the reasons earlier stated, we set aside the orders and the judgments of the Courts below and direct that the suit be heard and decided on all questions raised in it excepting the question whether the appellants having been Indian citizens for sometime have renounced that citizenship and acquired a foreign citizenship. If ' the Court finds that the appellants had never been Indian citizens, then the suit, would be dismissed by it. If on the other hand, the court finds that they were Indian citizens earlier, then the court would stay the further hearing of the suit till the Central Government decides whether the appellants had acquired subsequently a foreign nationality (1) A.I.R. i96o All. 784 and thereafter dispose, it of by such order as the decision of the Central Government may justify. There will be no order as to costs. Appeal allowed. Case Remitted.

IN-Abs

The only question that a civil court is precluded from determining under section 9(2) of the , read with r. 30 Of the Rules framed under the Act is the question as to whether, when or how any person has acquired the citizenship of another country. They are not prevented from determining other questions concerning the nationality of a person. Where, therefore, a suit brought for a declaration that the appellants were Indian Citizens, where they themselves had raised the question of acquisition of foreign citizenship, was resisted on the ground that they had never been Indian Citizens, and the courts below dismissed the suit in its entirety, Held, that the courts below were in error in holding that the suit was barred in its entirety by section 9(2) Of the Act. They should have decided the question as to whether the appellants had ever been citizens of India and, if the finding was in their favour, should have stayed the suit till the Central Government had decided whether such citizenship was renounced and if the finding was against the appellants dismissed the suit.

minal Appeal No. 129 of 1960. Appeal by special leave from the judgment and order dated March 9, 1960, of the Allahabad High Court in Criminal Revision No. 697 of 1959. Naunit Lal, for the appellant. G. C. Mathur and C. P. Lal, for the respondent. April 5. The Judgment of the Court was delivered by SARKAR, J. The appellant who had earlier left India, returned on a passport granted by the Government of Pakistan on May 16, 1953. He had a visa endorsed on his passport by the Indian authorities permitting him to stay in India for three months and this permission was later extended upto November 15, 1953. He did not, however, return to Pakistan within that date upon which he was convicted under section 14 of 777 the , by a Sub Divisional Magistrate on March 14, 1959, and sentenced to rigorous imprisonment for one year. His appeal to a Sessions Judge was dismissed and the High Court at Allahabad, on being moved in revision, refused to interfere with the order of the Sessions Judge. This appeal is against the judgment of the High Court. The appellant had been convicted for breach of paragraph 7 of the Foreigners Order of 1948, issued under section 3 of the . That paragraph requires that every foreigner entering India on the authority of a visa issued in pursuance of the Indian Passport Act, 1920, shall obtain from the appropriate authority a permit indicating the period during which he is authorised to remain in India and shall, unless that period is extended, depart from India before its expiry. As earlier stated, the visa on the appellant 's passport showed that he had permission to stay in India till November 15, 1953 but he stayed on after that date. Hence the prosecution. It is contended on behalf of the appellant that he could not be convicted of a breach of paragraph 7 of the Foreigners Order for that paragraph applies to a "foreigner" entering India on the authority of a visa issued in pursuance of the Indian Passport Act and overstaying the period for which he is permitted to stay in India. It is contended that the foreigner contemplated in this paragraph is a person who was a foreigner on the date of his entry into India. The appellant says that on that date he was not a foreigner and, therefore, the provisions of the paragraph do not apply to him. This contention of the appellant is plainly correct. The paragraph contemplates a foreigner entering India, and therefore, a person who at the date of the entry was a foreigner. Now, the word "foreigner" in paragraph 7 has the same meaning as that word has in the . The word "foreigner" is defined in that Act in section 2(a). That definition has changed from time to time, but we are concerned with the definition as it stood in 778 1953 when the appellant entered India, which was in these terms: "foreigner" means a person who. . (1) is not a natural born British subject as defined in sub sections (1) and (2) of Section I of the British Nationality and Status of Aliens Act, 1914, or (2) has not been granted a certificate of naturalisation as a British subject under any law for the time being in force in British India, or (3) is not a citizen of India. The appellants contention is that he was not a foreigner because he came within el. (1) of the definition as he was a natural born British subject within section l(l), (a) of the British Nationality and Status of Aliens Act, 1914. Now that provision is in these terms: section 1. (1) The following persons shall be deemed to be natural born British subjects, namely, (a) any person born within His Majesty 's Dominion and allegiance. That the appellant was born at Allahabad at a time when it was within his Britannic Majesty 's Dominion is not in dispute. That being so, we think that it must be held that the date of his entry into India the appellant was a natural born British subject and, therefore, not a foreigner. He could not have committed a breach of paragraph 7 of the Foreigners Order. In the result we allow the appeal and set aside the conviction of the appellant and sentence passed on him. Before leaving this case we think it right to make a few more observations. The definition of a foreigner in the was amended with effect from January 19, '1957, by Act 11 of 1957. The definition since that date is as follows: " "foreigner" means a person who is not a citizen of India". Under section 3(2), (e) of the , the Central Government has power to provide by order made by it that a foreigner shall not remain in India. We wish to make it clear that we have said nothing as to the effect of the amended definition of a "foreigner" on the status of the 779 appellant. No question as to the effect of the amended definition on the appellant 's status fell for our decision in this case for we were only concerned with his status in 1953. We would also point out that no order appears to have been made concerning the appellant under section 3(2)(c) and we are not to be understood as deciding any question as to whether such an order could or could not have been made against the appellant. Appeal allowed.

IN-Abs

The appellant was born in India before the partition. He left for Pakistan and returned to India in 1953 on a Pakistani passport and Indian visa. He did not return to Pakistan before the expiry of the period for which he was permitted to stay in India under the visa. He was convicted for a breach of paragraph 7 Of the Foreigners Order, 1948, which required every "foreigner" entering India to depart from India before the expiry of the period during which he was authorised to remain in India. Held, that the appellant was not a foreigner on the date of his entry into India and his conviction was bad. On the relevant date the appellant was a natural born British subject within section 1(1)(a) of the British Nationality and Status of Aliens Act, 1914, and consequently was not a foreigner as defined in section 2(a) of the , as it then stood.

No. 60 of 1958. Writ Petition under article 32 of the Constitution of India for enforcement of Fundamental Rights. H. J. Umrigar and A. G. Ratnaparkhi, for the appellant. section K. Kapoor and P. Gupta, for the respondents. April 5. The Judgment of the Court was delivered by SARKAR, J. The petitioners were born in India before the commencement of the Constitution. Sometime in 1947, they went away to the territory since included in Pakistan. They used to come to India from time to time and the last time that they came, was in April, 1956. Each time they came to India, they did so on passports issued by the Government of Pakistan. In December., 1956, they applied to the Collector of Nagaur in Rajasthan where they resided, for registration as citizens of India. On December 19, 1956, the Collector of Nagaur issued certificates of registration to them under section 5(l)(a) of the . Subsequently on February 5, 1957, two of the petitioners made applications for grant of citizenship certificates to their minor children under section 5(l)(d) of that Act. On February 6, 1957, an officer of the Collectorate of Nagaur took back the registration certificates issued to petitioners Nos. 2 and 3 on the 774 representation that they were required for recording in them the names of the minor children for whose registration as citizens of India applications had been made. On February 8, 1957, notices were issued by the Collector of Nagaur canceling the registration certificates issued to the petitioners and directing them to return to Pakistan within three days. The petitioners have presented this petition for a writ quashing the order of the Collector of Nagaur canceling their registration as citizens of, and requiring them to leave, India. The respondents to this petition originally were the State of Rajasthan and the Collector of Nagaur. Subsequently, under our order notice of the petition was given to the Union of India and the Union has appeared. The only question is whether the cancellation of the registration of the petitioners as citizens of India, was valid. It was said on behalf of the respondents that the Collector had power to cancel the registration under section 10(2)(a) of the Act. That provision states, amongst other things, that the Central Government may by order deprive certain citizens of India of their citizenship "if it is satisfied that the registration was obtained by means of fraud, false representation or concealment of any material fact". The petitioners" answer to this contention was that the cancellation of their registration was not by the Central Government but by the Collector. They also contended that their registration as citizens could not be cancelled under sub sec. (2) of section 10. They pointed out that subsection (2) started with the words "Subject to the provisions of this section" and contended that the powers under that subsection could, therefore, be exercised subject to the other provisions of section 10. They then referred to sub sec. (l) of section 1.0 which so far as relevant provided, "A citizen of India who is such by registration otherwise than under cl. (a) of sub section (1) of section 5 of this Act shall cease to be a citizen of India if he is deprived of that citizenship by an order of the Central Government under this section". They contended that they became citizens of India by registration under section 5(l)(a) of the Act and 775 they could not be deprived of their citizenship under sub section (2) of section 10. On the facts of this case it is unnecessary to express any opinion on these contentions. In any event, under cl. (a) of sub section (2) of section 10 a citizen can be deprived of his citizenship only if it is proved that the registration was obtained by means of fraud, false representation or concealment of any material fact. This power cannot, therefore, be exercised unless such fraud, false representation or suppression of a material fact exists. It was contended by the respondents that the petitioners had obtained registration as citizens of India by suppressing the fact that they had earlier applied to the Government of India for long term visas for permanent settlement in India which had been refused by that Government. The making of the previous applications and their rejection are no doubt material facts. The contention however that these facts were concealed is clearly unfounded. It has been proved to our satisfaction by the production of the original applications for registration made. by the petitioners that they had mentioned the fact that their applications for permission to settle permanently in India had been rejected by the Government. As we understood learned counsel for the respondents, he also accepted this position. The only other point that was taken by the respondents was that the Collector having the power to grant the registration certificate under the had by virtue of section 21 of the , and apart from section 10(2) of the , the power to cancel it. We are entirely unable to agree that a. 21 conferred on the Collector any such power. The orders mentioned in that section are not orders of the kind contemplated in section 5 of the . It seems to us therefore that the orders canceling the registration of the petitioners as citizens were wholly illegal and unsupportable and they are accordingly set aside. The petitioners will be entitled to the costs of this application. Petition allowed.

IN-Abs

The petitioners were granted certificates of registration as Indian Citizens under section 5(1)(a) of the Citizenship Act, 955, by the Collector of Nagaur. Later the Collector passed orders canceling the certificates. The power to cancel was based on 773 section 10 (2)(a) Of the , and section 21 Of the . Held, that section 10(2(a) of the , had no application for, apart from any other considerations, that section could apply only where the registration was obtained by means of fraud, false representation or concealment of any material fact and no such thing had been proved. The Collector had no power under section 21 of the , either to cancel the order of registration as citizens which had been made by him since the orders mentioned in that section are not of the kind contemplated by section 5 Of the . The orders canceling the registration are set aside.

No. 120 of 1959. Writ Petition under article 32 of the Constitution of India for enforcement of Fundamental Rights. Bhagirath Das and, B. P. Maheshwari, for the petitioner. N. section Bindra and D. Gupta, for the respondent. April 7. The Judgment of the Court was delivered by 824 SARKAR, J. The petitioner is a dealer registered under the Punjab General Sales Tax Act. He filed returns of his sale turnovers for the four quarters of the financial year ending on March 31, 1955, and likewise, for the four quarters of the financial year ending on March 31, 1956. In respect of each year the Sales Tax Assessing Officer served three successive notices on him on March 7, 1958, April 4, 1958, and August 18, 1959, requiring him to attend with the documents and other evidence in support of his returns. In the last of the notices mentioned above it was stated that on failure to produce the documents and other evidence mentioned, the case would be decided "on best judgment assessment basis". The petitioner did not comply with any of the notices, but after the receipt of the last notice he presented this petition under article 32 of the Constitution challenging the right of the authorities to make a best judgment assessment. The question raised by the petitioner turns on section 11 of the Punjab General Sales Tax Act, relevant provisions of which are set out below. section 11. (1) If the Assessing Authority is satisfied without requiring the presence of registered dealer or the production by him of any evidence that the returns furnished in respect of any period are correct and complete, he shall assess the amount of tax due from the dealer on the basis of such returns. (2)If the Assessing Authority is not satisfied without requiring the presence of a registered dealer who furnished the returns or production of evidence that the returns furnished in respect of any period are correct and complete, he shall serve on such dealer a notice in the prescribed manner requiring him, on a date and at a place specified therein, either to attend in person or to produce or to cause to be produced any evidence on which such dealer may rely in support of such returns. . . . . . . . . . . . . . . . (4) If a registered dealer, having furnished returns in respect of a period, fails to comply with the terms of a notice issued under sub section (2), the 825 Assessing Authority shall within three years after the expiry of such period, proceed to assess to the best of his judgment the amount of the tax due from the dealer. The contention of the petitioner is that at the date of the notice last mentioned the Sales Tax authorities had no right to proceed to make any beat judgment assessment as the three years within which only such assessment could be made had expired before then. It seems to us that the contention of the petitioner is well founded. The learned counsel for the respondent, the assessing authority, also frankly conceded that he 'found it difficult to contend to the contrary. Sub section (4) of section 11 deals with the case of a dealer who has furnished returns in respect of a period and has thereafter been asked to produce evidence to support the returns but has failed to do so. The subsection provides that in such a case the assessing authority may proceed to make an assessment which to the best of his. judgment should be made irrespective of the returns. The reason for this provision is that the correctness of the returns having been doubted by the assessing authority, the dealer has not availed himself of the opportunity afforded to him to remove these doubts. The sub section however provides that the power can be exercised within the three years mentioned in it. Quite plainly, the power cannot be exercised after these three years have gone by. The question is, how to compute the three years? The sub section 'says "within three years after the expiry of such period". So the three years have to be counted from the expiry of the period mentioned. What then is that period? The words are "such period". The period referred therefore is the period mentioned earlier. in the sub section, and that is the period in respect of which returns had been furnished by the dealer. This is also made clear by sub section (1) of section 11. That deals with a case where the returns are accepted. Both sub sections (1) and (4) deal with returns for the same period. Now section 10(3) provides that 104 826 every registered dealer shall furnish such returns by such dates and to such authority as may be prescribed" "Prescribed" means prescribed by rules framed under the Act. Under r. 20 of these rules, a registered dealer like the petitioner, had to furnish returns quarrerly. The rules define "return period" as "the period for which returns are prescribed to be furnished by a dealer". It would therefore appear that when sub sec. (4) of section 11 talks of "returns in respect of a period", that refers in the case of the petitioner to the quarters in respect of which he submitted the returns. We when come to this that the three years within which the authority could proceed to make the best judgment assessment had to be counted from the end of each quarter in respect of which returns had been filed. Now the last of the quarters in respect of which the petitioner filed his returns ended on March 31, 1956. So the assessing authority could not proceed to make a best judgment assessment in respect of this quarter after March 31, 1959. In the case of the earlier quarters, of course, the three years had expired even prior to this date. It is not in dispute that the assessing officer had not proceeded to make any assessment on the petitioner at the date of any of the notices. In the present case therefore the notices given on August 18, 1959, that best judgment assessments would be made in respect of the quarters constituting the financial years 1955 and 1956, the last of which expired on March 31, 1956, were futile. No such assessments could be made in respect of any of these quarters after March 31, 1959. The petition must, therefore, be allowed. A writ will issue restraining the respondent from making any best judgment assessment on the petitioner for sales tax for any quarter of the financial years 1955 and 1956. The petitioner will get the costs of this petition. Petition allowed.

IN-Abs

Under the Punjab General Sales Tax Act, 1948, a dealer had to furnish his return every quarter according to the Rules and was also required to furnish evidence in support of the return if called for, and if he failed to do so the assessing authority could proceed to make an assessment to the best of his judgment, but this power could he exercised "within three years after the expiry of the period". Held, that three years within which the authority could proceed to make the best judgment assessment had to be com puted from the end of such quarter in respect of which return had been filed.

Appeal No. 209 of 1959. Appeal from the judgment and order dated October 5, 1956, of the Patna High Court in Miscellaneous Appeal No. 367 of 1953. L. K. Jha and R. C. Prasad, for the Appellant. M. C. Setalvad, Attorney General for India, N. De and P. K. Mukherjee, for the respondents. April 7. The Judgment of the Court was delivered by VENKATARAMA AIYAR, J. This is an appeal against the Judgment of the High Court of Patna in an appeal under the . The appellant is the State of Bihar, and the respondents are a company registered under the Indian Companies Act, doing business as building contractors. They entered into three contracts for the construction of aerodrome, hangarettes, buildings, stores and other works at Ranchi, the first of them being contract No. 21 of 1942 dated November 5, 1942, and the other two being contracts Nos. 6 and 8 dated April 5, 1943. After the above works were completed, disputes arose between the parties over the bills and eventually by an agreement dated February 6, 1948, they were referred to the arbitration of one Col. A. W. section Smith. The arbitrator made his award on June 4, 1948, and sent a copy thereof to the parties. The respondents thereupon filed a petition under sections 17 and 20 of the Indian , for a decree in terms of the award. The appellant filed objections thereto, and the petition was then registered as Title Suit No. 53 of 1951. While this suit was pending, the arbitrator who had meantime left for Hong Kong sent to the court of the Additional Subordinate Judge of 829 Ranchi before whom the suit was pending a copy of the award duly signed by him, for being filed as provided in the Act. Notices were issued by the court under section 14(2) of the Act, and, in answer thereto, the appellant filed an application to set aside the award on various grounds. To this, the respondents filed their reply statement. In view of this application, the respondents did not press their petition tinder sections 17 and 20 of the , which was in consequence dismissed, and the proceedings which commenced with the receipt of the award from the arbitrator were continued as Title Suit No. 53 of 1951. After an elaborate trial the Additional Subordinate Judge, Ranchi, passed a decree in terms of the award except as to a part which he held to be in excess of the claim. The appellant took the matter in appeal to the High Court of Patna which confirmed the decree of the Subordinate Judge but granted a certifi cate under articles 132 and 133(1) of the Constitution, and hence this appeal. Though the controversy between the parties ranged in the courts below over a wide area,, before us, it was restricted to two questions whether there was a valid agreement of reference to arbitration binding on the Government and whether a decree could be passed on the unstamped copy of the award filed in the court. On the first question, the appellant contends that the agreement for reference to arbitration does not comply with the requirements of section 175(3) of the Government of India Act, 1935, which was the Constitutional provision in force at the relevant date, and it is therefore void, that the award passed in proceedings founded thereon is a nullity and that no decree should be passed in terms thereof. Section 175(3) is as follows: "Subject to the provisions of this Act. with, respect to the Federal Railway authority, all contracts made in the exercise of the executive authority of the Federation or of a province shall be expressed to be made by the Governor General, or by the Governor of the Province, as the case may be, and all such contracts and all assurances of property 830 made in the exercise of that authority shall be executed on behalf of the Governor General or Governor by such persons and in such manner as he may direct or authorise. " Under this section, a contract entered into by the Governor of a Province must satisfy three conditions. It must be expressed to be made by the Governor; it must be executed; and the execution should be by such persons and in such manner as the Governor might direct or authorise. We have now to examine whether the agreement to refer to arbitration dated February 6, 1948, satisfies the above conditions. It expressed to be made between the Governor of Bihar and the respondents. It is also a formal document executed by one Y. K. Lall, Executive, Engineer, Ranchi Division, and by the respondents. So the only point that remains for consideration is whether the Executive Engineer was a person who was directed or authorised by the Governor to execute the agreement in question. The appellant contends that he as not, and relies in support of his contention on a notification dated April 1, 1937, issued by the Government of Bihar. That notification, in so far as it is material, is as follows: "In exercise of the powers conferred by sub section (3) of section 175 of the Government of India Act, 1935, the Governor of Bihar is pleased, in supersession of all existing orders, to direct that the undermentioned classes of deeds, contracts and other instrument may be executed on his behalf as follows: A.In the case of the Public Works Department (subject to any limit fixed by. Departmental orders) 2. All instruments relating to the execution of works of all kinds connected with buildings, bridges, roads, canals, tanks, reservoirs, docks and harbours and embankments, and also instrumets relating By Secretaries to Government, Chief Engineers, Superin tending Engineers, Divisional Officers, Sub divisional Offi cers, Assistant or Assistant Executive 831 to the construction of water Engineers, and the works, sewage works, the n Electric Inspector. erection of machinery, and the working of coal mines. . . . . . . . . 12. All deeds and in By Secretaries and struments relating to any ' Joint Secretaries to matters other than those Government". specified in heads 1 to 11. There was a discussion in the courts below as to whether the present agreement fell within item 2 or item 12. If the agreement could be held to be an instrument relating to the execution of works, it would fall within item 2, and the Executive Engineer would be a person authorised under this notification to enter into this contract, but if it does not fall within that item, it must fall within entry 12, in which case he would not be competent to execute the agreement. Both the courts below have held that the agreement to refer to arbitration was not one relating to execution of works as that had been completed and the dispute related only to payment of the bills, and that further the essential feature of an arbitration agreement was the constitution of a private Tribunal and it could not therefore be brought within item 2 and that accordingly it fell within item 12. But the learned Judges of the High Court were also of the opinion that Y. K Lall, the Executive Engineer had in fact been specifically authorised to execute the arbitration agreement, and that that was sufficient for the purpose of section 175(3). The appellant impugns the correctness of this conclusion and contends that it is not warranted by the record. It becomes, therefore, necessary to refer in some detail to the correspondence bearing on this point. On July 26, 1947, Mr. Murrel, Secretary to the Government, wrote to Col. Smith as follows: "I am directed to say that the Government of Bihar propose to appoint you as Arbitrator for the settlement of a claim put forth by Messrs. Karam Chand Thapar and Brothers Limited in connection with the construction of the Hinoo Aerodrome at Ranchi Job 108 If You agree to undertake the 832 work. . the necessary forms of acceptance of appointment of Arbitrator etc. may please be for warded to this Department for completion by the Government of Bihar and, by the Contractor. " To this, Col. Smith sent a reply agreeing to act as arbitrator. In that letter he also suggested that the contract between the parties might be suitably amended so as to permit arbitration. This is significant, because under cl. 23 of the contract, all disputes between the parties had to be referred to the Superintending Engineer whose decision was to be final, and if that had been amended as suggested, the arbitration clause would have become part of the original contract and there would have been no occasion for the present contention. Referring to the above suggestion for amending the agreement, the Secretary, Mr. Murrel, wrote on September 5, 1947, to Col. Smith that the opinion of the Legal Remembrancer would have to be got. On January 19, 1948, Col. Smith wrote to the Secretary that he was ready to take up his duties as arbitrator and again desired that the contract should be amended so as to provide for arbitration. On January 27, 1948, the Secretary to the Government informed Col. Smith that opinion had been received from the Legal Remembrancer that an agreement for arbitration should be executed in accordance with the provisions of the and that a "draft agreement (copy enclosed) has been drawn up accordingly and steps are being taken to execute it, as quickly as possible" On the same date, the Executive Engineer wrote to the respondents as follows: "It has since been decided by Government to determine your claims in connection with the above through arbitration conducted in accordance with the provisions of the 1 of 1940. You are therefore requested to please attend the Divisional Office immediately to execute necessary agreement for the purpose." Pursuant to this letter, the respondents joined in the execution of the agreement dated February 6, 1948, along with the Executive Engineer for referring the 833 dispute to arbitration. On February 25, 1948 the Secretary informed the arbitrator that the draft agreement had been slightly modified in consultation with the Government Pleader, and he also wrote to the Executive Engineer that certain formal corrections should be made in the agreement and signed by both the parties. And that was done. Having carefully gone through the correspondence, we agree with the learned Judges of the High Court that the Executive Engineer had been authorised by the Governor acting through his Secretary to execute the agreement for reference to arbitration. It will be seen that it was the Secretary who from the very inception took the leading part in arranging for arbitration. He was throughout speaking in the name of and on behalf of the Government and he did so "as directed". The subject matter of the arbitration was a claim which concerned the Government. The proposal at the earlier stages to amend cl. 23 of the original contract so as to include an arbitration shows that the intention of the parties was to treat the agreement for arbitration as part and parcel of that contract. Even after the agreement was executed, the Secretary made corrections and modifications in the agreement on the basis that it was the Government that was a party thereto. The conclusion from all this is, in our judgment, irresistible that Y. K. Lall, the Executive Engineer had been authorised to execute the agreement dated February 6, 1948. It was suggested that the Secretary was possibly labouring under a mistaken notion that the agreement to refer to arbitration was covered by item 2 and acting under that misconception he directed Y. K. Lall to execute the agreement. Even if that were so, that would not make any difference in the position, because the Secretary undoubtedly did intend that Y. K. Lall should execute the agreement and that is all that is required under section 175(3). It was further argued for the appellant that there being a Government notification of a formal character, 834 we should not travel outside it and find authority in a person who is not authorised thereunder. But section 175(3) does not prescribe any particular mode in which authority must be conferred. Normally, no doubt, such conferment will be by notification in the Official Gazette, but there is nothing in the section itself to preclude authorisation being conferred ad hoc on any person, and when that is established the requirements of the section must be held to be satisfied. In the result, we hold that the agreement dated February 6, 1948, was executed by a person who was authorised to do so by the Governor, and in consequence there was a valid reference to arbitration. It is next contended that as the copy of the award in court was unstamped, no decree could have been passed thereon. The facts are that the arbitrator ,sent to each of the parties a copy of the award signed by him and a third copy also signed by him was sent to the court. The copy of the award which was sent to the Government would appear to have been insufficiently stamped. If that had been produced in court, it could have been validated on payment of the deficiency and penalty under section 35 of the Indian Stamp Act, 1899. But the Government has failed to produce the same. The copy of the award which was sent to the respondents is said to have been seized by the police along with other papers and is not now available. When the third copy was received in court, tile respondents paid the requisite stamp duty under section 35 of the Stamp Act and had it validated. Now the contention of the appellant is that the instrument actually before the court, is, what it purports to be, "a certified copy", and that under section 35 of the Stamp Act there can be validation only of the original, when it is unstamped or insufficiently stamped, that the document in court which is a copy cannot be validated and "acted upon" and that in consequence no decree could be passed thereon. The law is no doubt well settled that the copy of an instrument cannot be validated: That was held in The Rajah of, Bobbili vs Inuganti China Sitaramasani Garu (1), where it was observed: 835 "The provisions of this section (section 35) which allow a document to be admitted in evidence on payment of penalty, have no application when the original document, which was unstamped or was insufficiently stamped, has not been produced and, accordingly, secondary evidence of its contents cannot be given. To hold otherwise would be to add to the Act a provision which it does not contain. Payment of penalty will not render secondary evidence admissible, for under the stamp law penalty is leviable only on an unstamped or insufficiently stamped document actually produced in Court and that law does not provide for the levy of any penalty on lost documents", Therefore the question is whether the award which was sent by the arbitrator to the court is the original instrument or a copy thereof. There cannot, in our opinion, be any doubt that it is the original and not a copy of the award. What the arbitrator did was to prepare the award in triplicate, sign all of them and send one each to the party and the third to the court. This would be an original instrument, and the words, "certified copy" appearing thereon are a mis description and cannot have the effect of altering the true character of the instrument. There is no substance in this contention of the appellant either. In the result, the appeal fails and is dismissed with costs. Appeal dismissed.

IN-Abs

A dispute between the respondent company and the Government of Bihar over the bills for the amount payable to tile company in respect of the construction works carried out by it for the Government was referred to arbitration. The agreement to refer to arbitration was executed on behalf of the Governor by L, an executive engineer, who had been specifically authorised to do so by a Secretary to the Government. The arbitrator made his award and sent copies thereof to the parties. The respondent applied to the Court under the provisions of the , for a decree in terms of the award. The State filed objections thereto and the matter was registered as a suit. While the suit was pending the arbitrator sent to the court a copy of the award duly signed by him for being filed as provided in the Act, and on the receipt thereof the respondent bad it validated on payment of the requisite stamp duty under section 35 of the Indian Stamp Act, 1899. The appellant, the State of Bihar, contended that no decree could be passed on the basis of the award on the grounds (1) that the agreement for reference to arbitration did not comply with the requirements of section 175(3) of the Government of India Act, 1935, inasmuch as it was not signed by the person authorised to do so under the notification issued by the Government of Bihar on April 1, 1937, in exercise of the powers conferred by section 175(3), and (2) that the instrument before the court was a certified copy and that under section 35 of the Indian Stamp Act, 1899, a copy Could not be validated or acted upon. Held, that section 175(3) of the Government of India Act, 1935, does not prescribe any particular mode in which authority must be conferred and that where authorisation is conferred ad hoc on any person, the requirements of the section must be held to be satisfied. 828 Held, further, that the award sent by the arbitrator to the court was the original and not a copy of the award and by applying the provisions of section 35 of the Indian Stamp Act, 1899, it was effectively validated. The Rajah of Bobbili vs Inuganti China Sitaramasami Garu (1899) L.R. 26 I.A. 262, referred to.

No. 65 of 1959. Petition under article 32 of the Constitution of India for enforcement of Fundamental Rights. B. D. Sharma, for the petitioners. H. N. Sanyal, Additional Solicitor General of India, B. Ganapathy Iyer and P. M. Sen, for the respondents. April 10. The Judgment of the Court was delivered by DAS GUPTA, J. This application under article 32 of the Constitution is for the protection of fundamental rights under article 19(1)(f) and (g), article 31 and article 14 of the Constitution. The second and the third applicants are merchants who used to import considerable quantities of glass chatons upto 1957. The first applicant is an Association of merchants, some of whom were importers and some the actual users of glass chatons. Import of glass chatons which form an important part of the raw materials for the manufacture of glass bangles and other similar articles of wear could, be made only on licences granted by licensing authorities. Since 1955 the matter has been regu lated by the Imports (Control) Order, 1955. This Order which was made by the Central Government in exercise of powers conferred by sections 3 and 4 A of the Import and Export Control Act, 1947, prohibited the import of a large number of goods including inter alia glass chatons, except under and, in accordance with a licence, granted on application by the licensing 864 authorities under the Act. Policy statements are made from time to time by the Government of India, indicating the policy for the issue of Import licences. The policy as regards the import of glass chatons for the period January, 1957 to the end of March, 1958 was that the import was totally prohibited. ' Since April 1958, the policy as laid down is that import was permitted only under the Export Promotion Scheme. It appears that in ' view of this policy statement no application was made at all by the second or third applicants or other merchants for the import of glass chatons, in 1957 or thereafter and no licence was issued to them. Licences were however issued in favour of the State Trading Corporation, for the import of glass chatons of the value of five lakhs of Rupees, for the period April September, 1958,and again, for the import of these goods of the value of Rs. 1,25,000 for the period October, 1958 to March, 1959. The present application was made on April 27, 1959. The prayer is that respondents 1 and 2 i.e. , the Union of India and the Chief Controller, Imports, should be directed (i) to "forbear from giving the State Trading Corporation any preference over the petitioners, in the grant of permits", (ii) not to create a monopoly in favour of the State Trading Corporation, (iii) to cancel the import permits already granted in favour of respondent No. 3 the State Trading Corporation and the petitioners also prayed that the. respondent No. 3 should be directed not to import on the basis of import licences already granted. It has to be mentioned at once that the periods of the import permit "already granted" as referred to in the petition has already expired and consequently, the last two prayers mentioned above cannot possibly be granted. There was no application at all by the second and the third applicants, or any of the merchants who form the association, the 1st appellant for the issue of any import licences; there can be no question therefore of respondents 1 and 2 being given any preference over the petitioners in the grant of permits Nor is there, as far as can be made out, any scheme to issue fresh licences in favour of the 865 State Trading Corporation so that apart from what has already happened there is no question of any future action "to create a monopoly in favour of the State Trading Corporation". Therefore the petitioners cannot be given any relief on the present application. Learned Counsel however submitted that so long as Para. 6(h) of the Imports (Control) Order, 1955, remains it will be useless for his clients to make any application for licences. 6 lays down a number of grounds on which the Central Government or the Chief Controller of Imports and Exports may refuse to grant a licence or direct any other licensing authority not to grant a licence. The ground mentioned in the clause (h) is "if the licensing authority decide to canalise imports and the distribution thereof through special or specialised agencies or channels". Learned Counsel has argued that this provision in clause (h) of Para. 6 is void being in contravention of article 19(1)(f) and (g), and article 31 of the Constitution. He also urged that to the extent section 3 of the Imports and Exports Control Act, 1947, permits the Central Government to make an order as in Para. 6(h) section 3 itself is bad. In view of these submissions the learned Counsel was permitted to urge his contentions against the validity of Para. 6(h) of the Imports (Control) Order, 1955, and also his limited attack against the validity of section 3 of the Imports and Exports Control Act, 1947. The requirement as regards any goods that they cannot be imported except and in accordance with a licence is undoubtedly a restriction on the right to carry on trade in such goods and also on the right to acquire property. Learned Counsel does not however contend that by itself this requirement of section 3 of the Imports and Exports Control Act is an unreasonable restriction. His attack is only against the further restriction which follows from the provisions in section 6(h) of the Order that the Central Government or the Chief Controller of Imports and Exports may refuse to grant a licence or direct any licensing authority not to grant licences "if the licensing authority decides to canalise imports and the distribution thereof 866 through special or specialised agencies or channels". The argument is that the further restriction. on the right to carry on trade and the right to acquire property that results from this provision is totally unreasonable. It is obvious that if a decision has been made that imports shall be by particular agencies or channels the granting of licence to any applicant outside the agency or channel would frustrate the implementation of that decision. If therefore a canalization of imports is in the interests of the general public the refusal of imports licences to applicants outside the agencies or channels decided upon must necessarily be held also in the interests of the general public. The real question therefore is: Is the canalization through special or specialized agencies or channels in the interests of the general public. A policy as regards imports forms an integral part of the general economic policy of a country which is to have due regard not only to its impact on the internal or international trade of the country but also on monetary policy, the development of agriculture and industries and even on the political policies of the country involving questions of friendship, neutrality or hostility with other countries It may be difficult for any court to have adequate materials to come to a proper decision whether a particular policy as regards imports is, on a consideration of all the various factors involved, in the general interests of the public. Even if the necessary materials were available it is possible that in many cases more than one view can be taken whether a particular policy as regards imports whether one of heavy customs barrier or of total prohibition or of entrustment of imports to selected agencies or channels is in the general interests of the public. In this state of things the burden on the person challenging that the government of the country is not right in its estimate of the effects of a policy as regards imports in the general interests of the public will be very heavy indeed and when the Government decides in respect of any particular commodity that its import should be by a selected. 867 channel or through selected agencies the Court would proceed on the assumption that that decision is in the interests of the general public unless the contrary. is clearly shown. Consequently, we are unable to accept the argument that a decision that imports shall be canalised, is per se not a reasonable restriction in the interests of the general public. We wish to make it clear that while the decision that import of a particular commodity will be canalised may be difficult to challenge, the selection of the particular channel or agency decided upon in implementing the decision of canalisation may well be Challenged on the ground that it infringes article 14 of the Constitution or some other fundamental rights. No such question has how. ever been raised in the present case. The attack on the validity of Para. 6(h) of the Imports Control Order, 1955, therefore, fails. The contention that section 3 of the Imports and Exports Control Act, 1947, is bad to the extent that it permits the government to make an order as in Para. 6(h) of the Imports Control Order, 1955, consequently also fails. The attack on this provision in Para. 6(h) of the order that it contravenes article 31 is not even plausible. Assuming for the purpose of this case that the right to carry on trade is itself property, it is obvious that there is no question here of the acquisition of that right. What happens if a licence is refused to an applicant under Para. 6(h) is that the applicant can no longer carry on trade in these goods. When licence is granted to the agencies or channels through which imports have been decided to be canalised, these agencies or channels 'can carry on trade but this is not because of an acquisition by these agencies or channels of the right to carry on trade which the unsuccessful applicants for licence had. Article 31 of the Constitution has therefore no application. It was next urged that the grant of licences to the third respondent, the State Trading Corporation of India while none has been granted to the second and the third petitioners has resulted in a denial of equal protection of laws guaranteed by article 14 of the Constitution. If these petitioners had applied for licences 868 trader the Export Promotion Scheme and still the State Trading Corporation had been preferred it would perhaps have been necessary to consider whether the preference accorded to the Corporation was based on reasonable and rational grounds. It is clear however that though it was open to these petitioners to apply for licences under the Export Promotion Scheme they made no application for licence thereunder. There is to scope therefore for the argument that they have en discriminated against. In the result, we are of opinion that the petitioners are not entitled Iwo any relief under article 32 of the Con. stitution. The petition is accordingly dismissed with costs. Petition dismissed.

IN-Abs

The appellants were importers and users of glass chatons the import of which was prohibited except under a licence granted by the licensing authorities under the Import and Export Control Act, 1947, and the Imports (Control) Order, 1955. The import was totally prohibited for some time but afterwards it was permitted under the Export Promotion Scheme and licence was issued in favour of the State Trading Corporation. The appellants who made no application for licence contended inter alia that the provisions of para. 6(h) of the Imports (Control) Order, 1955, that the Central Government or the Chief Controller of Imports and Exports may refuse to grant a licence or direct any licensing authority not to grant licence if the licensing authority decided to canalise imports and the distribution thereof through special or specialised agencies or channels are unreasonable restrictions on the right to carry on trade 863 and to acquire property and as such contravene articles 14, 19(1) (f) & (g) and 31 of the Constitution. Held, that the decision that import of a particular commodity shall be canalised by a selected channel or through selected agencies is a reasonable restriction in the interest of the general public. The provisions of para. 6(h) of the Imports (Control) Order, 1955 and section 3 of the Imports and Exports Control Act, 1947, are valid and do not contravene articles 14, 19(1)(f) and (g). Nor do they contravene article 31 of the Constitution as no question of acquisition of any right arises by the refusal of a licence.

No. 164 01 1958. Writ Petition under article 32 of the Constitution of India for the enforcement of Fundamental Rights. N. C. Chatterjee and Naunit Lal, for the petitioners. N. section Bindra and D. Gupta, for the respondent. April 10. The Judgment of the Court was delivered by AYYANGAR, J. The constitutional validity of the Ay. operative provisions of the Punjab Shops and Commercial Establishments Act, 1958 (Punjab Act 15 of 1958), which we shall hereafter refer to as the Act, is challenged in this writ petition filed under article 32 of the Constitution, seeking reliefs appropriate to such a challenge. There are two petitioners and the nature of the business carried on by, them, which is set out in the 854 petition, indicates that they have combined with a view to bring up before the Court the implications of the enactment with reference to different types of business which trades in the Punjab might be ' carrying on and which would be impeded or restricted by the provisions of the Act. The first petitioner states that he has a shop at Mandi Dabwali in Hissar District where he carries on business in the purchase and sale of grains, etc. in wholesale. The relevant averment in regard to the nature of his business is that the customers who supply him with goods bring them loaded in carts drawn by camels or bullocks and that these vehicles arrive at his godowns at all hours of the day and night. He also states that for the purpose of the purchases or sales effected by him, he receives messages by telephone and telegram both during the day and the night. These, according to him, render necessary, if he has to carry on business as he has been doing all along, that his place of business should be kept open practically the whole of the day and night, i.e., for all the 24 hours. The second petitioner states that he is carrying on a retail business on a small scale, and that he employs no outsider but attends to all the work in the shop himself, with the assistance, if necessary, of the members of his family. In this case also it is stated that the goods purchased are brought to him at all hours of the day and night and similarly he has to receive messages during the entire period. It is in this background that the petitioners desire that the Court should view the restrictions imposed upon them by those provisions of the Act which are challenged in the petition. We shall now proceed to set out he impugned provisions of the Act with a view to determine whether for all or any of the reasons set out in the petition,any of them could be said to constitute an unreasonable restriction on the right to carry on trade or business so as not to be protected by article 19(6) of the Constitution which is the gravamen of the complaint formulated in the petition. The Act received the assent of the President on April 25, 1958, and was published in the Punjab 855 Gazette on May 1, 1958. According to the preamble, it is an Act to provide for the regulation of conditions of work and employment in shops and commercial establishments. The Act repealed and re enacted, with modifications, the Punjab Trade Employees Act, 1940, to which enactment also it would be necessary to advert in its proper place. Section 1(3) of the Act provides that the Act shall come into force on such date as Government may, by notification appoint in this behalf and by a notification under this provision the Act was directed to come into force from June 1, 1958. The Act, however,, did not of its own force apply to the entirety of the Punjab State, for section 1(4) enacted: "1(4). It shall apply in the first instance to the areas specified in the Schedule, but Government may by notification direct that it shall also apply to such other area and on such date as may be specified in the notification." Mandi Dabwali where the petitioners carry on business is one of the local areas in the district of Hissar set out in the Schedule annexed. We might here note that the main grievance of the petitioners appears to, be that it has not been brought into force in neighbouring local areas and that this disparity in the regulations is acting to the disadvantage of people carrying on business in the areas set out in the Schedule. This, however, cannot obviously be a ground of constitutional grievance and learned Counsel therefore very properly did not rely on it except merely to draw our attention to this fact. Section 2(iv) defines a 'a commercial establishment ' to which the Act applies as meaning "any premises wherein any business, trade or profession is carried on for profit", omitting the unnecessary words. Section 2(v) defines 'day ' as meaning "the period of twenty four hours beginning at midnight", again omitting what is immaterial. The operative provisions of the Act which were attacked in the petition are sections 7 and 9 and it would be convenient to set out their material terms: "7. Hours of employment. (1) Subject to the 856 provisions of this Act, no person shall be employed about the business of an establishment for more than forty eight hours in any one week, and nine hours in any one day. (2). . . . . . (3). . . . . . (4). . . . . . (5). . . . . . 9. Opening and closing hours. No establishment shall, save as otherwise provided by this Act, open earlier than ten o 'clock in the morning or close later than eight o 'clock in the evening; Provided that any customer who was in the establishment before the closing hour may be served during the period of fifteen minutes immediately following such hour; Provided further that the State Government may, by order and for reasons to be recorded in writing, allow an establishment attached to a factory to open at eight o 'clock in the morning and close at six o 'clock in the evening. Provided further that the State Government may, by notification in the official Gazette, fix such other opening and closing hours in respect of any establishment or class of establishments, for such period and on such conditions, as may be specified in such notification. " For the sake of completeness and to understand the scheme of the enactment we would set out the terms of section 10 also, which reads: "10. Close day. (1) Save as otherwise provided by this Act, every establishment shall remain close on every Sunday: Provided that, in the case of an establishment attached to a factory, the employer may substitute the close day of such establishment so as to correspond to the substituted close day of the factory in the same manner and subject to the same conditions as are laid down in this behalf in the . (2) (i) The employer of an establishment shall in the prescribed form intimate to the prescribed 857 authority the working hours and the period of interval of the employed persons within fifteen days of the date of registration of the establishment. (ii)The employer of an establishment may change, the working hours and the period of interval once in a quarter of the year by giving intimation in the prescribed form to the prescribed authority at least fifteen days before the change is to take place. (3) Notwithstanding anything contained in subsection (1), the employer of an establishment may open his establishment on the close day if (a) such day happens to coincide with. a festival; and (b) employees required to work on that day are paid remuneration at double the rate of their normal wages calculated by the hour". It is urged by Mr. Chatterji learned Counsel for the petitioners that having regard to the nature of the petitioners ' business, whose features we have set out earlier, it would be impossible for them to carry it on in the manner in which they have been doing up to now, unless the Act permitted the first petitioner to work without regard to the restrictions imposed by the limitation as to hours of work of employees imposed by section 7(1) of the Act, and both the petitioners without regard to the hours for the opening and closing of the "establishments" under section 9. Before entering on a discussion of the constitutional propriety of the restrictions imposed we may point out that the provisions of the Act contemplate that establishments might fall under three categories:. (1) where it is necessary in the public interest, and having regard to the service which they render to the community, that the normal hours of working should not be subject to the restrictions imposed by sections 9 or 10, (2) those in which there is no need for complete freedom from these restrictions, but in which an adjustment merely as regards the hours set out in section 9 is sufficient, (3) those in which neither the requirements of the trade nor, of course, the interest of the general public 858 would suffer if the establishment adjusted its operations in conformity with the Act. The first head is dealt with by section 4 of the Act which reads: "4. Provisions of sections 9 and 10 not applicable to certain establishments. Nothing in sections 9 and 10 shall apply to (a) clubs, hotels, boarding houses, stalls and refreshment rooms at the railway stations; (b) shops of barbers and hair dressers; (c) shops dealing mainly in meat, fish, poultry, eggs, dairy produce (except ghee), bread, confectionery, sweets, chocolates, ice, ice cream, cooked food, fruit, flowers, vegetables or green fodder; (d) shops dealing mainly in medicines or medical or surgical requisites or appliances and establishments for the treatment or care of the sick, infirm, destitute or mentally unfit; (e) shops dealing in articles required for funerals, burials or cremations; (f) shops dealing in pans (betel leaves), biris or cigarettes, or liquid refreshments sold retail for con sumption on the premises; (g) shops dealing in newspapers or periodicals, editing and despatching sections of the newspaper offices and offices of the news agencies; (h) cinemas, theatres and other places of public entertainment; (i) establishments for the retail sale of petrol and petroleum products used for transport; (j) shops in regimental institutes, garrison shops and troop canteens in cantonments; (k) tanneries; (1) retail trade carried on at an exhibition or show, if such retail trade is subsidiary or ancillary only to the main purpose of the exhibition or show; (m) oil mills not registered under the ; (n) brick and lime kilns; (o) commercial establishments engaged in the manufacture of bronze and brass utensils so far as 859 it is confined to the process of melting in furnaces; and (p) saltpetre refineries." Similarly by notification of the State Government State dated June 1, 1958, the following classes of establishments wer e exempted from the provisions of SS. 9 and 10: "(1) establishments dealing in the retail sale of Phullian, Murmura, sugar coated grams and Reoris; (2) commercial colleges of shorthand and type writing. (vide Punjab Government notification No. 6567. S Lab. 58/1737 RA, dated June 1, 1958.) (3)all booking offices of the Transport (vide Punjab Government notification No. 6147/ 5815 C Lab 58/1741 RA, dated June 1, 1958). " (2)The second category of cases are those covered by the second and third provisos to section 9. Action has been taken under the third proviso to section 9, by a notification which was issued at the same time as when the Act was brought into force which runs in the following terms: "The following categories of establishments in the State of Punjab shall not open earlier than eight o 'clock in the morning or close later than six o 'clock in the evening during the period from 1st May to thirty first August every year: (1)establishments dealing in timber, manufacture of furniture, tents, supply of furniture or tents on hire, cycles or their repairs or painting or dyeing; (2)establishments, other than tailoring establishments, which include 'workshops ' or other establishments where articles are produced, adapted or manufactured, with a view to their use, transport or sale; and (3) establishments dealing in agricultural produce brought for sale by producers.(vide Notification No. 6567. S Lab 58/1735 RA, dated June 1, 1958)." (3) Those outside section 4 and which are not covered by notifications under the provisos to section 9 have, of 860 course, to adjust their business in accordance with the requirements of the Act. It is in the context of these exceptions and the elasticity for which provision is made to meet the imperative requirements of particular types of business, that the constitutional objection has to be considered. The constitutional objection is that, the impugned provisions impose unreasonable restrictions on the fundamental right of the petitioners "to carry on their trade or business". The regulation of contracts of labour so as to ameliorate their conditions of work is in reality a problem of human relationship and social control for the advancement of the community. The public and social interest in the health and efficiency of the worker is, at the present day, beyond challenge. Our Constitution does not protect or guarantee any fundamental right in the nature of the provision in article 1, section 10(1), of the U. section Constitution against "impairment of the obligation of contracts". The only test of constitutional validity therefore is whether the provision in the impugned law, which is enacted to avoid physical overstrain of the worker, and so as to afford him better conditions of work, and more regulated hours, thus ensuring to him a reasonable amount of leisure factors which would render the restrictions in the interest of the general public, is unreasonable from the point of view of the employer. For answering this question it would be necessary to ask are the restrictions necessary, or do they go beyond what is reasonably needed to protect the worker? Judged by this test, neither the 48 hour week, nor the specification of the opening and closing hours can be said to have gone beyond what by modern standards are necessary for ensuring the health and efficiency of the employee. It might also be added that the concept of what is necessary to secure the welfare of labour, or indeed of the elements which determine its content are neither of them fixed or static, but are dynamic, being merely the manifestation or index of the social conscience as it grows and develops from time to time. Besides, this point regarding restrictions of this 861 nature being unreasonable is concluded against the petitioners by the decision of this Court in Manohar Lal vs The State of Punjab (1) judgment on which was delivered on November 11, 1960. The provision there impugned was section 7 of the Punjab Trade Employees Act, 1940, (which, as stated earlier, had been repealed and re enacted with modifications by the Act) which directed that the shops and establishments to which it applied should remain closed on one day in the week (corresponding to section 10 of the Act of 1958). The appellant before this Court was a small trader who did not employ any person under him but who, like the second petitioner before us, himself with the members of his family attended to all the requirements of his shop. Basing himself on this feature he challenged the validity of the provision which restricted his right to carry on his business in such manner as he chose on all the seven days in the week. In repelling these objections this Court said: "The ratio of the legislation is social interest in the health of the worker who forms an essential part of the community and in whose welfare, therefore, the community is vitally interested. It is in the light of this purpose that the provisions of the Act have to be scrutinized. . The learned Judges of the High Court have rested their decision on this part of the case on the reasoning that the terms of the impugned section might be justified on the ground that it is designed in the interest of the owner of the shop or establishment himself and that his health and welfare is a matter of interest not only to himself but to the general public. A restriction imposed, with a view to secure thi s purpose would, in our opinion, be clearly saved by article 19(6). Apart from this, the constitutionality of the impugned provision might be sustained on another ground also, viz., with a view to avoid evasion of provisions specifically designed for the protection of workmen employed. It may be pointed out that acts innocent in themselves may be prohibited and the restrictions in that regard would (1) ; 862 be reasonable, if the same were necessary to secure the efficient enforcement of valid provisions. The inclusion of a reasonable margin to ensure effective enforcement will not stamp a law otherwise valid as within legislative competence with the character of unconstitutionality as being unreasonable." These observations, in our opinion, clearly apply and suffice to support the validity of the related provisions here impugned. The petition fails and is dismissed with costs. Petition dismissed.

IN-Abs

Section 7 of the Punjab Shops and Commercial Establishments Act, 1958, provided that no person shall be employed about the business of an establishment for more than forty eight hours in any week and nine hours in any one day. Under section 9 of the Act no establishment shall save otherwise provided by the Act,open earlier than ten o 'clock in the morning or close later than eight o 'clock in the evening. The petitioners challenged the constitutional validity of the aforesaid provisions of the Act on the ground that having,, regard to the nature of their business, it would be impossible for them to carry it on in the manner in which they were doing unless the Act permitted them to work without regard to the restrictions imposed by the limitation as to hours of work of employees under section 7(1) or the hours for the opening and closing of the establishments under section 9, and that, 853 consequently, these provisions imposed unreasonable restric tions on their fundamental right to carry on their trade or business under article 19(1)(e) of the Constitution of India. The petitioners ' case was that their business was such that the customers who supplied them with goods brought them in vehicles which arrived at their godowns at all hours of the day and night and that they received messages by telephone and telegram similarly both during day and night. These according to them rendered it necessary that their place of business should be kept open practically for all the 24 hours of the day. Held, that ss.7 and 9 of the Punjab Shops and Commercial Establishments Act, 1958 are intra vires the Constitution of India. The test of constitutional validity is whether the impugned provisions of the Act which were enacted to afford the worker better conditions of work and more regulated hours so as to avoid physical overstrain and ensure to him a reasonable amount of leisure in the interest of the general public, are unreasonable restrictions from the point of view of the employer and go beyond what is reasonably needed to protect the worker. judged by this test, neither the 48 hour week, nor the specification of the opening and closing hours could be said to have gone beyond what by modern standards are necessary for ensuring the health and efficiency of the employee. Manohar Lal vs The State of Punjab, ; , followed.

Appeal No. 90 of 1956. Appeal by special leave from the judgment and decree dated August 5, 1953, of the Bombay High Court in Appeal from the Appellate Decree No. 915 of 1951. M. section K. Sastri, for the appellant. A. G. Ratnaparkhi, for respondent No. 1. 1961. April 12. The Judgment of the Court was delivered by RAGHUBAR DAYAL, J. This appeal, by special leave, is against the judgment and decree of the High Court of Bombay, dismissing the suit of the plaintiff appellant. The plaintiff sued for a declaration that the property in suit which is situate at Mouje Digvale, a village held by khots in the district of Ratnagiri, was owned by him, was under his management and that the defendants had no right or interest therein. He claimed title to the property on the basis of the sale of occupancy rights under the sale deed executed in his favour by Sitabai on February 10, 1945. Sitabai was the widow of Vishram Anna Shirsat, who succeeded Ram Raghu Shirsat, the occupancy tenant of the land in suit. Ram Raghu Shirsat sold the occupancy rights in the land in suit to Laxman Chandba Raut by a deed dated March 8, 1892. By a compromise in a civil suit between the heirs of Laxman Chandba Raut and Tanu Daulat Gavade Sakaram, the heir of Laxman Raut got 3/5ths share and Tanu Daulat got 2/5ths share in these occupancy rights. Dattatraya Bhikaji Khot Kulkarni, a paternal uncle of respondent No. 1, purchased. the shares of these persons by 907 the sale deeds dated December 14,1903, and February 13, 1904. On Kulkarni 's death, respondent No. 1 became the owner of the property. Respondents nos. 2 to 4 are the tenants of respondent No. 1. The land in suit is khoti land as defined in el. (10) of section 3 of the Khoti Settlement Act, 1880 (Bom. Act 1 of 1880), hereinafter called the Act. It is not disputed that Ram Raghu Shirsat was the occupancy tenant of the land in suit and that he could not transfer his tenancy right without the consent of the khot, which, according to cl. (2) of section 3, includes a mortgagee lawfully in possession of khotki and all co sharers in a khotki. It is also admitted that the transferors of the afore mentioned sale deeds of 1892 in favour of the predecesror in interest of respondent No. 1, or of the sale deed of 1945 in favour of the appellant, did not obtain the consent of the khot before executing the deed of transfer. The plaintiff alleged that the sale deed in favour of respondent No. 1 was void and that therefore he had title to the suit land on the basis of the sale deed in his favour. Respondent No. 1 contended that Ram Raghu Shirsat lost his rights in the property in suit after he had executed the sale deed on March 8, 1892, and that, therefore the plaintiff obtained no title on the basis of the sale deed in his favour. The trial Court held the sale deed of 1892 to be good sale deed and binding on the plaintiff and dismissed the suit. On appeal, the Assistant Judge reversed the decree and decreed the suit holding that a transfer of the occupancy rights in the suit lands by Ram Raghu Sirsat in favour of Laxman Raut was void and that the plaintiff obtained good title under the sale deed in his favour in view of the amendment of section 9 of the Act by section 31 of the Bombay Tenancy Act, 1939 (Act XXIX of 1939), by which no consent of the khot was ,necessary for executing the sale deed in 1945. Respondent No. 1 preferred a second appeal to the High Court which set aside the decree of the Assistant Judge and restoring the decree of the trial Court, dismissed the suit. It held that the sale deed in favour 908 of the plaintiff too would be hit by the provisions of s.9 of the Act. It further held that the provisions of s.9 indicate that there was no absolute prohibition against a transfer of the occupancy right. A transfer by an occupancy tenant without the consent of the khot cannot be held to be void for all purposes and it would be invalid only in so far as it would be contrary to the right of the khot and not otherwise. It therefore held the transfer in favour of the respondent No. 1 's predecessor in interest in 1892 not to be void. It is the correctness of this order that is challenged in this appeal. This appeal has no force. Section 31 of the Bombay Tenancy Act, 1939, made amendments to section 9 of ado. the Act and the section after amendment reads: "The rights of khots and privileged occupants shall be heritable and transferable". 'Privileged occupant ' included a permanent tenant under cl. (5) of section 3 of the Act. The Bombay Tenancy Act received assent of the Governor of Bombay on April 2, 1940, but it came into force in April 1946 when the Government issued the necessary notification in exercise of the powers conferred under subs. (3) of section 1 of that Act. It is clear therefore that section 9, as it stood on February 10, 1945, when Sitabai executed the sale deed in favour of the appellant, made the rights of permanent tenants nontransferable without the consent of the khot, and that therefore the sale in favour of the appellant was as much hit adversely by the provisions of section 9 of the Act as the sale of the land in suit in favour of the predecessor in interest of respondent No. 1. It is therefore not necessary to determine the question whether the sale was absolutely void or voidable as held by the Court below, as neither of the two sales has been challenged by the khot whose consent for the transfer was necessary. The plaintiff has no title whether a transfer by a permanent tenant without the consent of the khot be void or voidable. If such a transfer is void, the sale in favour of the appellant did not convey any title to him. If such a sale was merely voidable at the instance of the khot, the first sale in favour of the 909 respondent No. 1 's predecessor in interest was not avoided by the khot, and therefore validly conveyed title to him. Consequently no title passed to the plaintiff under the sale deed in his favour as his transferor had no title. In either case the plaintiff fails to prove his title to the land in suit. The dismissal of his suit is therefore correct. We accordingly dismiss this appeal with costs. Appeal dismissed.

IN-Abs

The land in suit was Khoti land land section 9 of the Khoti Settlement Act, 1880, prior to its amendment prohibited the. transfer of the occupancy right without the consent of the Khot. Section 31 of the Bombay Tenancy Act, 1939, which came into force from April 1946, amended section 9 of the Khoti Settlement Act by which no consent of the Khot was necessary for transferring the occupancy rights in the land. In 1892, R sold his occupancy right without the consent of tile Khot to L, the predecessor in interest of respondent No. 1. In 1945, R 's successor again sold the same occupancy right to the appellant also without the consent of the Khot. The appellant 's case was that the sale deed in 1892 in favour of the predecessor in interest of respondent No. 1 was void as the transfer of the occupancy right was made without consent of the Khot; whereas respondent No. 1 contended that R by the sale deed in 1892 had already lost his right to the property in suit and therefore R 's successors had no title to pass in 1945 in favour of the appellant. Held, that the occupancy right in a Khoti land could not be transferred without consent of the Khot prior to April 1946, when the Bombay Tenancy Act, 1939, came into force 114 906 Held, further, that in the present case as both the sales of 1892 and 1945 were without the consent of the Khot, it was not necessary to determine whether such a transfer was void or voidable, If void, the plaintiff had no title. If voidable, the first sale in 1892, validly conveyed title to respondent No 1 's predecessor in interest, and consequently no title passed to the plaintiff under the sale deed in 1945, as the transferor had no title.

Civil Appeal No. 282 of 1955. Appeal by special leave from the judgment and order dated March 20, 1953, of the Bombay High Court in Income tax Reference No. 31 of 1951. A. V. Viswanatha Sastri and I. N. Shroff, for the appellants. K. N. Rajagopal Sastri and D. Gupta, for the respondent. April 12. The Judgment of the Court was delivered by KAPUR, J. This is an appeal against the judgment and order of the High Court of Bombay in a reference under section 8(5) of the Taxation on Income (Investigation Commission) Act, 1947 (Act XXX of 1947), hereinafter termed the 'Act '. The assessee company was the applicant before the High Court and is the appellant 919 before us and the Commissioner of Income tax, Bombay City, was the respondent in the High Court and is the respondent here also. Being a reference under section 8(5) of the Act, it was heard and decided by three judges of the High Court. The assessee company is a private limited company which was incorporated on May 6, 1943, with a paid up capital of Rs. 20 lacs. It was promoted by two groups of persons who for the sake of convenience may be called the 'Morarka Group ' and the 'Bubna Group '. The Apollo Mills Co., Ltd. of Bombay with a capital of Rs. 50 lacs divided into 25 lacs shares of Rs. 2 each, had as its Managing Agents M/s. E. D. Sassoon & Co. Ltd., who for the sake of brevity, will be referred to in this judgment as the Sassoons '. They held 19,76,000 shares out of the 25 lacs. The promoters of the assessee company entered into an agreement with the Sassoons on April 27, 1943, by which the Sassoons agreed to transfer their Managing Agency in the Mill Co. for Rs. 12 1/2 lacs to the promoters of the assessee company and the whole of their holding of 19,76,000 shares at Rs. 4 4 0 per share, i.e., for Rs. 83,98,000. These shares were to be transferred to the promoters or to the company which they were proposing to float. By clause (3) of this agreement the sale of the Managing Agency and the transfer of the shares was to be simultaneously completed and neither party could require the completion of the one without the other. On November 1, 1943, a tripartite agreement was entered into between the Sassoons as Assignors, the promoters of the company as Confirming Parties and the assessee company as Assignees. By that agreement the Managing Agency rights were for .ally transferred to the assessee company so also the Share Certificates for the whole of holding of the Sassoons in the Mill Co. and the necessary blank transfer deeds went) Before the agreement of April 27, 1943, and during the course of negotiations with the Sassoons the promoters of the assessee company entered into an arrangement with some share brokers for the sale of a large portion of the total holding of 19,76,000 shares 920 of the Mill Co. The price of these shares varied from Rs. 5 8 0 to Rs. 5 13 0. In all 10,00,000 shares out of the total holding of the Mill Co. were sold to these brokers and: they in turn sold these block of shares in smaller lots to a number of purchasers. Some shares were sold later; 1,20,000 shares were transferred to 13 nominees of the Morarka Group at cost price. As a result of sale of all these 13,74,000 shares the assessee company received a sum of Rs. 16,52,600 as excess over the purchase price. The remaining shares the assessee company retained. The assessee company submitted that the profits of the entire holding of the shares had not been worked out and had therefore not been transferred to the profit and loss account. The assessee company was taxed by the Income tax Officer but the sum of Rs. 16,52,600 which was the excess of the sale price over the purchase price of 13,74,000 shares was held not to be profit and therefore not taxable. When the Act came into force the case of the assessee company was referred to the Investigation Commission by the Central Government and the Investigation Commission made its report on November 9, 1949, in Case No. 406A. By this report the Commission directed that appropriate assessment be made under the Indian Income tax Act for the assessment year 1945 46 and the Excess Profits Tax Act for the corresponding chargeable accounting period. At the instance of the assessee company the Commissioner of Income tax, Bombay City, by his order dated May 1, 1951, referred the following question to the High Court: "Whether on the facts found by the Commission the sum of Rs. 16,52,600 being the excess price realised by the sale of 13,74,000 shares of the Mill Company, was 'profit ' and as such taxable or whether it was either of the nature of a capital appreciation or a casual and non recurring receipt and as such exempt from taxation under Section 4(3)(vii) of the Income tax Act." The High Court reformulated the question as follows: 921 "Whether there were materials to justify the finding of the Tribunal that the transaction of purchase and sale of 13,74,000 shares was an adventure in the nature of trade?" and answered the question so formulated in the affirmative and therefore against the assessee company. In its application for reference under section 8(5) of the Act the assessee company wanted some other questions also to be referred but the Investigation Commission only referred the question which has been set out above. The assessee company therefore took out a Notice of Motion on November 8, 1952, which was dismissed by the High Court on the ground that either the questions which were sought to be raised did not arise out of the finding of the Commission or they were included in the question which had been referred and answered by the High Court. Although the High Court did not so hold, the Notice of Motion was barred by time, being filed after more than six months allowed under section 66(2) of the Indian Income tax Act. Against this judgment and order of the High Court the assessee company has come in appeal to this Court by special leave. This appeal is brought against the judgment of the High Court answering the question referred and therefore in its advisory jurisdiction. The jurisdiction which this Court exercises in appeal is of the same character and therefore any question which was not referred to the High Court cannot be allowed to be raised at this stage. Consequently the constitutional question in regard to discrimination under article 14 of the Constitution which is now sought to be raised cannot be raised. The main question which would then survive for decision is the nature of transaction relating to the sale of 13 lacs odd shares and whether or not the sale was an adventure in the nature of trade and therefore the amount of Rs. 16,52,600 the excess of sale price over the purchase price of the share is a Revenue Receipt and therefore taxable profits or is it a Capital Receipt and therefore not liable to tax. The Investigation Commission by their order dated May 1, 1949, found: 922 (1) that a distinction should be made between the 6 lacs shares which the assessee company intended to and did retain and the 13 lacs odd shares which it intended to and did sell; the former was kept in order to enable the assessee company to make their Managing Agency rights effective. (2) During the negotiations between the Sassoons and the promoters of the. assessee company, the promoters of the assessee company had started negotiations with certain brokers for the transfer of 13 lacs odd shares soon after the arrangement between the Sassoons and the assessee company was completed. (3) From the very beginning the intention of the promoters of the assessee company was to sell all the 13 lacs odd shares and in pursuance thereof they were sold. (4) The paid up capital of the assessee company was Rs. 20 lacs only and according to the agreement they had to take the whole block of shares belonging to the Sassoons and pay for the shares as well as for the Managing Agency both of which were separately valued in the agreement. It was therefore necessary and it was intended to sell the 13 lacs odd shares in order to pay off the Sassoons both for the Managing Agency and the shares. The inference drawn from this by the Commission was that a distinction had to be drawn between the 6 lacs shares which the assessee company intended to retain and did in fact retain and the 13 lacs odd shares which they intended to sell and did sell. (5) that the intention to sell which the assessee company entertained from the very outset was a complete answer to the argument that the acquisition was in the nature of an investment. In giving its finding the Commission said: "Aggregating the 121 lakhs paid for the Manag ing Agency right and the full price of 6 lakhs and odd shares at Rs. 4 4 0 per share, the capital investment must amount to 121 lakhs and 251 lakhs, i.e., 38 lacs and odd. By deducting therefrom the profits of Rs. 16,52,600, the Company showed a capital investment of Rs. 21,54,200 and with the addition 923 of a few sundry items, it was brought up to Rs. 22,06,408 (see para 7 supra). " From this finding the inference drawn by the Commission was that the sale of 13 lacs odd shares was an adventure in the nature of trade. The High Court reformulated the question which has already been quoted and it was contended that the High Court was in error in narrowing down the scope of the question referred by the Commission. It is not necessary to adjudicate upon this argument because in our opinion taking the question as referred to be a proper question arising out of the report of the Investigation Commission the answer to the first part thereof would,still be in the affirmative. Inconsidering the question whether the transaction is or is not an adventure in the nature of trade we have to take into consideration the intention of the assessee keeping in view the "legal requirements which are associated with the concept of trade or business". The inference from the facts found by the Investigation Commission, i.e., whether the assessee company 's transaction in purchasing and selling 13 lacs odd shares is or is not an adventure in the nature of trade is a mixed question of law and fact and the legal effect of the facts found by the Investigation Tribunal is a question of law. See M/s. Ramnarain Sons (Pr.) Ltd. vs Commissioner of Income tax, Bombay (1). It was argued on behalf of the assessee company that: (1) that the dominant idea with which the whole transaction was entered into was to obtain the Managing Agency of the Apollo Mills; (2) that the assessee company was forced to buy the whole block of shares, i.e., 19,76,000 shares by the Sassoons because they were not prepared to part with the Managing Agency without the whole of their stock in the mill company; (3) that as the assessee company did not not have sufficient amount of money, their capital being only Rs. 20 lacs, it was to implement the tripartite agreement dated November 1, 1943, that the sale was made; and (1) (1961] 2 S.C.R. 904, 908. 924 (4) that the Memorandum of Association of the assessee company showed that it was a holding company and dealing in shares was not one of its objects. The agreement shows that the Sassoons had separately evaluated the Managing Agency and the shares held in the Apollo Mills Co. As the Investigation Commission has found, it was never the intention of the assessee company to retain the whole block of shares. Before the agreement was entered into they had made arrangement for the sale of the bulk of shares which were to be transferred by the Sassoons and therefore division of the shares into two sets was made by the promoters of the assessee company and the assessee company themselves and was not the result of anything done by the Investigation Commission. In; support of his contention that the amount of Rs. 16,52,600 was in the nature of Capital Receipt, reliance was placed on the judgment of this Court in M/s. Ramnarain 's case (1) but there are certain features and details which distinguish that case from the present case. It was held in that case that the question had to be decided in the light of the intention of the assessee and the assessee in that case bad purchased the shares of the Dawn Mills not as a business transaction. That was clear from the fact that the assessee bad purchased the shares at Rs. 2,321 8 0 per share and the market price was only Rs. 1,610, and the purpose of acquisition of such a large block of shares at a price exceeding the market price by a million rupees was the acquisition of the Managing Agency, which yielded the inference that the intention of purchasing the shares in that case was not to acquire them as a part of the trade of the assessee in shares but for obtaining the Managing Agency of the Mills. There was no separate price paid for the Managing Agency and the shares purchased and the Managing Agency acquired were both assets of a capital nature and the shares did not constitute stock in trade of a trading venture. In the present case the facts as shown were entirely different. (1) ; , 908. 925 Counsel for the assessee company also relied on Kishan Prasad & Co. Ltd. vs Commissioner of Income tax, Punjab (1). In that case the Managing Director of the company which was formed for the purpose of carrying on general business and trade of commercial undertaking and dealing in bills, hundis and other securities, entered into an agreement with a sugar syndicate by which the company was to be given the Managing Agency of a Mill of the sugar syndicate when such mill was erected in lieu of the company subscribing shares worth 3 lacs, and undertaking to sell shares worth 2 lacs. It was further provided that if the mill was not erected the assessee company was to be paid a commission on the amount invested by them. The Managing Director died and the assessee company sold the shares and thus received Rs. 2 lacs more than they had expended. The question was whether Rs. 2 lacs were receipts from business and not a mere appreciation in capital. It was held that that amount was not a result of an adventure in the nature of trade but was merely the result of an investment. It was found as a fact that the object of the company was merely to obtain the Managing Agency of the mill which would have been an asset of an enduring nature bringing profits but there was from the very inception no intention on the part of the company to resell the shares either at profit or otherwise. It appears that it was not contested that the conclusion to be drawn from those facts was that the investment in the purchase of shares in the circumstances of the case of a capital nature, and profits arising therefrom were an accretion to the capital. In that ease the court was trying to find out the intention of the assessee (the company) and taking all the circumstances into consideration it, came to the conclusion that it was a case not of profits arising out of an adventure in the nature of trade but the, intention of the assessee company was to invest its monies and therefore the excess arising out of sale of the shares was an accretion to the capital. That case must be taken to have been decided on its facts as (1) 926 indeed was the decision in M/s. Ramnarain Son 's case (1). Counsel for the assessee company referred to other cases: Tata Hydro Electric Agencies, Bombay vs The Commissioner of Income tax, Bombay Presidency & Aden (2); Commissioner of Income tax, Central and United Provinces, Lucknow vs Messrs. Motiram Nandram (3), Jones vs Leeming (4) and Commissioner of Inland Revenue vs Reinhold (5). It is unnecessary to re view these cases in any detail because they are clearly distinguishable in material respects and were decided on their own special facts. In Tata Hydro Electric Agencies ' case (2) the question for decision was whether 25% of the commission earned which was paid to the two financiers was expenditure deductible under section 10(2)(ix) and it was held that it was not because the obligation to make the payment was in consideration of acquiring the Managing Agency and the right to conduct business and not for the purpose of producing profits in the conduct of business. Similarly in Commissioner of Income tax vs Messrs. Motiram Nandram (3) the expenditure was for securing the agency which was to carry on business. Sir George Rankin said at p. 81: "The question in such a case a,% the present must be "what is the object of the expenditure?" and it must be answered from the standpoint of the assessees at the time they made it that is, when they were embarking upon the business of organizing agents for the company." Jones vs Leeming (4) was a case of an isolated transaction. The finding was that it was not in the nature of trade. Commissioner of Inland Revenue vs Reinhold(5) was ' decided on its own facts. Another case decided by this court upon which counsel for the appellant relied was Saroj Kumar Mazumdar vs Commissioner of Income tax, West Bengal, Calcutta (6) but that case was also decided on its own facts and it was held that there was no clear evidence in support of (1) [1961] 2.C.R. 004, 908 (3) (1939) L. R. 67 I. A. 71 (5) (1953) 34 T C. 389. (2) (1937) L. R. 64 I. A. 215. (4) (6) [1959] SUPP. 2 S C.R. 846. 927 the inference of the Appellate Tribunal that the land was purchased with the sole intention of selling it later at a profit. The English and Scottish cases on which the appellant relied were considered by the House of Lords in Edwards vs Bairstow (1).In that case the assessees who were the respondents embarked on a joint venture to purchase and complete a spinning plant agreeing between themselves not to hold it but to make a quick resale. With that object in view they approached and there were diverse negotiations and the whole plant was sold in about two years ' time at a profit of about pound 18,000 and for that purpose incurred commission for help in effecting sales, for insurance and other expenses. The General Commissioners found that it was not an adventure in the nature of trade to justify an assessment to income tax under Case 1 of Schedule D to the Income tax Act, 1918. It was held that the facts led inevitably to the conclusion that the transaction was an adventure in the nature of trade and that the Commissioner 's inference to the contrary should be set aside. Counsel for the respondent next relied on a Judgment of this Court in G. Venkataswami Naidu & Co. vs The Commissioner of Income tax (2) in which it was held that the presence of all the relevant factors may help the Court to draw the inference that the transaction is in the nature of trade but it is not a matter of counting the number of facts and circumstances for and against. What is important is to consider the distinctive character and it is the total effect of all the relevant factors that determines the character of the transaction. All these cases are illustrative. As was said by Gajendragadkar, J., in the above mentioned case the totality of circumstances of a case and the pros and cons have to be considered and inference drawn from those facts whether a particular transaction was in the nature of trade or was merely an investment and the resulting excess from the transaction was therefore profit which was taxable or was merely an accretion to the capital. In the instant case (1) ; (2) [1959] SUPP. 1 S.C.R. 646. 928 the pi of its from the transaction that consisted of buying the Managing Agency of the Mill Company and the block of shares held by the Sassoons were in our view the profits of an adventure in the nature of trade. The two groups, Morarka and Bubnas, put Rs. 20 lacs into the assessee company which was floated for the acquisition of the Managing Agency and shares of the Mill Company which were beyond the holding capacity of the assessee company. That company never intended to hold the whole block of shares. It or its promoters before even entering into the agreement of purchase and during the course of negotiations for the purchase had entered into arrangements with different brokers for the sale of shares or at least of a bulk of those shares which were subsequently sold at a profit and but for that sale the transact ion could not have been completed by the assessee company. The purchase of shares was not with the intention of holding them, the intention of the assessee was just the contrary and by the sale at a profit of the shares actually sold the assessee company expected to and did finance the completion of the transaction and thus was enabled to secure the Managing Agency and keep 6 lacs shares. This inescapably was a transaction of a commercial nature. It had all the attributes of an adventure in the nature of trade. The contention that dealing in buying and selling of shares was not one of its objects is without substance. The Investigation Commission found that dealing in shares was within the objects of the assessee company and this is one circumstance in the totality of the circumstances which must be considered, though by itself it is not determinative of the question. All the circumstances lead to the inference which was rightly drawn by the Investigation Commission and by the High Court. The answer to the first part of the question referred by the Investigation Commission must therefore be in the affirmative. It was contended that the question should not have been reframed and we have therefore proceeded to answer the question as framed by the Investigation Commission. In our opinion the question even as framed must be answered in the affirmative. 929 The Notice of Motion to raise other questions in the High Court was rightly dismissed. Apart from the fact that the Notice of Motion was barred by time and there was no application for condonation of delay, the questions which were sought to be raised were rightly held either to be covered by the question answered or they did not arise at all. The constitutional question under article 14 of the Constitution cannot be raised in these proceedings because as we have said above this Court is exercising its advisory jurisdiction and its power is confined to the questions which arise in an appeal. This appeal must therefore be dismissed with costs. Appeal dismissed.

IN-Abs

The assessee company was promoted with the idea of obtaining the Managing Agency of the Appollo Mills from M/s. Sassoon total of 25 lakhs shares of RS. 2 each. According to the agreement the assessee company bad to take the whole of the block of shares belonging to the Sassoons and pay at Rs. 4 4 0 per share Rs. 12 1/2 lakhs for the managing agency. As the assessee company had only RS. 20 lakhs as its paid up capital, it was necessary to sell 13 lakhs odd shares in order to pay off the Sassoons both for the Managing Agency and the shares. Therefore during the course of negotiations the promoters of the assessee company entered into an agreement with some brokers for the sale of Rs. 19,76,000 shares. As a result of the sale of shares the assessee company received a sum of Rs. 16,52.600 as excess over the purchase price which amount on taxation was held by the Income tax Officer not to be profits and therefore not taxable. The case of the assessee company was referred to the Investigation Commission. The Commission found that it was not the intention of the assessee company to retain the whole block of shares and that the sale of 13 lakhs odd shares was an adventure in the nature of trade, and directed that appropriate assessment be made, under the Indian Income tax Act and Excess Profits Tax Act. At the instance of the assessee company the question was referred to the High Court under section 8(5) of the Taxation on Income (Investigation Commission) Act, 1947, which held that there were materials to justify the finding of the Commission that the purchase and sale of about 13 lakhs odd shares was an adventure in the nature of trade. An appeal was taken to the Supreme Court against this order. Held, that in considering the question whether the transac tion was or was not an adventure in the nature of trade, the court had to take into consideration the intention of the assessee 918 keeping in view the "legal requirements which are associated with the concept of trade or business" In the present case, the transaction that consisted of buy ing the managing agency of the Mill Company and the block of shares held by Sassoons was inescapably one of a commercial nature and had all the attributes of an adventure in the nature If of trade. Held, further, that the jurisdiction which this Court would exercise in appeal was of the same character that a High Court would exercise. Thus the question under article 14 of the Constitution could not be raised in these proceedings because this Court like the High Court was exercising its advisory jurisdiction and its power was confined to the question which arose before the High Court. M/s. Ramnarain Sons (Pr.) Ltd. vs Commissioner of Income tax, Bombay; , , Tata Hydro Electric Agencies, Bombay vs The Commissioner of Income tax, Bombay Presidency & Aden, (1037) L.R. 64 I.A. 215, Commissioner of, Income tax, Central and United Provinces, Lucknow vs M/s. Motiram Nandram, (1939) L.R. 67 I.A. 71, Jones vs Leeming, [1930) A.C. 415, Commissioner of Inland Revenue vs Reinhold, and Saroj Kumar Mazumdar vs Commissioner of Income tax, West Bengal, Calcutta, [1959] SUPP. 2 S.C.R. 846, distinguished. Kishan Prasad & Co. vs Commissioner of Income tax, Punjab, , Edwards vs Bairstow, ; and G. Venkataswami Naidu & Co. vs The Commissioner of Income tax, [1959] SUPP. 1 S.C.R. 646, discussed.

Appeal No. 294 of 1955. Appeal by special leave from the Judgment and Order dated the 7th September, 1955, of the Nagpur High Court, in Civil Revision No. 833 of 1954. B.B. Tawakley, (K. P. Gupta, with him for the appellant. R. section Dabir and R. A. Govind, for respondent No. 1. 1955. December 2. The Judgment of the Court was delivered by BOSE J. The appellant was a candidate for the office of President of the Municipal Committee of Damoh. The respondents (seven of them) were also candidates. The nominations were made on forms supplied by the Municipal Committee but it turned out that the forms were old ones that had not been brought up to date. Under the old rules candidates were required to give their caste, but on 23 7 1949 this was changed and instead of caste their occupation had to be entered. The only person who kept himself abreast of the law was the first respondent. He struck out the word "caste" in the printed form and wrote in "occupation" instead and then gave his occupation, as the new rule required, and not his 1031 caste. All the other candidates, including the appellant, filled in their forms as they stood and entered their caste and not their occupation. The first respondent raised an objection before the Supervising Officer and contended that all the other nominations were s; invalid and claimed that he should be elected as his was the only valid nomination paper. The objection was overruled and the election proceeded. The appellant secured the highest number of votes and was declared to be elected. The first respondent thereupon filed the election petition out of which this appeal arises. He failed in the trial Court. The learned Judge held that the defect was not substantial and so held that it was curable. This was reversed by the High Court on revision. The learned High Court Judges referred to a decision of this Court in Rattan Anmol Singh vs Atma Ram(1) and held that any failure to comply with any of the provisions set out in the various rules is fatal and that in such cases the nomination paper must be rejected. We do not think that is right and we deprecate this tendency towards technicality; it is the substance that counts and must take precedence over mere form. Some rules are vital and go to the root of the matter: they cannot be broken; others are only directory and a breach of them can be overlooked provided there is substantial compliance with the rules read as whole and provided no prejudice ensues; and when the legislature does not itself state which is which judges must determine the matter and, exercising a nice discrimination, sort out one class from the other along broad based, commonsense lines. This principle was enunciated by Viscount Maugham in Punjab Co operative Bank Ltd., Amritsar vs Incometax Officer, Lahore(2) and was quoted by the learned High Court judges ' "It is a well settled general rule that an absolute enactment must be obeyed or fulfilled exactly, but it is sufficient if a directory enactment be obeyed or fulfilled substantially". (1) ; (2) [1940] L.R. 07 I.A. 464, 476, 1032 But apart from that, this is to be found in the Act itself. The learned High Court Judges were of opinion that the directions here about the occupation were mandatory. That, we think, is wrong. The present matter is governed by section 18 of the Central Provinces and Berar Municipalities Act (II) of 1922. Among other things, the section empowers the State Government to "make rules under this Act regulating the mode. . of election of presidents. ." and section 175(1) directs that "all rules for which provision is made in this Act shall be made by the State Government and shall be consistent with this Act", Now one of the provisions of the Act, the one that directly concerns us, is set out in section 23: "Anything done or any proceeding taken under this Act shall not be questioned on account of any defect or irregularity not affecting the merits of the case". The rules have therefore to be construed in the light of that provision. Rule 9 (1)(i) states that " each candidate shall. .deliver to the Supervising Officer a nomination paper completed in the form appended and subscribed by the candidate himself as assenting to the nomination and by two duly qualified electors as proposer and seconder". The amended form requires the candidate to give, among other things, his name, father 's name, age, address and occupation; and rule 9(1)(iii) directs that the Supervising Officer "shall examine the nomination papers and shall decide all objections which may be made to any nomination and may either on such objection or on his own motion, after such summary enquiry, if any, as he thinks necessary, refuse any nomination on any of the following grounds: * * * * 1o33 (C) that there has been any failure to comply with any of the provisions of clause (i). . " It was contended that the word "may" which we have underlined above has the force of "shall" in that context because clause (a) of the rule reads "(a) that the candidate is ineligible for election under section 14 or section 15 of the Act". It was argued that if the candidate 's ineligibility under those sections is established, then the Supervising Officer has no option but to refuse the nomination and it was said that if that is the force of the word "may" in a case under clause (a) it cannot be given a different meaning when clause (c) is attracted. We need not stop to consider whether this argument would be valid if section 23 had not been there because the rules cannot travel beyond the Act and must be read subject to its provisions. Reading rule 9(1) (iii) (c) in the light of section 23, all that we have to see is whether an omission to set out a candidate 's occupation can be said to affect "the merits of the case". We are clear it does not. Take the case of a man who has no occupation. What difference would it make whether be entered the word "nil" there, or struck out the word "occupation" or placed a line against it, or just left it blank? How is the case any different, so far as the merits are concerned, when a man who has a occupation does not disclose it or misnames it, especially as a man 's occupation is not one of the qualifications for the office of President. We are clear that this part of the form is only directory and is part of the description of the candidate;, it does not go to the root of the matter so long as there is enough material in the paper to enable him to be identified beyond doubt. It was also argued that there was a reason for requiring the occupation to be stated, namely, because section 15(k) of the Act disqualified any person who "holds any office of profit" under the Committee. But disclosure of a candidate 's occupation would not necessarily reveal this because the occupation need only be stated in general terms such as "service" or 1034 "agriculture" and need not be particularised; also, in any 'event, section 15 sets out other grounds of dis qualification which are not required to be shown in the form. As regards our earlier decision. That was a case in which the law required the satisfaction of a particular official at a particular time about the identity of an illiterate candidate. That, we held, was the substance and said in effect that if the law states that A must be satisfied about a particular matter, A 's satisfaction cannot be replaced by that of B; still less can it be dispensed with altogether. The law we were dealing with there also required that the satisfaction should be endorsed on the nomination paper. That we indicated was mere form and said at page 488 "If the Returning Officer had omitted the attestation because of some slip on his part and it could be proved that he was satisfied at the proper time, the matter might be different because the element of his satisfaction at the proper time, which is of the substance, would be there, and the omission formally to record the satisfaction could probably, in a case like that, be regarded as an unsubstantial technicality". A number of English cases were cited before us but it will be idle to examine them because we are concerned with the terms of section 23 of our Act and we can derive no assistance from decisions that deal with other laws made in other countries to deal with situations that do not necessarily arise in India. The appeal succeeds and is allowed with costs here and in the High Court. The order of the High Court is set aside and that of the Civil Judge restored.

IN-Abs

The appellant was a candidate for the office of President of the Municipal Committee, Damoh. The nomination was made in an old form under the old rules which required a candidate to enter his caste. Under the new rules this was changed and occupation had to be stated instead, which none except the respondent No. I had done. Objection to the validity of the appellant 's nomination paper was overruled by the Supervising Officer. The appellant secured the highest number of votes and was declared elected. The respondent No. 1, thereupon, filed the election petition. He failed in the Election Tribunal which held that the defect was not substantial and was curable. The High Court, however, reversed this decision in revision, holding that failure to comply 'with any of the provisions set out in the rules was fatal and in such cases the nomination paper should be rejected. 1030 Held, that the rule requiring the occupation of the candidate to be stated in the nomination form was directory and not mandatory In character and as the failure to comply with it did not affect the merits of the case as laid down in section 23 of the Act, the election could not be set aside on that ground. Rattan Anmol Singh vs Atma Ram ([1955] 1 S.C.R. 481), dis tinguished. Courts should not go by mere technicalities but look to the substance. Some rules may be vital, while others are merely directory, and a breach of these may be overlooked, provided there is substantial compliance with the rules read as a whole and no prejudice ensues. When the Act does not make a clear distinction, it is the duty of the court to sort out one class from the other along broad based commonsense lines. Punjab Co operative Bank Ltd., Amritsar vs Income Tax Office? , Lahore ([1940] L.R. 67 I.A. 464), referred to.

Appeal No. 2 of 1958. Appeal by special leave from the judgment and decree dated December 18, 1953, of the Madras High Court in Second Appeal No. 24 of 1949. K. Bhimasankaram and T. V. R. Tatachari, for the appellant. K. R. Choudhri, for respondents Nos. 1 and 2. 1961. April 10. The Judgment of the Court was delivered by MUDHOLKAR, J. This is an appeal by special leave from the judgment of the Madras High Court in a second appeal reversing the decrees of the two courts below. The plaintiff who is the appellant before us is the owner of survey No. 159 of the village Vemulavada while defendants 1 and 2 are owners of survey No. 158 lying to the north of survey No. 159 and adjoining. The defendant No. 3 is the owner of a field lying to the north of survey No. 158. To the south. of survey No. 159 is survey No. 160 belonging to the brother of the plaintiff. Immediately beyond this field and to the south are a "parallel drain", into which flow the waters of the Vakada drain, and Tulyabhaga drain both running west to east. It would appear that the parallel drain is an artificial drain while the Tulyabhaga is a natural drain. The parallel drain end,% abruptly at the eastern end of survey No. 150 at a distance of about two furlongs or so to the east of survey No. 160. According to the plaintiff rain water falling on survey nos. 160 and 159 flows in the northern direction over survey No. 158 and then enters into a drain shown in the map and indicated by the letters EE. In normal times the water in this drain flows towards the south and empties itself in the Tulyabhaga drain. 838 Sometime before the institution of the suit the defendants 1 and 2 constructed a bund running approximately east west on their own land. Its height, according to the Commissioner, varies between 3 and 8 and its width is about 16 '. Its length is reported by the Commissioner to be 1580. Apparently the bund is not a continuous one and there are a few gaps in it. About 5 to the south of the bund the defen dants had dug several trenches 15 ' in width and between 2 ' and 4 ' in depth. These trenches run along a foot path which separates the fields of the parties. The plaintiff 's grievance is that as a result of what the defendants 1 and 2 have done flood water flowing from his field in the northerly direction cannot find an outlet and stagnates on his land thus doing damage to his crops. Further, according to him as a result of the digging of the pits the level of his land adjoining the footpath is gradually decreasing with the result that the top soil of his field is being washed away. He, therefore, sought a mandatory injunction directing the defendants to fill up the trenches and demolish the bunds raised by them. The plaintiff claims the right of drainage of all water falling on or invading his land including flood water on the basis of immemorial user. The defence of the first two defendants was that the land actually slopes from north to south, that rain water and flood water naturally flow from the north to the south and that the plaintiff 's grievance is wholly imaginary. They deny the existence of immemorial user upon which the plaintiff rested his case. They admitted that flood waters do stagnate on the plaintiff 's land. This, according to them, was a result of the closing of some vents in the Vakada drain by the ryots of that village as a result of which the water collected in that drain during heavy rains cannot find its natural outlet and floods the lands of a number of people including the plaintiff 'section The bund erected by the defendants was, according to them to protect their lands from being inundated by the flood waters of the Vakada drain and that it was open to the plaintiff to do likewise by constructing dams at appropriate places 839 in his field and thus keep back the flood waters of the Vakada drain. Both the courts below arrived at the following findings of fact: (1) The land dips in the northerly direction. (2) That a number of fields including fields nos. 158, 159 and 160 lie in a sort of a basin with elevations along the eastern and western boundaries into which drainage and rain water from all sides tends to accumulate. (3) Ordinarily the surplus water from lands adjacent to the basin as well as rain water falling on the land in the basin is drained off from north and then finds its way in the drainage channel EE which runs north south and drains it into the Tulyabhaga drain. (4) Whenever due to heavy rain Tulyabhaga drain is in spate the flood water which collects in the basin cannot flow through the channel EE and flows in the northerly direction towards another channel called Kongodu channel and that this is what has been happening from time immemorial. (5) Whenever there is heavy rain the Vakada drain swells up and water therefrom floods survey Nos. 153 to 160. (6) That this has, been happening since time immemorial and that the defendant 's contention that this is because of something done in recent times is not correct. (7) That the inundation of the appellant 's land in the further flow of water northwards is not unusual, abnormal or occasional due to extraordinary floods but is an event which occurs every year in the usual course of nature. The High Court, however, came to the conclusion that the flooding of fields Nos. 153 to 160 because of the swelling of the Vakada drain is not something which has been happening from time immemorial but only subsequent to the year 1924, that the flooding of these lands was not a usual and natural phenomenon but something unusual and that water being a common enemy of all, the defendants 1 and 2 were within 840 their rights in constructing the bunds and digging trenches. According to the High Court the plaintiff had no right to prevent the defendants from taking the steps that they are taking and that a custom to allow flood water to flow over the neighbour 's land has not been so far established. We may mention here that the High Court had actually called for certain additional findings from the appellate court and one of the questions raised was whether there was an immemorial user as contended by the plaintiff to let out Vakada drainage water beyond certain points. In coming to the conclusion that the plaintiff has not been able to establish immemorial user in respect of the right claimed by him of draining of flood waters from his field on to the defendants the High Court has ignored the clear finding of the lower appellate court on this point. We find that there is no justification for the course adopted by the High Court. In para 17 of its judgment it has observed as follows: "It is well established on the evidence that from time immemorial flood water, as well as the surplus water, and the water from Vakada and Vemulavada, all collect and flow northwards through the cradle or basin in which the suit lands are situate, when the level of the water in Tulyabbaga is such as not to admit the flow of such water into it. It has been customary from time immemorial for the said water, under such circumstances, to go northwards from the plaintiff 's fields onwards over the defendants ' fields, and the further fields beyond". After remand the lower appellate court reiterated its conclusion and observed as follows in para 14 of its findings: "On the evidence on record and for the reasons I have given above I am of opinion that the oral evidence either way is inadequate, but on such little, evidence as available and on the probabilities of the case and relying upon the evidence of P. W. 4 and the clear indication of the existence of local drain Exhibit P 4, I would find that the Vakada drain 841 water should have been getting into parallel drain and through EE and F into Tulyabhaga drain for a considerably long period of time, at least from somewhere about the year 1920". Earlier in its order the lower appellate court has observed: "In my opinion the parallel drain should have existed at least from the year 1924, if not many years before that". It would thus be clear that even in the revised finding the appellate court has not been able to fix the precise year of commencement of the phenomenon. It would, therefore, follow that upon the evidence available in this case the proper inference to be drawn would be that this phenomenon has been known from time immemorial. A phenomenon is said to be happening from time immemorial when the date of its commencement is not within the memory of man or the date of its commencement is shrouded in the mists of antiquity. No doubt the lower appellate court has referred to the years 1920 and 1924 in its finding but it has not said that the phenomenon was observed for, the first time in 1924 or even in 1920 It has made it quite clear that the phenomenon was known to be happening in these years and that it must have been happening for many years prior to that. The basis of the plaintiff 's claim is not the natural right of the owner of higher land to drain off water falling on his land on to lower lands but the basis is that this right was being exercised with respect to the land of the defendants 1 and 2 from time immemorial. The finding of fact of the lower appellate court being in his favour on this point his suit must succeed. The High Court, following certain English decisions, came to the conclusion that water being the common enemy, every owner of land had a right to protect himself against it and in particular to protect himself from the ravages of such unusual phenomenon as floods. Some of the cases upon which the High Court. has relied deal with the rights of riparian owners and are thus not strictly appropriate. 106 842 The High Court seems to be of the opinion that the floods, as a result of which the plaintiff and the defendants suffer damage, are an unusual phenomenon. Here again, the High Court has gone wrong because the lower appellate court has found that these floods were a usual occurrence. Where a right is based upon the illustration (1) to section 7 of the (5 of 1882), the owner of higher land can pass even flood water received by him on to the lower land, at any rate where the flood is a usual or a periodic occurrence in the locality. The High Court has quoted a passage from Coulson and Forbes on Waters and Land Drainage (1) and a passage from the judgment in Nield vs London & North Western Railway (2) in support of its conclusions. In the passage in Coulson & Forbes it is stated that the owner of land must not take active steps to turn the flood water on to his neighbor 's property. Here, the dam erected by the defendants 1 and 2 stems flood waters going from plaintiffs land down to the defendant 's land and so the passage does not support the conclusion of the High Court. The decision in Nield 's case (2) is further based on the "common enemy" doctrine. In that case also there are certain observations which would militate against the conclusion of the High Court For instance: "where, indeed, there is a natural outlet for natural water, no one has a right for his own purposes to diminish it, and if he does so he is, with some qualification perhaps, liable to any one who is injured by his act, no matter where the water which does the mischief came into the water course. " Of course, the court in that case was dealing with water flowing along a natural water course. But the point is whether a person has a right to create ail impediment in the flow of water along its natural direction. Now the water on a higher ground must by operation of the force of gravity flow on to lower ground. Where the owner of the lower ground by creating an embankment impedes the natural flow of water he would be obstructing the natural outlet for that water. It makes little difference that the water (1) 6th Ed., p. 191. (2) (1874) L.R. TO Ex 4. 843 happens to be not merely rain water but flood water provided the flood is of the kind to which the higher land is subjected periodically. In England the early extension of the common drains all over the country under the supervision of the Commissioners of Sewers has rendered a discussion on the rights of flow of surface water needless and, therefore, there are no modern decisions upon the question. But old precedents show that the common law rule appears to be the same as that under civil law. In a case arising in Guernsey (1) the Privy Council has applied the rule of civil law to that island. That this is adopted by the common law would appear from the decision in Nelson vs Walker (2). The rule of civil law according to Domat is quoted thus at p. 2586 of Waters and Water Rights, Vol. III, by Farnham: "If waters have their course regulated from one ground to another, whether it be the nature of the place, or by some regulation, or by a title, or by an in ancient possession, the proprietors of the said grounds cannot innovate anything as to the ancient course of the water. Thus, he who has the upper grounds cannot change the course of the waters, either by turning it some other way, or rendering it more rapid, or making any other change in it to the prejudice of the owner of the lower grounds. . . " The learned author, after a discussion of old English cases on the point, has stated that the common law regarded the flow of rain water along natural courses as one of its doctrines and that there is no general right thereunder to fight surface water as a common enemy. The author has then observed: "All rightful acts with regard to it are confined within very narrow limits which have not yet been fully defined. And to state generally that such water is a common enemy, or that there is a right to fight it at common law, cannot be otherwise than misleading". (p. 2590). After discussing a number of precedents from the (1) Gibbons vs Lenfestey A.K.I.R. (2) ; 844 American State Courts he has pointed out that the common enemy doctrine is of very recent origin he has observed at p. 2591: "That surface water is not a common enemy, and that there is no right to fight it according to the pleasure of the landowner, clearly appear from the principles which have already been stated. " We must, therefore, distinguish between cases pertaining to riparian lands and cases like the present. But as pointed out in Niela 's case (1) the only right which a riparian owner may have is to protect himself against extraordinary floods. But even then Jae would not be entitled to impede the flow of the stream &long its natural course (2). We may repeat that the finding here is that, the floods from which the defendants 1 and 2 are seeking to protect themselves are not of an extraordinary type. In the circumstances, therefore, the bund erected by them and the trenches dug up by them must be held to constitute a wrongful act entitling the plaintiff to the reliefs claimed by him. For these reasons we allow the appeal, set aside the judgment of the High Court and restore that of the subordinate judge. The costs throughout will be borne by the defendants respondents. Appeal allowed. (1) (1874) L.R. 70 Ex 4. (2) Menzies vs Breadalbane, (1828) 3 Bhgh (N. section) 414; 4 E.R.I. 387.

IN-Abs

The respondents 1 and 2 constructed a bund on their own land and dug trenches with a view to protect their lands from being inundated by the flood waters of the Vakada drain; as a result of that, the flood water flowing from appellant 's field in the Northerly direction could not find an outlet and stagnated on his land thus doing damage to his crops. The appellant based the right of drainage in the Northerly direction of all water falling on or invading his land including flood water on immemorial user, and not on the natural right of the owner of higher land to drain off water failing on his land on to lower lands. The Courts below found inter alia that the inundation of the appellant 's land was not unusual, abnormal or occasional but was. an event which occurred every year in the usual course of nature, and was a happening from time immemorial. The High Court came to the conclusion that the flooding of the fields was not an event recurring periodically from time immemorial but something unusual and that water being a common enemy of all, the defendants Nos. 1 and 2 were within their rights in constructing the bunds and digging the trenches. The point was whether a person had right to create an impediment in the flow of water along its natural direction. Held, that a 'phenomenon ' can be said to have been happening from time immemorial if the date when it first occurred was not within the memory of a man or was shrouded in the mist of antiquity. Where the court upon the evidence available was unable to fix the precise year of commencement of the phenomenon, the proper inference would be that the phenomenon had been known to occur from time immemorial. Held, further, that the only right the riparian owner may have, is to protect himself against extraordinary floods, but even then he would not be entitled to impede the flow of the stream along its natural course. When the owner of the lower ground by creating an embankment impedes the natural flow of water he would be obstructing the natural outlet for that water. It would make little difference that the water happened to be not merely rain water, but flood water provided the flood water was of a kind to which higher land was subjected perodically. 837 In the present case the bund erected and the trenches dug up by the respondents 1 and 2 causing stagnation of flood water constituted a wrongful act.

Appeals Nos. 448 and 449 of 1959. Appeals by special leave from the judgment and order dated February 12, 1958, of the Patna High Court in Misc. Judicial Cases Nos. 679 and 680 of 1955. A. V. Viswanatha Sastri and Naunit Lal, for the appellant (In both the appeals). A. N. Kripal and D. Gupta, for the Respondent (In both the appeals). January 5. The Judgment of the Court was delivered by KAPUR, J. These appeals by the assessee are brought against two judgments and orders of the High Court of Judicature at Patna in Income tax references under section 66(2) of the Income Tax Act answering the questions in the negative and against the assessees. The questions were: (1). "Whether on the facts and circumstances of this case Rs. 72,963 12 0 was a revenue expenditure deductible under section 10(2)(iii) or under section 10(2)(xv) of the Indian Income Tax Act?" (2). "Whether on the facts and circumstances of this case Rs. 76,526 1 3 was a revenue expenditure deductible under section 10(2)(iii) or under section 10(2)(xv) of the Indian Income tax Act?" The facts of the appeals are these: The appellant was an employee of M/s. Karam Chand Thapar & Bros. and for each of the accounting years relating to the assessment years 1947 48 and 1948 49 his salary was Rs. 10,572. He also had an income of Rs. 500 from shares in certain joint stock companies. On December 20, 1945, he entered into a contract with 361 Bengal Nagpur Coal Company Ltd., for raising coal from Bhaggatdih Colliery, Jharia and actually started his business from January 1, 1946. Evidently he did not have the requisite funds for his business and therefore in order to finance it, he entered into an agreement with the Mohini Thapar Charitable Trust on February 25, 1946. The trust is a public charitable trust, which was created by Lala Karam Chand Thapar, who constituted himself as the Managing Trustee. The relevant terms of this agreement between the appellant and the trust were that the trust was to advance a sum upto Rs. 11 lacs, the contract was to be "carried in accordance of the policy" settled between the appellant and the trust; the trust could withdraw its money at any time and to stop further advances; the trust was not to be liable for any losses; the appellant was to send monthly returns to the trust and the seventh clause was "that in consideration of the trust having agreed to finance my said contract business up to Rs. 11/2 lacs I have agreed to pay to the trust interest on the amount from time to time owing to the trust in respect of the monies to be advanced as above at the rate of 6 p.c. per annum in addition to a sum equivalent to 11/16th of the net profits of this business of mine. " In pursuance of this agreement the appellant, besides interest, paid to the trust the sum of Rs. 72,963 for the first accounting year and Rs. 76,526 1 3 for the second accounting year corresponding to years of assessment 1947 48,1948 49 and claimed these amounts as allowable deductions under section 10(2)(iii) or under section 10(2)(xv) of the Income tax Act. The amount of interest has been allowed but the claim in regard to the other sums paid was disallowed by the Income tax Officer on the ground that the agreement was not genuine and bona fide and that it was not prompted by ordinary business considerations. The matter was taken in appeal to the Appellate Assistant Commissioner who upheld the order of the Income tax Officer. An appeal to the Income tax Appellate Tribunal was also dismissed and so was an application 46 362 for reference under section 66(1), but the High Court directed the Tribunal to state the case on the questions set out above. For the two assessment years the question was the same excepting for the amounts claimed as allowable deductions. In its order dated April 4, 1955, the Appellate Tribunal had found that the payments were not for the purpose of the business and that taking into account the nature of the accounts, the nature of the payments and the relationship between the parties, it could not be said that the amounts were wholly and exclusively laid out for the purpose of the business and therefore rejected the claim. In the statement of the case the Tribunal has said that the average amount which had been advanced by the trust to the appellant in the first year was Rs. 18,100 and the payments made to the trust in the two years were therefore a share of profits and not expenditure laid out wholly and exclusively for the purposes of the business. The High Court approached the question from the same angle. It was of the opinion that the question should be determined on principles of ordinary commercial trading and because the Managing Trustee was in a dominating position and only a small sum of money i.e., Rs. 18,100 on an average had been advanced, the payment of Rs. 72,963 in addition to interest was an absurdly large sum which with the interest paid work ed) out at about 400% interest. The High Court also took into consideration the fact that the appellant was an employee of Lala Karam Chand or his company. Put in their own words the High Court observed "having regard to the relationship between the parties and having examined the clauses of the agreement of the 25th February, 1946, between the assessee and the board of trustees I am of the opinion that the real legal position in this case is that there is a joint adventure between the parties, a quasi partnership which falls something short of partnership and that the arrangement between the parties was that the amount of profits should be ascertained and then they shall divide it up in certain specified proportions". 363 The payments, therefore, did not fall within section 10(2) (xv). The question was therefore answered in the negative and against the assessee. The appellant has come in appeal to this Court by special leave. As far as the record goes at the relevant time the appellant was a person of comparatively small means. No doubt he was getting a salary of Rs. 10,572 a year and had about Rs. 500 from his share holdings but beyond that he does not seem to have had any other means. There is nothing to show on the record that he had any security to offer or did offer for the money that he was borrowing. Thus the trust was lending monies to the extent of Rs. 11/2 lakhs without security and upon a venture which might or might not have been successful. The Tribunal and the High Court seem to have fallen into an error by taking a mean of the advances made by the Trust to the appellant during the first accounting year. The record shows that the advances were very considerable in the first year ranging from Rs. 12,000 in January 1946 to Rs. 1,86,000 in July of that year and in the following months of that year they ranged from Rs. 59,000 to Rs. 7,000. In the following years beginning from the end of 1946 to 1953 considerable sums of money had been advanced which ranged on an average from Rs. 1,97,000 in 1947 to Rs. 3,17,000 in 1953. In regard to 1947, the Tribunal has found that the average amount of loan was Rs. 1,20,317 but according to the figures supplied by the appellant in his petition for special leave to appeal to this Court, the average comes to Rs. 1,97,919. In any case very considerable sums of money had been advanced by the Trust and as we have said above to a person who was not a businessman, who neither gave nor is shown to have been able to give any security. The agreement between the appellant and the trust has to be considered in the context of those circumstances and if taking all the surrounding circumstances into consideration the trust found it necessary to have control over the working and over the finances and had offered stringent conditions it is not a matter which can be considered to be abnormal. 364 Another matter which was taken into consideration by the Tribunal was that the amounts claimed as deductible items were shown as a share of profits of the trust which had been debited in the appellant 's profit and loss appropriation account or in other words the appellant as per his accounts admitted that it was an appropriation of the profits to the trust. The Tribunal thus was of the opinion that the interest to be received by the Trust was 11/16 part of the profits of the appellant 's business and that the method of accounting clearly showed that the appellant was only parting with the share of profits. This, in our opinion, is an erroneous approach to the question. The case has to be decided according to the tenor of the document as it stands and the circumstances of the case. The genuineness of the document has not been challenged though an effort was made by the Revenue to so construe the document and so read the facts as to make both the amounts liable to tax in the hands of the appellant. As to what is a deductible expense has to be viewed in the circumstances of each case. In Commissioner of Income tax vs Chandulal Keshavlal (1) this Court observed that in deciding whether a payment of money is a deductible expenditure, one has to take into consideration the question of commercial expediency and the principles of ordinary commercial trading. If the payment or expenditure is incurred for the purpose of the trade of the assessee it does not matter that the payment may enure for the benefit of a third party. Another test laid down in that case was whether the transaction is properly entered into as a part of the assessee 's legitimate commercial undertaking in order to facilitate the carrying out of its business and it is immaterial that a third party also benefits thereby. Thus in cases like the present one, in order to justify the deduction the sum given up must be for reasons of commercial expediency. It may be voluntary but so long as it is incurred for the assessee 's benefit e.g. the carrying on of his business, the deduction would be claimable. In Commissioner of Income tax, (1) 365 Bombay vs Jaggannath Kissonlal (1) the assessee executed a promissory note jointly with another person in order to raise the money for himself and for the other. The other person became insolvent and the assessee had to. pay the whole amount and claimed that amount as an allowable deduction under section 10(2)(xv) and it was found that it was a practice in the Bombay market to borrow money on such promissory notes and there was an element of mutuality in the transaction. The loss sustained by the assessee was allowed as a deductible item on the basis that a commercial practice of financing the business by borrowing money on joint and several liability was established. In another case decided by this Court M/s. Haji Aziz & Abdul Shakoor Bros. vs The Commissioner of Income tax (2) it was held that the expenses which are permitted as deductible are such as are made for the purpose of carrying on the business i.e. to enable a person to carry on business and earn profits in that business and the disbursements must be such which are for the purpose of earning the profits of the business. See also Strong and Company of Romsey Ltd. vs Woodifield (3). These cases therefore show that if any amount is expended which is commercially expedient and is expended for the purpose of earning profits it is a deductible expenditure. In support of their opinion the High Court relied upon the cases hereinafter mentioned but in our opinion they do not apply to the facts and circumstances of this case. The first case referred to is Pondicherry Railway Company vs Commissioner of Income Tax, Madras (4). In that case the assessee company, incorporated in the United Kingdom, obtained a concession of constructing a railway in the territories of Pondicherry. The assessee company was to pay to the French Government 1/2 of its net profits. The French Government on its part gave land on which the railway was to be built free of charge and also agreed to pay a subsidy. The question for decision in that case was whether the monies paid by the (1) ; (3) ; (2) ; (4) [1931] L.R. 58 I.A. 239. 366 assessee company to the French Government i.e., of its net profits were allowable as a deduction under the provisions corresponding to section 10(2)(xv). Lord Macmillan observed at p. 251: "A payment out of profits and conditions on profits being earned cannot accurately be described as a payment made to earn profits. It assumes that profits have first come into existence. But profits on their coming into existence attract tax at that point, and the revenue is not concerned with the subsequent application of the profits. " But these observations have been later on explained in other cases to which reference will be made presently. In Union Cold Storage Co. Ltd. vs Adamson (1) the assessee leased lands and premises abroad reserving a rent of pound 9,60,000. It was also provided in the deed that if at the end of the financial year it was found that after providing for this rent the result of the company 's operations was insufficient to pay interest on charger, and debentures etc., the rent for the year was to be abated to the extent of the deficiency. In computing its profits the assessee company claimed the sums of rent paid in two respective years. They were held not payable out of the profits or. gains and were allowable deductions. At page 318 Rowlatt J. said that the sum which was to be paid by the company was a recompense in respect of possession and use of the premises abroad and the company had entered into some liabilities by way of payment for their premises and that payment was an outgoing of the business which was to be provided for and allowed before profits of the business could be ascertained. In the House of Lords Lord Macmillan distinguished the Pondicherry case,(1) by saying that in that case the ascertainment of profits preceded the coming into operation of the obligation to pay and when profits had been ascertained the obligation was to make over thereof to the French Government. Dealing with the passage above referred to Lord Macmillan said at p. 331: "I was dealing with a case in which the obligation was, first of all, to ascertain the profits in a (1) (2) (1931) L.R. 8 I.A. 239. 367 prescribed manner, after providing for all outlays incurred in earning them, and then to divide them. Here the question is whether or not a deduction for rent has to be made in ascertaining the profits, and, the question is not one of the distribution of profits at all." In Tata Hydro Electric Agencies Limited, Bombay vs The Commissioner of Income tax, Bombay Presidency (1) the Tata Power Co. entered into an agency agreement with Tatasons Ltd. agreeing to pay to Tatasons Ltd. a commission of 10% on the annual net profits of Tata Power Co., subject to a minimum whether any profits were made or not. Later on two persons D and S advanced funds to Tata Power Company on the condition that in addition to the interest payable to them by Tata Power Company they should each receive from Tatasons Ltd., 12 1.2% of the commission earned by Tatasons Ltd. Tatasons Ltd. assigned their entire right to the assessee company and the Tata Power Company entered into a new agency agreement with the assessee company and the assessee company received a commission and out of that paid 1/4 to D and section Relying on Pondicherry Railway case (2) the Bombay High Court held that that was not an allowable deduction as expenditure incurred solely for earning profits. On appeal the Privy Council held that Pondicherry case did not govern the case. The nature of the transaction was held to be this that the obligation to make the payments was undertaken by the assessee company in consideration of its acquisition of the right to property to earn profits i.e. of the right to conduct the business and not for the purpose of producing profits in the conduct of the business. Dealing with Pondicherry Railway case (2) Lord Macmillan said: "In the Pondicherry case the assessees were under obligation to make over a share of their profits to the French Government. Profits had first to be earned and ascertained before any sharing took place. Here the obligation of the appellants to pay (1) [1937] L. R. 64 I.A. 215. (2) (1931) L.R. 58 I.A. 239. 368 a quarter of the commission which they receive from the Tata Power Co. Ltd. to F. E. Dinshaw Ltd., and Richard. Tilden Smith 's administrators is quite independent of whether the appellants make any profits or not." and at page 225 Lord Macmillan said: "In short, the obligation to make these payments was undertaken by the appellants in consideration of their acquisition of the right and opportunity to earn profits, that is, of the right to conduct the business, and not for the purpose of producing profits in the conduct of the business. " At page 226 the Privy Council accepted the following test laid down by Lord President in Robert Addie & Sons ' Collieries, Ltd. vs Commissioners of Inland Revenue (1) where it is observed: "What is 'money wholly and exclusively laid out for the purposes of the trade ' is a question which must be determined upon the principles of ordinary commercial trading. It is necessary, accordingly, to attend to the true nature of the expenditure, and to ask oneself the question, Is it a part of the Com pany 's working expenses; is it expenditure laid out as part of the process of profit earning". In Commissioner of Income tax, Bombay Presidency vs Tata Sons Ltd. (2) the company received a commission on the basis of profits. The managed company was in urgent need of money and the assessee company found a financier a Mr. Dinshaw and an agreement was entered into with the managed company and Mr. Dinshaw by which the latter agreed to lend a crore of rupees on the condition that the assessee company assigned to him a share in the commission which the assessee company might receive from the managed company. That was held to be an agreement on the part of the assessee company to share their commission with Mr. Dinshaw and it was a part of the arrangement on which the assessee company obtained finance and therefore the payment to Mr. Dinshaw was an expenditure solely for the purpose of earning profits or gains and it was not of a capital nature. At (1) (2) 369 page 203 Beaumont C.J. said that the question whether the payment of a part of the commission to a third person can be regarded as expenditure incurred solely for the purpose of earning that commission is a question which must be answered on the facts of each case on a commercial basis. In The Indian Radio and Cable Communications Company Ltd. vs The Commissioner of Income tax, Bombay (1) it was observed that it was not universally true to say that a payment the making of which is conditional on profits being earned cannot properly be described as an expenditure incurred for the purpose of earning such profits. Lord Maugham in explaining the judgment in the Pondicherry Railway case (2) said at page 278: " To avoid misconception it is proper to say that in coming to this conclusion they have not taken the view that the case is governed by the decision in Pondicherry Railway Co. Ltd. vs Commissioner of Income tax, Madras, though that case no doubt shows light on the nature of the problem which has to be solved in the present case. It should perhaps be added that a sentence in the judgment in that case has been explained, if explanation was necessary, by Lord Macmillan in the subsequent case of W. H. E. Adamson vs Union Cold Storage Company. " As to when a deduction is claimable and when it is not, it was said at page 277 that if a company had made an apparent net profit and then had to pay to a director as a contractual recompense, the net profit would be the difference between the two but if there was a contract to pay a commission on the net profits of the year it must necessarily be held to mean as net profits before the deduction of the commission. In British Sugar Manufacturers Ltd. vs Harris (3) the assessee company agreed to pay two other companies a certain percentage of its annual profits after deduction of expenses and debenture interest in consideration of their giving to the assessee company the full benefit of their technical and financial knowledge (1) (2) [1931] L.R. 58 I.A. 239. (3) 47 370 and experience. Certain payments were made in pursuance of that agreement and it was held that payments under the agreement were permissible deductions in computing the assessee company 's profits. Dealing with the Pondicherry Railway case, (1) at page 548, the learned Master of the Rolls said: " It is to be observed that Lord Macmillan in that paragraph was quite clearly using the word I profit ' in one sense and one sense only; he was using it ' in the sense of the I real net profit ' to which Lord Maugham referred. That he was doing that is, I think, abundantly clear when the nature of the contract there in question is considered, which was merely a contract under which a percentage of profits was payable by the railway company to the French Government. There was no question of services or anything of that kind in the case; it was merely a sum payable out of profits. I do not find myself constrained by that expression of opinion, because it must be read; as Lord Macmillan has said in a subsequent case Union Cold Storage Co. Ltd. vs Adamson (2 ) at pp. 331 2, in relation to the particular subject matter with which he was dealing. " As has been said above the question to be considered in this case is governed by the observations of this Court in Commissioner of Income tax vs Chandulal Keshavlal & Co. (3) and the circumstances under which the trust agreed to lend the appellant such a large sum of money shows the true nature of the transaction. On the facts proved in the present case the Trust agreed to finance the business of the appellant on the terms set out in the agreement and there is nothing to show that he could have made any better arrangements or would not have lost the contract if he had failed to enter into the agreement i.e. the agreement to pay the amounts in dispute. Therefore in a commercial sense the payments were an expenditure wholly and exclusively laid out for the purpose of the business. In our opinion, therefore, the High Court was in error and the question referred should have been (1) [1931] L.R. 58 I.A. 239. (2) , 331 32. (3) 371 answered in the affirmative in favour of the appellant. The appeals are, therefore, allowed and the judgments, and orders of the High Court are set aside. The appellant will have his costs in this Court and in the High Court. One hearing fee. Appeals allowed.

IN-Abs

The assessee entered into a contract for working certain collieries. As he did not have the requisite funds, he entered into an agreement with M whereunder M was to advance a sum upto Rs. 11/2 lacs, but could withdraw the money at any time and stop further advances and was not liable for any losses; the assessee was to pay interest on the advances at 6% per annum in addition to a sum equivalent to 11/16th of the net profits of the business. In pursuance of the agreement M made advances to the assessee and the assessee paid interest and 11/16th of his net profits to M. The assessee claimed these amounts paid to M as allowable deductions under section 10(2)(iii) or under section 10(2)(xv) of the Income tax Act. The amount paid as interest was allowed but the other sums paid were not allowed on the ground that these sums were not wholly and exclusively laid out for the purpose of the business. Held, that the assessee was entitled to the deductions claimed. The case had to be decided according to the tenor of the agreement and the circumstances of the case. In order to justify the deduction of the sum given up had to be for reasons of commercial expediency; it may be voluntary but so long as it was incurred for the assessee 's benefit, e.g., the carrying on of his business, the deduction was claimable. In the present case there was nothing to show that the assessee could have made any better arrangements or would not have lost the contract had he not entered into the agreement with M. Therefore in a commercial sense the payments were an expenditure wholly and exclusively laid out for the purpose of the business. Commissioner of Income tax vs Chandulal Keshavlal, , followed. Commissioner of Income tax, Bombay vs M/s. jaggannath Kissonlal; , , M/s. Haji Aziz & Abdul Shakoor Bros. vs The Commissioner of Income tax, ; , and Strong vs Woodifield, ; , relied on. Pondicherry Railway Company vs Commissioner of Income tax, Madras, (1931) L.R. 58 I.A. 239, distinguished. Union Cold Storage Co. Ltd. vs Adamson, , 360 Tata Hydro Electric Agencies Ltd., Bombay vs The Commissioner of Income tax, Bombay Presidency. (1937) L.R. 64 I.A. 215, Robert Addie & Sons ' Colleries, Ltd, vs Commissioners of Inland Revenue, , Commissioner of Income tax, Bombay Presidency vs Tata Sons Ltd. , The Indian Radio and Cable Communications Company Ltd. vs The Commissioner of Income tax, Bombay, , British Sugar Manufacturers Ltd. vs Harris, , referred to.

Appeal No.84 of 1960. 888 Appeal from the judgment and decree dated July 26, 1956. of the Bombay, High Court in Appeal No. he 138 of 1956. The appellant in person. B. R. L. Ayengar and D. Gupta, for the respondent. April 12. The Judgment of the Court was delivered by SINHA, C. J. The main question for decision in this appeal, on a certificate of fitness granted by the ' High Court of Judicature at Bombay, is whether a public servant, who has been officiating in a higher post but has been reverted to his substantive rank as a result of an adverse finding against him in a departmental enquiry for misconduct, can be said to have been reduced in rank within the meaning of section 240(3) of the Government of India Act, 1935. The learned Civil Judge, Senior Division, by his, Judgment and Decree dated October 31, 1955, held that it was so. The High Court of Bombay, on a first appeal from that decision, by its Judgment and Decree dated July 26, 1956, has held to the contrary. In so far as it is necessary for the determination of this appeal, the facts of this case may shortly be stated as follows. The appellant was holding the rank of a Mamlatdar in the First Grade and Was officiating as a District Deputy Collector. In the latter capacity he was functioning as a District Supplies Officer. He had to undertake tours in the discharge of his official duties for which he maintained a motor car. In respect of one of his travelling allowance bills, it was found that he had charged travelling allowance in respect of 59 miles whereas the correct distance was only 51 miles. A departmental enquiry was held against him as a result of which he was reverted to his original rank as Mamlatdar, by virtue of the Order of the Government dated August 11, 1948, (exhibit 35), which was to the following effect: "After careful consideration Government have decided to revert you to Mamlatdar for a period of 889 three years and have further directed that you should refund the excess mileage drawn by you in respect of the three journeys. " The appellant made a number of representations to the Government challenging the correctness of the findings against him and praying for re consideration of the Order of Reversion passed against, him but to no effect, in spite of the fact that ultimately the Accountant General gave his opinion that the appellant had not overcharged and that there was no fraud involved in the travelling allowance bill which was the subject matter of the charge against him. But ultimately, by a Notification date& March 26, 1951, (exhibit 61), the appellant was promoted to the Selection Grade with effect from August 1, 1950, but even so the Order of Reversion passed against the appellant remained effective and appears to have affected his place in the Selection Grade. Eventually, the appellant retired from service on superannuation with effect from November 28, 1953. He filed his suit against the State of Bombay on August 2, 1954, for a declaration that the Order of the Government dated August 11, 1948, was void, inoperative, wrongful, illegal and ultra vires, and for recovery of Rs. 12,866 odd or account of his arrears of salary, allowances, etc. with interest and future interest. The learned Civil Judge Senior Division, at Belgaum, came to the conclusion that the first part of the departmental enquiry held against the plaintiff leading up to the findings against him was free from any defect but that he had no been given the opportunity of showing cause against the punishment proposed to be inflicted upon him a a result of those findings, in so far as no show cause notice was given to him nor a copy of the enquire, report showing the grounds on which the findings ha, been based. There was, thus, according to the finding of the Trial Court, no full compliance with the requirements of section 240(3) of the Government of India Act 1935. The Court also held that the Order of Reversion amounted to a penalty imposed upon the plaintiff as a result of the enquiry. The Court, therefore, cam 890 to the conclusion that the Order aforesaid passed by the Government reverting him to the substantive rank was void and granted him that declaration, but dismissed his suit, with costs, in respect of the arrears Claimed by him as aforesaid on the ground that it was based on tort and not on contract. There was an appeal by the plaintiff in respect of the dismissal of his claim for arrears, and cross objections by the State in respect of that part of the judgment and decree which had granted declaration in favour of the plaintiff. The High Court dismissed the appeal by the plaintiff and allowed the cross objections of the de fendant respondent in respect of the declaration, but made no orders as to the costs of the appeal and the cross objections. The High Court held that the Order of Reversion, even assuming that it was a punishment as a result of the departmental enquiry against the appellant, was not a punishment within the meaning of section 240(3) of the Government of India Act, 1935. It also held that the Order of Reversion was not a punishment at all. In this Court, the appellant, who has argued his own case with ability, has urged in the first place, and in our opinion rightly, that his case is covered by the observations of this Court in Parshotam Lal Dhingra vs Union of Indid (1). Those observations are as follows: "A reduction in rank likewise may be by way of punishment or it may be an innocuous thing. If the Government servant has a right to a particular rank, then the very reduction from that rank will operate as a penalty, for he will then lose the emoluments and privileges of that rank. If, however, he has no right to the particular rank, his reduction from an officiating higher rank to his substantive lower rank will not ordinarily be a punishment. But the mere fact that the servant has no title to the post or the rank and the Government has, by contract, express or implied, or under the rules, the right to reduce him to a lower post does not mean that an order of reduction of a servant to a lower (1) , 863 64. 891 post or rank cannot in any circumstances be a punishment. The real test for determining whether the reduction in such cases is or is not by way of punishment is to find out if the order for the reduction also visits the servant with any penal consequences. Thus if the order entails or provides for the forfeiture of his pay or allowances or the loss of his seniority in his substantive rank or the stoppage or postponement of his future chances of promotion, then that circumstance may indicate that although in form the Government had purported to exercise its right to terminate the employment or to reduce the servant to a lower rank under the terms of the contract of employment or under the rules, in truth and reality the Government has terminated the employment as and by way of penalty. The use of the expression "termi nate" or "discharge" is not conclusive. Tn spite of the use of such innocuous expressions, the court has to apply the two tests mentioned above, namely, (1) whether the servant bad a right to the post or the rank or (2) whether he ha,,; been visited with evil consequences of the kind hereinbefore referred to? If the case satisfies either of the two tests then it must be held that the servant has been punished and the termination of his service must be taken as a dismissal or removal from service or the reversion to his substantive rank must be regarded as a reduction in rank and if the requirements of rules and article 311, which give protection to Government servant have not been complied with, the termination of the service or the reduction in rank must be held to be wrongful and in violation of the consti tutional right of the servant. " He has rightly pointed out that he would have continued as a Deputy Collector but for the Order of the Government, dated August 11, 1948, impugned in this case, as a result of the enquiry held against him, and that his reversion was not as a matter of course or for administrative convenience. The Order, in terms, held him back for three years. Thus his emoluments, present as well as future, were adversely affected by the 892 Order aforesaid of the Government. In the ordinary course, he would have continued as a Deputy Collector with all the emoluments of the post and would have been entitled to further promotion but for the setback in his service as a result of the adverse finding against him, which finding was ultimately declared by the Account ant General to have been under a misapprehension of the true facts. It is true that he was promoted as a result of the Government Order dated March 26, 1951, with effect from August 1, 1950. B ' that promotion did not entirely cover the ground lost by him as a result of the Government Order impugned in this case. It is noteworthy that the Judgment of the High Court under appeal was given in July, 1956, when the decision of this Court in Dhingra 's case (1) had not been given. The decision of this Court was given in November, 1957. Of the two tests laid down by this Court, certainly the second test applies, if not also the first one. He may or may not have a right to hold the post or the rank, but there is no doubt that he was visited with evil consequences. Ordinarily, if a public servant has been officiating in a higher rank it cannot be said that he has a substantive right to that higher rank. He may have to revert to his substantive rank as a result of the exigencies of the service or he may be reverted as a result of an adverse finding in an enquiry against him for misconduct. In every case of reversion from an officiating higher post to his substantive post, the civil servant concerned is deprived of the emoluments of the higher post. But that cannot, by itself, be a ground for holding that the second test in Dhingra 's case (1), namely, whether he has been visited with evil consequences, can be said to have been satisfied. Hence, mere deprivation of higher emoluments as a consequence of a reversion cannot amount to the "evil consequences" referred to in the second test in Dhingra 's case (1); they must mean something more than mere deprivation of higher emoluments. That being so, they include, for example, forfeiture of substantive pay, loss of seniority, etc. Applying that (1) [1058] S.C.P. 326, 863 64. 893 test to the present case, it cannot be said that simply because the appellant did not get a Deputy Collector 's salary for three years, he was visited with evil conse quences of the type contemplated in Dhingra 's case (1). Even if he had been reverted in the ordinary course of the exigencies of the service, the same consequences would have ensued. If the logs of the emoluments attaching to the higher rank in which he was officiating was the only consequence of his reversion as a result of the enquiry against him, the appellant would ' have no cause of action. But it is clear that as a result of the Order dated August 11, 1948 (exhibit 35), the appellant lost his seniority as a Mamlatdar, which was his substantive post: That being so, it was not a simple case of reversion with no evil consequences; it had such consequences as would come within the test of punishment as laid down in Dhingra 's case. If the reversion had not been for a period of three years, it could not be said that the appellant had been punished within the meaning of the rule laid down in Dhingra 's case, (1). It cannot be asserted that his reversion to a substantive post for a period of three years was not by way of punishment. From the facts of this case it is clear that the appellant was on the upward move in the cadre of his service and but for this aberration in his progress to a higher post, he would have, in ordinary course, been promoted as he actually was sometime later when the authorities realised perhaps that he had not been justly treated, as is clear from the Order of the Government, dated March 26, 1951, promoting him to the higher rank with effect from August 1, 1950. But that belated justice meted out to him by the Government did not completely undo the mischief of the Order of Reversion impugned in this case. It is clear to us, therefore, that as a result of the Order of Reversion aforesaid, the appellant had been punished and that the Order of the Government punishing him was not wholly regular. It has been found that the requirements of section 240(3) of the Government of India Act, 1935, corresponding to article 311 (2) of the Constitution, had not been fully complied with. His (1) ,863 64. 894 reversion in rank, therefore, was in violation of the Constitutional guarantee. In view of these considerations it must be held that the High Court was not right in holding against the appellant that his reversion was not a punishment contemplated by section 240(3) of the Government of India Act, 1935. On this part of the case, in our opinion, the decision of the High part has to be reversed and that of the Trial Court hat his reversion to his substantive rank was void, must be restored. The question then arises whether he is entitled to any relief in respect of his claim for arrears of salary and dearness allowance. He has claimed Rs. 10,777 odd as arrears of pay, Rs. 951 odd as arrears of dearness allowance, as also Rs. 688 odd as arrears of daily allowance plus interest of Rs. 471 odd, thus aggregating to the sum of Rs. 12,886 odd. This claim is spread over the period August, 1946, to November, 1953, that is to say, until the date of his retirement from Government service, plus future interest also. On this part of the case the learned Trial Judge, relying upon the case of the High Commissioner for India and Pakistan vs I. M. Lall (1) held that a government servant has no right to recover arrears of pay by an action in a Civil Court. He got over the decision of this Court in the State of Bihar vs Abdul Majid (2) on the ground that that case has made a distinction between a claim based on a contract and that on a tort. In the instant case, he came to the conclusion that as the plaintiff had claimed the difference between the pay and allowance actually drawn and those to which he would have been entitled but for the wrongful orders, the claim was based on tort and, therefore, the plaintiff was not entitled to any relief. On the question of limitation, he held that the suit would be governed by article 102 of the Indian Limitation Act (IX of 1908) as laid down by the Federal Court in the case of The Punjab Province vs Pandit Tarachand (3). In that view of the matter, the learned Judge held that adding the period of two months of the statutory notice under section 80 of the Code of Civil Procedure given to (1) (1948) L.R. 75 I.A. 225. (2) ; (3) 895 Government, the claim would be in time from June 2, 1951. Hence the Trial Court, while giving the declaration that the Order impugned was void, dismissed, the rest of the claim with a direction that the plaintiff was to pay 3/4ths of the costs of the suit to the defendant. The High Court dismissed the suit in its entirety after allowing the cross objections of the State. The appellant contended that his suit for arrears of salary would not be governed by the three years rule laid down in article 102 of the Limitation Act and that the decision of the Federal Court in Tarachand 's case (1) was not correct. The sole ground on which this contention was based was that "salary" was not included within the term "wages". In our opinion, no good reasons have been adduced before us for not following the aforesaid decision of the Federal Court. In the result, the appeal is allowed in part, that is to say, the declaration granted by the Trial Court that the Order of the Government impugned in this case is void, is restored, in disagreement with the decision of the High Court. The claim as regards arrears of salary and allowance is allowed in part only from the 2nd of June, 1951, until the date of the plaintiff 's retirement from Government service. There will be no decree for interest before the date of the suit, but the decretal sum shall bear interest at 6% per annum from the date of the suit until realisation. The plaintiff appellant will be entitled to three fourths of his costs throughout, in view of the fact that his entire claim is not being allowed. Appeal allowed in part.

IN-Abs

The appellant, who held the rank of a Mamllatdar in the first grade and was officiating as District Deputy Collector, was alleged to have wrongly charged travelling allowance for 59 miles instead of 51 and was, as the result of a departmental enquiry, reverted to his substantive rank for three years and 887 directed to refund the excess be had charged. He made a re presentation to the Government which was of no avail although the Accountant General was of the opinion that the appellant had not overcharged and committed no fraud. Ultimately the appellant was promoted to the selection grade but the order of reversion remained effective and affected his position in the selection grade. After retirement he brought a suit for a declaration that the order of reversion was void and for recovery of Rs. 12, 516 and odd as arrears of salary, allowances, etc., with interest and future interest. The trial court held that there was no compliance with the provisions of section 240(3) of the Government of India Act, 1935, granted the declaration but refused the arrears claimed. The plaintiff filed an appeal and the State a cross objection and the High Court dismissed the appeal and allowed the cross objection, holding that the order of reversion was not a punishment within the meaning of section 240(3) of the Government of India Act, 1935. Held, that the matter was covered by the observations of this Court in Purshottam Lal Dhingra 's case and of the two tests of punishment laid (town by this Court, namely, (1) whether the servant had a right to the rank or (2) whether he had been visited by evil consequences of the kind specified therein, the second certainly applied. The appellant might or might not have the right to hold the higher post, but there could be no doubt that the was visited with evil consequences as a result of the order of reversion. Mere deprivation of higher emoluments, however, in conse quence of an order of reversion could not by itself satisfy that test which must include such other conseqnences as forfeiture of substantive pay and loss of seniority ' In the instant case, by the order of reversion for three years to his substantive post, the appellant lost seniority and promotion and the belated action of the Government could not wholly undo the mischief. Since the requirement of section 240(3) of the Government of India Act, 1935, which corresponds to article 311(2) of the Constitution, had not been found to have been fully complied with, the order of reversion must be held to be void. Purshottam Lal Dhingra vs Union of India, , applied. The claim of arrears of salary was governed by article 102 of the Indian Limitation Act, and the appellant, therefore, was entitled to no more than what fell due during the 3 years previous to his retirement. The Punjab Province vs Pandit Tarachand, [1947) F.C.R. 89, followed.

Appeal No. 135 of 1961. Appeal by special leave from the judgment and order dated January 3, 1961, of the Rajasthan High Court, Jodhpur, in Civil Writ Petition No. 1 of 1961. M. K. Nambiar, R. K. Garg, D. P. Singh, M. K. Ramamurthi and section C. Agarwala, for the appellant petitioner. H. N. Sanyal, Additional Solicitor General of India, C. C. Kasliwal, Advocate General of Rajasthan, Khan Singh and D. Gupta, for the respondents. April 14. The Judgment of the Court was delivered by WANCHOO, J. These two connected matters arise out of an order approving a scheme framed under Chap. IV A of the , No. IV of 1939, (hereinafter referred to as the Act) and will be disposed of together. The brief facts necessary for present purposes are these. The appellant was plying a bus between Jaipur and Ajmer on a permit granted to him for three years by resolution of the Regional Transport Authority, Jaipur, dated December 16/17, 1958. In August, 1960, the State Government promulgated rules under section 68 1 of the Act, called the Rajasthan State Road Transport Services (Development) Rules, 1960 (hereinafter called the Rules). The Rules were framed for carrying out the purposes of Chap. IV A of the Act and provided inter alia for framing of schemes, hearing of objections, determination and payment of 980 compensation, and other incidental matters. A draft scheme was published on September 7, 1960, for taking over the Jaipur Ajmer route. The appellant made objections to the draft scheme within the time allowed by the notification thereof. The State Government appointed the Legal Remembrancer to hear and decide the objections under r. 7 of the Rules. It appears that in the meantime an application was made under article 226 by some bus operators before the Rajasthan High Court challenging the constitutionality of section 68 D of the Act and the legality of the Rules framed by the State Government. This application was dismissed and the High Court inter alia decided while considering r. 7(6) that it was not open to the officer hearing the objections to cancel the draft scheme and seems to have held that there was no such power even under section 68 D(2) of the Act. This decision was given on November 9, 1960. The draft scheme came up for consideration before the officer appointed to hear objections on November 21,, 1960. An application was made before him that the appellant should be permitted to give evidence on points of fact which were narrated in the application in order that the officer may be in a position to decide the objections justly. This application was rejected by the officer on the ground that there was no provision in the Rules for recording of evidence of witnesses. The matter then came up for consideration on November 23, 1960. On that date another application was made in which it was said that the appellant wanted to lead evidence to show that the draft scheme must be rejected in its entirety, and it was contended that the view taken by the Rajasthan High Court to the effect that it was not open to the officer to cancel a draft scheme was incorrect. This application was also rejected by the officer with the observation that he was bound hand and foot by the decision of the Rajasthan High Court and if there was anything wrong in the interpretation given by the High Court the remedy lay elsewhere. Thereafter the officer gave a hearing to the appellant in the sense that he heard arguments on behalf of the appellant and approved the draft scheme 981 by his order dated December 7, 1960. The approved scheme was then published on December 12,1960. On January 9, 1961, the Regional Transport Authority informed the appellant that his permit was cancelled, as from January 26, 1961, or such later date from which the buses of Rajasthan State Roadways begin to operate on the above mentioned route. In the meantime, the appellant unsuccessfully moved the Rajasthan High Court, and his prayer for leave to appeal to this Court was also rejected. The appellant then applied for special leave to appeal to this Court which was granted; and that is how the matter has come up before us. Two main points have been urged before us on behalf of the appellant, namely, (i) the officer was wrong in the view he took that it was not open to him to reject the draft scheme in its entirety, and (ii) the officer was wrong in holding that he could not take evidence, whether oral or documentary, and all that he had to do under section 68 D of the Act was to hear arguments on either side. It is contended that in view of these two wrong decisions of the officer his approach to what he had to do in dealing with objections under section 68 D was quite incorrect. , with the result that there was no effective hearing of the objections and any approval given to the scheme in these circumstances is liable to be set aside and the appellant is entitled "to be heard" in the real sense in which those words were used in section 68 D (2). Section 68 D (2) with which we are concerned is in these words: "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. " The view taken by the Rajasthan High Court in its decision of November 9, 1960, seen is to be that this section does not justify what it called the cancellation of the scheme. We are of the opinion that this view is 982 not correct. What section 68 D(2) provides is that after hearing the parties, the State Government may approve or modify the draft scheme. This in our opinion clearly implies that the authority which has to approve or modify the scheme has the power also, if it so thinks fit, not to approve the scheme at all. What is before the. State Government under section 68 D (2) is a draft scheme. That sub section provides that the State Government may approve or modify the scheme; that does not mean that the State Government is bound to approve the scheme with or without modifications. An authority to which power has been given to approve or modify some proposal has certainly in our opinion the power to say that it will not approve the proposal at all, for the words "may approve" on a reasonable interpretation include "may not approve". If a person may approve he is not bound to approve. Up to the stage when the hearing takes place under sub s.(2) the draft scheme is merely a proposal before the State Government and it will only become effective if it approves of it with or without modifications. But this power clearly implies the power to say that it does not approve the draft scheme at all; and if it says that, the draft scheme will stand rejected and the State Transport Undertaking may have to submit another scheme for approval. When section 68 E speaks of cancellation it refers to a scheme already approved under section 68 D(3), and in that con. text the word "cancellation" is properly used. But the fact that section 68 E provides for the cancellation of a scheme which has already been approved, does not mean that it is not open to the State Government under section 68 D(2) to say, after hearing the objections, that it does not approve the scheme at all which is put up before it as a draft for approval. We are therefore of the opinion that under section 68 D(2) it is open to the State Government to say after hearing objections that it does not approve of the draft scheme at all, in which case the draft scheme will stand rejected and the State Transport Undertaking may have to frame a fresh scheme in accordance with the procedure provided in Chap. The officer therefore was wrong 983 in holding that he had no power to reject the scheme in the sense that he could withhold approval of it altogether, though we may add that he came to that conclusion because of the earlier decision of the Rajasthan High Court. As for r. 7(6) of the Rules it is in similar terms as section 68 D(2) and must therefore mean what we have said above with respect to section 68 D(2). If, however, by the use of the word "shall" in r. 7(6) in place of the word "may" which appears in section 68 D(2) the intention is to curtail the power of the officer hearing the objections, the rule would be bad as going beyond what is provided in section 68 D(2). But we do not think that the use of the word "shall" in r. 7(6) makes any difference, for the word "shall" had to be used there according to the rules of English Grammar and has no greater force than the word "may used in section 68 D(2) The learned Additional Solicitor General who appeared for the State of Rajasthan did not contest that what we have said above was the true position in section 68 D(2) and r. 7(6). (ii) The next question is the scope of the hearing under section 68 D(2). The officer has held that the scope of the hearing is confined only to hearing of arguments and no more, and that is why he rejected the prayer of the appellant for leading evidence, whether oral or documentary. Now it has been held by this Court in Gullapalli Nageswara Rao vs Andhra Pradesh State Road Transport Corporation (1) that a State Government acts as a quasi judicial tribunal when giving a hearing under section 68 D. The purpose of the hearing is that the State Government has to satisfy itself that the opinion of the State Transport Undertaking formed under section 68 C, namely that the scheme is for the purpose of providing an efficient, adequate, economical and properly coordinated road transport service, is correct. The objections are all made to show that the scheme does not provide for an efficient, adequate, economical and properly coordinated road transport (1) [1959] Supp. 1 S.C.R. 319 984 service. In order therefore to arrive at the conclusion that the draft scheme provides for a transport service of this nature, the State Government as a quasi judicial authority may require materials to come to that conclusion. A hearing before a quasi judicial authority does not merely mean an argument; it may in proper cases include the taking of evidence, both oral and documentary. It seems to us that in the circumstances of the provision contained in section 68 D(2) and the purpose of the hearing thereunder, taking of evidence, whether oral or documentary, that maybe desired to be produced by either party, may be necessary before the State Government can arrive at a just conclusion with respect to the objections to the draft scheme. We cannot therefore agree with the officer that there is no warrant for taking any evidence at all at a hearing under section 68 D(2). It seems to us, considering the nature of the objections and the purpose for which the hearing is given, that production of evidence, either oral or documentary, is comprehended within the hearing contemplated in section 68 D(2). The officer therefore was wrong in loading that it was not open to the parties to produce evidence before him and they were confined only to submit their arguments on the basis of the draft scheme on the one hand and their written objections on the other. We may however point out that the production of evidence (documentary or oral) does not mean that the parties can produce any amount of evidence they like and prolong the proceedings inordinately and the State Government when giving the hearing would be powerless to check this. We need only point out that though evidence may have to be taken under section 68 D(2) it does not follow that the evidence would be necessary in every case. It will therefore be for the State Government, or as in this case the officer concerned, to decide in case any party desires to lead evidence whether firstly the evidence is necessary and relevant to the inquiry before it. If it considers that evidence is necessary, it will give a reasonable opportunity to the party desiring to produce evidence to give evidence relevant to the enquiry and within reason and it 985 would have all the powers of controlling the giving and the recording of evidence that any court has. Subject therefore to this over riding power of the State Government or the officer giving the hearing, the parties are entitled to give evidence either documentary or oral during a hearing under section 68 D(2). In view of what we have said above the approach of the officer in this case was wrong on both the points. He was wrong in his view that it was not open to him to reject the scheme in toto and withhold approval altogether. He was also wrong in the view that it was not open to him to take evidence, whether oral or documentary, though of course, as we have said above the control on this evidence must be in him. The result of this wrong approach to our mind has certainly been that the appellant did not get a hearing to which he was entitled under section 68.D(2). In the circumstances we must hold that the approval of the scheme was without a proper hearing under section 68 D(2), which, even though arguments were heard in full in this case, vitiates the approval given to the scheme by the officer concerned. We therefore allow the appeal and set aside the order of the officer concerned approving the scheme and direct that the draft scheme be reconsidered by the said officer or such other officer as the State Government may appoint hereafter after giving a hearing in the light of the observations we have made above. The appellant will get his costs from the State of Rajasthan. In the circumstances no order is necessary in the writ petition, which is hereby dismissed. We pass no order as to costs in the writ petition. Petition dismissed.

IN-Abs

By section 68 D(2) of the , "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, it they so desire, approve or modify the scheme". The appellant 's objections to the draft scheme in question were heard by the Legal Remembrance, appointed by the State Government to hear such objections, under r. 7(6) of the Rajasthan State Transport Services (Development) Rules, 1960, framed under section 68 1 of the Act. The appellant applied to the said Officer for permission to give evidence in order that he could show that the entire scheme ought to be rejected. His applications were rejected by the Officer holding that the Rules did not provide for recording of evidence and that according to a decision of the Rajasthan High Court, dated November 9, 1960, section 68 D(2) of the Act did not empower him to cancel the draft scheme in its entirety. He, therefore, heard the arguments addressed on behalf of the appellant and approved the scheme. After moving unsuccessfully the Rajasthan High Court, the appellant appealed to this Court by special leave, Held, that the Officer was in error on both the points. Section 68 D(2) of the Act clearly implies that the authority which has to approve or modify the scheme, has also the power, if it thinks proper, to disapprove the scheme altogether. The words " may approve" in the section, properly construed, must also include "may not approve". The use of the word "shall" in r. 7(6) of the Rules instead of the word "may", which is otherwise similar in its terms to section 68 D(2) of the Act,.can make no difference. In hearing objections under section 68 D(2) of the Act, the State Government or its Officers act as a quasi judicial tribunal and regard being to the nature of the objections and the purpose of the hearing thereunder, there can be no doubt that production of evidence, both oral and documentary, is clearly contemplated by the section. 979 Gullapalli Nageswara Rao vs Andhra Pradesh State Road Transport Corporation, [1959] Supp. 1 S.C.R. 319, referred to. Bat that does not mean that the parties can produce any amount of evidence merely to prolong the proceeding. It is for the State Government or the Officer to decide whether the evidence sought to be adduced is necessary and relevant to the enquiry and, if so, they will have all the powers that a court has of controlling the giving and recording of such evidence. Where a draft scheme is disapproved under section 68 D(2) and thus stands rejected, any fresh scheme that may have to be framed, must be framed according to the procedure prescribed by Ch. IVA of the Act.

No. 71 of 1958. 23 Writ Petition under article 32 of the Constitution of India for the enforcement of Fundamental Rights. section K. Venkataranga Ayengar and section J. section Fernandez, for the petitioner. B. R. L. Iyengar, for respondent No. 1. R. Gopalakrishnan and T. M. Sen, for the respondent No. 2. 1961. April 17. The Judgment of the Court was delivered by SARKAR, J. This petition under article 32 of the Constitution raises a question of the constitutional validity of section 3(3)(a) of the Mysore House Rent and Accommodation Control Act, 1951 (Mysore XXX of 1951). Shortly put, that provision enables an authority set up by the Act to select any Government, local authority, public institution, officer of a government, local authority or public institution or any other person as the tenant of a vacant house. Under the Act the owner is bound to let the premises to the tenant so selected. The petitioner, for whom a tenant had been selected under this provision, challenges its validity on the ground that it puts an unreasonable restriction on his fundamental right to property under article 19(1)(f) of the Constitution and is outside the protection of el. (5) of that article. The petitioner had a building in respect of which he had made some sort of arrangement with one Misri Lal for the making of certain alterations in it and for letting it thereafter to him for the purpose of a boarding house. He later gave a notice as required by section 3(2)(a) of the Act to respondent No. 2, the Controller, who had the authority under section 3(3)(a) to select a tenant, that the house had become vacant. Thereupon respondent No. 2 considered applications for the tenancy of the house of which there were two. One was from Misri Lal mentioned above and the other was from respondent No. 1, who was a private indivi dual carrying on business of a boarding house keeper. Respondent No. 2 selected respondent No. 1 as the 24 person to whom the house should be let by the petitioner. He fixed the rent at Rs. 350 per month which was the rent demanded by the petitioner. There does not appear to have been any specification of the terms of the tenancy and no question as to such terms arises in this case. The petitioner was dissatisfied with this decision as he wanted that the premises should be let to Misri Lal, and appealed to the District Judge under section 15 of the Act. The District Judge affirmed the decision of respondent No. 2. The petitioner then went up in revision to the High Court under section 17 of the Act but the High Court refused to interfere. Before the District Judge and the High Court the petitioner bad contended that Misri Lal was a more suitable tenant than respondent No. 1. But such contention was rejected. Having failed in the High Court he has now challenged the Act itself by the present petition. The, only question is whether section 3(3)(a) imposes an unreasonable 'restriction on the petitioner 's right to property. The validity of no other part of the Act has been challenged in this petition. The provision challenged is in these words: section 3(3)(a). On receipt of the intimation under sub section (2), the Controller shall, taking into consideration any representation made by the landlord and after making such inquiry as he considers necessary, select the State Government or the Central Government or the Government of any other State in India, or any local authority or any educational or other public institution or any officer of any Government, authority or institution, aforesaid, or any other person (hereinafter referred to as the allotted), to be inducted as a tenant in the house and direct the landlord by a written order (hereinafter referred to as the allotment order ') to let the house to such allotted at such rent as shall be specified in the allotment order and to deliver possession of the house to the allotted on such date as shall be specified in the said order: Provided that before making an allotment order in favour of any authority or person, other than 25 the State Government, the Central Government or the Government of any State in India or a local authority, the Controller shall consider any representation of the landlord about the suitability of the proposed tenant and shall not allot the house to any person who, in the opinion of the Controller, is an unsuitable tenant: The petitioner does not contend that the provision in so far as it allows the Controller to select as a tenant a Government, local authority, public institution or any of the officers mentioned, imposes any unreasonable restriction on the right to property. As we understood learned counsel for the petitioner, it was conceded that selection of such tenant would constitute a public purpose and the restriction thereby imposed, would be reasonable. It would therefore appear that it is not contended that the selection of a tenant by the Controller would by itself amount to imposing an unreasonable restriction on the right to property. We do not think that such a contention, if made, would have been well founded. It is clear that the Act deals with houses which are vacant. It does not deprive an owner of his right to live in his own house. It provides for vacant houses not needed for the use of the owner being made available for the use of others who are without accommodation. The Act was necessary because of the scarcity of housing. It was, therefore, passed to regulate the letting of houses and to control rent and also to prevent unreasonable eviction: see the preamble to the Act. Does the Act then by leaving it to the Controller to select any person other than a Government, local authority, public institution or an officer of any of these as the tenant, impose an unreasonable restriction on the right to property? We do not think it does so. If the Controller could validly choose a Government, a local authority or any institution which as we have said is not disputed it can make no difference that instead of such a tenant the Controller chooses a private individual as a tenant. The idea of this provision is that people in need should be 4 26 found accommodation. Persons in need of accommodation are the public and therefore serving their need, would be serving a public purpose. An individual would be a member of the public and as the accommodation available can be let out to one, a restriction caused by selection of a member of the public would be one in the interest of the general public. Such a restriction is furthermore not unreasonable. It is enforced only when the owner does not want the house for his own use. It can then make no reasonable difference to the owner if a private individual is chosen as the tenant. The Act further makes ample provision to see that the tenant chosen is suitable. By providing the appeal to the District Judge and a right to move the High Court in revision, full safeguard has been given to secure that an unsuitable person is not foisted on an owner as his tenant. It is true that the Act does not define who would be a suitable person but we do not think that a definition was required. Any man of experience would know who is a suitable tenant. Further., the owner has been given the right to have the suitability of the tenant chosen examined by the highest court. In the explanation to section 3(3)(a) certain persons have been declared to be unsuitable tenants. We are unable to accept the contention of the learned counsel for the petitioner that the result of this explanation is that all others are suitable. The explanation only shows that the persons coming within the description are unsuitable. As to whether others would be suitable or not would have to be decided on the merits of each. Thedecision as to the suitability of a tenant is not to be controlled by the explanation at all except to the extent of making certain persons unsuitable as tenants and taking it out of the discretion of the authority concerned to go into the question of their suitability If the Act had left it to the house owner to choose a tenant, then there was every likelihood of its purpose being defeated. It would be easy for the owner to make secret arrangements for his own gain in creating a tenancy. The tenant would obviously be 27 in a disadvantageous situation in view of the scarcity of housing, in the matter of bargaining for the house. He could easily be made to yield to the terms imposed by the owner who has a much superior bargaining situation. If scope was left for this kind of thing to happen, then the entire object of the Act would have been defeated. The Act intends to avoid this situation and hence the provision for a power in the Controller to select a tenant for the owner. Neither do we think that any objection to this pro. vision can be based on article 14 of the Constitution on the ground that it provided no guidance as to how a tenant is to be chosen and so enabled the authority concerned to make an arbitrary choice. This contention is not in any event open to the petitioner, an owner, for the provision does not enable any discrimination being made between one owner and another. If a tenant had challenged the validity of the provision relying on article 14, which is not the case here, we do not think that challenge would have been of substance. There is, in our view, ample guidance given to the authority as to how to choose a tenant. The tenant has first to be suitable. All persons are entitled to apply for being selected as tenants and so all have equal chance to get the house. The choice will have to be made from amongst the applicants and that choice will depend on an examination of the comparative merits of their claims. Further, the owner has a right to have his views in the matter being given due consideration by the authority selecting the tenant. Again, the ultimate decision would be a judicial decision, and if required, of the highest tribunal in the State. We, therefore, think that the challenge to the Act is ill founded. In the result we dismiss this petition. The petitioner will pay the costs of the appearing respondent. Petition dismissed.

IN-Abs

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.110 of 1961. Appeal by special leave from the judgment and order dated October 14, 1960, of the Allahabad High Court in First Appeal from Order No. 41 of 1959. C. B. Agarwala, Rameshwar Nath, section N. Andley, J. B. Dadachanj and P. L. Vohra, for the appellant. K. B. Choudhuri, A. K. Kirty and Ratna Rao, for respondent No. 1. 870 section P. Sinha and M. I. Khawaja, for respondents Nos. 2, 3 and 4. H. N. Sanyal, Additional Solicitor General of India and G. C. Mathur, for respondent No. 5. Naunit Lal, for respondent No. 7. 1961. April 11. The, Judgment of the Court was delivered by SUBBA RAO, J. This appeal by special leave is directed against the judgment dated October 14, 1960, of the High Court of Judicature at Allahabad confirming the order passed by the Civil Judge, Agra, directing the Official Receiver to take possession of the property of the appellant. This case illustrates how the enforcement of an interlocutory order appointing a Receiver made in the interest of all the parties concerned could be obstructed and the object of the order itself be defeated by dilatory tactics adopted by one party or other. At Agra, there were three spinning mills and one flour mill, all of which together were described as the Johns Mills; and, originally, the John family or their predecessors were the owners of all these mills. At the time the present proceedings were initiated, other persons had acquired interest therein. The following persons were the joint owners of the mills: (1) Hiralal Patni, the appellant, and Munni Lal Mehrt. 19/40th share; (2) Gambhirmal Pandiya Private Ltd. 8/40th share; (3) Messrs. John & Co . 11/40th share; and (4) I.E. John . 2/40th share. Seth Loonkaran Sethiya, respondent No. 1, advanced large amounts to Messrs. John & Co. on the security of its business assets and stocks. On April 18, 1949, the said Sethiya filed 0. section No. 76 of 1949 in the Court of the Civil Judge, Agra, against John & Co. for the recovery of the amount due to him by sale of the assets of the said company. To that suit the partners of Messrs. John & Co., for convenience described as "defendants 1st set", and the partners of Messrs. Johns Jain & Co., who were for convenience described as "defendants 2nd set", were made parties. Pending the suit, the said Sethiya filed an application, under O. XL, r. 1, Code of Civil 871 Procedure, for the appointment of a Receiver. By an order dated May 21, 1949, the learned Civil Judge appointed two joint Receivers and directed them to run the three spinning mills. Hiralal Patni filed an appeal against that order to the High Court at Allahabad, and the said Court by its order dated August 22, 1949, modified the order of the Civil Judge confining the order of appointment of Receivers only to the share of Messrs. John & Co. in John Jain Mehre & Co. Loonkaran Sethiya made another application in the Court, of the Civil Judge for the appointment of a Receiver for the property of Hiralal Patni and the learned Civil Judge by his order dated December 1, 1951, directed the Receivens to take possession of the appellant 's share in the mills also Against this order an appeal was preferred to the High Court and the operation of the said order was stayed pending the disposal of the appeal. On April 5, 1954, the Civil Judge passed a preliminary decree against the defendants therein directing them to deposit the decree 'amount in court within the prescribed time, and in default the plaintiff was given a right to apply for a final decree for sale of the business assets of the defendants. The decree also gave a right to apply for a personal decree in case the sale proceeds were not sufficient to discharge the decree. The preliminary decree directed that the Receivers should continue on the property until discharged. Hiralal Patni preferred a appeal to the High Court against the said preliminary decree and applied for interim stay of its operation. On August 23, 1955, the High Court discharged the Receiver,,; appointed by the learned. Civil Judge, and appointed another Receiver in their place. On March 25, 1955, the learned Civil Judge prepared a scheme for running the mills, and the parties preferred appeals against that scheme to the High Court. The said appeals were compromised and under the term , of the compromise the parties agreed to take different mills on lease for a period of three years from the Receiver. On January 14, 1956, the Receiver executed a lease in respect of the flour mill in favour of Hiralal Patni for a 872 period of three years. Under the lease deed it was agreed that he should deliver the demised premises to the Receiver upon the expiry of the term. In due course, on March 14, 1956, a final decree was made in the suit for the sale of the properties, but the final decree was silent in regard to the Receiver appointed earlier. On September 29, 1958, Hiralal Patni applied to the High Court for extension of the lease by three years. On January 16, 1959, the High, Court rejected the application on the ground that the lease was only a stopgap arrangement and that it was for the Receiver to make a fresh arrangement for the future under the supervision and directions of the Civil Judge, Agra. On January 17, 1959, the Receiver applied to the Civil Judge for instructions whether he should proceed at once to dispossess the appellant. On notice, Hiralal Patni raised various objections and claimed that he was entitled to remain in possession of the property as its owner. The learned Civil Judge disallowed his objections and held that the Receiver derived his authority from the preliminary decree, and directed the Receiver to lease out the said flour mill by auction for a period of two years. Pursuant to that order, an auction was held, and the appellant was the highest bidder, and he paid the lease amount and executed a formal lease deed. Not satisfied with the order of the Civil Judge, Hiralal Patni preferred an appeal to the High Court. The High Court in an elaborate judgment considered the contentions raised on behalf of Hiralal Patni and dismissed the appeal. Hence the present appeal. Learned counsel for the appellant raised before us the following three contentions, which the appellant, unsuccessfully raised before the High Court as well as before the Civil Judge. (1) On a true construction of the relevant orders the Receiver has no power to dispossess the appellant in such a way as to prevent him from working his flour mill. (2) After the passing of the final decree, though the Receiver may continue for the purpose of accounting and discharge of debts, he cannot exercise any powers in respect of the rights of the parties. And (3) in any view, as the appellant 873 acquired a right under a lease deed and continued in possession after its expiry, he could be dispossessed only by a suit and not by a summary procedure. The first question turns upon the construction of the relevant orders. The Civil Judge appointed two joint Receivers by an order dated May 21, 1949. It it not necessary to consider the said order as the final order that governed the rights of the Receiver and the parties was that made by the High Court on appeal on August 22, 1949. After considering the contentions of the parties, the High Court came to the conclusion that a Receiver should be appointed to be in charge of the entire property, immoveable and move. able, of the defendants 1st set for its protection and preservation. The order of the High Court described the John family as defendants 1st set to the suit, and defendant 5, Hiralal Patni, defendant 6, Munnilal Mehra, and Messrs. John Jain Mehra & Co. as defendants 2nd set. This order was confined only to the properties of defendants 1st set. The High Court further proceeded to state: "In the finance agreement in plaintiffs favour, the plaintiff was not given any right to enter into possession on non payment or to run the mills. There being no right given to the plaintiff to enter into possession and manage the mills or to have a receiver appointed, a receiver can be appointed only under Order 40, rule 1 of the Code of Civil Procedure. " Adverting to the contention raised by the defendants that a Receiver could not be appointed to run the mills, the High Court observed: "In view of the order that we propose to pass today we do not want to go into that question. In case the mills are not run under the order of the Collector under the United Provinces Industrial Disputes Act, or by the partners we propose to give the parties permission to move this court. In case we decide to appoint a receiver to run the mills we shall then consider whether a receiver can or cannot be appointed for the purpose of running the mills. " Then the High Court stated: 110 874 "We have already set out the circumstances which in our opinion make it necessary that a receiver should be appointed to take charge of the property of defendants first set whether under the finance agreement of July 1948 there was a charge created on the property, moveable and immoveable, or not. The Receiver will not interfere with the running of the mills except under express orders of the Court and to the extent when it becomes necessary by reason of the value of the security being jeopardized by any action of the defendants. " Then the High Court pointed out that the Collector had the power under section 3 of the Industrial Disputes Act to make arrangements for the running of the mills. Finally the High Court observed: , "It may be necessary from time to time to give directions to the receiver. The parties may also want portions 'of this order to be clarified or other directions obtained. The lower court may give such directions to the receiver or to the parties as it may consider just and proper. In case further directions are necessary or the receiver or the parties are not satisfied with the directions given they may move this court for further direction. " Shortly stated, the High Court confirmed the order of the Civil Judge appointing the Receivers and directed them to take charge of the properties of defendants 1st set. The High Court expressly prohibited the Receivers from interfering with the running of the mills except under express orders of the court, for at that time it did not think it necessary to direct the Receivers to do so. It may be recalled that the Receivers were not appointed for the flour mill of the appellant, Hiralal Patni, as he was one of the defendants belonging to the 2nd set. Learned counsel for the appellant contends that this order did not put the mills in the possession of the Receivers and that the Receivers were given only a supervisory control over the share of the defendants 1st set in the mills. Whatever terminology may have been used, the fact remains that the Receivers were put in charge of the entire property 875 of defendants 1st set, which includes their share in the mills, though it was equally made clear that the Receivers could not directly run the mills without further directions in that regard. The Civil Judge by his order dated December 1, 1951, directed the Receivers to take possession of 'the share of defendants 2nd set also. The operative portion of that order reads: "For all these reasons I have come to the conclusion that it is just and convenient that a receiver should be appointed over the share of the defendant 11 set, and I order that the present receivers who are in possession of the defendant 1st set share should also be appointed receivers over the share of the defendant 11 set. As for the prayer allowing the receivers to run the mills the question of running of the mills is already before the High Court as is shown by the compromise dated 8th September 1950. It is not known what has happened after this compromise. The receivers are directed to seek the direction of the Hon 'ble High Court on the question of the running of the mills so that there may be no chance of conflicting of orders passed by this court and the Hon 'ble High Court, on this matter. The receivers will not interfere with the running of the mills except under express orders of this court and to the extent when it becomes necessary by reason of the value of the security being jeopardized by any action of the persons running the Mills. The receivers are appointed over the share of the defendants II set only, for the purpose of preservation and protection and realization of the rent." This order runs on the same lines indicated by the High Court in its earlier order in respect of the share of defendants 1st set. What is to be noted is that under this order the Receivers were prohibited from ' running the mills except under the specific ' orders of the said court or of the High Court. On April 5, 1954, a preliminary decree was made in the suit, and under that decree the defendants were directed to deposit a sum of Rs. 18,00,152 in court within the prescribed 876 date and in default the plaintiff was given a right, to apply for a final decree for the sale of the assets of the spinning mills. There was a further direction that in case the nett sale proceeds of the said property were found insufficient to satisfy the plaintiffs claim, the plaintiff would get a personal decree against defendants 1st set and defendants 2nd set for the balance of his claim. The Receivers were directed to continue on the property until discharged. Under the preliminary decree, the plaintiff became entitled not only to the sale of the assets of the spinning mills but also to a personal decree against all the defendants for recovering any balance that might still be due to him after the sale of the said properties. What is more, the Receivers were expressly directed to continue till they were discharged, and as the decree did not specify the powers of the Receivers, it must be held that they continued to exercise such powers as they had under the previous, orders of the courts dated August 22, 1949 and December 1, 1951. On March 25, 1955, the learned Civil Judge, Agra, prepared a scheme for the running of the three spinning mills, and the parties preferred two appeals to the High Court against the scheme. On July 22, 1955, a compromise was effected between the parties in the aid two appeals and the appeals were disposed of in terms of the compromise by order of the High Court dated August 23, 1955. As the terms of this order are rather important in the context of the contentions raised before us, we would read the relevant portions hereof: Clause 1. That the aforesaid parties have without prejudice to their rights and litigation between them have after deliberate consideration and as a special effort to make arrangements for running the Johns Mill have decided that the three spinning Mills and Flour Mill situate in Agra should be run by the parties in accordance with the terms and conditions set forth below. (vi) That the lease shall be granted by the receiver on terms and conditions approved by the Court. 877 (ix) If any lessee shall fail to run the Mill after delivery of possession or pay the lease money or fail to carry out the arrangements arrived at between the parties for a period of three months, the receiver shall take possession of the Mills and with the per mission of the court shall lease out that particular mill to any of the parties excepting the party in default who may offer the highest bid in accordance with the orders passed by the Civil Judge in this matter. Clause, 4. . . . . . The arrangement embodied in this document is only for the purpose of working the mills by the petitioners. Nothing contained in this document will affect the rights and obligation of the parties which are or may be the subject matter of suit No. 76 of 1949 or in any litigation between the parties and notwithstanding anything contained herein but subject :however to the express provision in the preceding paragraph of this clause it will be open to the petitioners to seek their remedies in any manner provided by law, and without prejudice to the rights of the parties to obtain a stay order from the Hon 'ble High Court or any other Court. " What is the effect of this order? Learned counsel for the appellant contends that this order embodies an internal arrangement between the defendants for running the mills and that it does not in any way enlarge the scope of the orders dated August 22, 1949, and December 1, 1951, under which the Receivers were appointed. We do not think that the scope of the orders is so limited. The combined effect of the said earlier orders was that the Receivers should take possession of the entire properties of the two sets of defendants. But the Receivers were not given the power to run the mills without specific directions to that effect by the court. The Civil Judge by his order dated March 25, 1955, evolved a scheme for running the mills, and by that order he laid down the conditions and directed the Receivers to advertise calling for applications from persons, including the Govern ment, who were willing to run the mills. This order 878 was only confined to the three spinning mills. The compromise order in the appeals covered also the flour mill. Though different mills were to be run by different defendants by obtaining lease deeds, that was only a mode evolved for running the mills tinder the supervision of the court. Under the compromise, the leases were to be executed in favour of the Receiver. It also provided that in case the lessees did not carry out the terms of the lease, the Receiver should take possession of the mill in respect of which default was committed and, with the permission of the court, should lease out the mill to any of the defendants other than the defaulting party. The clauses saving the rights of the parties obviously refer to their rights which were the subject matter of the suit and they could not have any reference to the terms agreed upon under the compromise order. Under the compromise order, the courts, though by consent, gave directions for running the mills which they left out for future consideration in their earlier orders. The result, was that under the earlier orders, all the properties of the defendants were put in possession of the Receivers, and under the compromise order, the Receiver was directed to run the mills under the agreed scheme. Pursuant to the terms of the compromise order, on January 14, 1956, the Receiver executed a lease in favour of the appellant in respect of the flour mill for a period of three years, and under that lease deed the appellant got possession from the Receiver and agreed "To yield up all the demised premises with all fixture, improvement and replacements thereto in good and tenantable repair and condition in accordance with the lease covenants in that behalf herein contained upon the expiry of the term hereby created or the sooner determination of these presents as herein provided. " Whatever ambiguity there may have been, this lease deed dispels it, for under the lease deed the appellant admits the legal possession of the Receiver, takes a lease under him, and agrees to put him back in possession after the expiry of the lease. On September 29, 1958, the appellant again applied to the court for extension of the lease for three more years, thereby 879 accepting his possession under the Receiver, though the court on January 16,1959, dismissed that application on the ground that the lease was only a stopgap arrangement and that it was for the Receiver to make a fresh arrangement for the future under the supervision and directions of the Civil Judge under whose preliminary decree he derived authority. It is manifest from the aforesaid orders that the Receiver was put in possession of the entire property of the defen dants, that he was not empowered to run the mills personally, that by subsequent orders he was directed to lease out the mills to the parties in the manner prescribed and that under the final order he was to take over possession and make other arrangements for running the mills. In the premises, we find it very difficult to accept the argument of learned counsel that the Receiver was not put in possession of the mills, but the mills continued to be in the possession of tile defendants. We hold on a construction of the relevant orders that the flour mill of the appellant was also put in the possession of the Receiver and that the appellant was running the said mill under the compromise formula. The second contention of learned counsel for the appellant is that the Receiver appointed in the suit ceased to be a Receiver qua the rights of the parties when the final decree was made by the Court. This contention leads us to the consideration of the question whether a Receiver appointed in a suit ceases to be such automatically on the termination of the suit. Neither section 51(d) nor Order XL of the Code of Civil Procedure prescribes for the termination of the office of receivership. We must, therefore, look for the solution elsewhere. Some of the authoritative text books on receivers may usefully be consulted in this connection. In Halsbury 's Laws of England, 3rd edn., Vol. 32 (Lord Simonds), at p. 386 under the heading "Duration of appointment by court", the following statement occurs: "When a receiver is appointed for a limited time, as in the case of interim orders, his office determines on the expiration of that time without any 880 further order of the court, and if the appointment is until judgment or further order ' it is brought to an end by the judgment in the action. The judgment may provide for the continuance of the receiver, but this is regarded as a now appointment. If a further order of the court, though silent as to the receivership, is inconsistent with a continuance of the receiver, it may operate as a discharge. When a receiver has been appointed on an interlocutory application without any limit of time, it is not necessary to provide for the continuance of his appointment in the final judgment. The silence of the judgment does not operate as a discharge of the receiver or determination of his powers. So, also the appointment of a receiver generally by the judgment in an administration action need not be continued by the order on further consideration. " In Kerr on Receivers, 12th edn., in chapter XII under the heading "Discharge of a Receiver", the legal position is explained thus: "The appointment of a receiver made previously to the judgment in an action will not be superseded by it, unless the receiver is appointed only until judgment or further order." In High on the Law of Receivers, 4th edn., the following observations appear at p. 985: , "The functions of a receiver usually terminate with the termination of the litigation in which he was appointed. And when the bill upon which the appointment was made is afterwards dismissed upon demurrer, the duties of the receiver cease as between the parties to the action. . . And although as between the parties to the litigation his functions have terminated with the determination of the suit, he is still amenable to the court as its officer until he has complied with its directions as to th e disposal of the funds which he has received during the course of his receivership. . . But an order of discharge does not necessarily follow, in all. cases, because of the determination of the suit, and the court may, upon sufficient cause shown, 881 either discharge or continue the receiver, according to the exigencies of the case. " The learned author makes a further distinction at p. 986 between the following two classes of cases: "Since the final decree in the cause is generally decisive of the subject matter in controversy, and determines the right to the possession of the fund or property held by the receiver, it is usually the case that such decree supersedes the functions of the receiver, since there is then nothing further for him to act upon, although it would seem to be still necessary that a formal application be made for his discharge. But when the court by its decree does not attempt to decide the main question in controversy, and leaves the receiver 's possession undisturbed, it cannot be held to have the effect of operating as a discharge, or of superseding his functions. " Woodroffe in "The Law relating to Receivers in British India", 4th edn., states at p. 22 thus: O. XL, r. 1(a) now expressly provides that a receiver may be appointed whether before or after decree. As long as the order appointing a receiver remains unreversed, and as long as the suit remains a lis pendens, the functions of the receiver continue, until he is discharged by order of the Court. " The law may briefly be stated thus: (1) If a receiver is appointed in a suit until judgment, the appointment is brought to an end by the judgment in /the action. (2) If a receiver is appointed in a suit, with. out his tenure being expressly defined, he will continue to be receiver till he is discharged. (3) But, after the final disposal of the suit as between the parties to the litigation, the receiver 's functions are usually terminated, he would still be answerable to the court as its officer till he is finally discharged. (4) The court has ample power to continue the receiver even after the final decree if the exigencies of the case so require. Let us now apply the said principles to the facts of the instant case. The order appointing the Receivers III 882 did not expressly state that the Receivers ' term would expire on the termination of the suit. Under the preliminary decree the plaintiff became entitled to apply for the passing of the final decree for the sale of the property charged and also to get a personal decree against the defendants 1st set and 2nd set for the balance of his claim remaining due after the sale The preliminary decree expressly directed the Receivers to continue until discharged. Pursuant to the preliminary decree, a final decree for sale of the said properties was made, but the said decree did not in any way modify the direction given in the preliminary decree in respect of the Receivers. The combined effect of the two decrees is that the final decree did not terminate the suit, for the plaintiff would still be entitled to get a personal decree in case the sale proceeds were not sufficient to pay off his dues. It cannot, therefore, be said that the suit has be finally an disposed of. That apart, the preliminary decree in express terms directed the Receivers to continue till they were discharged. In the circumstances, we are definitely of the opinion that the Receivers continued by the preliminary decree are entitled to function in that capacity till they are discharged. The third contention of learned counsel for the appellant raises the question whether in the circumstances of this case the Receiver could recover possession from the appellant only by instituting a regular suit against him for eviction. The facts germane to this contention may be briefly recapitulated. On January 14, 1956, the appellant executed a lease deed in respect of the flour mill in favour of the Receiver and there was an express recital therein that the lessee would deliver possession to the Receiver of all the demised premises upon the expiry of the term of lease. The said lease was executed as a part of a com promise scheme for running the mills. The term of the lease had expired. Thereafter the court directed the Receiver to take possession of the property and auction the same to the highest bidder. The question is whether under the circumstances a court can dispossess the appellant under, a summary process or 883 whether it could only do so by directing the Receiver to file a suit for eviction. The material provisions of Order XL of the Code of Civil Procedure read: Rule 1. (1) Where it appears to the Court to be just and convenient, the Court may by order . . . . . . (b) remove any person from the possession or custody of the property; . . . . . . (d) confer upon the receiver all such powers, as to bringing and defending suits and for the realization, management, protection, preservation and improvement of the property, the collection of the rents and profits thereof (2) Nothing in this rule shall authorize the Court to remove from the possession or custody of property any person whom any party to the suit has not a present right so to remove. Under this Order, a receiver is an officer or represen tative of the court and he functions under its directions. The court may, for the purpose of enabling the receiver to take possession and administer the property, by order, remove any person from the possession or custody of the property. Sub r. (2) of rule 1 of the Order limits that power in the case of a person who is not a party to the suit, if the plaintiff has not a present right to remove him. But when a person is a party to the suit, the court can direct the receiver to remove him from the possession of the property even if the plaintiff has not a present right to remove him. In the present case, the appellant was a party to the suit and the court, through the Receiver took possession of the mill and thereafter the Receiver, during the course of the administration of the property, under a compromise arrangement for running the mills, leaned out the flour mill to the appellant with an express condition that the appellant should redeliver the property to the Receiver on the expiry of the lease. Aamittedly the term of the, lease had expired, and the court directed the Receiver to take possession of the mill. The court, in our view, 884 was legally competent to confer a power on the Receiver under Order XL, r. 1(1)(d), of the Code of Civil Procedure to recover the property from the appellant. The decisions cited at the Bar are not of much relevance to the present case. Krista Chandra Ghose vs Krista Sakha Ghose (1) is a case where a lease was granted by a Receiver acting under an order of court and the possession of the property had been given to the lessee, and subsequently certain parties applied to the court for a declaration that the lease was invalid on the ground that it was obtained by collusion. There the court held that no summary order could be passed to set aside the lease and the proper remedy would be by a suit against the Receiver and also against the lessee. In that case the lessee, though he was a party to the suit, acquired a leasehold right under the lease deed and third parties, who offered a higher rent, sought to question the lease on the ground of collusion. Woodroffe, J., held that the dispute could only be decided in a properly instituted suit. The Rajasthan High Court in Nanakchand vs Pannalal (2) held that a Receiver could not recover the rent from a lessee in a summary order of the court, but should file a suit just like any other landlord. The Allahabad High Court in Loonkaran vs I. N. John (3), though it conceded that where a lease had been executed by the Receiver, the lessee may ordinarily be evicted from the demised property only by a regular suit, held that where after the expiry of the term of the lease granted by a Receiver, the sub. lessee in possession gave an undertaking to the court that he would vacate the premises in favour of the prospective lessee if no fresh lease was granted in his favour, the court has power to eject the sub leessee in its summary jurisdiction. The learned Judge observed at p. 59 thus: "By giving an undertaking to the court that he would vacate the Mill in favour of the prospective lessee and by bidding in the court auction the appellant, in our view, submitted himself to the (1) Cal. (2) A.I.R. 1951 Raj. (3) A.I.R. 1961 All. 885 jurisdiction of the court. The appellant could therefore be ejected by summary process, instead of by a suit. " So too, the High Court of Travancore Cochin in Sivarajan vs Official Beceiver, Quilon District (1) held that where the period of the lease granted to the receiver had already expired and as per the express stipulation in the lease deed the lessee was bound to surrender possession of the property without raising any objection at all, the Court could summarily evict him. The learned Judge made the following observations at p. 39: "Even though the lease deed stands in favour of the receiver the express undertaking given by the lessee for an unconditional surrender of the property is in favour of the court. . The summary enforcement of the undertaking thus taken by the court is only a, step towards the discharge of the duties of the court in the management of the estate and it cannot be said that the court has lost its jurisdiction in that direction merely because the property has been in the possession of a lessee. " Further citation would be redundant. These and such decisions seem to hold that a court cannot evict a lessee from a receiver, whether he is a party to the suit or not, in exercise of its summary jurisdiction unless the lease expressly conferred a right of re entry under the lease deed on the receiver. It is not necessary to demarcate the boundaries of the summary jurisdiction of a court in managing an estate through a receiver, for in this case we are clearly of the opinion that the appellant was in possession of the mill under an agreed and integrated scheme for running the mills by the different partners, though he was put in possession under a document described as a lease deed. In effect the Receiver, during the course of the management, entrusted each mill to one of the partners so that the mills might be properly worked under experienced hands. The appellant expressly agreed to put the Receiver in possession of the mill after the expiry of three years. No question of (1) I.L.R. 886 deciding the conflicting claims of a lessee and a third party arises in this case; nor is the court called upon to pronounce on the vested rights of a lessee in conflict with those of the Receiver. But this is a simple case of a court in the course of its administration of the estate through the agency of a receiver making a suitable provision for the running of the mills. As the agreed term had expired, the court, in our view, could certainly direct the appellant to put the mill in the possession of the Receiver. Lastly it has been brought to our notice that an application for the discharge of the Receiver is pending in the lower court. Any observations that we have made in this judgment are not intended to affect the merits one way or other in the disposal of that application. That application will be disposed of in accordance with law. In the result, the appeal fails and is dismissed with costs. Appeal dismissed.

IN-Abs

The John Mills comprising of three textile mills and one flour mill were jointly owned by several persons. The financier of the Mills filed a suit for recovery of the amount due to him. During the pendency of the suit a receiver was appointed to take possession of the flour mills but he was not empowered to run the mills directly without further directions of the court. A preliminary decree was passed in the suit directing among other things that the receiver was to continue until discharged. Thereafter, an arrangement was made for running the mills and the court directed that the appellant, who was one of the co owners of the mills, be given a lease of the flour mill for three years by the receiver. In the lease deed the appellant undertook to deliver back possession to the receiver upon the expiry 869 of the three years. Shortly thereafter, a final decree was passed in the suit but it was silent in regard to the receiver appointed earlier. On the expiry of the three year term of the lease the court directed the receiver to take back possession of the flour mill from the appellant. The appellant contended (i) that after, the passing of the final decree the receiver ceased to 'be a receiver in respect of the rights of the co owners and could not dispossess the appellant, and (ii) that the appellant could only be dispossessed by a suit filed by the receiver and not by a summary procedure. Held, that the receiver continued by the preliminary decree was entitled to function till he was discharged. The legal position with regard to the continuance of receivers is that: (i) if a receiver is appointed in a suit until judgment, the appointment is brought to an end by the judgment in the suit; (ii) if a receiver is appointed in a suit without his tenure being expressly defined, he will continue till he is discharged; (iii) even after the final disposal of the suit, though as between the parties to the suit his functions are usually terminated, the receiver con tinues to be answerable to the court till he is finally discharged, and (iv) the court has ample power to continue the receiver even after the final decree if the exigencies of the case so require. The final decree in the present case did not finally dispose of the suit and did not bring the appointment of the receiver to an end. Held, further that the court was entitled to direct the appellant to give back possession of the flour mill to the receiver. The court was merely making suitable arrangement for the running of the mill in the course of its administration of the estate through the receiver. The mill had been leased out to the appellant with an express condition that he should redeliver the property to the receiver on the expiry of the lease and the court was competent under 0. 4o r. 1(1)(d) Code of Civil Procedure to confer a power on the receiver to recover the property from the appellant. It was not necessary for the receiver to file a suit for the recovery of the property.

riminal Appeal No. 74 of 1960. Appeal by special leave from the judgment and order dated August 8, 1957, of the Bombay High 897 Court at Rajkot in Criminal Revision Application No. 10 of 1956. B. K. Khanna and T. M. Sen, for the appellant. Rameshwar Nath, section N. Andley and P. L. Vohra, for the respondent. April 12. The Judgment of the Court was delivered by SUBBA RAO, J. This appeal by special leave is against the order of the Bombay High Court at Rajkot setting aside the warrants of attachment issued by the First Class Magistrate, Jamnagar, for enforcing the penalty imposed on the respondent under section 193 of the , (hereinafter called the Act). The material facts may be briefly stated. The respondent is Digvijavasinhji Spinning & Weaving Mills Limited, Jamnagar. It imported 275 cases of secondhand looms under one consignment and 175 cases of second hand textile waste to plant machinery under another consignment from Pondicherry. The respondent held licences for import of goods of a lesser value than the value of these consignments. The Collector of Customs, Baroda, ordered the said goods to be confiscated under section 167(8) of the Act; and in lieu of confiscation an option was given to the respondent to pay a fine of Rs. 22,918 and Rs. 16,000 in respect of the two consignments. Further, on the ground that the respondent had understated the, value of the goods imported under the first consignment, the appellant imposed a penalty of Rs. 500 under section 167(37)(c)of the Act. Against the said order,. the respondent preferred two appeals to the Central Board of Revenue and the said Board by its order dated January 15, 1954, set aside the orders of the appellant and instead imposed a penalty of Rs. 22,918 in regard to the first consignment and Rs. 16,000 in regard to the other under section 167(8) of the Act; but the penalty of Rs. 500 was however maintained. In revision the Government of India modified the order of the Central Board of Revenue by cancelling the penalty of Rs. 500 and in 898 other respects it confirmed the order of the said Board. The respondent cleared the goods on executing a bond in favour of the appellant. As the respondent did not pay the penalty, the appellant, acting under section 193 of the Act, notified the default in writing to the First Class Magistrate at Jamnagar so that the penalty might be recovered in the manner prescribed by the said section as if the said penalty was a fine inflicted by the Magistrate himself. On the said requisition the Magistrate issued warrants of attachment against the respondent, but the latter filed a petition before him for the cancellation of the said warrants on the ground that the order of the Central Board of Revenue was illegal and also on the ground that the appellant had no jurisdiction to take action under section 193 of the Act. The Magistrate, by his order dated May 8, 1956, held that the appellant could validly realize the said amounts under the machinery provided under section 193 of the Act. Against the said order of the Magistrate the respondent preferred an appeal to the Sessions Judge, Halar, Jamnagar, but it was later converted into a revision and was dismissed. On revision to the High Court against that order, the High Court held that as the panalty was imposed by the Central Board Revenue, the appellant could not realize the said amounts under 193 of the Act; it also expressed an opinion that the final order of the appellate authority was not without jurisdiction as it was not shown that consent of the owner of the goods ordered to be confiscated had not been obtained by the Central Board of Revenue before the order commuting the confiscation to penalty was passed. In the result, the High Court set aside and cancelled the warrants of 'attachment issued by the Magistrate. Hence the appeal. Learned counsel for the appellant broadly contended that section 193 of the Act should be liberally construed with a view to effectuate the intention of the legislature and if so construed the order of the Central Board of Revenue made in substitution of that of an officer of Customs could be enforced by the latter officer under the said section. On the other hand, 899 learned counsel for the respondent argued that the Central Board of Revenue was not an officer of Customs within the meaning of section 193 of the Act and therefore its order could not be enforced under the said section by an officer of Customs; and that even if the Board, being the Chief Customs Authority, could be considered to be an "officer of Customs" within the meaning of those words, the said Chief Customs Authority only could enforce the said order and not the Collector of Customs. To appreciate the rival contentions and to provide a satisfactory solution to the problem presented it is necessary to read the relevant provisions of the Act, not only to understand the scheme of the Act but also to construe the provisions of section 193 thereof in the light of the scheme disclosed by the said provisions. It is one of the well established rules of construction that "if the words of a statute are in themselves precise and unambiguous no more is necessary than to expound those words in their natural and ordinary sense, the words themselves in such case best declaring the intention of the legislature". It is equally well settled principle of construction that "Where alternative constructions are equally open that alternative is to be chosen which will be consistent with the smooth working of the system which the statute purports to be regulating; and that alternative is to be rejected which will introduce uncertainty, friction or confusion into the working of the system. " With this background and having regard to the aforesaid two principles of construction, let us at the outset scrutinize the scheme of the Act. Section 3 defines "Chief Customs authority" to mean the Central Board of Revenue. "Customs collector" is defined to include "every officer of Customs for the time being in separate charge of a custom house, or duly authorized to perform all, or any special, duties of an officer so in charge. " Section 19 confers a power on the Central Government to prohibit or restrict the importation or exportation of goods by sea or by land. Section 167 prescribes the various punishments for offences under the Act. Section 167(8) says that if any goods, the 900 importation or exportation of which is for the time being prohibited or restricted by or under Chapter IV of the Act, be imported into, or exported from India contrary to such prohibition or restriction, such goods shall be liable to confiscation; and any person concerned in any such offence shall be liable to a penalty not exceeding three times the value of the goods, or not exceeding one thousand rupees. Under section 167(37)(c), if it be found, when any goods are entered at, or brought to be passed through, a custom house, either for importation or exportation, that the contents of such packages have been misstated in regard to sort, quality, quantity or value, such packages shall be liable to confiscation and every person concerned in any such offence shall be liable to a penalty not exceeding one thousand rupees. Section 182, empowers the Collector of Customs to adjudicate whether anything is liable to confiscation, increased rate of duty or any person is liable to a penalty. Section 183 enjoins on such authority to give the owner of goods so confiscated an option to pay in lieu of confiscation such fine as it thinks fit. Section 188 gives a right of appeal from such an order to the Chief Customs Authority who is empowered to pass such order as he thinks fit, confirming, altering or annulling the decision or order appealed against; but under the proviso to that section the said appellate authority cannot make an order subjecting any person to any greater confiscation, penalty or rate of duty than has been adjudged against him in the original decision or order. Every order passed under this section is final subject to the power of revision conferred by section 191 on the Central Government. Section 190 confers a power on the Chief Customs Authority to remit penalty, increased rate or confiscation in whole or in part; it also enables the said authority, with the consent of the owner of the goods ordered to be confiscated to commute the order of con fiscation to a penalty not exceeding the value of such goods. Section 190A gives a power of revision to the Chief Customs Authority against an order of any officer of Customs passed under the Act and enables it to pass such order thereon as it thinks fit. Then comes the 901 crucial section 193. As the argument turns upon the provisions of this section, it would be convenient to read the entire section at this stage. Section 193: "When a penalty or increased rate of duty is adjudged against any person under this Act by any officer of customs, such officer, if such penalty or increased rate be not paid, may levy the same by sale of any goods of the said person which may be in his charge or in the charge of any other officer of Customs. When an officer of Customs who has adjudged a penalty or increased rate of duty against any person under this Act is unable to realise the unpaid amount thereof from such goods, such officer may notify in writing to any Magistrate within the local limits of whose jurisdiction such person or any goods belonging to him may be, the name and resi dence of the said person and the amount of penalty or increased rate of duty unrecovered; and such Magistrate shall thereupon proceed to enforce payment of the said amount in like manner as if such penalty or increased rate had been a fine inflicted by himself. " Pausing here, let us recapitulate the gist of the aforesaid provisions. Under the Act the goods, whose importation or exportation is prohibited or restricted by the provisions of the Act, are liable to be confiscated and also the person concerned is liable to a penalty. Even a misstatement in regard to sort, quality, quantity or value of the goods so imported or exported is an offence and the packages, with their contents, are liable to be confiscated and the person concerned in any such offence is also liable to penalty. The Collector of Customs can make an order confiscating the said goods as well as imposing a penalty on the person concerned. In an appeal against that order, the Chief Customs Authority can modify the said order, but it has no power to increase the burden. It can remit such penalty or confiscation, in whole or in part, but it can also commute the order of confiscation to penalty not exceeding the value of such goods. A person desiring to file an appeal against an order of 902 penalty passed by an officer of Customs shall, pending an appeal, deposit in the hands of the Customs collector at the port where the dispute arises the amount demanded by the officer passing such decision or order; and if he succeeds wholly or in part, the whole or such part thereof, as the case may be, shall be returned to him. The result of the provisions, therefore, is that there would never be a contingency or necessity for an appellate tribunal to enforce payment of penalty impossed by it, for no appeal would be heard by it unless the penalty was deposited as aforesaid. With this background let us look at the relevant provisions of section 193 of the Act. Under the said section only an officer of Customs, who has adjudged a penalty or increased rate of duty, can realize the said penalty or rate through the machinery of a Magistrate. The question is whether the Chief Customs Authority is "an officer of Customs" who has adjudged a penalty or rate, as the case may be, within the meaning of section 193 of the Act. Section 182 of the Act enumerates the different officers of Customs who are empowered to adjudge a question of penalty, but the Chief Customs Authority is not included in that list. Indeed, in section 182(c) the Chief Customs Authority is empowered to nominate the subordinate officers of Customs to adjudge questions within certain pecuniary limits. That apart, section 3(a) of the Act defines "Chief Customs authority" to mean the Central Board of Revenue. The Central Board of Revenue is a statutory authority and, though it can only function through officers appointed to the said Board, it is inappropriate to call it an officer of Customs. In this situation, when under the provisions of the Act there is no scope for realization of any penalty imposed for the first time by the Chief Customs Authority, it would be more in accord. with the scheme of the Act to construe the words "an officer of Customs" as an officer of the Customs who is authorized to adjudicate in the first instance on the question of confiscation, increased rate of duty or penalty under section 182 of the Act. This construction, it is said, would lead to ail anomaly of the statute conferring a power on the Chief Customs Authority to 903 from it a procedure to enforce its collection. As we have pointed out, such an anomaly cannot arise under the provisions of the Act, for there is no section which empowers the Chief Customs Authority to impose a penalty higher than that imposed by the Customs Officer. Assuming that the Chief Customs Authority is an Officer of Customs within the meaning of section 193 of the Act, it had to initiate proceedings under the said section; but in this case the Collector of Customs notified in writing to the Magistrate for recovering the said penalty. Learned counsel for the appellant contends that an order made by the Chief Customs Authority imposing a penalty shall be deemed in law to be an order made by the original authority, that is, the Collector of Customs and, therefore, the said order for the purpose of enforcement shall be treated as the order of the Collector of Customs. It is said that this legal position would flow from the proposition that an appeal is a continuation of a suit. The said proposition is unexceptionable: see Rangaswamy vs Alagayammal (1), Kristnamachariar vs Mangammal (2), Lachmeshwar Prasad Shukul vs Keshwar Lal Chaudhuri (3). But neither the said decisions nor the principles laid down therein can have any bearing on the question whether an order made for the first time by an appellate authority could in law be deemed to be one made by the original authority. In the absence of any statutory fiction giving rise to that result, it is not permissible to treat the order made by one authority as that made by another authority. If so, it follows that the order of the Chief Customs Authority imposing a penalty for the ' first time cannot be treated to be an order of the Collector of Customs within the meaning of section 193 of the Act. As we have pointed out, the Chief Customs Authority has no power to impose a penalty for the first time under section 188 of the Act; but it has power under (1) A.I.R. 1915 Mad. 1133. (2) Mad. 91,95 96. (3) , 10.3. 904 s.190 of the Act to commute the order of confiscation to a penalty riot exceeding the value of the goods confiscated. Though the Chief Customs Authority in its order dated January 15, 1954, did not expressly rely on section 190 of the Act, it cannot be disputed that it has jurisdiction to pass such an order thereunder subject to the conditions laid down therein. The condition for the exercise of that power is that it should have obtained the consent of the party whose goods were confiscated. The High Court in its order observed that there was nothing before it to show that the consent of the owner of the goods ordered to be confiscated was not obtained before the order of confiscation was commuted to one of penalty by the Chief Customs Authority. If that be taken as a finding the question of the legal effect of an order of commutation would arise for consideration. Would such an order be deemed to be made in substitution of that of an original authority? Could it be said that the commuted sentence shall be deemed in law a sentence imposed by the original tribunal? But these questions need not detain us, as we are not satisfied on the material placed before us that the condition of consent has been fulfilled in this case. The High Court in effect drew a presumption in favour of the regular performance of an official act. But this presumption is only optional. In a case like this when the validity of an order depends upon the fulfilment of a condition, the party relying upon 'the presumption should at least show that the order on the face of it is regular and is in conformity with the provisions of the statute. But in the present case the order of the Chief Customs Authority ex facie does not show that it was made under section 190 of the Act. Indeed it is purported to have been made under section 167(8) of the Act. If as a matter of fact the said Authority made the order of commutation with the consent of the owner of the goods it would have certainly jurisdiction to make such an order under section 190 of the Act. Though there was no such recital, it would have been open to the appellant to establish that fact by necessary evidence. In the absence of any such 'evidence we must hold that it has 905 not been established that the Chief Customs Authority made its order under section 190 of the Act with the consent of the respondent. This will not preclude the State from establishing by relevant evidence that the penalty was imposed under section 190 of the Act with the consent of the owner of the goods in an appropriate proceeding. In the result the order of the High Court is correct and the appeal is dismissed. Appeal dismissed.

IN-Abs

The respondent imported goods of higher value than what was granted under his licence. The Collector of Customs ordered the goods to be confiscated under section 167(8) of the and in lieu of confiscation gave an option to the respondent to a fine. On appeal the Central Board of Revenue set aside the order of the Collector of Customs and instead of it imposed a penalty. The respondent did not pay the penalty and the Collector of Customs took proceedings under section 193 of the Act for the recovery of the penalty in pursuance of which a Magistrate issued warrants of attachment against the respondent holding that the Collector of Customs could validly realise the penalty under section 193 of the Act. The Sessions Judge dismissed the respondents application in revision but the High Court held that as the penalty was imposed by the Central Board of Revenue the Collector of Customs could not realise the amount of the penalty under section 193 of the Act and also held that the order of the Central Board of Revenue commuting the confiscation to penalty was not without jurisdiction. On appeal by special leave, Held, that the Central Board of Revenue which is the "Chief Customs Authority" cannot be called an "officer of Customs", and the order of the Chief Customs Authority imposing a penalty for the first time cannot be treated to be an order of the Collector of Customs within the meaning of section 193 of the Sea Customs Act, 1873, and as such the Collector of Customs could not realise the penalty imposed by the Central Board of Revenue. Rangaswamy vs Alagayammal, A.I.R. (1915) Mad. 1133, Kristnamachariar vs Mangammal, Mad. 91 and Lachmeshwar Prasad Shukul vs Keshwar Lal Chaudhuri, , held not applicable.

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.

IN-Abs

After a scheme 'Was published by the Mysore Transport Undertaking under section 68 C of the , and approved by the State Government the State Transport Undertaking made applications for permits under section 68 F(1) of the Act to the Regional Transport Authority but before the permits were granted the second respondent made an application for a Writ of Certiorari prohibiting the Regional Transport Authority from dealing with the second respondent 's application for permit unless and until they were duly published and notice was given to him for making representations. The contention on his behalf was that the publication of the applications with notice of the (late for submitting the representations was necessary under section 57(3) Ch. IV of the Act and that lie was entitled to notice as the Regional Transport Authority acted in a quasijudicial capacity while dealing with applications for permits. Held, that when a scheme. prepared and published under section 68 C has been approved and in application has been made in pursuance of the scheme and in the proper manner as specified in Ch. IV nothing more remains to be decided by the Regional 910 Transport Authority and it has no option to refuse the grant of the permit. The nature of the matter dealt under.s. 68 F(1) is such as does not attract the provisions of section 57(3) which lays down certain duties on the Regional Transport Authority when it considers an application for a permit. The provisions of section 57(3) have nothing to do with the matters dealt with by section 68 F(1). Srinivasa Reddy vs State of Mysore, ; , referred to. When taking action under, section 68 F(1) the Regional Transport Authority does not exercise any quasi judicial function and acts wholly in a ministerial capacity.

305/1960. Petition under Article 32 of the Constitution of India for enforcement of Fundamental Rights. Petitioner in person. H. N. Sanyal, Additional Solicitor General of India pond R. H. Dhebar, for the respondents, 441 1961. January 12. The Judgment of the Court was delivered by SUBBA RAO, J. This is a; petition under article 32 of the Constitution for an order in the nature of habeas corpus claiming that the petitioner has justly served his sentence and should, therefore, be released. On February 10, 1949, the Judge, Special Court, Red Fort, Delhi, convicted the petitioner for offences under section 3, read with section 6, of the Explosive Substances Act, under section 4(b) and section 5 thereof, I and for murder under section 302, read with section 109, of the Indian Penal Code; for the first two offences he was sentenced to seven years ' rigorous imprisonment and five years rigorous imprisonment respectively and for the third offence to transportation for life and all the sentences were directed to run concurrently. After conviction he was imprisoned in jails in the State of Punjab till May 19, 1950, and thereafter he was transferred to Nasik Road Central Prison in the State of Bombay (now Maharashtra). According to the petitioner, he has earned the following remissions up to September 30, 1960: (a) Ordinary remission . 836 days (b) Special remission . 206 days (c) Physical training remission . 113 days (d) Literary remission . 108 days (e) Annual good conduct remission . 250 days (f) State remission . 1380 days The total of the remissions earned is 2,893 days; but the State in its counter affidavit state that the petitioner has earned up to the said date remission of 2,963 days. The figure given by the State may be accepted as correct for the purpose of this petition. If the amount of remissions thus earned was added to the term of imprisonment the petitioner has actually served, the aggregate would exceed 20 years, and even if only the State remission was added to it, it would exceed 15 years. The petitioner, claiming that under the relevant provisions governing his imprisonment his further detention in jail would be illegal, prays that he might be set at liberty forthwith. The State, while conceding that he has earned remissions 56 442 &mounting to 2,963 days, alleged in the counter affidavit that the remissions earned did not entitle him to be released and that under the rules the question of his release would be considered only after he completed 15 years ' actual imprisonment. The petitioner argued his case in person. He rejected the help of an advocate as amicus curiae to assist him. In the circumstances, his argument was based more on emotional plane than on legal basis. But as the liberty of a citizen is involved, we have gone through the relevant provisions and considered the possible contentions that may be raised on the basis of the said provisions. The first question that falls to be decided is whether, under the relevant statutory provisions, an accused who was sentenced to transportation for life, could legally be imprisoned in one of the jails in India; and if so, what was the term for which he could be so imprisoned. We shall briefly notice the relevant provisions of the Indian Penal Code before it was amended by the Code of Criminal Procedure (Amendment) Act XXVI of 1955. Section 53 of the Indian Penal Code set out six different punishments to which offenders were liable. The second of those punishments was transportation and the fourth was imprisonment which was of two descriptions, namely, rigorous and simple. The word " transportation " was not defined in the Indian Penal Code, but it was for life with two exceptions. Under section 55 of the Indian Penal Code, " In every case in which sentence of transportation for life shall have been passed, the Provincial Government of the Province within which the offender shall have been sentenced may, without the consent of the offender, commute the punishment for imprisonment of either description for a term not exceeding fourteen years. " Under section 58 thereof, in every case in which a sentence of transportation was passed, the offender, until he was transported, should be dealt with in the same manner as if sentenced to rigorous imprisonment and should be held to have been undergoing his sentence of transportation during the term of his imprisonment. It was averred on behalf of the 443 State that the petitioner 's sentence had not been commuted under section 55 of the Indian Penal Code or under section 402 (1) of the Code of Criminal Procedure to one of rigorous imprisonment. We have no reason for not accepting this statement. On that basis, a question arises whether the petitioner, who was sentenced to transportation, could be dealt with legally as if he were a person sentenced to rigorous imprisonment. This question was raised before the Judicial Committee of the Privy Council in Pandit Kishori Lal vs King Emperor(1). After considering the history of the sentence of transportation, the relevant provisions of the Indian Penal Code, the Code of Criminal Procedure and the Prisons Act, the Privy Council came to the conclusion that the said provisions made it plain that when a sentence of transportation had been passed it was no longer necessarily a sentence of transportation beyond the seas. It was observed at p. 9 thus: " But at the present day transportation is in truth but a name given in India to a sentence for life and, in a few special cases, for a lesser period, just as in England the term imprisonment is applied to all sentences which do not exceed two years and penal servitude to those of three years and upwards. . . . So, in India, a prisoner sentenced to transportation may be sent to the Andamans or may be kept in one of the jails in India appointed for transportation prisoners, where he will be dealt with in the same manner as a prisoner sentenced to rigorous imprisonment. " In view of this weighty authority with which we agree, it is not necessary to consider the relevant provisions, particularly in view of section 53A of the Indian Penal Code which has been added by Act XXVI of 1955. Section 53A of the said Code reads: "(1). . (2) In every case in which a sentence of transportation for a term has been passed before the commencement of the Code of Criminal Procedure (Amendment) Act, 1954, the offender shall be dealt with in the same manner as if sentenced to rigorous imprisonment for the same term. (1) (1944) L.R. 72 I.A. I, 444 Whatever justification there might have been for the contention that a person sentenced to transportation could not be legally made to undergo rigorous imprisonment in a jail in India except temporarily till he was so transported, subsequent to the said amendment there is none. Under that section, a person transported for life or any other term before the enactment of the said section would be treated as a person sentenced to rigorous imprisonment for life or for the said term. If so, the next question is whether there is any provision of law whereunder a sentence for life imprisonment, without any formal remission by appropriate Government, can be automatically treated as one for a definite period. No such provision is found in the Indian Penal Code, Code of Criminal Procedure or the Prisons Act. Though the Government of India stated before the Judicial Committee in the case cited supra that, having regard to section 57 of the Indian Penal Code, 20 years ' imprisonment was equivalent to a sentence of transportation for life, the Judicial Committee did not express its final opinion on that question. The Judicial Committee observed in that case thus at p. 10: " Assuming that the sentence is to be regarded as one of twenty years, and subject to remission for good conduct, he had not earned remission sufficient to entitle him to discharge at the time of his application, and it was therefore rightly dismissed, but in saying this, their Lordships are not to be taken as meaning that a life sentence must and in all cases be treated as one of not more than twenty years, or that the convict is necessarily entitled to remission. " Section 57 of the Indian Penal Code has no real bearing on the question raised before us. For calculating fractions of terms of punishment the section provides that transportation for life shall be regarded as equivalent to imprisonment for twenty years. It does not say that transportation for life shall be deemed to be transportation for twenty years for all purposes; nor does the amended section which substitutes the words imprisonment for life " for " transportation for life enable the drawing of any such all embracing fiction. A sentence of transportation for life or 445 imprisonment for life must prima facie be treated as transportation or imprisonment for the whole of the remaining period of the convicted person 's natural life. It is said that the Bombay rules governing the remission system substituted a definite period for life imprisonment and, therefore, if the aggregate of the term actually served exceeds the said period, the person would be entitled to be released. To appreciate this contention the relevant Bombay rules may be read. Release. Rule 934. " In a11 cases of premature releases, orders under Section 401, Criminal Procedure Code, will have to be issued by Government before the prisoners can actually be released from Jail. " Rule 937. (c) " When a life convict or a prisoner in whose case the State Government has passed an order forbidding his release without reference to it, has earned such remission as would entitle him to release but for the provisions of this rule, the Superintendent shall report accordingly to the State Government through the Inspector General in order that his case may be considered with reference to Section 401 of the Code of Criminal Procedure, 1898. " The Remission System: Rule 1419. (c) " A sentence of transportation for life shall ordinarily be taken as 15 Years ' actual imprisonment." Review of Sentences: Rule 1447. (2) " Notwith standing anything contained in rule 1419 no prisoner who has been sentenced to transportation for life or more than 14 years, imprisonment or to transportation and imprisonment or to transportation and imprisonment for terms exceeding in the aggregate 14 years shall be released on completion of his term of transportation or imprisonment or both, as the case may be, including all remissions unless a report with respect to such prisoner has been made under sub.rule (1) and orders of Government have been received thereon with regard to the date of his final release. " It is common case that the said rules were made under the , and that they have 446 statutory force. But the does not confer on any authority a power to commute or remit sentences; it provides only for the regulation of prisons and for the treatment of prisoners confined therein. Section 59 of the confers a power on the State Government to make rules, inter alia, for rewards for good conduct. Therefore, the rules made under the Act should be construed within the scope of the ambit of the Act. The rules, inter alia, provide for three types of remissions by way of rewards for good conduct, namely, (i) ordinary, (ii) special and (iii) State. For the working out of the said remissions under rule 1419(c), transportation for life is ordinarily to be taken as 15 years ' actual imprisonment. The rule cannot be construed as a statutory equation of 15 years ' actual imprisonment for transportation for life. The equation is only for a particular purpose, namely, for the purpose of " remission system " and not for all purposes. The word " ordinarily " in the rule also supports the said construction. The non obstante clause in sub rule (2) of rule 1447 reiterates that notwithstanding anything contained in rule 1419 no prisoner who has been sentenced to transportation for life shall be released on completion of his term unless orders of Government have been received on a report submitted to it. This also indicates that the period of 15 years ' actual imprisonment specified in the rule is only for the purpose of calculating the remission and that the completion of the term on that basis does not ipso facto confer any right upon the prisoner to release. The order of Government contemplated in rule 1447 in the case of a prisoner sentenced to transportation for life can only be an order under section 401 of the Code of Criminal Procedure, for in the case of a sentence of transportation for life the release of the prisoner can legally be effected only by remitting the entire balance of the sentence. Rules 934 and 937(c) provide for that contingency. Under the said rules the orders of an appropriate Government under section 401, Criminal Procedure Code, are a prerequisite for a release. No other rule has been brought to our notice which confers an indefeasible right on a 447 prisoner sentenced to transportation for life to an unconditional release on the expiry of a particular term including remissions. The rules under the do not substitute a lesser sentence for a sentence of transportation for life. Briefly stated the legal position is this: Before Act XXVI of 1955 a sentence of transportation for life could be undergone by a prisoner by way of rigorous imprisonment for life in a designated prison in India. After the said Act, such a convict shall be dealt with in the same manner as one sentenced to rigorous imprisonment for the same term. Unless the said sentence is commuted or remitted by appropriate authority under the relevant provisions of the Indian Penal Code or the Code of Criminal Procedure, a prisoner sentenced to life imprisonment is bound in law to serve the life, term in prison. The rules framed under the enable such a prisoner to earn remissions ordinary, special and State and the said remissions will be given credit towards his term of imprisonment. For the purpose of working out the remissions the sentence of transportation for life is ordinarily equated with a definite period, but it is only for that particular purpose and not for any other purpose. As the sentence of transportation for life or its prison equivalent, the life imprisonment, is one of indefinite duration, the remissions so earned do not in practice help such a convict as it is not possible to predicate the time of his death. That is why the rules provide for a procedure to enable the appro priate Government to remit the sentence under section 401 of the Code of Criminal Procedure on a consideration of the relevant factors, including the period of remissions earned. The question of remission is exclusively within the province of the appropriate Government; and in this case it is admitted that, though the appropriate Government made certain remissions under section 401 of the Code of Criminal Procedure, it did not remit the entire sentence. We, therefore, hold that the petitioner has not yet acquired any right to release. 448 The petitioner made an impassioned appeal to us that if such a construction be accepted, he would be at the mercy of the appropriate Government and that the said Government, out of spite, might not remit the balance of his sentence, with the result that he would be deprived of the fruits of remissions earned by him for sustained good conduct, useful service and even donation of blood. The Constitution as well as the Code of Criminal Procedure confer the power to remit a sentence on the executive Government and it is in its exclusive province. We cannot assume that the appropriate Government will not exercise its jurisdiction in a reasonable manner. For the foregoing reasons we hold that the petitioner is under legal detention and the petition for habeas corpus is not maintainable. The petition is dismissed. Petition dismissed.

IN-Abs

The petitioner was convicted in 1949 and sentenced to trans portation for life. He earned remission of 2963 days and adding this to the term of imprisonment actually served by the petitioner the aggregate exceeded 20 years. The petitioner contended that his further detention in jail was illegal and prayed for being set at liberty: Held, that the petitioner had not yet acquired any right to be released. A sentence of transportation for life could be undergone by a prisoner by way of rigorous imprisonment for life in a designated prison in India. Section 53A of the Indian Penal Code, introduced by the Code of Criminal Procedure (Amendment) Act, 1955, provided that any person sentenced to transportation for life before the Amendment Act would be treated as sentenced to rigorous imprisonment for life. A prisoner sentenced to life imprisonment was bound to serve the remainder of his life in prison unless the sentence was commuted or remitted by the appropriate authority. Such a sentence could not be equated with any fixed term. The rules framed under the Prisons Act entitled such a prisoner to earn remissions but such remissions were to be taken into account only towards the end of the term. The question of remissions was exclusively within the province of the appropriate Government. In the present case though the Government had made certain remissions under section 401 of the Code of Criminal Procedure, it had not remitted the entire sentence. Pandit Kishori Lal vs King Emperor, (1944) L.R. 72 I.A. , referred to.

minal Appeal No. 168 of 1959. Appeal by special leave from the judgment and order dated September 10, 1958, of the Patna High Court in Criminal Appeal No. 580 of 1953. B. B. Tawakley and R. C. Prasad, for the appellant. A. K. Dutt and section P. Varma, for the respondent. April 18. The Judgment of the Court was delivered by RAGHUBAR DAYAL, J. This appeal, by special leave, is against the order of the Patna High Court dismissing the appellant 's appeal against his conviction for offences under section 161, Indian Penal Code and a. 5(2) of the Prevention of Corruption Act, 1947 (Act 11 of 1947), hereinafter called the Act. The appellant was the Construction Engineer at Sindhri. R. B. Basu was a contractor living in Calcutta and carrying on the business of the company named and styled the Hindustan Engineering and Construction Company. The prosecution alleged, and the Courts below have found, that the appellant accepted the sum of Rs. 10,000 as illegal gratification from Basu at the Kelner 's Restaurant at Dhanbad Railway Station on July 18, 1951. The Courts disbelieved the appellant 's defence that he had taken the envelope containing this amount not knowing that it contained this amount, but knowing that it contained papers relating to Basu 's con. tracts. The contentions raised on behalf of the appellant are: (i)that the provisions regarding the presumption contained in section 4 of the Act are unconstitutional; (ii) that the case was tried by the Special Judge who had no jurisdiction to try it; (iii) that there had been no proper corroboration of the statement of Basu about the accused demanding the bribe and accepting the amount as illegal gratification. The Constitutionality of section 4 of the Act was sought to be questioned on the ground that it went against 52 the provisions of article 21 of the. Constitution which reads: "No person shall be deprived, of his life or personal liberty except;according to procedure established by law. " We do not consider this question to be a substantial question of law for the purpose of article 145(3), which lays down that the minimum number of Judges who are to sit for the purpose of deciding any case involving a substantial question of law as to the interpretation of the Constitution shall be five, in view of it being held that the word 'law ' in article 21 refers to law made by the State ' and not to positive law. It has been held in A. K. Gopalan vs The State of Madras (1) that in article 21, the word law ' has been used 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, and 'procedure established by law ' means procedure established by law made by the State, that is to say, by the Union Parliament or the Legislatures of the States, Section 4 has been enacted by Parliament and therefore it must be held that what it lays down is a procedure established by law. The appellant was tried by the Special Judge of Patna. The offence was committed at Dhanbad, in Manbhum District. The case was chalanned to the Magistrate at Dhanbad. On an application by the accused, the High Court transferred it to the Court of the Munsif Magistrate at Patna. Subsequent to this order of transfer, the Criminal Law Amendment Act, 1952 (Act XLVI of 1952) came into force on July 28, 1952. The case, thereafter, was forwarded to the Special Judge at Patna in view of section 10 of the Criminal Law Amendment Act. The contention for the appellant is that there was the Special Judge at Manbhum and flat he alone could have tried this case. Section 7 of the Criminal Law Amendment Act, reads: (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1898, or in any other law the offences specified in subjection (1) of section 6 shall be triable by special Judges only. (1) ; 53 (2) Every '.offence specified in sub section (1) of section 6 shall be tried by the special Judge for the area within which it was committed, or where there are more special Judges than one for such area, by such one of them as may be specified in this behalf by the State Government. (3)When trying any case, a special Judge may also try any offence other than an offence specified in section 6 with which the accused may, under the Code of Criminal Procedure, 1898, be charged at the same trial." Sub section (1) makes the offences under section 161, Indian Penal Code and section 5(2) of the Act triable by a; special Judge only. The appellant has been tried by a special Judge appointed under the Act. His grievance is not with respect to the competency of the Court which tried him, but is with respect to the trial Court having no territorial jurisdiction to try him, as sub section (2) of section 7 provides that such offences would be tried by the special Judge for the area in which the were committed. The offences were committed within the territorial jurisdiction of the special Judge at Manbhum and therefore could have been tried by him alone. It would therefore appear that the special Judge at Patna had no jurisdiction to try this case. Sub section (3) of section 8 of the Criminal Law Amendment Act reads: "Save as provided in sub section (1) or sub section (2), the provisions of the Code of Criminal Procedure, 1898 shall, so far as they are not inconsistent with this Act, apply to the proceedings before a special Judge; and for the purposes of the said provisions, the Court of the special Judge shall be deemed to be a Court of Session trying cases without a jury or without the aid of assessors and the person conducting a prosecution before a special Judge shall be deemed to be a public prosecutor. " It follows that the provisions of section 526 of the Criminal Procedure Code empowering the High Court to transfer any case from a criminal Court subordinate to it (1) ; 54 to any other Court competent to try it, apply to the case before any special Judge. If this case had been transferred to the Court of the Special Judge, Manbhum, on the coming into force of the Criminal Law Amendment Act, it would have been open to the High Court to transfer the case from that Court to the Court of the Special Judge, Patna. The case had been transferred from Dhanbad to Patna at the request of the appellant. The trial at Patna cannot be said to have prejudiced the appellant in any way. The mere omission of a formal forwarding of this case to the Special Judge at Manbhum and of a formal order of the High Court to transfer it to the Court of the Special Judge at Patna, have not, in our opinion, prejudiced the appellant in any way. When the case was taken up by the Special Judge, Patna, on October 23, 1952, the accused as well as the Public Prosecutor desired de novo trial. No objection to the jurisdiction of the Court to try the case was taken at that time. Such an objection appears to have been taken at the time of the arguments before the Special Judge and was repelled by him. Such an objection was not raised before the High Court when the appellant 's appeal was first heard in 1955 or in this Court when the State of Bihar appealed against the order of the High Court. All this indicates that the appellant did not feel prejudiced by the trial at Patna. In view of section 531 of the Code of Criminal Procedure, the order of the Special Judge, Patna, is not to be set aside on the ground of his having no territorial jurisdiction to try this case, when no failure. of justice has actually taken place. It is contended for the appellant that section 531 of the Code of Criminal Procedure is not applicable to this case in view of sub section (1) of section 7 and section 10 of the Criminal Law Amendment Act. We do not agree. The former provision simply lays down that such offences shall be triable by special Judges and this provision has not been offended against. Section 10 simply provides that the cases triable by a special Judge under section 7 and pending before a Magistrate immediately before the commencement of the Act shall be forwarded for trial to the 55 special Judge having jurisdiction over such cases. There is nothing in this section which leads to the non application of section 531 of the Criminal Procedure Code. We are therefore of opinion that the order of the special Judge convicting the appellant cannot be quashed merely on the ground that he had no territorial jurisdiction to try this case. The last contention for consideration is whether there had been proper corroboration of the statement of Basu about the accused demanding the bribe of Rs. 10,000 and accepting it on July 18, 1951, at the Kelner Refreshment Room, Dhanbad Railway Station. We may briefly indicate the salient facts deposed to by Basu in this connection. The appellant is said to have visited Calcutta in December 1950, to have gone to Basu 's house and to have asked him to pay a bribe of Rs. 10,000. There is no direct corroboration of this statement by the testimony of any other witness. Kanjilal, an employee of Basu, under in. structions of his master, met the appellant in May, 1951, enquired of him whether he would accept the amount he had demanded in December and had not been so far paid, and got the reply that the amount would be: acceptable. He conveyed this information to Basu. Nothing was done till over a month and then too, not to make the payment, but to inform the authorities. In June 1951, Basu informed Mr. K. N. Mookerjee, P. W. 3, the then Superintendent of Police, Special Police Establishment, about the accused 's demanding bribe and at his request delivered the letter, Exhibit 11/1, dated June 18, to him. He made mention in this letter about the demand made in December 1950, but made no reference to the appellant 's expression of readiness to accept the amount in the month of May. Mr. Mookerjee took steps for laying the trap and deputed Mr. section P. Mookerjee, P.W. 1. Kanjilal met the appellant on July 14 and arranged with him that he would go to Dhanbad railway station when Basu would also be reaching there and 'that the money would be paid there and that the date of that meeting would be communicated later. Basu was told of this arrangement at Calcutta. He, in his turn, informed the authorities. July 18 was fixed for the purpose. Kanjilal informed the appellant by telephone on July 16 that the meeting would be on the 18th and that Basu would be reaching Dhanbad by the Toofan Express at about 5 p.m. The trap arrangements were completed and the trap party reached Dhanbad by the Toofan Express on July 18. Kanjilal himself went to Sindhri on the morning of July 18 and confirmed the arrangement to the appellant. The appellant also reached Dhanbad railway station at about 5p.m. The members of the trap party took their seats at different tables in the corners of the Refreshment Room of Kellner 's Restaurant. Basu, with the appellant, reached there and occupied another table. Refreshments were taken. Thereafter, Basu talked over matters about the contract with the appellant, moved near him, took out the file from his satchel and then, after some conversation, took out the envelope containing the currency notes of the value of Rs. 10,000 and having its one long edge slit. This envelope was passed on to the appellant. Basu states that he made a statement at the time that there were Rs. 10,000, which he could, not pay to the appellant so far. The appellant took the envelope and put it in his trouser pocket. The trap party, after getting the signal that the bribe money had been paid, surrounded the appellant and got the envelope from him. , It was found to contain the very currency notes whose 'numbers had previously been noted by the Magistrate, Mr. Mahadevan. There is no verbal corroboration of Kanjilal 's statement about the message he conveyed to the appellant either in May or on the telephone or on the morning of the 18th of July. The Courts below have found corroboration of the statements of Basu from the circumstances that the demand of money in December 1950 was mentioned in June, 1951, to Mr. K. N. Mookerjee; that the trap must have been laid when Basu must have been 67 certain that the appellant would turn up at Dhanbad at the appointed time and that the appellant 's presence at Dhanbad railway station could not have been accidental but must have been the result of previous arrangement. No infirmity can be found in this reasoning. The appellant gave an explanation for his presence at the railway station that day. It has not been accepted by the Courts below. In fact, the learned counsel for the appellant did not press it for consideration at the second hearing of the appeal, on remand by this Court. No doubt, the trap arrangements must have been made when there was a practical certainty that the appellant would turn up at Dhanbad railway station. Basu is not expected to mention falsely in the month of June that the appellant made a demand of Rs. 10,000 in December 1950. Ordinarily, one is not expected to make a complaint of such a demand after such a long period of time. The interval of time seems to have been due possibly to a hope that matters may straighten out or that a lower sum might be acceptable as bribe to pass the pending bills of Basu. The omission of the trap witnesses to corroborate Basu 's statement at the time of the passing on of the envelope to the appellant, in forming the appellant of the envelope containing Rs. 10,000, is really surprising when the party consisted of four persons who had gone there for the purpose of being witnesses of the appellant 's accepting the bribe and who could therefore be expected to be alert to hear what passed on between the appellant and Basu. The question here is, what did the appellant expect the envelope to contain? It was no occasion for Basu to personally deliver any bills or papers concerning the contract business. Such papers could have been sent in the regular course of business to the appellant 's office. The appellant does not appear to have questioned Basu as to what the envelope contained, as he would have done, if he did not know for certain what it contained. The appellant 's statement that he understood the envelope to contain bills etc., is not consistent with his putting the envelope in his 8 58 pocket. The envolope is expected to be a fat one as it contained one hundred Rs. 100 currency notes. An envelope containing business papers is not expected to be put in the trouser pocket. One usually carries it in hand, or in one of the pockets of the coat or bush shirt one may be putting on. When it is held that the appellant must have gone to Dhanbad railway station by arrangement, it becomes a moot point, what the purpose of the arrangement was. Surely, it could not have been a mere delivering of certain bills and papers. As already mentioned, it could have been sent to Sindhri by post or through Kanjilal or any other messenger. The purpose of the meeting at Dhanbad railway station must have been different. The appellant has failed to mention any purpose which could be accepted as correct. It is true that the appellant was not specifically questioned, when examined under section 342, Criminal Procedure Code, with respect to his demanding Rs. 10,000 at Calcutta, Kanjilal 's visit to him in May and July and his telephonic call and the arrangement and about Basu 's statement at the time the envelope was passed on to him. But we are of opinion that this omission has not occasioned any failure of justice. The appellant fully knew what had been deposed to by witnesses and what had been the case against him. He denied the correctness of the main allegation that he received Rs. 10, 000 as bribe. We are therefore of opinion that the appellant knew when he took the envelope from Basu that he was getting Rs. 10,000 as bribe, which amount he had demanded, and that therefore the conviction of the appellant is correct. The appeal is therefore dismissed. Appeal dismissed.

IN-Abs

The appellant accepted a sum of Rs. 10,000 from a con tractor. He was chalanned before a Magistrate at Dhanbad; but on an application by the appellant the High Court trans ferred the case to the Munsif Magistrate, Patna. Subsequently, the Criminal Law Amendment Act, 1952, came into force which made every offence under section 161 Indian Penal Code and section 5(2) Prevention of Corruption Act triable only by a Special judge for the area within which it was committed. The case of the appellant was forwarded to the Special judge at Patna who convicted him both under section 161 and section 5(2). The appellant contended: (1) that the Special judge at Patna had no jurisdiction to try the appellant as the offence was committed within the area of the Special judge at Dhanbad and (2) that the provisions regarding the presumption contained in section 4 of the Prevention of Corruption Act, 1947, offended article 21 of the Constitution. Held, that the order of conviction could not be quashed on the ground that the Special judge at Patna had no territorial jurisdiction to try the case as no failure of justice had been occasioned. Section 531 Code of Criminal Procedure was applicable to trials by Special judges. The High Court had also the power under section 526 of the Code to transfer a case from one Special judge to another, and the omission of a formal order transferring the case to the Special Judge at Patna had not prejudiced the appellant. Held, further that the procedure laid down by section 4 of the Prevention of Corruption Act, which was enacted by Parlia ment, laid down a procedure established by law. The question that section 4 offended article 21 of the Constitution was not a substantial question as to the interpretation of the Constitution within the meaning of article 145(3) and it was not necessary to refer it to a Bench of five judges. A. K. Gopalan vs The State of Madras, ; , followed.

Appeal No. 3 of 1951. , Appeal from the Judgment and Order dated March 11, 1949, of the High Court of Judicature at Madras (Satyanarayana Rao and Viswanatha Sastri JJ.) in Original Side Appeal No. 3 of 1947, &rising out of the Judgment and Order dated November 15, 1946, of Clark J. and made in the exercise of the Ordinary Original Civil Jurisdiction of the High Court in Application No. 599 of 1946. M. C. Setalvad (Attorney General for India) (A. Balasubramanian, with him) for the appellant. N. Baja Gopala Iyengar for the respondent. December 9. The Judgment of Mehr Chand Mahajan, Das and Ghulam Hasan JJ. was delivered by Das J. Vivian Bose J. delivered a separate Judgment. DAS J. This appeal arises out of an application made by the Official Receiver representing Sha Mulchand & Company Ltd. (in liquidation) under section 38 of the Indian Companies Act for rectification of the register of the Jawahar Mills Ltd. Sha Mulchand & Company Ltd. (hereinafter referred to as " the Company") was incorporated in 354 1937 as a private limited company. At all material times it consisted of two members,. T. V. T. Govindaraju Chettiar and K. N. Sundara Ayyar. The Jawahar Mills Ltd. (hereinafter called " the Mills") was also incorporated in 1937 with an authorised capital of Rs. 10,00,000 divided into one lac shares of Rs. 10 each. The Company was the managing agent of the Mills from its inception and applied for and was allotted 5,000 ten rupee shares Nos. 1.5048 to 20047 on which Rs. 5 per share had been paid. The Company continued to act as the managing agent of the Mills till the 30th June, 1939, on which date it resigned the managing agency. Prior to the Company 's resignation the two members of the Company had entered into an agreement with one M. A. Palaniappa Chettiar, a partner of the incoming managing agency firm, up on certain terms which need not be referred to in greater detail. Within two months after the change of managing agents, the Mills made two calls, namely, one on the 22nd August, 1939, for Rs. 2 per share payable on the 1st October, 1939, and the other on the 1st October, 1939, for Rs. 3 payable, on the 1st December, 1939. The Company did not pay either of the calls. On the 23rd January, 1940, Govindaraju Chettiar was adjudged insolvent on the application of Sundara Ayyar. This insolvency of Govindaraju Chettiar was eventually annulled in 1944. During this period Govindaraju Chettiar, in law ', ceased to be a director of the Company, although it is alleged that he nevertheless continued to take part in the management of the Company. By a resolution of the Board of Directors of the Mills passed on the 12th August, 1940, the new managing agents were empowered to give notices to such persons as had not paid the allotment money and the call money within the date fixed and to intimate them that in default their shares would be ' forfeited. A notice was issued on the 16th September, 1940, and two copies thereof are said to have been sent to Sundara Ayyar and Govindaraju Chettiar. 355 No payment having been made, the 5,000 shares held by the Company were forfeited by a resolution of the Board of Directors of the Mills. The auditor of the Mills having pointed out that the purported forfeiture was irregular and illegal, this forfeiture was cancelled. By a resolution passed by circulation on the 26th February, 1941, the Board of Directors of the Mills resolved that a notice be sent to the Company informing it that it was in arrears with calls to the extent of Rs. 25,000, that the amount must be paid on or before the 31st March, 1941, and that, in default, its shares would be forfeited. A notice dated the 15th March, 1941, was accordingly addressed to the Company and sent by registered post with acknow ledgment due. It appears that the notice was actually posted on the 17th March, 1941, and was received by Govindaraju Chettiar on the 20th March, 1941. The Company did not pay the arrears of calls. On the 5th September, 1941, the Board of Directors of the Mills resolved that " the 5,000 shares Nos. 15048 20047 standing in the name of the Company have been forfeited. " On the 10th September, 1941, the Mills wrote a letter to the Company informing the latter that the Directors of the Mills bad at their meeting held on the 5th September, 1941, forfeited the 5,000 shares. There is no dispute that this letter which was sent by registered post was returned undelivered. On the 1st October, 1941, an entry was made in the share ledger of the Mills recording that the 5,000 shares of the Company had been forfeited. On the 16th November, 1941, these 5,000 shares were reallotted to 14 different persons and on the 17th November, 1941, a letter was sent to the Company intimating that the forfeited shares had been reallotted and calling upon the Company to send back to the Mills all the documents relating to the original allotment of the 5,000 shares to the Company. In the meantime on the 26th August, 1941, by an order made by the Registrar of Joint Stock Companies the Company was struck off the register of companies under section 247 356 of the Indian Companies Act. This order of 'the Registrar was published in the Official Gazette on the 9th September, 1941, i.e., four days after the shares were forfeited and one day before the notice intimating the fact of forfeiture was sent in a registered cover which was, however, returned undelivered. Under section 247 (5) of the Indian Companies Act the Company stood dissolved on and from the date of such publication. The Mills having come to know of the dissolution of the Company applied to the High Court (O.P. No. 10 of 1942) praying that the name of the Company be restored to the register of companies and that after such restoration was duly advertised the Company be wound up by the Court. A similar application was made on the 11th December, 1941, by the Income tax authorities (O.P. No. 11 of 1942). On the 23rd February, 1942, Sundara Ayyar filed an affidavit contending, amongst other things that the Directors of the Mills had no power to forfeit the shares. On the 2nd April, 1942, however, O.P. No. 10 of 1942 was compromised, and the Mills received Rs. 11,000 from Sundara Ayyar in full satisfaction of their claim against the Company. On the 25th June, 1942, O.P. No. 11 of 1942 was also compromised and Sundara Ayyar paid up the claim of the Income tax authorities. The two petitions for restoration of the Company were accordingly dropped. On the 27th June, 1942, Sundara Ayyar filed a suit against the Mills and others including Palaniappa Chettiar claiming a declaration that the forfeiture by the Mills of the 5,000 shares was illegal and inoperative and directing the Mills to pay to the plaintiff and the third defendant representing the estate of Govindaraju Chettiar the value of the forfeited shares with dividend or interest thereon and directing Palaniappa Chettiar to pay the plaintiff and the third defendant the sum of Rs. 25,000. This suit was dis missed on the 17th November, 1943, on the ground that Sundara Ayyar, who was only a member of the dissolved Company, had no locus standi and could 357 have no relief personally. Sundara Ayyar filed an appeal therefrom which was dismissed as against the Mills but the case was remanded to the trial Court for the trial of his claim as against the fourth defendant, Palaniappa Chettiar. During the pendency of Sundara Ayyar 's appeal he on the 12th August, 1944, filed O.P. No. 199 of 1944 for the restoration of the Company. On that application an order was made on the 16th February, 1945, that the name of the Company be restored to the register of companies, that the Company be deemed to have continued in existence as if its name had never been struck off, that such restoration be advertised and that the Company be wound up by the Court and the Official Receiver do forthwith take charge of the assets and liabilities of the Company. It was further ordered that the Official Receiver do recognise that as between the Mills and the Company, the Mills should be regarded as having been duly paid only Rs. 11,000 out of the total debt of Rs. 25,550 due ' to the Mills. By an order made on the 21st January, 1946, leave was given to the Official Receiver to take appropriate steps regarding the 5,000 shares purported to have been forfeited by the Mills. Accordingly on the 5th March, 1946, the Official Receiver, in the name of the Company, took out the present summons calling upon all parties concerned to show cause why the share register of the Mills should not be rectified by restoring the name of the Company to the said register in respect of 5,000 shares numbering 15048 20047 and why such other alternative or consequential relief should not be granted to the applicant as might be just and necessary in the circumstances of the case. The Mills contended, in opposition to that application, that the shares had been properly forfeited, that the Company was, on the principles of estoppel, acquiescence and laches, precluded from challenging the forfeiture, that the application was barred by limitation and that the shares having already been allotted to other persons, who had not been made 358 parties to the application, order for rectification of the register in respect of those shares could be made. The summons came up for hearing before Mr. Justice Clark. The learned Judge, by his judgment dated the 15th November, 1946, held that the notice dated the 15th March, 1941, which was posted on the 17th March, 1941, and delivered on the 20th March 1941, and on which the resolution of forfeiture passed on the 5th September, 1941, was founded, was not in conformity with the provisions of articles 29 and 30 of the articles of association of the Company which required 14 clear days ' notice. The learned judge further held that the plea of estoppel, acquiescence and laches was untenable, that article 49 of the Limitation Act did not apply either expressly or by way of analogy to the present application and that article 120, which prescribed a period of six years from the date when the right to sue accrued, would, by analogy, apply to the present proceedings and that so applied the present proceedings must be held to be within time. Having disposed of the controversy on the above points it remained to consider the form of the order which could properly be made on the application. It is quite clear that the specific shares having already been allotted to 14 different persons and those persons not being then before the Court, the Court could not then and there direct rectification of the register by restoring the name of the Company to the share register of the Mills in respect of those identical shares. There was nevertheless nothing to prevent the Court even at that stage to give notice of the application to the persons to whom the shares had been reallotted and/or those who were holding the shares at the time and after thus adding them as parties thereto to make the appropriate order of rectification and, if thought fit, to also award damages to the Company. There were, however, 16,000 shares of Rs. 10 each yet unissued. After discussing the matter with learned advocates on both sides to which, discussion a reference will be made hereafter the 359 learned Judge, in the belief that the advocates for the parties had agreed as to the form of the order, directed that the Mills do rectify their register by inserting the name of the applicant Company as owner of 5,000 shares out of the unissued shares of Rs. 10 each and that on such insertion the Company do on or before the 15th January, 1947, pay to the Mills Rs. 25,000, being the amount of calls in arrears. Pursuant to further directions given by the learned Judge on the 7th January, 1947, the Mills on the 10th January, 1947, received Rs. 25,000 and allotted 5,000 shares. Although the Mills thus acted upon the order they, nevertheless, on the 6th February, 1947, filed an appeal against the order. That appeal came up for hearing before a Bench consisting of Satyanarayana Rao and Viswanatha Sastri JJ. It was not disputed before the appeal Court that the forfeiture was invalid, but the contentions urged were that by reason of the irregularity the forfeiture was only voidable and not void and that as the forfeiture was only voidable it was open to the Company to waive or abandon its right to dispute the validity of the forfeiture and that in fact, by its conduct, it had done so, that the claim to rectify the register was barred by limitation and that in any event rectification was impossible because the shares were not available in specie, the same having been reallotted to other persons. The learned Judges by their judgment dated the 11th March 1949, held that the forfeiture was invalid, that the application was not barred by limitation for it was covered by article 120 of the Limitation Act. The learned Judges recognised that where a period of limitation was prescribed for a suit or a proceeding mere delay was no bar unless it was of such a character as would lead to an inference of abandonment of the right or unless it: was established that the person against whom the action or proceeding was instituted was actually prejudiced by reason of such delay. The learned Judges agreed with the 47 360 trial Court that no plea of acquiescence, waiver or estoppel had been established in the present case. The learned Judges, nevertheless, thought that the question of abandonment of the right and prejudice to the appellant by reason of the delay stood on a different footing. Then after referring to certain conduct on the part of Govindaraju Chettiar and Sundara Ayyar the learned Judges concluded that by reason of the long delay in reviving the Company and in taking proceedings under section 38 of the Indian Companies Act the Mills had been induced to put themselves in a situation in which it became impossible for them to restore the Company to the register in respect of those 5,000 shares and that in view of this conduct, if the applicants were Govindaraju Chettiar and Sundara Ayyar, it would have been a case in which relief would have been refused in the light of the principles which the learned Judges deduced from the judicial decisions referred to by them. Then referring to the decision in Smith, Stone & Knight vs Birmingham Corporation (1) and certain text books the learned Judges took the view that it was too late in the day to adhere to the strict formalism laid down in Salomon 's case (2) and that as the tendency of modern decisions was to lift the veil of corporate personality and disregard the corporate form, the conduct of its only two members had disentitled the company from claiming the relief of rectification. The learned Judges further held that there was no legal basis on which the form of the order could be supported. On reading the judgment of the trial Judge and after hearing the senior advocate appearing for the Mills the learned Judges felt unable to agree that the learned advocate had agreed to the substitution of, the 6,000 out of the unissued shares for the 5,000 forfeited shares. The resilt was that the appeal was allowed and the order of the trial Judge was set aside. The Company by its Official Receiver has now come up before this Court with leave granted by the High Court (1) (2) ; 361 under sections 109 and 110 of the Code of Civil Procedure. The appeal Court, it will be observed, reversed the decision of the trial Judge and decided the appeal against the Company on two grounds only, namely, (1) that the Company had by the conduct of its two members abandoned its right to challenge the forfeiture, and (2) that the form of the order could not be supported as one validly made under section 38 of the Indian Companies Act. The learned AttorneyGeneral, appearing in support of this appeal, has assailed the soundness of both these grounds. The learned Attorney General contends, not without considerable force, that having, in agreement with the trial Coury, held that no plea of acquiescence, waiver or estoppel had been established in this case, the appeal Court should not have allowed the Mills to raise the question of abandonment of right by the Company, inasmuch as no such plea of abandon ment had been raised either in the Mills ' affidavit in opposition to the Company 's application or in the Mills grounds of appeal before the High Court. Apart from this, the appeal Court permitted the Mills to make out a plea of abandonment of right by the Company ,as distinct from the pleas of waiver, acquiescence and estoppel and sought to derive support for this new plea from the well known cases of Prendergast vs Turton(1), Clark & Chapman vs Hart(2) and Jones vs North Vancouver Land and Improvement, Co.(3). A perusal of the relevant facts set out in the several reports and the respective judgments in the above cases will clearly indicate that apart from the fact that some of them related to collieries which were treated on a special footing, those cases were really cases relating to waiver or acquiescence or estoppel. Indeed in Clarke 's case (2) while Lord Chelms ford referred to the decision in Prendergast 's case(1) as a case of abandonment of right, Lord Wensleydale read it as an instance of acquiescence and estoppel. Unilateral act or conduct of a person, (1) ; (3) [1910] A.C. 317. (2) 6 H.L.C. 632; 10 E.R. I443. 362 that is to sky act or conduct of one person which is not relied upon by another person to his detriment, is nothing more than mere waiver, acquiescence or laches, while act or conduct of a person amounting to an abandonment of his right and inducing another person to change his position to his detriment certainly raises the bar of estoppel. Therefore, it is not intelligible how, having held that no plea of waiver, acquiescence or estoppel had been established in this case, the appeal Court could, nevertheless, proceed to give relief to the Mills on the plea of abandonment by the Company of its rights. If the facts on record were not sufficient to sustain the plea of waiver, acquiescence or estoppel, as hold by both the Courts, we are unable to see how a plea of abandonment of right which is an,aggravated, form of waiver, acquiescence or laches and akin to estoppel could be sustained on the self same facts. Further, whatever be the effect of mere waiver, acquiescence or laches on the part of a person on his claim to equitable remedy to enforce his rights under an executory contract, it is quite clear, on the authorities, that mere waiver, acquiescence or laches which does not amount to an abandon ment of his right or to an estoppel against him cannot disentitle that person from claiming relief in equity in respect of his executed and not merely executory interest. See per Lord Chelmsford in Clarke 's case (1) at page 657. Indeed, it has been held in The Garden Gully United Quartz Mining Company vs Hugh McLister(2) that mere laches does not disentitle the holder of shares to equitable relief against an invalid declaration of forfeiture. Sir BarnesPeacook in delivering the judgment of the Privy Council observed at pages 56 67 as follows: There is no evidence sufficient to induce their Lordships to hold that the conduct of the plaintiff did amount to an abandonment of his shares, or of his interest therein, or estop him from averring that he continued to be the proprietor of them. There certainly is no evidence to justify such a conclusion (1) ; 6 H.L.C. 632: (2) L. R.1 App. 39. 363 with regard to his conduct subsequent to the advertisement of the 30th of May, 1869. In this case, as 'In that of Prendergast vs Turton(1), the plaintiff 's interest was executed. In other words, he had a legal interest in his shares and did not require a declaration of trust or the assistance of a Court of Equity to create in him an interest in them. Mere laches would not, therefore, disentitle him to equitable relief:, Clarke and Chapman vs Hart(2). It was upon the ground of abandonment, and not upon that of mare laches, that Prendergast vs Turton(1) was decided. " Two things are thus clear, namely, (1) that abandonment of right is much more than mere waiver, acquiescence or laches and is something akin to estoppel if not estoppel itself, and (2) that mere waiver, acquiescence or laches which is short of abandonment of right or estoppel does not disentitle the holder of shares who has a vested interest in the shares from challenging the validity of the purported forfeiture of those shares. In view of the decision of the Courts below that no case of waiver, acquiescence, laches or estoppel has been established in this case it is impossible to hold that the principles deducible from the judicial decisions relied upon by the appeal Court have disentitled the Company to relief in this case. The matter does not rest even here. Assuming. , but not conceding, that the principle of piercing the veil of corporate personality referred to in Smith, Stone & Knight vs The Birmingham Corporation (3) can at all be applied to the facts of the present case so as to enable the Court to impute the acts or conduct of Govindaraju Chettiar and Sundara Ayyar to the Company, we have yet to inquire whether those acts or conduct do establish such abandonment of rights as would, according to the decisions, disentitle the plaintiff from questioning the validity of the purported declaration of forfeiture. There can be 'no question that the abandonment, if any, must be inferred from acts or conduct of the Company as such ' or, on the above principles, of its two members subsequent to (1) ; (3) (2) 6 H.L.C. 632: 10 E.R. I443. 364 the date of the forfeiture, for it is the right to challenge the forfeiture that is said to have been abandoned. 'In order to give rise to an estoppel against the Company, such acts or conduct amounting to abandonment must be anterior to the Mills ' changing its position to its detriment. The resolution for forfeiture was passed on the 6th September, 1941. The five thousand forfeited shares were allotted to 14 persons on the 16th November, 1941, and it is such ,allotment that made it impossible for the Mill& to give them back to the Company. In order, therefore, to sustain a plea of abandonment of right or estoppel, it must be shown that the Company or either of its two members had done some act and/or had been guilty of some conduct between the 6th September, 1941, and the 16th November, 1941. No such act or conduct during such period has been or can be pointed out. On being pressed advocate for the Mills refers us to the conduct of Sundara Ayyar in opposing O.P. No. 10 'of 1942 filed by the Mills and O.P. No. 11 of 1942 by the Income tax authorities for restoring the Company to the register of companies and it is submitted that such conduct indicates that Sundara Ayyar had accepted the validity of the forfeiture. This was long after the Mills had reallotted the forfeited shares. Further, a perusal of paragraph 9 of the affidavit in opposition filed by Sundara Ayyar in O.P. No. 10 of 1942 will clearly show that he not only did not accept the forfeiture as valid but actually repudiated such forfeiture as wholly beyond the competence of the Board of Directors of the Mills. The reason for opposing the restoration of the Company may well have been that Sundara Ayyar desired, at all cost, to avoid his eventual personal liability as a shareholder and director of the Company. In any case, Sundara Ayyar did make it clear that he challenged the validity of the purported forfeiture of shares by the Mills and in this respect this case falls clearly within the decision in Clarke 's case (1) relied upon by the appeal Court. The only other conduct of Sundara Ayyar relied on by learned advocate for the Mills in (1) ; 6 H.L.C. 632; 365 support of the appeal Court 's decision on this point is that Sundara Ayyar proceeded with his suit against Palaniappa Chettiar even after his suit as well as his appeal had been dismissed as against the Mills. In that suit Sundara. Ayyar sued the Mills as well as Govindaraju Chettiar and the Official Receiver of Salem representing the latter 's estate and Palaniappa Chettiar. In the plaint itself the validity of the forfeiture was challenged. The claim against Palani appa Chettiar was in the alternative and it was founded on the agreement of the 30th June, 1939. The suit was dismissed as against the Mills only on the technical ground that Sundara Ayyar had no locus standi to maintain the suit. The contention of the Company that the forfeiture was invalid and the claim for rectification of the share register of the Mills by restoring the name of the Company cannot possibly have been affected by this decision. Sundara Ayyar 's claim against Palaniappa Chettiar was based on the agreement of 1939 and it was formulated as an alternative personal claim. In view of the clear allegation in the plaint that the forfeiture was invalid and not binding on the Company, the continuation of the suit by Sundara Ayyar to enforce his personal claim against Palaniappa Chettiar cannot be regarded as an abandonment by Sundara Ayyar of the right of the Company. It must not be overlooked that the Company stood dissolved on that date and Sundara Ayyar had no authority to do anything on behalf of the Company. In our opinion there is no evidence of abandonment of the Company 's right to challenge the validity of the purported forfeiture. The second point on which the appeal Court decided the appeal against the Company was that the form of the order made by the trial Court could not be supported as one validly made under section 38 of the Indian Companies Act. It will be recalled that having disposed of all the points of controversy against the Mills and in favour of the Company the trial Judge had to consider the ' form of the order Which could properly be made in favour of the 366 Company. In the summons the Company had asked for rectification of the register by restoring the name of the Company to the register in respect of 5,000 shares numbering 15048 to 20047. It was agreed by learned advocates on both sides before the trial Court that it would, in the circumstances, be impossible to make an order for rectification with respect to those specific shares which, as already stated, had been reallotted to other persons who were not parties to the proceedings. The Mills had also reduced its capital by having the face value of the 84,000 shares which had been issued reduced by repaying to the shareholders Rs. 5 in respect of each of those shares. There were, however, 16,000 unissued shares of Rs. 10 each which were not affected by the reduction. While, therefore, it was clearly impossible for the Court to direct that the Company should be replaced on the register in respect of its original shares, the Court could, under section 38, give notice to the persons to whom the shares had been reallotted or those claiming under them and make them parties to the proceedings and then make an appropriate order for ' rectification and, if necessary, also direct the Mills to pay damages under that section. This being the situation learned advocate for the Mills had to decide upon his course of action. What happened in Court will appear from the following extract from the judgment of the trial Court: " It is agreed by both parties that the proper order will be for the applicant Company to be placed on the register in respect of 5,000 of the unissued rupees 10 shares and I order accordingly. In this case as the parties consent to the matter being disposed of, by allotting to the applicant unissued shares, there can, it seems to me, be no order for payment of the dividends. Counsel for the respondent Company leaves the solution of this difficulty to me. . . . . The suggestion of the applicant Company is that it is prepared to forego any claim to the accrued dividends if it is not required to pay interest on the outstanding call money. This seems to me to be a very 367 reasonable suggestion. . . I direct accordingly that on insertion of the name of the applicant Company as owner of 6,000of the unissued shares the applicant Company shall pay to the respondent company only Rs. 25,000 being the amount of calls in arrears. " The appeal Court, however, went behind this record of the proceedings that took place before the trial Court and heard the learned senior advocate as to what had happened in Court and after hearing the senior advocate for the Mills found itself unable to agree with the contention that the learned advocate for the Mills had agreed to the substitution of 5,000 unissued shares for the shares forfeited. No affidavit of the learned senior advocate was filed before the trial Court for the rectification of what is 'low alleged to have been wrongly recorded by the trial Judge, as suggested by the Privy Council in Madhu Sudan Chowdhri vs Musammat Chandrabati Chowdhrain (1) and other cases referred to in Timmalapalli Virabhadra Rao vs Sokalchand Chunilal & Others (2). While we do not consider it necessary or desirable to lay down any hard and fast rule, we certainly take the view that the course suggested by the Privy Council should ordinarily be taken. It. appears that at the time when the application was made for leave to appeal to the Federal Court an affidavit sworn by G. Vasantha Pai, the junior advocate for the Mills, was filed before the Court dealing with that application. Paragraph 5 of that affidavit runs as follows: "During the trial every question was argued on behalf of the respondent company and no point was given up. This will be clear from the fact that till we reached the penultimate paragraph of the judgment beginning 'It now remains to consider, etc. ' all the issues are dealt with by the learned Judge. The agreement was on the specific form of the order on the basis of his Lordship 's judgment and without prejudice to the respondent company 's rights. What (1) (2) 48 368 was agreed to was "Proper order" on the basis of his Lordship 's judgment which by then had been dictated. The respondent company no more consented to the order that the appellant consented to have his application dismissed when its counsel agreed that it was impossible to make an order in terms of the Judge 's summons. " The appeal Court understood the stand taken by the learned senior advocate as follows: " He seems to have &greed only as an alternative that if all his contentions were overruled and the learned Judge thought that notwithstanding the difficulty in the way of granting the relief for rectification the applicant company should be restored to the register, the only shares available being the 16,000 shares of Rs. 10 each unissued, the applicant company could be recognised as a shareholder in respect of 5,000 out of those shares. . . ." It is quite clear from the judgment of the trial Court, paragraph 5 of the junior advocate 's affidavit and the statement of the learned senior advocate as recorded by the appeal Court that the agreement was solely and simply as to the specific form of the order, without prejudice to the Mills ' right to challenge the correctness of the findings of the trial Court on the material issues. In other words, all that learned advocate for the Mills desired to guard himself against was that the agreement should not preclude the Mills from preferring an appeal against the decision of the learned Judge on the merits. The reservation was as to the right of appeal challenging the findings on the merits and the agreement was only as to the form of the order. This limited agreement certainly implied that the Mills agreed to be bound by the order only if the Mills failed in their appeal on the merits ' In short, the consent covered only the form of the order and nothing else so that if the Mills succeeded in their appeal the order would go, although advocate has agreed to its form but that if the Mills failed in their contention as to the correctness of the findings of the learned trial Court on the 369 different questions on merits it would no longer be open to them to challenge the order only on the ground of the form of the order. In our judgment the Mills cannot attack the form of the order to which their counsel consented. Learned advocate for the Mills has raised the question of limitation. He referred us to articles 48 and 49 of the Limitation Act but did not strongly press his objection founded on those articles. We agree with the trial Court and the Court of appeal that those two articles have no application to this case. A claim for the rectification of the register simpliciter does not necessarily involve a claim for the return of the share scrips and in this case there was, in fact, no prayer for the return of shares or the scrips and, therefore, these two articles can have no application. Learned advocate, however, strongly relies on article 181 of the Limitation Act. That article has, in a long series of decisions of most, if not all, of the High Courts, been held to govern only applications under the Code of Civil Procedure. It may be that there may be divergence of opinion even within the same High Court but the preponderating view undoubtedly is that the article applies only to applications under the Code. The following extract from the judgment of the Judicial Committee in Hansraj Gupta vs Official Liquidators, Dehra Dun Mussoorie Electric Tramway Company Limited (1) is apposite: " It is common ground that the only article in that schedule which could apply to such an application is article 181 : but a series of authorities commencing with Rai Manekbai vs Manekji Kavasji (2) have taken 'the view that article 181 only relates to applications under the Code of Civil Procedure, in which case no period of limitation has been prescribed for the application. But even if article 181 does apply to it, the period of limitation prescribed by that article is three years from the time when the right to apply accrued, which time would be not earlier than the (1) (1933) 60 I.A. 13 at p. 20. (2) 370 date of the winding up order, March 26, 1926. The application of the liquidators was made on March 26, 1928, well within the three years. The result is that from either point of view the application by the liquidators, if otherwise properly made under and within the provisions of section 186 of the Indian Companies Act, is not one which must be dismissed by reason of section 3 of the Indian Limitation Act. It is either an application made within time, or it is an application made for which no period of limitation is prescribed. The case may be a casus omissus. If it be so, then it is for others than their Lordships to remedy the defect. " Learned advocate for the Mills, however, points out that the reason for holding that article 181 was confined to applications under the Code was that the article should be construed ejusdem generis and that, as all the articles in the third division of the schedule to the Limitation Act related to applications under the Code, article 181, which Was the residuary article, must be limited to applications under the Code. That reasoning, it is pointed out, is no longer applicable because of the amendment of the Limitation Act by the introduction of the present articles 158 and 178. These articles are in the third division which governs applications but they do not relate to applications under the Code but to one under the Arbitration Act and, therefore, the old reasoning can no longer hold good. It is urged that it was precisely in view of this altered circumstance that in Asmatali Sharif vs Mujahar Ali Sardar(1) a Special Bench of the Calcutta High Court expressed the opinion that an application for pre emption by a non notified co sharer should be governed by article 181 of the Limitation Act. A perusal of that case, however, will show that the Special Bench did not finally decide that question in that case. In Hurdutrai Jagadish Prasad vs Official Assignee of Calcutta(2) a Division Bench of the Calcutta High Court consisting of Chief Justice Harries and Mr. Justice Mukherjea who had delivered (1) (2) 371 the judgment of the Special Bench clearly expressed the view that article 181 of, the Limitation Act applied only to applications under the Civil Procedure Code and did not apply to an application under section 56 of the Presidency Towns Insolvency Act Mukherjea J. who also delivered the judgment of the Division Bench explained the observations made by him in the Special Bench case by pointing out that the entire procedure for an application under section 26 (F) of the Bengal Tenancy Act was regulated by the Civil Procedure Code and, therefore, an application for pre emption was, as it were, an application made under the Civil Procedure Code. Subsequently in Sarvamangala Dasi vs Paritosh Kumar Das(1) G.N. Das J. who was also a member of the Special Bench in the first ' mentioned case expressed the opinion, while sitting singly, that article 181 was not confined to applications under the Code. His Lordship 's attention does not appear to have been drawn to the case of Hurdutrai Tagadish Prasad(2). It does not appear to us quite convincing, without further argument, that the mere amendment of articles 158 and 178 can ipso facto alter the meaning which, as a result of a long series of judicial decisions of the different High Courts in India, came to be attached to the language used in article 181. This long catena of decisions may well be said to have, as it were, added the words " under the Code " in the first column of that article. If those words had actually been used in that column then a subsequent amendment of articles 158 and 178 certainly would not have affected the meaning of that article. If, however, as a result of judicial construction, those words have come to be read into the first column as if those words actually occurred therein. we are not of opinion, as at present advised, that the subsequent amendment of articles 158 and 178 must necessarily and automatically have the effect of altering the long acquired meaning of article 181 on the sole and simple ground that after the amendment the reason on which the old construction was founded is no longer available. We need (1) A.I.R. 1952 Cal. 689. (2) 372 not, however, on this occasion, pursue the matter further, for we are of the,opinion that even if article 181 does apply to the present application it may still be said to be within time. The period of limitation prescribed by that article is three years from the time when the right to apply accrues. " It is true that a further notice after the shares are forfeited, is not necessary to complete the forfeiture of the shares See Knight 's case(1)], but it is difficult to see how a person whose share is forfeited and whose name is struck out from the register can apply for rectification of the register until he comes to know of the forfeiture. The same terminus a quo is also prescribed in Article 120 of the Limitation Act. In O.R.M.O. M.SP. (Firm) vs Nagappa Chettiar(2) which was a suit to recover trust property from a person who had taken it, with notice of the trust, by a transaction which was a breach of trust, the Privy Council approved and applied the principles of the earlier Indian decisions referred to therein to the case before them and held that the time began to run under article 120 after the plaintiff came to know of the transaction which gave him the right to sue. On the same reasoning we are prepared to extend that principle to the present application under article 181. If article 181 applies then time began to run after the Company came to know of its right to sue. It is not alleged that the Company had any knowledge of the forfeiture between the 5th September, 1941, when the resolution of forfeiture was passed and the 9th September, 1941, when the Company became defunct. After the last mentioned date and up to the 16th February, 1945, the Company stood dissolved and no knowledge or notice can be imputed to the Company during this period. Therefore, the Company must be deemed to have come to know of its cause of action after it came to life again and the present application was certainly made well within three years after that event happened on the 16th February, 1945. If article 181 does not apply then the only article that can (1) (2) I.L.R. 373 apply by analogy is article 120 and the application is also within time. In either view this application cannot be thrown out as barred by limitation. The result, therefore, is that this appeal must succeed. We set aside the judgment and decree of the High Court in appeal and restore the order of the trial Court. The appellant will be entitled to the costs of the appeal in the High Court as well as in this Court. BOSE J. I agree with the conclusions of my learned brothers and also with their reasoning generally but lest it be inferred that I am assenting to a far wider proposition than is actually the case, I deem it advisable to clarify my position about abandonment and waiver. Though the usage of these words in cases of the present kind has the sanction of high authority, they are, in my opinion, inapt and mislead ing in this class of case. In order to appreciate this it will be necessary to hark back to first principles. In the first place, waiver and abandonment are in their primary context unilateral acts. Waiver is the intentional relinquishment of a right or privilege. Abandonment is the voluntary giving up of one 's rights and privileges or interest in property with the intention of never claiming them again. But except where statutory or other limitations intervene, unilateral acts never in themselves effect a change in legal status because it is fundamental that a man cannot by his unilateral action affect the rights and interests of another except on the basis of statutory or other authority. Rights and obligations are normally inter twined and a man cannot by abandonment per se of his rights and interests thereby rid himself of his own obligations or impose them on another. Thus, there can be no abandonment of a tenancy except on statutory grounds (as, for example, in the Central Provinces Tenancy Act, 1920) unless there is acceptance, express or implied, by the other side. It may, for example in a case of tenancy, be to the landlord 's interest to keep the tenancy alive and so also in the case 374 of shares of a company. It may be to the interests of the company and the general body of shareholders to refrain from forfeiture if, for example, the value of unpaid calls exceeds the market value of the shares. Such a position was envisaged in Garden Gully United Quartz Mining Co. vs Hugh McLister(1). So also with waiver. A long catena of illustrative cases will be found collected in B. B. Mitra 's Indian Limitation Act, Thirteenth Edition, pages 447 and 448. This fundamental concept brings about another repercussion. Unless other circumstances intervene, there is a locus paenitentiae in which a unilateral abandonment or waiver can be recalled. It would be otherwise if the unilateral act of abandonment in itself, and without the supervention of other matters, effected a change in legal status. In point of fact, it is otherwise when, as in the statutory example I have quoted, the law intervenes and determines the tenancy. It is, therefore, in my opinion, fundamental that abandonment and waiver do not in themselves unilaterally bring about a change in legal status. Something else must intervene, either a statutory mandate or an act of acceptance, express or implied, by another person, or, as Lord Chelmsford put it in Clarke & Chapman vs Hart(1), acts which are equivalent to an agreement or a licence, or an estoppel in cases where an estoppel can be raised. Next, there is, in my view, a fundamental difference between an executory interest and an executed one. In the former, it is necessary to resort to equitable reliefs to get enforced a right which is not at the date a vested right: cases of specific performance and declaration of a trust are examples, so also a prayer for relief from forfeiture. In cases of this kind, conduct which would disentitle a person to equitable relief is relevant. No hard and fast rule can or should be laid down as to what such conduct should consist of but among the varieties of conduct which Courts have considered sufficient in this class of case is conduct which amounts to laches (1) at 57 (2) (1858) 10 E.R. 1443 at 1452 and 1453. 375 or where there has been a standing by or acquiescence or waiver or abandonment of a right, particularly when this would prejudicially affect third parties. This sort of distinction is brought out by Lord Chelmsford in Clarke & Chapman vs Hart(1). The position is different when the interest is executed and the man has a vested interest in the right, that is to say, when he is the legal owner of the shares with the legal title to them residing in him. This legal title can only be destroyed in certain specified ways. It is in my view fundamental that the legal title to property, whether moveable or immoveable, cannot pass from one person to another except in legally recognised ways, and normally by the observance of certain recognised forms. Confining myself to the present case, one of the ways in which the title to shares can pass is by forfeiture; but in that case an exact procedure has to be followed. A second way is by transfer which imports agreement. There again there is a regular form of procedure which must be gone through. A third is by estoppel, though, when the position is analysed, it will be found that it is not the estoppel as such which brings about the change. The expressions abandonment, waiver and so forth, when used in a case like the present, are only synonyms for estoppel and despite hallowed usage to the contrary, I prefer to call a spade a spade and put the matter in its proper legal pigeon hole and call it by its proper legal name. These other terms are, in my view, loose and inaccurate and tend to confuse, when applied to cases of the present nature. A man who has a vested interest and in whom the legal title lies does not, and cannot, lose that title by mere laches, or mere standing by or even by saying that he has abandoned his right, unless there is something more, namely inducing another party by his words or conduct to believe the truth of that statement and to act upon it to his detriment, that is to say, unless there is an estoppel, pure and simple. It is only in such a case that the right can (1) ; at 1452 and 1453. 376 be lost by what is loosely called abandonment or waiver, but even then it is not the abandonment or waiver as such which deprives him of his title but the estoppel which prevents him from asserting that his interest in the shares has not been legally extinguished, that is to say, which prevents him from asserting that the legal forms which in law bring about the extinguishment of his interest and pass the title which resides in him to another, were not duly observed. Fazl Ali J. and I endeavoured to explain this in Dhiyan Singh vs Jugal Kishore (1). What happens is this. The person estopped is not allowed to deny the existence of facts, namely the actings of the parties and so forth which would in law bring about the change in legal status, namely the extinguishment of his own title and the transfer of it to another, for estoppel is no more than a rule of evidence which prevents a man from challenging the existence or non existence of a fact. Once the facts are ascertained, or by a fiction of law are deemed to exist, then it is those facts which bring about the alteration in legal status; it is not the estoppel as such nor is it the abandonment or waiver per se. I prefer therefore to adhere to what I conceive is the proper legal nomenclature. As I understand it, estoppel was the basis of the decision in Clarke & Chapman vs Hart (2). See Lord Wensleydale 's judgment at page 1458 and the Lord Chancellor 's at page 1453 ; so also. in Garden Gully United Quartz Mining Company vs Hugh McLister (3). That there is no sufficient ground for estoppel in this case is shown by the facts set out in the judgment of my learned brothers. I agree that the appeal must succeed. Appeal allowed. (1) [1952] S.C.R. 478 at 485. (3) 1 App.

IN-Abs

A private limited company of which G and S were the only two members owned 5,000 shares in a Mill. The company did not pay the calls and the 5,000 shares held by them were forfeited on the 5th September, 1941, and re allotted to other persons on the 16th November. Notice of the forfeiture was sent to the company on the 10th September but this was returned undelivered. In the meantime the company was struck off the Register under section 247 of the Companies Act with effect from 9th September. On the application of S the company was restored to the Register and an Official Receiver was appointed on 16th February, 1945, to wind it up. On the 5th March, 1946, the Official Receiver took out a summons calling upon all parties to show cause why the share register of the Mills should not be rectified by restoring the name of the company to the register in respect of the 5,000 shares, as the forfeiture thereof was invalid. The trial Judge held that the forfeiture was invalid for want of sufficient notice, that the plea of estoppel, acquiescence and laches raised by the Mills was untenable, and that the application as governed by article 120 of the Limitation Act and was not time barred, and ordered that, as the advocates had agreed to such a course, 5,000 new shares may be issued to the company. The High Court on appeal found that the forfeiture was invalid, that the application was not time barred and that no acquiescence, waiver or estoppel had been established, but held that the company had, by the conduct of G and S and the long delay in reviving the company, abandoned its right to challenge the forfeiture and that there was also no legal basis on which the order passed by the trial Judge could be supported. On further appeal: Held, (i) if the facts on record were insufficient to sustain a plea of waiver, acquiescence or estoppel as held by both the lower Courts, a plea of abandonment of right which is an aggravated form of waiver, acquiescence or laches and akin to estoppel cannot be sustained on the same facts. 46 352 (ii) Whatever be the effect of mere waiver, acquiescence or laches on the part of a person on his claim to equitable remedy to enforce his rights under an executory contract, mere waiver, acquiescence or laches which does, not amount to an abandonment of his right or to an estoppel against him, cannot disentitle that person from claiming relief in equity in respect of his executed interests. Prendergast vs Turton ([18411 ; , Clarke and Chapman vs Hart ([1858] 6 H.L.C. 632), Jones vs North Vancouver Land and Improvement Co. ([1910] A.C. 317) explained. Garden Gully United Quartz Mining Company vs Hugh Mclister ([1875] 1 App. Cas. 39) relied on. (iii) There was no evidence in the case of any conduct on the part of S or G subsequent to the date of forfeiture and anterior to the Mills changing its position to its detriment, upon which a plea of abandonment of the right to challenge the forfeiture could be based. Smith, Stone and Knight vs Birmingham Corporation ([1939] 4 All E.R. 116) distinguished. (iv) On a proper construction of the statements made by the counsel, the form of the order to which the counsel had agreed could not be challenged by the Mills. (v) The application was not governed by articles 48 or 49 of the Limitation Act as a claim for rectification of the register simpliciter does not necessarily involve a claim for the return of the share scrips and there was no prayer in the ease for return of the scrips. (vi) Article 181 applies only to applications under the Civil Procedure Code, and even if the said article was applicable, time began to run under the article only from the date on which the company knew of the forfeiture of the shares; and as the company bad no knowledge until 9th September, 1941, when it became defunct, and the company came to life again only on 16th February, 1945, knowledge could not be imputed to the company before the latter date and the application was therefore not barred under article 181. (vii) If article 181 does not apply the only article that could apply was article 120 and even under that article the application was not barred. Hansraj Gupta vs Official Liquidators, Dehra Dun, Mussoorie Electric Tramway Co. ([1933] 60 I.A. 13), Hurdutrai Jagdish Prasad vs Official Assignee of Calcutta ([1948] 52 C.W.N. 343) approved. Asmatali Sharif vs Mujahar Ali Sardar ([1948] and Sarvamangal Dasi vs Paritosh Kumar Das (A.I.R. doubted. BOSE J. Waiver and abandonment are in their primary con text unilateral sets and except where statutory or other limitations intervene unilateral acts in themselves cannot effect a change in legal status. Consequently it is fundamental that 353 abandonment and waiver cannot unilaterally bring about a change in legal status in the absence of either a statutory mandate or an act of acceptance, express or implied by another person. There is also a fundamental difference between executed and executory interests in this connection. A man who has a vested interest and in whom the legal title lies does hot, and cannot, lose that title by mere laches, or mere standing by or even by saying that he has abandoned his right, unless there is something more, namely inducing another party by his words or conduct to believe the truth of that statement and to act upon it to his detriment, that is to say, unless there is an estoppel, pure and simple. It is only in such a case that the right can be lost by what is loosely called abandonment or waiver, but even then it is not the aban donment or waiver as such which deprives him of his title but the estoppel which prevents him from asserting that his interest in the shares has not been legally extinguished, that is to say, which prevents him from asserting that the legal forms which in law bring about the extinguishment of his interest and pass the title which resides in him to another, were not duly observed.

No. 108 of 1961. Writ Petition under article 32 of the Constitution of India for the enforcement of Fundamental Rights. 2 M. C. Setalvad, Attorney General of India, Rameshwar Nath, section N. Andley and P. L. Vohra, for the petitioner. C. K. Daphtary, Solicitor General of India, K. L. Misra, Advocate General, U.P., K. B. Asthana and C. P. Lal, for the respondents. April 17. The Judgment of the Court was delivered by VENKATARAMA AIYAR, J. The petitioner is a company incorporated under the Indian Companies Act, its registered office being at Kanpur in the State of Uttar Pradesh, and it is carrying on business in the manufacture and sale of jute goods. By a notification dated March 31, 1956, the State of Uttar Pradesh imposed a tax of one anna in the rupee on the sale proceeds of jute. Previously thereto, the tax payable on sale of jute was six pies in the rupee. This notification having been struck down by the High Court of Allahabad as unauthorised and inoperative, the State legislature enacted the U. P. Sales Tax (Validation) Act,. 1958 (U. P. Act XV of 1958), hereinafter referred to as the Validation Act, validating the said notification as from March 31, 1956. In this petition filed under article 32 of the Constitution, the petitioner contends that notwithstanding the Validation Act, the notification in question continues to be void and inoperative, because it has not in fact been validated, and because the Act itself is ultra vires. The impugned notification was, it may be mentioned, superseded by a fresh notification on August 1, 1956, and the present dispute relates only to the tax on sales effected between April 1, 1956, and July 31, 1956. If the Validation Act is intro vires, the tax payable by the petitioner would, in accordance with the impugned notification, be Rs. 1,26,529 3 0, whereas if the said Act is ultra vires, the tax would be reduced by half Though the point for decision is a simple one lying within a narrow compass, to reach it one has to wade through a perfect morass of statutes, notifications and judicial pronouncements. We begin with what has 4 been termed the "Principal Act" by which sales tax was imposed in the Province. That is the U. P. Sales Tax Act No. XV of 1948, and that came into force on April 1, 1948. There were subsequent amendments to it in 1948, 1950 and 1952, but they are not material for the present discussion. It is sufficient to refer to section 3 A as it stood on March 31, 1956, when the notification in question was issued. This section ran as follows: "3 A. Single point taxation (1) Notwithstanding anything contained in Section 3, the State Government may by notification in the official Gazette declare that the turnover in respect of any goods or class of goods shall not be liable to tax except at such single point in the series of sales by successive dealers as the State Government may specify. (2) If the State Government makes a declaration under sub section (1) of this section, it may further declare that the turnover of the dealer, who is liable to pay tax on the sale of such goods, shall in respect of such sales, be taxed at such rate as may be specified not exceeding one anna per rupee if the sale relates to goods specified below: (i) Motor vehicles including motor cars, motor taxi cabs, motor cycles and cycle combinations, motor scooters, motorettes, motor omnibuses, motor vans and motor lorries. Chassis of motor vehicles. Articles including rubber and other tires and tubes and batteries adapted for use as motor part and accessories of motor vehicles, not being such arti cles as are ordinarily also used for other purposes than as parts of accessories of motor vehicles. (ii) Refrigerators and air conditioning plants. (iii) (a) Wireless reception instruments, apparatus and component parts thereof, including all electrical valves, accumulators, amplifiers and loudspeakers which are not specially designed for purposes other than wireless reception. (b) Radiogramophones. (iv) Cinematographic, photographic and other cameras. projectors and enlargers and films, plates, papers and cloth required for use therewith. 5 (v) Scents and perfumes, and nine pies per rupee if it relates to any other goods. " It was under this provision that the U. P. Government had issued a notification on June 8, 1948, imposing a tax of six pies in the rupee on the sale of jute. In exercise of the power conferred by article 213(1) of the Constitution, the Governor of Uttar Pradesh issued on March 31, 1956, Ordinance No. IX of 1956, and that was published in the Official Gazette on the same date. Under this Ordinance the whole of subsection (2) of section 3 A as it then stood was deleted and the following substituted: "(2) If the State Government makes a declaration under subsection (1), it may further declare that the turnover in respect of such goods shall be liable to tax at such rate not exceeding one anna per rupee as may be specified. " The effect of this provision was to exact one ceiling rate of one anna per rupee on the sale proceeds for all goods leaving it to the State to fix within the ceiling such rates of tax for such goods as it might determine. On the same date, the Government published the following notification No. ST. 905/X on which the entire controversy has arisen. "In exercise of the power conferred by section 3 A of the U. P. Sales Tax Act, 1948, as amended from time to time, and in supersession of all previous notifications on the subject, the Governor of Uttar Pradesh is hereby pleased to declare that the turnover in respect of the goods specified in the List below shall not with effect from April 1, 1956, be liable to tax except (a) in the case of goods imported from outside, Uttar Pradesh at the point of sale by importer; and (b) in the case of goods manufactured in Uttar Pradesh, at the point of sale by the manufacturer; and the Governor is further pleased to declare that such turnover shall with effect from the said date be taxed at the rate of one anna per rupee. List 18. Jute goods" 6 In due course, the U. P. Sales Tax Ordinance No. IX of 1956 was replaced by the U. P. Sales Tax (Amendment) Act XIX of 1956, and that came into force on May 28, 1956. It merely reproduces the terms of the Ordinance No. IX of 1956 with this modification which is consequential, that the amended section including section 3 A shall "be deemed to have effect on and from the first day of April, 1956". If notification No. ST. 905/X dated March 31,1956, is valid there is no question that the petitioner would be liable to pay sales tax for the period in question at the rate of one anna per rupee on the sale proceeds. One of the dealers who had been assessed to sales tax in accordance with this notification filed an application under article 226 in the High Court of Allahabad calling in question its validity and this proved successful, the court holding that there was no power in the State to issue the impugned notification under section 3 A on March 31, 1956, as that section was itself to come into force only on April 1, 1956, vide Adarsh Bhandar vs Sales Tax Officer (1). The correctness of this decision is not under challenge in these proceedings. We do not therefore desire to express any opinion on it. With a view to remove the defect pointed out in Adarsh Bhandar vs Sales Tax Officer (1), the State legislature passed the U. P. Sales Tax (Amendment) Act XXIV of 1957. That Act received the assent of the President on August 31, 1957, and was published on September 3, 1957. It runs, so far as is material, as follows: "For sub section (2) of Section I of the U. P. Sales Tax (Amendment) Act, 1956, the following shall be and be deemed to have always been substituted: 'This Section, so much of Section 3, as relates to the substitution of the second proviso to sub section (1) of Section 3 of the U. P. Sales Tax Act, 1948 (hereinafter called the principal Act) and section 4 shall have effect on and from the 31st day of March, 1956 '. " (1) A.I.R. 1957 All. 475. 7 The result of this amendment was that section 3 A was given retrospectively operation from March 31, 1956, instead of April 1, 1956, as originally enacted. The intention behind the legislation is obvious. If the impugned notification was, as held in Adarsh Bhandar vs Sales Tax Officer (1), invalid, because it was issued before section 3 A was in operation, that objection could no longer hold good as that section would now operate from a point of time anterior to the issue of the notification. If the State thought that this legislation would give a quietus to the controversy, they were sadly mistaken. After the Amendment Act of 1957 came into force, another dealer who was sought to be assessed pursuant to the notification dated March 31, 1956, filed a petition under article 226 before the Allahabad High Court and raised the contention that as the Amendment Act merely amended section 3 A and did not in terms validate the impugned notification, no proceedings could validly be taken under that notification and that therefore the proposed levy was illegal. This contention was again upheld by a Full Bench in Firm Bangali Mal vs Sales Tax Officer (2), which held that there was a difference between the existence of a power and its actual exercise, that while by reason of Act XXIV of 1957, a power had been conferred on Government to issue a notification on March 31, 1956, the notification actually issued on that date could not be referred to that power, that it was in exercise of the power supposed to have been conferred by section 3 A as it stood on March 31, 1956, and that in consequence the impugned notification was not saved by the new Act. This decision set the legislature again on the move and that brings us to what may be said to be the final round in the game. The State legislature enacted a fresh legislation for the purpose of effectuating the impugned notification. That was U. P. Sales Tax Validation Act XV of 1958. It received the assent of the President on May 3, 1958, and was published in the Official Gazette on May 6, 1958. The preamble to the Act states that "it is expedient to provide for (1) A.I.R. 1957 All. 475. (2) A.I.R. 1958 All, 478. 8 the validation of certain notifications issued under the U. P. Sales Tax Act, 1948, (U. P. Act XV of 1948) and any action taken in pursuance thereof". Section 3 of the Act which deals with the present matter runs as follows: "3. Validation of certain notifications and action taken in pursuance thereof. (1) Notwithstanding any judgment, decree or order of any court, the notifications specified in Part A, Part B and Part C of the Schedule shall be deemed to have been issued in exercise of the powers conferred respectively by section 3, section 3 A and section 4 of the U. P. Sales Tax Act, 1948, as if the said sections were in force on the date on which the notifications were issued in the form in which they were in force immediately before the commencement of this Act and all the said notifications shall be valid and shall be deemed always to have been valid and shall continue in force until amended, varied or rescinded by any notification issued under any of the said section. (2) Anything done or any action taken (including any order made, proceeding taken, direction issued, jurisdiction exercised, assessment made or tax levied or collected) purporting to have been done or taken in pursuance of any of the notifications specified in the Schedule shall be deemed to be and to have been validly and lawfully done or taken." In Part B are set out the notifications issued in exercise of the powers conferred by section 3A of the U.P. Sales Tax Act, 1948, and one of them is the impugned notification No. ST. 905/X. If this legislation is valid, the impugned notification stands validated and the petitioner would be liable to pay tax in accordance therewith. But the petitioner contends that the Validation Act has not brought about any change in the situation and that the notification dated March 31, 1956, continues to be null and void now as before the Act. Two grounds have been urged in support of this contention that on its true construction the Act does not in fact validate the impugned notification and that it is not a 9 law which the State legislature was competent to enact and it is therefore a nullity. We must now examine these contentions. As regards the first contention, the argument in support of it is that the words, "in the form in which they were in force immediately before the commencement of this Act" in section 3 must, in their setting, be read as qualifying the word, "notifications" and not the word "sections", and in that view the notification in question is subject to the same infirmity which attached to it when it was published on March 31., 1956. We are wholly unable to appreciate this contention. The object of the legislation as stated in the long title and in the preamble to the Act was to validate the impugned notification in relation to the amended section. Schedule B to the Act expressly mentions that notification. And if we are now to accede to the contention of the petitioner, we must hold that though the legislature set about avowedly to validate the notification dated March 31, 1956, it failed to achieve that object. A construction which will lead to such a result must, if that is possible, be avoided. The words, "in the form in which they were in force immediately before the commencement of this Act", no doubt occur after the word, "notifications". But then the words, "in the form" can have no reference to the impugned notification, because it had never changed form, whereas they were quite appropriate to section 3A, because it had been amended. It should further be noted that the Validation Act was published both in Hindi and in English, and both of them were authorised versions. The words in the Hindi version make it clear beyond all doubt that the words, "in the form in which they were in force immediately before the commencement of this Act" qualify the word "sections" and not the word "notifications". That is the view expressed by a Bench of the Allahabad High Court in H. L. M. Biri Works vs Sales Tax Officer (1), on a comparison of the two versions, and we are in agreement with it. There would have been no scope for this argument if transposing the 'words, the section read, "as if the said (1) A.I.R. 1959 All. 2 10 sections were, in the form in which they were in force immediately before the commencement of this Act, in force on the date on which the notifications were issued. " But even in its present setting that is the meaning of the section, and the impugned notification must be held to be within the saving of the Validation Act. We now proceed to examine the second contention of the petitioner that the validation Act is itself invalid as being ultra vires the powers of the State legislature under the Constitution. The argument of the learned Attorney General in support of this contention may thus be stated. The State legislature derives its authority to enact a law with respect to tax on the sale of goods under entry 54 in List II of the Seventh Schedule to the Constitution. It has been held that a sale for the purpose of the entry must be what in law is recognised as sale. Likewise, a law imposing tax on sales of goods must, to be intra vires, possess certain well defined characteristics associated with such laws. In The Province of Madras vs Boddu Paidanna and Sons (1) it has been held that sales tax is a tax on the occasion of sale. In the present case, the sales sought to be taxed took place between April 1, 1956 and July 31, 1956, whereas the Validation Act, by force of which the tax becomes payable, came into force in 1958. It is therefore not a tax on the occasion of sale. Moreover a sales tax is an indirect tax which can be passed on by the seller to the purchaser. The Sales Tax Acts passed by the legislatures of several States provide for the seller collecting the tax from the purchaser as does the U. P. Sales Tax Act XV of 1948, vide section 8A. That could be done only if the tax was levied before the sale took place. Therefore by the very nature of it there could be no retrospective legislation in respect of sales tax. And finally it is argued that the imposition of a tax retrospectively would be inconsistent with the provisions of the U.P. Sales Tax Act, 1948, and could not have been contemplated by that Act. Such for example are the provisions of section 8A which provide for the registration of dealers for (1) 11 the assessment years, the deposit into Treasury of sales tax collected from the purchasers in certain contingencies, section 14 of the Act which imposes penalty for non registration under section 8A, and rule 63 which provides for the deposit of the sales tax collected under section 8A(4) within thirty days of the expiry of the month in which the amount is charged. It is accordingly contended that whether we have regard to the true features of the sales tax legislation or the provisions of the U.P. Sales Tax Act, the Validation Act could not be held to be one with respect to sales tax, that it is therefore not within entry 54, and as there is no other entry in List II or List III of the Seventh Schedule to the Constitution, under which the legislation could be justified, it must be held to be ultra vires. So ran the argument. The point for decision., stating it succinctly, is whether the Validation Act is within the ambit of entry 54 in List II of the Seventh Schedule to the Constitution. That entry confers on the States authority to enact a law with respect to tax on sales of goods. Now what is the extent of that authority? There must be in fact a sale as recognised by law. It is only then that a tax could be imposed. But if the transaction sought to be taxed is not a sale, a law which seeks to tax it, treating it as a, sale, would be ultra vires. Thus in The Sales Tax Officer vs Messrs. Budh Prakash Jai Prakash (1) a tax on agreement to sell was held to be not authorised by the entry, and in The State of Madras vs Gannon Dunkerley & Co., (Madras) Ltd. (2), a tax on the supply of materials in a contract for the construction of works simpliciter, on the footing of a sale was held to be outside the entry, and the legislation which imposed such a tax was struck down as ultra vires. But where the transaction is one of sale of goods as known to law, the power of the State to impose a tax thereon is plenary and unrestricted subject only to any limitation which the Constitution might impose, and in the exercise of that power, it will be competent to the legislature to impose a tax (1) ; (2) ; 12 on sales,which had taken, place prior to the enactment of the legislation. But it is urged on the strength of certain observations in The Province of Madras vs Boddu Paidanna and Sons (1) that a sales tax is a tax on the occasion of sale, and that therefore it could not be imposed with retrospective operation. This contention is, in our judgment, wholly without substance. Now, the point for decision in that case was whether a tax imposed by a Provincial legislature on the sale of oil by a person who manufactured it was bad on the ground that it was in essence an excise duty. While a sales tax could be imposed by a Provincial legislature, an excise duty could be imposed only by the Federal legislature. In holding that the tax in question was a sales tax and not an excise duty, the court observed as follows: "The duties of excise which the Constitution Act assigns exclusively to the Central Legislature are, according to the Central Provinces Case, duties levied upon the manufacturer or producer in respect of the manufacture or production of the commodity taxed. The tax on the sale of goods, which the Act assigns exclusively to the Provincial Legislatures, is a tax levied on the occasion of the sale of the goods. Plainly a tax levied on the first sale must in the nature of things be a tax on the sale by the manu facturer or producer; but it is levied upon him qua seller and not qua manufacturer or producer." (P. 101). In the context, the words, "on the occasion of the sale" have reference to the character of the transaction and not to the point of time at which the duty becomes leviable, and they have no bearing on the question as to when such a tax could be imposed. And then it is argued that a sales tax being an indirect tax, the seller who pays that tax has the right to pass it on to the consumer, that a law which imposes a sales tax long after the sales had taken place deprives him of that right, that retrospective operation is, in consequence, an incident inconsistent with the true character of a sales tax law, and that the Validation Act is therefore not a law in respect of tax on the (1) 13 sale of goods, as recognised, and it is ultra vires entry 54. We see no force in this contention. It is no doubt true that a sales tax is, according to accepted notions, intended to be passed on to the buyer, and provisions authorising and regulating the collection of sales tax by the seller from the purchaser are a usual feature of sales tax legislation. But it is not an essential characteristic of a sales tax that the seller must have the right to pass it on to the consumer, nor is the power of the legislature to impose a tax on sales conditional on its making a provision for sellers to collect the tax from the purchasers. Whether a law should be enacted, imposing a sales tax, or validating the imposition of sales tax, when the seller is not in a position to pass it on to the consumer, is a matter of policy and does not affect the competence of the legislature. This question is concluded by the decision of this Court in The Tata Iron & Steel Co., Ltd. vs The State of Bihar (1). The following observations of Das, C. J., bearing on this question might be quoted: " Under the 1947 Act the primary liability to pay the sales tax, so far as the State is concerned, is on the seller. Indeed before the amendment of the 1947 Act by the amending Act the sellers had no authority to collect the sales tax as such from the purchaser. The seller could undoubtedly have put up the price so as to include the sales tax, which he would have to pay but he could not realise any sales tax as such from the purchaser. That circum stance could not prevent the sales tax imposed on the seller to be any the less sales tax on the sale of goods. The circumstance that the 1947 Act, after the amendment, permitted the seller who was a registered dealer to collect the sales tax as a tax from the purchaser does not do away with the primary liability of the seller to pay the sales tax. This is further made clear by the fact that the registered dealer need not, if he so pleases or chooses, collect the tax from the purchaser and some times by reason of competition with other registered dealers he may find it profitable to sell his goods (1) ; 14 and to retain his old customers even at the sacrifice of the sales tax. This also makes it clear that the sales tax need not be passed on to the purchasers and this fact does not alter the real nature of the tax which, by the express provisions of the law, is cast upon the seller. The buyer is under no liability to pay sales tax in addition to the agreed sale price unless the contract specifically provides otherwise. See Love vs Norman Wright (Builders) Ltd. If that be the true view of sales tax then the Bihar Legislature acting within its own legislative field had the powers of a sovereign legislature and could make its law prospectively as well as retrospectively." (pp. 1378 1379). The decision of this Court in Buchirajalingam vs State of Hyderabad (1) is also to the same effect. The power of a legislature to enact a law with reference to a topic entrusted to it, is, as already stated, unqualified subject only to any limitation imposed by the Constitution. In the exercise of such a power, it will be competent for the legislature to enact a law, which is either prospective or retrospective. In The Union of India vs Madan Gopal(2) it was held by this Court that the power to impose tax on income under entry 82 of List I in Schedule VII to the Constitution, comprehended the power to impose income tax with retrospective operation even for a period prior to the Constitution. The position will be the same as regards laws imposing tax on sale of goods. In M. P. V. Sundararamier & Co. vs The State of Andhra Pradesh (3), this Court had occasion to consider the validity of a law enacted by Parliament giving retrospective operation to laws passed by the State legislatures imposing a tax on certain sales in the course of inter State trade. One of the contentions raised against the validity of this legislation was that, having regard to the terms of article 286(2), the retrospective legislation was not within the competence of Parliament. In rejecting this contention, the Court observed: (1) A.I. R. , 759 60. (2) ; (3) ; 15 "Article 286(2) merely provides that no law of a State shall impose tax on inter State sales 'except in so far as Parliament may by law otherwise provide '. It places no restrictions on the nature of the law to be passed by Parliament. On the other hand, the words 'in so far as ' clearly leave it to Parliament to decide on the form and nature of the law to be enacted by it. What is material to observe is that the power conferred on Parliament under article 286(2) is a legislative power, and such a power conferred on a Sovereign Legislature carries with it authority to enact a law either prospectively or retrospectively, unless there can be found in the Constitution itself a limitation on that power." (p. 1460). And it was held that the law was within the competence of the legislature. We must therefore hold that the Validation Act is not ultra vires the powers of the legislature under entry 54, for the reason that it operates retrospectively. It was finally urged on the basis of sections 8 A, 14 and rule 23 of the U. P. Sales Tax Act that they contemplated only a prospective legislation and that those sections would be impossible of compliance under the present legislation. This is a consideration which is wholly foreign to the present question. The point which we have got to decide is whether the Validation Act is ultra vires. That has to be determined solely on the construction of entry 54 in List II in the Seventh Schedule, and any other provisions of the Constitution bearing on the question. Even assuming that the provisions of the U. P. Sales Tax Act XV of 1948 contemplate a levy of tax in future, that does not affect the power of the legislature under entry 54 to enact a law with retrospective operation. It can only result in those provisions being unenforceable as regards the levy under the impugned notification. Dealing with a similar contention in M. P. V. Sundararamier & Co. vs The State of Andhra Pradesh (1), this Court observed: "It is also contended that under the Sales Tax (1) ; 16 Acts, the levy of tax is annual and the rules contemplate submission of quarterly returns and payment of taxes every quarter on the admitted turnover, and that a conditional legislation under which payment of tax will become enforceable in fururo would be inconsistent with the scheme of the Act and the rules. But this argument, when examined, comes to no more than this that the existing rules do not provide a machinery for the levy and the collection of taxes which might become payable in future, when Parliament lifts the ban. Assuming that is the true position, that does not affect the factum of the imposition, which is the only point with which we are now concerned. That the States will have to frame rules for realising the tax which becomes now payable is not a ground for holding that there is, in fact, no imposition of tax." (p. 1454). None of the grounds urged by the petitioner in support of the contention that the Validation Act is ultra vires can be sustained. In the result we must hold that the Validation Act is intra vires, and the impugned notification dated March 31, 1956, stands validated by it. This petition must therefore be dismissed with costs. Petition dismissed.

IN-Abs

In exercise of the power conferred by section 3A(2) of the U.P. Sales Tax Act, 1948, which enabled the State Government, by notification, to fix the rate of the tax to be levied on the sales of goods specified in the section not exceeding nine pies per rupee, the Government issued at notification dated June 8, 1948 imposing a tax of six pies in the rupee on sales of jute. On March 31, 1956, the Governor of Uttar Pradesh issued an Ordinance, inter alia, amending section 3A(2) of the Act, the effect of which was to enact one ceiling rate of one anna per rupee on the sale proceeds for all goods leaving it to the State to fix within the ceiling such rates of tax for such goods as it might determine. On the same date the Government issued a notification by which sales on jute were liable to pay sales tax at the rate of one anna per rupee on the sale proceeds. The Ordinance was replaced by U.P. Sales Tax (Amendment) Act, 1956, under which the amended section shall "be deemed to have effect on and from April 1, 1956". One of the dealers who had been assessed to sales tax in accordance with the notification filed an application under article 226 of the Constitution of India, calling in question its validity, and the High Court of Allahabad held that there was no power in the State to issue the notification under section 3A(2) on March 31, 1956, as that section was itself to come into force only on April 1, 1956. With a view to remove the defect pointed out in said decision, the State Legislature passed the U.P. Sales Tax (Amendment) Act, 957, but this in turn having been declared by the Allahabad High Court not being effective in saving the notification, the legislature ultimately enacted the U.P. Sales Tax (Validation) Act, 1958. Section 3 of this Act provided that notwithstanding any judgment of any court the notification dated March 31, 1956, shall be deemed to have been issued in exercise of the powers conferred by section 3A of the U.P. Sales Tax Act, 1948, as if the said section was in force on the date on 2 which the notification was issued in the form in which it was in force immediately before the commencement of this Act. The petitioner who was carrying on business in the manufacture and sale of jute goods filed an application under article 32 of the Constitution and contended that the Validation Act of 1958, had not brought about any change in the situation on the grounds (1) that the words "in the form in which it was in force immediately before the commencement of this Act" in section 3 must be read as qualifying the word "notification" and not the word "section" and in that view the notification in question was subject to the same infirmity which attached to it when it was published on March 31, 1956, and (2) that the State Legislature was not competent to enact a law imposing sales tax retrospectively and therefore the Validation Act was ultra vires. Held: (1) that on its proper construction, the words "in the form in which it was in force immediately before the commencement of this Act" in section 3 of the U.P. Sales Tax (Validation) Act, 1958, qualify the word "section" and not the word "notification", and that on that view the impugned notification was within the saving clause of the Validation Act. H. L. M. Biri Works vs Sales Tax Officer, A.I.R. 1959 All. 208, approved. (2) that the power of a legislature to enact a law with re ference to a topic entrusted to it is unqualified and that in the exercise of such a power it will be competent for the legislature to enact a law which is either prospective or retrospective. Accordingly, the Validation Act is not ultra vires the powers of the legislature under entry 54 in List II of the Seventh Schedule to the Constitution, for the reason that it operates retrospectively. The fact that the seller is not in a position to pass the sales tax on to the consumer does not affect the competence of the legislature to enact a law imposing a sales tax retrospectively as that is a matter of policy. The Province of Madras vs Boddu Paidanna and Sons, [1942] F.C.R. go, explained. The Tata Iron & Steel Co., Ltd. vs The State of Bihar, ; , Buchirajalingam vs State of Bihar, A.I.R. 1958 S.C. 756 and M.P.V. Sundararamier & Co. vs The State of Andhya Pradesh, ; , followed. The Union of India vs Madan Gopal Kabra, ; , relied on.

Appeal No. 419 of 1957. Appeal by certificate from the judgment and decree dated January 16, 1953, of the Madras High Court in A. section No. 164 of 1949. M. section K. Sastri, for the appellants. Ravindra Narain, for the respondents. April 14. The Judgment of the Court was delivered by SUBBA RAO, J. This appeal by certificate, is directed against the judgment of the High Court of Judicature at Madras dated January 16, 1953, modifying the decree of the Court of the Subordinate Judge, Dindigul, in 0. section No. 7 of 1948, a suit filed by the respondents for compensation under the provisions of the (XIII of 1855). The appellant, Gobald Motor Service Ltd. (hereinafter called the Company), was engaged in the business of transporting passengers by bus between Dharapuram and Palni, among other places, in the State of Madras. On September 20, 1947, one of the buses of the Company, bearing registration number MDC 2414, left Dharapuram for Palni at about 3 p.m. At a place called Thumbalapatti between Dharapuram and Palni, one Rajaratnam, along with his brother by name Krishnan, boarded the bus. The bus met with an accident at about 3 miles from Palni, as a result of which some of the passengers, including Rajaratnam, sustained injuries. Rajaratnam died of 932 the injuries received in the accident on September 23, 1947. The first plaintiff, his father; the second plaintiff, his widow; and plaintiffs 3 to 7, his sons, instituted 0. section No. 7 of 1948 against the Company in the Court of the Subordinate Judge, Dindigul, for compensation under section 1 of the (hereinafter called the Act) for loss of pecuniary benefit sustained by them personally, and under section 2 thereof for the loss sustained by the estate on account of the death of Rajaratnam. They alleged in the plaint that the driver, who was in charge of the bus, was incompetent and inexperienced, that he was guilty of rash and negligent conduct in the driving of the bus, and that the accident was the result of his incompetence and negligence. The Company in its written statement denied the said allegations and leaded that the accident was the result of the central plea of the left rear spring suddenly giving way, that Rajaratnam was also guilty of contributory negligence and that in any event the damages claimed were excessive. The learned Subordinate Judge came to the conclusion that there was no proof that the bus was driven at a reckless speed at the scene of the accident, but the fact that the accident occurred on the off side of the road was itself evidence of his negligence and it had not been rebutted by the defendants. He further held that the driver was not proved to be incompetent. On those findings, he held that the defendants were liable for the negligence of their servant, and be awarded damages as follows: (1)Plaintiff 1 . Rs. 3,600 under section 1 of the Act. (2) Plaintiffs 2 to 7. Rs. 25,200 under section 1 of the Act. (3) Plaintiffs 2 to 7. Rs. 6,000 under section 2 of the Act. Against the said decree, the defendants preferred an appeal to the High Court and it came to be disposed of by a division bench of that court. The High Court on a review of the entire evidence held that the speed at which the bus was driven was excessive, having regard to the nature of the ground on which the accident happened, that there was negligence on the part of the 933 driver, and that the appellants were liable therefore. But the High Court discounted the plea that the appellants, apart from their being constructively liable for the negligence of the driver, were also negligent in employing Joseph, who was not a competent driver. Both the courts, therefore, concurrently held that the accident occurred on account of the negligence of the driver. On the question of damages, the High Court confirmed the amount of compensation awarded to the plaintiffs 2 to 7 both under sections 1 and 2 of the Act, but in regard to the first plaintiff, it reduced the compensation awarded to him from Rs. 3,600 to Rs. 1,000; with this modification, the appeal was dismissed with costs. Learned counsel for the appellants raised before us the following points: (1) The finding of the High Court that the bus was driven at an excessive speed at the place where the accident occurred, based on probabilities, was erroneous. (2) The concurrent finding of the two courts that respondents 2 to 7 would be entitled to damages in a sum of Rs. 25,200 for the loss of pecuniary advantage to them was not based upon any acceptable evidence but only on surmises. (3) The High Court went wrong in awarding damages separately for loss of expectation of life under section 2 of the Act, as damages under that head had already been taken into consideration in giving compensation to respondents 2 to 7 for the pecuniary loss sustained by them by the death of Rajaratnam. The first question for consideration is whether the accident was due to any negligence on the part of the driver Joseph. A clear picture of the topography and the physical condition of the locality where the accident took place would, to a large extent, help us in deciding the said question. The accident took place at Puliampatti where the road passed over a culvert and then took a sharp bend with a downward gradient. To the east of the road was a drain and that was marked off by 5 stones 2 feet high. At a distance of 20 or 25 feet from the stones, there were trees. The bus after crossing the culvert crashed against the 5th stone with so much force that the latter 934 was uprooted and broken. It next attacked a tamarind tree which was stated to be at a distance of 20 or 25 feet from the stone, and its bark was peeled off and it travelled some more distance before it finally came to rest. The evidence disclosed that some of the passengers were knocked and thrown down within the bus itself and sustained injuries, while Rajaratnam was thrown out of the bus into the ditch at a place 161 feet south of the tamarind tree. It must be self evident from the said picture of the accident that the bus must have been driven at a high speed. P.Ws. 3 and 4, two of the passengers in the bus, P.W. 6, a brother of Rajaratnam, who also travelled in the bus, and P.W. 5, who ran a coffee and tea stall at the place of the accident, swore in the witness box that the bus was being driven at a high speed when the accident happened. Their evidence reinforces the compelling impression of high speed caused by the objective features thrown out by the topography of the place of the accident. On the other hand, on the side of the defendants (appellants herein) D. W. 2, who claimed to have travelled in the bus, deposed that the bus was travel ling at the usual speed, but his cross examination discloses that he was an improvised witness. D.W. 3, who was sitting by the side of the driver, deposed to the same effect, but he was an employee of the Company and was obviously interested to support their case. The evidence adduced on the side of the defence is certainly not convincing. An attempt was made to calculate the speed of the bus on the basis of the time given by P. W. 6 as to when Rajaratnam boarded the bus and the time when the bus dashed against the tree, and the mileage covered between the two points within the said time. On the basis of such a calculation it was contended that the speed would have been less than 15 miles per hour; but it is not possible to deduce the speed from such a calculation, as the witnesses were speaking of the time only approximately and not with reference to any watch. That apart, it cannot be said that the bus maintained an even pace throughout. The High Court, on the basis of the evidence and on broad probabilities, held that 935 the speed at which the bus was driven was excessive, having regard to the nature of the ground on which the accident happened; and having gone through the evidence, we are quite satisfied that the said finding was justified on the material placed before them. It must, therefore, be held that there was negligence on the part of the driver. Apart from the positive evidence, in the present case the accident took place not on the main road, but on the off side uprooting the stone at the drain and attacking a tamarind tree 25 feet away from the said stone with such a velocity that its bark was peeled off and the bus could stop only after travelling some more distance from the said tree. The said facts give rise to a presumption that the accident was caused by the negligence of the driver. Asquith, L. J., in Barkway vs South Wales Transport Co. (1) neatly summarizes the principles applicable as to onus of proof in the following short propositions: "(i) If the defendants ' omnibus leaves the road and falls down an embankment, and this without more is proved, then the res ipsa loquitur, there is a presumption that the event is caused by negligence on the part of the defendants, and the plaintiff succeeds unless the defendants can rebut this pre sumption. (ii) It is no rebuttal for the defendants to show, again without more, that the immediate cause of the omnibus leaving the road is a tyre burst, since a tyre burst per se is a neutral event consistent, and equally consistent, with negligence or due diligence on the part of the defendants. When a balance has been tilted one way, you cannot redress it by adding an equal weight to each scale. The depressed scale will remain down. This is the effect of the decision in Laurie vs Raglan Building Company Ltd., (2), where not a tyre burst but a skid was involved. (iii) To displace the presumption, the defendants must go further and prove (or it must emerge from the evidence as a whole) either (a) that the burst itself was due to a specific cause which does not connote negligence on their part but points to its (1) , 471. (2) 936 absence as more probable, or (b) if they can point to no such specific cause, that they used all reasonable care in and about the management of their tyres. " The same principles have been restated in Halsbury 's Laws of England, 2nd Edn., Vol. 23, at p. 671, para 956, thus: "An exception to the general rule that the burden of proof of the alleged negligence is in the first instance on the plaintiff occurs wherever the facts already established are such that the proper and natural inference immediately arising from them is that the injury complained of was caused by the defendant 's negligence, or where the event charged as negligence tells its own story ' of negligence on the part of the defendant, the story so told being clear and unambiguous. To these cases the maxim res ipsa loquitur applies. Where the doctrine applies, a presumption of fault is raised against the defendant, which, if he is to succeed in his defence, must be overcome by contrary evidence, the burden on the defendant being to show how the act complained of could reasonably happen without negligence on his part. Where, therefore, there is a duty on the defendant to exercise care, and the circumstances in which the injury complained of happened are such that with the exercise of the requisite care no risk would in the ordinary course of events ensue, the burden is in the first instance on the defendant to disprove his liability. In such a case, if the injurious agency itself and the surrounding circumstances are all entirely within the defendant 's control, the inference is that the defendant is liable, and this inference is strengthened if the injurious agency is inanimate. " The said principles directly apply to the present case. Here, the events happened tell their own story and there is a presumption that the accident was caused by negligence on the part of the appellants. But it is ,said that this presumption was rebutted by proof that the accident was due to the rear central bolt of the bus 937 suddenly giving way. The High Court, after considering the relevant evidence, held that it was not possible to hold that the accident was caused by the break in the bolt. We have gone through the evidence and we do not see any flaw in that conclusion. The scope of the liability of a master for the negligence of his servant has been succinctly stated by Baron Parke in Joel vs Morison (1) thus: 'The master is only liable where the servant is acting in the course of his employment. If he was going out of his way, against his master 's implied commands, when driving on his master 's business, he will make his master liable; but if he was going on a frolic of his own, without being at all on his master 's business, the master will not be liable. " Again, in Storey vs Ashton (2) Cockburn, L.C.J., says: "The true rule is that the master is only responsible so long as the servant can be said to be doing the act, in the doing of which he is guilty of negligence, in the course of his employment as servant. " In the same case, Lush, J., said: "The question in all such cases as the present is whether the servant was doing that which the master employed him to do." In the present case, admittedly, on account of the negligence of the driver in the course of his employment the said accident happened, and, therefore, the appellants are liable therefore. The next question is whether the courts below were right in awarding compensation of Rs. 25,200 for the pecuniary loss unstained by the respondents 2 to 7 by reason of the death of Rajaratnam, under section 1 of the Act. Section 1 of the Act reads: "Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, the party who would have been liable if death had (1) (1834) 6 Car. & P. 501 ; 172 E.R. 1338. (2) 118 938 not ensued shall be liable to an action or suit for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony or other crime. Every such action or suit shall be for the benefit of the wife, husband, parent and child, if any of the person whose death shall have been so caused, and shall be brought by and in the name of the executor, administrator or representative of the person deceased; and in every such action the Court may give such damages as it may think proportioned to the loss resulting from such death to the parties respectively, for whom and for whose benefit such action shall be brought; and the amount so recovered, after deducing all costs and expenses, including the costs not recovered from the Defendant, shall be divided amongst the before mentioned parties, or any of them, in such shares as the Court by its judgment or decree shall direct." This section is in substance a reproduction of the English Fatal Accidents Acts, 9 and 10 Vict. 93, known as the Lord Campbell 's Acts. The scope of the corresponding provisions of the English Fatal Accidents Acts has been discussed by the House of Lords in Davies vs Powell Duffryn Associated Collieries Ltd.(1). There, Lord Russell of Killowen stated the general rule at p. 606 thus: "The general rule which has always prevailed in regard to the assessment of damages under the, Fatal Accidents Acts is well settled, namely, that any benefit accruing to a dependent by reason of the relevant death must be taken into account. Under those Acts the balance of loss and gain to a dependent by the death must be ascertained, the position of each dependent being considered separately." Lord Wright elaborated the theme further thus at p. 611: "The damages are to be based on the reasonable expectation of pecuniary benefit or benefit reducible (1) 939 to money value. In assessing the damages all circumstances which may be legitimately Pleaded in diminution of the damages must be considered. The actual pecuniary loss of each individual entitled to sue can only be ascertained by balancing, on the one band, the loss to him of the future pecuniary benefit, and, on the other, any pecuniary advantage which from whatever source comes to him by reason of the death. " The same principle was restated with force and clarity by Viscount Simon in Nance vs British Columbia Electric Railway Company Ltd. (1). There, the learned Lord was considering the analogous provisions of the British Columbia legislation, and he put the principle thus at p. 614: "The claim for damages in the present case falls under two separate heads. First, if the deceased had not been killed, but had eked ou t the full span of life to which in the absence of the accident he could reasonably have looked forward, what sums during that period would he probably have applied out of his income to the maintenance of his wife and family?" Viscount Simon then proceeded to lay down the mode of estimating the damages under the first head. According to him, at first the deceased man 's expectation of life has to be estimated having regard to his age, bodily health and the possibility of premature determination of his life by later accidents; secondly, the amount required for the future pro vision of his wife shall be estimated having regard to the amounts he used to spend on her during his lifetime, and other circumstances; thirdly, the estimated annual sum is multiplied by the number of years of the man 's estimated span of life. , and the said amount must be discounted so as to arrive at the equivalent in the form of a lump sum payable on his death; fourthly, further deductions must be made for the benefit accruing to the widow from the acceleration of her interest in his estate; and, fifthly, further amounts have to be deducted for the possibility of the (1) 940 wife dying earlier if the husband had lived the full span of life; and it should also be taken into account that there is the possibility of the widow remarrying much to the improvement of her financial position. It would be seen from the said mode of estimation that many imponderable enter into the calculation. Therefore, the actual extent of the pecuniary loss to the respondents may depend upon data which cannot be ascertained accurately, but must necessarily be an estimate, or even partly a conjecture. Shortly stated, the general principle is that the pecuniary loss can be ascertained only by balancing on the one hand the loss to the claimants of the future pecuniary benefit and on the other any pecuniary advantage which from whatever source comes to them by reason of the death, that is, the balance of loss and gain to a dependent by the death must be ascer tained. The burden is certainly on the plaintiffs to establish the extent of their loss. Both the courts below found, on the evidence the following facts: (1) The family owned a building worth Rs. 2,00,000 at Palni, and 120 acres of nanja land worth about Rs. 1,000 per acre. (2) It was engaged in the business of manufacturing Indian patent medicines from drugs and had been running a Siddha Vaidyasalai at Palni for a period of 30 years and had also branches in Colombo and Madras. (3) Rajaratnam studied in the Indian School of Medicine for two years and thereafter set up his own practice as a doctor, having registered himself as a practitioner in 1940. (4) He took over the management of the family Vaidyasalai at Palni. (5) Rajaratnam was earning in addition Rs. 200 to Rs. 250 per month in his private practice. (6) He had a status in life, being Municipal Councillor of Palni and sometimes its Vice Chairman, and was maintaining a fairly good standard of life and owned motor cars. (7) He was aged 34 years at the time of his death and, therefore had a reasonably long span of life before him, if the accident had not taken place. On the said findings, the High Court summarized the position thus: 941 age 34 carrying on business as a Doctor, with reasonable prospects of improving in his business. He was living in comfort and by his early death plaintiff, , 2 to 7 have lost their prospects of education, position in society and even possible provision in their favour. Under the circumstances, the award of Rs. 25,000 as damages must be accepted as quite reasonable. " When the courts below have, on relevant material placed before them, ascertained the said amount as damages under the first head, we cannot in second appeal disturb the said finding except for compelling reasons. Assuming that Rajaratnam had not died, he would have spent, having regard to his means and status in life, a minimum of Rs. 250 on respondents 2 to 7; and his income, as indicated by the evidence, would certainly be more than that amount. The yearly expenditure he had to incur on the members of the family would have been about Rs. 3,000 and the sum of Rs. 25,200 would represent the said expenditure for just over 8 years. In the circumstances, the balance of loss and gain to the dependents by, the death of Rajaratnam, in the sense stated by Lord Wright and Viscount Simon, could not be less than Rs. 25,200; indeed, having regard to the circumstances of the case, it is a moderate sum; it is rather a conservative estimate. We, therefore, accept that figure as representing the damages for respondents 2 to 7 in respect of their claim under the head of pecuniary loss to them by the death of Rajaratnam. The last, contention raises an interesting point. Under section 2 of the Act the respondents 2 to 7 were awarded Rs. 5,000 as damages for loss of expectation of life. It was contended that this amount should go in reduction of Rs. 25,200 awarded under section 1 of the Act on the ground that otherwise it would be duplication of damages in respect of the same wrong. The second proviso to section 2 of the Act reads: "Provided that in any such action or suit, the executor, administrator or representative of the deceased may insert a claim for and recover any 942 pecuniary loss to the estate of the deceased occasioned by such wrongful act, neglect or default, which sum, when recovered, shall be deemed part of the assets of the estate of the deceased." While section 1 of the Act is in substance a reproduction of the English Fatal Accidents Acts, 9 & 10 Vict. 93, known as the Lord Campbell 's Acts, section 2 thereof corresponds to a provision enacted in England by the Law Reform (Miscellaneous Provision) Act, 1934. The cause of action under section 1 and that under section 2 are different. While under section 1 damages are recoverable for the benefit of the persons mentioned therein, under section 2 compensation goes to the benefit of the estate; whereas under section 1 damages are payable in respect of loss sustained by the persons mentioned therein, under section 2 damages can be claimed inter alia for loss of expectation of life. Though in some cases parties that are entitled to compensation under both the sections may happen to be the same persons, they need not necessarily be so; persons entitled to benefit under section 1 may be different, from those claiming under section 2. Prima facie as the two claims are to be based upon different causes of action, the claimants, whether the same or different, would be entitled to recover compensation separately under both the heads. But a difficulty may arise where the party claiming compensation under both the heads is the same and the claims under both the heads synchronize in respect of a particular sub head or in respect of the entire head. In that situation, the question is whether a party would be entitled to recover damages twice over in respect of the same wrong. In England this question came under judicial scrutiny in Rose vs Ford (1). There the question was whether and to what extent deductions would have to be made in giving compensation both under the English Fatal Accidents Acts and the Law Reform (Miscellaneous Provision) Act, 1934. A young woman called Rose was killed in an accident. Her father sued for damages under both the Acts. It was contended that as he got damages for personal loss, he could not be (1) , 835. 943 awarded once again compensation for the loss of expectation of life. Though in that case it was held that the father was entitled under both the Acts, Lord Atkin made the following observations, which are appropriate to the present case: "I should add that I see no difficulty as to the alleged duplication of damages under the Act of 1934 and the Fatal Accidents Acts. If those who benefit under the last mentioned Acts also benefit under the will or intestacy of the deceased personally, the damages under those Acts will be affected. If they do not, there seems no reason why an increase in the deceased 's estate in which they take no share should ,affect the measure of damages to which they are entitled under the Act. " A similar question arose in Feay vs Barnwell There, Mrs. Feay was killed in an accident and her husband sued for damages under both the Acts. It was held that, as the husband was the claimant under both the Acts, credit should be given in assessing the damages under the Fatal Accidents Acts, for what was given to him under the Law Reform Act, 1934. So too, in Ellis vs Raine (2), where the parents of an infant, who had been negligently killed in an accident, claimed damages under both the Acts, Goddard, L. J., reaffirmed the view that where the parties who would benefit from the damages awarded under the Fatal Accidents Acts were the same as those who would benefit from the damages awarded under the Law Reform Act, the damages under the Fatal Accidents Acts must be reduced by the amount given as loss under the Law Reform Act. Finally the same view has been reaffirmed and restated with clarity in Davis vs Powell Duffryn Associated Collieries Ltd. (3). There Lord Macmillan described the nature of the two heads thus at p. 610: "The rights of action in the two cases are quite distinct and independent. Under the Law Reform Act the right of action is for the benefit of the deceased 's estate; under the Fatal Accidents Acts (1) (2) (3) 944 the right of action is for the benefit of the deceased 's dependents. But, inasmuch as the basis of both causes of action may be the same, namely, negligence of a third party which has caused the deceased 's death, it was natural to provide that the rights of action should be without prejudice the one to the other. It is quite a different thing to read the provision as meaning that in assessing damages payable to dependents under the Fatal Accidents Acts no account is to be taken of any benefit which the dependents may indirectly obtain from an award under the Law Reform Act through participation in the deceased 's estate. . . it is appro priate that any benefit taken indirectly by a dependent by way of participation in an award under the Law Reform Act should be taken into account in estimating the damages awarded to that dependent under the Fatal Accidents Acts." Lord Wright addressed himself to the same question and answered it at p. 614 thus: "The injury suffered by the individual from the death cannot be computed without reference to the benefit also accruing from the death to the same individual from whatever source. " The principle in its application to the Indian Act has been clearly and succinctly stated by a division bench of the Lahore High Court in Secretary of State vs Gokal Chand (1). In that case, Sir Shadi Lal, C. J., observed at p. 453 thus: "The law contemplates two sorts of damages: the one is the pecuniary loss to the estate of the deceased resulting from the accident; the other is the pecuniary loss sustained by th e members of his family through his death. The action for the latter is brought by the legal representatives, not for the estate, but as trustees for the relatives beneficially entitled; while the damages for the loss caus ed to the estate are claimed on behalf of the estate and when recovered form part of the assets of the estate. " An illustration may clarify the position. X is the (1) Lahore 451. 945 income of the estate of the deceased, Y is the yearly expenditure incurred by him on his dependents (we will ignore the other expenditure incurred by him). X Y, i.e., Z, is the amount he saves every year. The capitalised value of the income spent on the dependents, subject to relevant deductions, is the pecuniary loss sustained by the members of his family through his death. The capitalised value of his income, subject to relevant deductions, would be the loss caused to the estate by his death. If the claimants under both the heads are the same, and if they get compen sation for the entire loss caused to the estate, they cannot claim again under the head of personal loss the capitalised income that might have been spent on them if the deceased were alive. Conversely, if they got compensation under section 1, representing the amount that the deceased would have spent on them, if alive, to that extent there should be deduction in their claim under section 2 of the Act in respect of compensation for the loss caused to the estate. To put it differently, if under section 1 they got capitalised value of Y, under section 2 they could get only the capitalised value of Z, for the capitalised value of Y+Z, i.e., X, would be the capitalised value of his entire income. The law on this branch of the subject may be briefly stated thus: The rights of action under sections 1 and 2 of the Act are quite distinct and independent. If a person taking benefit under both the sections is the same, he cannot be permitted to recover twice over for the same loss. In awarding damages under both the heads, there shall not be duplication of the same claim, that is, if any part of the compensation representing the loss to the estate goes into the calculation of the personal loss under section 1 of the Act, that portion shall be excluded in giving compensation under section 2 and vice versa. In the instant case, under section 1 of the Act both the. courts gave compensation to plaintiffs 2 to 7 in a sum of Rs. 25,200. This sum was arrived at by taking into consideration, inter alia, the reasonable provision the deceased, if alive, would have made for them. 119 946 Under section 2 both the courts awarded damages for the loss to the estate in a sum of Rs. 5,000. That figure represents the damages for the mental agony, suffering and loss of expectation of life. There was no duplication in awarding, damages under both the heads. No material has been placed before us to enable us to take a different view in regard to the amount of compensation under section 2 of the Act. The judgment of the High Court is correct and the appeal fails and is dismissed with costs. Appeal dismissed.

IN-Abs

A bus run by the appellant met with an accident as a result of which R died. R 's dependents and heirs e.g. the father, widow and sons, brought a suit for compensation under section 1 of the , for loss of pecuniary benefit sustained by them personally and under section 2 thereof for the loss sustained by the estate on account of the death of R. The, High Court found that the bus was driven at an excessive speed and there was negligence on the part of the driver and that the appellants were liable for the same. On the question of damages, it confirmed the amount of compensation of RS. 25,000 under section 1 of the Act for the loss of pecuniary advantage and of Rs. 6,000 under section 2 of the Act for loss of expectation of life. The questions for consideration were (1) whether the accident was due 117 930 to any negligence on the part of the driver; (2) whether the courts below were right in awarding compensation under section 1 of the Act for pecuniary loss sustained by the widow and the sons of the deceased; and (3) whether the sum awarded as damages under section 2 of the Act for loss of expectation of life should go towards the reduction of the compensation awarded for pecuniary loss sustained under section 1 of the Act, as otherwise it would be duplication of damages in respect of the same wrong. Held, that where on the basis of the evidence and on broad probabilities it is found that the speed at which the bus was driven was excessive having regard to the nature of the ground on which the accident happened, there is a presumption that the accident was caused by the negligence of the driver. As the driver was acting in the course of his employment, the master would be liable for such accident, unless the presumption is rebutted by the master. In the present case, on account of the negligence of the driver in the course of his employment the accident happened, and, therefore, the appellant was liable for the same. Barkway vs South Wales Transport Co. Ltd., [1948] 2 All E.R. 460, Joel vs Morison, (1834) 6 Car. & P. 501 and Storey vs Ashton, , applied. That the actual extent of the pecuniary loss to the aggriev ed party may depend upon data which cannot be ascertained accurately, but must necessarily be an estimate, or even partly a conjecture. Shortly stated, the general principle is that the pecuniary loss can be ascertained only by balancing on the one hand the loss to the claimants of the future pecuniary benefit and on the other any pecuniary advantage which from whatever sources come to them by reason of the death, that is, the balance of loss and gain to a dependant by the death must be ascertained. Davies vs Powell Duffryn Associated Collieries Ltd., and Nance vs British Columbia Electric Railway Company Ltd., , followed. Where the courts below have on relevant material placed before them ascertained the amount of damages under the head of pecuniary loss by the dependants of the deceased, such findings cannot be disturbed in second appeal except for compelling reason. Held, further, that the rights of action under sections 1 and 2 of the are quite distinct and independent. If a person taking benefit under both the sections was the same, he cannot be permitted to recover twice over for the same loss. In awarding damages under both the heads, there shall not be duplication of the same claim, that is, if any part of the compensation representing the loss to the estate goes into the calculation of the personal loss under section 1 of the Act, that portion shall be excluded in giving compensation under section 2 and vice versa. 931 in the instant case, under section 1 of the Act the sum of com pensation was arrived at by taking into consideration, inter alia, the reasonable provision the deceased, if alive, would have made for his widow and sons. Under section 2 the figure for damages awarded for the loss to the estate represents the damages for the mental agony, suffering and loss of expectation of life; thus there was no duplication in awarding damages under both the heads. Rose vs Ford, , Feay vs Barnwell, , Ellis vs Raine, and Secretary of State V. Gokal Chand, Lah. 451, referred to.

102 of 1958. Petition under article 32 of the Constitution of India for enforcement of Fundamental Rights. M. K. Nambiar, and section N. Andley, for the petitioners. H. N. Sanyal, Additional Solicitor General of India, M. P. Balagavgadhar Menon and Sardar Bahadur, for the respondents. April 14. The Judgment of the Court was delivered by GAJENDRAGADKAR, J. The Government of Kerala( appointed a Committee in exercise of its powers 948 conferred by cl. (a) of sub section (1) of section 5 of the (Act XI of 1948) (hereafter called the Act), to hold enquiries and advise the Government in fixing minimum rates of wages in respect of employment in the tile industry and nominated eight persons to constitute the said Committee under section 9 of the Act. This notification was published on August 14, 1957. The Committee made its report on March 30, 1958. The Government of Kerala then considered the report and issued a notification on May 12, 1958, prescribing minimum rates of wages as specified in the schedule annexed thereto. This notification was ordered to come into effect on May 26,1958. On that date the present petition was filed under article 32 by the nine petitioners who represent six tile factories in Feroke Kozhikode District, challenging the validity of the 'Act as well as the validity of the notification issued by the Government of Kerala. The State of Kerala is impleaded as respondent to the petition. The petitioners allege that the minimum wage rates fixed by the notification are very much above the level of what may be properly regarded as minimum wages and it was essential that before the impugned wage rates were prescribed the employers ' capacity to pay should have been considered. Since this essential element had not been taken into account at all by the Committee as well as by the respondent the notification is ultra vires and inoperative. According to them the burden imposed by the notification is beyond the financial capacity of the industry in general and of their individual capacity in particular, and this is illustrated by the fact that nearly 62 tile factories in Trichur closed soon after the notification was published. The petitioners seek to challenge the validity of the Act on several grounds set out by them in clauses (a) to (g) of paragraph 21 of the petition. It is urged that the Act does not define what the minimum wage is to comprise or to comprehend and as such confers arbitrary authority on the appropriate Governments to impose unreasonable restrictions on the employers. 'The law conferring such arbitrary power is violative of article 19(1)(g) of the Constitution. Since the Act 949 empowers the fixation of a wage which may disable or destroy the industry it cannot be said to be reasonable and as such is beyond the purview of article 19(1) and (6) of the Constitution. The Act does not lay down any reasonable procedure in the imposition of restrictions by fixation of minimum wage and so authorises any procedure to be adopted which may even violate the principles of natural justice. It is also alleged that the Act is discriminatory in effect inasmuch as it submits some industries to its arbitrary procedure in the matter of fixation of minimum wages and leaves other industries to the more orderly and regulated procedure of the Industrial Disputes Act. It is on these grounds that the validity of the Act is impugned. The petitioners impugn the validity of the notification also for the same reasons. Besides, it is urged that the notification has in effect fixed not minimum wages but fair wages and so it was essential that the capacity of the employers to bear the burden proposed to be imposed ought to have been considered. Failure to consider this essential aspect of the matter has, it is urged, rendered the notification void. That in substance is the nature of the case set out by the petitioners in their present petition. The respondent has traversed all these allegations. It is urged that the validity of the Act is no longer open to challenge since the question is concluded by the decisions of this Court; and it is alleged that what the notification purports to do is to fix the minimum wage and no more and as such the capacity of the employer to pay such a minimum wage is irrelevant. It is further alleged that decisions of this Court have firmly established the principle that in the matter of fixing minimum wages the capacity of the employer to pay need not be considered and that if any employer is unable to pay what can be regarded as minimum wages to his employees he has no right to carry on his industry. It is further pointed out that out of 18 factories in Feroke only six factories have come to this Court and it is suggested that the grievance made by the petitioners that the wage rates fixed are 950 beyond their capacity is not genuine or honest. The respondent also points out that the Committee appointed by it was a representative Committee and its report showed that it had considered the matter very carefully. Alternatively it is urged that the report of the said Committee would show that the capacity to pay had not been ignored by the Committee. The impact of the minimum wage, rate suggested by it had been considered by the Committee and so the Committee made its recommendations area wise. In regard to the closure of factories in Trichur the respondent 's case was that the said closure was not the result of financial inability of the factories to bear the burden but was probably actuated by political motives. The respondent also put in a general plea that in fact all the factories in the Kerala 'State except some of the factories in the Trichur area and one of the petitioners had implemented the notification without any objection or protest; and so it was argued that there was no substance in the grievance made by the petitioners. That in brief is the nature of the contentions raised by the respondent in reply to the petitioner 's case. At this stage it would be relevant to refer briefly to the Committee 's report in the order to find out how the Committee proceeded to discharge its task and what is the nature of its recommendations. The Committee consisted of eight members three of whom were the employers ' representatives and three the employees ' representatives while the Chairman Mr. V. R. Pillai and Mr. G. S.Pillai, the District Labour Officer, were nominated on the Committee as independent members. The Chairman Mr. Pillai is a M.A., M. Sc. in Economics of the London University. He is a Professor of Economics in the University College at Trivandrum and has had considerable experience inasmuch as he has served on several such Committees in the past. The Committee issued a questionnaire to all the tile factories in the State and other persons interested, considered the replies received from them, personally visited certain factories, recorded evidence of various associations representing the 951 tile factories as well as of individuals, and took into account various facts which the Committee thought were relevant. The report of the Committee shows that, subject to minor differences disclosed in the minute of dissent filed by Mr. K. Subramonia Iyer and the reply to it filed by Mr. A. Karunakaran, the recommendations of the Committee were unanimous and so prima facie we start with the fact that the recommendations of the Committee were approved not only by the two independent members but they secured the concurrence of the representatives of the employers as well as the employees. The report of the Committee consists of five chapters. Chapter 1 deals with the development of the tile industry in Kerala, chapter 11 deals with the problem of standardisation in the tile industry, chapter III considers the problem of wage structure area wise, chapter IV discusses the problem of minimum wage fixation, its principles and procedure, and chapter V records the conclusions and recommendations of the Committee. In dealing with the problem of wage structure the Committee has observed that the prevailing wage rates in the tile factories in the State show considerable difference from one centre to another, and that, according to the Committee, is partly due to historical factors and partly to the economic status of the workers in the areas concerned. The Committee formed the opinion that there being very little scope for alternative employment except in low paid agricultural occupations the bargaining position of the workers has all along been very weak and wages too have tended to remain at a relatively low level. It is in the light of this background that the Committee naturally proceeded to consider the problem of the fixation of minimum wage rates. The Committee has accepted the observation of the Fair Wages Committee that the minimum wage "must provide not merely for the bare subsistence of life but for the preservation of the efficiency of the workers. " Then it examined the food requirements of the employee on the basis of three consumption units recognized in Dr. Aykroyd 's formula. It then adopted 952 the assessment made by the Planning Commission in regard to the requirements of the employees in cotton textiles and placed the employee 's requirement at a per capita consumption of 18 yards per unit, then it took into account the requirement of housing and it held that the additional requirements of workers for fuel, lighting and additional miscellaneous items of expenditure should generally be fixed at 20% of the total wage in cases where the actual percentage has not been found out by a family budget enquiry. The Committee was conscious that it had to approach the problem from the point of view of the minimum needs of workers in order to maintain a subsistence standard, and so it enumerated the requirements of workers in that behalf as food, clothing, fuel, lighting and other miscellaneous items in which are also included rent, education, medical aid and entertainment. On this basis the Committee formulated the weekly food budget of the employee, added to it the requirement of clothing and miscellaneous items. According to the Committee the total weekly expen diture on this basis would be food 13.03, clothing 1.15 and miscellaneous 2.84, the total being Rs. 17.02 nP. The Committee then observed "calculating on the basis of six days per week a worker should get a minimum of Rs. 2.67 nP. per day to maintain a 'subsistence plus ' standard." Ultimately the Committee recommended that the minimum basic wage of an unskilled worker in the "A" region, viz., Quilon and Feroke, should be Re. 1. With a cost of living index for the tile Centers at an average figure of 400, and the minimum requirements of the workers at Rs. 2.67 nP. this basic wage corresponds to 150 in the cost of living index number. As to dearness allowance the Committee recommended that it should be related to the cost of living index and that the dearness allowance should be fixed at the rate of 1 nP. for every two points for all points above 200. Thus, when the cost of living index is 400 an unskilled worker will get Re. 1 as basic wage and Re. 1 as dearness allowance making a total of Rs. 2. The Committee added that if the rise in the cost of living had to be completely 953 neutralised he should get Rs. 1.67 nP as dearness allowance, but he gets only Re. 1 that is to say 100/ 167 or 60% of the increase in the cost of living. Therefore, the extent of the neutralisation of the increase in the cost of living is 60%. The Committee recognised regional differences and so introduced five Grades classified as A, B, C, D and E for the purpose of fixing the wage structure. The Committee hoped that the regional differences recommended by it would enable the backward areas to come up by improving the efficiency of production and marketing so that eventually they will be in a position to pay the same wages as advanced areas. The notification issued is substantially on the lines of the recommendations made by the Committee. Employees engaged in the tile industry have been categorised and their minimum wage rates have been classified into clauses A to E. In regard to dearness allowance the notification provides that a flat rate of dearness allowance for all workers irrespective of sex or grade shall be paid at the rate of one naya paisa for every two points in the cost of living index in each year in excess of Rs. 200. Thus the notification purports to prescribe the minimum rates of wages in regard to tile industry in the State; it is the validity of this notification that is impugned before us by the present petition. Before dealing with the points raised by Mr. Nambiar on behalf of the petitioners it is necessary to refer very briefly to the material provisions of the Act. This Act was passed in 1948, because it was thought expedient to provide for fixing minimum rates of wages in certain employments. Under section 3 the appropriate Government is empowered to fix mini. mum rates of wages in regard to employments as therein specified, and review the same at such intervals as specified by section 3(1). Section 3(3) contemplates that in fixing or refixing minimum rates of wages different minimum rates of wages may be fixed for different scheduled employments, different classes of work in the same scheduled employments, adults, 120 954 adolescents, children and apprentices, and different localities. Under section 4 any minimum rate of wages fixed or revised may, inter alia, consist of a basic rate of wages and a special allowance at a rate to be adjusted, or a basic rate of wages with or without the cost of living allowance and the cash value of the concessions in respect of supplies of essential commodities at concession rates where so authorised or an all inclusive rate allowing for the basic rate, the cost of living allowance and the cash value of the concessions if any. Section 5 prescribes the procedure for fixing and revising minimum wages. It is under this section that a Committee was appointed by the respondent in the present case. Section 9 makes provision for the composition of the Committee. Such Committees have to consist of equal number of representatives of employers and employees and of independent persons not exceeding. one third of the total number of members. Section 12(1) imposes on the employer the obligation to pay the minimum rates of wages prescribed under the Act. Section 22 provides for penalties for offences and section 22A makes a general provision for punishment of offences not otherwise expressly provided for. Under section 25 any contract or agreement whether made before or after the commencement of this Act which affects an employee 's right to a minimum rate of wages prescribed under the Act shall be null and void so far as it purports to reduce the said minimum rate of wages. Section 27 empowers the appropriate Government, after giving notification as prescribed, to add to either part of the schedule any employment in respect of which it is of opinion that minimum rates should be fixed, and thereupon the schedule shall be deemed to be amended accordingly in regard to that State. In the case of The Edward Mills Co. Ltd., Beawar & Ors. vs The State of Ajmer (1), the validity of section 27 of the Act was challenged on the ground of excessive delegation. it was urged that the Act prescribed no principles and laid down no standard which could furnish an intelligent guidance to the administrative (1) ; 955 authority in making selection while acting under section 27 and so the matter was left entirely to the discretion of the appropriate Government which can amend the schedule in any way it liked and such delegation virtually amounted to a surrender by the Legislature of its essential legislative function. This contention was rejected by Mukherjea, J., is he then was, who spoke for the Court. The learned Judge observed that the Legislature undoubtedly intended to apply the Act to those industries only where by reason of un organised labour or want of proper arrangements for effective regulation of wages or for other causes the wages of labourers in a particular industry were very low. He also pointed out that conditions of labour vary under different circumstances and from State to State and the expediency of including at particular trade or industry within the schedule depends upon a variety of facts which are by no means uniform and which can best be ascertained by a person who is placed in charge of the administration of a particular State. That is why the Court concluded that in enacting section 27 it could not be said that the Legislature had in any way stripped itself of its essential powers or assigned to the administrative authority anything but an accessory or subordinate power which was deemed necessary to carry out the purpose and the policy of the Act. In the same year another attempt was made to challenge the validity of the Act in Bijay Cotton Mills, Ltd. vs The State of Ajmer (1). This time the crucial sections of the Act, namely, sections 3, 4 and 5 were attacked, and the challenge was based on the ground that the restrictions imposed by them upon the freedom of contract violated the fundamental right guaranteed under article 19(1)(g) of the Constitution. This challenge was repelled by Mukherjea, J., as he then was, who again spoke for the Court. The learned Judge held that the restrictions were imposed in the interest of the general public and with a view to carry out one of the directive principles of State policy as embodied in article 43 and so the impugned sections (1) ; 956 were protected by the terms of cl. (6) of article 19. In repelling the argument of the employers ' inability to meet the burden of the minimum wage rates it was observed that "the employers cannot be heard to complain if they are compelled to pay minimum wages to their labourers even though the labourers on account of their poverty and helplessness are willing to work on lesser wages, and that if individual employers might find it difficult to carry on business on the basis of minimum wages fixed under the Act that cannot be the reason for striking down the law itself as unreasonable. The inability of the employers may in many cases be due entirely to the economic conditions of those employers. " It would thus be seen that these two decisions have firmly established the validity of the Act, and there can no longer be any doubt that in fixing the minimum wage rates as contemplated by the Act the hardship caused to individual employers or their inability to meet the burden has no relevance. Incidentally, it may be pointed out that in dealing with the minimum wage rate,,; intended to be pre scribed by the Act Mukherjea, J., has in one place observed that the labourers should be secured adequate living wages. In the context it is clear that the learned Judge was not referring to living wages properly so called but to the minimum wages with which alone the Act is concerned. In view of these two decisions we have not allowed Mr. Nambiar to raise any contentions against the validity of the Act. It is true that Mr. Nambiar attempted to argue that certain aspects of the matter on which he wished to rely had not been duly considered by the Court in Bijay Cotton Mills Ltd. 's case (1). In our opinion it is futile to attempt to reopen an issue which is clearly concluded by the decisions of this Court. Therefore, we will proceed to deal with the present petition, as we must, on the basis that the Act under which the Committee " as appointed and the notification was ultimately issued is valid. We have already seen what the Act purports to achieve is to prevent exploitation of labour and for (1) ; 957 that purpose authorises the appropriate Government to take steps to prescribe minimum rates of wages in the scheduled industries. In an under developed country which faces the problem of unemployment on a very large scale it is not unlikely that labour may offer to work even on starvation wages. The policy of the Act is to prevent the employment of such sweated labour in the interest of general public and so in prescribing the minimum wage rates the capacity of the employer need not be considered. What is being prescribed is minimum wage rates which a welfare state assumes every employer must pay before he employs labour. This principle is not disputed (Vide: Messrs. Crown Aluminium Works vs Their Workmen(1) it is, therefore, necessary to consider what are the components of a minimum wage in the context of the Act. The evidence led before the Committee on Fair Wages showed that some witnesses were inclined to take the view that the minimum wage is that wage which is essential to cover the bare physical needs of a worker and his family, whereas the overwhelming majority of witnesses agreed that a minimum wage should also provide for some other essential requirements such as a minimum of education, medical facilities and other amenities. The Committee came to the conclusion that a minimum wage must provide not merely for the bare subsistence of life but for the preservation of the efficiency of the worker, and so it must also provide for some measure of education, medical requirements and amenities. The concept about the components of the minimum wage thus enunciated by the Committee have been generally accepted by industrial adjudication in this country. Sometimes the minimum wage is described as a bare minimum wage in order to distinguish it from the, wage structure which is 'subsistence plus or fair wage, but too much emphasis on the adjective "bare" in relation to the minimum wage is apt to lead to the erroneous assumption that the maintenance wage is a wage which enables the worker to cover his bare (1) ; 958 physical needs and ]Keep himself just above starvation. That clearly is not intended by the concept of minimum wage. On the other hand, since the capacity of the employer to pay is treated as irrelevant, it is but right that no addition should be made to the com ponents of the minimum wage which would take the minimum wage near the lower level of the fair wage, but the contents of this concept must ensure for the employee not only his sustenance and that of his family but must also preserve his efficiency as a worker. The Act contemplates that minimum wage rates should be fixed in the scheduled industries with the dual object of providing sustenance and maintenance of the worker and his family and preserving his efficiency as a worker. Mr. Nambiar contends that when the statute purports to prescribe a minimum wage in effect it directs the fixation of a statutory minimum wage and as such, capacity to pay must be considered before such minimum wage is fixed. His argument is that in any event the impugned notification statutorily prescribes such minimum wage rates for the tile industry in the State of Kerala and as such the rates so recommended do not constitute merely the industrial and economic minimum as understood by industrial adjudication but it constitutes a statutory minimum which can be fixed only after taking into account the employers ' capacity to pay the same. In support of this argument Mr. Nambiar has strongly relied on some observations made by this Court in the case of Express Newspapers (Private) Ltd. vs The Union of India (1). We will presently refer to the said observations but in appreciating the nature and effect of the said observations it is necessary to recall that in that case the Court was dealing with the problem of fixation of wages in regard to Working Journalists as prescribed by section 9 of the Working Journalists (Conditions of Service) and Miscellaneous Provisions Act, 1955 (45 of 1955). Section 9 of the said Act required that in fixing rates of wages in respect of working journalists the Board had to have regard to the cost of living, the prevalent (1) 959 rates of wages for comparable employments, the circumstances relating, to newspaper industry in different regions of the country and to any other circumstance which to the Board may deem relevant. It was held that the wage structure contemplated by section 9 was not the structure of minimum wage rates, it was a wage structure permitted to be prescribed by that statute after taking into account several relevant facts and the scheme of that Act showed that the wage structure thus contemplated was very much beyond the minimum wage rates and was nearer the concept of a fair wage. That is why the Court took the view that the expression "any other circumstance" specified by section 9 definitely included the circumstance, namely, the capacity of the industry to bear the burden and so the Board was bound to take that factor into account in fixing the wage structure. It appeared to the Court that this important element had not been considered by the Board at all and that introduced a fatal infirmity in the decisions of the Board. Thus, the wage structure with which the Court was concerned in that case was not the mini. mum wage structure at all. It is essential to remember this aspect of the matter in appreciating the argument urged by Mr. Nambiar on the strength of certain observations made by this Court in the course of its judgment. In the course of his judgment Bhagwati, J., who spoke for the Court, has elaborately considered several aspects of the concept of wage structure including the concept of minimum wage. The conclusion of the Fair Wage Committee as to the content of the minimum wage has been cited with approval (p. 83). Then a distinction has been drawn between a bare subsistence or minimum wage and a statutory minimum wage, and it is observed that the statutory minimum wage is the minimum which is prescribed by the statute and it may be higher than the bare subsistence or minimum wage providing for some measure of education, medical requirements and amenities (p. 84). This observation is followed by a discussion about the concept of fair wage; and in 960 dealing with the said topic the has also been referred to and it is stated that the Act was intended to provide for fixing minimum rates of wages in certain employments and the appropriate Government was thereby empowered to fix different minimum rates of wages as contemplated by section 3(3). Then it is stated that whereas the bare minimum or subsistence wage would have to be fixed irrespective of the capacity of the industry to pay the minimum wage thus contemplated postulates the capacity of the industry to pay and no fixation of wages which ignores this essential factor of the capacity of the industry to pay could ever be supported. Mr. Nambiar contends that the last part of the observation refers to the minimum wage prescribed by the Act and it requires that before prescribing the said wage the capacity of the industry must be considered. We do not think that this argument is well founded. It would be noticed that in considering the distinction drawn between the minimum wage fixed by industrial adjudication and the minimum wage prescribed by a statute which is called statutory minimum it has been made clear that the latter can be higher than the bare subsistence or minimum wage and as such is different in kind from the industrial minimum wage. We do not think that the observation in question was intended to lay down the principle that whereas a minimum wage can be laid down by an industrial adjudication without reference to an employer 's capacity to pay the same it cannot be fixed by a statute without considering the employer 's capacity to pay. Such a conclusion would be plainly illogical and unreasonable. The observations on which Mr. Nambiar relies do not support the assumption made by him and were not intended to lay down any such rule. Cases are not unknown where statutes prescribe a minimum and it is plain from the relevant statutory provisions themselves that the minimum thus prescribed is not the economic or industrial minimum but contains several components which take the statutorily prescribed minimum near the level of the fair wage,and when that is the effect of the statutory provision capacity to pay may no doubt have to be 961 considered. It was a statutory wage structure of this kind with which the Court was dealing in the case of Express Newspapers (Private) Ltd. (1), because section 9 authorised the imposition of a wage structure very much above the level of the minimum wage and it is obvious that the observations made in the judgment cannot, and should not, be divorced from the context of the provisions with respect to which it was pronounced. Therefore, we feel no hesitation in reject ing the argument that because the Act prescribes minimum wage rates it is necessary that the capacity of the employer to bear the burden of the said wage structure must be considered. The attack against the validity of the notification made on this ground must therefore fail. It still remains to consider whether in fact the noti. fication has prescribed a wage structure which is above the level of the minimum wage properly socalled. If the notification has in fact prescribed a wage structure which is nearer the fair wage level and is above the minimum wage structure that no doubt would introduce an infirmity in the notification since it does appear that the capacity of the employer to bear the burden has not been considered either by the Committee or by the Government. This part of the attack against the notification is based on two grounds. Mr. Nambiar contends that in making its calculations about the minimum wage rates the Committee has taken into account an item of entertainment, and that, says Mr. Nambiar, is clearly inadmissible. He also points out that the Committee has described the daily minimum of Rs. 2.67 nP. ultimately deduced by it as intended to maintain the employee 's subsistence plus ' standard and that again shows that the wage structure is above the minimum, standard and goes towards the lower level of the fair wage. We are not impressed by this argument. It would be recalled that amongst the miscellaneous items in respect of which Rs. 2.84 nP. are added by the Committee in its calculations are rent, education, (1) 121 962 medical aid and entertainment. The first three are not inadmissible, and so the attack is against the inclusion of the last item alone. Even assuming that the last item is inadmissible it is not difficult to imagine that the addition of this last item could not have meant much in the calculations of the Committee, and so the grievance made on account of the inclusion of the said item cannot be exaggerated. There are, however, two other factors which are relevant in this connection. What the Committee has described as the subsistence plus ' standard should on its own calculations represent the daily minimum of Rs. 2.84 nP., not Rs. 2.67 nP. Rs. 2.67 nP. is plainly the result of miscalculation so that it can be safely assumed that the said sum which is taken to represent the daily minimum to maintain a 'subsistence plus ' standard in fact does not include an amount which may be attributed to entertainment. Besides, it is necessary to remember that what the Committee has ultimately recommended is not the award of Rs. 2.67 nP. which according to it represents 'subsistence. plus ' standard but only Rs. 2 and that itself shows that what is re. commended is below the 'subsistence plus ' standard. There is yet another point which leads to the same conclusion. Even if the whole of the miscellaneous item is excluded and calculations are made on the basis that the total permissible items amount to Rs. 14.18 nP. we would still reach the figure for the daily minimum which is more than Rs. 2. Therefore, look at it how we may, it is impossible to accept the argument that the wage structure ultimately recommended by the Committee is anything higher than what the Committee thought to be the minimum wage structure. Therefore, we are not prepared to hold that the notification which is in conformity with the recommendations of the Committee has prescribed wage rates which are higher than the minimum wage structure. If that be so, failure to take into account the capacity of the industry to bear the burden can introduce no infirmity either in the recommendations of ' the Committee or in the notification following upon them. 963 Mr. Nambiar no doubt wanted to attack the merits of the notification on the ground that the wage rates fixed by it are unduly high. In that connection he relied on the fact that the minimum wage rates prescribed by the Madras Government by its notification published on February 25, 1952, as well as the wage rates prevailing in other industries in Kerala were slightly lower. He also pointed out that the wage rates awarded by industrial adjudication and even the claims made by the employees themselves would tend to show that what has been awarded by the notification is higher than the prescribed minimum wages. It is not possible for us to entertain this contention. The determination of minimum wages must inevitably take into account several relevant factors and the decision of this question has been left by the Legislature to the Committee which has to be appointed under the Act. We have already referred to the composition of the Committee and have reviewed very briefly its report. When a Committee consisting of the representatives of the industry and the employees considers the problem and makes its recommendations and when the said recommendations are accepted by the Government it would ordinarily not be possible for us to examine the merits of the recommendations as well as the merits of the wage structure finally notified by the Government. The notification has accepted the recommendations of the Committee to categorise the workers and that obviously was overdue. The fact that wages paid in other industries in Kerala, or in other States in comparable concerns, are lower would have been relevant for the Com mittee to consider when it made its recommendations. In appreciating the effect of the prevalence of lower rates it may also be relevant to bear in mind that in some places and in some industries labour is still employed on wages much below the standard of minimum rates. In fact, in its report the Committee has pointed out that in Kerala. the bargaining position of the workers has all along been very weak and wages have tended to remain in a deplorably low level. Therefore, the fact that lower wages are paid in other 964 industries or in some other places may not necessarily show that the rates prescribed by the notification are unduly high. In any event these are considerations Which ordinarily cannot be entertained by us because obviously we are not sitting in appeal over the recommendations of the Committee or the notification following upon them. That is why the grievance made by Mr. Nambiar on the merits of the wage structure prescribed by the notification cannot succeed. There is, however, one aspect of this problem to which we must refer before we part with this case. It appears that soon after the notification was issued as many as 62 tile factories in Trichur closed their works and that led to unemployment of nearly 6,000 employees. In order to resolve the deadlock thus created the respondent referred the industrial dispute arising between the Trichur factories and their employees for industrial adjudication (I.D. 45 of 1958). On this reference an interim award was made and it was followed by a final award on September 26, 1960. Both the interim and the final awards were the result of settlement between the parties and the order passed by the tribunal shows that the respondent, acting, through its Labour Minister, "left aside the prestige of the Government, came to the scene and effected a settlement." Mr. Nambiar has strongly criticised the conduct of the respondent in permitting a departure from the notification in respect of 62 tile factories at Trichur contrary to the provisions of the Act, and in insisting upon its implementation in respect of the other parts of the State. His argument is two fold. He suggests that the settlement reached between the parties in Trichur shows that the minimum prescribed by the notification was above the legally permissible minimum and beyond the capacity of the Trichur factories, and that would support his grievance that the rates prescribed are not the minimum but they are such above that level. We are not im pressed by this argument. As we have already observed we would ordinarily refuse to consider the merits of the wage structure prescribed by the notification. Besides, the closure of the factories in Trichur may 965 either be because the factories there found it difficult to pay the wage structure or may be for reasons other than industrial. We propose to express no opinion on that point because that is not a point in issue before us, and so the settlement can have no bearing on the fate of the present petition; but the other argument urged by Mr. Nambiar raises a serious question. Under the Act the notification has to apply to all the tile factories in the State and breach of the provisions of the notification is rendered penal under section 22 of the Act. An agreement or contract contrary to the notification would be void under section 25 of the Act. It is to be regretted that the respondent, acting through its Labour Minister, appears to have assisted in bringing about a settlement contrary to the terms of the Act. If the respon dent thought that such a settlement was necessary in respect of Trichur factories it may consider the question of withdrawing the notification in respect of that area and in fairness may also reconsider the problem in respect of all the other areas and decide whether any modification. in the notification is required. It is not appropriate that the respondent should be associated, though indirectly, with the settlement which is in breach of the provisions of the Act. We would, therefore, suggest that the respondent should seriously consider this aspect of the matter and should not hesitate to do what may appear to be just, reasonable and fair on an objective consideration of the whole problem. In the result, the petition fails and is dismissed. There would be no order as to costs. Petition dismissed.

IN-Abs

The petitioners, representing certain tile factories, challenged the validity of the , as also the notification issued by the Kerala Government prescribing minimum rates of wages in respect of employment in the tile industry on the report of a committee constituted under the Act and consisting of the representatives both of the employers and employees who agreed with its recommendations. The case of the petitioners was that the notification had in effect fixed not minimum wages but fair wages and since neither the committee nor the Government in fixing them had considered the capacity of the employers to pay, the notification was void. Held, that in view of the decisions of this Court the con stitutional validity of the Act could no longer be in doubt and any hardship that may be caused to employers by the wages fixed under the Act or their incapacity to pay the same are irrelevant considerations in fixing such wages. 947 The Edward Mills Co. Ltd. vs The State of Ajmer, ; , Bijay Cotton Mills Ltd. vs State of Ajmer, ; and M/s. Crown Aluminium Works vs Their Workmen; , , referred to. While, therefore, in fixing the minimum wage nothing can be added to its components that may take it near the lower level of the fair wage, the minimum wage must ensure not only the sustenance of the employee and his family but also preserve his efficiency as a worker and that is what is contemplated by the Act. It is an error to think that the minimum wage is just what a worker requires to cover his physical needs and to keep himself above starvation. There can be no analogy between the which prescribes the economic and industrial minimum and a statute which prescribes its own minimum that approximates more or less to the fair wage standard and so makes it necessary to consider the employer 's capacity to pay. Express Newspapers (P.) Ltd. vs The Union of India, , explained and distinguished. This Court would ordinarily refuse to consider the merits of the wage structure set up by the Notification on the recommendations of the committee, agreed to by the representatives of the employers and the employees. The fact that wages paid in other industries in the State or in other States in comparable concerns are lower does not necessarily show that the rates prescribed by the Notification are unduly high. A notification under the Act must apply to all the factories in the State and the State cannot permit or be associated with a departure from it for that would amount to a contravention of SS. 22 and 25 of the Act. If a departure is considered necessary, the proper course would be to withdraw the notification in respect of the area concerned or to reconsider and modify it if necessary.

iminal Appeal No. 119 of 1960. Appeal by special leave from the judgment and order dated April 14, 1960, of the Madras High Court in Cr. Petition No. 246 of 1960, D. N. Mukherjee, for the appellant. M. section K. Sastri and T. M. Sen, for respondent. April 19. The Judgment of the Court was delivered by RAGHUBAR DAYAL,, J. This appeal, by special leave, is against the order of the Madras High Court dismissing the application for quashing the commitment of the case against the appellant, to the Court of Session, for trial of offences of criminal conspiracy to cheat under section 120 B read with section 420, Indian Penal Code, and for the offence of forgery committed in pursuance of that conspiracy. The criminal conspiracy is alleged to have been committed at Calcutta. The other offences in pursuance of the conspiracy are alleged to have been committed within the jurisdiction of the Court of Session at Madras. The quashing of. the commitment was sought on the ground that, the Courts at Madras had no jurisdiction to try the offence of conspiracy. The High Court did not accept the contention and dismissed the application. The sole question for consideration in this appeal is whether the offence of conspiracy alleged to have been committed at Calcutta can be tried by the Court of Session at Madras. We have held this day, in Purushottamdas Dalmia vs The State of West Bengal (1) that the Court having (1) [1962] 2S.C.R. 101. 118 jurisdiction to try the offence of criminal conspiracy can also try offences committed in pursuance of that conspiracy even if those offences were committed outside the jurisdiction of that Court, as the provisions of section 239, Criminal Procedure Code, are not controlled by the provisions of section 177, Criminal Procedure Code,which do not create an absolute prohibition against the trial of offences by a Court other than the one within whose jurisdiction the offence is committed. On a parity of reasoning, the Court having jurisdiction to try the offences committed in pursuance of the conspiracy, can try the offence of con, ,piracy even if it was committed outside its jurisdiction. We therefore hold that the order under appeal is correct and, accordingly, dismiss this appeal. Appeal dismissed.

IN-Abs

The appellant was committed to the Court of Session at Madras for trial under section 120 B read with section 420 of the Indian Penal Code and for committing the offence of forgery in pursuance of that conspiracy. The Criminal conspiracy was alleged to have been committed at Calcutta, while the other offences in 117 pursuance thereof were committed at Madras. It was urged on behalf of the appellant that the Madras Court had no jurisdiction to try the offence of criminal conspiracy. Held, that the court having the jurisdiction to try the offences committed in pursuance of the conspiracy, has also the jurisdiction to try the offence of criminal conspiracy, even though it was committed. outside its territorial jurisdiction. Purushottamdas Dalmia vs State of wesst Bengal; , , applied.

Appeal No. 147 of 1958. Appeal from the judgment and decree dated January 4, 1955, of the Allahabad High Court in Special Appeal No. 36 of 1955. A. V. Viswanatha Sastri, C. P. Lal and G. C. Mathur, for the appellants. K. B. Bagchi, section N. Mukherjee for P. K. Bose, for the respondent No. 1. 1961. April 18. The Judgment of the Court was delivered by SUBBA RAO, J. This appeal by certificate raises the question of construction of a will executed by one Pyare Mohan Bannerji. 29 The facts giving rise to this appeal lie in a small compass and they are as follows: Pyare Mohan Bannerji died in October 1874 leaving behind him considerable property. He executed a will dated February 12, 1874, making various bequests, including the payment of certain amounts to the first respondent, Uttar para Hitakari Sabha. After his death, his widow held the property for life till her death on March 25, 1945. Thereafter, the property went into the possession of the appellants, who are the heirs at law of the testator. On March 17, 1950, the first respondent, Uttarpara Hitakari Sabha (hereinafter referred to as the Sabha) filed an application in the High Court of Judicature at Allahabad under section 10 of the Official Trustees Act (Act II of 1913) claiming that the late Pyare Mohan Bannerji had created a trust by his will and praying that an official trustee be appointed to be the trustee of the properties of the trust. This was registered as Testamentary Case No. 9 of 1950. The appellants contested the claim of the Sabha and contended, inter alia, that no trust had been created by the testator and that the appellants, being the legal heirs of the testator, were entitled to succeed to the entire pro perty left by him. Mootham, J., as he then was, who heard the said case at the first instance, held that by his last will Pyare Mohan Bannerji created a trust in favour of the Sabha, and appointed the Official Trustee a trustee of all the properties left by Pyare Mohan Bannerji specified in Schedule B to the petition. On appeal, a division bench of the said High Court, consisting of Malik, C. J., and Agarwala, J., agreed with Mootham, C. J., that the will created a trust in favour of the Sabha; but the learned Judges held that the Sabha was entitled only to a half share in the cash and properties pertaining to the estate of the said testator, and appointed the Official Trustee as trustee only in regard to the said share: on that basis, suitable directions were given. The first respondent accepted that position, but the appellants, i.e., the persons claiming to be the heirs at law, preferred the present appeal against the judgment of the High Court in so far as it went against them. 30 Learned counsel for the appellants contends that under the will not a trust but only a charge was created in favour of the first respondent and, therefore, the first respondent could not invoke in aid the provisions of section 10 of the Act. Section 10 of the Act reads: "(1) If any property is subject to a trust other than a trust which the Official Trustee is prohibited from accepting under the provisions of this Act, and there is no trustee within the local limits of the ordinary or extraordinary original civil jurisdiction of the High Court willing or capable to act in the trust, the High Court may on application make an order for the appointment of the Official Trustee by that name with his consent to be the trustee of such property. " It is common case that if the will created a trust, it would not fall under any one of the exceptions mentioned in the section. Therefore, the only question is whether the will created a trust or a charge in favour of the first respondent. The concepts of trust and charge are well defined. A trust is "an obligation annexed to the ownership of property, and arising out of a confidence reposed in and accepted by the owner or declared and accepted by him, for the benefit of another, or of another and the owner. " Where property "of one person is made security for the payment of money to another, the latter person is said to have a charge on the property. " The boundaries between the two concepts are well demarcated; but, more often than not, courts found considerable difficulty in construing a particular document to place it in one or other of the categories. The same difficulty was encountered even in England. The test laid down for marking out the one from the other by some of the authoritative text books on the subject may be useful in construing the will in question. In Halsbury 's Laws of England, 2nd Edn. 33 (Lord Hailsham), the distinction between the two concepts has been stated thus at p. 98: "Where property is given to a person upon condition that he does a certain act or confers a 31 certain benefit on another person, the condition may constitutes a trust if it is directed to be, or must necessarily be, performed and satisfied out of the property, and consequently imposes a fiduciary obliga tion in respect of the property; but it will not be construed as a trust if this is not the case and the condition merely imposes a collateral duty. Similarly, a devise of land upon condition of paying a sum of money or an annuity does not create a trust, though it may create a charge. A charge does not in itself create a trust, but it may do so if it is coupled with other trusts or the context, otherwise so requires. Conversely a trust may amount merely to a charge." Lord St. Leonards points out (Sugden on Powers, 7th Edn., p. 122) that, "What by the old law was deemed a devise upon condition, would now, perhaps, in almost every case be construed as a devise in fee upon trust, and by this construction, instead of the heir taking advantage of the condition broken, the cestui que trust can compel an observance of the trust by suit in equity. " In The Commissioners of Charitable Donations and Bequests vs Wybrants (1) a testator had devised lands to trustees and their heirs upon trust to grant and convey the same to the use of John Wybrants for life 'subject nevertheless to and charged and chargeable with ' four annuities, three of which were to be paid to charitable institutions and the fourth to the poor of a parish. In construing that provision, the Lord Chancellor said at p. 285: "It certainly is not necessary to use the word 'trust ' in order to create an express trust. I do not intend to lay it down that every charge creates a trust, although it imposes a burden; but a charge may create a trust; depending on the nature of the charge. In Bailey vs Ekins (2) Lord Elton said he was confident Lord Thurlow 's opinion was that a charge (of debts) is a devise of the estate, in substance and effect, pro tanto upon trust to pay the (1) (1845) 69 R.R. 278. (2) , 323. 32 debts:and this is supported by the current of authorities. The principle is no less powerful in the case of charities, particularly where the charity is to a fluctuating, uncertain body, like the poor of a parish. The testator gives the estate to one, subject to this charge. Who is to pay the annuities but the person who is liable to the burden: and this, in the case of a charity, impresses him with the character of a trustee for the charity. By the ancient rule of equity, no one could acquire an estate, with notice of a charitable use, without being liable to it. " The fact that a beneficial interest is also created in favour of the trustees in respect of the property subject to a trust does not make the transaction any the less a trust. The law permits a person to bequeath his property to another subject to a trust in respect of a portion of the income in favour of a third party or a charity. On this subject in Lewin on Trusts, it is stated at P. 133: "Upon this subject a distinction must be observed between a devise to a person for a particular purpose with no intention of conferring the beneficial interest, and a devise with the view of conferring the beneficial interest, but subject to a particular injunction. " So too, Tudor in his book on Charities, 5th Edn., says much to the same effect at p. 52: "A charitable trust may be made to attach to a part of the property only, or it may be limited to particular payments directed to be made out of the income, as in the numerous cases where property has been given to a college, or municipal corporation, or city guild, upon trust or to the intent that certain specified charitable payments shall be made or subject to or charged with certain charitable payments. In these cases, as will be seen, the donees as a rule take beneficially, subject only to the specified charitable payments. " The said tests may afford a guide to ascertain whether a document creates a charge or a trust; but they are subject to the fundamental rule of construction that a trust may be created in language sufficient 33 to show the intention, and no technical words are necessary; the said intention must be gathered from a fair reading of the provisions of the document. In the light of the foregoing discussion, let us look at the provisions of the will to ascertain the express intention of the testator. At the time the testator executed the will he had a wife, and a nephew by name Sital Prasad Chatterji, but no children. He had many other close relatives and dependents. He was also charitably disposed. He executed the will making suitable provision for his wife, nephew, relatives and for charities. He could carry out his intention in two ways: he could bequeath his entire property to his widow and nephew subject to a fiduciary obligation imposed on them to pay certain amounts to the relatives and the charities; or, he could give the entire property to his widow and nephew subject to the payment of certain amounts charged on the said property. The question is, what did he intend to do by this document? He did not use either the word "trust" or "charge" and, therefore, we must gather the intention only from the circumstances obtaining at the time the document was executed and the recitals found therein. Under the will the testator made the following bequests depending upon different contingencies: Firstly, the property was given to his wife and nephew in equal shares for their lifetime subject to the payment of all his debts, annuities and charges; it is also provided therein for the sale of a standing jungle in Doomree and Sukhiae in the Gorakhpore District for the purpose of discharging the debts. The second contingency related to the event of the testator and his nephew begetting son or sons; in that event, after the lifetime of his wife and nephew the son or sons of his nephew would get one fourth share subject to their paying one fourth of the annuities and charges, and whole of the remainder was given to his son or sons subject to their paying the remaining three fourths of the annuities and charges. The third contingency related to the testator getting no children, but his nephew having sons; in that event, after the 34 death of his wife and nephew, the whole of his property would go to the said son or sons subject to the said annuities and charges. In the event of the testator having children and the nephew having no son or sons, after the death of his wife and nephew, the property would go to his children subject to the payment of annuities and charges mentioned in the first portion of the will. The last contingency contemplated was that neither the testator nor his nephew had any issue; in that event the whole of the property was given to his legal heirs subject to the payment of annuities and charges. The quantum of bequests made in favour of the Sabha expanded from contingency to contingency. During the lifetime of the nephew and the widow, the said Sabha got rupees fifteen per month. In the event of either the testator or his nephew not having any children, the direction was that the said Sabha should get rupees fifty per month. In that contingency not only the said Sabha but any other institution which took its place ' would get the said amount. It was also mentioned that the amount should be given only to be spent in paying the school fees of indigent boys of Coterie reading in the Ooterpara School and whose parents or guardians might not have the means to pay their school fees. On the happening of the last contingency, that is, both the testator and his nephew dying without children, his legal heirs took the property subject to the payment of half of the net income to the said Sabha or any institution which might take its place. The said amount was directed to be paid thus: "Rupees fifty per month in payment of schooling fees of indigent boys of Ooterpara reading in the Ooterpara school and the balance, if any, as scholarships to persons resident of Ooterpara or failing such of Bengal who after passing the entrance examination of the Calcutta University may wish to learn practical agriculture or Chemistry or Mechanics. " At present it is common case that all the relatives for whom provision was made in the will passed away, that there are no daughters of testator 's nephew and that the Sabha is the only institution entitled to receive the 35 amounts provided for under the will. We are, therefore, only concerned with the question whether a trust was created in favour of the first respondent or not, on the happening of the last contingency, namely, the testator leaving no children and his nephew no sons. On the happening of that event the property passed to his legal heirs. When that stage was reached the testator was more interested in charities than to make provision for persons for whom he had love and affection. The amount was payable to the Sabha or any other institution which might take its place. Further, there was a direction that the said amount should be spent towards specified charitable purposes. The direction was couched in an elastic form to prevent the charitable object being defeated. The charity was conceived to be a permanent one and it was necessary that the regular payment of the amount was secured. It is, therefore, clear that under the will, on the happening of the said contingency, the testator clearly intended that his legal heirs should regularly pay half the net income to the first respondent so that the specified charities may be carried out perpetually. That object would not be achieved if the first respondent was placed in the position of a creditor with a charge on the property with an off chance of the charge being defeated by a bonafide purchaser for value of the property bequeathed to the legal heirs. Learned counsel emphasized the fact that under the will the first respondent had to spend the moneys for specified objects and not the legal heirs and contended that the first respondent might be in the position of a trustee in respect of the amounts received from the legal heirs, but the legal heirs were not trustees in respect of the charity. The question is not whether the legal heirs, or the first respondent, are the trustees in respect of the fund after it reached the hands of the first respondent; but the question is whether the legal heirs, as owners of the property, were under a fiduciary obligation to pay the said amount for charitable purposes. Having regard to the circumstances visualized at the time the last contingency happened, 36 the fluctuating amount the donees had to pay, the permanent nature of the charity and the declared intention of the testator to pay as much as half the net income towards the carrying out of the said charitable object, we hold that the legal heirs took the property of the testator subject to a trust rather than a charge. No other question arises in this appeal. For the foregoing reasons, we hold that the conclusion arrived at by the High Court is correct. In the result, the appeal fails and is dismissed with costs. Appeal dismissed.

IN-Abs

One P died in 1874 leaving considerable property. He also left a will which provided for several contingencies; the first respondent was given an interest under each contingency which was enlarged from contingency to contingency. Under the last contingency which happened the entire property was given to the heirs with a direction that half of the income of the property be given to the first respondent. The heirs contended that the direction merely created a charge and not a trust of half of the property. Held, that the direction created a trust rather than a charge. The charity was conceived to be a permanent one and it was necessary to secure regular payments to it. The testator clearly intended that the heirs should regularly pay half the income to the first respondent so that the specified charities may be carried on perpetually. This object could not be achieved if the direction merely created a charge and not a trust. The Commissioners of Charitable Donations and Bequests vs Wybrants , (1845) 69 R. R. 278 and Bailey vs Ekins, 7 Ves. 319, referred to.

iminal Appeal No. 7 of 1957. 38 Appeal from the judgment and order dated July 12, 1956, of the Calcutta High Court in Criminal Revision No. 270 of 1956. section C. Mazumdar, for the appellants. B. Sen, D. N. Mukherjee and P. K. Bose, for the respondent. April 18. The Judgment of Sinha C. J., section K. Das, K. C. Das Gupta and N. Rajagopala Ayyangar JJ. was delivered by Das Gupta J. Mudholkar J. delivered a separate Judgment. DAs GUPTA, J. This appeal on a certificate granted by the High Court of Calcutta under article 134(1)(c) of the Constitution is against a judgment and order of that court, upholding the conviction of these appellants under section 73 of the Indian , for contravention of Rule 7 of the Mines Creche Rules, 1946. Rule 3 of these rules requires the owner of every Mine to Construct there a creche in accordance with the plans prepared in conformity with the rules and previously approved by the competent authority; Rule 7 provides that the owner of the mine shall appoint "a creche in charge, who shall be a woman possessing such qualifications and training as may be approved by the competent authority. The complaint which resulted in the conviction of the two appellants, of whom, one Goenka was the owner of the Khas Jawbad Colliery, and the other, viz., J. N. Gupta, the manager of the colliery, alleged that they had contravened Rule 7 of the Mines Creche Rules, 1946, inasmuch as no creche attendant as required by that rule had been appointed there. After an appeal of the present appellants to the Court of Sessions was dismissed, they moved the High Court in revision, but were unsuccessful, except that their sentences were reduced. The High Court however gave a certificate under article 134(1)(c) and on that certificate the present appeal has been filed. The main contentions raised on behalf of the appellants are, (1) that the Mines Creche Rules, 1946, had stood repealed, along with the repeal by section 88 of the of 1952, of the Mines Act, 1923,. under which these rules were admittedly framed and, (2) they having 39 been framed under section 30 (bb) of the Mines Act, 1923, cannot be deemed to be rules made under the , as. the requirements of the corresponding section of the 1952 Act, viz., section 58(b) are different from what is required by section 30(bb) of the 1923 Act. In Criminal Appeals Nos. 98 to 106 of 1959 we have decided that regulations framed under section 29 of the Mines Act, 1923, survive the repeal of that Act. The same reasons which form the basis of that decision apply to the rules framed under section 30 of the Mines Act, 1923; and so, the first contention raised on behalf of the appellants must be rejected as unsound. The second question arises in this way. Clause (bb) of section 30 of the 1923 Act mentions one of the purposes for which rules may be made in these words "For requiring the maintenance in mines, wherein any women are ordinarily employed, of suitable rooms to be reserved for the use of the children under the age of 6 years belonging to such women, and for prescribing, either generally or with particular reference to number of women ordinarily employed in the mine, the number and standards of such rooms, and the nature and extent of the supervision to be provided therein. " In the , section 58 contains the provision empowering the Central Government to make rules for all or any of the purposes mentioned there. Clause (d) of this section runs thus: "For requiring the maintenance in mines, wherein any women are employed or were employed, on any day of the preceding twelve months, of suitable rooms to be reserved for the use of the children under the age of six years belonging to such women, and for prescribing either generally or with particu lar reference to the number of women employed in the mines, the number and standards of such rooms, and the nature and extent of the amenities to be provided and the supervision to be exercised therein;". While it is obvious that cl. (d) of section 58 of the 1952 Act corresponds to cl. (bb) of section 30 of the 1923 Act, it has to be noticed that the requirement in the 1952 40 Act is wider. For, whereas rules under section 30(bb) could require the maintenance of creches and could prescribe certain matters in regard to these, only in mines, wherein "any women are ordinarily employed", section 58(d) authorises the framing of similar rules for maintenance of creches and prescription of similar matters, in respect of all mines, "wherein any women are employed or were employed on any day of the preceding twelve months". It is contended on behalf of the appellants that the Creche Rules, 1946, framed as they were under section 30(bb) of the 1923 Act, must be read as requiring the maintenance of creches and prescribing certain matters relating to creches, only for mines "wherein any women are ordinarily employed". They cannot therefore be considered to be rules under section 58(d) of the 1952 Act, which have to require the maintenance of creches, and prescribe matters relating thereto, not only for mines where women are ordinarily employed, but for mines "wherein any women are employed or were employed on any day of the preceding twelve months". It is urged that the content of the rules cannot be extended by the fact that the 1952 Act permits rules to be framed in respect of mines other than those in respect of which the rules were originally framed. In our opinion, the argument is not without force, and it might be difficult to say that, the Mines Creche Rules framed under section 30(bb) of the 1923 Act, would apply to all mines contemplated by section 58(d) of the 1952 Act. This difficulty would not however stand in the way of the Mines Creche Rules, 1946, operating in respect of "mines where women are ordinarily employed", as rules under the 1952 Act. It has to be noticed that the mines in respect of which rules may be made under section 58(d) of the 1952 Act, do not exclude mines, where women are ordinarily employed; the description "mine wherein any women are ordinarily employed "include, in the first place the mines where women are ordinarily employed and include in addition to those other mines", 'wherein any women are employed or were employed on any day of the preceding twelve months ', even though the attribute of "women being ordinarily 41 employed there", is not present. Assuming therefore as correct the argument that the content of the rules does not stand extended, the Mines Creche Rules, 1946, may still be reasonably deemed to be rules under section 58(d) of the 1952 Act, though not fully exhausting the purpose mentioned in that section. In other words, the position is that while under section 58(d) of the 1952 Act rules may be framed in respect of (1) mines wherein women are ordinarily employed and (2) mines wherein though women are not ordinarily employed, women are employed and (3) mines, where though women are not ordinarily employed, women were employed on any day of the preceding twelve months, the Mines Creche Rules, 1946, cover a part of the ground that could be covered by rules under section 58(d) of the 1952 Act. To the extent the provisions of section 58(d) of the 1950 Act and section 30(bb) of the earlier enactment overlap, these rules would continue in force by virtue of section 24 of the . On an examination of the evidence adduced in the case before the Magistrate, we find that the Jawabad Mine was one, where women were ordinarily employed. With regard to this Mine therefore the Mines Creche Rules operated as rules under the 1952 Act; and consequently, contravention of Rule 7 of the Mines Creche Rules, 1946, was in law a contravention of a rule made under the 1952 Act, within the meaning of section 73 of that Act. On behalf of the second appellant, Gupta, who was the manager of the colliery at the relevant time, a further contention is raised. It is pointed out that Rule 7(1) does not in terms lay any duty on the manager and it is contended that the manager having no duty to perform under Rule 7(1) of the Creche Rules; no question of his contravening the same by omission to appoint a creche in charge arises. The answer to this question depends on the interpretation of section 18 of the , which is in these words: "18. Duties and responsibilities of owners, agents and managers: 6 42 (1) The owner, agent and manager of every mine shall be responsible that all operations carried on in connection therewith are conducted in accordance with the provisions of this Act and of the regulations, rules and bye laws and of any orders made thereunder. (2) In the event of any contravention of any such provisions by any person whosoever, the owner, agent and manager of the mine shall each be deemed also to be guilty of such contravention unless he proves that he had taken all reasonable means, by publishing and to the best of his power enforcing those provisions, to prevent such contravention. (3) It shall not be a defence in any proceedings brought against an owner or agent of a mine under this section that a manager of the mine has been appointed in accordance with the provisions of this Act". It has to be noticed that after the first sub section states in general terms that the owner, agent and manager shall be responsible for the carrying out of "all operations carried on" in connection with the mine, in accordance with the provisions of the Act and of the regulations, rules and bye laws and of any orders made thereunder, the second sub section d eals with the question of guilt of the owner, the agent and manager for contravention of such provisions by "any person whosoever"; and the third sub section goes on to say that the owner or agent cannot escape liability merely because a manager of the mine has been appointed. The first contention urged on behalf of the appellant is that the Mines Creche Rules have nothing to do with "operations carried on in the mines" and that section 18 deals only with the proper observance of the provisions of the Act directly touching the work carried on in the mines, for raising coal and allied activities. In our opinion that will be an unduly narrow interpretation of the section. The employment of female labour is obviously and admittedly connected with the raising of coal in the mine; and all conditions of employment of female labour should reasonably be held to be 43 inextricably connected with "operations carried on" in the mines. The Mines Creche Rules are no less conditions of female labour than are the provisions of, say, section 46 of the Act. That section prohibits the employment of women in a mine which is below ground and also employment of women in mines above ground except between 6 a.m. and 7 p.m. except to the extent there is variation of the hours of employment above ground by the Central Government in exercise of the powers given by that very section. Section 46 as it now stands also provides that every woman shall be allowed an interval of not less than eleven hours, between the termination of employment on any day and the commencement of the next period of employment. It cannot be seriously argued that if in any mine, women labour is employed, in breach of these provisions of section 46, operations would have been carried on in the mine in accordance with the provisions of the Act. We see no reason why employment of female labour in a mine, without compliance with the Mines Creche Rules, should not be similarly held to amount to "carrying on operations in connection with the mine" in contravention of a rule made under the Act. The true position in our opinion is that in order that operations carried on in connection with the mine can be said to have been conducted in accordance with the provisions of the Act, and of the regulations, rules and bye laws, and of the orders made thereunder, it is necessary not only that such provisions as are directly connected with the work of raising coal are observed, but also that provisions governing the conditions of employment of the persons engaged in the mining operations are also observed. The Mines Creche Rules, as already pointed out undoubtedly form part of the conditions of employment, of female labour engaged in mining operations. Observance of these rules is therefore necessary before operations can be said to have been carried on in accordance with the rules made under the Act. In our opinion, therefore, the effect of section 18(1) is that all three the manager, the agent and the owner are responsible for the Observance of the Mines Creche Rules. 44 On behalf of the State it is urged that the result of such a responsibility being laid on all the three is that the manager is liable to penalty for a contravention of the Mines Creche Rules by the owner. It is unnecessary however to consider whether section 18(1) by itself has this consequence; for the matter is put beyond doubt by section 18(2). This sub section of section 18 makes all the three the owner, the agent and the manager severally liable for the breach of any regu lations by "any person whosoever". Not only is that person who contravened the provisions guilty but each of these three the manager, the agent and the owner is also deemed to be guilty though the contravention was not by himself. It would be illogical to say in the face of this provision that two of them should not be held liable for the contravention of the provisions within section 18(1) by the third. But, says, the manager appellant, such a construction of section 18(2) should be avoided as it will be thorough. by unjust. "How am I to secure", says he, "the observance of a rule which in terms fixes a duty on the owner only to do certain things". The argument really is that the Legislature acted improperly making the owner, the agent and the manager vicariously liable for the contravention of certain provisions by " any person whosoever". With the wisdom of the law the Court is not however concerned. It is pertinent to notice however that it was clearly to avoid injustice which may result from the fixation of such vicarious liability that the legislature has provided for a special defence of the owner, the agent and the manager in such cases. Thus, if a rule or a bye law in terms lays a duty on the manager, and the owner is prosecuted he will escape punishment as soon as he shows that he did all that he could reasonably do in seeing that the manager duly performed his duty. The effect of sub section (3) is that the mere appointment of a manager would not be a sufficient defence. Where, as in the present case, the rule in question lays a duty in terms on the owner and the manager is prosecuted he will escape conviction on showing that he took all reasonable 45 means to prevent the contravention of the rules by the owner. The whole purpose of section 18 read as a whole appears to be clearly this: The provisions of the Act and of the regulations, rules and bye laws or orders made thereunder may require certain things to be done or forbidding the doing of certain things with or without mentioning the person required to do the thing or forbidden to do it. Where a person definitely indicated is required to do or forbidden to do a certain thing he is straightaway, liable to penalty for contravention of the rules. But the owner, the agent and the manager will have the additional responsibility that even though any of them is not named as the person required or forbidden to do a thing, the owner, the manager or the agent, will be liable to punishment for the contravention of the rule, subject to this that the liability will disappear as soon as he shows that he had taken all reasonable means to prevent the contravention. In the present case, the manager appellant has neither suggested nor proved that he took all reasonable means to prevent the contravention of the provisions of Rule 7 of the Mines Creche Rules by the owner. He must therefore be deemed guilty of the contravention, even though the rule in terms laid no duty on him. In support of his contention that the law does not impose any duty on the manager of the mines to carry out the provisions of the Creche Rules, Mr. Majumdar relied on a decision of the Nagpur High Court in the State Government, M. P. v Deodatta Diddi (1). The question there was whether one Deodatta Diddi, Agent, Rawanwara Khas Colliery, could be held to have contravened rule 3(1) of the Coal Mines Pithead Bath Rules, 1946, where no pithead baths had been con structed as required by the rules. In terms, rule 3(1) provided that the owner of every coal mine shall construct pithead baths in accordance with the plans prepared in conformity with the rules and approved by the competent authority. It was held by the High (1) A.I. R. (1956) Nag. 46 Court that it was the owner alone who could be deemed to have contravened the rule and that the Agent even assuming that he was the representative of the owner in respect of the management of the colliery had no duty to perform in this matter. We notice however that the attention of the learned Judges was not drawn to the provisions of section 18 of the Indian . This decision is therefore of no assistance. The question as regards the liability of any agent or manager of the mine for the construction of pithead baths or of mine creches appears to have been raised before the Calcutta High Court in G. D. Bhattar vs The State (1). In that ease both the learned Judges considered section 18 of the , but came to different conclusions, one of them holding that under section 18 the manager would be liable for carrying out the provisions of these rules while the other learned Judge took a different view. In our opinion, the former view is correct. All the contentions raised on behalf of the appellants therefore fail. The appeal is accordingly dismissed. MUDHOLKAR, J. While I agree to the order proposed with respect to Mohan Lal Goenka, I am of the opinion that the conviction of the co appellant Gupta who was a manager of the mines cannot be sustained. It has throughout been accepted that under r. 7(1) of the Mines Creche Rules, 1946, as they stood on the date of the alleged contravention the responsibility for appointing a creche in charge was on the owner of the mine only. It was, therefore, contended on behalf of Gupta that he cannot be held liable for the contravention of the rule made by the owner Mohan Lal Goenka. Reliance was, however, placed on behalf of the State in the courts below as well as before us on the provisions of section 18 of the (35 of 1952). That section reads thus: "(1) The owner, agent and manager of every mine shall be responsible that all operations carried on in connection therewith Are conducted in accordance with the provisions of this Act and of the (1) A.I.R. (1957) Cal. 47 regulations, rules and bye laws and of any orders made thereunder. (2) In the event of any contravention of any such provisions by any person whosoever, the owner, agent and manager of the mine shall each be deemed also to be guilty of such contravention unless he proves that he had taken all reasonable means, by publishing and to the best of his power enforcing those provisions, to prevent such contravention: Provided that the owner or agent shall not be so deemed if he proves (a) that he was not in the habit of taking, and did not in respect of the matter in question take, any part in the management of the mines; and (b) that he had made all the financial and other provisions necessary to enable the manager to carry out his duties; and (c) that the offence was committed without his knowledge, consent or connivance. (3) Save as hereinbefore provided, it shall not be a defence in any proceedings brought against an owner or agent of a mine under this section that a manager of the mine has been appointed in accordance with the provisions of this Act. " It was urged that this section holds the owner, the agent as well as the manager liable for the contravention of any provision of the Act or of a regulation, rule or bye law made by any person unless the owner, agent or manager can bring his case within any of the exceptions set out in sub section (2) of section 18. It is pointed out that Gupta has not relied on any exception and, therefore, his conviction is correct in law. Section 18 is in Chapter IV of the which deals with "Mining operations" and "Management of mines". This chapter thus deals with two topics. Section 18, however, deals with only one of these two topics, that is, "Mining operations". This would clearly follow from the language of sub section (1) or section 18. The duties and responsibilities of owners, agents and managers with which this section deals are with respect to "all operations carried on in connection there with", i.e., the mine. Therefore, the inference must be that this section deals with duties etc., in connection with mining 48 operations only. The chapter itself has drawn a distinction between "Mining operations" and "Management of mines". Employment of labour, providing amenities for them and allied matters would pertain mainly to "management" and not to "Mining operations". The expression "Mining operations" occurring in an Act dealing with mines should be accorded that meaning which it has in the mining industry. In the industry a mining operation is understood to mean an opera tion undertaken for the purpose of winning minerals and cannot, as suggested by my learned brother, be given an extended meaning so as to embrace within it matters such as employment of labour, providing amenities to labour etc., even though that labour is utilised or required for the purpose of carrying on mining operations. I can see no justification for giving an extended meaning to the expression "Mining operations" and none was suggested at the bar. Upon this view it would follow that the manager of a mine cannot be made vicariously liable for the omission of the owner, to carry out his duty under r. 7(1) of the Mines Creche Rules. There is an additional reason for coming to the same conclusion. Upon the language of section 18(2) the manager of a mine cannot be held liable for the contravention by the owner of any provision of the Act, regulation, rule or bye law unless that contravention was with respect to a matter in ' regard to which the exception could be available. To put it a little differently, a manager cannot be held vicariously liable for a contravention unless there was on his part also an omission to do something which was in his power to do. Sub section (2) of section 18 would absolve a manager from vicarious liability if he could show "that he had taken all reasonable means by publishing and to the best of his power enforcing those provi. sions to prevent such contravention". This, therefore, implies that by resorting to certain steps he can escape liability. The first part of the quotation is clearly in. applicable to the present case. The second part would apply provided the manager had the power to enforce the performance of a particular duty by the owner. 49 There is nothing in the Act or the rules which empowers the manager to enforce the performance by the owner of his duties under sub r. (1) of r. 7. Since that is the position it must be held that the manager is not liable for the contravention by the owner of his duty under sub r. (1) of r. 7 of the Mines Creche Rules. That the construction I am placing on this provision is the proper one would appear from the following illustration. Section 17 of the Act provides that the owner or an agent of every mine shall appoint a person having the prescribed qualification as a manager of the mine. Section 57(c) provides for the framing of regulations prescribing the qualifications for the manager of mines. I will assume that regulations have been made thereunder prescribing the qualifications for managers. If a person is appointed as a manager of a mine even though he does not possess the prescribed qualification would he be held vicariously liable for the contravention by the owner or the agent of the duties placed upon the owner and agent by a Regulation and by section 17? I do not think that there would be any difficulty in saying that he would not be liable for the simple, reason that it was not within his power to enforce the compliance by the owner of the duty cast upon him by the regulations. I would, therefore, allow the appeal of Gupta and set aside the sentence of conviction passed upon him. ORDER. In accordance with the opinion of the majority the appeal, on behalf of both the appellants, is dismissed. Appeal dismissed.

IN-Abs

The appellants one of whom was the owner and the other the manager of a colliery were convicted for contravening the provisions of the Mines Creche Rules, 1946, under which the owner of every mine employing women was required to construct creches for the use of the women employees and also to appoint a "Creche in charge" for the supervision of the creches. Their contentions mainly were (1) that the Mines Creche Rules, 1946 stood repealed as the Mines Act, 1923 itself under which those rules were framed were repealed by the Mines Act of 1952 and (2) that the said rules having been framed under section 30(bb) of the Mines Act, 1923, could not be deemed to be rules made under the corresponding section 58(d) of the 1952 Act the requirements of which were different from those of section 30(bb) of the 1923 Act. On behalf of the manager a further contention was raised that he was not liable for the Contravention of r. 7(1) under which he 37 had no duty to perform and no question of his omission to appoint a creche in charge arose. Held, per Sinha, C. J., section K. Das, Das Gupta and Ayyangar, JJ., that the regulations framed tinder section 30 of the Mines Act, 1923, survived the repeal of that Act. Criminal Appeals Nos. go to 106 of 1959, followed. The Mines Creche Rules, 1946, framed under section 30(bb) of the Mines Act of 1923 covered a part of the ground that was covered by the provisions of section 58(d) of the Mines Act of 1952, and to the extent the provisions of the two enactments overlap each other these rules would continue to be in force by virtue of section 24 of the and operate as rules under the 1952 Act. Contravention of r. 7 of the Mines Creche Rules, 1946, was in law contravention of a rule under section 58(d) of the 1952 Act within the meaning of section 73 of the Act. Under section 18(1) of the , the manager, the agent and the owner are responsible for observance of the Mines Creche Rules which form part of the conditions of employment of female labour engaged in "mining operations" and under subS. (2) of section 18 each of them shall be deemed to be guilty of the contravention of any rule by "any person whosoever", unless he proves that he took all reasonable means to prevent such contravention. The manager in the present case not having proved that he took all reasonable means to prevent the contravention of r. 7 by the owner even though the rule in terms laid no duty on him, must be deemed to be guilty of the contravention. State Government, M. P. vs Deodatta Diddi, A.I.R. (1956) Nag. 71, held inapplicable. G. D. Bhattar vs State, A.I.R. (1957) Cal. 483, the view making the manager liable to be approved. Per Mudholkar, J. In the mining industry a "mining operation", as contemplated under section 18 of the , is understood to mean an operation undertaken for the purpose of mining minerals and cannot be extended to mean "management of mines" such as employment of labour and providing amenities to employees etc. The manager of a mine cannot be made vicariously liable for the omission of the owner to carry out his own duty under r. 7(1) of the Mines Creche Rules. Sub section (2) of section 18 would also absolve the manager from vicarious liability if he could show "that he had taken all reasonable means by publishing and to the best of his power enforcing those provisions to prevent such contravention". But there is nothing in the Act or the rules which empowers the manager to enforce the performance by the owner of his duty under sub r. (1) of r. 7 of the Mines Creche Rules and the manager was therefore not liable for the breach of that rule.

iminal Appeal No. 51 of 1959. Appeal by special leave from the judgment and order dated May 16, 1958, of the Calcutta High Court in Criminal Appeal No. 2 of 1958. A. section B. Chari, K. C. Jain and B. P. Maheshwari, for the appellant. N. C. Chatterjee, H. R. Khanna and D. Gupta, for respondent. April 19. The Judgment of the Court was delivered by RAGHUBAR DAYAL, J. This appeal, by special leave, is from the order of the Calcutta High Court dated May 16, 1958, summarily dismissing the appeal of the appellant from the order of the learned Single Judge of the High Court convicting him on jury trial of offences under section 120 B read with section 471, Indian Penal Code, and on two counts under section 471 read with section 466, Indian Penal Code, with respect to two documents. L. N. Kalyanam, who was also tried at the same trial and convicted of the offences under section 120 B read with section 471, Indian Penal Code, two counts under section 466, Indian Penal Code, and of the offence under section 109, read with section 471, Indian Penal Code, did not appeal against his conviction. The brief facts of the prosecution case are that the appellant Purushottamdas Dalmia was one of the partners of the firm known as Laxminarayan Gourishankar which had its head office at Gaya and branch at Calcutta. The Calcutta branch was located at 19, 103 Sambhu Mallick Lane. On April 26, 1952, the appellant applied for a licence for importing rupees one crore worth of art silk yarn. On May 2, 1952, the Joint Chief Controller of Imports, Calcutta, issued a provisional licence. In accordance with the rules, this licence was to be got confirmed within two months by the Deputy or Chief Controller of Imports and on such confirmation it was to be valid for a period of one year. The licence was to be treated as cancelled in case it was not got confirmed within two months of the date of issue. This provisional licence was not confirmed within two months. The appellant was duly informed of the refusal to confirm the licence. The appellant 's appeal against the refusal to confirm the licence was dismissed in September 1952. The provisional licences issued were returned to the appellant. The letter communicating the dismissal of the appeal and the return of the licence was issued from the office of the Joint Chief Controller of Imports on September 26, 1952. The letter dated September 29, 1952, from the office of the Chief Controller of Imports, New Delhi, informed the appellant with reference to the letter dated September 4, 1952, that instructions had been issued to the Joint Chief Controller of Imports and Exports, Calcutta, for re consideration of such cases and that he was advised to contact that authority for further action in the matter. The appellant rightly, did not appear to take this letter to mean that the order of rejection of his appeal was still under further consideration. He did not take any steps to contact the Joint Chief Controller of Imports and Exports on the basis of this letter. Instead, he applied on October 7, 1952, for the return of correspondence. That correspondence was returned to him on October 9, 1952. Nothing happened up to March 31, 1953, on which date the appellant wrote to the Chief Controller of Imports, New Delhi, a long letter expressing his grievance at the action of the Joint Chief Controller of Imports and Exports, Calcutta, and requesting for a sympathetic decision. The Chief Controller of Imports and Exports, by his letter dated April 20,1953, informed the 104 appellant that the order of the Joint Chief Controller of Imports and Exports could not be revised for the reasons mentioned in that letter. This letter gave the wrong number of the appellant 's firm. It mentioned its number as '16 ' instead of the correct number '19 '. In other respects the address of this letter was correct. The appellant states that he did not receive this letter. In August 1953, the appellant met Kalyanam at Calcutta. Kalyanam told the appellant that he could get the licence validated through the good offices of one of his acquaintances, Rajan by name, at Delhi. Both these persons came to Delhi in August, 1953, and visited Rajan. The appellant made over the file containing the licences to Kalyanam who in his turn made over the same to Rajan. Two or three days later Kalyanam returned the licences containing the alleged forged endorsements to the appellant. The forged endorsements related to the confirmation of the licence and its re validation till May 2, 1954. The confirmation endorsement was purported to be dated July 2, 1952, and the re validating one purported to be dated April 25, 1953. Thereafter, orders were placed on the basis of the re validated licence and when the goods arrived attempt was made to clear them at Madras. The clearing office at Madras suspected the genuineness of the confirmation and re validating endorsements and finding the suspicion confirmed, made over the matter to the Police. As a result of the investigation and preliminary enquiry, the appellant and Kalyanam were committed to the High Court for trial. Eight charges were framed. The first charge related to the criminal conspiracy between the two accused and was as follows: "That the said (1) Purushottamdas Dalmia and (2) L. N. Kalyanam along with the person or persons name or names unknown between the months of April and December one thousand nine hundred and fifty three at Calcutta, Howrah, Delhi, Madras and other places were parties to a criminal conspiracy to commit an offence punishable with rigorous imprisonment for two years or upwards, to wit, an 105 offence of forgery by certificate or endorsement of confirmation and an endorsement of validation of the Import Trade Control Licence being licence No. 331913/48 (the Exchange Control Copy whereof is Ext. 5 and the Customs Copy whereof is Ext. 6) purporting to be made by public servant, to wit, the officers and staff of the Chief Controller of Imports and Exports and/or the offence of fraudulently or dishonestly using the aforesaid licence containing the aforesaid forged certificates and endorsements as to the confirmation and validation thereof knowing or having reason to believe the same to be forged documents and thereby they the said (1) Purushottamdas Dalmia and (2) L. N. Kalyanam committed an offence punishable under Sectionl2O B read with section 466 and/or section 471 read with section 466 of the Indian Penal Code within the cognizance of this Court. " Charges Nos. 2, 3 and 4 were with respect to the false endorsements on the copy of the licence Ext. The second charge was under section 466, Indian Penal Code, against Kalyanam alone and charges Nos. 3 and 4 were against the appellant for abetting the offence of forgery by Kalyanam and of using the forged document as genuine. Charges 5, 6 and 7 related to corresponding matters with respect to the licence copy Ext. The eighth charge was against Kalyanam alone and was for his abetting the appellant in his committing the offence of fraudulently and dishonestly using as genuine the Customs Copy of the said licence, Ext. The jury returned a verdict of 'not guilty ' with respect to charges Nos. 3 and 6 and also with respect to the charge of conspiracy under section 120 B read with section 466, Indian Penal Code. The jury returned a verdict of 'guilty ' against the appellant on the charge of conspiracy under section 120 B read with section 471, Indian Penal Code and the other charges Nos. 4 and 7. It is not disputed, and cannot be disputed, that forgeries were committed in the two documents Exts. 5 and 6. The following points were raised by learned counsel for the appellant: 14 106 (i) The offences of using the forged documents as ,genuine were committed at Madras and therefore the Courts at Calcutta had no jurisdiction to try these offences under section 471 read with section 466, Indian Penal Code. (ii) Alternative conspiracies could not be charged as they must be the result of different agreements between the conspirators. (iii) The learned Judge misdirected the jury in putting certain matters before it in the form he had done. The chief criticisms in this connection were that (a) the accused must have known from the ante dating of the confirmation endorsement that the re validation of the licence was a forgery; (b) even if the proper officer of the Department had signed the re validation, it would still be a forgery when it was ante dated; (c) the letter of the Chief Controller of Imports and Exports dated April 20, 1953, though wrongly addressed, must have reached the appellant; (d) the learned Judge expressed his opinions strongly and this could have unduly affected the mind of the jury and forced it to come to the same conclusions. The jurisdiction of the Calcutta High Court to try an offence of criminal conspiracy under section 120 B, Indian Penal Code, is not disputed. It is also not disputed that the overt acts committed in pursuance of the conspiracy were committed in the course of the same transaction which embraced the conspiracy and the acts done under it. It is however contended for the appellant, in view of section 177 of the Code of Criminal Procedure, that the Court having jurisdiction to try the offence of conspiracy cannot try an offence constituted by such overt acts which are committed beyond its jurisdiction and reliance is placed on the decision in Jiban Banerjee vs State (1). This case undoubtedly supports the appellant 's contention. We have considered it carefully and are of Opinion that it has not been rightly decided. The desirability of the trial, together, of an offence of criminal conspiracy and of all the overt acts committed in pursuance of it, is obvious. To establish the offence of criminal conspiracy, evidence of the (1) A.I.R. 1959 Cal. 107 overt acts must be given by the prosecution. Such evidence will be necessarily tested by cross examination on behalf of the accused. The Court will have to come to a decision about the credibility of such evidence and, on the basis of such evidence, would determine, whether the offence of criminal conspiracy has been established or not. Having done all this, the Court could also very conveniently record a finding of 'guilty ' or 'not guilty ' with respect to the accused said to have actually committed the various overt acts. If some of the overt acts were committed outside the jurisdiction of the Court trying the offence of criminal conspiracy and if the law be that such overt acts could not be tried by that Court, it would mean that either the prosecution is forced to give up its right of prosecuting those accused for the commission of those overt acts or that both the prosecution and the accused are put to unnecessary trouble inasmuch as the prosecution will have to produce the same evidence a second time and the accused will have to test the credibility of that evidence a second time. The time of another Court will be again spent a second time in determining the same question. There would be the risk of the second Court coming to a different conclusion from that of the first Court. It may also be possible to urge in the second Court that it is not competent to come to a different conclusion in view of what has been said by this Court in Pritam Singh vs The State of Punjab (1): "The acquittal of Pritam Singh Lohara of that charge was tantamount to a finding that the prosecution had failed to establish the possession of the revolver exhibit P 56 by him. The possession of that revolver was a fact in issue which had to be established by the prosecution before he could be convicted of the offence with which he had been charged. That fact was found against the prosecution and having regard to the observations of Lord Mac Dermoidal quoted above, could not be proved against Pritam Singh Lohara. in any further proceedings between the Crown and him." (1) A.I.R. 1956 section C. 415, 422. 108 In these circumstances, unless the provisions of the Code of Criminal Procedure admit of no other construction than the one placed upon them by the Calcutta High Court, they should be construed to give jurisdiction to the Court trying the offence of criminal conspiracy to try all the overt acts committed in pursuance of that conspiracy. We do not find any compelling reasons in support of the view expressed by the Calcutta High Court. It is true that the Legislature treats with importance the jurisdiction of Courts for the trial of offences. Jurisdiction of Courts is of two kinds. One type of jurisdiction deals with respect to the power of the Courts to try particular kinds of offences. That is a jurisdiction which goes to the root of the matter and if a Court not empowered to try a particular offence does try it, the entire trial is void. The other jurisdiction is what may be called territorial jurisdiction. Similar importance is not attached to it. This is clear from the provisions of sections 178, 188, 197(2) and 531, Criminal Procedure Code. Section 531 provides that: "No finding, sentence or order of any Criminal Court shall be set aside merely on the ground that the inquiry, trial or other proceeding in the course of which it was arrived at or passed, took place in a wrong sessions division, district, sub division or other local area, unless it appears that such error has in fact occasioned a failure of justice. " The reason for such a difference in the result of a case being tried by a Court not competent to try the offence and by a Court competent to try the offence but having no territorial jurisdiction over the area where the offence was committed is understandable. The power to try offences is conferred on all Courts according to the view the Legislature holds with respect to the capability and responsibility of those Courts. The higher the capability and the sense of responsibility, the larger is the jurisdiction of those Courts over the various offences. Territorial jurisdiction is provided just as a matter of convenience, keeping in mind the administrative point of view with respect to the work of a particular Court, the convenience of the accused 109 who will have to meet the charge levelled againt him and the convenience of the witnesses who have to appear before the Court. It is therefore that it is provided in section 177 that an offence would ordinarily be tried by a Court within the local limits of whose jurisdiction it is committed. It was said in Assistant Sessions Judge, North Arcot vs Ramaswami Asari (1): "The scheme of chapter XV, sub chapter (A) in which sections 177 to 189 appear, seems to me to be intended to enlarge as much as possible the ambit of the sites in which the trial of an offence might be held and to minimise as much as possible the inconvenience which would be caused to the prosecution, by the success of a technical plea that the offence was not committed within the local limits of the jurisdiction of the trying Court. " It is further significant to notice the difference in the language of section 177 and section 233. Section 177 simply says that ordinarily every offence would be tried by a Court within the local limits of whose jurisdiction it was committed. It does not say that it would be tried by such Court except in the cases mentioned in sections 179 to 185 and 188 or in cases specially provided by any other provision of law. It leaves the place of trial open. Its provisions are not peremptory. There is no reason why the provisions of sections 233 to 239 may not also provide exceptions to section 177, if they do permit the trial of a particular offence along with others in one Court. On the other hand, section 233, dealing with the trial of offences, reads: "For every distinct offence of which any person is accused there shall be a separate charge, and every such charge shall be tried separately, except in the cases mentioned in sections 234, 235, 236 and 239. " The language is very peremptory. There is a clear direction that there should be a separate charge for every distinct offence and that any deviation from such a course would be only in cases mentioned in sections 234, 235, 236 and 239. It is true that it is not stated in express terms (1) Mad, 779, 782, 110 either in section 235 or section 239, that their provisions would justify the joint trial of offences or of persons mentioned therein in a Court irrespective of the fact whether the offences to be tried were committed within the jurisdiction of that particular Court or not. But such, in our opinion, should be the interpretation of the provisions in these two sections. The sections do not expressly state that all such offences which can be charged and tried together or for which various per. sons can be charged and tried together must take place within the jurisdiction of the Court trying them. The provisions are in general terms. Sub sections (1) to (3) of section 235 provide for the offences being charged with and tried at one trial and therefore provide for the trial of those offences at one trial in any Court which has jurisdiction over any of the offences committed in the course of the same transaction. The illustrations to section 235 also make no reference to the places where the offences were committed. In particular, illustration (c) can apply even when the offences referred to therein were committed at places within the territorial jurisdiction of different Courts. Similarly, section 239 provides for the various persons being charged and tried together for the same offence com mitted in the course of the same transaction are accused of different offences committed in the course of the same transaction. Such offences or persons would not be tried together if some of the offences are committed by some of them outside the jurisdiction of the Court which can try the other offences, if the contention for the appellant be accepted and that would amount to providing, by construction. an exception for these sections. As sections 235 and 239 of the Code are enabling sections, the legislature, rightly, did. not use the expression which would have made it incumbent on the Court to try a person of the various offences at one trial or to try various persons for the different offences committed in the course of the same transaction together. The omission to make such peremptory provision does not necessarily indicate the intention of the legislature that the Court having jurisdiction to try certain offences cannot try an offence committed 111 in the course of the same transaction, but beyond its jurisdiction. No definite conclusion about the approval of the legislature to the interpretation put on the provisions of sections 235 and 239, Criminal Procedure Code, by the Calcutta High Court in Bisseswar vs Emperor (1) or by the Madras High Court in In re: Dani (2) and in Sachidanandam vs Gopala Ayyangar (3) can be arrived at when it is found that there had been some cases which expressed the contrary view. The case law having a bearing on the question under determination is, however, meagre. In Gurdit Singh vs Emperor (4) the conspiracy to murder a person was entered into in the district of Montgomery in Punjab and the attempt to murder that person in pursuance of that conspiracy was made within the jurisdiction of the Magistrate at Roorkee in the United Provinces. Broadway,. J., said: "It appears that, rightly or wrongly, an allegation has been made that the abetment by conspiracy or by instigation took place, in the Montgomery District, and that, therefore, the case can be tried either at Roorkee or in Montgomery. Section 180, Criminal Procedure Code, is clear on this point and no further discussion is needed. " In In re: Govindaswami (5) a person murdered A and B, one after the other, in the same night. The houses of A and B were divided by a street which formed the boundary between two districts. The accused was sent up for trial for the murders of A and B to the various Courts having Jurisdiction to try the offences of the murder of A and of the murder of B. The learned Judges said: "There is a further aspect of the case on which we would like to make some observations. These two cases of alleged murder by the same appellant one after the other that same night brought as they were into the same confession should obviously have been tried by one and the same (1) A I.R. (2) A.I.R. 1936 Mad. (3) Mad. 991, 994. (4) 517. (5) A I. R. 1953 Mad 372, 373. 112 Sessions Judge. The street between the houses of Govindan Servai and Malayappa Konan appears however to have been a boundary between the districts of Tiruchirapalli and Tanjore and one murder was committed in the jurisdiction of the Sessions division of Tiruchirapalli and the other in the jurisdiction of the Sessions division of Tanjore. This appears to have been the only reason why two separate charge sheets were laid in respect of these murders. The learned Public Prosecutor agrees that there was no impediment to the two murders being tried together under section 234(1), Cr. P. C., and it is indeed obvious that one Court should have dealt with both these murders. " The two cases could not be tried by any one of the two Sessions Courts if the provisions of section 234, Criminal Procedure Code, were subject to the provisions of sections 177 to 188 with respect to the territorial jurisdiction of Criminal Courts. In Sachidanandam vs Gopala Ayyangar (1) Odgers, J., relying on the case reported as Bisseswar vs Emperor (2) held that unless the abetment of an offence took place within its territorial jurisdiction, a Court could not avail itself of the provisions of section 239 to try such abetment along with the principal offers. He observed: "I am doubtful about the matter, I must say; but giving the best consideration I can to it, and with this expression of opinion of the Calcutta High Court, I am inclined to think that jurisdiction, being the foundation of the charge, is to be imported or understood as present in all the subsequent procedure set out in the Code; and if that is so, it clearly must govern section 239." The approval of the Legislature of a particular construction put on the provisions of an Act on account of its making no alteration in those provisions is presumed only when there had been a consistent series of cases putting a certain construction on certain provisions. (1) Mad. 991, 994 (2) A.I.R. 1924 Cal. 113 Lastly, an implied support to the view we are inclined to take is to be obtained from the observations of the Judicial Committee in Babulal Choukhani vs The King Emperor ( 1): "Nor is there any limit of number of offences specified in section 239(d). The one and only limitation there is that the accusation should be of offences 'committed in the course of the same transaction '. Whatever scope of connotation may be included in the words 'the same transaction ', it is enough for the present case to say that if several persons conspire to commit offences, and commit overt acts in pursuance of the conspiracy (a, circumstance which makes the act of one the act of each and all the conspirators), these acts are committed in the course of the same transaction, which embraces the conspiracy and the acts done under it. The common concert and agreement which constitute the conspiracy serve to unify the acts done in pursuance of it. ,, This indicates that the only limitation on the jurisdiction of the court to charge and try together various persons in pursuance of the provisions of cl. (a) of section 239, Criminal Procedure Code, is that the accusation against those persons should be of offences committed in the course of the same transaction. It cannot be disputed that the accusation against the accused with respect to the overt acts committed by them in pursuance of a conspiracy is with respect to offences committed in the course of the same transaction and that therefore persons accused of these offences can be tried together at one trial in pursuance of the provisions of el. (a) of section 239. We therefore hold that the Calcutta Court had jurisdiction to try the appellant of the offences under section 471 read with section 466, Indian Penal Code, even though those offences, in pursuance of the conspiracy, were committed at Madras. The second contention for the appellant is really to the effect that the appellant was charged with two conspiracies in the alternative and that such a charge (1) (1938) L.R. 65 I.A. 158,175, 176. 15 114 is unwarranted by law. This, however, is not the correct interpretation of the charge of conspiracy framed against the appellant. The charge was one of conspiracy, it being a conspiracy to commit an offence punishable with rigorous imprisonment for two years or upwards. The particular offence to be committed was described in the alternative. One was to commit an offence of forgery and to use the forged document and the other was the offence of fraudulently or dishonestly using the licence containing the forged certificates and endorsements. The expression 'and/or ' in the first charge simply meant that the offences they had conspired to commit consisted either of the offence to commit forgery and subsequently to use the forged document as genuine or the object was merely to use the licence with forged endorsements even though there was not any conspiracy to commit forgeries in the licences. In other words, the charge was that the appellant and Kalyanam entered into a conspiracy to commit offences punishable with rigorous imprisonment for two years or upwards and that the offences contemplated to include the offence of using the licence with forged endorsements and may also include the offence of forging the licence. Thus there was no case of two alternative conspiracies. The conspiracy was one and it being doubtful what the facts proved would establish about the nature of offences to be committed by the conspirators, the charge illustrated the offence in this form. In his charge to the jury the learned Judge said at page 14: "In this case from the circumstances, it may not be very clear whether they actually made an agreement among themselves to do or cause to be done forgery of the document or whether they merely agreed to use it as a genuine document knowing that it was a forged document. Therefore, the charge is in the alternative that either they agreed among themselves to do or cause to be done the forgery of this document or rather, the forgery of the endorsements of confirmation or revalidation; or in the alternative, they agreed among themselves regarding user of such a forged document knowing 115 that it is forged. So both and/or ' is mentioned in the charge, either they agreed to commit forgery or they agreed to use it knowing it is forged or they agreed to do both, both to commit forgery and use it knowing it to be a forged document. " Such a charge is justified by the provisions of section 236 of the Code. We are therefore of the opinion that the charge of conspiracy does not suffer from any illegality. We have carefully considered all that has been said in connection with the alleged misdirections in the charge to the jury and are of opinion that the charge does not suffer from this defect. The Judge has at places expressed in unequivocal language what appears to him to be the effect of certain pieces of evidence. But that, in our opinion, has not been in such a setting that it be held that the jury must have felt bound to find in accordance with that opinion. The Judge has, at various places, stated that the jury was not bound by his opinion, that it had to come to its own conclusion on questions of fact and that it was the function of the jury to decide all questions of fact. There is nothing wrong in telling the jury that even if the endorsements had been made by the proper departmental officer and they were ante dated, forgery would have been committed. That is the correct proposition of law. The ante dated document would be a false document. Knowledge of ante dating the endorsements, naturally conveyed knowledge of the commission of forgery. The mistake in the letter dated April 20, 1953, from the Chief Controller of Imports and Exports, is not such as to lead to the conclusion that the letter could not have been delivered to the proper addressee. The appellant 's firm is located at 19, Sambhu Mallick Road and the address of this letter gave the number as 16. Shop No. 16 could not have been at much distance from Shop No. 19. The postman delivering letters at the two shops must be the same. Postmen get to know the regular addressees by their names and ordinarily locate them even if there be some slight error or even omission in the address. The letter 116 addressed to the appellant 's firm is not proved to have returned to the dead letter office or to the Chief Con troller of Imports and Exports. If it was delivered by the postman at the Shop No. 16, ordinary courtesy requires that shop would have sent over the letter to the neighboring Shop No. 19. The appellant 's conduct in not taking any action to find out what was the result of his representation to the Chief Controller of Imports and Exports is consistent with the view that he did receive the reply of the Chief Controller of Imports and Exports. In the circumstances, an expression of opinion that the letter would have reached the appellant cannot be said to amount to a misdirection. The learned Judge is perfectly justified to ask the jury to take into consideration the probabilities of a case, where no definite evidence, in connection with an incidental matter, exists. We do not consider that the contentions raised do amount to misdirections. In view of the above, we, see no force in this appeal and accordingly dismiss it. Appeal dismissed.

IN-Abs

The appellant was convicted by the Court of Session, High Court, Calcutta, of offences under section 120B read with section 471 and section 471 read with section 466 of the Indian Penal Code in respect of an import licence. His appeal against the order of conviction and sentence passed by the trial judge was summarily dismissed by the High Court. Although the conspiracy was entered into at Calcutta the offences of using the forged documents as genuine were committed at Madras. It was contended on behalf of the appellant in this Court that the said offences having been committed outside the territorial jurisdiction of the Calcutta Courts, they had no jurisdiction to try the offences under section 471 read with section 466 of the Indian Penal Code, even though committed in pursuance of the conspiracy and in course of the same transaction. Held, that the desirability of trying all the overt acts committed in pursuance of a conspiracy together is obvious and SS. 177 and 239 of the Code of Criminal Procedure, properly construed, leave no manner of doubt that the court which has the jurisdiction to try the offence of criminal conspiracy has also the jurisdiction to try all the overt acts committed in pursuance of it even though outside its territorial jurisdiction. jiban Banerjee vs State, A.I.R. 1959 Cal. 500, overruled. Pritam Singh vs The State of Punjab, A.I.R. 1956 S.C. 415, referred to. Babulal Choukhani vs The King Emperor, (1938) L.R. 65 I.A. 158, relied on. It is evident from the relevant provisions of the Code of Criminal Procedure that of the two types of jurisdiction of a criminal court, namely, (1) that of trying a particular offence and (2) its territorial jurisdiction, while the former goes to the root of the matter and any transgression of it renders the entire trial void, the latter is not of a peremptory character and leaves the place of trial open. Assistant Sessions judge, North Arcot vs Ramaswami Asari, Mad. 779, referred to. Although SS. 235 and 239(a) of the Code of Criminal Proce dure do not expressly so provide, there can be no doubt that 102 they contemplate the joint trial of offences and persons mentioned therein in a court whether or not all the offences to be tried by it are committed within its territorial jurisdiction, the only limitation being that the offences must have been committed in the course of the same transaction. Section 177 of the Code, therefore, does not control section 239. No presumption as to the approval of the Legislature of a particular construction of a statute can be drawn from the absence of any statutory modification of its provisions unless there is a consistent series of decisions in favour of that construction. Case law discussed.

No. 24 of 1960. Petition under article 32 of the Constitution of India for the enforcement of Fundamental Rights. C. B. Aggarwala and K. P. Gupta, for the petitioners. N. section Bindra and D. Gupta, for respondents Nos. 1, 2 and 4. K. L. Mehta and K. L. Hathi, for respondent No. 3. 1961. April 19. The Judgment of the Court was delivered by section K. DAS, J. This is a writ petition under article 32 of the Constitution in respect of a dharmasala, an adjoining temple and some appurtenant shops, standing on a piece of land near the railway station at Barnala, district Sangrur, in the State of Punjab. The petitioners are sons, grand sons and daughter of one Lala Ramji Das, and widow of one Tara Chand, a predeceased son of Lala Ramji Das. The case of the petitioners in short is that Lala Ramji Das, who died in 1957, had built the dharmasala, temple and shops out of the funds of the joint family consisting of himself and the petitioners near about the year 1909 and during his life time managed the dharmasala, temple and shops on behalf of the joint family. The dharmasala was built for the benefit of the traveling public and was used as a rest house by travelers; three deities were installed in the 71 temple and members of the public offered worship therein, though there was no formal dedication; and the shops were let out on rent for the upkeep of the dharmasala and temple. They allege that after the Sri death of Ramji Das they came into possession of the properties in question but in January, 1958, the respondents, namely, the State of Punjab, some of its officials ' and the Municipal Committee, Barnala, by force and without any authority of law dispossessed them from the dharmasala in question and further deprived them of the control and management of the said dharmasala and temple and are seeking to interfere with their management and control of the shops appurtenant thereto. The Municipal Committee, it is stated, was put in possession of the dharmasala and has opened its office in its main room. The petitioners first asked for a copy of the orders in pursuance of which these acts were committed, but were unable to obtain the same. The petitioners then made an application under article 226 of the Constitution in the Punjab High Court, which was rejected on the preliminary ground that the matter involved disputed questions of fact. An appeal was also dismissed on the same ground. The petitioners then filed the present petition and contend that the orders in pursuance of which the acts of dispossession have been committed as well as the acts themselves, constitute a flagrant infringement by the State and its officials of the fundamental right of the petitioners to hold and possess the properties in question unless and until they are evicted in due course of law, and accordingly they have prayed that: (i) a suitable writ, order or direction be issued quashing the illegal orders of the State Government, the Deputy Commissioner, Sangrur, and the Sub Divisional Magistrate, Sangrur, if any, culminating in the handing over of possession, management and control over the dharmasala, the temple and the shops to the Municipal Committee, Barnala, district Sangrur; (ii) a suitable writ, order or direction be issued 72 prohibiting the respondents from interfering with the management and control of the petitioners over the temple and the shops and with the realization of rent of the shops by the petitioners; (iii) a suitable writ, order or direction be issued to the respondents to withdraw their possession, control and management over the dharmasala and other properties and to put the petitioners in possession over the same; and (iv) such other and further writ, order or direction be issued which this Court may deem fit and proper in the interests of the petitioners. It is necessary at this stage to recite briefly some of the earlier history relating to the dharmasala, temple and shops, so far as such history is available from the undisputed documents filed before us. It is not disputed that the land on which the dharmasala, temple and shops stand was "nazul" property of the then State of Patiala. Sometime in 1909 Lala Ramji Das who was carrying on a joint family business in the name and style of Faquir Chand Bhagwan Das asked for permission to construct a dharmasala on the land in question which was near Barnala railway station and therefore convenient, to travellers who come to that place. At first, permission to build a dharmasala was granted by the then Patiala Government in favour, of the Choudhuris of Barnala bazar, who. were unable however to get together adequate funds for the purpose. Ramji Das then asked for sanction to construct the dharmasala in the name of the firm Faquir Chand Bhagwan Das and at the firm 's expense sometime in May, 1909. This sanction was granted and communicated to Ramji Das by the Assistant Surgeon inching of Barnala hospital, who was presumably in charge of public health arrangements at Barnala. The sanction was made subject to the following conditions (see exhibit A), "(1) No tax be, taken for this land from them. (2) The shopkeepers will arrange 'Piao ' (shed for the arrangement for supplying drinking water) for the passengers and will maintain it. 73 (3) Plans of the building which they want to construct should at first be presented before me (Assistant Surgeon in charge). (4) They will be responsible for observing cleanliness and sanitary rules and will construct good drains. (5) No permission to construct any shop will be granted. The building will be constructed only for the passengers. (6) If the abovementioned conditions are not fulfilled, the State will dispossess them of the land. " In 1909 the dharmasala was constructed with an inscription on stone to the effect "Dharmasala Lala Faquir Chand Bhagwan Das, mahajan, 1909. " It appears that though one of the conditions was that permission to construct shops would not be granted, a number of shops were later constructed with the permission of the authorities concerned for meeting the expenses for the maintenance of the temple and dharmasala. Soon after, that is in 1911, there was a complaint against Ramji Das (exhibit B) in which allegations were made to the effect that Ramji Das was utilising the dharmasala for his private purpose, etc. Nothing appears to have come out of this complaint. Sometime in January, 1925, Ramji Das himself appears to have made a statement to the Tahsildar, Barnala, in which he said: "This inn land was given to me by the Govern ment by way of wakf. I invested money on the building from my own funds for charitable purpose. I do not want to reap any benefit. The Government will be within its rights to keep watch over it and maintain its accounts anyway it likes but it may not be used as a Government building and nor anyone be allowed to have a permanent abode therein. It may be specifically reserved for the convenience of incoming and outgoing passengers. The income derived from the shops by way of rent be spent over its repairs. The income of rent is Rs. 15 to 16 per month. I have appointed one man as inn keeper at the rate of Rs. 11 per month out of 74 this income for its supervision. He will remain over there permanently." This statement was made in the course of an enquiry which was started earlier, the exact date of which is not ascertainable from the documents in this record but may have been instituted in 1920. On April 7, 1928, the Revenue Minister, Patiala State, passed an order which said that though the land on which the dharmasala had been built was originally Government land (nazul property), it would not be proper to declare it as such and the dharmasala should continue to exist for the benefit of the public. The order concluded with the following direction: "It would be proper if the inn be kept as it is for the public benefit, but it is hereby ordered that neither Ramji Das nor any other person will be competent to transfer it in any manner. Ramji Das will look after it in the capacity of a Manager and the income accruing therefrom will be spent on the inn for the public benefit. And if Ramji Das or any other person or Manager will transfer it, then any such transfer will be considered unlawful and invalid and in such an event the Government will eschewer it but even then this inn will be used for the public benefit. No Government servant will make therein a permanent abode and nor would it be sold as Nazool property. " The trouble did not end however with the order of the Revenue Minister. A re investigation appears to have been ordered, presumably at the instance of the Sanatan Dharma Sabha, Barnala. Again, an enquiry was hold and it was found by the Nazim, district Barnala, that the dharmasala and temple were constructed by Ramji Das; that he employed three employees one bandit for worship etc., one for looking after the travelers, and a third to keep the premises clean; that there was no order to take accounts from Ramji Das; and that repairs etc. were carried out from the rents of the shops. The Nazim, however, said in his order that the 'Sarai ' was declared to be that of the State, and presumably he said so on the ground that it stood on Government land. Later, Ramji Das 75 obtained further permission to make a raised platform and other extensions, details whereof are not necessary for our purpose. We then come to 1954. On September 10, 1954, one Gopal Das, Secretary, Congress Committee, Barnala, filed a petition to the Revenue Minister, Patiala, in which various allegations were made against Ramji Das and it was prayed that Ramji Das be suspended and the management of the dharmasala etc. be taken over by the State. This petition was enquired into by the Tahsildar, who again found that the dharmasala was constructed by Ramji Das on Government land, that the dharmasala was for public benefit and that Ramji Das had been managing it all along. He reported, however, that Ramji Das was bound to render accounts and as he had failed to do so and considered the property to be his own, he should be removed and past accounts called for. The matter was then referred to the Legal Remembrance of the State Government. This officer referred to the earlier order of the Revenue Minister and pointed out that the dharmasala and temple, though built on Government land, were not Government property and even though Ramji Das was repudiating the existence of a public trust, he was working as trustee of a trust created for public purposes of a charitable or religious nature and could be removed only as a result of a suit under section 92, Civil Procedure Code. The matter appears to have rested there and no further action was taken against Ramji Das on the petition of Gopal Das. We may refer here to a somewhat earlier order of the Revenue Minister dated December 13, 1954, in which there was a direction that a deed of trust should be executed appointing Ramji Das and two other persons as trustees. No such trust deed appears to have been executed. We now come to the last part of the story. After the death of Ramji Das on December 10, 1957, the petitioners continued the management of the dharmasala, temple and the shops appurtenant thereto. This was not seriously disputed before us. The petitioners 76 paid the necessary taxes and electric charges for which they obtained receipts; they also realised the rent of the shops. On or about December 23, 1957, Gopal Das and some others describing themselves as members of the public, Barnala, made an application that since Ramji Das was dead, new arrangements should be made for the proper management of the dharmasala which is used for the benefit of the public. This led to fresh researches into the old papers, and this time the Sub Divisional Officer, Barnala, recommended that in the interest of Government (sometime before this Barnala come into the Punjab State) the Municipal Committee, Barnala, should take immediate charge of the management of the dharmasala. This recommendation was affirmed by the Deputy Commissioner, Sangrur, who wrote to the Punjab Government for necessary sanction of the recommendation. The sanction has not been produced before us, but learned Counsel for the respondents has produced before us the letter which the Deputy Commissioner wrote. This letter says: "Subject:Management of 'Sarai ' near Railway Station, Barnala. One Shri Ramji Das was appointed as Manager vide order of the Revenue Minister of the erstwhile State of Patiala dated 26 12 1987Bk of the property, as cited subject. The Manager was only to look after the property and to utilize the income of the property for the improvement of the 'Sarai ' for publi c welfare. Shri Ramji Das, manager is reported to have died and there is none else to manage 'Sarai '. The section D. O., Barnala, has recommended that in the interest of the Government, the management of the 'Sarai ' may immediately be entrusted to the M. C., Barnala. I also fully agree with the views of the section D. O., Barnala, who has accordingly been directed to hand over the management to the M. C. in anticipation of approval of the Government." In pursuance of the direction given by the Deputy Commissioner, the Kanungo presumably in accordance 77 with the orders of the Sub Divisional Officer, Barnala, dispossessed the petitioners from part of the dharmasala on January 7, 1958, and made over charge of the same to the Municipal Committee, Barnala. The petitioners challenge these orders as being without authority of law and complain that these orders and the acts committed in pursuance thereof, amount to a flagrant violation of their fundamental rights under articles 14, 19 and 31 of the Constitution. They say that they have been deprived of property by the State and its officers in pursuance of executive orders without authority of law; they have been denied equal protection of the laws; and their fundamental right to hold property has been violated in the most arbitrary manner which is destructive of the basic principles of the rule of law guaranteed by the Con stitution. On behalf of the respondents an affidavit has been made by the Sub Divisional Officer, Barnala, in which it has been stated, inter alia, that "the property is trust property of a public and charitable character and the petitioners are not entitled to claim any property rights in respect of the same". Assuming that the property is trust property of the nature suggested, no attempt has been made in the affidavit to show under what authority of law the State or its executive officers were justified in taking the action that was taken against the petitioners in respect of the dhar masala. Learned Counsel for the respondents has sought to justify that action on the ground that the petitioners were mere trespassers and as the land on which the dharmasala stood belonged to the State, the respondents were entitled to use the minimum of force to eject the trespassers. Secondly be has contended, on the strength of the decision of this Court in Sohan Lal vs The Union of India (1), that there is a serious dispute on questions of fact between the parties in this case and also whether the petitioners have any right or title to the subject matter of dispute; therefore, proceedings by way of a writ are not appropriate in this case inasmuch as the decision of the (1) [1957] S.C.R. 738. 78 Court would amount to a decree declaring a party 's title and ordering restoration of possession. We consider that both these contentions are unsound and the petitioners have made out a clear case of the violation of their fundamental rights. There has been some argument before us as to the true legal effect of the sanction granted in 1909 to Ramji Das subject to the conditions adverted to earlier: whether it was a lease in favour of the firm Faquir Chand Bhagwan Das; whether it was a licence coupled with a grant or an irrevocable licence within the meaning of section 60(b) of the Easements Act, 1882. These are disputed questions which we do not think that we are called upon to decide in the present proceeding. The admitted position, so far as the present proceeding is concerned, is that the land belonged to the State; with the permission of the State Ramji Das, on behalf of the joint family firm of Faquir Chand Bhagwan Das, built the dharmasala, temple and shops and managed the same during his life time. After his death the petitioners, other members of the joint family, continued the management. On this admitted position the petitioners cannot be held to be trespassers in respect of the dharmasala, temple and shops; nor can it be held that the dharmasala, temple and shops belonged to the State, irrespective of the question whether the trust created was of a public or private nature. A trustee even of a public trust can be removed only by procedure known to law. He cannot be removed by an executive fiat. It is by now well settled that the maxim, what is annexed to the soil goes with the soil, has not been accepted as an absolute rule of law of this country; see Thakoor Chunder Parmanick vs Ramdhone Bhuttacharjee (1); Lala Beni Ram vs Kundan Lall (2) and Narayan Das Khettry vs Jatindranath (3). These decisions show that a person who bona fide puts up constructions on land belonging to others with their permission would not be a trespasser, nor would the buildings so constructed vest in the owner of the land by the application of the maxim quicquid plantatur solo, solo cedit. It is, therefore, impossible to hold (1) (2) (1899) L. R. 26 I.A. 58. (3) (1927) L.R 54 I.A. 218. 79 that in respect of the dharmasala, temples and shops, the State has acquired any rights whatsoever merely by reason of their being on the land belonging to the State. If the State thought that the constructions should be removed or that the condition as to resumption of the land should be invoked, it was open to the State to take appropriate legal action for the purpose. Even if the State proceeded on the footing that the trust was a public trust it should have taken appropriate legal action for the removal of the trustee as was opined by the State 's Legal Remembrancer. It is well recognised that a suit under section 92, Civil Procedure Code, may be brought against persons in possession of the trust property even if they claim adversely to the trust, that is, claim to be owners of the property, or against persons who deny the validity of the trust. Learned Counsel for the respondents has drawn our attention to the statement of Ramji Das made ill 1925 and the order of the Revenue Minister dated December 13, 1954, and has contended that Ramji Das himself admitted that he was a more trustee. Be that so; but that does not give the State or its executive officers the right to take the law into their own hands and remove the trustee by an executive order. We must, therefore, repel the argument based on the contention that the petitioners were trespassers and could be removed by an executive order. The argument is not only specious but highly dangerous by reason of its implications and impact on law and order. As to the second argument, it is enough to say that it is unnecessary in this case to determine any disputed questions of fact or even to determine what precise right the petitioners obtained by the sanction granted to their firm in 1909. It is enough to say that they are bona fide in possession of the constructions in question and could not be removed except under authority of law. The respondents clearly violated their fundamental rights by depriving them of possession of the dharmasala by executive orders. Those orders must be quashed and the respondents must now be restrained from interfering with the 80 petitioners in the management of the dharmasala, temple and shops. A writ will now issue accordingly. Before we part with this case, we feel it our duty to say that the executive action taken in this case by the State and its officers is destructive of the basic principle of the rule of law. The facts and the position in law thus clearly are (1) that the buildings constructed on this piece of Government land did not belong to Government, (2) that the petitioners were in possession and occupation of the buildings and (3) that by virtue of enactments binding on the Government, the petitioners could be dispossessed, if at all, only in pursuance of a decree of a Civil Court obtained in proceedings properly initiated. In these circumstances the action of the Government in taking the law into their hands and dispossessing the petitioners by the display of force, exhibits a callous disregard of the normal requirements of the rule of law apart from what might legitimately and reasonably be expected from a Government functioning in a society governed by a Constitution which guarantees to its citizens against arbitrary invasion by the executive of peaceful possession of property. As pointed out by this Court in Wazir Chand vs The State of Himachal Pradesh (1), the State or its executive officers cannot in terfere with the rights of others unless they can point to some specific rule of law which authorises their acts. In Ram Prasad Narayan Sahi vs The State of Bihar (2) this Court said that nothing is more likely to drain the vitality from the rule of law than legislation which singles out a particular individual from his fellow subjects and visits him with a disability which is not imposed upon the others. We have here a highly discriminatory and autocratic act which deprives a person of the possession of property without reference to any law or legal authority. Even if the property was trust property it is difficult to see how the Municipal Committee, Barnala, can step in as trustee on an executive determination only. The reasons given for this extraordinary action are, to (1) ; (2) ; 81 quote what we said in Sahi 's case (supra), remarkable for their disturbing implications. For these reasons, we allow the application with costs and a writ will now issue as directed. Petition allowed.

IN-Abs

One Ramjidas built a dharmasala, a temple and shops appurtenant thereto with the joint family funds on Government land with the permission of the Government. After his death the other members who were in management and possession of those properties were dispossessed by the State, its officers and the local Municipality which was put in possession. The petitioners applied to the Punjab High Court for the issue of appropriate writs under article 226 of the Constitution, but the petition was dismissed on the, preliminary, ground that the matter involved disputed questions of fact. An appeal against that order was also dismissed on the same ground. The petitioners then moved this court under article 32 of the Constitution. Their case was that they had been evicted without authority of law and in violation of the Constitution. It was urged on behalf of the State that the property being trust property built on Government land, the petitioners were mere trespassers liable to be ejected with the minimum amount of force and relying on the decision of this Court in Sohal Lal vs The Union of India, it was further urged that redress by way of writs was wholly inappropriate in disputes on questions of fact and title. Held, that on the admitted facts of the case the petitioners could not be trespassers in respect of the dharmasala, temple and shops, nor the State the owner of the property, irrespective of whether it was a trust, public or private. The maxim, that what is annexed to the soil goes with the soil, is not an absolute rule of law in this country, and if the State wanted to remove the constructions or resume the land, it should have taken appropriate legal action for the purpose. Thakoor Chunder Parmanick vs Ramdhone Bhuttacharjee, , Lala Beni Ram vs Kundan Lall, (1899) L.R. 26 I.A. 58, and Narayan Das Khettry vs jatindranath, (1927) L.R. 45 I.A. 218, referred to. Even if Ramjidas was no more than a trustee, that would not give the State or its officers the right to take the law into their 70 own hands and the argument that the petitioners were tres passers and could be removed by an executive order must be rejected not merely as specious but highly dangerous in its implication. It was not necessary in this case to determine disputed questions of fact, nor as regards the precise rights of the petitioners. It was enough that they were bona fide in possession of the property and could not be removed except by authority of law. The executive action taken in the present case must be deprecated as being destructive of the basic principles of the rule of law; it was a highly discriminatory and autocratic act which deprived a person of the possession of property without reference to any law or legal authority.

Appeal No. 461 of 1957. Appeal by special leave from the judgment and decree dated July 5, 1954. of the Punjab High Court in L. P. A. No. 29 of 1953. N. section Bindra and Sardar Singh, for the appellant. P. D. Ahuja and H. P. Wanchoo, for respondent No. 1. 471 1961. March 21. The Judgment of the Court was delivered by WANCHOO, J. This is an appeal by special leave from the judgment of the Punjab High Court and arises out of a suit for possession of land brought by Munshi Ram, respondent. The following pedigreetable will be useful in understanding the claim put forward by the respondent: Heman Karori Laghi Maghi Jai Dayal (issueless) Gobind Ata Nanak Chand Santu Munshi Ram (adopted son) plaintiff Hans Raj Salig Kam ( Defdt.) MunshiRam (adopted by Ata) The claim of Munshi Ram was with respect to the property left by Nanak Chand who is his natural grandfather and also Santu. There is no dispute now about the property of Santu and we are concerned in this appeal only with the property of Nanak Chand. Nanak Chand died in 1939. Munshi Ram 's natural father Hans Raj had predeceased Nanak Dhand. Munshi Ram himself was adopted by Ata in 1918 before the death of his natural father Hans Raj which took place in 1920. It will be clear from these dates therefore that Hans Raj never succeeded to the property of his father Nanak Chand and Munshi Ram had been adopted by Ata even before Hans Raj 's death. The case of Munshi Ram was that he was entitled to one half share of the property left by Nanak Chand as his their, according to Zamindara custom. The parties, it may be Mentioned, are Brahmins and Munshi Ram claimed joint possession of the half share of the property left by Nanak Chand on his 472 death. The suit was resisted by Salig Ram (defendant appellant) who is the other son of Nanak Chand. His case was that Munshi Ram was not entitled either according to personal law or the riwaj i am of Amritsar district to any share in the property left by Nanak Chand. The trial court held that Munshi Ram was entitled to succeed to the property left. by, Nanak Chand along with Salig Ram and decreed the suit accordingly Salig Ram went in appeal to the District Judge but failed. He then went in second appeal to the High Court but the second appeal was also dismissed The High Court having refused to grant a certificate the appellant applied to this Court for special leave which was granted; and that is how the matter has come up before us. In questions regarding succession and certain other matters, the law in the Punjab is contained in section 5 of the , No. IV of 1872. Clause (b) of that section provides that the rule of decision in such matters shall be the Hindu law where the parties are Hindus, except in so far as such law has been altered or abolished by legislative enactment, or is opposed to the provisions of this Act or has been modified by any such custom as is referred to in cl. (a) thereof. Clause (a) provides that any custom applicable to the parties concerned, which is not contrary to Justice, equity or good conscience, and has not been by this or any other enactment altered or abolished and has not been declared to be void by any competent authority shall be applied in such matters. The position therefore that emerges is, where the parties are Hindus, the Hindu law would apply in the first instance and whosoever asserts a custom at variance with the Hindu law shall have to prove it, though the quantum of proof required in support of the custom which is general and well recognised may be small while in other cases of what are called special customs the quantum may be larger. As was pointed out by Robertson, J., as far back as 1906 in Daya Ram vs Sohel Singh and others (1), "in all cases under section 5 of the , it lies upon the person asserting that he is ruled (1) 1906 P. R. No. 110. 473 in regard to a particular matter by custom, to prove that he is so governed, and not by personal law, and further to prove what the particular custom is. There is no presumption created by the clause in favour of custom; on the contrary it is only when the custom is established that it is to be the rule of decision. " These observations were approved by the Privy Council in Abdul Hussein Khan vs Bibi Sona Dero and another (1). The same view has been taken by this Court in Ujagar Singh vs Mst. Jeo (2). We have therefore in the first instance to apply Hindu law to the parties to this suit, and it is only when a custom different from Hindu law is proved that rights of the parties would be governed by that custom. Munshi Ram 's case was that he was adopted by Ata according to custom (i.e., in accordance with the mode prevalent in the community for purposes of adoption) during the lifetime of Hans Raj. Thus Munshi Ram having been adopted by Ata would have no right left in the family of his natural father Hans Raj, unless the adoption was in the dvyamushyayana form. It was however never the case of Munshi Ram that the adoption was in dvyamushyayana form and so far as Hindu law is concerned, if it applies to this case Munfshi Ram would not be entitled after the adoption to succeed to the property left by Nanak Chand. But Munshi Ram 's case was that according to Zamindara custom he was entitled to succeed to half of the properties left by Nanak Chand. The question therefore arises: what the Zamindara custom is in the present case. In the plaint the custom was not actually pleaded, though strictly speaking this should have been done. However, the custom that is relied upon is to be found in para. 48 of the Digest of Customary Law in the Punjab by Rattigan at p. 572, 13th Edition. This paragraph appears in section V dealing with "Effect of Adoption on Succession" and is in the following terms: "An heir appointed in the manner above described ordinarily does not thereby lose his right to succeed (1) (1917) L. R. 45 I. A. 10, 13. (2) [1959] SUPP. 2 S.C. R. 781 60 474 to property in his natural family, as against collaterals, but does not succeed in the presence of his natural brothers. " It is not disputed before ,is that para. 48 applies in the case of adoption also; but what is contended on behalf of the appellant is that para. 48 only mentions a custom prevalent throughout the Punjab while the riwaj i am of Amritsar district from which area the parties come also records a custom confined to that area which really governs the parties. It appears that in 1865 the riwaj i am of Amritsar district stated that "an adopted son will not be a co sharer amongst his brothers, in the property left by his natural father", i.e., a son given away in adoption will not inherit in the natural father 's family. We may in this connection refer to Jai Kaur and others vs Sher Singh and others (1), where this Court held that "there is therefore an initial presumption of correctness as regards the entries in the Riwaj i am and when the custom as recorded in the Riwaj i am is in conflict with the general custom as recorded in Rattigan 's Digest or ascertained otherwise, the entries in the Riwaj i am should ordinarily prevail except that as was pointed out by the Judicial Committee of the, Privy Council in a recent decision in Mt. Subhani vs Nawab (2), that where, a,% in the present case, the Riwaj i am affects adversely the rights of females who had no opportunity whatever of appearing before the revenue authorities, the presumption would be weak, and only a few instances would suffice to rebut it. " As females are not concerned in this case, the entries in the riwaj i am of Amritsar district in 1865, if they conflict with para. 48 of Rattigan 's Digest,, should prevail. On that view Munshi Ram would have no right to succeed in the family of his natural father after he was adopted by Ata. The High Court, however, pointed out that there were decisions of courts which did not accept the riwaj i am of Amritsar district of 1865 as laying down the correct custom and therefore para. 48 of the Digest by Rattigan would still prevail. (1) A.I. R. (2) A.I.R. 1941 P.C. 21. 475 In this connection the High Court relied on Majja Singh and others vs Rain Singh (1). That was however a case of Jats and not of Brahmins and the person who was adopted in that case was an only son. That case would not therefore necessarily override the custom so far as it applies to Brahmins. In any case the position is made clear by the Manual of Customary Law prepared in 1911 12 by Mr. Cralk. The custom recorded in that compilation is that with the exception of Brahmins and Khatris, an adopted son does not retain his right to inherit from his natural father, even if the latter dies without leaving any other son. The High Court however pointed out that the Brahmin,,; and khatris did not accept this custom; but it failed to notice a further paragraph in answer to that very question where it was pointed out that among Brahmins and Khatris the same custom prevailed except that where there was no other son, the son who was adopted in another family would succeed to the property of his natural father. In 1940 the customary law of Amritsar district was again compiled and the custom recorded is that an adopted son loses his right to inherit from his natural father but if the latter dies without other sons the adopted son cannot inherit as a son but may inherit collaterally as a successor of his adoptive father. The position as it emerges from a comparison of the entries in the riwaj i am of 1865, 1911 12 and 1940 is somewhat confused and the High Court therefore thought that the custom recorded in para. 48 should be adhered to as Brahmins and Khatris did not accept the extreme position that as on given away in adoption was excluded altogether from succeeding in his natural father 's family as recorded in 1911,12. This conclusion seems to be fortified by the statements of Brahmins and Khatris in 1911 12 that a son given away in adoption succeeded in the family of his natural father if he had no brothers though the High Court did not notice this part of the answer in the riwaj i am of 1911 12. The conclusion therefore at which we arrive is that amongst Brahmins and (1) 1879 P.R. No. 43 476 Khatris of Amritsar district, a son given away in adoption can succeed to the property of his natural father only if there is no other son of the natural father; if there is another son he cannot succeed. Now let us see how this proposition works out in the present case. In this case Munshi Ram was claiming to succeed not to the property of Hans Raj, his natural father, but, to the property of Nanak Chand his natural grandfather. If the case was for succession to the property of the natural father, namely, Hans Raj, the custom might have favoured Munshi Ram, for Hans Raj had no other son and Munshi Ram would thus have succeeded to the property of Hans Raj. But Hans Raj, having died in the lifetime of his father (Nanak Chand), never succeeded to the property of his father. The High Court, however, thought that on the principle of representation Munshi Ram stepped into the shoes of Hans Raj and therefore was entitled to succeed to the estate left by Nanak Chand as his father would have succeeded if he had been alive at the time of the death of Nanak Chand. But if Munshi Ram is to succeed by the application of the principle of representation it would follow that Munshi Ram would really be deemed to be Hans Raj at the time of the death of Nanak Chand. In that case the position would be that Nanak Chand would have died leaving two sons, namely, Salig Ram and Munshi Ram in the guise of Hans Raj. But Munshi Ram having been adopted away and there being another son of Nanak Chand, even the custom recorded in para. 48 would exclude Munshi Ram because then there would be a brother of Munshi Ram alive in the family of Nanak Chand and this brother would succeed in exclusion of Munshi tam who would be representing his father. The argument on behalf of Munshi Ram is that though for the purpose of representation Munshi Ram would be treated as if he stood in the shoes of his father, the representation could not go further and it could 'not be held that there were two sons of Nanak Chand living it the time of his death, one of whom in the guise of Munshi Ram was adopted away. We cannot accept this 477 argument; and if Munshi Ram is to succeed on the principle of representation that principle must be fully worked out and he must for all intents and purposes be deemed to be Hans Raj. As the person who is deemed to be Hans Raj was adopted away and has a brother in the shape of Salig Ram he would not succeed even under the custom recorded in para. 48 of Rattigan 's Digest. The position therefore is that neither under Hindu law nor under the custom recorded in para. 48 can Munshi Ram succeed to the property of Nanak Chand. We therefore allow the appeal and set aside the decree of the courts below and dismiss the suit of the plaintiff respondent so far as the property of Nanak Chand is concerned. In the circumstances we also order the parties to bear their own costs throughout as the High Court did. Appeal allowed.

IN-Abs

M, a Hindu belonging to the Brahmin community in the Amritsar District of Punjab, instituted a suit for the possession of a half share in the property left by his natural paternal grandfather. His father had predeceased him, but another son of his grandfather was alive. He had been adopted away in a different family but he claimed that according to the custom of his community in the district he was entitled to get his share in the estate of his natural grandfather. The based his claim on the principle of representation that he, stepped into the shoes of his natural father. Held, that under section 5 of the , the law applicable to Hindus in Punjab in respect of questions regarding succession and other matters referred to in that section, is Hindu law in the first instance, but where a custom different from Hindu law is proved then the rights of the parties would be governed by that custom; and whosoever asserts a custom at variance with Hindu law has to prove it, though the quantum of proof required in support of the custom which is general and well recognised may be small while in other cases of what are called special customs the quantum may be larger. Held, further, that in the Amritsar district of Punjab amongst Brahmins and Khatri s, a son given away in adoption can succeed to the property of his natural father if there is no other son of the natural father, but if there is another son he cannot succeed. Held, also, that in the present case neither under Hindu law nor under the customary law of Punjab could M succeed to the property of his natural grandfather.

No. 85 of 1959. Writ Petition under article 32 of the Constitution of India for the enforcement of fundamental rights. A. V. Viswanatha Sastri, R. section Pathak, section N. Andley, Rameshwar Nath and P. L. Vohra, for the petitioner. K. N. Rajagopala Sastri and D. Gupta, for respondents Nos. 1 and 2. 1961. April 14. The Judgment of the Court was delivered by section K. DAS,J. One Ranjit Singh is the petitioner before us. The respondents are the Commissioner of Income tax, Lucknow, the Income tax Officer, Lucknow, and the Collectors of three districts in Uttar Pradesh, namely, Dehra Dun, kanpur and Lucknow, being officers under whose orders certain properties of the petitioner and his family have been attached in pursuance of a notice of demand issued under section 29 of the Indian Income tax Act, 1922, in circumstances which we shall presently state. The facts are shortly these. In 1948 the Central Government referred a number of cases in which the petitioner was concerned to the Income tax Investigation Commission set up under the relevant provisions 968 of the Taxation on Income (Investigation Commission) Act, 1947 (Act XXX of 1947), hereinafter referred to as the Act. On May 30, 1948, the Secretary of the Commission issued a notice to the petitioner to furnish a list of businesses or concerns in which the petitioner was interested and to produce the account books, registers etc. relating thereto. The petitioner complied with the notice. Then, an Autho rised Official appointed by the Commission commenced an investigation into the cases in February, 1949, and in due course submitted a report to the Commission. The Commission heard the petitioner and on April 16, 1949, submitted a report under section 8 A(1) of the Act. The findings of the Commission appear from the following extract from their report: "The total tax payable on the undisclosed in come upto March 31, 1947 would accordingly be Rs. 6,61,917. . . . . . The amount of Rs.6,61,917 may be recovered from Mr. Ranjit Singh and from the family assets in the hands of Mr. Ranjit Singh. In view of the admission recorded as number (iii) in para 6 supra, the tax will also be recoverable from the properties acquired between 1939 and 1947 in the names of Mrs. Ranjit Singh and Mr. Ranjit Singh 's sons Baljit Singh and Satendrajit Singh. In the circumstances, we recommend that no penalty be levied on the assessee in respect of non disclosures and false or incorrect statements so far made either to the income tax authorities or in the course of the present proceedings (including those before the Authorised Official). Mr. Ranjit Singh and Mr. Vaidyanatha Ayyar (representative of Mr. Ranjit Singh) have asked that they be allowed sufficiently long time to pay up the tax. It has been represented that out of taxes already assessed by the Income tax Department about Rs. 3,86,000 is still due and the addition of the amount leviable under this report will bring the assessee 's total liability to about 10 1/2 lakhs. Mr. Ranjit Singh has asked that he may be permitted to pay up this sum in not 969 more than five years, in instalments of not less than a lakh of rupees at a time. While we do not wish to go into the details of the offer, we recommend this request for time for favourable consideration by Government." Then, on November 7, 1949, the petitioner, his wife and two sons submitted a petition to the Commission in which they accepted the findings of the Commission as correct and offered to pay the tax in instalments in accordance with certain terms of settlement. Some of these terms are: "3. We offer to pay the aforesaid amount of Rs. 6,61,917 as per the following instalments: (1) on or before the 31st March, 1951 Rs. 1,00,000. (2) on or before the 31st March, 1952 Rs. 2,31,000. (3) on or before the 30th June, 1952 Rs. 3,30,917. We, however, pray that so far as the last instalment is concerned in case we are unable to pay the same by the date mentioned above and are able to satisfy the Central Board of Revenue that we have failed to raise the money for reasons beyond our control and for no fault of our own, a suitable extension of time may be granted. 5.In respect of the other instalments, we agree that in case of default in the payment of any one of them, the whole amount of tax outstanding at the time shall become immediately payable. " The report of the Commission and the terms suggested by the petitioner for a settlement were accepted by the Central Government and an order was passed under section 8 A(2) of the Act on November 21, 1949, which stated in its operative part that a demand notice be served immediately by the Income tax Officer concerned under section 29 of the Indian Income tax Act, 1922, on the petitioner in accordance with the terms and conditions of settlement and that all such other proceedings under the Indian Income tax Act or under any other law as may be necessary be taken with a view to enforce the payment of the demand and terms and conditions of the settlement. 122 970 The respondents allege that a demand notice was accordingly issued to the petitioner on December 2, 1949. The petitioner alleges, however, that he received the notice in or about April, 1950, after the Constitution of India had come into force. Thereafter, in pursuance of the demand notice certain payments were made by the petitioner. The petitioner was, however, unable to make full payment within the stipulated periods mentioned in the demand notice. The result was that according to the terms of settlement the whole amount outstanding at the time became immediately payable by the petitioner. Then, certain properties of the petitioner and his family were attached by the Collector of the district concerned in pursuance of the orders received from time to time from the Income tax Officer. On June 8, 1959, the petitioner filed the present writ petition challenging the legality of the demand notice dated December 2, 1949, and the subsequent proceedings taken in pursuance of that notice. The case of the petitioner is that after the coming into force of the Constitution of India on January 26, 1950, the demand notice could not be given effect to and the proceedings taken in pursuance of that notice are unconstitutional inasmuch as they violate his fundamental rights guaranteed by the Constitution. In the petition a reference has been made to Articles 14,31 and 19(1)(g) of the Constitution, but the argument before us has proceeded on the contention urged on behalf of the petitioner that there has been a violation of the fundamental right of equal protection of the laws guaranteed to him under article 14 of the Constitution inasmuch as he has been dealt with differently from other debtors who owe money to the State under a contractual liability. The substantial prayer of the petitioner is for the issuance of a writ of mandamus directing the respondents not to give effect to the notice of demand dated December 2, 1949, nor to take any proceedings for enforcing the terms of settlement and for recovery of the sums specified therein. The petition has been contested by the respondents and the principal point taken on their behalf is that 971 the legality of the demand notice dated December 2, 1949, cannot be challenged by the petitioner on the strength of the provisions of the Constitution, because the Constitution is prospective and not retrospective; secondly, it is contended on behalf of the respondents that the subsequent proceedings taken in pursuance of the demand notice aforesaid do not in any way violate the right of equal protection of the laws guaranteed under article 14 of the Constitution. It is convenient at this stage to refer to some of the earlier decisions of this Court on the question of con. stitutionality of some of the provisions of the Act. On May 28, 1954, this Court delivered judgment in Suraj Mall Mohta and Co. vs A. V. Visvanatha Sastri and Another (1). It is not necessary to state the facts of that decision. It is enough to say that it was held therein that sub section (4) of section 5 of the Act war, bad, as it offended the provisions of article 14 of the Constitution. Sub section (4) of section 5 of the Act having been declared void, Parliament passed the Indian Income tax Amendment Act (33 of 1954) amending section 34 of the Indian Income tax Act, 1922. As a result of this amendment, the validity of sub section (1) of section 5 of the Act came in for challenge on the ground that the Income tax Officer could pick out some out of the class of substantial tax evaders and refer their cases under sub section (1) of section 5 while dealing with other such persons under amended section 34 of the Indian Income tax Act. In Shree Meenakshi Mills Ltd., Madurai V. A. V. Viswanatha Sastri and Another(2), sub section (1) ' of section 5 of the Act was held to be bad on that ground. It should be noted that in none of the petitions disposed of by that judgment had any assessment been made under the Act and this Court only prohibited further proceedings before the Commission under the Act, Finally, on December 20, 1955, came the decision of this Court in M. CT. Muthiah & two Others vs The Commissioner of Income tax, Madras & Another (3). In that case, on a reference under B. 5(1) of the Act, the Commission submitted its report to Government under (1) ; (2) (3) 972 s.8(1) of the Act on August 26, 1952 that is, after the coming into force of the Constitution, and the Central Government made its order under section 8(2) of the Act on September 16, 1952. In these circumstances it was held: "The result, therefore, is that barring the cases of persons which were already concluded by reports made by the Commission and the directions given by the Central Government under section 8(2) of the Act XXX of 1947 culminating in the assessment or reassessment of the escaped income, those cases which were pending on the 26th January 1950 for investigation before the Commission as also the assessment or reassessment proceedings which were pending on the 26th January 1950 before the Income tax Officers concerned in pursuance of the directions given by the Central Government under section 8(2) of the Act would be hit by Article 14 of the Constitution and would be invalidated. " Lastly, came the decision in Basheshar Nath vs The Commissioner of Income tax, Delhi & Rajasthan and Another (1). That was a case of a settlement under section 8 A of the Act as in the present case, but the fact which distinguishes that case from the present is that the settlement there was made after the commencement of the Constitution. It was held therein that the settlement was the result of a procedure which became discriminatory after the commencement of the Constitution and was therefore bad, and as the discriminatory process of investigation continued even after the commencement of the Constitution, the principle laid down in Syed Qasim Razvi vs The State of Hyderabad and Others (2 ) did not apply. The point which requires emphasis with regard to these earlier decisions is this: they all dealt with the operation of a discriminatory procedure under the different provisions of the Act after the commencement of the Constitution. The position in the case under our present consideration is that the settlement, the order under section 8 A(2) of the Act, and even the notice of damaged in pursuance of that order all these took (1) [1959] Supp. 1 S.C. R. 528. (2) 973 place before the coming into force of the Constitution, and this ' vital distinction must be borne in mind in considering the contentions urged by learned Counsel for the petitioner. The main contention is that the proceedings taken against the petitioner in pursuance of the order under section 8 A(2) are violative of the guarantee of equal protection of the laws under article 14 of the Constitution. There are, however, two subsidiary contentions which do not directly raise any question of the violation of a fundamental right, and these may be disposed of before we deal with the main contention. In his petition the petitioner has stated that he received the demand notice dated December 2, 1949 in or about April, 1950. In the counter affidavit of the respondents it has been stated that the assessee was informed of the demand early in December, 1949. A copy of the order of the Central Government under section 8 A(2) of the Act dated November 21, 1949, was sent to the petitioner; there is an endorsement in the office copy of the demand notice dated December 2, 1949, that it was sent by registered post, acknowledgment due. Thereafter, the petitioner paid part of the tax on different dates without raising any objection that he had not received the demand notice before April, 1950. It was for the first time in April, 1959, some ten years after, that the petitioner asked for a copy of the order under section 8 A(2) and information as to the date when he had received the regis tered notice of demanad. He also asked for an inspection of the file. This was, however, refused. Then, the petitioner made the statement that he had received the demand notice in or about April, 1950. He said that the statement was based on his knowledge; he did not disclose the source of his knowledge nor did he say how he remembered ten years after, without reference to any documents, that he had received the demand notice in or about April, 1950. We are unable to accept the statement as correct. On the materials in the record it is clear that the proceedings against the petitioner culminating in the service of the notice of demand against him were all completed 974 before the coming into force of the Constitution and the petitioner cannot challenge those proceedings under article 14 of the Constitution; for it is well settled that the Constitution is prospective and not retrospective. On the construction of section 8 A of the Act it has been argued that after the order made by the Central Government under sub section (2) thereof, a fresh assessment was necessary and as no such assessment was made, all subsequent proceedings for recovery of the tax are illegal. This is a point which has not been specifically taken in the petition. That apart, we do not think that there is any substance in this contention. We may here read section 8 A, so far as it is relevant: "section 8 A. (1) Where any person concerned in any case referred to or pending before the Commission for investigation applies to the Commission at any time during such investigation to have the case or any part thereof settled in so far as it relates to him, the Commission shall, if it is of opinion that the terms of the settlement contained in the application may be approved, refer the matter to the Central Government, and if the Central Government accepts the terms of such settlement, the Commission shall have the terms thereof recorded and thereupon the investigation, in so far as it relates to matters covered by such settlement, shall be deemed to be closed. (2) For the purpose of enforcing the terms of any settlement arrived at in pursuance of sub ,section (1), the Central Government may direct that such proceedings as may be appropriate under the Indian Income tax Act, 1922 (XI of 1922), the Excess Profits Tax Act, 1940 (XV of 1940) or any other law may be taken against the person to whom the settlement relates, and, in particular, the provisions of the second proviso to clause (a) of sub section (5) of section 23, section 24B, the proviso to sub section (2) of section 25A, the proviso to sub section (2) of section 2 6 and sections 44 and 46 of the Indian Income tax Act, 1922 shall be applicable to 975 the recovery of any sum specified in such settlement by the Income tax Officer having jurisdiction to assess the person by whom such sum is payable as if it were income tax or an arrears of income tax within the meaning of those provisions. " The scheme of section 8 A is different from that of section 8. The latter section contemplates an assessment or reassessment in accordance with the direction of the Central Government; see sub section (4) of s, 8. That is not the position under section 8 A, sub section (2) whereof provides for the enforcement of the terms of any settlement arrived at in pursuance, of sub section There is Do doubt a reference to certain special provisions of the Indian Income tax Act, 1922, regarding assessment of partners in a registered firm, tax payable by the representative of a deceased person etc.; but the reference to those provisions does not necessarily mean that a fresh assessment must be made. They merely show that these special provisions will be applicable in appropriate cases. Sub section (2) ends by saying that "sections 44 and 46 of the Indian Income tax Act, 1922, shall be applicable to the recovery of any sum specified in such settlement by the Income tax Officer having jurisdiction to assess the person by whom such sum is payable as if it were income tax or an arrears of income tax within the meaning of these provisions. " This clearly shows that the true scope and effect of the sub section is to enforce the terms of any settlement arrived at in pursuance of sub section (1) and to recover any sum specified in such settlement as if it were income tax or arrear of income tax in accordance with the provisions of sections 44 and 46 of the Indian Income tax Act, 1922. We are unable, therefore, to accept the construction which learned Counsel for the petitioner seeks to put on the sub section. This brings us to the main contention that the petitioner has been subjected to a discriminatory procedure after the coming into force of the Constitution by reason of section 8 A(2) of the Act. Learned Counsel for the petitioner has put his argument in the following way. He has submitted that what the petitioner agreed to pay to Government was really a 976 debt arising out of a contract viz., the settlement between him and Government and the petitioner is one amongst the larger class of persons who are debtors of Government; against all other debtors Government have the ordinary remedy by way of suit but against the petitioner a special remedy is provided which is more drastic and envisages the imposition of a penalty under section 46 of the Indian Income tax Act, 1922, if the petitioner is in default in making a payment of the amount due. This, it is argued, is a discriminatory procedure which has been continued even after the coming into force of the Constitution. We are unable to accept this argument as correct. First of all, the petitioner does not really belong to the larger class of persons whom learned Counsel has characterised as debtors of Government. The petitioner belongs to a special class who had evaded payment of Income tax and had entered into a settlement to pay the amount due as income tax or arrear of income tax. For this class of persons the procedure laid down in section 8 A(2) is one and the same, and no discrimination is made in favour of or against any member of the same class. The classification is a, reasonable classification having a just relation to the object of the pro vision. For the recovery of the amount due as income tax or arrear of income tax all these persons are treated on the same, footing. Neither is there any discrimination between them and other persons similarly placed in the matter of recovery of income tax.or arrears of income tax. Secondly, it is open to the legislature to make a law as to how particular Government dues should be realised and if the law applies equally to all persons similarly situated, no objection call be taken to such law on the ground of discrimination. The truth of the matter is that what the petitioner agreed to pay to Government is really income tax which should have been paid in regard to the relevant assessment years but which had escaped assessment and therefore the recovery is to be made according to income tax law. That is all that section 8 A(2) says. In the decisions of this Court to which we bad earlier adverted, what was held to be bad was 977 the application of a discriminatory procedure after the coming into force of the Constitution;. even in Basheshar Nath 's case (1) the Commission applied the discriminatory procedure after the coming into force of the Constitution and then submitted its report on May 24, 1954, and the Central Government accepted the settlement on July 5, 1954. It was held that the settlement itself was vitiated by the discriminatory procedure adopted by the Commission. That is not the position here. In this case everything was con cluded before January 26, 1950, when the Constitution came into force, including the issuance of a notice of demand. All that remained to be done was the recovery of the amount according to the notice of demand. Therefore, the crucial question is is the recovery procedure discriminatory in any way, having regard to the undoubted validity of the proceedings which had been taken against the petitioner before ,January 26, 1950? We are unable to answer this question in favour of the petitioner for the reasons which we have already stated. Learned Counsel for the petitioner relied on the decision in M. L. M. Muthiah Chettiar and Others vs Commissioner of Income tax, Madras (2). The facts of that case were entirely different and no question arose there of considering the provisions of section 8 A (2) of the Act. For these reasons we hold that there is no merit in the petition which is, accordingly, dismissed with costs. Petition dismissed. (1) [1959] SUPP. 1 S.C.R. 528.

IN-Abs

In 1948 the Central Government referred a number of cases in which the petitioner was concerned, to the Income tax Inves tigation Commission set up under the relevant provisions of the Taxation on Income (Investigation Commission) Act, 1947. After the Commission had submitted the report under section 8 A(1) of the Act, in which the total tax payable on the undisclosed income upto March 31, 1947, was estimated, the petitioner applied for a settlement of his case by offering to pay the amount of tax in instalments and by agreeing to pay the whole amount immediately in case of default in payment of any of the instalments in time. The Central Government accepted the terms suggested by the petitioner and passed an order on November, 21, 1949, under section 8 A(2) of the Act directing the service of a demand notice on the petitioner and recovery of the tax in accordance with the terms and conditions of the settlement. On December 2, 1949, a notice of demand was issued to the petitioner who, in pursuance thereof, made certain payments. But as the petitioner was unable to make full payment within the stipulated periods, the whole amount outstanding became immediately payable and certain properties belonging to him and his family were attached by the Collector of the district Concerned for the recovery of the amount. On June 8, 1959, the petitioner filed a writ petition tinder article 32 of the Constitution of India challenging the legality of the demand notice dated December 2, 1049, and the subsequent proceedings taken in pursuance of that notice on the ground that after the coming into force of the Constitution of India on January 26, 1950, they were violative of the fundamental right of equal protection of the laws guaranteed under article 14, inasmuch as what he had agreed to pay the Government as a result of the settlement was really a debt, and he had been dealt with differently from other debtors who owed money to the State under a contractual liability. Held, (1) that the proceedings against the petitioner cul minating in the service of the notice of demand against him were all completed before the coming into force of the Constitution and the petitioner cannot challenge those proceedings under 967 article 14 of the Constitution, because it is well settled that the Constitution is prospective and not retrospective; (2) that the true scope and effect of sub section (2) of section 8 A is to enforce the terms of any settlement arrived at in pursuance of sub section (1), which was really income tax which had escaped assessment; (3) that the petitioner belonged not to the larger class of debtors of Government but to a special class which had evaded payment of income tax for which the procedure laid down in section 8 A(2) was one and the same, and that the classification being reasonable having a just relation to the object of the provision, the recovery procedure cannot be challenged as discriminatory under article 14. Suraj Mail Mohta and Co. vs A. V. Visvanatha Sastri and Another, [1955] 1 S.C.R.448, M. CT. Muthiah & two Others vs The Commissioner of Income tax, Madras & Another, ; and Basheshar Nath vs The Commissioner of Income tax, Delhi & Rajasthan and Another, [1959] Supp. 1 S.C.R. 528, distinguished.

Appeal No. 172 of 1952. Appeal by special leave from the Judgment and Decree dated January 25, 1952, of the High Court of Judicature at Bombay (Chagla C.J.) in Revision Application No. 1119 of 1951 from the Judgment and Decree dated August 10, 1951, of the Court of Small Causes at Bombay in Appeal No. 355 of 1950, arising out of Judgment and Decree dated 227 December 18, 1950, of the Court of Small Causes in Suit No. 1055/7943 of 1948. B. H. Lulla for the appellants. C. H. Daphtary (Solicitor General for India) (B.B. Adhyarujina, with him) for the respondents Nos. 1, 2 and 3. 1952. December 10. The Judgment of the Court was delivered by DAS J. This is an appeal by special leave from the judgment and order of the High Court of Judicature at Bombay passed on January 25, 1952, in Civil Revision, Application No. 1119 of 1951. It arises out of a suit filed in the Bombay Small Causes Court under section 28 of the Bombay Rents, ' Hotel and Lodging House Rates Control Act, 1947, for ejectment from and compensation at the rate of Rs. 370 per month from November 1, 1947, for the use and occupation of the second floor flat of Sunama House situate in Cumballa Hill, Bombay. The plaintiffs are the trustees of the will of Framroze D. B. Taraporewala deceased and as such the owners of the Sunama House. The defendants are two in number, namely, the first defendant Mrs. Dinbai K. Lala to whom the said flat was let out by the plaintiffs on or about September 1, 1942, at Rs. 370 per mouth and the second defendant a limited company to whom the first defendant had sublet the said flat as from November 16, 1947, at the same rent. The defendants contested the suit on a variety of grounds, but the trial Court by its judgment dated October 18, 1950, rejected all the pleas and passed a decree directing both the defendants to vacate the flat by March 31, 1951, and awarding, only as against the first defendant, Rs. 3,317 10 8 for compensation from November 1, 1947, till July 31, 1948, and thereafter at Rs. 370 per month from August 4, 1948, till delivery of possession besides the costs of the suit. The defendants preferred an appeal under section 29 of that Apt. Besides the various pleas put forward 228 before the trial Court, the defendants, before the Appellate Bench, put forward an additional plea, watch was not pleaded in their written statements, namely, that the Small Causes Court had no jurisdiction to entertain the suit in so far as it concerned the second defendant. The Appellate Bench of the Small Causes Court dismissed the appeal with costs. The second defendant thereafter moved the High Court in revision under section 115 of the Code of Civil Procedure which was also dismissed with costs. The second defendant has now come up in appeal before us after having obtained special leave of this Court. The only contention urged before us is that the Small Causes Court had no jurisdiction to entertain this suit. The relevant portions of section 28 of the Act are as follows: "Notwithstanding anything contained in any law and notwithstanding that, by Reason of the amount of the claim or for any other reason, the suit or proceeding would not, but for this provision, be with in its jurisdiction, (a) in Greater Bombay, the Court of Small Causes, Bombay, (aa). . . . . . (b). . . . . . . shall have jurisdiction to entertain and try any suit or proceeding between a landlord and a tenant relating to the recovery of rent or possession of any premises to which any of the provisions of this Part apply, and to decide any application made under this Act and to deal with ' any claim or question arising out of this Act or any of its provisions ; and no other Court shall have jurisdiction to entertain any such suit, proceeding or application or to deal with such claim or question. " It was not disputed that the provisions of Part II of the Act apply to the premises. The contention of the appellant is that the suit as against it was not a suit between a landlord and a tenant and that, in so 229 far as it claimed compensation for use and occupation, it was not a suit for recovery of rent and, therefore, section 28 had no application, and the Court of Small Causes had no jurisdiction to entertain this suit. In view of this plea it is necessary to refer to the plaint in this suit. After setting forth their title as owners of the Sunama Houses trustees under the will of Framroze D. B. Taraporewala the plaintiffs plead that the second floor flat was let out to first defendant on or about September 1, 1942, at Rs. 370 per month on terms and conditions printed on the back Of the rent bill form which were shown to and accepted by the first defendant. In paragraph 5 of the plaint is set out one of those terms, namely, that the tenant shall not assign, sublet or re let the premises without the previous written consent of the landlords. In paragraph 7 reference is made to the notice given by the plaintiffs to the first defendant on October 17, 1946, to vacate the flat at the end of November, 1946, on the ground that the same was required reasonably and bonafide for the use of two of the beneficiaries under the will. Then, after referring to an unsuccessful attempt on the part of the plaintiffs to obtain a certificate under section 9 of the Act ' the plaintiffs refer to a letter dated November 16, 1947, written by the first defendant to the plaintiff8 intimating that she had from that day sublet the flat to the second defendant. It is stated in para,graphs 12 and 13 of the plaint that on December 19, 1947, the second defendant sent a cheque for Rs. 370 for rent , for the month of November, 1947, but the plaintiffs declined to accept the same or to recognise the second defendant as a lawful occupant as subtenant or otherwise. It is also alleged that on January 23, 1948, the plaintiffs gave a notice to both ,the Codefendants to vacate the premises at the end of February 29, 1948. In paragraphs 14 and 15 the plaintiffs formulate the grounds for ejectment, ,namely, (1) that the alleged subletting by the first ,defendant to the second defendant was wrongful, illegal and in breach of the terms of the tenancy and 30 230 (2)that the plaintiffs required the premises reasonably and bona fide for the use and occupation of two of the beneficiaries. The plaintiffs prayed that both the defendants be ordered to vacate the premises and that both of them be ordered to pay to the plaintiffs compensation for the use and occupation of the premises at Rs. 370 per mouth from November 1, 1947, till delivery of vacant possession. The appellant points out that on the face of the plaint the plaintiffs declined to recognise it as a lawful occupant as subtenant or otherwise and treated it as a mere trespasser having no lawful claim to the demised flat and, therefore, the suit, in so far as it was one between the plaintiffs and the appellant (the second defendant), cannot be said to be a suit between a landlord and a tenant and that the suit in so far as it claimed compensation from him cannot be said to be a suit for recovery of rent. The last part of the contention need not detain us long, for the suit was undoubtedly one for possession of the flat and the claim for compensation was only incidental and ancillary to to the claim for possession. Jurisdiction to entertain a suit for possession will empower the Court not only to pass a decree for possession but also to give directions for payment of mesne profits until delivery of possession. Such direction for payment of mesne profits is usually an integral part of the decree for possession. The only question for consideration, therefore, is whether the suit was one between a landlord and a tenant. The respondents (the plaintiffs) do not contend that the appellant (the second defendant) is a 'tenant" as defined in section 5 (11) of the Act. The appellant, on the other hand, does not and, indeed, cannot ;deny that, as between the plaintiffs and the first defendant, the suit is one between a landlord and a tenant and as such the Small Causes Court is, under section 28 of the Act, the only Court competent to entertain the suit. Section 28 confers jurisdiction on the Court of Small Causes not only to entertain and try any suit or proceeding between a landlord and a 231 tenant relating to the recovery of rent or possession of the premises but also "to deal with any claim or question arising out of this Act or any of its provisions. There is no reason to hold that ' "any claim or question" must necessarily be one between the landlord and the tenant. In any case, once there is a suit between a landlord and a tenant relating to the recovery of rent or possession of the premises the Small Causes Court acquires the jurisdiction not only to entertain that suit but also "to deal with any claim or question arising out of the Act or any of its pro visions" which may properly be raised in such a suit. The plaintiffs in this suit claimed that the purported subletting by the first defendant to the second defendant was unlawful both because it was a breach of the terms of the tenancy and also because as the statutory tenant after the determination of the contractual tenancy the first defendant was not entitled to create a sub tenancy and they questioned the validity of the second defendant 's claim to any protection under the Act. The claim or question as to the respective rights of the plaintiffs and the second defendant thus raised in the plaint certaintly arises out of the Act and the language of section 28 appears to be wide enough to cover the same. Apart from that section, under the ordinary law a decree for possession passed against a tenant in a suit for ejectment is binding on a person claiming title under or through that tenant and is executable against such person whether or not he was or was not a party to the suit. The non joinder of such a person does not render the decree any the less binding on him. It is in this sense, therefore, that he is not a necessary party to an ejectment suit against the tenant. It is, however, recognised that such a person is, nevertheless, a proper party to the suit in order that the question whether the lease has been properly determined and the landlord plaintiff is entitled to recover possession of the premises may be decided in his presence so that he may have the opportunity to see that there is no collusion between the landlord 232 and the tenant under or through whom he claims and to seek protection under the Act, if he is entitled to ' any. Such a person may be joined as a party to the suit from the beginning of the suit or at any later stage of the suit if the Court thinks fit to do so. The joinder of such a proper party cannot alter the character of the suit and does not make the suit any the less a suit between the landlord and the tenant or take it out of section 28 of the Act. To hold otherwise will be to encourage multiplicity of suits which will result in no end of inconvenience and confusion. In our view the decision and the reasoning of Chagla C.J. are substantially correct and this appeal must fail. We, therefore, dismiss the appeal with costs. Appeal dismissed. Agent for respondents Nos. 1, 2 & 3: B. A. Gagrat.

IN-Abs

Where a lease of a flat situated within the City of Bombay contained a term that the tenant shall not assign, sub let or re let the premises, without the previous consent of the landlord and the tenant, in contravention of this term sub let the flat, and the landlord instituted a suit against him and the sub tenant in the Court of Small Causes Bombay, for possession and compensation for use and occupation of the premises, and the sub lessee contended that the Court of Small Causes had no jurisdiction so far as he was concerned inasmuch as the suit was not one between a landlord and a tenant nor, one for rent within section 28 of the Bombay Rents, Hotel and Lodging Rates Control Act, 1947: Hold, (i) that the suit was clearly one for possession and the claim for compensation wag merely an incidental claim; (ii) section 28 of the Act conferred jurisdiction on the Court of Small Causes not only to entertain and try any suit or proceeding between a landlord and tenant for recovery of rent or possession, but also "to deal with any claim or question arising out of this Act or 'any of its provisions" ' and section 28 was thus wide enough to cover the question raised as between the plaintiff and the sub lessee ; (iii) in any event, though the sub lessee was not a necessary party to the suit he was a proper party, and the joinder of such a party cannot alter the nature of the suit and make it any the less a suit between a landlord and tenant or take it out of section 28.

Appeals Nos. 237 and 238 of 1960. Appeals by special leave from the judgment and order dated July 8, 1958, of the Patna High Court, in Misc. Cases Nos. 713 and 819 of 1958. A. V. Viswanatha Sastri, section R. Banerjee and section C. Mazumdar, for the appellants. section P. Varma, for the respondents. April 19. The judgment of section K. Das, J. L. Kapur, M. Hidayatullah and T. L. Venkatarama AIyar, JJ., was delivered by Venkatarama Aiyar, J. J. C. Shah, J., delivered a separate judgment. VENKATARAMA AIYAR, J. Both these appeals arise out of the same facts and involve the determination of the same question, and this judgment will govern both of them. The appellant in Civil Appeal No. 237 of 1960 is a company registered at Recklinghausen near Dusseldorf in West Germany, and carries on business in the manufacture and erection of plants and machinery. On December 19, 1953, it entered into a contract with a company called Sinclair Fertilisers and Chemicals (Private) Ltd., hereinafter referred to as the Owner, for assembling and, installing machinery, plants and 84 accessories for a coke oven battery and by products plant at Sindri in the State of Bihar for an all inclusive price of Rs. 2,31,50,000. The agreement provides that the appellants were to supply all the materials and labour required for the execution of the works, and that the performance was to be split up into two categories, the German section and the Indian section, that the German section was to consist of deliveries of materials from Germany Free on Board 'European ports, cost of technical drawings and services of German specialists, and that the Indian section was to consist of supply of Indian materials and charges for Indian labour and services to be performed in India. The German section was to be paid out of the lump sum stated above a sum of Rs. 1,31,50,000 in pounds sterling in London on account of the appellant, and the Indian section was to be paid the balance of Rs. 1,00,00,000 in Indian currency in this country, and payments were to be made in instalments related to the progress of the contract. Subsequent to the agreement, the appellant entrusted the work of the Indian section to an Indian company called the Coke Oven Construction Company (Private) Ltd., and the Owner having accepted this arrangement the said company has become the assignee of the contract in so far as it relates to the execution of the Indian section thereof. It is this company that is the appellant in Civil Appeal No. 238 of 1960. The execution of the works was completed in 1955 as provided in the agreement, and the amounts due thereunder were also paid to the two appellants. The present dispute between the parties is as to whether the appellants in the two appeals are liable to pay sales tax on the value of the materials used by them in the execution of the works under the contract. It will be convenient now to refer to the relevant provisions of the Bihar Sales Tax Act (Bihar Act No. XXX of 1947), hereinafter referred to as the Act. Section2(g)of the Act defines 'sale ' as including a transfer of property in goods involved in the execution. of contract. 'Contract ' is defined in section 2(b) as meaning any agreement for carrying out for cash or 85 valuable consideration, the construction, fitting out, improvement or repair of any building, road, bridge or other immovable property; and 'goods ' are defined in section 2(d) as including "all materials, articles and commodities, whether or not to be used in the construction, fitting out, improvement or repair of immovable property." 'Sale price ' is defined in section 2(h)(ii) as meaning the amount payable to a dealer as valuable consideration for the carrying out of any contract, less such portion as may be prescribed, of such amount representing the usual proportion of the cost of labour to the cost of materials used in carrying out such contract. 'Dealer ' is defined in section 2(c) as meaning any person who sells or supplies any goods including goods sold or supplied in the execution of a contract. Section 2(1) defines 'turnover ' as meaning the aggregate of the amounts of sale prices received and receivable by a dealer in respect of sale or supply of goods or carrying out of any contract, effected or made during a given period. Section 4 is the charging section, and it provides that every dealer whose gross turnover during the accounting period exceeded Rs. 10,000 shall be liable to pay tax on sales which take place in Bihar, and section 5 provides that the "tax payable by a dealer under this Act shall be levied on his taxable turnover at such rate or rates and subject, to such restrictions and conditions as may be laid down from year to year by an annual Bihar Finance, Act. " The Bihar Finance Act defines 'taxable turnover ' as meaning that part of the dealer 's gross turnover on sales which have taken place in Bihar during any period subject to certain deductions. Section 9(1) of the Act provides that "No dealer shall, while being liable under section 4 to pay tax under this Act, carry on business as a dealer unless he has been registered under this Act and possesses a registration certificate". Section 13(5) of the Act under which the present proceedings have been initiated is as follows: " If upon information which has come into his possession, the Commissioner is satisfied that any dealer has been liable to pay tax under this Act in respect of any period and has nevertheless wilfully 86 failed to apply for registration, the Commissioner shall, after giving the dealer a reasonable opportunity of being heard, assess, to the best of his judgment, the amount of tax, if any due, from the dealer in respect of such period and subsequent periods and the Commissioner may direct that the dealer shall pay, by way of penalty, in addition to the amount so assessed, a sum not exceeding one and half times that amount. " The gist of the above provisions is that in a contract for execution of works, the materials used therein are treated as sold by the contractor and their value is taken as the sale price liable to be taxed, and there are provisions for determining that value. Acting on these provisions, the Superintendent of Sales Tax, Dhanbad, the third respondent herein, issued on March 20, 1956, a notice to the appellant in Civil Appeal No. 237 of 1960, under section 13 of the Act, stating that on information which had come to his possession he was satisfied that the appellant was liable to pay tax for the periods 1952 53, 1953 54 and 1954 55, that it had wilfully failed to register itself under section 9 of the Act, and it was directed to show cause why penalty should not be imposed. In response to this notice, the appellant appeared before the third res pondent and represented that it had only supplied materials in execution of works contract, that there was no sale of any goods or materials by it, and that the proceedings for taxing this supply of materials as if they had been sold were illegal. Disagreeing with this contention, the third respondent directed the appellant to produce all its books, accounts and documents for purposes of assessment, and this is quite understandable, as it was his duty to levy tax in accordance with the provisions of the Act. Thereupon, the appellant filed petitions before the High Court of Patna under articles 226 and 227 of the Constitution for the issue of appropriate writs for quashing the proceedings before the third respondent and for prohibiting further proceedings under the Act as being wholly incompetent. , The grounds put forward in support of the petition were firstly that the State 87 legislature having authority to enact a law imposing a tax on the sale of goods was not competent to tax what under the law was not a sale, and that as the supply of materials in the course of the execution of works, was not in law a sale of those goods, a tax on such supply was unauthorized; and secondly that, even if there was a sale of materials, that was in the course of import from Germany, and a tax thereon was repugnant to article 286(1)(b) of the Constitution. After taking over the Indian section of the contract, the appellant in Civil Appeal No. 238 of 1960 had registered itself on May 11, 1953, as a dealer under section 9 of the Act and was submitting periodical returns as required by the certificate and the Act. But its contention at all times has been that it is not liable to pay sales tax on the transactions in question, as there were only supplies of materials in execution of works contract and that they did not amount to sale of goods. This contention was overruled by the Superintendent of Sales Tax, Dhanbad, the third respondent herein, and the appellant was assessed to sales tax successively for the years 1952 53 and 195354. While proceedings by way of appeal or revision by the appellant against these orders of assessment were pending, the third respondent issued further notices for assessment of tax for the years 1954 55 and 1955 56, and directed the appellant to produce all its books and accounts for the above period. Thereupon the appellant filed in the High Court of Patna, petitions under articles 226 and 227 of the Constitution, similar to those filed by the appellant in Civil Appeal No. 237 of 1960, for issue of appropriate writs to quash the orders of the Sales Tax authorities on the ground that the provisions of the Act, in so far as they sought to tax supply of materials in works contracts, were ultra vires. By the time the above petitions came up for hearing, the decision of this Court in The State of Madras vs Gannon Dunkerley & Co. (Madras) Ltd. (1), had been reported, wherein it was held that the expression "sale of goods" in Entry 48 in List II of Sch. VII to (1) ; 88 the Government of India Act, 1935, corresponding to Entry 54 in List 11 of Sch. VII to the Constitution of India had the same meaning that it has in the , that where there is a building contract, under which specified work is to be executed for a lump sum, there is no contract of sale, as such, of materials used in the works, and that accordingly, a tax on the supply of those materials treating it as a sale was ultra vires the powers of the State Legislature under Entry 48 in List 11 of Sch. VII to the Government of India Act, 1935. The learned Judges were of opinion that this decision was distinguishable because there was a term in the agreement before them that the property in the materials was to pass to the owner as soon as they were brought on the site. Dealing next with the contention of the present appellants that, as there was no agreement for the payment of price for the materials, as such, they could not be held to have been sold, the learned Judges noticed without comment the contention of the Government Pleader for the respondents, based on section 9 of the , that even though no price had been fixed for the materials, that could be determined from the account books and invoices and the course of dealings between the parties. The learned Judges then proceeded to observe: "I wish, however, to state that I do not express any concluded opinion on the question whether there is sale of materials liable to be taxed in the present case. The facts have not been fully investigated by the sales tax authorities and the petitioners have not furnished all the account books and documents and other relevant information for the purpose of deciding this question. It would be open to the sales tax authorities to investigate the facts and Upon proper construction of the contract come to. the finding whether and if so to what extent, the petitioners are liable to pay sales tax. I have no doubt that in deciding this question the sales tax authorities will keep in view the principles laid down by the Supreme Court in State of Madras versus Gannon Dunkerley and Company (Madras) Limited (9 Sales Tax Cases 353)". 89 With these observations the learned Judges dismissed the petitions. It is against this judgment that the present appeals by special leave are directed. The first question that arises for our decision is ,whether on the construction of the agreement dated December 19,1953, it could be held that there was a sale by the appellants of the materials used in the construction works, apart from the execution of those works. In The State of Madras vs Gannon Dunkerley & Co. (Madras) Ltd. (1), after stating that building contracts could assume several forms, this Court observed as follows: "It is possible that the parties might enter into distinct and separate contracts, one for the transfer of materials for money consideration and other for the payment of remuneration for services and for work done. In such a case there are really two agreements, though there is a single instrument embodying them and the power of the State to separate the agreement of sale from the agreement to do work and render service and to impose a tax thereon, cannot be questioned and will stand untouched by the present judgment. " The point for determination, therefore, is whether on its true construction, the contract in question is a Combination of two distinct agreements, one to sell materials and the other to supply labour and services, or whether it, is only one agreement entire and indivisible for execution of the works. We will now refer to the relevant portion of the agreement dated December 19, 1953. The preamble to the agreement states that the Owner had agreed with the contractor that the latter was to set up a complete coke oven battery ready for production as well as by products plants according to specifications given therein, that the installation was to be made at a site selected by the Owner and that the contractor was to "erect and construct buildings, plants and machineries and deliver and supply accessories and articles from Germany and also locally from India and render services fully (1) ; 12 90 described in the First Schedule. . for an all inclu sive price of Rs. 2,31,50,000." Then cl. I provides that the contractor shall execute and complete the works mentioned in the Schedule, and el. 2 that the Owner shall pay to the contractor for executing the contract the sum of Rs. 2,31,50,000. Clause 4 requires the contractor to "provide all labour, materials, machinery, plant, tools, tackles and other implements for performing the works in a workman like manner. " Under cl. 11, the contractor guarantees "to accomplish full production within 22 months from the 15th September, 1952" and further undertakes to fulfill the guarantees prescribed in Schedule II to the agreement "to the satisfaction of the Owner within a period of three months from the date of accomplishment of full production. " Clause 28 provides that in case the contractor fails or is unable to complete the works within the period, the Owner might take possession of the works and of the materials, "which will become the property of the owner," and complete the works and deduct from the agreed price the expenses incurred in such completion. It is clear from the above clauses that the subject matter of the agreement was the installation of the coke oven battery and it accessories, that the sum of Rs. 2,31,50,000 was the price agreed to be paid for the execution of those works, and that there was no agreement for the sale of materials, as such, by the appellants to the Owner. In other words, the agreement in question is a contract entire and indivisible for the construction of specified works for a lump sum and not a contract of sale of materials as such. Now the contention that found favour with the learned Judges in the High Court was that there was in the contract a clause that the property in the, materials was to pass to the owner when they are brought on the site, and that, in effect, amounted to a sale of those materials by the appellant to the Owner. The clause in question is as follows: "15 (ii). All materials and plant brought by the Contractor upon the site under the German and Indian Sections in connection with the construction 91 of the Coke Oven and by products Plant shall immediately they are brought upon the site become the Owner 's property and the same shall not on any account whatsoever be removed or taken away by the Contractor or by any other person without the Owner 's prior authority in writing. Such of them as during the progress of the works will be rejected by the Owner in accordance with the terms agreed upon between the Contractor and the Owner in this respect shall on such rejection, cease to be the Owner 's property. . The Owner shall not be liable for any loss or damage which may happen to or in respect of such materials and plant by the same being lost, stolen or injured or destroyed by fire, tempest or otherwise for which the contractor will be liable. . The Owner agrees that after the Coke Oven and by products Plants have been constructed according to the agreed terms, the Contractor will be entitled to remove from the site their tools, tackles, machines, packing materials, protection roof and other materials as are surplus to the requirements of the normal operation of the Coke Oven and by products Plant provided that no claim for increased cost is made in respect of anything so removed. " In Peare Lal Hagri Singh vs The State of Punjab (1), a building contract contained the following clause: "All stores and materials brought to the Site shall become and remain the, property of Government and shall not be removed off the Site without the prior written approval of the G. E. But whenever the works are finally completed, the contractor shall at his own expense forthwith remove from the Site all surplus stores and materials originally sup plied by him and upon such removal, the same shall revest in and become the property of the Contractor." Discussing the question whether by reason of this clause there was a Contract of sale of the materials by the Contractor, distinct from the works contract, this Court held that its object was only to ensure that (1) ; 92 materials of the right sort were used in the construction and not to constitute a contract of purchase of the materials separatism. In the present case, el. 15 is even clearer that no sale of materials, as such, was intended, because it expressly provides that if they were destroyed by fire, tempest or otherwise, the loss would fall not on the owner, which must be the result if the property is taken to have been absolutely transferred to it, but on the contractor. The argument based on section 9 of the is, in our opinion, equally unsound. What that section enacts is that where there is a contract of sale of movable but the price is not mentioned, it has to be fixed either in the manner provided in the agreement or by having regard to the course of dealings between the parties, and where that is not possible, the buyer has to pay the seller a reasonable price. But the section presupposes that there is a Contract of sale of goods, and, as held in The State of Madras V. Gannon Dunkerley & Co. (Madras) Ltd. (1), such a contract requires that there must have been an agreement between the parties for the sale of the very goods in which eventually property passes. If, as held by us, cl. 15 does not embody an agreement for the sale of materials as such, there is no contract of sale with respect to them and section 9 of the can have no application. The contention, therefore, that el. 15 of the agreement could be read as amounting to a contract of sale of materials, and that the price therefor could be fixed as provided in section 9 of the by recourse to the account books of the appellants or the invoices or the course of dealings between them and the owner, must be rejected as untenable. It follows that the agreement dated December 19, 1953, being a contract for the construction of works, one and indivisible, the respondents have no right to impose a tax on the mate rials supplied in execution of that contract on the footing that such supply is a sale. It is next contended for the respondents that, whatever the merits of the contentions based on the construction of the contract, the proper forum to agitate (1) ; 93 them would be the authorities constituted under the Act to hear and decide disputes relating to assessment of tax, that it was open to the appellants to satisfy those authorities that there have been no sales such as are liable to be taxed, that indeed they were bound to pursue the remedies under the Act before they could invoke the jurisdiction of the court under article 226 and that the learned Judges of the High Court were, therefore, right in declining to entertain the present petitions. It is true that if a statute sets up a Tribunal and confides to it jurisdiction over certain matters and if a proceeding is properly taken before it in respect of such matters, the High Court will not, in the exercise of its extraordinary jurisdiction under article 226, issue a prerogative writ so as to remove the proceedings out of the hands of the Tribunal or interfere with their course before it. But it is equally well settled that, when proceedings are taken before a Tribunal under a provision of law, which is ultra vires, it is open to a party aggrieved thereby to move the court under article 226 for issuing appropriate writs for quashing them on the ground that they are incompetent, without his being obliged to wait until those proceedings run their full course. That has been held by this court in The State of Bombay vs The United Motors (India) Ltd. (1), Himmatlal Harilal Mehta vs The State of Madhya Pradesh (2). and The Bengal Immunity Company Limited vs The State of Bihar (3). The position that emerges is that, if the proceedings before the Sales Tax Officer are founded on the provisions of the Act, which authorizes the levy of the tax on the supply of materials in construction contracts, then they must in view of the decision in The State of Madras vs Gannon Dunkerly & Co. (Madras) Lid. (4), be held to be incompetent and quashed. But if the proceedings relate to any extent to sales otherwise than under the contract, then the enquiry with respect to them must proceed (1) ; , 1077. (2) ; , 1127. (3) , 617 619, 764 766. (4) ; 94 before the authorities under the Act and the application under article 226 must fail. We must now examine the true scope of the proceedings before the Sales Tax Officer in the light of the above principles. We start with this that the Act contains provisions imposing a tax on the supply of materials under a construction contract. The appellants were indisputably engaged in construction works under the agreement dated December 19, 1953, and it is not suggested that they were carrying on any independent business as dealers in the State of Bihar. Presumably, therefore, when the sales tax authorities took proceedings against them, it was in respect of materials supplied by them under their contract dated December 19, 1953. When the appellants, in response to the notice issued by the third respondent, contested their liability to be taxed, it was on the ground that the supplies of materials under the contract were not sales. When the appellants next moved the court tinder article 226 for quashing the proceedings, they urged that the provisions of the Act, in so far as they purported to impose a tax on the materials supplied in the performance of the contract, as if they were sold, were ultra vires. If the respondents sought to tax the appellants on the footing that sales of materials were effected outside the contract, it was their duty to have put that case forward in answer to the petition. They did nothing of the kind. They did not file even a counter statement. At the time of the argument, when faced with the decision of this Court in the case of The State of Madras vs Gannon Dunkerley & Co. (Madras) Ltd. (1), their entire case was that the agreement between the parties should be construed as involving a sale of materials, and that their value could be ascertained from the invoices, account books and the course of dealings between the parties. No contention was urged that there were sales of materials which fell outside the agreement between the appellants and the Owner. The learned Judges of the High Court in dismissing the petitions made it clear that the investigation before the sales (1) ; 95 tax authorities must be as regards their liability to pay sales tax "upon proper construction of the contract. " In this Court also, the respondents seek in their statement to maintain the liability of the appellants only on the basis of the contract, reliance being placed on cl. 15 already referred to and on section 9 of the . There is no claim that the appellants are liable on the basis of sales falling outside the agreement. It was stated before us for the appellants, and not contradicted by the respondents, that the Sindri Fertilisers and Chemicals (Private) Ltd., is a company controlled by the Government. If that is so, the respondents were at all times in possession of facts which would have shown whether the appellants entered into any transaction decors the agreement, and it is significant that at no stage have they alleged any such facts. We are satisfied that the proceedings have at all stages gone on the footing that the liability of the appellants arose under the contract and not otherwise. In that view, we must hold, following the decision in The State of Madras vs Gannon Dunkerley & Co. (Madras) Ltd. (1) that the proceedings taken by the respondents for imposing sales tax on the supplies of materials by the appellants, pursuant to the contract dated December 19, 1953, are illegal and must be quashed. In the result, the appeals are allowed and appropriate writs as prayed for by the appellants will be issued. The appellants are entitled to their costs throughout. SHAH, J. In my view these appeals must fail. The appellants claim that they are not liable to be taxed in respect of the transaction dated December 19, 1953, because it is not a sale within the meaning of the Bihar Sales Tax Act, 19 of 1947, but is a contract to assemble and install machinery, plants and accessories of a coke oven battery and other plants which under the principle of the decision of this Court in The State of Madras vs Gannon Dunkerley & Co. (Madras) Ltd. (1) is not subject to sales tax. The Act defines "sale" as meaning omitting parts not material any transfer of property in goods for (1) ; 96 cash or deferred payment or other valuable consideration, including a transfer of property in goods involved in the execution of contract. "Contract" is defined as meaning any agreement for carrying out for cash or deferred payment or other valuable consideration, the construction, fitting out, improvement or repair of any building, road, bridge or other immovable property. The expression "goods" means all kinds of movable property other than actionable claims, stocks, shares or securities and includes all materials, articles and commodities whether or not to be used in the construction, fitting out, improvement or repair of immovable property. "Sale price" means the amount payable to a dealer as valuable consideration for (1) the sale or supply of any goods, less any sum allowed as cash discount according to ordinary trade practice, but including any sum charged for anything done by the dealer in respect of the goods at the time of, or before, delivery thereof, other than the cost of freight or delivery or the cost of in stallation when such cost is separately charged; or (ii) the carrying out of any contract, less such portions as may be prescribed , of such amount, representing the usual proportion of the cost of labour to the cost of materials used in carrying out such contract. These definitions in so far as they seek to treat goods supplied or used in the execution of a works or construction contract, as sold and liable to sales tax under the Act, must, on the decision of this Court in Gannon Dunkerley 's case (1) be regarded as beyond the legislative competence of the State Legislature. In Gannon Dunkerley 's case (1), this Court held that in a building contract, the contractor constructs the building according to the specifications contained in the agreement and in consideration therefor receives payment as provided therein, and in such an agreement, there is neither a contract to sell the materials used in the construction, nor does property pass therein as moveables, and accordingly in a building contract which is one, entire and indivisible, there is no sale of goods and it is not within the competence of the Provincial Legislature under Entry 48 in List 11 in (1) ; 97 Sch. VII of the Government of India Act, 1935, to impose a tax on the supply of the materials used in such a contract treating it as a sale. Relying upon the decision of this court in Gannon Dunkerley 's case (1), the appellants contend that the amount received by them under the contract dated December 19, 1953, is not liable to be assessed to sales tax. But the question whether the contract is a pure works contract or a composite contract has never been investi gated. Undoubtedly, the formal document evidencing the contract suggests, prima facie, that it is a works contract, but in assessing liability to tax, the taxing authority is not restricted merely to the letter of the document: he has to enquire into the true nature of the transaction on all the relevant materials and to ascertain whether it partakes of the nature of the transaction which the statute renders taxable. He is, in ascertaining the true nature of the contract, also entitled to consider how the contract"was performed. The Act entrusts power to ascertain the facts on which the liability to tax depends to the taxing authorities and in that behalf, the Act is exhaustive in scope and content. The appellants in approaching the High Court by petitions under articles 226 and 227 of the Constitution sought to eliminate the entire procedure and machinery set up by the Act for ascertaining facts on which the liability to tax depends. I strongly deprecate the practice of the taxpayer being permitted to invoke the jurisdiction of the High Court to issue high prerogative writs on certain assumed facts facts the truth of which has never been subjected to scrutiny in the only manner in which the law provides they should be scrutinised. The power to assess the facts on which the decision as to the true nature of the taxable transaction depends by the statute lies solely with the taxing authorities: it does not lie with any other body or tri bunal. Invoking the jurisdiction of the High Court to adjudicate upon the facts, directly or indirectly, on which the liability to tax depends, in my view, (1) ; 13 98 amounts to inviting the High Court to exercise jurisdiction which it does not possess. This is however not to say that the jurisdiction of the High Court to issue a writ of prohibition restraining the levy of tax under a statute can never be entertained. If, for instance, the statute is beyond the legislative competence of the legislature or defies a constitutional restriction or infringes a fundamental right or the taxing authority arrogates to himself powers which he does not possess or attempts to levy tax more than once in respect of the same transaction when it is not permitted by the statute, or the taxing authority threatens to recover tax on an interpretation of a statutory provision imposing tax which is on the face of the statute erroneous, jurisdiction to issue writ of prohibition from the High Court may properly be invoked. But the High Court cannot be asked to ascertain disputed facts bearing upon the taxability of a transaction, because that jurisdiction is vested elsewhere. The contract in question is principally a works contract. The preamble states that the appellants had agreed with the Sindri Fertilizers and Chemicals Ltd. to set up a complete coke oven battery ready for production as well as by products plant on the site specified and to construct buildings, plants and machineries and deliver and supply accessories and articles and to render services fully described in the first schedule, subject to the guarantees to be fulfilled on the part of the appellants and terms and conditions mutually agreed and settled and mentioned in the second schedule for an all inclusive price in accordance with the preliminary site plan. It is manifest from the preamble that there is a contract for the construction of a coke oven battery and by products together with the plant, and also to deliver and supply accessories and articles. Undoubtedly, the price agreed to be paid is an "inclusive price" in respect of the entire contract, but that does not affect the nature of the contract to deliver and supply accessories and articles. The appellants have undertaken, subject to the terms and conditions mentioned in the contract, to execute and complete the works mentioned in the first schedule. 99 The contract in so far as it relates to the installation of plant and construction of building was a works contract and notwithstanding the definition of "sale" and "contract" in the Act, was not taxable but the contract contemplates delivery and supply by the appellant of accessories and articles. Even if this delivery and supply of accessories and articles is incidental to the works contract, it cannot be assumed without investigation that it was not a part of a transaction of sale liable to tax. The appellants asked the High Court to assume that the contract in question was a pure works contract, but the High Court declined to make that assumption. Ramaswami, C. J., in dealing with that plea observed: "I wish, however to state that I do not express any concluded opinion on the question whether there is sale of materials liable to be taxed in the present case. The facts have not been fully investigated by the sales tax authorities and the petitioners have not furnished all the account books and documents and other relevant information for the purpose of deciding this question. It would be open to the sales tax authorities to investigate the facts and upon proper construction of the contract come to the finding whether and if so to what extent, the petitioners are liable to pay sales tax," In my view, the learned Chief Justice was right in so approaching the question. The sales tax authorities have made no assessment; they merely issued a notice purporting to do so under section 13(5) of the Act and required the appellants to produce their books of account and records for ascertaining whether the transaction or any part thereof was in the nature of sale of goods. The sales tax authorities had jurisdiction to do so and by merely looking at the terms of the written contract and without any investigation as to the true nature of the transaction the High Court could not decide whether the contract performed was a pure works or construction contract or was a composite contract. It was urged that in the petition filed by the appellants before the High Court, an affidavit 100 in rejoinder challenging the correctness of the averment made in the petition that it was a pure works contract was not filed by the taxing authorities and therefore the High Court was bound to decide the dispute on the footing set up by the appellants. But the taxing authorities could not be expected without investigation to assert a state of facts which was not and could not be within their knowledge, and their statutory authority could not, because of their failure to so assert, be nullified. As I have already observed, the investigation of facts on the question of the liability to pay tax has to be made by the taxing authorities in whom that jurisdiction is vested. Before the facts on which the liability to tax depends are ascertained, the High Court could not be asked to assume that the transaction was in the nature of a pure works contract and to decide the question as to the liability of the appellants on that footing. There is no ground for assuming that the taxing authorities will not give effect to the decision of this court in Gannon Dunkerley 's case (1) after the true nature of the transaction is ascertained. In my view, the High Court was right in declining to issue the writ prayed for. By COURT: In accordance with the opinion of the majority, the appeals are allowed and it is directed that appropriate writs as prayed be issued. The appellants are also entitled to their costs throughout. Appeals allowed.

IN-Abs

On December 19, 1953, the appellant, a company registered in West Germany, entered into a contract with a company in India to set up a complete coke oven battery ready for production as well as by products plants at Sindri in the State of Bihar, agreeing to erect and construct buildings, plants and machinery and deliver and supply accessories and articles from Germany and also locally from India, and render services fully described in the First Schedule, for an all inclusive price of Rs. 2,31,50,000. The contract provided that in case the contractor failed to complete the works within the period specified therein the Indian company might take possession of the works and the materials which would become its property and complete the works and deduct from the agreed price the expenses incurred in such completion. Under cl. 15(ii) of the contract all materials brought by the contractor upon the site shall immediately become the company 's property, but such of them as during the progress of the works. were rejected by the company ceased to be Company 's property, and after the coke oven and byproducts plants had been constructed the contractor was entitled to remove the surplus materials. The clause further provided that the company shall not be liable for any loss if the materials were destroyed by fire or otherwise. Under the Bihar Sales Tax Act, 1947, in a contract for, execution of works, the materials used 11 82 therein are treated as sold by the contractors and their value is taken as the sale price liable to be taxed. The execution of the works was completed in 1955 as provided in the agreement and on March 20, 1956, the sales tax authorities issued a notice to the appellant to the effect that it was liable to pay tax for the three years 1952 to 1955, under the provisions of the Act. The appellant represented that it had only supplied materials in execution of works contract, that there was no sale of any goods or materials by it and that the proceedings for taxing this supply of materials as if they had been sold were illegal. The sales tax authorities having proceeded to take further steps to levy the tax in spite of its representations, the appellant filed a petition before the High Court of Patna under articles 226 and 227 of the Constitution of India for quashing the proceedings. The High Court took the view that under cl. 15(ii) of the contract in question the property in the materials was to pass to the Indian company as soon as they were brought on the site, and that, in effect, amounted to a sale of those materials by the appellant to the company. The Court, however, dismissed the petition on the ground that the facts had not yet been fully investigated and that it would be open to the sales tax authorities to investigate the facts and upon the proper construction of the contract come to the finding whether and if so to what extent, the appellant was liable to pay sales tax. Held (Shah, J., dissenting): (1) that on its proper construction the agreement dated December 19, 1953, was a contract entire and indivisible for the construction of specified works for a lump sum and not a contract of sale of materials as such and that the sales tax authorities had no right to impose a tax on the materials supplied in execution of that contract on the footing that such supply was a sale. The State of Madras vs Gannon Dunkerley & Co. (Madras) Ltd., ; and Peare Lal Hari Singh vs The State of Punjab, ; , followed. (2) that where proceedings are taken before a tribunal under a provision of law, which is ultra vires, it is open to a party aggrieved thereby to move the court under article 226 for issuing appropriate writs for quashing them on the ground that they are incompetent, without his being obliged to wait until those proceedings run their full course. The State of Bombay vs The United Motors (India) Ltd., ; , Himmatlal Harilal Mehta vs State of Madhya Pradesh, ; and The Bengal Immunity Company Ltd. vs State of Bihar, , relied on. In the present case, the sales tax authorities sought to maintain the liability of the appellant to pay tax in respect of materials supplied by it only under the contract dated December 19, 953, and on the basis of the legality of the provisions 83 of the Bihar Sales Tax Act, 1947. Consequently, the proceedings taken by them must be held to be illegal and must be quashed. Per Shah, J. Under the agreement dated December 19, 1953, there was a contract for the construction of a coke oven battery and by products plant, and also to deliver and supply accessories and articles. Even if this delivery and supply was incidental to the works contract, it could not be assumed without investigation that it was not a part of a transaction of sale liable to tax. The investigation of facts on the question of liability to pay tax has to be made by the taxing authorities in whom that jurisdiction is vested. Before these facts are ascertained, by merely looking at the terms of the written contract and without any investigation as to the true nature of the transaction, the High Court could not decide whether the contract performed was a pure works or construction contract or was a composite contract. The High Court was, therefore, right in declining to issue the writ prayed for.

Appeal No. 340 of 1958. Appeal by special leave from the Judgment and Order dated July 3, 1953, of the Punjab High Court in Civil Writ Application No. 256 of 1952. Jwala Parshad Chopra and J. K. Hiranandani, for the appellants. Nanak Chand, R. H. Dhebar and T. M. Sen, for respondents Nos. 1 to 3. 1961. April 21. DAYAL, J. This appeal, by special leave, is against the order of the Punjab High Court 153 dismissing the petition of the appellants under article 226 of the Constitution praying for quashing the orders of the Custodian General, dated June 17, 1952. The appellants and respondents Nos. 4 and 5 are, residents of village Baland, Tehsil and District Rohtak, and are members of the body of proprietors of that village. The village Baland is divided between three estates. The plot in suit is in the estate known as 'Barsan '. One Fakira, a mendicant and a non proprietor, had his house on the plot in suit. In January, 1950, the Custodian of Evacuee Property issued a notice under section 7 of the Administration of Evacuee Property Ordinance No. XXVII of 1949, stating that the appellants were in unauthorised possession of the house of Fakira, a Muslim evacuee, and that the should either vacate the house or show cause to the contrary. The appellants filed their objections to the notice. The Deputy Custodian of Evacuee Property, by his order dated September 3, 1950, rejected the objections raised by the appellants and declared the house to be 'evacuee property '. The Deputy Custodian passed this order after he got an enquiry made through the Revenue Assistant (Rehabilitation). The appel lants went in appeal to the Additional Custodian, Evacuee Property, who got further enquiry made to ascertain whether Mumtaz, son of Fakira, evacuee, had been in occupation of the house up to the date of the migration of the Muslims as a result of the partition. This enquiry revealed that Mumtaz had continued to reside in the village Baland and that a son was born to him in July, 1947. The Additional Custodian therefore agreed with the report and the order of the Deputy Custodian that the property in suit was evacuee property. The appellants then filed a revision before the Custodian General. It was dismissed on June 17, 1952. The Custodian General observed that there was more than sufficient evidence to establish that Mumtaz continued to be in possession of the house in dispute up to July, 1947. Thereafter, the appellants filed a writ petition in the High Court challenging the legality of the order of the 20 154 Deputy Custodian on the grounds that the Deputy Custodian gave no notice or opportunity to them to meet the case and that the Custodian had no jurisdiction in the matter in view of the provisions of the wajibul arz according to which the house of a non proprietor, on his leaving the village, vested in the proprietory body. The learned Single Judge who heard the petition held that the provisions of the Administration of the Evacuee Property Act, 1950 (Act XXXI of 1950), had been complied with throughout and referred the question whether the site occupied by a non proprietor vested or not in the Custodian after the occupier had abandoned it, to a larger Bench in view of his opinion that the decision of another Single Judge in Joti Parshad vs Bhawani Lal required re consideration. The Division Bench then decided this question and held the right of a non proprietor to occupy a village site was a right in property, though it might not be an interest in property and that this right vested in the Custodian if the non proprietor left the country and became an evacuee. The writ petition was accordingly dismissed and it is against this order that this appeal has been filed. The sole question for determination in this case is whether Fakira had any such right in the property in suit which could vest in the Custodian on Fakira or his son Mumtaz becoming an evacuee. The case for the appellants is that Fakira had no such right which could vest in the Custodian both on account of the terms of the wajib ul arz and on account of his being a licensee. The respondents rely on section 18 of the to rebut this contention. It is necessary therefore to determine the scope of section IS of the Act. Section 18, as originally enacted, was substituted by section 8 of Act XI of 1953, which provided that the substituted section shall be deemed always to have been substituted for the original section. Thus the present section must be deemed to be the section existing from the commencement of this Act. Sub section (1) of section 18 is: "(1) Where the rights of an evacuee in any land 155 or in any house or other building consist or consisted of occupancy rights, nothing contained in any law for the time being in force or in any instrument having the force of law or in any decree or order of any court, shall extinguish or be deemed to have extinguished any such rights either on the tenant becoming an evacuee within the meaning of this Act or at any time thereafter so as to prevent such rights from vesting in the Custodian under the provision of this Act or to prevent the Custodian from exercising all or any of the powers conferred on him by this Act in respect of any such rights, and, notwithstanding anything containd in any such law, contract, instrument, decree, or order, neither the evacuee nor the Custodian, whether as an occupancy tenant or as a tenant for a certain time, monthly or otherwise, of any land or house or other building shall be liable to be ejected or be deemed to have become so liable on any ground whatsoever for any default of (a) the evacuee committed after he became an evacuee or within a period of one year immediately preceding the date of his becoming an evacuee; or (b) the Custodian." The expression 'occupancy rights ' has not been defined in the Act. It is these occupancy rights which are not extinguished in spite of the provisions to the contrary in any other law or in any instrument having the force of law or in any decree or order of the Court. The occasion when they will not be extinguished would be when a tenant becomes an 'evacuee ' within the meaning of the Act, or thereafter. It follows that sub section (1) of section 18 provided for the non extinguishment of those occupancy rights which would have been extinguished otherwise on the tenant 's becoming an evacuee and that therefore the person having such rights must be a tenant. If he is not a tenant, then the occasion contemplated by sub section (1) of section 18, for the application of its provisions, does not arise. This is further clear from the latter part of this subsection which provides that notwithstanding anything contained in any law etc. , neither the evacuee nor the Custodian, whether as an occupancy tenant or as a, 156 tenant for a certain time, shall be liable to be ejected or be deemed to have become so liable on any ground whatsoever for any default. This latter part also makes it clear that the persons contemplated by the section are the tenants, whether occupancy tenants or tenants for a certain time. We therefore hold that the provisions of section 18 apply to the occupancy rights of a tenant. The next question to determine is whether Fakira was a tenant of this house. It is clear that Fakira who resided in the house in suit, was not a tenant of it. He occupied the site and probably built the house himself on getting the necessary permission from the proprietors. With respect to non proprietors, the wajib ul arz of the village states: "No non proprietor can settle in the village or build a house without the consent of the owner of the estate. Whenever anybody settles, he obtains land or house from the proprietor of the same and he can live there so long as he pleases. Whenever he abandons the village, if the house belongs to the Shamlat ofit falls into the possession of that proprietorAbout the houses of non proprietors . there isno customary right to sell or mortgage residential houses, remove the material or build burnt brick house without the consent of the proprietor If any person dies heirless his house reverts to the possession of the proprietor of the estate in which it is situate. " The mendicants are mentioned as one of the types of non proprietors settled in the Shamlat of the estate. It is clear from these provisions that Fakira, a non proprietor, had no such right in the site as would make him a tenant of it. He just had a right to occupy it and build a house which was, however, heritable and transferable only with the consent of the proprietor. It follows, therefore, that the provisions of sub section (1) of section 18, do not apply to Fakira 's rights in the plot in suit and cannot therefore over ride the provisions of the wajib ul arz according to which his right to 157 reside in the house in suit came to an end when he abandoned the village on his migrating to Pakistan. Learned counsel for the respondent has further contended that apart from section 18 of the Act, Fakira 's right to residence in the house in suit will vest in the Custodian as his migrating from the village to Pakistan on partition does not amount to abandonment contemplated by the provisions of the wajib ul arz. It is submitted that the wajib ul arz contemplates voluntary abandonment and not abandonment under force. We find it difficult to accept this contention. The abandonment is voluntary, though the volition to abandon arises on account of circumstances over which Fakira bad no control. He left the village and migrated to Pakistan because he thought that to be the better thing to do. This point was also not taken before the High Court. Reliance is placed on the case reported as Associated Hotels of India vs R. N. Kapoor (1) for supporting the contention that Fakira was a lessee of the land in suit and not a licensee. We do not think this case supports the contention. The following propositions were laid down in that case for determining whether a document creates a licence or a lease: (1)To ascertain whether a document creates a licence or lease, the substance of the document must be preferred to the form. (2)The real test is the intention of the parties whether they intended to create a lease or a licence. (3) If the document creates an interest in the property, it is a lease, but, if it only permits another to make use of the property, of which the legal possession continues with the owner, it is a licence, and (4) If under the document a party gets exclusive possession of the property, prima facie, he is considered to be a tenant, but circumstances may be established which negative that intention to create a lease. The terms of the wajib ul arz, already mentioned, make it clear that no interest in the site on which Fakira was settled was given to Fakira by the proprietors of the village. He was just granted a heritable (1) [1060] 1 S.C.R. 368,385, 158 right to occupy it for residence. The house reverted to the possession of the proprietors if he died heirless. Learned counsel for the respondent has drawn our attention to the observation in the above case to the effect: "The right of the respondent to transfer his interest under the document, although with the consent of the appellants, is destructive of any theory of licence. " This observation does not help the respondent 's case because no interest was created in Fakira and therefore no question of his transferring that interest arises. The wajib ul arz only expresses this much, that there was no customary right to sell or mortgage residential houses, remove the material or build burnt brick houses without the consent of the proprietors. It does not say that the non proprietor can transfer his residential right to any one with or without the consent of the proprietor. We therefore do not agree with this contention. It has also been contended for the respondent that the licensee 's rights which Fakira bad, could vest in the Custodian, as they come within the meaning of the expression 'property '. Even if they do, those rights get extinguished in view of the provisions of the wajib ul arz and therefore there could be no vesting of those rights in the Custodian if the vesting of those rights is not prevented on account of the applicability of section 18 of the Act. We have already held that section 18 does not apply as Fakira was not a tenant. The expression 'evacuee property ' as it stood in the Act till its amendment in 1953, meant any property in which an evacuee had any right or interest, whether personal or as a trustee or as a beneficiary or in any other capacity and included any property etc. Fakira had no right in any capacity in the property in suit when the came into force in 1950, and therefore the property in suit could not have been 'evacuee property '. Lastly, we do not find any support in the provisions of the wajib ul arz or in any law for the observation in the judgment of the Court below: 159 "Were the evacuee to come back he could demand to take possession of the site, and so it cannot be said that the right has ceased to exist. The right ceases only if the occupier leaves the village permanently with no intention of returning,. It was nobody 's case that Fakira and his son had left the village temporarily and were to return. It was said in paragraph 5 of the written statement of respondents 1 to 3 that Fakira abandoned the house only in 1947 at the time of partition. The entire case was that Fakira had migrated to Pakistan and had abandoned the village. We are therefore of opinion that Fakira did not possess any such right in the land in suit which could vest in the Custodian and that therefore the property in suit is not 'evacuee property '. We therefore allow the appeal with costs throughout and, setting aside the order of the Court below, allow the petition and quash the order of the Custodian General dated June 17, 1952, declaring the property in suit to be evacuee property. Appeal allowed.

IN-Abs

The wajib ul arz of village Buland, teshil and district Rohtak, provided as follows: "No non proprietor can settle in the village or build a house without the consent of the owner of the estate. Whenever anybody settles, he obtains land or house from the proprietor of the same and he can live there so long as he pleases. Whenever he abandons the village, if the house belongs to the Shamlat of it falls into the possession of the proprietor About the houses of non proprietors there is no customary right to sell or mortgage residential houses, remove the material or build burnt brick house without the consent of the proprietor If any person dies heirless his house reverts 152 to the possession, of the proprietor of the estate in which it is situate", and mentioned the mendicants as a type of non proprietors settled in the village. One F, a Muslim belonging to that class, migrated to Pakistan. The appellants, who were proprietors, took possession of his dwelling house. The Custo dian of Evacuee Property claimed it as evacuee property. The appellants ' objection was finally dismissed by the Custodian General who held that the house was evacuee property and vested in the Custodian. The High Court dismissed the appellants ' petition under article 226 of the Constitution holding that the right of a non proprietor to occupy a village site was a right in property and vested in the Custodian when the non proprietor became an evacuee. In this Court, while the appellants relied on the wajib ul arz, on behalf of the respondents reliance was placed on section 18 of the . Held, that section 18(1) of the Administration of Evacuee Pro perty Act, 1950, contemplated tenants, whether occupancy tenants or tenants for a certain time and applied only to the occupancy rights of a tenant. Under the wajib ul arz, however, a non proprietor could have no such right in the site occupied by him as would make him a tenant of it. Section 18(1) of the Act, therefore, had no application and the house in question reverted to the proprietors under the provisions of the wajib ul arz when the non proprietor abandoned the village and migrated to Pakistan. It could not, therefore, vest in the Custodian. It was not correct to say that under the wajib ul arz that F 's interest in the house was that of a lessee. Associated Hotels of India vs R. N. Kapur, [1960] 1 S.C.R. 368, held inapplicable,

Appeal No. 454 of 1957. Appeal from the judgment and order dated December 16, 1954, of the Court of Judicial Commissioner, Ajmer in Civil Appeal No. 134 of 1952. A. V. Viswanatha Sastri, section N. Andley, Rameshwar Nath and P. L. Vohra, for the appellants. G. C. Kasliwal, Advocate General, Rajasthan, section K. Kapur and T. M. Sen, for the respondent. 325 1961. April 24. The Judgment of the Court was delivered by AYYANGAR, J. This is an appeal on a certificate granted by the Judicial Commissioner, Ajmer, and is directed against the judgment of that Court dated December 16, 1954 by which the decree in favour of the respondent Union of India was affirmed. Seth Lal Chand Kothari the original first appellant in the appeal before us (he died pending this appeal and his heirs have been brought on record as his legal representatives appellants 1 to 6) was appointed by the Commissioner Ajmer Merwara as Government Treasurer, Ajmer Merwara, by an order dated February 20, 1940, the treasuries to be under his charge being two that at Ajmer and a subtreasury at Beawar. Before accepting office he had, under the rules, to deposit Government promissory notes to the extent of Rs. 60,000 and also execute a Security Bond for a like amount with two sureties to cover any loss to the Government in these treasuries. He accordingly made the deposit, and a security bond was executed by him on February 27, 1940 with Seth Phool Chand who is now the 7th appellant in the appeal and one Seth Kanwarlal Ranka who died even before the suit and was not impleaded in it. Thereupon Lal Chand Kothari was directed to take charge of the office as Treasurer and he did so on March 6, 1940. We are not concerned with the treasury at Ajmer, but only with that at Beawar. Lal Chand, at the time of his taking charge, executed a receipt headed " charge report" and in it is recited that he had taken over from the previous incumbent (VI. L. Patni) the amount of cash which tallied with what had to be in the treasury according to the books. Nothing happened between 1940 and 1948 and the business at the treasury appeared to be proceeding regularly and according to the rules. It may be mentioned that there were the usual periodical checks and audits by 42 326 Government officials but no impropriety was discovered during these checks or audits. On March 31, 1948, the Extra Assistant Commissioner, Ajmer, made a check of the treasury at Beawar. The treasury staff who ought to have been there were however absent in spite of their having had prior intimation of his arrival and there upon he directed the treasury to be sealed. There were two cash chests at this sub treasury one secured with a single lock, the key of which was with the staff of the Treasurer and the other with doublelocks, the keys of which were held, one by the emplo yee of the Treasurer and the other by the Government Treasury Officer the Tahsildar. A verification of the balance in the two chests disclosed that a sum of 7 annas, 9 pies was missing from the single lock chest and Rs. 84,215 from the chest with the double lock. The Government thereupon took proceedings to realise the missing amount from the security of Rs. 60,000 which had been under deposit. The Government securities were sold and they realized about rupees 58 thousands and odd leaving a sum of Rs. 25,786 13 9 ,still due. The Union of India thereupon filed a suitCivil Suit 125 of 1951 before the Sub Judge First Class, Beawar on the security bond dated February 27, 1940 against Lal Chand Kothari and Seth Phool Chand for recovery of this sum. Several defences were raised by the defendants but they were all rejected by the learned Subordinate Judge who granted the respondents a decree in terms prayed for in the suit. The defendants filed an appeal to the Judicial Commissioner who dismissed it, but having regard to the fact that some of the defences turned on the interpretation of the security bond dated February 27, 1940, granted a certificate under article 133(1) of the Constitution and that is how the appeal is now before US. Neither the factum of the loss by embezzlement nor its amount is in question, and the only points raised for consideration are: (1) whether on the terms of the bond the decree in favour of the appellants could be sustained; (2) whether the claim in the suit was not barred by limitation. The argument on this second 327 point was that if article 83 of the Indian Limitation Act governed the claim it would be barred, and that the provision contained in article 149 prescribing a 60 year period of limitation for suits by the Government was Si, unconstitutional as violative of article 14 of the Consti tution. It is this last plea that has led to the appeal being heard by this larger Bench. As regards the first point that the suit claim was not comprehended within the terms of the security bond, learned Counsel made three submissions: (1) In order to render the defendants liable, the loss sustained by the Government must be proved to have occured on or after March 6, 1940 on which date alone Lal Chand Kothari took charge of the treasury. Though loss to the extent set out in the plaint did occur at the treasury in Beawar, learned Counsel urged, the plain. tiff respondent had not proved that it occurred after March 6, 1940. In other words, the argument was that there was no physical checking on March 6, 1940 when he took over and because of this one could not be certain whether it was a loss which had occurred during the period of the previous incumbent in office or could with certainty be attributed to the period subsequent to March 6, 1940. This argument was rejected by the courts below and, in our opinion, correctly. In the face of the receipt executed by Lal Chand Kothari it would not be open to him to contend that the recitals in it were not correct, and in any event it would be for him to show that it was incorrect and, of course, there was no possibility of his establishing this. (2) It was next urged that on the terms of the Bond read in the context of the surrounding circumstances Lal Chand Kothari would be liable only for the deficiency in the chest with the single lock and not for the loss or embezzlement or deficiency in the other chest with the double lock. The whole basis of this argument was that the security deposit of Rs. 60,000 and the security bond for the like amount executed by the Treasurer was an indication that it was with reference to the amount which was the maximum in the chest under the single lock and from this feature it was 328 urged that it was the intention of the parties that Lal Chand Kothari would not be responsible for any embezzlement, loss or deficiency in the other chest. This submission is without any foundation, because the liability under the Bond would depend upon its terms and in the face of the language used in the document learned Counsel realised that the submission could not be seriously maintained. (3) The last submission under this head was that the loss having occurred in the chest with the doublelock, this could not have been without the connivance of Government officials and that therefore the liability of the Treasurer was excluded. Learned Counsel also drew our attention to the fact that the terms of the bond made Lal Chand liable even for embezzlement by government officers, notwithstanding that he had no control over them. But if Lal Chand agreed to those terms and this is not disputed, the terms must pre vail. Apart from the terms of the security bond however, it would be apparent that if the key of one of the locks was with the employee of the Treasurer the defecation could not have occurred without such employee 's connivance or negligence. If so, the fixing of liability upon the employer could not be characterised even as unreasonable apart from the liability flowing from the terms of the Bond, and such a vicarious liability for the negligence or misconduct of his servants, is not lessened by reason of the assistance or negligence of Government officials. These exhaust the points urged based on the terms of the Bond. It remains to deal only with the contention that the claim is barred by Limitation under article 83 of the Limitation Act on the plea that article 149 of the Limitation Act which fixes a period of 60 years for suits by the Government is unconstitutional as violating article 14 of the Constitution. It is urged that there is no rational basis for treating claims by Government differently from those of private individuals in the matter of the time within which they could be enforced by suit. Learned Counsel urged that statutes of limitation were statutes of repose and enacted to ensure that stale 329 claims were not agitated, so that after a reasonable length of time people might proceed on the footing that they would not be held liable for possible claims against them. Basing himself on these principles, the argument of the learned Counsel was that for the purpose of agitating claims no distinction could be drawn between Government and private ' individuals and that on no rational basis could a legislation which permitted a longer period of limitation for claims by the State be sustained. It is, no doubt, true that Lord Kenyon described statutes of limitation as "Statutes of repose" (vide per Dallas, C. J. in Tolson vs Kaye (1)) and Bramwell, B. as "Statutes of peace" (Hunter vs Oibbons (2)), though sometimes contrary opinions have been expressed. In re Baker (3), Cotton, L. J. observed that pleas of limitation would never be looked upon with any favour since they are used to defeat debts clearly due. It is however unnecessary to examine further the theory underlying statutes of limitation. We shall proceed on the generally accepted basis that they are designed to effectuate a beneficent public purpose, Viz. to prevent the taking away from one what he has for long been permitted to consider his own and on the faith of which he plans his life,, habits and expenses. This however does not militate against there being a rational basis for a distinction being drawn between the claims of the State and the claims of the individual in the matter of a provision of a bar of limitation for enforcing them. In considering this matter two points have to be kept separate: (1) whether a distinction could be drawn or a classification supported between the provision of any variation in the time that should be available for enforcing claims by private individuals and claims by the State, (2) whether, if such a classification were good, the period of 60 years provided by article 149 of the Indian Limitation Act is such a long period of time as to be unreasonable. We are drawing attention to the distinction between these two points because learned Counsel laid (1) , 223: ; , 126g. (2) ; , 5. (3) , 270. 330 much stress on the fact that the period, of limitation fixed by article 149 was 60 years and that this was an unreasonably long period of time. If learned Counsel is right in his submission that there is no rational basis for placing private individuals and the Government in different classes while framing a legislation providing for limitation for actions he might succeed; but if he is wrong there and the correct view is that there is a rational basis of classification, then the period that should be allowed to the Government to file a suit would be a matter of legislative policy and could not be brought within the scope or purview of a challenge under article 14 or indeed of any other article in the Constitution. It is sufficient therefore if we confine ourselves to the first point, viz., whether there is a rational basis for treating the Government differently as regards the period within which claims might be put in suit between the Government on the one hand and private individuals on the other. First and foremost there is this feature that the Limitation Act, though a statute of repose and intended for quieting titles, and in that sense looks at the problem from the point of view of the defendant with a view to provide for him a security against stale claims, addresses itself at the same time also to the position of the plaintiff. Thus, for instance, where the plaintiff is under a legal disability to institute a suit by reason of his being a minor or being insane or an idiot, it makes provisions for. the extension of the period taking into account that disability. Similarly, public interest in a claim being protected is taken into account by section 10 of the Act by providing that there shall be no period of limitation in the case of express trusts. It is not necessary to go into the details of these provisions but it is sufficient to state that the approach here is from the point of view of protecting the enforceability of claims which, if the ordinary rules applied, would become barred by limitation. It is in great part on this principle that it is said that subject to statutory provision, while the maxim vigilantibus et non dormientibus jura Subveniunt is a rule for the subject, the maxim nullum tempus occurit regi 331 is in general applicable to the Crown. The reason assigned was, to quote Coke, that the State ought not to suffer for the negligence of its officers or for their fraudulent collusion with the adverse party. It is with this background that the question of the special provision contained in article 149 of the Act has to be viewed. First, we have the fact that in the case of the Government, if a claim becomes barred by limitation, the loss falls on the public, i.e., on the community in general and to the benefit of the private individual who derives advantage by the lapse of time. This itself would appear to indicate a sufficient ground for differentiating between the claims of an individual and the claims of the community at large. Next, it may be mentioned that in the case of governmental machinery, it is a known fact that it does not move as quickly as in the case of individuals. Apart from the delay occurring in the proper officers ascertaining that a cause of action has accrued Government being an impersonal body, before a claim is launched there has to be inter departmental correspondence, consultations, sanctions obtained according to the rules. These necessarily take time and it is because of these features which are sometimes characterised as red tape that there is delay in the functioning of government offices. It is precisely for this reason that we have from the earliest Civil Procedure Codes provisions which find place in the Code of 1908, like O.27,rr.5 and 7 reading: "0. 27. The Court in fixing the day for the Government to answer to the plaint, shall allow a reasonable time for the necessary communication with the Government through the proper channel, and for the issue of instructions to the Government Pleader to appear and answer on behalf of the Government and may extend the time at its discretion. 0. 27. r. 7(1). Where the defendant is a public officer and, in receiving the summons, considers it proper to make a reference to the Government before answering the plaint, he may apply to the Court to 332 grant such extension of the time fixed in the summons as may be necessary to enable him to make such reference and to receive orders thereon through the proper channel. (2) Upon such application the Court. shall extend the time for so long as appears to it to be necessary. " These matters apart, the ratio underlying the special provisions for summary recovery of amounts due to Government without resort to suits by a procedure not available for enforcing the dues of private individuals, like the "Revenue Recovery Acts" and "Public Demands Recovery Acts" which, have been on the statute book for over a century is also similar, viz., the interest of the public and of the community in realising what is due to it expeditiously; and the constitutional validity of such provisions have been sustained by this Court. In Purshottam Govindji Halai vs Desai (1) this Court held that section 13 of the Bombay Land Revenue Act, 1876, by virtue of which a person had been arrested in pursuance of a warrant issued for recovery of a demand certified under section 46(2) of the Indian Income tax Act, did not offend article 14 of the Constitution. Similarly, in Collector of Malabar vs Ebrahim (2) the arrest of a defaulter in respect of an income tax demand under section 48 of the Madras Revenue Recovery Act was held not to offend article 14 of the Constitution. Perhaps another decision of this Court of more immediate relevance, in which the point now raised that there is no rational basis for distinguishing between the claims of the Government and the claims of private individuals was considered and negatived, is that in Mannalal vs Collector, Jahalwar (3) in which judgment was delivered on December 7, 1960. In this last case it was urged before this Court that the summary mode of recovery of amounts due to the Government for which provision was made by the Rajasthan Public Recovery Act there impugned a mode of recovery which was not available to the private citizen contravened the equal protection of (1) ; (2) ; (3) ; 333 the laws guaranteed by article 14 and this contention was repelled. The argument of learned Counsel for the appellants has therefore to be rejected both on the around of principle as well as on the ratio under lying the decisions of this Court. The appeal fails and is dismissed with costs. Appeal dismissed.

IN-Abs

The Government filed a suit on the basis of a security bond executed by a Government Treasurer and certain sureties who joined in the execution of the bond. The contention in defence, inter alia, was that article 149 Of the Indian Limitation Act prescribing a 60 years period of limitation for suits by the Government was unconstitutional as violative of article 14 Of the Constitution and as such the suit was barred under article 83. Held, that statutes of limitation are designed for the bene ficent public purpose of preventing the taking away from one what he has been permitted to consider his own for a long time and on the faith of which he plans his future life. If the suit was by a private individual the suit would have fallen under article 83 and would have been barred by it but different considerations arise in the case of the State and there is a distinction between claims by the Government and those of private individuals. Article 149 Of the Limitation Act, 1908, which fixes a period of 60 years for suits by the Government has a reasonable basis of classification between the Government and private individuals, and the exact period that should be allowed to the Government to file a suit would be a matter of legislative policy and as such its constitutional validity cannot be questioned under article 14 Of the Constitution. Purushottam Govindji Halai vs Desai, ; , Collector of Malabar vs Ebrahim, ; and Mannalal vs Collector of Jhalway, ; , applied.

Appeal No. 49 of 1961. Appeal by special leave from the judgment and order dated August 11, 1960, of the Bombay High Court in Civil Revision Application No. 320 of 1959. M.C. Setalvad, Attorney General for India, Ramesh. war Nath, section N. Andley and P. L. Vohra, for the appellants. C.K. Daphtary, Solicitor General of India, Naushir Barucha and K. R. Choudhuri, for the respondent. April 21. The Judgment of the Court was delivered by HIDAYATULLAH, J. This is a tenant 's appeal, with the special leave of this Court, against an order of Naik, J., of the High Court of Bombay in Civil Revision Application No. 320 of 1959, by which he 161 disallowed certain pleas raised by the appellants. The respondent is the landlord. On September 11, 1942, the appellants had executed a rent note, under which they were in occupation of the premises in dispute. The period of the tenancy was 15 years, and it expired by efflux of time on, March 14, 1957. The landlord thereupon filed a suit on April 25, 1957, for possession of the premises, in the Court of the Joint Civil Judge (Junior Division), Erandol. Meanwhile, under section 6 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, (to be called the Act, in this judgment), a notification was issued, applying Part II of the Act to the area where the property is situated. The appellants claimed protection of section 12 in Part 11 of the Act, which deprived the landlord of the right of possession under certain circumstances. The Civil Judge framed three preliminary Issues, which were as follows: "1. Whether this Court has jurisdiction to try the suit? 2.Whether the plaintiff 's suit for possession of the suit property is maintainable in view of the Notification issued by the Government of Bombay on 16th August, 1958, applying Part II of the Bombay Rents, Hotel and Lodging House Rates Control Act? If not, what order should be passed? 3.What order?". These Issues were decided against the appellants. They filed a revision petition before the High Court of Bombay, which was dismissed by the order under appeal. Naik, J., who heard the revision, followed a previous Full Bench ruling of the Bombay High Court reported in Nilkanth Ramachandra vs Rasiktal (1). In that case, Chagla, C. J. (Gajendragadkar and Tendolkar, JJ., concurring) had held that section 12 of the Act was prospective and did not apply to pending cases. Reliance was also placed by Naik, J., on the decision of this Court in Chandrasingh Manibhai vs Surjit Lal Sadhamal Chhabda (2), where the opinion of the Full Bench of the Bombay High Court was approved. (1) (2) ; 21 162 Two Questions have been raised in this appeal, and they are (1) whether by virtue of the first proviso to section 50 of the Act, all the provisions of Part 11 including section 12 were not expressly made applicable to all suits; and (2) whether by virtue of section 12(1) of the Act, which applied independently by the extension of the Act to the area where the property is situate, the suit was not rendered incompetent and the landlord deprived of his remedy of possession. Before we deal with these contentions, it is necessary to see some of the relevant provisions of this Act. The Act was not the first to be passed on the subject of control of houses, etc. Previously, there were two other Acts in force in the State of Bombay, viz., the Bombay Rent Restriction Act, 1939 and the Bombay Rents, Hotel Rates and Lodging House Rates (Control) Act, 1944. By section 50 of the Act, these Acts were repealed. The first proviso, however, enacted (omitting unnecessary parts): "Provided that all suits and proceedings between a landlord and a tenant relating to the recovery or fixing of rent or possession of any premises to which the provisions of Part 11 apply. . which are pending in any Court, shall be transferred to and continued before the Courts which would have jurisdiction to try such suits or proceedings under this Act or shall be continued in such Courts, as the case may be, and all the provisions of this Act and the rules made thereunder shall apply to all such suits and proceedings. " It is this proviso which, it is claimed, has retrospective effect and section 12 of the Act which is in Part II is said to apply to all pending cases, whenever the Act is extended to fresh areas. Section 12 of the Act reads as follows: "12.(1) A landlord shall not be entitled to the recovery of possession of any premises so long as the tenant pays, or is ready and willing to pay, the amount of the standard rent and permitted increases, if any, and observes and performs the other conditions of the tenancy, in so far as they are consistent with the provisions of this Act. 163 (2)No suit for recovery of possession shall be instituted by a landlord against a tenant on the ground of non payment of the standard rent or permitted increases due, until the expiration of one month next after notice in writing of the demand of the standard rent or permitted increases has been served upon the tenant in the manner provided in section 106 of the . (3)(a) Where the rent is payable by the month and there is no dispute regarding the amount of standard rent or permitted increases, if such rent or increases are in arrears for a period of six months or more and the tenant neglects to make payment thereof until the expiration of the period of one month after notice referred to in sub section (2), the Court may pass a decree for eviction in any such suit for recovery of possession. (b)In any other case, no decree for eviction shall be passed in any such suit if, on the first day of hearing of the suit or on or before such other date as the Court may fix, the tenant pays or tenders in Court the standard rent and permitted increases then due and thereafter continues to pay or tender in Court regularly such rent and permitted increases till the suit is finally decided and also pays costs of the suit as directed by the Court. (4)Pending disposal of any such suit, the Court may out of any amount paid or tendered by the tenant pay to the landlord such amount towards payment of rent or permitted increases due to him as the Court thinks fit. Explanation. In any case where there is a dis pute as to the amount of standard rent or permitted increases recoverable under this Act the tenant shall be deemed to be ready and willing to pay such amount if, before the expiry of the period of one month after notice referred to in sub section (2), he makes an application to the Court under sub section (3) of section II and thereafter pays or tenders the amount of rent or permitted increases specified in the order made by the Court. " 164 By sub sections (1) and (2) of the second section, which dealt with the extent of the application of the Act, it was provided that Parts I and IV of the Act shall extend to the pre Reorganisation State of Bombay, excluding transferred territories, and Parts II and III shall extend respectively to the areas specified in Schs. I and II to the Act, and shall continue to extend to any such area, notwithstanding that the area ceased to be of the description therein specified. By sub section (3), the State Government was authorised, by notification in the Official Gazette, to extend to any other area, any or all the provisions of Part II or Part III or of both. It would appear from this that Parts I and IV came into operation throughout the territories of the pre Reorganisation State of Bombay. Part II came to be extended to this area by the notification, and after that extension, Parts 1, 11 and IV of the Act began to apply, while the suit was pending. We are not concerned in this appeal with Part 111. The contention on behalf of the appellants is that by the latter part of the proviso to section 50, relevant portions of which have been quoted earlier, all the provisions of Part II were extended to this area, and that all pending suits and proceedings were governed, no matter when filed. The notification extending Part II of the Act to this area had, it is contended, also the same effect independently of the first proviso to section 50. It is contended, therefore, that sub section (1) of section 12, which prohibits a landlord from recovering possession of any premises so long as the tenant pays or is ready and willing to pay the amount of the standard rent and permitted increases, if any, and is also observing the other conditions of the tenancy in so far as they are not inconsistent with the provisions of the Act, applies to the present case and the tenants are protected. It is also contended that if the first proviso to section 50 was limited to such suits only as were pending on the date of the passing of the Act, section 12(1), on its own terms, is applicable to the present case, and being retrospective in character, leads to the same result. These two contentions were apparently raised in the Court of the Civil Judge and before the High 165 Court. The High Court, however, ruled that section 12 was prospective in character and did not apply to pending suits or proceedings. It is contended by the learned Attorney General what the construction placed by the High Court upon the first proviso to section 50 is erroneous. Though he section concedes that the proviso must be read as qualifying what the substantive part of section 50 enacts, he urges that the proviso goes beyond that purpose and enacts a substantive law of its own. He relies upon the following observations of Lord Loreburn, L. C., in Rhondda Urban Council vs Taff Vale Railway (1), where a pro viso to section 51 of the Railway Clauses Consolidation Act, 1845, was under consideration: "It is true that section 51 is framed as a proviso upon preceding sections. But it is also true that the latter half of it, though in form a proviso, is in substance a fresh enactment, adding to and not merely qualifying that which goes before.", and contends that the latter portion of the proviso, in question, being a substantive enactment, comprehends not only those suits which were pending on the date of repeal but also those cases, which came within the language of the latter part of the proviso, whenever the Act was extended to new areas. On behalf of the landlord, the learned Solicitor General argues that the proviso should be read as a proviso only to the substantive enactment, and must be taken to qualify the substantive portion of section 50 only to the extent to which it makes an exception to the repeal and but for the proviso would be governed by the repealed Acts. He relies upon Craies on Statute Law, 5th Edn., pp.201 202, where the following passage occurs: "The effect of an excepting or qualifying proviso, according to the ordinary rules of construction, is to except out of the preceding portion of the enactment, or to qualify something enacted therein, which but for the proviso would be within it and such a proviso cannot be construed as enlarging the scope of an enactment when it can be fairly and (1) , 258.166 properly construed without attributing to it that effect. " He also relies upon the following observations of Lush, J., in Mullins vs Treasurer of Surrey (1): "When one finds a proviso to a section, the natural presumption is that, but for the proviso, the enacting part of the section would have included the subject matter of the proviso." The law with regard to provisos is well settled and well understood. As a general rule, a proviso is added to an enactment to qualify or create an exception to what is in the enactment, and ordinarily, 'a proviso is not interpreted as stating a general rule. But, provisos are often added not as exceptions or qualifications to the main enactment but as savings clauses, in which cases they will not be construed as controlled by the section. The proviso which has been added to section 50 of the Act deals with the effect of repeal. The substantive part of the section repealed two Acts which were in force in the State of Bombay. If nothing more had been said, section 7 of the Bombay General Clauses Act would have applied, and all pending suits and proceedings would have continued under the old law, as if the repealing Act had not been passed. The effect of the proviso was to take the matter out of section 7 of the Bombay General Clauses Act and to provide for a special saving. It cannot be used to decide whether section 12 of the Act is retrospective. It was observed by Wood, V. C., in Fitzgerald vs Champneys(2) that saving clauses are seldom used to construe Acts. These clauses are introduced into Acts which repeal others, to safeguard rights which, but for the savings, would be lost. The proviso here saves pending suits and proceedings, and further enacts that suits and proceedings then pending are to be transferred to the Courts designated in the Act and are to continue under the Act and any or all the provisions of the Act are to apply to them. The learned Solicitor General contends that the savings clause enacted by the proviso, even if treated as substantive law, must be taken to (1) , 173.(2) ; E.R. 958.167 apply only to suits and proceedings pending at the time of the repeal which, but for the proviso, would be governed by the Act repealed. According to the learned Attorney General, the effect of the savings is much wider, and it applies to such cases as come within the words of the proviso, whenever the Act is extended to new areas. These arguments are interesting, and much can be said on both Bides, particularly as the Legislature has by a subsequent amendment changed the proviso. But, in our opinion, they need not be considered in this case, in view of what we have decided on the second point. The second contention urged by the learned Attorney General that section 12(1) applied from the date on which the Act was extended to the area in question is, in our opinion, sound. Section 12(1) enacts a rule of decision, and it says that a landlord is not entitled to possession if the tenant pays or shows his readiness and willingness to pay the standard rent and to observe the other conditions of the tenancy. The word "tenant" is defined in the Act to include not only a tenant, whose tenancy subsists but also any person remaining, after the determination of the lease, in possession with or without the assent of the landlord. The present appellants, as statutory tenants, were within the rule enacted by section 12(1) and entitled to its protection, if the sub section could be held applicable to this suit. Both the Bombay High Court and this Court had, on the previous occasions, observed that section 12 of the Act was prospective. In those cases, the learned Judges were concerned with the interpretation of sub sections (2) and (3) only, which, as the words of those subsections then existing show, were clearly prospective, and were applicable to suits to be instituted after the coming into force of the Act. But a section may be prospective in some parts and retrospective in other parts. While it is the ordinary rule that substantive rights should not be held to be taken away except by express provision or clear implication, many Acts, though prospective in form, 168 have been given retrospective operation, if the intention of the legislature is apparent. This is more so, when Acts are passed to protect the public against some evil or abuse. (See Craies on Statute Law, 5th Edn., p. 365). The sub section says that a landlord Shall not be entitled to the recovery of possession of any premises so long as the tenant pays or is ready and willing to pay the standard rent etc., and observes and performs the other conditions of the tenancy. In other words, no decree can be passed granting possession to the landlord, if the tenant fulfils the conditions above mentioned. The Explanation to section 12 makes it clear that the tenant in case of a dispute may make an application to the Court under sub section(3) of section 11 for fixation of a standard rent and may thereafter pay or tender the amount of rent or permitted increases specified in the order to be made by the Court. The tenants, in the present case, have expressed their readiness and willingness to pay, and it is clear that they fulfil the requirements of sub section(1) of section 12, and the landlord is, therefore, not entitled to the relief of possession. Both the High Court as well as this Court in their previous decisions, referred to above, were not called upon to interpret sub section (1) of the Act. They were dealing with appeals arising out of decrees already passed. The observations that section 12 was prospective were made with reference to sub sections (2) and (3) and not with respect to sub section(1), which did not even find a mention in those judgments. The question then was whether section 12 by itself or read with the proviso to section 50 was applicable retrospectively to appeals. That is not the question which has arisen here. Then again, section 12(1) enacts that the landlord shall not be entitled to recover possession, not "no suit shall be instituted by the landlord to recover possession". The point of time when the sub section will operate is when the decree for recovery of possession would have to be passed. Thus, the language of the sub section applies equally to suits pending when Part 11 comes into force and those to be filed subsequently. The contention of the respondent that the operation of section 12(1) 169 is limited to suits filed after the Act comes into force in a particular area cannot be accepted. The conclusion must follow that the present suit cannot be decreed in favour of the respondent. The decisions of the High Court and the Court of First Instance are thus erroneous, and must be set aside. In the result, the appeal is allowed, and the two preliminary Issues are answered in favour of the appellants. Under the orders of this Court, the judgment of the Civil Judge was stayed. The suit will now be decided in conformity with our judgment. The respondent shall pay the costs of this Court and of the High Court. Appeal allowed.

IN-Abs

On the expiry of the appellant 's tenancy for the occupation of the premises indispute, the respondent who was the landlord filed a suit for possession of the premises. Meanwhile under section 6 of the Bombay Rents, Hotel and Lodging House Rates Control , a notification was issued applying Part 11 of the Act to the area where the property was situated. The appellants claimed protection of section 12, Part 11 of the Act, which deprived the landlord of the right of possession under certain circum stances. The Court of first instance decided the suit against the appellant and the High Court ruled that section 12 was prospective in character and did not apply to pending suits or proceedings. On appeal by special leave Held, that the point of time when sub section (1) of section 12 operates is when the decree for recovery of possession has to be passed. The language of the sub section which provides that the landlord is not entitled to recover possession if the tenant pays or shows his willingness to pay the standard rent and to observe the other conditions of the tenancy is such that it applies equally to suits pending when Part It comes into force and those to be filed subsequently and is not limited only to suits filed after the Act comes into force in a particular area. A section may be prospective in one part and retrospective in another part. Sub sections (2) and (3) of section 12 were clearly prospective but the words of the first sub section showed retrospective operation. Nilkanth Ram Chandra vs Rasiklal, and Chandra Singh Manibhai vs Surjitlal Sudhamal Chhabda, ; , distinguished. Rhonda Urban Council vs Taff Vale Railway, , Mullins vs Treasury of Surrey, and Fitzgerald vs Champneys, ; , referred to.

os. 67, 87 and 130 of 1959. Petitions under article 32 of the Constitution of India for enforcement of Fundamental Rights. R. section Narula and section section Chadha, for the petitioners. M. C. Setalvad, Attorney General of India, B. Sen and T. M. Sen, for Respondents Nos. 1, 2 and 5 (In 128 petition No. 83 of 1959) 1, 2 and 12 (In Petition No. 67 of 1959) and 1, 2 and 4 (In Petition No. 130 of 1959). W. section Barlingay and A. G. Ratnaparkhi, for respondent No. 3 (In Petn. No. 83 of 1959). Sardari Lal Bhatia, for respondents Nos. 3a, 4, 5, 6 (a, b, c,) and 7 10. J. D. Jain and K. L. Mehta, for the Intervener in Petition No. 67 of 1959 (Phool Chand). April 21. The Judgment of the Court was delivered by AYYANGAR, J. These three petitions have been filed invoking the jurisdiction of this Court under article 32 of the Constitution challenging the constitutionality of section 19 and particularly sub section 3, of the (Central Act 96 of 1956), on the ground that it offends the fundamental right of the petitioners guaranteed to them by articles 14 and 19(1)(f). To appreciate the grounds on which this contention is sought to be sustained it is necessary to set out briefly a few facts. We might however mention that though the constitutional objection, adverted to is common to all the three petitions, it is sufficient to refer to the facts of the case in Writ Petition No. 67 of 1959 which is typical of the cases before us. The petitioner Jyoti Pershad is the owner of a house in Delhi in which respondents 3 to 11 were tenants. Each of these nine individuals occupied a single room in this house. As the petitioner considered the house to be old and required to be demolished and reconstructed, he submitted a plan to the Council of the Delhi Municipal Committee and applied for sanction for the reconstruction of the house. The plan was sanctioned and thereafter the petitioner filed suits against these nine tenants under section 13(1)(g) of the Delhi and Ajmer Rent Control Act 38 of 1952 (which will hereafter be referred to as the Rent Control Act). The suits were resisted by the tenants. Two matters had to be proved under section 13(1)(g) of the Rent Control Act by a plaintiff before he could obtain an order of 129 eviction:(i) that there was a plan which had been sanctioned by the municipal authorities which made, provision for the tenants then in occupation of the house being accommodated in the house as reconstructed, and (ii) that the plaintiff had the necessary funds to carry out the reconstruction. The plan which had been approved by the Delhi Municipal Committee made provision for the construction of a double storeyed building with twelve rooms which was, therefore, more than ample for the nine tenants for whom accommodation had to be provided. The plaintiff also established that he had deposited cash in the State Bank of India sufficient for reconstructing the house as sanctioned in the plan. On December 8, 1956 the Civil Court in Delhi passed decrees in favour of the petitioner for the eviction of respondents 3 to 11. Section 15 of the Rent Control Act enacted: "15. (1) The Court shall, when passing any decree or order on the grounds specified in clause (f) or clause (g) of the proviso to sub section (1) of section 13, ascertain from the tenant whether he elects to be placed in occupation of the promises or part thereof from which he is to be evicted and if the tenant so elects, shall record the fact of the election in the decree or order and specify therein the date on or before which he shall deliver possession so as to enable the landlord to commence the work of repairs or building or re building as the case may be. (2)If the tenant delivers possession on or before the date specified in the decree or order, the landlord, shall, on the completion of the work of repairs or building or re building place the tenant in occupation of the premises or part thereof (3)If, after the tenant has delivered possession on or before the date specified in the decree or order the landlord fails to commence the work of repairs or building or re building, within one month of the specified date or fails to complete the work in a reasonable time or having completed the work, fails to place the tenant in occupation of the premises in 17 130 accordance with sub section (2), the Court may, on the application of the tenant made within one year from the specified date, order the landlord to place the tenant in occupation of the premises or part thereof on the original terms and conditions or to pay to such tenant such compensation as may be fixed by the Court. " The tenants, however, refused to give up possessession within the three months time granted to them by the decrees to vacate the premises but went up in appeal against the orders of eviction under section 34 of the Rent Control Act to the Senior Sub Judge, Delhi. These appeals were finally disposed of against the tenant appellants, some on the merits and some by reason of abatement, by the end of October, 1957. Under the rules governing the construction of houses on plans sanctioned by the Delhi Municipal Com mittee, the sanctioned building had to be completed within a period of one year from the date of sanction. As a result of this rule the sanction obtained by the petitioner lapsed and he had, therefore, to obtain fresh sanction if in consequence of his success in the appeals before the Senior Sub Judge he still desired to demolish and reconstruct the building. Meanwhile, two changes came about in the law governing matters relevant to the present case: The first was that the 96 of 1956, which will be hereafter referred to as the Act, was enacted by Parliament and came into force in the Delhi area. Section 19 of that Act which is impugned in these petitions runs: "19. (1) Notwithstanding anything contained in any other law for the time being in force, no person who has obtained any decree or order for the eviction of a tenant from any building in a slum area shall be entitled to execute such decree or order except with the previous permission in writing of the competent authority. (2) Every person desiring to obtain the permission referred to in sub section (1) shall make an application in writing to the competent authority in such form and containing such particulars as may be prescribed. 131 (3) On receipt of such application the competent authority, after giving an opportunity to the tenant of being heard and after making such summary inquiry into the circumstances of the case as it thinks fit, shall by order in writing either grant ' such permission or refuse to grant such permission. (4) Where the competent authority refuses to grant the permission it shall record a brief statement of the reasons for such refusal and furnish a copy thereof to the applicant. " The other change in the law was that due to the enactment of rules and regulations providing for a coordinated development and planning of buildings in the Delhi Area the type of constructions that could be sanctioned by the Delhi Municipal Committee underwent a radical alteration as a result of which in the area now in question double storeyed buildings were not permitted to be constructed and that if the petitioner 's house had to be reconstructed it could only have three living rooms making allowance for the size of the rooms and the free space that had to be left on either side of the building in accordance with the revised municipal regulations. It would have been noticed that the right of the tenants to insist on the landlord providing accommodation for them in the reconstructed building guaranteed to them by section 15 of the Rent Control Act, had ceased by reason of their failure to quit and deliver vacant possession of the tenements occupied by them within 3 months fixed by the order of the Civil Court (vide section 15) and hence they had no statutory right under the Rent Control Act to be provided with accommodation by the landlord. Thus freed from obligation to the tenants the petitioner filed on the strength of these decrees for eviction nine applications under section 19 of the Act before the competent authority for the eviction of the tenants from the nine rooms in the building on the ground that the building had to be reconstructed as it was in a dilapidated condition. These petitions were dismissed by the competent authority by his order dated January 13, 1958 on the ground that the sanction to 132 reconstruct the building which the petitioner had obtained from the municipality in 1956 had expired. The order recited: "since it may take some time for the petitioner to obtain fresh sanction for reconstruction and there is also the possibility of sanction not being given at all, it would be no use continuing with these proceedings until it is definitely known that the landlord has obtained sanction for reconstruction. These nine applications are accordingly filed with the option to the petitioner to have them revived without payment of extra fee in case he is able to obtain sanction. " Thereafter the petitioner applied to the municipal authorities for sanctioning a building plan. As stated earlier, the building plan approved by the municipality could permit only a building consisting of one floor in which there were three living rooms and sanction for the construction of a building with such accommodation was granted. With this sanctioned plan, the petitioner renewed his application under section 19 for permission to execute the decree of the Civil Court and evict the tenants. By order dated July 30, 1958 all these applications were dismissed. The reason assigned for the order was stated in these terms: "If the decree is allowed to be executed they will be thrown out and it will be impossible for them to get accommodation in the reconstructed building. They are old tenants and as stated above also very poor. The execution of the decree will involve very real hardship to them. They are all occupying only one Kothri each and paying rent at Rs. 3 per mensem, and they have no complaint to make about the condition of their Kothries. The landlord has four or five other houses which he has let out on rent. The case has a human aspect and I disallow the execution of the decree against the tenants. " The petitioner preferred appeals against this order to the Administrator of the Union Territory, Delhi to whom appeals lay under section 20 of the Act. The appeals were dismissed, the appellate authority saying : 133 "I would have allowed the appellant permission to evict the tenants, if the property itself was dilapidated and declared unfit for human habitation by a competent authority. This is not so. The land lord naturally desires to get a better return from land in the congested areas of the city by rebuilding on it to better specifications, so that he can get higher rent from it. But if this tendency is permitted to have an unrestricted play, then the result will be the eviction of a large number of poor people from slum areas. In the circumstances, the appellant should wait until either his property is declared dangerous by the Municipal Corporation, or under a Slum Clearance Scheme he is asked by the competent authority itself to demolish it or rebuild it in a particular manner. " In these circumstances the petitioner has moved this Court for the issue of a writ of certiorari to quash these orders on the ground already adverted to, viz., that section 19 of the Act is invalid and unconstitutional as violative of the petitioner 's rights guaranteed by articles 14 and 19(1)(f) of the Constitution. In passing we may observe that we are not concerned with the validity of the particular orders passed in the case but only with the general question as to the constitutionality of the impugned section 19 of the Act. Before setting out the points urged by Mr. Narula learned Counsel for the petitioners in support of his submission that section 19 of the Act" was, in so far as it enabled the competent authority to withhold permission to those who had obtained decrees for eviction from executing their decrees, unconstitutional, it would be necessary to read the material provisions of the Rent Control Act, 1952, which imposes a restriction on the right of landlords, inter alia to evict tenants from the premises occupied by them. Chapter III of that Act imposes a control over the eviction of tenants. A tenant is defined (Vide section 2(j)) as meaning "any person by whom or on whose account rent is payable for any premises including such sub tenants or others who have derived title under the tenant 134 under the provisions of any law before the commencement of the Act. " Section 13(1) enacts: "Notwithstanding anything to the contrary con tained in any other law or any contract, no decree or order for the recovery of possession of any premises shall be passed by any Court in favour of the landlord against any tenant (including a tenant whose tenancy is terminated):". This blanket protection is, however, subject to the conditions enumerated in the proviso which reads: "Provided that nothing in this sub section shall apply to any suit or other proceeding for such recovery of possession if the Court is satisfied " Then follow ten grounds the existence of one or other of which enables a landlord to obtain a decree from a Civil Court for the recovery of possession from tenants. Among the grounds thus enumerated it is sufficient to refer to grounds (f), (g) and (1), ground (g) being the ground upon which the petitioner in the present case obtained the decrees for eviction and these run: " (f) that the premises have become unsafe or unfit for human habitation and are bona fide required by the landlord for carrying out repairs which cannot be carried out without the premises being vacated; or (g) that the premises are bona fide required by the landlord for the purpose of re building the premises or for the replacement of the promises by any building or for the erection of other buildings, and that such building or rebuilding cannot be carried out without the premises being vacated; or (1) that the landlord requires the premises in order to carry out any building work at the instance of the Government or the Delhi Improvement Trust in pursuance of any improvement scheme or development scheme. " The right of the landlord, however, who obtains an order for eviction under either cl. (f) or (g) above set out is subject to the provisions of section 15 whose terms have already been set out, The result, therefore, 135 would be that in the cases covered by these two clauses the tenants would be entitled, if they conform to the terms of these provisions, to be reinstated in the newly constructed premises after the reconstruction. It might be pointed out that under section 38 of the Rent Control Act the provisions of the Act and the Rules made thereunder are to have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. The argument of the learned Counsel was that the restriction upon the rights of landlords to the enjoyment of the property imposed by section 13 of the Rent Control Act could not be open to any objection, legal or constitutional because the Legislature has set out with precision the grounds upon which possession could be recovered, the defenses that might be set up by the tenants and the conditions subject to which the rights either of the landlord or of the tenant could be exercised. It is the super imposition of the provisions of section 19 of the Act on the rights of a landlord decreeholder who had satisfied the requirements of the Rent Control Act before obtaining his decree that was stated as amounting to an unreasonable restriction on the right to hold property guaranteed by article 19(1)(f). This will be a convenient stage at which we might set out in brief outline the argument urged by learned Counsel for the petitioner. They were mainly three: (1) Section 19(3) of the Act vests an unguided, unfettered and uncontrolled power in an executive officer to withhold permission to execute a decree which a landlord has obtained after satisfying the reasonable requirements of the law as enacted in the Rent Control Act. Neither section 19 of the Act nor any other provision of the Act indicates the grounds on which the competent authority might grant or withhold permission to execute decrees and the power conferred is, therefore, arbitrary and offends article 14 of the Constitution. (2) The same point was urged in a slightly different form by saying that the Power conferred on the "competent authority" by section 19(3) of the Act was an excessive delegation of legislative power and was, therefore, unconstitutional. (3) The 136 vesting of a power in an executive authority to override at his sweet will and pleasure rights to property without any guidance from the Legislature con stituted an unreasonable restraint on the petitioner 's right to hold property, a right which in the case of the property of the type now in question would include a right to obtain possession from the tenant in order either to improve it by reconstruction or for the purpose of his own use. Apart from the objection regarding the vesting of an unguided power in an executive authority which is, the common ground of objection urged in regard to points (1) and (2), learned Counsel submitted that the right vested in an executive authority to prevent for an indefinite and indeterminate period of time the right to enjoy his property was for this further reason excessive and an unreasonable restraint which could not be justified under article 19(5) of the Constitution. We shall proceed to consider these points in that order. The first ground alleged is that section 19 of the Act is constitutionally invalid as violative of the equal protection of the laws conferred under article 14 of the Constitution, in that an unguided and arbitrary discretion is vested in the "competent authority". The import, content and scope of article 14 of the Constitution has been elaborately considered and explained in numerous decisions of this Court and it is, therefore, unnecessary for us to embark on any fresh investigation of the topic, but it would be sufficient to summarise the principles, or rather the rules of guidance for the interpretation of the Article which have already been established, and then consider the application of those rules to the provisions of the enactment now impugned. It is only necessary to add that the decisions of this Court laying down the proper construction of article 14 rendered up to 1959 have been summarised in the form of 5 propositions by Das C. J. in Ramakrishna Dalmia vs Justice Tendolkar (1), but we are making a summary on slightly different lines more relevant to the enquiry regarding the provision with which we are concerned in the present case. (1) ; , 299, 301 137 (1) If the statute itself or the rule made under it applies unequally to persons or things similarly situated, it would be an instance of a direct violation of the Constitutional guarantee and the provision of the statute or the rule in question would have to be struck down. (2) The enactment or the rule might not in terms enact a discriminatory rule of law but might enable an unequal or discriminatory treatment to be accorded to persons or things similarly situated. This would happen when the legislature vests a discretion in an authority, be it the Government or an administrative official acting either as an executive officer or even in a quasi judicial capacity by a legislation which does not lay down any policy or disclose any tangible or intelligible purpose, thus clothing the authority with unguided and arbitrary powers enabling it to discriminate. "The legislature must declare the policy of the law and the legal principles which are to control any given cases and must provide a standard to guide the officials or the body in power to execute the law. The essential legislative function consists in the determination or choice of the legislative policy and of formally enacting that policy into a binding rule of conduct." [Harishankar Bagla vs The State of Madhya Pradesh (1)]. "No rules have been framed and no directions given on these matters to regulate or guide the discretion of the licensing officer. Practically the Order commits to the unrestrained will of a single individual the power to grant, withhold or cancel licences in any way he chooses and there is nothing in the Order which could ensure a proper execution of the power or operate as a check upon injustice that might result from improper execution of the same". [Messrs. Dwarka Prasad Laxmi Narain vs The State of Uttar Pradesh (2)]. (1) , 388. (2) ; 813. 18 138 In such circumstances the very provision of the law which enables or permits the authority to discriminate, offends the guarantee of equal protection afforded, by article 14. possibly the best instance of this type of case is afforded by the legislation under consideration in The State of West Bengal vs Anwar Ali Sarkar (1), the ratio underlying which was thus explained in Kathi Raning Rawat vs The State of Saurashtra (2): "If it depends entirely upon the pleasure of the State Government to make any classification it likes, without any guiding principle at all, it cannot certainly be a proper classification, which requires that a reasonable relation must exist between the classification and the objective that the legislation has in view. On the other hand, if the legislature indicates a definite objective and the discretion has been vested in the State Government as a means of achieving that object, the law itself cannot be held to be discriminatory, though the action of the State Government may be condemned if it offends against the equal protection clause, by making an arbitrary selection. " (3) It is manifest that the above rule would not apply to cases where the legislature lays down the policy and indicates the rule or the line of action which should serve as a guidance to the authority. Where such guidance is expressed in the statutory provision conferring the power, no question of violation of article 14 could arise, unless it be that the rules themselves or the policy indicated lay down different rules to be applied to persons or things similarly situated. Even where such is not the case, there might be a transgression by the authority of the limits laid down or an abuse of power, but the actual order would be set aside in appropriate proceedings not so much on the ground of a violation of article 14, but as really being beyond its power. (4) It is not, however, essential for the legislation to comply with the rule as to equal protection, that the rules for the guidance of the designated authority, (1) ; (2) ; , 461, 462. 139 which is to exercise the power or which is vested with the discretion, should be laid down in express terms in the statutory provision itself. "The Saurashtra case would seem to lay down the A principle that if the impugned legislation indicates the policy which inspired it and the object which it seeks to attain, the mere fact that the legislation does not itself make a complete and precise classification of the persons or things to which it is to be applied, but leaves tile selective application of the law to be made by the standard indicated or the underlying policy and object disclosed is not a suffi cient ground for condemning it as arbitrary and, therefore, obnoxious to article 14." [Kedar Nath Bajoria vs The State of West Bengal (1) ]. "So long as the policy is laid down and a standard established by a statute, no unconstitutional delegation of legislative power is involved in leaving to selected instrumentalities the making of subordinate rules within prescribed limits and the deter mination of facts to which the policy as declared by the Legislature is to apply." [Harishankar Bagla and another vs The State of Madhya Pradesh (1) ]. Such guidance may thus be obtained from or afforded by (a) the preamble read in the light of the surrounding circumstances which necessitated the legislation, taken in conjunction with well known facts of which the Court might take judicial notice or of which it is appraised by evidence before it in the form of affidavits, Kathi Raning Rawat vs The State of Saurashtra (3) being an instance where the guidance was gathered in the manner above indicated, (b) or even from the policy and purpose of the enactment which may be gathered from other operative provisions applicable to analogous or comparable situations or generally from the object sought to be achieved by the enactment. "The policy underlying the Order is to regulate the (1) , 46. (2) , 388. (3) [1052] S.C.R. 435, 461, 462. 140 transport of cotton textile in a manner that will ensure an even distribution of the commodity in the country and make it available at a fair price to all. The grant or refusal of a permit is thus to be govern ed by this policy and the discretion given to the Textile Commissioner is to be exercised in such a way as to effectuate this policy. The conferment of such a discretion cannot be called invalid and if there is an abuse of the power there is ample power in the Courts to undo the mischief." Harishankar Bagla vs The State of Madhya Pradesh (1). In Pannalal Binjraj vs Union of India 's case (2) the purpose of the provision which was administrative convenience for enabling assessments to be made in the manner indicated by the Income tax Act was held to afford a sufficient guidance so as to render the provision immune from attack on the ground of violation of article 14. In the circumstances indicated under the fourth head, just as in the third, the law enacted would be valid being neither a case of excessive delegation or abdication of legislative authority viewed from one aspect, nor open to objection on the ground of violation of article 14 as authorising or permitting discriminatory treatment of persons similarly situated. The particular executive or quasi judicial act would, however, be open to challenge as already stated on the ground not so much that it is in violation of the equal protection of the laws guaranteed by article 14, because ex concessis that was not permitted by the statute but on the ground of the same being ultra vires as not being sanctioned or authorized by the enactment itself. The situation in such cases would be parallel to the tests to be applied for determining the validity of rules made under statutes which enable the rule making authority to enact subsidiary legislation "to carry out the purposes of the Act". The criteria to be applied to determine the validity of such rules could, in our opinion, be appropriately applied to determine the validity of the action under the provisions like the one dealt with under the last two heads. (1) , 388. (2) ; 141 In the light of what we have stated above we have now to consider the point urged by the learned Counsel for the petitioner that the Act has vested in the competent authority the power to withhold eviction in pursuance of orders or decrees of Courts with out affording any guidance or laying down any principles for his guidance on the basis of which he could exercise his discretion. In other words, that the Act lays no fetters and has vested in him an arbitrary and unguided power to pick and choose the decree holders to whom he would permit execution and those to whom he would refuse such relief. On the other hand, the learned Attorney General submitted that the discretion vested in the competent authority was not unguided and that though section 19 of the Act did not in terms lay down any rules for his guidance, the same could be gathered from the policy and purpose of the Act as set out in the preamble and in the operative provisions of the Act itself. We consider that there is considerable force in this submission of the learned Attorney General. The preamble describes the Act as one enacted for two purposes: (1) the improvement and clearance of slum areas in certain Union Territories, and (2) for the protection of tenants in such areas from eviction. These twin objects are sought to be carried out by Chapters II to VI of the enactment. Chapter 11 which consists of one sections. 3 provides a definition of what are "slum areas" and their declaration as such. The tests for determining whether the area could be declared a "slum area" or not briefly are whether the buildings in the area are (a) unfit for human habitation, or (b) are by reason of dilapidation, overcrowding etc. detrimental to safety, health or morals. It is in areas so declared as "slum areas" that the rest of the enactment is to operate. The provisions, however, make it clear that in order that an area may be declared a " slum area" every building in that area need not be unfit for human habitation or that human habitation in every building in such area should be detrimental to the safety, health or morals of the dwellers. We are making this observation because of a suggestion 142 made, that the declared purpose of protecting the tenants from eviction was inconsistent with the policy underlying the declaration of an area as a "slum area" and that thus the Act manifested two contrary or con flicting ideas or principles which would negative each other and thus leave no fixed policy to guide " the competent authority" when exercising his powers to grant or refuse eviction when an application was made to him in that behalf under section 19 of the Act. Chapter III is headed 'Slum Improvement ' and makes provision for two types of orders: (1) to require the improvement of buildings where repairs major or minor would make them reasonably habitable for the slum dwellers (vide sections 4 6), and (2) cases where mere repairs or adjustments would not suffice but what is required is the demolition of the entire building. In the latter case certainly the occupants of the building would have to be evicted and the building vacated and power is conferred for effectuating this purpose vide section 7 (1) and 7 (3). It might be that the whole area might consist of dwellings of the type which require demolition and it is Chapter IV that makes provision for this category of cases which is headed "Slum Clearance and Re development". In such cases the buildings in the entire area are to be ordered to be demolished, and in that event the dwellers would, of course, have to vacate, but it is presumed that alternative accommodation would necessarily have to be provided before any such order is made. The process would have to be carried out in an orderly fashion if the purpose of the Act is to be fulfilled and the policy behind it, viz., the establishment of slum dwellers in healthier and more comfortable tenements so as to improve the health and morals of the community, is to be achieved. Chapter V makes provision for the acquisition of land in order to compass the re development of slum areas into healthy parts of the city, by providing amenities and more substantial and better accommodation for the previous inhabitants. It is after this that we have Chapter VI whose terms we have already set out. This Chapter is headed "Protection of tenants in Slum Areas 143 from Eviction". Obviously, if the protection that is afforded is read in the context of the rest of the Act, it is clear that it is to enable the poor who have no other place to go to, and who if they were compelled, to go out, would necessarily create other slums in the a process and live perhaps in less commodious and more unhealthy surroundings than those from which they were evicted, to remain in their dwellings until provision is made for a better life for them elsewhere. Though therefore the Act fixes no time limit during which alone the restraint on eviction is to operate, it is clear from the policy and purpose of the enactment and the object which it seeks to achieve that this restriction would only be for a period which would be determined by the speed with which the authorities are able to make other provisions for affording the slum dweller tenants better living conditions. The Act, no doubt, looks at the problem not from the point of view of the landlord, his needs, the money he has sunk in the house and the possible profit that he might make if the house were either let to other tenants or was reconstructed and let out, but rather from the point of view of the tenants who have no alternative accommodation and who would be stranded in the open if an order for eviction were passed. The Act itself contemplates eviction in cases where on the ground of the house being unfit for human habitation it has to be demolished either singly under section 7 or as one of a block of buildings under Ch. So long therefore as a building can, without great detriment to health or safety, permit accommodation, the policy of the enactment would seem to suggest that the slum dweller should not be evicted unless alternative accommodation could be obtained for him. In this connection the learned Attorney General brought to our attention the provisions of the Delhi Development Act, 1957 (LXI of 1957) which makes provision for the design of a Master Plan for the city which, if executed, is likely to greatly reduce, if not to eliminate, slums altogether. It was suggested that taken in conjunction with this enactment it would be seen that the power to restrain eviction under section 19 of the 144 Act is one which would not last for ever but to a limited period, though this could not naturally be defined by reference to fixed dates. We see force in this submission as well. In view of the foregoing we consider that there is enough guidance to the competent authority in the use of his discretion under section 19(1) of the Act and we, therefore, reject the contention that section 19 is obnoxious to the equal protection of laws guaranteed by article 14 of the Constitution. We need only add that it was not, and could not be, disputed that the guidance which we have hold could be derived from the enactment, and that it bears a reasonable and rational relationship to the object to be attained by the Act and, in fact, would fulfil the purpose which the law seeks to achieve, viz., the orderly elimination of slums, with interim protection for the slum dwellers until they were moved into better dwellings. We are further of the opinion that the order of the competent authority in the present case is not open to challenge either, because it would be seen that the grounds upon which he has rejected the petitioner 's application for execution is in line with what we have stated to be the policy and purpose of the Act. Before leaving this topic it is necessary to consider a submission of learned Counsel for the petitioner which is of immediate relevance to point under examination. He said that, no doubt, the decisions of this Court had pointed out that it was not reasonable to expect the legislature to lay down expressly precise criteria for the guidance of the authorities who have to administer the law because of the difficulty, if not impossibility, of contemplating every single circumstance and prescribing rules so as to apply to such varying situations, and that was the raison d 'etre of vesting a large discretion in the hands of the administering authorities after indicating the general principles that ought to guide them. He however urged that in the present case there was no such insuperable difficulty, because the restriction provided for by section 19 of the Act was superimposed on those which were 145 enacted by section 13 of the Rent Control Act, and Parliament when enacting the Act, could easily have indicated with reference to the several grounds on which eviction could be had under the Rent Control Act, the additional restrictions, or further conditions which would be taken into account by "the competent authority". If learned Counsel meant by this submission that it was a possible mode of legislation, there is nothing to be said against it, but if he desired us to infer therefrom that because of the failure to adopt that mode, the power conferred by section 19 of the Slum Act contravened the guarantee under article 14, we cannot agree. In regard to this matter we desire to make two observations. In the context of modern conditions and the variety and complexity of the situations which present themselves for solution, it is not possible for the Legislature to envisage in detail every possibility and make provision for them. The Legislature therefore is forced to leave the authorities created by it an ample discretion limited, however, by the guidance afforded by the Act. This is the ratio of delegated legislation, and is a process which has come to stay, and which one may be permitted to observe is not without its advantages. So long therefore as the Legislature indicates, in the operative provisions of the statute with certainty, the policy and purpose of the enactment, the mere fact that the legislation is skeletal, or the fact that a discretion is left to those entrusted with administering the law, affords no basis either for the contention that there has been an excessive delegation of legislative power as to amount to an abdication of its functions, or that the discretion vested is uncanalised and unguided as to amount to a carte blanche to discriminate. The second is that if the power or discretion has been conferred in a manner which is legal and constitutional, the fact that Parliament could possibly have made more detailed provisions, could obviously not be a ground for invalidating the law. The next point argued by learned Counsel for the 19 146 petitioner was that the power conferred on the competent authority by section 19(3) of the Act was an excessive delegation of legislative power. As we have pointed out earlier, this submission is really another form, or rather another aspect of the objection based on the grant of an unfettered discretion or power which we have just now dealt with. It is needless to repeat, that so long as the legislature indicates its purpose and lays down the policy it is not necessary that every detail of the application of the law to particular cases should be laid down in the enactment itself. The reasons assigned for repelling the attack based on article 14 would suffice to reject this ground of objection as well. The last major objection urged by learned Counsel was that the power vested in the competent authority "at its sweet will and pleasure" to refuse permission to execute a decree for eviction violated the right to hold property under article 19(1)(f) of the Constitution and that the same was not saved by article 19(5) of the Constitution for the reason that the restriction imposed on the exercise of the right was not reasonable. If Counsel were right in his submission that the petitioner 's right to obtain possession of his building rested on the "sweet will and pleasure of the competent authority" there could be some substance in the argument. But as we had already had occasion to point out, it is not at the "sweet will and pleasure" of the competent authority that permission to evict could be granted or refused, but on principles gather able from the enactment, as explained earlier. Learned Counsel further urged that the right to hold property under article 19( 1)(f) included the right in the owner of a building to evict a tenant and enter into actual or physical occupation of the property. Counsel is, no doubt, right in this submission but the 'freedom ' to 'hold property ' is not absolute but that, as he himself admitted, is subject, under article 19(5), to treasonable restrictions" being placed upon it "in the interests of the general public". It was not suggested that slum dwellers would not constitute "the general public" and that if a legislation was designed to grant 147 them protection, it could not be justified as one in the interests of the "general public", because obviously the interests of such a vast number of the population in the country, their health, well being and morals, would, apart even from themselves, necessarily impinge upon and influence, for good or evil, the health, safety, well being and morality of the rest of the community as well. The only question that is capable of argument is whether the restriction is reasonable. A considerable part of learned Counsel 's argument on the reasonableness of the restriction was devoted to showing that the vesting of an unfettered or unguided power in the competent authority to permit or not to permit eviction rendered the restriction unreasonable. This, as would be seen, is really a different form of presenting the case of the objection under article 14, and what we have said in dealing with the first point of the learned Counsel would answer this portion of the objection. There are, however, a few more matters which have relevance about the objection on the score of the restriction not being reasonable within article 19(5) and the tests to be applied to determining its reasonableness to which we should refer. It has already been pointed out that the restrictions imposed on the right of the landlord to evict have a reasonable and rational connection with the object sought to be achieved by the Act, viz., the ultimate elimination of slums with protection to the slum dwellers from being meanwhile thrown out on the streets. The question might still remain whether this restriction on the rights of the landlords is excessive in the sense that it invades and trenches on their rights in a manner or to an extent not really or strictly necessary to afford protection to the reasonable needs of the slum dwellers which it is the aim and object of the legislation to subserve. The criteria for determining the degree of restriction on the right to hold property which would be considered reasonable, are by no means fixed or static, but must obviously vary from age to age and be related to the adjustments necessary to solve the problems which communities face from time to time. The tests, therefore, evolved by communities living in sheltered or 148 placid times, or laid down in decisions applicable to them can hardly serve as a guide for the solution of the problems of post partition India with its stresses and strains arising out of movements of populations which have had few parallels in history. If law failed to take account of unusual situations of pressing urgency arising in the country, and of the social urges generated by the patterns of thought evolution and of social consciousness which we witness in the second half of this century, it would have to be written down as having failed in the very purpose of its existence. Where the legislature fulfils its purpose and enacts laws, which in its wisdom, is considered necessary for the solution of what after all is a very human problem the tests of "reasonableness" have to be viewed in the context of the issues which faced the legislature. In the construction of such laws and particularly in judging of their validity the Courts have necessarily to approach it from the point of view of furthering the social interest which it is the purpose of the legislation to promote, for the Courts are not, in these matters, functioning as it were in vacuo, but as parts of a society which is trying, by, enacted law, to solve its problems and achieve social concord and peaceful adjustment and thus furthering the moral and material progress of the community as a whole. Judged in the light of the above, we consider that the restrictions imposed cannot be said to be unreasonable. As we have already pointed out, the ban imposed on evictions is temporary, though learned Counsel is right in saying that its duration is not definite. In the very nature of things the period when slums would have ceased to exist or restrictions placed upon owners of property could be completely lifted must, obviously, be indefinite and therefore the indefiniteness cannot be a ground for invalidity a ground upon which the restriction could be held to be unreasonable. Again, there is an appeal provided from the orders of the competent authority to the Chief Administrator. If learned Counsel is right in his submission that the power of the "competent authority" is unguided and that he had an unfettered 149 and arbitrary authority to exercise his discretion "at his sweet will and pleasure" the existence of a provision for appeals might not impart validity to such legislation. The reason for this is that the appellate power would be subject to the same vice as the power of the original authority and the imposition of one " sweet will and pleasure" over another of a lower authority, would not prevent discrimination or render the restriction reasonable. But if, as we have held earlier, the Act by its preamble and by its provisions does afford a guidance to the "competent authority" by pointing out the manner in which the discretion vested in him should be exercised, the provision as to an appeal assumes a different significance. In such cases, if the "competent authority" oversteps the limits of his powers or ignores the policy behind the Act and acts contrary to its declared intention, the appellate authority could be invoked to step in and correct the error. It would, therefore, be a provision for doubly safeguarding that the policy of the Act is carried out and not ignored in each and every case that comes up before "the competent authority". The procedure laid down by the Act for the hearing by the "competent authority" and the provisions for enquiry, renders the "competent authority" a quasi judicial functionary bound to follow fixed rules of procedure and its orders passed after such an enquiry are to be subject to appeals to the Administrator. We consider these safeguards very relevant for_judging about the reasonableness of the restriction. In considering these matters one has to take into account the fact a fact of which judicial notice has to be taken that there has been an unprecedented influx of population into the capital, and in such a short interval, that there has not been time for natural processes of expansion of the city to adjust itself to the increased needs. Remedies which in normal times might be considered an unreasonable restriction on the right to hold property would not bear that aspect or be so considered when viewed in a situation of emergency brought about by exceptional and unprecedented circumstances. Just as pulling down a building to prevent the 150 spread of flames would be reasonable in the event of a fire, the reasonableness of the restrictions imposed by the impugned legislation has to be judged in the light of actual facts and not on a priori reasoning based on the dicta in decisions rendered in situations bearing not even the remotest resemblance to that which presented itself to Parliament when the legislation now impugned was enacted. Before concluding it is necessary to advert to a few points which were also urged by learned Counsel for the petitioner. First it was said that the impugned section 19 of the Act imposed a double restriction, a restriction super imposed on a restriction already existing by virtue of the provisions of the Rent Control Act, and that this rendered it unreasonable. If by this submission learned Counsel meant that different results as to constitutional validity flowed from whether the impugned section was part of the provisions of the Rent Control Act, or was a section in an independent enactment, the argument is clearly untenable. If, however, that was not meant, but that in the context of the restrictions already imposed by the Rent Control Act section 19 of the Act was really unnecessary and therefore. an unreasonable restraint on the freedom of the landlord, what we have said earlier ought to suffice to repel the argument. Learned Counsel next drew our attention to section 38 of the Rent Control Act which reads: "The provisions of this Act and of the rules made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any such law. " If this section stood alone, the argument of learned Counsel that by reason of the width and sweep of its language, even a special legislation, such as the Act was comprehended within the non obstante provision would have required serious consideration, but that has been rendered unnecessary, because even apart from section 19 of the Act which opens with the words: "Notwithstanding anything contained in any other law for tile time being in force", section 39 of the Act also 151 contains a non obstante clause on the same lines as section 38 of the Rent Control Act. The result therefore would be that the provisions of the special enactment, as the Act is, will in respect of the buildings in areas declared slum areas operate in addition to the Rent Control Act. The argument therefore that the Act is inapplicable to buildings covered by the Rent Control Act is without substance, particularly when it is seen that it is only when a decree for eviction is obtained that section 19 of the Act comes into play. We therefore consider that none of the points urged in support of the petition has any substance. The petitions fail and are dismissed. In the circumstances of the case there will be no order as to costs. Petitions dismissed.

IN-Abs

The petitioner after a prolonged litigation and having ful filled all the conditions of the Delhi Rent Control Act, obtained decrees of ejectment against the tenants. 126 In the meantime the Slum Areas (Improvement and Clearance) Act, 956, came into force and the petitioner in accordance with section s.9 of the said Slum Areas Act applied to the competent authority for permission to execute the decree, which permission was refused inter alia on the grounds of hardship to the tenants and the human aspect of the case. The appeals therefrom were also rejected. The petitioner moved the Supreme Court for issue of a writ of certioraris to quash the orders on the ground that (1) section 19 of the Act was invalid and unconstitutional as violative of the petitioner 's rights guaranteed by articles 14 and 19(1)(f) of the Constitution, in as much as section 19 of the Slum Areas Act was a super imposition on the rights of the petitioner who had satisfied the requirements of the Rent Control Act before obtaining his decree, which amounted to unreasonable restrictions on the right to hold property guaranteed by the Constitution, and (2) that section 19(3) of the Slum Areas Act vested an unguided, unfettered, and uncontrolled power in an executive officer to withhold permission to execute a decree which the petitioner had obtained after satisfying the reasonable requirements of the law as enacted in the Rent Control Act, (3) The power conferred on the competent authority by section 19(3) of the Slum Areas Act was an excessive delegation of legislative power and therefore unconstitu tional. Held, that section 19 of the Slum Areas (Improvement and Clea rance) Act, 1956, was not obnoxious to the equal protection of laws guaranteed by article 14 of the Constitution. There was enough guidance to the competent authority in the use of his discretion under section 19(1) of the Act. The restrictions imposed by section 19 of the Act could not be said to be unreasonable. The guidance could be derived from the enactment and that it bears a reasonable and rational relationship to the object to be attained by the Act and in fact would fulfil the purpose which the law seeks to achieve, viz., the orderly elimination of slums, with interim protection for the slum dwellers until they were moved into better dwellings. The order of the competent authority in the present case was not open to challenge as it was in line with the policy and purpose of the Act. So long as the Legislature indicated in the operative provi sions of the statute with certainty, the policy and purpose of the enactment, the mere fact that the legislation was skeletal or that every detail of the application of law to a particular case, was not laid down in the enactment itself or the fact that a discretion was left to those entrusted with administering the law, afforded no basis either for the contention that there had been an excessive delegation of legislative power as to amount to an abdication of its functions, or that the discretion vested was uncanalised and unguided so as to amount to a carte blanche to discriminate. If the power or discretion has been conferred 127 in a manner which was legal and constitutional the fact that the Parliament could possibly have made more detailed provi sion, could not be a ground for invalidating the law. The freedom to 'hold property ' was not absolute but was subject, under article 19(5), to "reasonable restrictions" being A placed upon it "in the interests of the general public". The criteria for determining the degree of restriction on the right to hold property which would be considered reasonable, were by no means fixed or static, but must obviously vary from age to age and should be related to the adjustments necessary to solve the problems which communities faced from time to time. If law failed to take account of unusual situations of pressing urgency arising in the country and of the social urges generated by the patterns of thought, evolution and of social consciousness, it would have to be written down as having failed in the very purpose of its existence. Where the legislature enacted laws, which in its wisdom, was considered necessary for the solution of human problems, the tests of "reasonableness", had to be viewed in the context of the issues which faced the legislature. In the construction of such laws and particularly in judging of their validity the courts had to approach it from the point of view of furthering the social interest which it was the purpose of the legislation to promote, for the courts were not, in these matters, functioning as it were in vacuo, but as parts of a society which was trying, by enacted law, to solve its problems and achieve social concord and peaceful adjustment and thus furthering the moral and material progress of the community as a whole. That the provisions of the special enactment, the Slums Areas (Improvement and Clearance) Act, 1956, will in respect of the buildings in areas declared slum areas operate in addition to the Delhi & Ajmer Rent Control Act, 1952. Ramakyishna Dalmia vs justice Tendolkar; , , Harishankar Bagla vs State of Madhya Pyadesh, , M/s. Dwarka Prasad Laxmi Narain vs The State of Uttar Pradesh, ; , State of West Bengal vs Anwar Ali Sarkar; , , Kathi Ratting Rawat vs State of Saurashtra; , , Kedar Nath Bajoria vs State of West Bengal, ; and Pannalal Binjraj vs Union of India, ; , discussed.

Appeal No. 41 of 1960. 38 294 Appeal from the judgment and decree dated April 28,1958, of the Patna High Court in appeal from Original Decree No. 70 of 1953. L. K. Jha, A. K. Jha, section section Shukla, E. Udayarathnam and K. K. Sinha, for the appellant. Lal Narayan Sinha, Bajrang Sahay and section P. Varma, for the respondent No. 1. 1961. April 24. The Judgment of the Court was delivered by AYYANGAR, J. This appeal comes before us on a certificate granted by High Court of Patna under article 133(1) of the Constitution. The appellant had filed a suit against the State of Bihar before the Subordinate Judge, Daltonganj and had succeeded in obtaining a decree in his favour the details of which we shall presently narrate. The State preferred an appeal to the High Court and by the judgment now under appeal the learned Judges of the High Court had allowed the appeal and dismissed the suit with costs, and the plaintiff has come upon appeal to this court. The facts giving rise to the suit and the appeal may now be briefly stated. The village of Jun in the district of Palamau in the State of Bihar was within the estate of the Raja of Ranka. This proprietor had granted a mokarari lease of the village which consisted mostly of forest lands, in favour of certain persons who have been referred to in these proceedings as the Manjhis. The Manjhis in their turn entered into a registered agreement on February 23, 1946, with Gurudutt Sharma the appellant before us, whereby the latter was, in consideration of the payment of a sum of Rs. 6,000, granted the right to cut and remove bamboos and certain other timber to be found in a specified area of this forest village. This right the appellant was to have for a period of 8 years ending on March 1, 1954. By a further deed executed on March 15, 1946, which was however unregistered, the Manjhis granted to the appellant the right to pluck, or collect and carry away bidi leaves in the same forest area for 295 a period of 9 years ending March 1, 1955, for a con sideration of Rs. 200. It is the case of the appellant that immediately after these deeds were executed, he started cutting the trees and otherwise exercising the rights granted to him under them. Meanwhile the Governor of Bihar who had, by proclamation issued by him under section 93 of the Government of India Act, 1935, assumed to himself the powers vested in the Provincial Legislature, enacted in exercise of the powers so assumed, the Bihar Private Forests Act, 1946 (Bihar 3 of 1946). It is the validity of this enactment and the interpretation of its provisions and. of the similar provisions in the Bihar Private Forests Act, 1947 (Bihar 9 of 1948), by which it was repealed and reenacted, that form the main subject of controversy in this appeal. It is therefore necessary to set out certain of the relevant provisions and also the action taken under them in order to appreciate the contentions raised by learned Counsel for the appellant. The Governor 's Act of 1946 extended to the whole of the Province of Bihar and came into force on February 25, 1946, when having received the assent of the Governor General it was first published in the Bihar Gazette. There were certain forests which were excepted from the operation of this Act by its second section, but the forests in the village of Jun with which this appeal is concerned were not among them. The Act contained the definition of a "landlord" as meaning 'the owner of the estate or tenure in which a forest is comprised who is entitled to exercise any rights in the forests '. It is obvious that the Manjhis would be "landlords" within this definition. Section 4 of this Act enacted: "The rights of the landlord and. the rights of any other person to cut, collect or remove trees, timber or other forest produce in or from. in any forest shall not be exercised in contravention of the provisions made in or under this Act. " There were other restrictions oil the rights of landlords or persons claiming through them but these are not very material for the point required to be decided in this appeal. Chapter III of this enactment which 296 comprised sections 13 to 30 dealt with "private protected forests" which were defined in section 3(10) as 'a forest specified in a notification issued under sub section (1) of section 29 '. Section 13 with which this Chapter opens made provision for the Provincial Government, "if satisfied that it was necessary in the public interest to apply the provisions of this Chapter to any private forest" to constitute such forest "a private protected forest. " Section 14 required the Government, when proposing to constitute a private forest as a "private protected forest" "to issue a notification (a copy of which shall be served on the landlord in the prescribed manner) (a) declaring its proposal, (b) specifying the situation and limits of the forests and stating that landlords whose interests are likely to be affected by the constitution of the private protected forests to state their objections in writing against the proposal." Section 15 prescribed the procedure for hearing the objections which might be presented under section 14 and after the disposal of the objections a notification might issue declaring "that it has been decided to constitute" a demarcated area as "a private protected forest" and for other consequential matters including the determination of the existence and nature of rights other than those of the landlords in or over such forests. After the issue of the notification under section 15, the Forest Settlement Officer was required by section 16 to publish a proclamation in the village in the neighborhood of the forest requiring persons claiming rights other than those of a landlord, to appear before him and state the particulars thereof and the compensation which they claimed for the infringement of their rights. Sections 17 and 18 dealt with the enquiry by the Forest Settlement Officer in respect of these objections and his powers in doing so. Section 19 made provision for the extinction of the rights and claims which had not been preferred in response to a notification under section 16 unless the officer was satisfied that the same was not made for sufficient cause. Section 29 enacted: "29. (1) When the following events have occurred, namely: (a) the period fixed under section 16 for preferring 297 claims has elapsed, and all claims, if any, made under sections 16 and 22 have been disposed of by the Forest Settlement Officer; and (b) if any such claims have been made, the period limited by section 26 for appealing from the orders passed on such claims has elapsed, and all appeals (if any) presented within such period have been disposed of by the appellate officer, the Provincial Government shall publish a notification in the official Gazette, specifying definitely according to boundary marks erected or otherwise, the limits of the forest which is to be constituted a private protected forest, and declaring the same to be a private protected forest from a date fixed by the notification, and from the date so fixed such forest shall be deemed to be a private protected forest: Provided that, if in the case of any forest in respect of which a notification under section 14 has issued, the Provincial Government considers that the enquiries, procedure and appeals referred to in this Chapter will occupy such length of time as in the meantime to endanger the conservation of the forest, the Provincial Government may, pending the completion of the said enquiries, procedures and appeals, declare such forest to be a private protected forest, but not, except as provided in sections 20 and 21, so as to abridge or affect any existing rights. (2) Any declaration made in respect of any forest by the Provincial Government under the proviso to sub section (1) shall cease to have effect from the date of any final order passed under section 15 directing that the proposal to constitute such forest a private protected forest shall be dropped, or of any order passed under sub section (1). " But pending this notification by which "a private protected forest" was constituted there were provisions for keeping things in status quo and for the extinguishment of rights by payment of compensation of the interests of persons who were not landlords. Section 20 imposed a ban on landlords entering into 298 contracts with any other person conferring on the latter the right to cut, collect or remove trees, timber or other forest produce after the issue of a notification under section 14. Having thus dealt with the landlord, section 21 proceeded to enact a similar ban to have effect between the date of the notification under section 14 and the formal constitution of "a private protected forest" by a notification under section 29 against the cutting, collection or removal of trees by every person including the landlord as well as any person claiming rights under him. Section 22 laid down the procedure for dealing with claims of persons who had entered into contracts with landlords whereby they had obtained the right to cut, collect and remove trees, timber or other forest produce etc. It also made provision for the payment of compensation to such contractors. Sections 23 to 28 made provision for miscellaneous matters to which it is not necessary to refer. There are other provisions which are material for the points raised in this appeal but to these we shall advert later. To resume the narration of facts, there was issued on October 14, 1946 a notification under sections 14 and 21 under Bihar Act III of 1946 of which the operative words were: "In exercise of the powers conferred by section 14 of the said Act the Governor is pleased to declare his intention of constituting the said forest (described in the 1st Schedule hereto annexed) a private protected forest and direct that any landlord whose interests are likely to be affected by the said declaration may, within 3 months from the date of this notifi cation, present to the Deputy Collector of Palamau an application in writing stating his objection to the said forest being constituted a private protected forest. " The notification contained a further paragraph containing a direction purporting to be by virtue of the power contained in section 21 "to prohibit every person from cutting, collecting or removing any tree or class of trees from the forests until the publication of the notification under section 29 of the Act." In the Schedule 299 annexed, village Jun was included with details of its location. Against the column headed "Name of the proprietor" was entered the Raja of Ranka though, as stated already, the rights over the forest had passed to the Manjhis whose name had been entered in the revenue records. It is stated that until October 21, 1946 no rules had been framed under the Act prescribing the form and contents of the notification and of the procedure to be followed in the issue of the notification as well as for the conduct of the subsequent proceedings. Immediately on the issue of this notification the officials of the respondent State prevented the appellant from working the forest any further. The appellant at first took proceedings on the basis of his rights under the Act. Meanwhile as the life of the Bihar Act III of 1946 was limited by the terms of section 93 of the Government of India Act, 1935, the Legislature of the Province of Bihar enacted the Bihar Private Forests Act, 1948 (Act IX of 1948), repealing and reenacting the Governor 's Act. This enactment came into force on March 3, 1948 and its terms, subject to immaterial variations, were identical with those contained in the Governor 's Act which it replaced. The proceedings taken by the appellant continued even after Act IX of 1948 came into force. But it is not necessary to refer to the steps taken by the appel lant to assert certain rights and prefer certain claims under this enactment, because they either failed or were withdrawn at a later stage and nothing turns on them. Having failed in these proceedings under the Act, the appellant filed the suit which has given rise to the present appeal T. section 1 of 1952 in the Court of the Subordinate Judge of Daltonganj impleading the State of Bihar and one A. R. Chaudhuri to whom the right to cut and collect bamboo and timber in a portion of the area covered by the appellant 's contract was granted by the Government, as the second defen dant. The plaint set out the various proceedings which the plaintiff had taken under the Act, but the grounds on which he sought the reliefs claimed were 300 rested on: (1) The Forest Acts of 1946 and 1948 were unconstitutional and void as being in contravention of the provisions of the Government of India Act, 1935. (2) That even if valid when originally enacted, their provisions violated the fundamental rights guaranteed by Part III of the Constitution and could not therefore be operative or be enforced after January 26, 1950. (3) The proceedings by which the suit forest was declared "a private protected forest" were illegal and invalid principally for the reasons that (a) the notification under section 14 did not conform to the requirements of the statute, (b) the notices required to be served on the landlord under the Act were not served, and (c) the notifications were not properly published in the village as required by the Act. Based on these grounds, the reliefs sought in the plaint were set out in para. 17 and of these the material ones were: (1) a declaration that the plaintiff had a right to work the forests by cutting and carrying away the trees, timber etc. and the bidi leaves which he was entitled to do under the deeds dated February 23, 1946 and March 15, 1946, executed by the Manjhis in his favour unaffected by the Bihar Private Forests Act, the validity of the proceedings under which was impugned, (2) a decree for Rs. 55,000 being the estimated damages suffered by the plaintiff by reason of the wrongful acts of the Government, (3) restoration to possession of the forest lands included in the two deeds, and (4) for mesne profits. The learned Subordinate Judge who tried the suit, though he held the Act valid, accepted the plaintiff 's contention that the notifications issued under section 14 and the other provisions of Chapter III of the Act were invalid, primarily for the reason that the name of the Manjhis as the landlord had not been mentioned in the notification issued under section 14 and on this ground he passed a decree directing the State to restore possession of the forest to the plaintiff so as to enable him to enjoy the same for a substituted period making allowance for the 7 1/2 months for which he had worked the jungle before his enjoyment was interfered in October 1946. In this view the claim for 301 damages for Rs. 55,000 and for mesne profits was disallowed. The State filed an appeal to the High Court of Patna from this judgment and decree. The learned Judges reversed the decree of the Subordinate Judge and dismissed the suit with costs, holding that the omission of the name of the Manjhis in the notification issued on October 14, 1946, did not render the same invalid and that even otherwise the proceedings under Ch. III of the Act had been validated by section 2 of Act XII of 1949 to whose terms we shall refer in due course. In view of the previous decisions of the High Court which upheld the constitutional validity of the Bihar Private Forests Act, that point was not pressed in the High Court. The plaintiff thereafter applied to the High Court for a certificate under article 133(1)(a) of the Constitution and having obtained it has preferred the present appeal. In the petition of appeal as originally filed, the constitutional points regarding the validity of the Private Forests Act were not raised, but subsequently the appellant filed an application under O. XVIII, r. 3(2) of the Supreme Court Rules for permission to urge additional grounds in support of the appeal which we granted. The principal ground urged in this application was that the main operative provisions of the Bihar Private Forests Act, both as originally enacted in 1946 as well as when reenacted in 1948, were unconstitutional as contravening the requirements of section 299(2) of the Government of India Act, 1935. We consider that it will be convenient to deal first with the point as to whether, assuming that the Bihar Private Forests Act, 1946 and 1948 were valid, the proceedings under Chapter III of the Act for declaring the village of Jun as "a private protected forest" were legal before considering the question as to the constitutionality of the Act raised by the additional grounds urged before us. As would have been noticed even from the narration of the facts, the principal point urged for impugning the validity of the proceedings under Ch. III of the Act was that the Manjhis, 39 302 whose name had been entered in the record of rights as the land holders of the suit village of Jun had not been set out in the notification published under section 14 of the Act and this was the ground upon which the learned Subordinate Judge decided the suit in favour of the appellant. The provisions of section 14 are in these terms: "14. Whenever it is proposed by the Provincial Government to constitute any private forest a private protected forest, the Provincial Government shall issue a notification (a copy of which shall be served on the landlord in the prescribed manner)(a) declaring that it is proposed to constitute such forest a private protected forest; (b) specifying as nearly as possible, the situation and limits of such forest; and (c) stating that any landlord whose interests are likely to be affected if such forest is constituted a private protected forest may, within such period, not being less than three months from the date of the notification, as shall be stated in the notification, present to the Collector in writing any objection to such forest being constituted a private protected forest. Explanation For the purpose of clause (b), it shall be sufficient to describe the limits of the forest by roads, rivers, ridges or other well known or readily intelligible boundaries. " It would be seen that section 14 contemplates two stages: (1) the issue of a notification, and (2) the service of the notification, as issued, on the landlord which has to be in the prescribed manner. The expression 'Landlord ' is defined in section 3(6) as: "the owner of the estate or tenure in which a forest is comprised who is entitled to exercise any rights in the forest. " So far as the notification itself is concerned, which provision is made for the specification of the three matters which are set out in sub cls. (a), (b) and (c), there is no requirement in terms, that the name of the landlord should be set out. It will further be observed that the notification enables any person claiming 303 interest as a landlord and who considers that his interests are likely to be affected by the proceedings taken to prefer his objections to the declaration as a "private protected forest". In other words, the notification is a general notice and its aim is to specify the land in respect of which the declaration is proposed to be made, so that the emphasis is more upon the identity of the land than about the person who owns the land or has rights over it. Besides, the section in terms specifies what the legal and essential requirements as regards the contents of the notification are and the ordinary rule of construction would point to those requirements being exhaustive of what the law demands. If therefore the specification or mention of the name of the landlord is not an express requirement of the section, is such a specification or mention a requirement by any necessary intendment? We have already set out the text of the impugned notification dated October 14, 1946, and it would be seen that it did mention the name of the landlord, but this was incorrect in the sense that the Raja of Ranka who was the proprietor of the estate but who had parted with his rights over the forests by a mokrari lease in favour of the Manjhis was shown as the landlord instead of the Manjhis. It was never the case of the appellant that the mention of the proprietor 's name in the notification misled him or anyone as regards the identity of the land. We might also mention that Mr. Jha, learned Counsel for the appellant admitted that he could not impugn the validity of the notification if notwithstanding that the name of the landlord specified was incorrect, the notification was served upon the proper landlord, It is also common ground that the appellants took part in the proceedings under Ch. III, so that he knew the identity of the property which was intended to be dealt with by the notification. The succeeding provisions of the enactment far from supporting the case that the correct specification of the name of the landlord is a legal pre requisite of a valid notification, points to the conclusion that so far 304 as the notification is concerned the name of the landlord is not a legal requirement. For instance, reference may be made to section 21 where provision is made for the issue of an order prohibiting, until the date of the publication of a notification under section 29, the cutting, collecting or removal of any trees in any forest. Such an order might be issued simultaneously with a notification under section 14 and the order is "to be published in the neighbourhood of the forest". Provisions of this sort indicate what we have already mentioned, that the emphasis in the notification is on specification of the land and not so much on who the owner or the person interested in it was. We are therefore clearly of the opinion that the learned Judges of the High Court were right in holding that the notification under section 14 did not contravene the statute. The next question that arises is whether the notification which was legal under section 14, had been properly served on the interested persons as required by the provisions of Ch. The principal point that was urged to call in question the validity of the service of the notifications was based on the fact that the notices had to be served under the terms of section 14 "in the prescribed manner" and that the rules which prescribed the manner of service were framed and issued only on October 21, 1946, with the result that any service of notice effected before that date could not be deemed to be a proper service or a service in accordance with the rules and therefore of the statute. We might however state that it was admitted that no notices were, in fact, served. Any enquiry, however, of the validity of the service of notices required by section 14 or other provisions of the Act or the effect of the failure to serve them has been rendered superfluous by the provisions of section 2 of the Bihar Private Forests (Validating) Act (Act XII of 1949) which enacted: "No proceeding or action taken under section 15, 21 and 29 of the Bihar Private Forests Act, 1946 or under section 15, 21 or 30 of the Bihar Private Forests Act, 1948, or under any other section of any of the said Acts from the respective dates of commencement of the said Acts, to the date of 305 commencement of this Act shall be deemed to be invalid or shall be called in question in any Court, or proceeding whatsoever merely on the ground that a copy of the notification under section 14 of any of the said Acts was not served on the landlord, or that there was any defect or irregularity in the service of such notification, nor shall any suit, prosecution or other legal proceeding whatsoever, lie in any Court of law against any servant of the crown for or on account of or in respect of any such proceeding or action taken by him." The learned Subordinate Judge, by a process of reasoning which we are unable to follow, held that the terms of this enactment were insufficient to validate the non service of the notice on the landlord as required by section 14 and the other provisions of Ch. III of the Bihar Private Forests Act. The learned Judges of the High Court, on the other hand, held and, in our opinion, correctly, that the effect of the failure to serve notices or any informality in the service of the notices required by section 14 and succeeding sections of the Act was rectified and validated by the Act. In agreement with the learned Judges of the High Court we hold that the proceedings taken under Ch. III of the Act, including the notification issued under section 14 were valid and in accordance with the law and that if the Bihar Private Forests Act were valid the plaintiff could have no legal ground of complaint which he could agitate in the suit and that the suit was therfore properly directed to be dismissed. This leaves the question of the constitutional validity of the Act for consideration. It is necessary to state at the outset, that under the deeds dated February 23, 1946 and March 15, 1946, the status of the appellant quod the Manjhis is only that of a licensee or contractor having the right to cut and remove the trees etc. and not that of a lessee. This was the conclusion reached by the Subordinate Judge on the relevant terms of the two deeds and this was apparently not even challenged in the High Court. On this basis the only provisions of the Act which could be said to directly invade the rights of the appellant are those 306 contained in Ch. III the material sections of which we have already set out. As provision is made in section 22 of the Act for the ascertainment and payment of compensation to forest contractors whose rights were either modified or extinguished, the plea that there was a violation of the guarantee against acquisition by the State without compensation contained in section 299(2) of the Government of India ' Act, 1935, would be seen to have no factual foundation. But learned Counsel for the appellant urged that the extinction of the rights of contractors under the provisions of Ch. III, was really in the nature of an ancillary provision complementary to and designed to render effective, the taking over of the management of "private protected forests" under Ch. IV (to which we shall im mediately advert) and that if the taking over of the management was constitutionally impermissible, the provisions of Ch. III must also be struck down as un constitutional. We see force in this contention and will therefore consider the constitutional validity not so much of Ch. III as of Ch. When a private forest is declared a "private protected forest" under the provisions of Ch. III the provisions of Ch. IV come into operation. Section 31 with which this Chapter opens enacts: "31. The control and management of every pri vate protected forest shall vest in the Provincial Government. " The management and control thus vested is to be exercised through forest officers and section 32 provides: "32. The Provincial Government shall, by notification, appoint a Forest Officer for the purposes of each private protected forest or of a specified portion of each private protected forest. " His powers are defined by the succeeding sections and next we have section 35 which defines the limits subject to which the landlord is permitted to remove timber and other produce from private protected forests whose control vests in the Provincial Government under section 31, and section 36 enables the Collector to grant permission to the landlord to erect embankments at suitable places within the forest for the purpose of irrigating 307 the land beyond the boundaries of the said forest. The section that follows is important and so we shall set it out in full: "37. The Provincial Government shall receive all revenues accruing from the working and management of a private protected forest and shall pay the whole expenditure incurred in the working and management of such forest, and the landlord of such forest or any other person shall not be entitled to make any objection to any expenditure that the Provincial Government may consider it necessary to incur on such working and manage ment. " Section 38 requires the Provincial Government to maintain the revenue and expenditure account with an obligation to supply an extract of the yearly account to the landlord of such forests. The disbursement of the revenues which it receives or the income which it collects under section 37 is provided for by section 39 which runs: "39. (1) The Provincial Government shall, during the period of its control and management of any private protected forest pay, at prescribed intervals, to the landlord of the forest (a) an allowance calculated on the total area of the forest as determined by the Conservator of Forests at the rate of one anna per acre per annum or such higher rate not exceeding one anna and six pies per acre per annum as the Provincial Government may, from time to time, by general or special order, determine; and (b) the net profits, if any, accruing from the working and management of the forest, (2) For the purpose of calculating the net profits, the total expenditure incurred on the working and management of the forest shall be adjusted against the total income from the working and management up to the date of account and the amount of any deficit shall be carried forward with interest at the prescribed rate from year to year till such amount is made up and surplus is effected. . . . " 308 and section 40 which might be termed a residuary provision reads: "40. The rights of right holders in a private protected forest shall be exercised in accordance with the rules. " It is only necessary to add that the provisions contained in the re enacted Act IX of 1948 are substantially identical except as to variation in the numbering of the sections and it is therefore unnecessary to cumber this judgment with a reference to the corresponding provisions of that enactment. In the main, the argument of Mr. Jha, learned Counsel for the appellant on this point was based on the reasoning contained in the judgment of a Special Bench of the Patna High Court in M. D. Kameshwar Singh vs State of Bihar (1) where the learned Judges held the Bihar State Management of Estates and Tenures Act, 1949, to be ultra vires of the powers of the Provincial Legislature as contained in the Government of India Act, 1935. The Act there impugned was one which was described as an "Act to provide for the State Management of estates and tenures in the Province of Bihar". Provision was made for Government notifying any estates or tenures in the Province and on such notification the management of the estate or tenure was to vest in an officer designated by the Act. On such management being taken over, the power of the proprietor or tenure holder to manage the estate was to cease and he was rendered incompetent to deal with or have any right to create interests in the property by way of mortgage or lease. The rents and profits accruing from the estate were to be payable to and to be collected by the Manager who alone was, under the statute competent to grant valid receipts therefor. There were special provisions empowering the Manager to order the removal of mortgagees or lessees in possession by virtue of agreements with the proprietor or tenure holder. Special provisions were also made for dealing with the claims of creditors both secured and unsecured. Section 20(5) of the Act made provision for the disposal of the (1) Patna 790. 309 income, rents and profits received by the manager. They were to be applied first for the payment of revenue to Government, then to municipal rents, next to costs of management and supervision, then for an allowance to the proprietor to be fixed by rules made by Government, and any surplus remaining thereafter was to be paid to the proprietor at, the end of each financial year with power, however, to the manager to retain such portion of the surplus which he might consider necessary as a working balance for the ensuing year. The manager was to have power to contract loans on the security of the estate or tenure. The jurisdiction of the civil courts was barred in respect of matters for which provision was made by the Act. Though there was a direction that the manager should have his accounts audited with a right to the proprietor or tenure holder to inspect these accounts, in cases however where these accounts were not audited the right of the proprietor was merely to draw the attention of the Government to the lapse, with however a bar on enforcing such rights by resort to the courts even in the event of the Provincial Government not taking any action. The validity of the enactment was challenged principally on two grounds: (1) that an Act of this sort which deprived the proprietors and tenure holders of possession of their property for no default on their part and for no justifiable reason grounded on public interest was beyond the legislative competence of the Province, (2) that even if competent, it amounted to "an acquisition of property without compensation" and for a purpose which was not a public purpose so as to be repugnant to the provisions of section 299(2) of the Government of India Act, 1935. Justice Shearer and Justice Sinha, as he then was, were of the opinion that the Act in question was beyond the legislative competence of the Province under item 21 of the Provincial Legislative List. Justice Das, as he then was, being the other learned Judge constituting the Special Bench however took the view that the variety of matters set out in Entry 21 of the Provincial Legislative List was wide enough to include legislation of 40 310 the type then before the Court. Both Sinha and Shearer JJ. were of the opinion that the Act violated the requirements of section 299(2). Learned Counsel Mr. Jha submitted that there was, under the Bihar Private Forests Act, 1946 and 1948, the same type of deprivation of possession and management of the proprietor or tenure holder, the same restrictions placed upon enjoyment, and a similar vesting of powers and duties on the officers of the State Government as the manager of the estate under the Bihar Act of 1949 and on these premises he contended that on the same line of reasoning, the Act now impugned should be held to be both beyond the competence of the Provincial Legislature as well as unconstitutional as violating the requirements of section 299(2) of the Government of India Act, 1935. Before entering on a discussion of the points urged we should add that the constitutional validity of the Acts now impugned has been the subject of decision of the Patna High Court on two occasions and these judgments are reported in Sm. Khemi Mahatani vs Charan Napit (1), and K.B.N. Singh vs State (2). In both of them the learned Judges of the High Court have distinguished the decision in Kameshwar Singh vs State of Bihar (3) and have upheld the validity of the Acts now impugned. Learned Counsel for the appellant formulated three points in support of his plea regarding the invalidity of the impugned enactment and its application to the petitioner: (1) that the Bihar Private Forests Acts of 1946 and 1948 were beyond the competence of the Provincial Government not being within the legislative entries in the Provincial Legislative List in Sch. VII of the Government of India Act, 1935, (2) that even if tile legislation was competent in the sense of being covered by the entries in the List, the same was unconstitutional as being in contravention of the constitutional requirements of section 299(2) of the same Act, (3) that even if the legislation were competent and also constitutionally valid under the Government of India Act, 1935, its provisions could not be enforced (1) A.I.R. 1953 Patna 365. (2) Patna 69. (3) Patna 790. 311 against the petitioner after the Constitution came into force on January 26, 1950, as the provisions of the enactment contravened articles 19(1)(f) and 31(2) of the Constitution. We shall now proceed to deal with these points in that order: (1) Legislative incompetence under the Government of India Act, 1935. The argument of learned Counsel on this head was half hearted and was based on reliance on passages in the judgment of the Special Bench of the Patna High Court in Kameshwar Singh vs State of Bihar(1). It is not necessary for the purposes of this case to canvass the question as to whether the taking over, for better management, of an estate in the manner as was done by the Bihar Act of 1949 is or is not within item 21 of the Provincial Legislative List in Sch. VII to the Government of India Act, 1935. The enactments now impugned are certainly in relation to "forests" and fall within item 22 of the Provincial Legislative List which reads "22. Forests". It is not necessary to decide whether entry 21 dealing with "Land etc. " would cover legislation on forests, because of the special provision in Entry 22 in relation to "forests" an entry which has come down from the Devolution Rules under the Government of India Act, 1919. In our opinion, the item "Forests" would permit all and every legislation which in pith and substance, to use a phrase familiar in this branch of the law, was on the subject of "forests". It is not possible to argue that the two Acts here impugned do not satisfy this test. Learned Counsel faintly suggested that item 22 'Forests ' would not cover legislation regarding "management" of forests. We consider this submission wholly without substance. The considerations arising from the width or amplitude to be attached to the meaning of expressions dealing with the conferment of legislative power occurring in a constitutional document should suffice to reject this submission. In this connection we might refer to the decision of the Federal Court in Administrator, Lahore Municipality vs Daulat Ram Kapur (2) which dealt with the scope (1) (1950) 1 L. R, 29 Patna 790. (2) 312 of the entry 'Salt ' in the Central Legislative List in Sch. Besides, reference may be made also to the legislative practice which preceded the Government of India Act, 1935, as having relevance to the understanding of the scope and ambit of the entry. The Indian Forests Act of 1878 which repealed the earlier enactments and consolidated the law in relation to the control over forests primarily dealt with forests which were the property of the Government or in which Government had proprietary rights. But it had also a chapter Ch. VI dealing with "control on forests or land not being the property of the Government". Section 35 of the Act enabled the local Government by a notification in the local official gazette to regulate the maintenance of forests for particular purposes and pass orders in that behalf, and section 36 enacted that "in case of neglect of, or wilful disobedience to, such regulations", and what is more important, "if the purposes of any work to be constructed under section 35 so require", the local Government may, after notice in writing to the owner of such forest or land and after considering his objections, if any, "place the same under the control of a Forest officer, and may declare that all or any of the provisions of the Act relating to reserved forests shall apply to such forest or land. The net profits, if any, arising from the management of such forest or land shall be paid to the said owner. " Statutes with similar provisions were also enacted by various local Legislatures (vide, for example, Madras Forests Act, 1882). This Central enactment of 1878 was repealed and re enacted in a consolidated form by the Indian Forests Act, 1927. Chapter V of the later statute sections 35 and 36 thereof reproduce in practically the same terms the provisions of the Act of 1878 in relation to the taking over the management of private forests. As we are now dealing with the legislative power in this regard, we are not so much concerned with the grounds upon which the Government could take over and manage forests belonging to 313 private proprietors, as with the practice of the Government taking over the management of the forests if public interests so require. This interest might vary from time to time but the above legislation would show that if public interest did require, the Act authorized Government to take over the management of private forests on terms of making over the income received to the proprietor. It is unnecessary to dilate upon the role of forests in a country whose economy is predominantly agricultural and it has been this aspect that has prompted the legislation to which we have just now adverted. Apart from being an important source of fuel and of raw materials necessary for domestic, industrial and agricultural purposes, their preservation is essential for the development of cattle wealth by providing grazing grounds. Their function in the conservation of soil fertility and in the maintenance of waterregime by improving the filth and the water holding capacity of the soil cannot be exaggerated. They protect the land against excessive soil erosion caused either by rainfall or against a desiccation and erosion by winds. Their beneficial influence on the growth of crops and on the maintenance of an equitable climate cannot be over stressed (vide First Five Year Plan, p. 285). Thanks to the inroads made on forestwealth owing to the necessities created by the war, we had the spectacle of large forest areas denuded of their timber, afforestation making either a slow progress or not attempted at all. So long as the war continued the sacrifice of the forests was one of the incidents which the country had to bear as part of the war effort but owing to the high prices of fuel and timber, the practice of denudation of forests, which started during the wartime, continued and landholders owning private forests sought to make quick gains by leasing out their forests for large scale cutting. In these circumstances public interest and national economy required that this process should be stopped and the ravages caused by wartime destruction should be made good by scientific management and regulation of forests and by a process of afforestation. It was 314 in these circumstances that in several Provinces of India during the year 1946 when these Provinces were under the rule of Governors under section 93 of the Government of India Act, 1935, enactments were passed vesting in Government power to take over and manage for the purposes abovementioned areas of forest lands belonging to private persons. The situation, therefore, demanded that there should be a large extension of the grounds upon which such private forests would be taken over for better management by the State officials as compared with Ch. V of the Indian Forests Act, 1927. The correlation between Bihar Act III of 1946 now impugned and the Indian Forests Act, 1927, is brought out in the long title of ,the former, the operative words of which are repeated in the preamble: "An Act to provide for the conservation of forests which are not vested in the Crown or in respect of which notifications and orders issued under the Indian Forests Act, 1927 are not in force. " The impugned Act was therefore an Act supplementary to, or rather a complement of the Indian Forests Act of 1927 and is clearly covered by the Entry 'Forests ' in item 22 of State Legislative List. The argument, therefore, that Entry 22 enabled a legislation to be passed in relation to "forests" but did not include therein the power to assume management and control of forests belonging to private proprietors is entirely without foundation. In view of what we have just now stated it would follow that the argument concerning the legislative competence to enact the Bihar Acts of 1946 and 1948 must be rejected. The next submission to be considered is whether the impugned enactments violate section 299(2) of the Government of India Act, 1935. Section 299(2) runs in these terms: "299(2). Neither the Federal nor a provincial Legislature shall have power to make any law authorising the compulsory acquisition for public purposes of any land, or any commercial or industrial undertaking, or any interest in, or in any company owning, any commercial or industrial undertaking, 315 unless the law provides for the payment of compensation for the property acquired and either fixes the amount of compensation, or specifies the principles on which, and the manner in which, it is to be determined. " The main, if not the entire argument of learned Counsel for the appellant on this point was vested on certain passages found in the decision of this Court in Dwarkadas Shrinivas of Bombay vs The Sholapur Spinning & Weaving Co. Ltd. (1). The validity of the law that was there considered was a post Constitution enactment (Act XXVIII of 1950 dated April 10, 1950) which replaced an Ordinance issued in January, 1950. The rights of the appellant before this court had to be considered in the light of the guarantees contained in Part III of the Constitution. Under the provisions of the enactment there impugned the management of the Sholapur Spinning & Weaving Co. Ltd., was taken over by the Government and the question that was debated was whether this taking over amounted to "an acquisition" such as is referred to in article 31(2) of the Constitution in these terms: "31(2). No property shall be compulsorily acquired or requisitioned save for a public purpose and save by authority of a law which provides for compensation for the property so acquired or requisitioned and either fixes the amount of the compensation or specifies the principles on which, and the manner in which, the compensation is to be determined and given; and no such law shall be called in question in any court on the ground that the compensation provided by that law is not ade quate. " Mahajan, J. (as he then was) who delivered the majority decision of the Court in dealing with this point expressed himself in these terms: "The next contention of the learned counsel that the word 'acquisition ' in article 31(2) means the acquisition of title by the State and that unless the State becomes vested with the property there can be no acquisition within the meaning of the clause (1) 316 and that the expression 'taking possession ' connoted the idea of requisition cannot be sustained and does not, to my mind, affect the decision of the case For the proposition that the expression 'acquisition ' has the concept of vesting of title in the State reliance was placed on the opinion of Latham, C. J. in Minister of State for the Army vs Dalziel . . . . . Latham, C. J., made the following observations: 'The Commonwealth cannot be held to have acquired land unless it has become the owner of land or of some interest in land. If the Commonwealth becomes only a possessor but does not become an owner of land, then, though the Commonwealth may have rights in respect to land, which land may be called property, the Commonwealth has not in such a case acquired property. . The majority of the Court held otherwise and expressed the opinion that the taking by the Common wealth for an indefinite period of the exclusive possession of property constituted an acquisition of property within the meaning of section 51 (xxxi) of the Constitution. This is what Rich, J. said, representing the majority opinion: 'It would, in my opinion, be wholly inconsistent with the language of the placitum to hold that, whilst preventing the legislature from authorizing the acquisition of a citizen 's full title except upon just terms, it leaves it open to the legislature to seize possession and enjoy the full fruits of possession, indefinitely, on any terms it chooses, or upon no terms at all. ' the expression 'acquisition ' in our Constitution as well as in the Government of India Act is the one enunciated by Rich, J., and the majority of the Court in Dalziel 's case. With great respect I am unable to accept the narrow view that 'acquisition ' necessarily means acquisition of title in whole or part of the property. " Learned Counsel naturally relied on the reference to 317 the provisions of the Government of India Act contained in the above passage. Before we deal with this argument, however, we consider it proper to refer to the judgment of this Court in State of West Bengal vs Subodh Gopal Bose (1), which was composed of four of the Judges who formed the bench in the case of Dwarkadas Shrinivas, etc. (supra) and in which judgment was delivered almost at the same time (December 17 and December 18). In the West Bengal case, the leading judgment was delivered by Patanjali Sastri, C. J., Mahajan, J., merely expressing his concurrence stating that the principles enunciated by the learned Chief Justice were the same as those which he had formulated in the Sholapur case. It is because of this context that the manner in which this point was dealt with by Patanjali Sastri, C. J., assumes more importance. It was urged before the Court that the meaning of the word "acquired" in the phrase 'taken possession of or acquired ' in article 31(2) as it then stood, connoted nothing more than and was intended to confer the identical guarantee as was contained in section 299(2) of the Government of India Act, 1935, which had used the expression 'acquired ', the words 'taken possession of ' being added merely to overcome the decisions which had held that requisitioning of property was not within the constitutional protection. It was therefore urged that the words 'acquired ' or 'taken possession of ' implied that the legal title in the property passed to the State and could not be taken to signify or include forms of deprivation of private property which did not involve the element of the passing of title to the State. Repelling this argument the learned Chief Justice said: "I see no sufficient reason to construe the words 'acquired or taken possession ' used in clause (2) of article 31 in a narrow technical sense. The Constitution marks a definite break with the old order and introduces new concepts in regard to many matters, particularly those relating to fundamental rights, and it cannot be assumed that the ordinary (1) ; 41 318 word acquisition ' was used in the Constitution in the same narrow sense in which it may have been used in pre Constitution legislation relating to acquisition of land. These enactments, it should be noted, related to land, whereas article 31(2) refers to moveable property as well, as to which no formal transfer or vesting of title is necessary. Nor is there any warrant for the assumption that 'taking possession of property ' was intended to mean the same thing as ' requisitioning property ' referred to in the entries of the Seventh Schedule I am of opinion that the word 'acquisition ' and its grammatical variations should, in the context of article 31 and the entries in the Lists referred to above, be understood in their ordinary sense, and the additional words 'taking possession of ' or requisitioning ' are used in article 31(2) and in the entries respectively, not in contradiction of the term 'acquisition ', so as to make it clear that the words taken together cover even those kinds of deprivation which do not involve the continued existence of the property after it is acquired The expression 'shall be taken possession of or acquired ' in clause (2) implies such an appropriation of the property or abridgement of the incidents of its ownership as would amount to a deprivation of the owner. " It would be seen from the extracted passages in the two judgments, that the reference to the meaning of "acquired" in section 299(2) of the Government of India Act, 1935 made by Mahajan, J., as he then was, in Dwarkadas Shrinivas (1) was but an incidental remark. by way of orbiter and was not and was not intended to be, a decision regarding the scope or content of that section. If support were needed for this position, reference may be made to the observations of Das, Acting C. J. in Bhikaji Narain Dhakras vs The State of Madhya Pradesh (2). The learned Chief Justice said: "Prior to the Constitution when there were no fundamental rights, section 299(2) of the Government of India Act, 1935, which corresponds to article 31 had (1) ; (2) ; 319 been construed by the Federal Court in Kunwar Lal Singh vs The Central Provinces and in the other cases referred to in Rajah of Bobbili vs The State of Madras and it was held by the Federal Court that the word ,;acquisition ' occurring in section 299 had the limited meaning of actual transference of ownership and not the wide meaning of deprivation of any kind that has been given by this Court in Subodh Gopal Bose 's case ; to that word acquisition appearing in article 31(2) in the light of the other provisions of the Constitution." During the years when the Government of India Act, 1935, was in operation the Privy Council had no occasion to pronounce upon the meaning of section 299(2), but we might, however, usefully refer to the recent decision of the House of Lords in Belfast Corporation vs O. D. Cars Ltd. (1) where the I louse had to consider the import of the expression 'take any property ' occurring in a similar context in the Government of Ireland Act, 1920 (X & XI George V, Ch. 67), section 5(1) where the relevant words were: "In the exercise of their power to make laws neither. . the Parliament of Northern Ireland shall make a law so as to either directly or indirectly. . . take any property without compensation. " The facts in the case before the House of Lords were that the respondent who carried on business as garage proprietors and general motor engineers made an application to the appellant for the grant of permission to erect certain factories and shops on its land. This was refused on the ground that the height and character of the proposed buildings would not be in accordance with the requirements of the zone in which the site was situate. The respondent thereupon claimed compensation for injurious affection on the ground that its property had been "taken". The Court of Appeal of Northern Ireland upheld the respondent 's claim and the appellant Corporation brought the matter in appeal to the House of Lords. The (1) 320 argument pressed before the House, and which found favour with the Court below in Ireland, was based on the extended meaning of the word 'acquired ' attributed to it in the decisions of the Supreme Court of the United States which have been referred to and adopted this Court in Dwarkadas Shrinivas etc. (1) and in Subodh Gopal Bose 's cases (2). Viscount Simonds, delivering the leading judgment, observed: "I come then to the substantial questions: what is the meaning of the word 'take '? what is the meaning of the word 'Property '? what is the scope of the phrase 'take any property without compensation '? . . I hope that I do not over simplify the problem, if I ask whether anyone using the English language in its ordinary signification would say of a local authority which imposed some restriction upon the user of property by its owner that authority had 'taken ' that owner 's 'property '. He would not make any fine distinction between 'take ', 'take over ' or 'take away '. He would agree that `property ' is a word of very wide import, including intangible and tangible property. But he would surely deny that any one of those rights which in the aggregate constituted ownership of property could itself and by itself aptly be called 'property ' and to come to the instant case, he would deny that the right to use property in a particular way was itself property, and that the restriction or denial of that right by a local authority was a 'taking ', 'taking away ' or 'taking over ' of 'property Fully recognizing the distinction that may exist between measures that are regulatory and measures that are confiscatory and that a measure which is ex facie regulatory may in substance be confiscatory. ." Lord Radcliffe followed on the same lines and referred in this context to Slattery vs Naylor (3), where the validity of a municipal bye law which prevented an owner from using the property which he had purchased ground for the only purpose for which it could (1) ; (2) ; (3) 321 be used was upheld by the Judicial Committee as not amounting to depriving an owner of his property without compensation. We consider the principles laid down in the Belfast case (supra) apt as an aid to the construction of the content of the expression "acquired" in section 299(2) of the Government of India Act, 1935. The contention urged by learned Counsel for the appellant that the deprivation of the land holder of the right of management and control over the forest without his legal title thereto or beneficial enjoyment thereof being affected amounts to acquisition of land within section 299(2) of the Government of India Act, 1935 must be reject ed. The extract we have made earlier from the judgment of Viscount Simonds affords a sufficient answer to a submission that the right of the landholder to possession was itself a right of property and as this had been taken over it constituted an acquisition within the constitutional provision. Property, as a legal concept, is the sum of a bundle of rights and in the case of tangible property would include the right of possession, the right to enjoy, the right to destroy, the right to retain, the right to alienate and so on. All these, of course, would be subject to the relevant law procedural or substantive bearing upon each of these incidents, but the strands that make up the total are not individually to be identified as those constituting "property". So understood, there is no scope for the contention that the imposition, so to speak, of a compulsory Governmental agency for the purpose of managing the forest with liability imposed to account for the income as laid down by the statute is an "acquisition" of the property itself within section 299(2) of the Government of India Act, 1935. A very minor point was urged by the learned Counsel based upon the language of sub section (5) of section 299 which reads: "299 (5). In this section 'land ' includes immovable property of every kind and any rights in or over such property, and 'undertaking ' includes part of an undertaking." 322 Learned Counsel suggested that the right to possession, management and control over the estate was "a right in or over such property" and that if it was so construed, the taking over of such a right would be tantamount to "acquisition of land" within section 299(2). There is no substance in this argument, because the rights referred to in section 299(5) are 'derivative rights, like interests carved by an owner a lessee, mortgagee etc. and not an incident of a property right regarding which we have already expressed ourselves. We therefore hold that the impugned enactments were validly enacted and are not obnoxious to the provisions of the Government of India Act, 1935. There remains for consideration the third point urged that even if the Bihar Private Forests Acts, 1946, and 1948 were valid when enacted, the relevant provisions cannot be enforced against the appellant on the ground that the enforcement would violate the fundamental rights granted to the appellant by articles 19 and 31 of the Constitution. The argument was this: The lease in favour of the appellant was for terms of 8 or 9 years and would have continued, if nothing else had happened, till certain dates in 1954 and 1955. He has, however, been deprived of the benefit of the lease by the operation of the impugned legislation and the appellant 's rights which he could have otherwise enjoyed beyond January 26, 1950 have been denied to him, and this is tantamount to the impugned enactments operating beyond January 26, 1950. In support of this submission learned Counsel invited our attention to a passage in the judgment of this Court in Shanti Sarup vs Union of India(1). That case was concerned primarily with the constitutionality of an order dated October 21, 1952 passed by the Central Government under section 3(4) of the Essential Supplies (Temporary Powers) Act, 1946, by which the petitioner firm was dispossessed of a textile mill which they owned and managed. There had been an earlier order of the State Government dated July 21, 1949, also which was similarly impugned. B. K. Mukherjea, J., as he then was, who spoke for the (1) A.I.R. [1955] S.C. 624, 628. 323 Court, after pointing out that the order of the Central Government was not supportable under the terms of the enactment under which it was made and therefore had deprived the petitioner of his property under article 31 of the Constitution proceeded to add: "But even assuming that the deprivation took place earlier and at a time when the Constitution had not come into force, the order effecting the deprivation which continued from day to day must be held to have come into conflict with the fundamental rights of the petitioner as soon as the Constitution came into force and become void on and from that date under article 13(1) of the Constitution. " We are unable to construe these observations as affording any assistance to the appellant. The lease or licence which the appellant had obtained by contract from the landholder was put an end to, once and for all by virtue of the provisions contained in section 22 of the impugned enactment which made provision for compensation for the extinguishment of those rights. That took place long before the Constitution, in 1946. We have held that the legislation under which the appellant 's rights were extinguished, subject to his claim for compensation, was a valid law. It would therefore follow that the appellant could have no rights which could survive the Constitution so as to enable him to invoke the protection of Part III thereof. On this point also we must hold against the appellant. The result is the appeal fails and is dismissed with costs. Appeal dismissed.

IN-Abs

In 1946 the appellant was granted a right to cut and remove bamboos and certain other timber to be found in a specific area of the forest Village of Jun by certain persons known as Manjhis who held under a mokarari lease granted by the Raja of Ranka and whose names had been entered in the revenue records. Meanwhile, the Bihar Private Forests Act, 1046, was enacted and it came into force on February 25, 1946. This Act was repealed and reenacted by Bihar Act 9 Of 1948. On October 14, 1946, the Governor of Bihar issued a notification under sections 14 and 21 of the Bihar Private Forests Act, 1946, declaring the forest of Jun as a protected forest. Though in the Schedule to the said notification, against the column headed "name of the proprietor" the name of Raja of Ranka was entered, a copy of the notification was however served on the Manjhis. Immediately on the issue of the notification the officials of the Government of Bihar prevented the appellant from working the forest any further. The appellant challenged the validity of the proceedings under the Act by filing a suit. The trial court held that the Act was valid but decreed the suit on the ground that the notification issued under section 14 was invalid, primarily for the reason that the name of the Manjhis as landlord had not been mentioned in it. The High Court on appeal reversed the decree and dismissed the suit, holding that the omission of the name of the Manjhis in the notification did not render the same invalid and that even otherwise the proceedings under Ch. III of the Act had been validated by section 2 of Bihar Act 12 Of 1949. Held, that the Bihar Private Forests Acts of 1946 and 1948 were validly enacted and were within the Legislative compe tence of the Province under the Government of India Act, 1935, and were not otherwise obnoxious to its provisions. Bihar Act 3 Of 1946 was an Act supplementary to, or rather a complement of the Indian Forests Act of 1927 and was clearly 293 covered by the Entry 'Forests ' in item 22 of Provincial Legislative List under which the Province could enact legislation not merely generally in relation to "Forests" but also to enable the Government to assume management and control of forests belonging to private proprietors. Such a legislation involved no violation of the guarantee against "acquisition by the State without compensation" contained in section 299(2) of the Government of India Act, 1935. Property, as a legal concept, was the sum of a bundle of rights and the imposition of a compulsory Governmental agency for the purpose of managing the forest with a liability imposed to account to the proprietor for the income derived as laid down by the statute was not an "acquisition" of the property itself within section 299(2) of the Government of India Act, 1935. Nor does section 299(5) affect the matter. The rights referred to in it are derivative rights, like interests carved by an owner a lessee, mortgagee etc. and not an incident of a property right. Held, further, that the correct specification of the name of the landlord was not a legal pre requisite of a valid notification under section 14 Of the Bihar Act 3 Of 1946 but the emphasis was on specification of the land and not so much on the owner or the person interested in it. The proceedings taken under Ch. III of the Act including the notification issued under section 14 Of the Act were valid and in accordance with the law and the validity of the service of notices required by section 14 or other provisions of the Act could not be challenged in view of the provisions of section 2 Of the Bihar Private Forests (Validating) Act, 1949. Held, also, that the legislation under which the appellant 's rights were extinguished, subject to his claim for compensation, was a valid law which took effect in 1946, long before the Constitution came into force and the appellant had therefore no rights which could survive the Constitution so as to enable him to invoke the protection of Part III thereof. M.D. Sir Kameshway Singh vs State of Bihar, Pat. 790 and Dwarkadas Shrinivas of Bombay vs Sholapur Spinning & Weaving Co., Ltd. ; , distinguished. Khemi Mahatani vs Charan Napit, A.I.R. 1953 Pat. 365, K.B.N. Singh vs State, Pat. 69, Administrator, Lahore Municipality vs Daulat Ram Kapur, , State of West Bengal vs Subodh Gopal Bose, ; , Bhikaji Narain Dhakras vs State of Madhya Pradesh, ; , Slattery vs Naylor, and Shanti Sarup vs Union of India, A.I.R. , referred to. Belfast Corporation vs O. D. Cars Ltd., , applied.

Appeal No. 671 of 1957. Appeal from the judgment and order dated February 5, 1954, of the Madras High Court in Writ Appeal No. 28 of 1953. Sachin Chaudhuri, N. A. Palkhiwala, J. B. Dadachanji, section N. Andley and P. L. Vohra, for the appellant. B.K. Gopalakrishnamachar and T. M. Sen, for the respondent No. 1. A. V. Viswanatha Sastri, R. Ganapathy Iyer and G. Gopalakrishnan, for respondent No. 2. 1961. April 21. The Judgment of Sinha, C. J., Ayyangar and Mudholkar, JJ. was delivered by Ayyangar, J. The Judgment of section K. Das and Sarkar, JJ., was delivered by Sarkar, J. AYYANGAR, J. This is an appeal against a judgment of a Division Bench of the High Court of Madras on a certificate under articles 132 and 133(1) of the Constitution, and raises for consideration the constitutionality of section 13 of the Madras Buildings (Lease & Rent Control) Act, 1949; and the legality of an order of the State Government passed thereunder. The facts giving rise to the appeal are briefly as follows: The dispute relates to promises No. 1, Blackers Road, Mount Road, Madras a property which was originally owned by one Sir Haji Ismail Sait. In or about the year 1914 one Venkayya obtained a lease of this property from Sir Haji Ismail Sait and constructed a cinema theatre thereon 172 which he ran under the name of "the Gaiety Theatre". Venkayya was adjudicated an insolvent and the Official Assignee of Madras in whom his estate, including the leasehold interest in the suit site vested, obtained a further lease of the property from the representatives of Sir Haji Ismail Sait who had by then died, for a period of 9 years from March 1926. Thereafter the Official Assignee sold the super structure of the theatre to one Mrs. Madan to whom he also assigned the unexpired portion of the lease. Mrs. Madan, subsequently, obtained a further lease of the property from the representatives of Sir Haji Ismail Sait 's estate for a further period of 7 years from June 1935. Mrs. Madan was thus the owner of the superstructure and the lessee of the site, with a term which would expire in or about May 1942. While one T. section PL. P. Chidambaram Chetty who is the second respondent before us obtained a conveyance of all the rights which Mrs. Madan possessed in the super structure and in the lease for a sum of Rs. 36,000 under a registered deed dated January 4, 1937, and he ran the cinema house from then. There was litigation between the heirs of Sir Haji Ismail Sait, pending on the original side of High Court of Madras, and by interim orders passed in two suits (C. section Nos. 280 and 286 of 1939), the High Court appointed two advocates as Joint Receivers to administer ' the property in suit. In the early months of 1940, one J. H. Irani, the father of P. J. Irani the appellant before us had negotiated with the Recei vers for a lease of a property adjacent to No. 1 Blackers Road with a view to construct a cinema theatre whereon. That lease was for a period of 21 years and would have expired in or about April May 1961. Irani offered to the Receivers to take a lease also of the property now in dispute and on which the Gaiety theatre stood, also till April May 1961. The Receivers then moved the Court for directions regarding the grant of the lease. The second respondent, whose term of lease would have expired in 1942, was offered by the Court the option of taking a lease for 21 years from the 1st of May 1940 but he expressed his 173 unwillingness to take a lease for such a long term. He was, however, willing to have the lease continued for a period of 7 years from the 1st of May 1940, i.e., for 5 years beyond the term of his then existing lease. The Court thereupon passed an order on May 2, 1940 reading: "The lessee of the Gaiety Theatre (Chidambaram Chetty) will be given a lease of seven years from this date. They will not be given any further option. On the expiry of that period, i.e., from 2nd May 1947 the same may be included in the lease of J. H. Irani at the same rate of rent at which it is being leased to the lessee of the Gaiety Theatres. " In accordance with this order the Receivers of the estate of the late Sir Haji Ismail Sait executed two lease deeds (1) in favour of the second respondent for a period of 7 years from May 1, 1940 and (2) a reversionary lease in favour of J. H. Irani for a period of 13 years 11 1/2 months commencing from May 1, 1947, i.e., on the expiry of the lease in favour of the second respondent, this term being fixed so as to be coterminous with the lease of the neighbouring property which Irani was being granted. The term of the lease in favour of the second respondent would, therefore, have ended on May 1, 1947 but before that date Madras Buildings (Lease & Rent Control) Act 1946 (Madras XV of 1946) came into force under which tenants in possession who continued in occupation of residential or non residential buildings could not be evicted therefrom except by proceedings taken under the Act before designated officers and on stated grounds which did not include the mere expiry of the term. It is now common ground that this enactment covered the second respondent 's possession of the premises now in dispute and that notwithstanding the termination of the term he was statutorily entitled to continue in possession even after the expiry of the lease on May 1, 1947. This is the result of decisions rendered in certain proceedings between the parties to which we shall immediately refer. Irani, the, reversionary lessee called upon the second respondent to surrender possession in 174 accordance with the conditions of his lease, but the latter declined to do so relying upon the Act and the protection which it conferred upon him. Thereupon the 'present appellant P. J. Irani as representing the estate of his father who had by then died, filed a suit on the original side of the Madras High Court (C. section 479 of 1947) for evicting the second respondent from the property. It may be mentioned that the suit was based upon the allegation that what had been leased to Venkayya originally was a vacant site without any buildings and that consequently Madras Act XV of 1946 which did not apply to leases of mere vacant sites did not apply to protect the second respondent 's possession. The suit was, however, dismissed by judgment rendered on April 22, 1948, on the finding that a building as well as the site had been included in the lease, which brought it within the scope and protection of the Act. The appellant filed an appeal against this judgment (Original Side Appeal 37 of 1948) which was also dismissed on July 29,1951, on the same finding. Even while the appeal was still pending before the High Court, Irani applied to the Government of Madras for exemption of the premises from the operation of the Act. By the date of this application Madras Act XV of 1946 had been repealed and its provisions substantially re enacted in the Madras Buildings (Lease & Rent Control) Act, 1949, but as the provisions of the two enactments on the points which arise for decision in this appeal are identical it is sufficient if reference is made to those of the later Act. A provision for exemption being granted from the operation of the Act by the State Govern ment was contained in section 13 of the Act (Madras Buildings) Lease & Rent Control Act., 1949), to which we shall hereafter refer as the Act, in the following terms: "Notwithstanding anything contained in this Act the State Government may by a notification in the Fort St. George Gazette exempt any building or class of buildings from all or any of the provisions of this Act. " The Government, however, by their order dated June. 175 4, 1951, rejected this application for exemption on the ground that the matter was then sub judice. After the dismissal of the appeal by the Division Bench the appellant Irani moved the Government afresh by a further petition filed in or about December, 1951, praying for the same relief. The Government, by their order dated June 4, 1952, granted the exemption sought and the relevant notification which appeared in the Fort St. George Gazette ran: "In exercise of the powers conferred by section 13 of the Madras Buildings (Lease & Rent Control) Act 1949 (Madras Act XXV of 1949) His Excellency the Governor of Madras hereby exempts the building No. 1 Blackers Road, Mount Road, Madras (Gaiety Theatre) from all the provisions of the said Act." And it was authenticated by the Chief Secretary to Government. The second respondent thereupon made a petition to the High Court under article 226 of the Constitution challenging the legality and propriety of this order of exemption on the principal ground that the provision contained in section 13 of the Act enabling the Government to exempt particular buildings from the operation of the Act, vested in them an unguided and arbitrary discretion which was unconstitutional as violative of the equal protection of the laws guaranteed by article 14 of the Constitution. In the affidavit in support of the petition, the second respondent further averred that in the order impugned "no justification has been shown for depriving the petitioner of the beneficial provisions of the Rent Control Act". Both the State of Madras whose order was impugned as well as the appellant Irani for whose benefit the order was passed were made respondents to this writ petition. The writ petition was dismissed by a learned Single Judge of the High Court by order dated March 12, 1953, on the ground that the constitutional validity of section 13 of the Act had already been upheld by a Division Bench of the Court in another case. The second respondent thereafter took the matter in appeal under cl. 15 of the Letters Patent. At the time this appeal was heard the Bench had before it, two other appeals in which also the question whether section 13 of the 176 Act violated article 14 of the Constitution had been raised. The three appeals were heard together and this common point was first decided by a judgment pronounced on October 23, 1953. The learned Judges held that section 13 of the Act did not offend article 14 of the Constitution but that individual orders granting the exemption might be examined to find out whether such orders were within the policy and purpose of the Act or whether they were discriminatory and therefore offended article 14. In this view the grounds upon which exemption was granted in each of the three cases before them were separately considered and in the appeal by the second respondent the learned Judges, after examining the reasons disclosed by the Government as to why they granted exemption in the particular case, held that those reasons were not germane to the purpose for which the,power of exemption had been vested in them and quashed the order of exemption. Irani feeling aggrieved by the decision of the High Court applied to and obtained a certificate under articles 132 and 133(1) of the Constitution and has filed the present appeal before us. The State of Madras has not appealed but as a respondent has filed a statement which was repeated by Counsel on their behalf, that they were not interested in disputing the correctness of the judgment of the High Court but left the matter to be decided between the rival contestants, viz., Irani and the second respondent. Mr. Sachin Chowdhary, learned Counsel for the appellant Irani, urged substantially two points before us: (1) that the impugned order of the Government exempting the buildings under section 13 of the Act was executive or administrative in its nature and not quasi judicial as wrongly held by the High Court, and was, therefore, not amenable to be quashed by the issue of a writ of certiorari, (2) assuming that the order was quasi judicial, still it could be quashed or set aside only if it were mala fide or proceeded upon grounds wholly extraneous for the purpose of the enactment and that in the instant case neither of these conditions was fulfilled and the High Court was 177 therefore not justified in setting it aside. He further submitted that the High Court had erroneously converted itself, as it were, into a Court of appeal, put itself in the place of the Government and decided the case on the basis of what the Court itself would have done if it were the exempting authority. Learned Counsel urged that this went beyond the supervisory jurisdiction of the High Court in the exercise of its powers under article 226 even when dealing with a quasi judicial order. Before dealing with these points it is necessary to mention that obviously these arguments proceed upon the basis that the power conferred by section 13 of the Act on the State Government to exempt "buildings or class of buildings from the operation of the Act is constitutionally valid. We are saying this because Mr. Viswanatha Sastri learned Counsel for the second respondent disputed before us the correctness of the decision of the High Court dated October 23, 1953, upholding the validity of section 13 of the Act. It is manifest therefore that the point urged by Mr. Viswanatha Sastri should first be decided before considering the points urged in support of the appeal. Learned Counsel for the appellant, however, raised an objection, to Counsel for the respondent being permitted to contest the validity of section 13 of the Act. He pointed out that the question of the validity of section 13 had been decided by a judgment rendered on October 23, 1953, and that as the respondent did not prefer an appeal to this Court from that judgment, he was precluded from agitating this question in the appeal now before us. We consider this objection as without substance. By its order dated October 23, 1953 writ appeal 28 of 1953 against the decision in which this appeal has been brought was not disposed of but was still kept pending before the High Court for further consideration and as observed by the learned Chief Justice in that judgment: "In this view we cannot strike down section 13 of the Act as inconsistent with the Constitution and void but we shall have to examine each case on its merits". 23 178 Writ Appeal 28 of 1953 was thereafter dealt with on its merits and it was this examination which resulted in its being allowed. In our opinion, therefore, the two judgments have to be read together and as really part of one proceeding, though for convenience and with a view to define the scope of the arguments the Court expressed its opinion on the Constitutional point at an earlier stage. We also consider that it is doubtful if an appeal would have lain from the judgment of the High Court dated October 23, 1953, and even assuming that it did in view of the matters which we have set out earlier, the respondent cannot be precluded from contesting the correctness of the conclusion of the High Court, by reason of his not having moved this Court under article 136 of the Constitution. We therefore consider that the respondent is entitled to support the judgment in his favour by attacking those portions of that judgment which are against him. The submission of Mr. Viswanatha Sastri was that section 13 of the Act conferred an unguided and arbitrary power on Government to discriminate between one building and another and choose at their will and pleasure particular buildings which would be subject to the provisions of the Act and others which would not be so subject, the tenants in the latter being deprived of the protection conferred on other tenants similarly situated. He further urged that whether or not a power to exempt a class of buildings was valid, because in such a case there might possibly be an element of classification based on rational grounds grounds germane to carry out the policy or purpose of the Act the same could not be predicated of the power to grant exemption for individual buildings because in the latter case it would be merely an arbitrary exercise of power discriminating between one building and another, or one tenant and another and which would, therefore, render the very conferment of the power invalid as in violation of the equal protection of the laws guaranteed by article 14. The arguments addressed to us were the same as bad been urged before the learned Judges of the High 179 Court and had been repelled by them. They pointed out that it was not correct to say that the enactment did not sufficiently disclose the policy and purpose of the Act which furnished adequate guidance for the basis of the exercise of the power of exemption. The preamble to the Act ran: "Whereas it is expedient to regulate the letting of residential and non residential buildings and to control the rents of such buildings and to prevent unreasonable eviction of tenants therefrom in the State". This meant that the legislation was enacted for achieving three purposes: (1) the regulation of letting, (2) the control of rents, and (3) the prevention of unreasonable eviction of tenants from residential and non residential buildings. The Act was the latest in the series of enactments and orders dating back to the period of the Second World War when due, inter alia, to large scale movement of populations to urban areas, there was an acute shortage of accommodation in the principal towns, as a result of which tenants ousted from buildings occupied by them on the termination of their tenancies could not find alternative accommodation and were thrown on the streets, and thus owners of house property could, if left unchecked, unfairly exploit those who sought accommodation. The enactment in terms protected the rights of tenants in occupation of buildings from being charged unreasonable rates of rent and from being unreasonably evicted therefrom. Tenants who required this protection included, of course, those whose duration of tenancy under the ordinary law had expired and who would, therefore, have been liable to be ejected from the buildings occupied by them. Accordingly, the definition of a "tenant" included those who continued in possession notwithstanding their term of tenancy had expired and even those against whom decrees for eviction had been passed by Civil Courts but under which eviction had not taken place. Though the enactment thus conferred these rights on tenants, it was possible that the statutory protection could either have caused great hardship to a 180 landlord or was the subject of abuse by the tenant himself. It was not possible for the statute itself to contemplate every such contingency and make specific provision therefor in the enactment. It was for this reason that a power of exemption in general terms was conferred on the State Government which, however, could be used not for the purpose of discriminating between tenant and tenant, but in order to further the policy and purpose of the Act which was, in the context of the present case, to prevent unreasonable eviction of tenants. The learned Judges of the High Court, therefore, held that while section 13 of the Act was constitutionally valid, any individual order of exemption passed by the Government could be the subject of judicial review by the Courts for finding out whether (a) it was discriminatory so as to offend article 14 of the Constitution, (b) the order was made on grounds which were germane or relevant to the policy and purpose of the Act, and (c) it was not otherwise malafide. We find ourselves in complete agreement with the approach and conclusion of the learned Judges of the High Court to the consideration of the question of the constitutional validity of section 13 of the Act. The meaning and scope of article 14 of the Constitution has been the subject of several decisions of this Court, a number of which have been considered by us in some detail in Jyoti Pershad vs Administrator of Union Territory (Writ Petition 67 etc. of 1959) in which we have pronounced judgment today. In view of this we find it unnecessary to traverse the same ground except to say that in the case before us enough guidance is afforded by the preamble and operative provisions of the Act, for the exercise of the discretionary power vested in Government so as to render the impugned section not open to attack as a denial of the equal protection of the laws. In our judgment, the provision now impugned belongs to the class numbered (v) in the analysis of the decision on article 14 by Das C. J. in Ram Krishna Dalmia vs Justice Tendolkar (1). (1) ; , 300. 181 "A statute may not make a classification of the persons or things to whom their provisions are intended to apply and leave it to the discretion of the Government to select or classify the persons or things for applying those provisions according to the policy or the principle laid down by the statute itself for guidance of the exercise of discretion by the Government in the matter of such selection or classification. If the Government in making the selection or classification does not proceed on or follow such policy or principle. . . . the executive action but not the statute should be condemned as unconstitutional." Possibly even a more apt precedent is that furnished by Sardar Inder Singh vs State of Rajasthan (1) where, among others, the validity of section 15 of the Rajasthan (Protection of Tenants) Ordinance, 1949, was upheld. That section authorised the Government to exempt any person or class of persons from the operation of the Act, and it was urged before this court that this offended article 14. The argument was repelled, observing: "It is argued that that section does not lay down the principles on which exemption could be granted, and that the decision of the matter is left to the unfettered and uncanalised discretion of the Government, and is therefore repugnant to article 14. It is true that that section does not itself indicate the grounds on which exemption could be granted, but the preamble to the Ordinance sets out with sufficient clearness the policy of the Legislature; and as that governs section 15 of the Ordinance, the decision of the Government thereunder cannot be said to be unguided. Vide Harishanker Bagla v, The State of Madhya Pradesh. " The learned Judges of the High Court were therefore, correct in their conclusion that section 13 of the Act was constitutionally valid but that individual orders of Government passed under that section could be the subject of judicial review in the manner already indicated. (1) ; , 621. 182 We shall now proceed to consider the points. urged by learned Counsel for the appellant contesting the correctness of the decision of the High Court setting aside the order of Government exempting the premises in dispute for the reason that it was passed on grounds not germane to the purpose for which the power was conferred. As already stated, the first point urged was that the order granting the exemption was an executive or an administrative order which was not amenable to being quashed by the issue of a writ of certiorari. We consider there is no substance in this objection. If the High Court were right in their view that the order of exemption was passed for reasons which did not fall within the purpose for which the power was conferred by section 13 of the Act the order itself would be one discriminatory of the second respondent as violating his fundamental right to equal protection of the laws. In such an event article 226 would certainly be available to set aside such an order which affected the fundamental right of the petitioner before the Court. Indeed, it was on the ground that individual orders passed by Government by virtue of the power conferred upon it by section 13 of the Act were examinable by the Court for their violating article 14 that the constitutionality of section 13 was upheld and in the circumstances no objection could, therefore, be taken to a judicial review of such individual orders. Besides, even if the order did not violate article 14, still if the High Court were right in the view that the same was beyond the powers conferred on Government by section 13 of the Act, we see no substance in the contention that the Court lacks power under article 226 to set aside an ultra vires order vitally affecting a person 's right to statutory protection against eviction. We do not consider that immunity from interference by the Courts could be sought for order,% which are plainly ultra vires merely because they were passed bona fide in the sense of being without indirect motive. Particularly so when the power of the High Court under article 226 of the Constitution is not limited to the issue of writs falling under particular groupings, such as the certiorari, mandamus, etc., as these writs 183 have been understood in England, but the power is general to issue any direction to the authorities, viz., for enforcement of fundamental rights as well as for other purposes. The second point urged was, and this was the main point argued by learned Counsel for the appellant,that the learned Judges of the High Court were in error in holding (a) that the reasons given by the Government were not germane to the purpose or policy of the Act and, therefore, outside the power conferred on them by section 13 of the Act, and (b) in con stituting themselves, as it were, as an appellate authority and examining the reasons which induced the Government to grant the exemption, and pronouncing upon the correctness or otherwise of these reasons. Before considering this argument it is necessary to advert to a submission of the learned Counsel for the appellant suggesting that the High Court were in error in calling for the reasons which induced the Government to pass the orders of exemption, though when the reasons were before the Court it was in a position to examine the legality of the order. We do not consider this submission well founded. The entire basis for upholding the constitutional validity of section 13 of the Act and considering that it did not offend the equal protection of the law guaranteed by article 14 of the Constitution was, that the discretion or the power conferred upon Government was not unguided, uncanalised or arbitrary, but that it had to be exercised in accordance with the policy and object of the enactment gatherable from the preamble as well as its operative provisions. The order itself might on its face have shown that it conformed to this requirement, in which event it would have been for the party challenging the validity of the order to establish to the satisfaction of the Court that it was malafide or had been passed on grounds not contemplated by or extraneous to, the object and purpose of the enactment or the principles which should have governed the exercise of the power. For instance, if the exemption had been in favour of a particular class of 184 buildings, say those belonging to charities religious or secular the classification would have been apparent in the very order of exemption. Where, however, the exemption granted is not of any class of buildings which would ex facie disclose a classification, but the exemption is of a specified building owned by A or in which B is a tenant, then prima facie it would be discriminatory and when the legality of the order is challenged, its intra vires character could be sustained only by disclosing the reasons which led to the passing of the order. In the present case, when the matter was before the appellate Court the Advocate General filed a memorandum setting out the reasons why exemption was granted in the three cases before the Court. In regard to the exemption which was the subject of controversy in writ appeal 28 of 1953 with which we are concerned, the memorandum which the Government filed ran: "The Government exempted the building. . . . for the following reasons: (1)When the High Court offered in 1940 to lease out the premises in question for a period of 21 years, Sri Chettiar elected to take it on lease only for a period of seven years, which expired in 1947. As per the High Court 's order in C. section Nos. 280 to 286 of 1939, Sri J. H. Irani, father of Sri P. J. Irani took a lease of the promises for a period of 13 years 11 1/2 months from 1947 and he deposited Rs. 10,000 towards the said lease. He is therefore entitled for the benefits from 1948 onwards. (2)Had not the Rent Control Act come into force, Sri P. J. Irani would have got possession in the ordinary course as per High Court 's order and the terms of the lease deed. The operation of the Act is therefore really a hardship to him. (3)Sri Chettiar is only an absentee lessee and he is having several other business in South India. (4)The conduct of Sri Chidambaram Chettiar in refusing to surrender the possession of the building to Sri P. J. Irani who had taken a valid lease under 185 the orders of the High Court is that of a hard litigant seeking to exploit the letter of the law without much regard to bona fides; and (5)Sri Chettiar had already managed to be in possession of the building for five more years than he was legitimately entitled to be." The learned Judges of the High Court held that the reasons which led the Government to grant the exemption were not those which were countenanced by the policy or purpose of the Act and that the order of exemption was, therefore, invalid. In doing so the learned Judges said: "Reasons 1, 2 and 4 go together and have refe rence to the order of the High Court in 1940 directing the Receivers to execute a lease for seven years to the appellant and after the expiry of that period to grant a lease for fourteen years to the second respondents father. It is undoubtedly true that but for the application of the Act, the second res pondent 's father would have obtained possession of the premises after the expiry of lease in favour of the appellant. That could be said of thousands of cases in which the leases in favour of tenants have expired and, but for the Act the owners would be entitled to obtain possession of the demised premises. If this circumstance alone is sufficient to exempt any premises from the operation of the Act, then the Act itself should be repealed. . . . . There is no policy or principle involved in this circumstance. " We agree with the learned Judges in the view here expressed. The mere fact that the tenant continued in possession after the termination of the tenancy is by itself no ground why he should be evicted from the premises, because it is the very policy of the Act to protect the right of tenants to continue in possession of the premises after the termination of their term because of the great difficulty of their obtaining alternative accommodation. The circumstance, therefore, of the termination of the second respondent 's tenancy cannot afford a justification for Government 24 186 to say that he deserved to be evicted. If the term had not expired the tenant would have been entitled to continue in possession even if the exemption were granted. Learned Counsel for the appellant urged that the High Court had failed to notice that the present case was one where there was a contest between two tenants and not between a landlord and a tenant and that they erred in approximating the position of the appellant to that of the landlord. We Bee no force in this contention, because a lessee of the reversion stands in the same position as a landlord and cannot have any higher rights, nor can the appellant derive any assistance from the fact that the second respondent declined to be a lessee for any term longer than seven years when that option was offered to him by the High Court in April May, 1940. The position of the second respondent cannot be worse than if he had taken a lease for a definite term of seven years with a covenant to restore possession at the end of the period. The fact that in May 1940, the second respondent had an option to take a lease for a longer term, but of which he did not avail himself, does not make any difference or render that a ground for withdrawing from him the protection of the statute. We also agree with the learned Judges of the High Court that ground No. 3 is not germane for granting an exemption. As was pointed out, "the important point to be considered by the Government was whether the appellant had not other theatres at which he could carry on the business which he was carrying on at the Gaiety theatre", and this they omitted to consider. The reason why the possession of the tenant whose term had expired was afforded statutory protec tion was his inability to secure alternative accommodation in which either to reside in the case of residential buildings or to carry on the business which he was carrying on in the case of non residential buildings. This was therefore a relevant matter which the Government had failed to take into account. The High Court characterised reason No. 5 as really not a reason at all and we agree with this observation. The 187 statute had admittedly conferred upon tenants, such as the second respondent the right to continue in possession after the termination of the lease in their favour, and the fact that such a tenant had exercised the rights conferred upon him by statute was certainly not an improper conduct meriting his being deprived of the statutory protection afforded by section 7. The learned Judges further pointed out that the order of Government was defective, in that it had not taken into account several relevant matters as for instance the second respondent expending considerable sums to carry out improvements to the theatre in 1949 etc. which bore upon the exercise of their power, and which if taken into account would have weighed against the grant of the exemption. In view however of the conclusion reached that the reasons assigned by Government for their order were not germane to the policy and purpose of the fact, we do not consider it necessary to pursue the matter further. The further point urged regarding the learned Judges of the High Court having erroneously constituted themselves into a Court of appeal need not detain us long. The short answer to it is that the learned Judges had not done so. The submission ignores the distinction between findings on facts which the Court in proceedings under article 226 must, save in very exceptional cases, accept as correct and the relevance of those facts for considering whether their establishment satisfied the grounds necessary for the exercise of the power vested in Government under section 13 of the Act. For instance in the case on hand, no fact found by the Government or stated by them as the reason or reasons which induced them to grant the exemption were even challenged before the High Court, the only contention urged by the second respondent which was accepted by the High Court, being that these facts were irrelevant for justifying the order. The appeal accordingly fails and is dismissed with costs to the contesting second respondent. SARKAR. , J. In this judgment we propose to deal only with one of the two questions that arise in this appeal. 188 Of these two questions, the first is whether section 13 'of the Madras Buildings (Lease and Rent Control) ' Act, 1949, offends article 14 of the Constitution. That Act makes provision, among other things, for controlling rents chargeable by landlords and for preventing unreasonable eviction of tenants. Section 13, the validity of which is challenged, gives the State Government power to exempt any building from all or any of the provisions of this Act. The contention was that this section gave arbitrary power to the Government to apply the law with unequal band as it did not furnish any guidance as to how the power to exempt was to be exercised. This question has been discussed fully by our brother Ayyangar. We agree with the view taken by him that the section does not offend the article. We have nothing further to add to what he has said on this aspect of the case. The other question is whether the power was duly exercised in the present case. On this question we have arrived at a conclusion different from that which has found favour with our brother Ayyangar. This is the question that we propose to discuss in this judgment. The power was exercised by an order made by the Government on June 4, 1952. It exempted from the operation of the Act certain premises used as a cinema house and called the Gaiety Theatre. The second respondent who was a tenant of the premises, was thereby deprived of the protection from eviction which he would have otherwise had under the Act. He, therefore, moved the High Court at Madras for a writ to quash this order. The High Court while upholding the validity of section 13 which also had been attacked by the second respondent, took the view that the order had been passed for,reasons not germane to the purpose for which the power of exemption under section 13 had been vested in Government, and quashed that order. This appeal is against this decision of the High Court. The circumstances in which the order came to be made were these. One Sir Hajee Ismail Sait had a certain plot of land in the city of Madras. He granted a 189 lease of that land sometime in 1914 to one Venkiah for constructing a cinema house on it. It is not clear whether Venkiah himself constructed any cinema house. It appears that he became insolvent and his assets, including the leasehold interest, vested in the Official Assignee who obtained an extension of the lease for a period of nine years from 1926 from the representatives of Sir Hajee Ismail Sait, who had died in the meantime. One Mrs. Madan purchased the lease hold interest from the Official Assignee and she later obtained a fresh lease from the representatives of Sir Hajee Ismail Sait for a period of seven years from June 1935, expiring on May 30, 1942. This lease gave Mrs. Madan the first option of refusal in case the lessor desired to let out the land on lease after its expiry. On January 4, 1937, the second respondent purchased from Mrs. Madan the lease hold right, including the superstructure of a cinema house which had by that time been constructed on the land by one of the previous lessees. This is the cinema house which came to be known as the Gaiety Theatre. The term of the lease was due to expire on May 30, 1942. In or about 1939, certain suits appear to have been instituted in the High Court at Madras in its Original Jurisdiction for the administration of the estate of Sir Hajee Ismail Sait. In those suits, orders had been passed appointing Receivers of that estate and the estate was thereafter being administered by the High Court. It appears that by the side of the Gaiety Theatre premises there was another plot of vacant land belonging to the same estate which was not bringing in any income. The High Court passed orders that that land should also be let out on a long term lease. The father of the appellant offered to take a lease of that land at a rent of Rs. 450 per month for a period of twenty one years with an option of renewal for another ten years, for the purpose of constructing a show house on it. This was sometime in 1940. At that time the lease of the adjoining Gaiety Theatre bad only about two more years to run. The appellant 's father did not like a competing showhouse in close 190 proximity to his own, and therefore, he suggested to the Receivers that he should be given the lease of the Gaiety Theatre premises also after the expiry of the second respondent 's lease on May 30, 1942, at the same rent which was being paid by the second respondent and for a term ending with his proposed lease in respect of the adjoining premises. The proposals were put up by the Receivers to the High Court for its consideration. The High Court thereupon called upon the second respondent to elect whether he would take a fresh lease of the Gaiety Theatre premises for a period of twenty one years after the expiry of his lease then current. This was done as he had the option under his lease. The second respondent was not prepared to take a fresh lease for twenty one years but he suggested that a lease for another seven years might be given to him on his agreeing to vacate the premises after the expiry of those seven years without claiming any extension or option. The proposals from the appellant 's father and the second respondent were then considered by the High Court and by consent of parties orders were passed by it on March 21, 1940, and the 2nd and 3rd of May, 1940. By these orders the Receivers were directed to grant a lease of the land adjoining the Gaiety Theatre premises to the appellant 's father for twenty one years commencing from May 1, 1940, with option for ten more years. These orders further directed the Receivers to grant a lease of the Gaiety Theatre premises to the second respondent for a period of seven years from the same date without any option, and to grant a lease of these premises to the appellant 's father for a period of thirteen years and eleven months and a half commencing from the expiry of the seven years for which a lease of them was going to be granted to the second respondent. The orders required the appellant 's father to deposit a security of Rs. 10,000 in respect of the leases to be granted to him and this he duly deposited. All these leases were then granted by the Receivers under the orders of the Court. Apparently, the second respondent surrendered the remaining term of his lease which 191 was to have expired on May 30, 1942. Relying on the aforesaid orders and leases and also on the second respondent 's agreement to vacate the Gaiety Theatre premises on the expiry of his lease, the appellant 's father constructed a showhouse on the land adjoining the Gaiety Theatre premises which came to be known as the Casino Theatre. On October 1, 1946, the Act came into force and in view of its provisions, the second respondent could not be evicted from the Gaiety Theatre premises even after the expiry of his lease. Taking advantage of the Act, the second respondent refused to vacate the premises after the expiry of his lease on April 30, 1947, which he had expressly agreed to do. On May 1, 1947, the appellant 's mother, his father having died in the meantime, deposited with the Receivers a further sum of Rs. 9,000 as rent in advance, as required by the terms of the lease. Thereafter the appellant ,seems to have succeeded to the estate of his father. He took various proceedings to eject the second respondent from the Gaiety Theatre premises but was unsuccessful. Thereupon he moved the Government and the Government after giving the second respondent a hearing, and fully considering the matter, passed the order of June 4, 1952. The High Court had called upon the Government to state the reasons. why it had exercised its power under a. 13 exempting the Gaiety Theatre premises from the operation of the Act. The Advocate General appearing for the Government, the first respondent in this appeal, filed a memorandum setting out these reasons. The reasons were as follows: "(1). When the High Court offered in 1940 to lease out the premises in question for a period of 21 years, Sri Chettiar elected to take it on lease only for a period of seven years, which expired in 1947. As per the High Court 's order in C. section No. 280 286/1939, Sri J. H. Irani took a lease of the premises for a period of 13 years and 11 1/2 months from 1947 and he deposited Rs. 10,000 towards the said lease. He is therefore entitled for the benefits from 1948 onwards. 192 (2)Had not the Rent Control Act come into force, Sri P. J. Irani would have got possession in the ordinary course as per High Court 's order and the terms of the lease deed. The operation of the Act is therefore really a hardship to him. (3) Sri Chettiar is only an absentee lessee and he is having several other businesses in South India. (4) The conduct of Sri Chidambaram Chettiar in (4) Sri Chettiar had already managed to be in refusing to surrender the possession of th e building to Sri P. J. Irani who had taken a valid lease under the orders of the High Court is that of hard litigant seeking to exploit the letter of the law without much regard to bona fides; and (5)Sri Chettiar had already managed to be in possession of the building for five more years than he was legitimately entitled to be." The High Court having considered the reasons came to the conclusion that they did not serve the purpose of the Act. We are unable to accept this view. It may be that some of the reasons given would not have justified the order but broadly, we think, they referred to facts which showed that the power had been exercised legitimately. Indeed, on the facts of this case which we have set out earlier, we think that it was unnecessary for the High Court to ask the Government to state the reasons for its order. In our view, these facts themselves sufficiently show that the order was within the objects of the Act and not extraneous to section 13. We wish to observe before we proceed further, that in considering whether the reasons given by the Government are sufficient to bring the order within the objects of the Act, the High Court had no power to act as if it were sitting in appeal over the Government 's decision. A court cannot set aside an order under section 13 on the ground that it would not itself have made the order for the reasons for which the Government had made it. All that the Court has to see is whether the power was used for any extraneous purpose, that is to say, not for achieving the object for which the power had been granted. When it is alleged that the power was used for a purpose other than achieving the object for which the 193 power is granted, the initial onus must be on the party which alleges abuse of power and there must be prima facie evidence in support of the allegation. It is only then that the onus may shift. However all this may be, was the power in this case in fact used for an extraneous purpose? It is not said that the power had been exercised for any ulterior purpose. Now, the purpose of the Act, quite clearly, is to prevent unreasonable eviction and also to control rent. These two purposes are intertwined. An eviction becomes unreasonable where the object is to exploit the situation arising out of the dearth of accommodation by letting out the premises at an unreasonably high rent and on realisation of extortionate premium. Often these are realised secretly, particularly so, the premium. Therefore, when there is no risk of an opportunity arising in which a landlord may be able to realise illegal rent or premium, an eviction may not be unreasonable; indeed, there may be circumstances which would justify the inference that the tenant is trying to take an undue advantage of the situation and in such a case, the Government would be justified and within its power to exempt the premises from the operation of the Act. That is the position here. The lease was granted at a point of time when the situation was normal, that is, when a landlord was not in a position to make an unconscionable bargain for himself by exploiting the situation, for the lease was granted in 1940 when there was no scarcity of accommodation. Next, the lease was granted under orders of Court. It was granted by the officers of the Court. There is no question of either the Court or the officers using the situation for purposes of exploitation. Again, to refuse exemption under section 13 in the present case would amount to preventing the Court from administering the estate in its charge in a manner which it has the power to do and which of course is its duty to do for the benefit of the parties entitled to the estate. There was nothing unfair to the second respondent in granting the exemption, for the second respondent had been given the 25 194 option to take up the lease. He had refused it. He is now objecting to the exemption only because he finds it more profitable to continue in the premises than he thought it would be at the time the offer had been made to him. The appellant and his father had been deprived for a long time of the use of a considerable sum of money which was paid in terms of the bargain to which the second respondent had freely entered. It may be that the appellant 's father would not have gone in for the lease of the Casino Theatre premises and spent enormous sums of money for constructing a showhouse there if the second respondent had not given him to understand that he would leave the Gaiety Theatre premises on April 30, 1947. The fact that the second respondent spent money, if any, in improving the Gaiety Theatre premises is irrelevant. He knew that he had undertaken to vacate the premises by April 30, 1947, and that the appellant was taking steps to recover possession of these premises. We do not think that the difficulties of a tenant on eviction decide what is or is not "unreasonable eviction". One of the objects of the Act as stated in the preamble is "to prevent unreasonable eviction of tenants". The word "unreasonable" necessarily connotes a consideration of all the circumstances including the conduct of parties in order to find out what is unreasonable. It seems to us that under section 13 it is the duty of the Government to take into consideration all the relevant circumstances of a particular case or class of cases in order to determine if the pro tection of the Act given to the tenant or tenants concerned should be withdrawn. The section is applicable not merely to institutions like hospitals or schools, but may be applied to other cases also, where there is no question of any unreasonable eviction of the tenant, or where prevention of eviction itself may be unreasonable. We, therefore, think that the Government 's action in exempting the Gaiety Theatre premises from the operation of the Act was within the scope of the Act, and the High Court does not seem to have considered the case from this point of view. For these reasons, in our view, the order of June 4, 195 1952, was a competent and legal order and no exception can be taken to it. We would, therefore, allow the appeal and set aside the order of the High Court. The second respondent should pay the costs of the other parties throughout. By COURT. In accordance with the majority Judgment, the appeal is dismissed with costs to the contesting second respondent.

IN-Abs

One C had obtained a lease of a cinema house which was to expire in May 1942. In the meantime litigation ensued between the owners of the cinema house, and the High Court appointed receivers to administer the property. In 1940 one I offered to take a lease of the cinema house for 21 years. The High Court offered C the option of taking the lease for 21 years but C was willing to take it only for 7 years upto May 1947. Thereupon the High Court ordered that a lease be given to C upto May 1947, and thereafter the lease be given to 1 upto May 1961. In accordance with this order the receivers executed two leases, one in favour of C and a reversionary lease in favour of I. Before the lease in favour of C expired the Madras (Lease & Rent Control) Act, 1946, came into force which protected tenants in 22 170 possession from eviction even after the expiry of their leases. This Act was replaced by the Madras Buildings (Lease & Rent Control) Act, 1949, which contained similar provisions. Section 13 of the 1949 Act empowered the State Government to "exempt any building or class of buildings from all or any of the provisions of this Act. " On the application of I the Government passed an order on June 4, 1952, under section 13 exempting the cinema house from all the provisions of the Act. Subsequently, the reasons for making the order were given by the Government to be: (i) C had deliberately, though he had been offered a lease for 21 years by the High Court, taken a lease for 7 years and he was seeking to take advantage of the Act after the expiry of his lease, (ii) C was an absentee lessee and had several other business and (iii) C had already been in possession for 5 years more than he was legitimately entitled to be. C filed a writ petition before the High Court for quashing the order on the grounds that section 13 of the Act vested in the Government an unguided and uncontrolled discretion and violated article 14 of the Constitution and that the order deprived C of the equal protection of the beneficial provisions of the Act. The High Court held that section 13 was not unconstitutional but that the order of the Government was ultra vires. I appealed to the Supreme Court. At the hearing C sought to challenge the validity of section 13 also. Held, that section 13 of the Act did not violate article 14 and was not unconstitutional. Enough guidance was afforded by the preamble and the operative provisions of the Act for the exercise of the discretionary power vested in the Government. The power tinder section 13 was to be exercised in cases where the protection given by the Act caused great hardship to the landlord or was the subject of abuse by the tenant. Ram Krishna Dalmia vs Sri justice Tendolkar, [1959] S.C.R. 279 and Sarday Inder Singh vs State of Rajasthan, ; , followed. Held, (per Sinha, C.J., Ayyangar and Mudholkar, jj.), that the order passed by the Government under section 13 was ultra vires and void. An order made under section 13 was subject to judicial review on the grounds that (a) it was discriminatory, (b) it was made on grounds which were not germane or relevant to the policy and purpose of the Act, and (c) it was made on grounds which were mala fide. In the present case the grounds given for granting the exemption were not those countenanced by the policy or purpose of the Act. The mere fact that C had taken the lease for 7 years and continued in possession after its expiry was no ground for eviction as the policy of the Act was to protect such possession. The fact that C had other business was immaterial; the Government failed to consider the question whether if C was evicted he could secure alternative accommodation where he could carry on the business which he was carrying on in the cinema house. 171 Per section K. Das and A. K. Sarkar, JJ. The order passed by the Government under section 13 was a competent and legal order. All that the court had to see was whether the power had been used for any extraneous purpose, i.e., not for achieving the object for which the power was granted. The purpose of the Act was to prevent unreasonable eviction and to control rent. Where, as in the present case, there was no risk of the landlord being able to realise illegal rent or premium the eviction would not be unreasonable. Further, if exemption was refused in the present case it would prevent the High Court from administering the property in its charge. The order was not unfair to C for he had been offered a lease for 21 years which he declined.

minal Appeal No. 177 of 1959. Appeal by special leave from the judgment and order dated May 23, 1958, of the Punjab High Court in Criminal Appeal No. 515 of 1957. Jai Gopal Sethi and R. L. Kohli, for the appellant. B. K. Khanaa, R. H. Debhar and D. Gupta, for the respondent. April 24. The Judgment of the Court was delivered by RAGHUBAR DAYAL, J. This appeal, by special leave, is against the order of the Punjab High Court dismissing the appellant 's appeal against his conviction under section 307, Indian Penal Code. Bimla Devi, P. W. 7, was married to the appellant in October, 1951. Their relations got strained by 1953 and she went to her brother 's place and stayed there for about a year, when she returned to her husband 's place at the assurance of the appellant 's maternal uncle that she would not be maltreated in future. She was, however, ill treated and her health deteriorated due to alleged maltreatment and deliberate undernourishment. In 1956, she was deliberately starved and was not allowed to leave the house and only sometimes a morsel or so used to be thrown to her as alms are given to beggars. She was denied food for days together and used to be given gram husk mixed in water after five or six days. She managed to go out of the house in April 1956, but Romesh Chander and Suresh Chander, brothers of the appellant, caught 256 hold of her and forcibly dragged her inside the house where she was severely beaten. Thereafter, she was kept locked inside a room. On June 5, 1956, she happened to find her room unlocked, her mother in law and husband away and, availing of the opportunity, went out of the house and managed to reach the Civil Hospital, Ludhiana, where she met lady Doctor Mrs. Kumar, P. W. 2, and told her of her sufferings. The appellant and his mother went to the hospital and tried their best to take her back to the house, but were not allowed to do so by the lady Doctor. Social workers got interested in the matter and informed the brother of Bimla Devi, one Madan Mohan, who came down to Ludhiana and, after learning all facts, sent information to the Police Station by letter on June 16, 1956. In his letter he said: "My sister Bimla Devi Sharma is lying in death bed. Her condition is very serious. I am told by her that deliberate attempt has been made by her husband, mother in law and brother in law and sister in law. I was also told that she was kept locked in a room for a long time and was beaten by all the above and was starved. I therefore request that a case may be registered and her statement be recorded, immediately. " The same day, at 9 15 p.m., Dr. Miss Dalbir Dhillon sent a note to the police saying 'My patient Bimla Devi is actually ill. She may collapse any moment '. Shri Sehgal, Magistrate, P.W. 9, recorded her statement that night and stated in his note: "Blood transfusion is taking place through the right forearm and consequently the right hand of the patient is not free. It is not possible to get the thumb impression of the right hand thumb of the patient. That is why I have got her left hand thumb impression. " The impression formed by the learned Judge of the High Court on seeing the photographs taken of Bimla Devi a few days later, is stated thus in the judgment: "The impression I formed on looking at the two 257 photographs of Bimla was that at that time she appeared to be suffering from extreme emaciation. Her cheeks appeared to be hollow. The projecting bones of her body with little flesh on them made her appearance skeletal. The countenance seemed ' to be cadaverous." After considering the evidence of Bimla Devi and the Doctors, the learned Judge came to the conclusion: "So far as the basic allegations are concerned, which formed the gravamen of the offence, the veracity of her statement cannot be doubted. After a careful scrutiny of her statement, I find her allegations as to starvation, maltreatment, etc., true. The exaggerations and omissions to which my attention was drawn in her statement are inconsequential. " After considering the entire evidence on record, the learned Judge said: "After having given anxious thought and careful consideration to the facts and circumstances as emerge from the lengthy evidence on the record, I cannot accept the argument of the learned counsel for the accused, that the condition of acute emacia tion in which Bimla Devi was found on 5th of June, 1956, was not due to any calculated starvation but it was on account of prolonged illness, the nature of which was not known to the accused till Dr. Gulati had expressed his opinion that she was suffering from tuberculosis." He further stated: "The story of Bimla Devi as to how she was illtreated, and how, her end was attempted to be brought about or precipitated, is convincing, despite the novelty of the method in which the object was sought to be achieved. The conduct of the accused and of his mother on 5th of June, 1956, when soon after Bimla Devi 's admission in the hospital they insisted on taking her back home, is significant and almost tell tale. It was not for better treatment or for any treatment that they wanted to take her back home. Their real object in doing so could be no other than to accelerate her end. " 258 The appellant was acquitted of the offence under s.342, Indian Penal Code, by the Additional Sessions Judge, who gave him the benefit of doubt, though he had come to the conclusion that Bimla Devi 's movements were restricted to a certain extent. The learned Judge of the High Court considered this question and came to a different conclusion. Having come to these findings, the learned Judge considered the question whether on these facts an offence under section 307, Indian Penal Code, had been established or not. He held it proved. Mr. Sethi, learned counsel for the appellant, has challenged the correctness of this view in law. He concedes that it is only when a person is helpless and is unable to look after himself that the person having control over him is legally bound to look after his requirements and to see that he is adequately fed. Such persons, according to him, are infants, old people and lunatics. He contends that it is no part of a husband 's duty to spoon feed his wife,, his duty being simply to provide funds and food. In view of the finding of the Court below about Bimla Devi 's being confined and being deprived of regular food in pursuance of a scheme of regularly starving her in order to accelerate her end, the responsibility of the appellant for the condition to which she was brought up to the 5th of June, 1956, is clear. The findings really go against any suggestion that the appellant had actually provided food and funds for his wife Bimla Devi. The next contention for the appellant is that the ingredients of an offence under section 307 are materially different from the ingredients of an offence under section 511, Indian Penal Code. The difference is that for an act to amount to the commission of the offence of attempting to commit an offence, it need not be the last act and can be the first act towards the commission of the offence, while for an offence under section 307, it is the last act which, if effective to cause death, would constitute the offence of an attempt to commit murder. The contention really is that even if Bimla Devi had been deprived of food for a certain period, the act of so depriving her does not come under section 307, 250 as that act could not, by itself, have caused her death, it being necessary for the period of starvation to continue for a longer period to cause death. We do not agree with this contention. Section 307 of the Indian Penal Code reads: "Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and, if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned. When any person offending under this section is under sentence of imprisonment for life, he may, if hurt is caused, be punished with death. " Section 308 reads: "Whoever does any act with such intention or knowledge and under such circumstances that, if he by that act caused death, he would be guilty of culpable homicide not amounting to murder, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and, if hurt is caused to any person by such act, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both." Both the sections are expressed in similar language. If section 307 is to be interpreted as urged for the appellant, section 308 too should be interpreted that way. What ' ever may be said with respect to section 307, being exhaustive or covering all the cases of attempts to commit murder and section 511 not applying to any case of attempt to commit murder on account of its being applicable only to offences punishable with imprisonment for life or imprisonment, the same cannot be said with respect to the offence of attempt to commit culpable homicide punishable under section 308. An attempt to commit culpable homicide is punishable with imprisonment for a certain period and therefore but for its being expressly made an offence under section 308, it would have 260 fallen under section 511 which applies to all attempts to commit offences punishable with imprisonment where no express provisions are made by the Code for the punishment of that attempt. It should follow that the ingredients of an offence of attempt to commit culpable homicide not amounting to murder should be the same as the ingredients of an offence of attempt to commit that offence under section 511. We have held this day in Abhayanand Mishra vs The State of Bihar (1) that a person commits the offence of attempting to commit a particular offence, when he intends to commit that particular offence and, having made preparations and with the intention to commit that offence does an act towards its commission and that such an act need not be the penultimate act towards the commission of that offence, but must be an act during the course of committing such offence. It follows therefore that a person commits an offence under section 308 when he has an intention to commit culpable homicide not amounting to murder and in pursuance of that intention does an act towards the commission of that offence whether that act be the penultimate act or not. On a parity of reasoning, a person commits an offence under section 307 when he has an intention to commit murder and, in pursuance of that intention, does an act towards its commission irrespective of the fact whether that act is the penultimate act or not. It is to be clearly understood, however, that the intention to commit the offence of murder means that the person concerned has the intention to do certain act with the necessary intention or knowledge mentioned in section 300. The intention to commit an offence is different from the intention or knowledge requisite for constituting the act as that offence. The expression 'whoever attempts to commit an offence ' in section 511, can only mean 'whoever intends to do a certain act with the intent or knowledge necessary for the commission of that offence '. The same is meant by the expression 'whoever does an act with such intention or knowledge and under such circumstances that if he, by that act, caused death, he would be guilty of murder ' in section 307. This simply means that the act must be done with the (1) ; 261 intent or knowledge requisite for the commission of the offence of murder. The expression by that act ' does not mean that the immediate effect of the act committed must be death. Such a result must be the result of that act whether immediately or after a lapse of time. The word 'act ' again, does not mean only any particular, specific, instantaneous act of a person, but denotes, according to section 33 of the Code, as well, a series of acts. The course of conduct adopted by the appellant in regularly starving Bimla Devi comprised a series of acts and therefore acts falling short of completing the series, and would therefore come within the purview of section 307 of the Code. Learned counsel for the appellant has referred us to certain cases in this connection. We now discuss them. The first is Queen Empress vs Nidha (1). Nidha, who had been absconding, noticing certain chowkidars arrive, brought up a sort of a blunderbuss he was carrying, to the hip and pulled the trigger. The cap exploded, but the charge did not go off. He was convicted by the Sessions Judge under sections 299 and 300 read with section 511, and not under section 307, Indian Penal Code, as the learned Judge relied on a Bombay Case Regina vs Francis Cassidy (1) in which it was held that in order to constitute the offence of attempt to murder, under section 307, the act committed by the person must be an act capable of causing, in the natural and ordinary course of events, death. Straight, J., both distinguished that case and did not agree with certain views expressed therein. He expressed his view thus, at p. 43: "It seems to me that if a person who has an evil intent does an act which. is the last possible act that he could do towards the accomplishment of a particular crime that he has in his mind, he is not entitled to pray in his aid an obstacle intervening not known to himself. If he did all that he could (1) All. (2) (1867) Bom. H.C. Reps. IV, P. 17 (Crown Cases). 34 262 do and completed the only remaining proximate act in his power, I do not think he can escape criminal responsibility, and this because his own set volition and purpose having been given effect to their full extent, a fact unknown to him and at variance with his own belief, intervened to prevent the consequences of that act which he expected to ensue, ensuing. " Straight, J., gave an example earlier which itself does not seem to fit in with the view expressed by him later. He said: "No one would suggest that if A intending to fire the stack of B, goes into a grocery shop and buys a box of matches, that he has committed the offence of attempting to fire the stack of B. But if he, having that intent, and having bought the box of matches, goes to the stack of B and lights the match, but it is put out by a puff of wind, and he is so prevented and interfered with, that would establish in my opinion an attempt." The last act, for the person to set fire to the stack, would have been his applying a lighted match to the stack. Without, doing this act, he could not have set fire and, before he could do this act, the lighted match is supposed to have been put out by a puff of wind. Illustration (d) to section 307, itself shows the incorrectness of this view. The illustration is: "A, intending to murder Z, by poison, purchases poison and mixes the same with food which remains in A 's keeping; A has not yet committed the offence in this section. A places the food on Z 's table or delivers it to Z 's servants to place it on Z 's table. A has committed the offence defined in this section. " A 's last act, contemplated in this illustration, is not an act which must result in the murder of Z. The food is to be taken by Z. It is to be served to him. It may not have been possible for A to serve the food himself to Z, but the fact remains that A 's act in merely delivering the food to the servant is fairly remote to the food being served and being taken by Z. 263 This expression of opinion by Straight, J., was not really with reference to the offence under section 307, but was with reference to attempts to commit any particular offence and was stated, not to emphasize the necessity of committing the last act for the commission of the offence, but in connection with the culprit taking advantage of an involuntary act thwarting the completion of his design by making it impossible for the offence being committed. Straight, J., himself said earlier: "For the purpose of constituting an attempt under section 307, Indian Penal Code, there are two ingredients required, first, an evil intent or knowledge, and secondly, an act done." In Emperor vs Vasudeo Balwant Gogte (1) a person fired several shots at another. No injury was in fact occasioned due to certain obstruction. The culprit was convicted of an offence under section 307. Beaumont, C. J.,said at p. 438: "I think that what section 307 really means is that the accused must do an act with such a guilty intention and knowledge and in such circumstances that but for some intervening fact the act would have amounted to murder in the normal course of events". This is correct. In the present case, the intervening fact which thwarted the attempt of the appellant to commit the murder of Bimla Devi was her happening to escape from the house and succeeding in reaching the hospital and thereafter securing good medical treatment. It may, however, be mentioned that in cases of attempt to commit murder by fire arm, the act amounting to an attempt to commit murder is bound to be the only and the last act to be done by the culprit. Till he fires, he does not do any act towards the commission of the offence and once he fires, and something happens to prevent the shot taking effect, the offence under section 307 is made out. Expressions, in such cases, indicate that one commits an attempt to murder only when one has committed the last act (1) Bom 434. 264 necessary to commit murder. Such expressions, however, are not to be taken as precise exposition of the law, though the statements in the context of the cases are correct. In Mi Pu vs Emperor (1) a person who had put poison in the food was convicted of an offence under section 328 read with section 511, Indian Penal Code, because there was no evidence about the quantity of poison found and the probable effects of the quantity mixed in the food. It was therefore held that the accused cannot be said to have intended to cause more than hurt. The case is therefore of no bearing on the question under determination. In Jeetmal vs State (2) it was held that an act under section 307, must be one which, by itself, must be ordinarily capable of causing death in the natural ordinary course of events. This is what was actually held in Cassidy 's Case (3) and was not approved in Niddha 's Case (4) or in Gogte 's Case (4). We may now refer to Rex vs White (6). In that case, the accused, who was indicted for the murder of his mother, was convicted of attempt to murder her. It was held that the accused had put two grains of cyanide of potassium in the wine glass with the intent to murder her. It was, however, argued that there was no attempt at murder because 'the act of which he was guilty, namely, the putting the poison in the wine glass, war, a completed act and could not be and was not intended by the appellant to have the effect of killing her at once; it could not kill unless it were followed by other acts which he might never have done '. This contention was repelled and it was said: "There seems no doubt that the learned judge in effect did tell the jury that if this was a case of slow poisoning the appellant would be guilty of the attempt to murder. We are of opinion that this direction was right, and that the completion or attempted completion of one of a series of acts intended by a man to result in killing is an attempt (1) (2) A.I.R. 1950 Madhya Bharat 21. (3) (1867) Bom. H. C. Reps. IV, p. 17 (Crown Cases). (4) All. (5) (1032) I.L. R. (6) 265 to murder even although this completed act would not, unless followed by the other acts, result in killing. It might be the beginning of the attempt, but would nonetheless be an attempt". This supports our view. We therefore hold that the conviction of the appellant under section 307, Indian Penal Code, is correct and accordingly dismiss this appeal. Appeal dismissed.

IN-Abs

B was married to the appellant in October, 1951, but their relations got strained by 1953. She was ill treated and her health deteriorated due to maltreatment and under nourish ment. In 1956 she was deliberately starved and not allowed to leave the house in which they were living and only sometimes a morsel or so used to be thrown to her as alms are given to beggars. On June 5,1956, she managed to escape from the house and went to the Civil Hospital at Ludhiana. Her brother came down to Ludhiana on learning of the facts and made a complaint to the police. The doctor who attended on B sent a note to the police saying that she was seriously ill and might collapse any moment. The appellant was prosecuted for the offence of attempting to murder B under section 307 Of the Indian Penal Code. The trial Court acquitted him but, on appeal, the High Court came to a finding, on the evidence, that the object of the appellant was to confine B and deprive her of regular food in pursuance of a scheme of regular starvation in order to accelerate her end, and convicted him under section 307 Of the Indian Penal Code. On behalf of the appellant it was contended, inter alia, that whereas under section 511 Of the Code for an Act to amount to the offence of attempting to commit an offence it need not be the last act and can be the first act towards the commission of the offence, under section 307 it is the last act which, if effective to cause death, would constitute the offence of an attempt to commit murder, and that even if B had been deprived of food for a certain period, the act of so depriving her did not come under section 307 as that act could not, by itself have caused her death, it being necessary for the period of starvation to continue for a longer period to cause death. Held, that a person commits an offence under section 307 Of the Indian Penal Code when he has an intention to commit murder and in pursuance of that intention does an act towards its commission irrespective of the fact whether that act is the penultimate act or not. Abhayanand Mishra vs The State of Bihar, [1962] 2 S.C.R. 241, followed. Rex vs White, , relied on. Queen vs Nidha, All. 38 and Emperor vs Vasudeo Balwant Gogte, BOM. 434, considered, 255 Jeetmal vs State, A.I.R. 1950 Madhya Bharat 21, disapproved. The word 'act ' in section 307 did not mean only a particular act of a person, but denoted, according to section 33 Of the Code, as well, a series of acts. In the present case the course of conduct adopted by the appellant in regularly starving his wife B, comprised a series of acts which though they fell short of completing the series sufficient to kill her, came within the purview Of section 307 Of the Indian Penal Code. The High Court was, therefore, right in convicting the appellant under that section.

minal Appeal No. 226 of 1959. Appeal by special leave from the judgment and order dated September 23, 1958, of the Patna High Court in Criminal Appeal No. 87 of 1957. H. J. Umrigar, P. Rana and M. K. Ramamurai, for the appellant. 243 H. R. Khanna and T. M. Sen, for the respondent. April 24. The Judgment of the Court was delivered by RAGHUBAR DAYAL, J. This appeal, by special leave, is against the order of the High Court at Patna dismissing the appellant 's appeal against his conviction under section 420, read with section 511, 'of the Indian Penal Code. The appellant applied to the Patna University for permission to appear at the 1954 M. A. Examination in English as a private candidate, representing that he was a graduate having obtained his B.A. Degree in 1951 and that he had been teaching in a certain school. In support of his application, he attached certain certificates purporting to be from the Headmaster of the School, and the Inspector of Schools. The University authorities accepted the appellant 's statements and gave permission and wrote to him asking for the remission of the fees and two copies of his photograph. The appellant furnished these and on April 9, 1954, proper admission card for him was despatched to the Headmaster of the School. Information reached the University about the appellant 's being not a graduate and being not a teacher. Inquiries were made and it was found that the certificates attached to the application were forged, that the appellant was not a graduate and was not a teacher and that in fact he had been de barred from taking any University examination for a certain number of years on account of his having committed corrupt practice at a University examination. In consequence, the matter was reported to the police which, on investigation, prosecuted the appellant. The appellant was acquitted of the charge of forging those certificates, but was convicted of the offence of attempting to cheat inasmuch as he, by false representations, deceived the University and induced the authorities to issue the admission card, which, if the fraud had not been detected, would have been ultimately delivered to the appellant. Learned counsel for the appellant raised two contentions. The first is that the facts found did not amount 244 to the appellant 's committing an attempt to cheat the University but amounted just to his making preparations to cheat the University. The second is that even if the appellant had obtained the admission card and appeared at the M. A. Examination, no offence of cheating under section 420, Indian Penal Code, would have been committed as the University, would not have suffered any harm to its reputation. The idea of the University suffering in reputation is too remote. The offence of cheating is defined in section 415, Indian Penal Code, which reads: "Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omis sion causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to 'cheat '. Explanation. A dishonest concealment of facts is a deception within the meaning of this section. " The appellant would therefore have cheated the University if he had (i) deceived the University; (ii) fraudulently or dishonestly induced the University to deliver any property to him; or (iii) had intentionally induced the University to permit him to sit at the M.A. Examination which it would not have done if it was not so deceived and the giving of such permission by the University caused or was likely to cause damage or harm to the University in reputation. There is no doubt that the appellant, by making false statements about his being a graduate and a teacher, in the applications he had submitted to the University, did deceive the University and that his intention was to make the University give him permission and deliver to him the admission card which would have enabled him to sit for the M.A. Examination. This card is 'Property '. The appellant would therefore have committed the offence of 'cheating ' if the admission card had not been withdrawn due to certain information reaching the University. 245 We do not accept the contention for the appellant that the admission card has no pecuniary value and is therefore not 'property '. The admission card as such has no pecuniary value, but it has immense value to the candidate for the examination. Without it he cannot secure admission to the examination hall and consequently cannot appear at the Examination. In Queen Empress vs Appasami (1) it was held that the ticket entitling the accused to enter the examination room and be there examined for the Matriculation test of the University was 'property '. In Queen Empress vs Soshi Bhushan (2) it was held that the term 'property ' in section 463, Indian Penal Code, included the written certificate to the effect that the accused had attended, during a certain period, a course of law lectures and had paid up his fees. We need not therefore consider the alternative case regarding the possible commission of the offence of cheating by the appellant, by his inducing the University to permit him to sit for the examination, which it would not have done if it had known the true facts and the appellant causing damage to its reputation due to its permitting him to sit for the examination. We need not also therefore consider the further question urged for the appellant that the question of the University suffering in its reputation is not immediately connected with the accused 's conduct in obtaining the necessary permission. Another contention for the appellant is that the facts proved do not go beyond the stage of reparation for the commission of the offence of `cheating ' and do not make out the offence of attempting to cheat. There is a thin line between the preparation for and an attempt to commit an offence. Undoubtedly, a culprit first intends to commit the offence, then makes preparation for committing it and thereafter attempts to commit the offence. If the attempt succeeds, he has committed the offence; if it fails due to reasons beyond his control, he is said to have attempted to commit the offence. Attempt to commit an offence, therefore, can be said to begin when the preparations (1) Mad. 151. (2) All. 210, 246 are complete and the culpit commences to do something with the intention of committing the offence and which is a step towards the commission of the offence. The moment he commences to do an act with the necessary intention, he commences his attempt to commit the offence. This is clear from the general expression 'attempt to commit an offence ' and is exactly what the provisions of section 511, Indian Penal Code, require. The relevant portion of section 511 is: "Whoever attempts to commit an offence punish able by this Code. . or to cause such an offence to be committed and in such attempt does any act towards the commission of the offence, shall, where no express provision is made by this Code for the punishment of such attempt, be punished. . " These provisions require that it is only when one, firstly, attempts to commit an offence and, secondly, in such attempt, does any act towards the commission of the offence, that he is punishable for that attempt to commit the offence. It follows, therefore, that the act which would make the culprit 's attempt to commit an offence punishable, must be an act which, by itself, or in combination with other acts, leads to the commission of the offence. The first step in the commission of the offence of cheating, therefore, must be an act which would lead to the deception of the person sought to be cheated. The moment a person takes some step to deceive the person sought to be cheated, he has embarked on a course of conduct which is nothing less than an attempt to commit the offence, as contemplated by section 511. He does the act with the intention to commit the offence and the act is a step towards the commission of the offence. It is to be borne in mind that the question whether a certain act amounts to an attempt to commit a particular offence is a question of fact dependent on the nature of the offence and the steps necessary to take in order to commit it. No exhaustive precise definition of what would amount to an attempt to commit an offence is possible. The cases referred to make this clear. 247 We may refer to some decided cases on the construction of section 511, Indian Penal Code. In The Queen vs Ramsarun Chowbey (1) it was said at p. 47: "To constitute then the offence of attempt under this section (section 511), there must be an act done with the intention of committing an offence, and for the purpose of committing that offence, and it must be done in attempting the commission of the offence. Two illustrations of the offence of attempt as defined in this section are given in the Code; both are illustrations of cases in which the offence has been committed. In each we find an act done with the intent of committing an offence and immediately enabling the commission of the offence, although it was not an act which constituted a part of the offence,, and in each we find the intention of the person making the attempt was frustrated by circumstances independent of his own volition. From the illustrations it may be inferred that the Legislature did not mean that the act done must be itself an ingredient (so to say) of the offence attempted. . The learned Judge said, further, at p. 49: "I regard that term (attempt) as here employed as indicating the actual taking of those steps which lead immediately to the commission of the offence, although nothing be done, or omitted, which of itself is a necessary constituent of the offence attempted". We do not agree that the 'act towards the commission of such offence ' must be 'an act which leads immediately to the commission of the offence '. The purpose of the illustration is not to indicate such a construction of the section, but to point out that the culprit has done all that be necessary for the commission of the offence even though he may not actually succeed in his object and commit the offence. The learned Judge himself emphasized this by observing at p. 48: "The circumstances stated in the illustrations to (1) (1872) 4 N.W.P. 46. 248 section 51 1, Indian Penal Code, would not have constituted attempts under the English law, and I cannot but think that they were introduced in order to show that the provisions of Section 51 1, Indian Penal Code, were designed to extend to a much wider range of cases than would be deemed punishable as offences under the English Law". In In the matter of the petition of R. MacCrea (1) it was held that whether any given act or series of acts amounted to an attempt which the law would take notice of or merely to preparation, was a question of fact in each case and that section 511 was not meant to cover only the penultimate act towards the completion of an offence and not acts precedent, if those acts are done in the course of the attempt to commit the offence, and were done with the intent to commit it and done towards its commission. Knox, J., said at p. 179: "Many offences can easily be conceived where, with all necessary preparations made, a long interval will still elapse between the hour when the attempt to commit the offence commences and the hour when it is completed. The offence of cheating and inducing delivery is an offence in point. The time that may elapse between the moment when the preparations made for committing the fraud are brought to bear upon the mind of the person to be deceived and the moment when he yields to the deception practiced upon him may be a very considerable interval of time. There may be the interposition of inquiries and other acts upon his part. The acts whereby those preparations may be brought to bear upon her mind may be several in point of number, and yet the first act after preparations completed will, if criminal in itself, be beyond all doubt, equally an attempt with the ninety and ninth act in the series. Again, the attempt once begun and a criminal act done in pursuance of it towards the commission of the act attempted, does not cease to be a criminal attempt, in my opinion, because the person (1) I.L.R. 15 All. 173. 249 committing the offence does or may repent before the attempt is completed". Blair, J., said at p. 181: "It seems to me that section (section 511) uses the word 'attempt ' in a very large sense; it seems to imply that such an attempt may be made up of a series of acts, and that any one of those acts done towards the commission of the offence, that is, conducive to its commission, is itself punishable, and though the act does not use the words, it can mean nothing but punishable as an attempt. It does not say that the last act which would form the final part of an attempt in the larger sense is the only act punishable under the section. It says expressly that whosoever in such attempt, obviously using the word in the larger sense, does any act, etc., shall be punishable. The term 'any act ' excludes the notion that the final act short of actual commission is alone punishable. " We fully approve of the decision and the reasons therefor. Learned counsel for the appellant relied on certain cases in support of his contention. They are not much to the point and do not in fact express any different opinion about the construction to be placed on the provisions of section 511, Indian Penal Code. Any different view expressed has been due to an omission to notice the fact that the provisions of section 511, differ from the English Law with respect to 'attempt to commit an offence '. In Queen vs Paterson (1) the publication of banns of marriage was not held to amount to an attempt to commit the offence of bigamy under section 494, Indian Penal Code. It was observed at p. 317: "The publication of banns may, or may not be, in cases in which a special license is not obtained. a condition essential to the validity of a marriage, but common sense forbids us to regard either the publication of the banns or the procuring of the license as a part of the marriage ceremony. " (1) I.L.R. 1 All. 32 250 The distinction between preparation to commit a crime and an attempt to commit it was indicated by quoting from Mayne 's Commentaries on the Indian Penal Code to the effect: "Preparation consists in devising or arranging the means or measures necessary for the commission of the offence; the attempt is the direct movement towards the commission after the preparations have been made." In Regina vs Padala Venkatasami (1) the preparation of a copy of an intended false document, together with the purchase of stamped paper for the purpose of writing that false document and the securing of information about the facts to be inserted in the document, were held not to amount to an attempt to commit forgery, because the accused had not, in doing these acts, proceeded to do an act towards the commission of the offence of forgery. In In the matter of the petition of Riasat Ali (2) the accused 's ordering the printing of one hundred receipt forms similar to those used by a company and his correcting proofs of those forms were not held to amount to his attempting to commit forgery as the printed form would not be a false document without the addition of a seal or signature purporting to be the seal or signature of the company. The learned Judge observed at p. 356: ". . . I think that he would not be guilty of an attempt to commit forgery until he had done some act towards making one of the forms a false document. If, for instance, he had been caught in the act of writing the name of the Company upon the printed form and had only completed a single letter of the name, I think that he would have been guilty of the offence charged, because (to use the words of Lord Blackburn) 'the actual transaction would have commenced, which would have ended in the crime of forgery, if not interrupted '. " The learned Judge quoted what Lord Blackburn said in Reg. vs Chessman (3): (1) Mad. 4. (2) Cal. (3) Lee & Cave 's Rep. 145. 251 "There is no doubt a difference between the preparation antecedent to an offence and the actual attempt; but if the actual transaction has commenced, which would have ended in the crime if not interrupted, there is clearly an attempt to commit the crime.", He also quoted what Cockburn, C. J., said in M 'Pher son 's Case (1): "The word 'attempt ' clearly conveys with it the idea, that if the attempt had succeeded, the offence charged would have been committed. An attempt must be to do that which, if successful, would amount to the felony charged. " It is not necessary for the offence under section 511, Indian Penal Code, that the transaction commenced must end in the crime or offence, if not interrupted. In In re: Amrita Bazar Patrika Press Ltd. Mukherjee, J., said at p. 234: "In the language of Stephen (Digest of Criminal Law, article 50), an attempt to commit a crime is an act done with an intent to commit that crime and forming part of a series of acts which would constitute its actual commission if it were not interrupted. To put the matter differently, attempt is an act done in part execution of a criminal design, amounting to more than mere preparation, but falling short of actual consummation, and, possessing, except for failure to consummate, all the elements of the substantive crime; in other words, an attempt consists in the intent to commit a crime, combined with the doing of some act adapted to, but falling short of, its actual commission; it may consequently be defined as that which if not prevented would have resulted in the full consummation of the act attempted: Reg. vs Collins This again is not consistent with what is laid down in section 511 and not also with what the law in England is. In Stephen 's Digest of Criminal Law, 9th Edition, attempt ' is defined thus: (1) Dears & B. 202. (2) Cal. (3) (1864) 9 Cox. 497. 252 "An attempt to commit a crime is an act done with intent to commit that crime, and forming part of a series of acts, which would constitute its actual commission if it were not interrupted. The point at which such a series of acts begins cannot be defined; but depends upon the circumstances of each particular case. An act done with intent to commit a crime, the commission of which in the manner proposed was, in fact, impossible, is an attempt to commit that crime. The offence of attempting to commit a crime may be committed in cases in which the offender voluntarily desists from the actual commission of the crime itself. " In In re: T. Munirathnam Reddi (1) it was said at p. 122: "The distinction between preparation and attempt may be clear in some cases, but, in most of the cases, the dividing line is very thin. Nonetheless, it is a real distinction. The crucial test is whether the last act, if uninterrupted and successful, would constitute a crime. If the accused intended that the natural consequence of his act should result in death but was frustrated only by extraneous circumstances, he would be guilty of an attempt to commit the offence of murder. The illustrations in the section (section 511) bring out such an idea clearly. In both the illustrations, the accused did all he could do but was frustrated from committing the offence of theft because the article was removed from the jewel box in one case and the pocket was empty in the other case. " The observations 'the crucial test is whether the last act, if uninterrupted and successful, would constitute a crime ' were made in connection with an attempt to commit murder by shooting at the victim and are to be understood in that context. There, the nature of the offence was such that no more than one act was necessary for the commission of the offence. (1) A.I.R. 1955 And. 118. 253 We may summarise our views about the construction of section 511, Indian Penal Code, thus: A personal commits the offence of 'attempt to commit a particular offence ' when (i) he intends to commit that particular offence; and (ii) he, having made preparations and with the intention to commit the offence, does an act towards its commission; such an act need not be the penultimate act towards the commission of that offence but must be an act during the course of committing that offence. In the present case, the appellant intended to deceive the University and obtain the necessary permission and the admission card and, not only sent an application for permission to sit at the University examination, but also followed it up, on getting the necessary permission, by remitting the necessary fees and sending the copies of his photograph, on the receipt of which the University did issue the admission card. There is therefore hardly any scope for saying that what the appellant had actually done did not amount to his attempting to commit the offence and had not gone beyond the stage of preparation. The preparation was complete when he had prepared the application for the purpose of submission to the University. The moment he dispatched it, he entered the realm of attempting to commit the offence of 'cheating '. He did succeed in deceiving the University and inducing it to issue the admission card. He just failed to get it and sit for the examination because something beyond his control took place inasmuch as the University was informed about his being neither a graduate nor a teacher. We therefore hold that the appellant has been rightly convicted of the offence under section 420, read with section 511, Indian Penal Code, and accordingly dismiss the appeal. Appeal dismissed.

IN-Abs

The appellant applied to the Patna University for permission to appear at the 1954 M. A. Examination in English as a private candidate representing that he was a graduate having obtained his B. A. Degree in 1951 and that he had been teaching in a certain school. Believing his statements the University authorities gave him the necessary permission, and on his remitting the requisite fees and sending copies of his photograph, as required, a proper admission card for him was dispatched to the Headmaster of the School. As a result of certain information received by the University, an investigation was made and it was found that the appellant was neither a graduate nor a teacher as represented by him and that in fact he had been de barred from taking any University examination for a certain number of years on account of his having committed corrupt practice at a University examination. He was prosecuted and convicted under section 420 read with section 511 of the Indian Penal Code, of the offence of attempting to cheat the University by false representations by inducing it to issue the admission card, which if the fraud had not been detected would 31 242 have been ultimately delivered to him. The appellant contended that on the facts found the conviction was unsustainable on the grounds (1) that the admission card had no pecuniary value and was therefore not property under section 415, and (2) that, in any case, the steps taken by him did not go beyond the stage of preparation for the commission of the offence of cheating and did not therefore make out the offence of attempting to cheat. Held, that under section 511 of the Indian Penal Code a person commits the offence of attempting to commit a particular offence, when he intends to commit that particular offence and, having made preparations and with the intention to commit that offence, does an act towards its commission; such an act need not be the penultimate act towards the commission of that offence but must be an act during the course of committing such offence. It is not necessary for the offence under section 511 that the transaction commenced must end in the crime or offence, if not interrupted. The observations to the contrary in The Queen vs Ramsarun Chowbey, (1872) 4 N. W. P. 46, In the matter of the Petition of Raisat Ali, Cal. 352 and In re Amrita Bazar Patrika Press Ltd., Cal. 190, not approved. In the matter of the Petition of R. MacCrea, (1893) I.L.R. 15 All. 173, approved. In re T. Munirathnan Reddi, A.I.R. 1955 And. 118, explained. Held, further that an admission card issued by the Univer sity for appearing at the Examination held by it, though it has no pecuniary value, has immense value to the candidate and is property within the meaning Of section 415 Of the Indian Penal Code. Queen Empress vs Appasami, Mad. 151 and Queen Empress vs Soski Bhusan, All. 210, relied On. In the present case, the preparation was complete when the appellant had prepared the application for the purpose of submission to the University, and the moment he despatched it, he entered the realm of attempting to commit the offence of cheating. Accordingly, the appellant was rightly convicted of the offence under section 420 read with section 511 of the Indian Penal Code.

Appeals Nos. 170 to 172 of 1959. Appeals by special leave from the decision dated August 20, 1953/September 3, 1953, and August 30, 36 278 1954, of the Board of Revenue, Bihar at Patna in Reference Cases Nos. 461 and 462 of 1952 and 430 of 4954, respectively. Veda Vyas and B. P. Maheshwari, for the appellant. R. C. Prasad, for the Respondent. April 24. The Judgment of the Court was delivered by section K. DAS,J. These three appeals with special leave granted under article 136 of the Constitution have been heard together and this judgment will govern them all. They raise a common question as to the practice of this Court, which we shall presently state. But before we do so, we must first set out the facts in so far as it is necessary to state them in order to appreciate the precise nature of the question that has arisen for consideration in these appeals. The relevant facts are these. The firm of Messrs. Durga Dutt Chandi Prasad, appellant in these appeals, carried on a business of dealing in several kinds of goods but mostly in raw jute at Sahebganj in Bihar. It was registered as a dealer under section 4 of the Bihar Sales Tax Act, 1944, with effect from July 1, 1946. For three periods, commencing from October 1, 1947 and ending on March 31, 1950, it was assessed to sales tax on its turnover of the relevant periods, which consisted inter alia of purchases alleged, to have made on behalf of two other jute mills outside Bihar, namely, the Raigarh Jute Mills and the Bengal Jute Mills, and also of dispatches of jute said to have been made to the dealer 's own firm in Calcutta for sale in Calcutta. For the assessment period commencing on October 1, 1947 and ending on March 31, 1948 the appellant claimed a deduction of (a) Rs. 6,58,880 5 9 on the ground that the said amount represented purchases made on behalf of the aforesaid two jute mills, and (b) Rs. 1,62,662 13 3 being despatches of jute made to the dealer 's own firm in Calcutta. Similarly, for the next assessment period commencing on April 1, 1948 and ending on March 31, 1949 the appellant claimed a deduction of certain amounts (the exact amounts being 279 irrelevant for our purpose) on the two grounds mentioned above from the relevant turnover. The claim of the appellant was that purchases made on behalf of the two jute mills aforesaid and the despatches of jute made to the appellant 's own firm in Calcutta were not `sales ' within the meaning of the Bihar Sales Tax Act, 1947 (hereinafter called the Act). For the third period of assessment commencing on April 1, 1949 and ending on March 31, 1950 a similar claim was made. But for this period there was an additional claim with regard to the sale of mustard seed worth Rs. 1,00,513 119 to Messrs. Panna Lal Binjraj for which the appellant claimed a deduction. On June 7, 1951 the Sales Tax Officer concerned disallowed the claim of the appellant for the first two periods and by an order dated April 17, 1953, the claim for the third period was also disallowed. The appellant then preferred appeals under the relevant provisions of the Act. These appeals were heard by the Deputy Commissioner of Commercial Taxes,, Bihar, and were dismissed by him. Then the appellant filed applications in revision under section 24 of the Act to the Board of Revenue, Bihar. The Board by its orders dated August 20, 1953, and September 3, 1953, dismissed the petitions of revision relating to the first two periods and by its orders dated April 30, 1954, also dismissed the petition of revision relating to the third period. Under section 25(1) of the Act the appellant moved the Board to state a case to the High Court of Patna on certain questions of law which, According to the appellant, arose out of the orders passed. The Board, however, refused to state a case inasmuch as in its opinion no questions of law arose out of the orders passed. The Board expressed the view that the two questions, namely, (1) whether the despatch of jute outside the State of Bihar was a sale within the meaning of the Act and (2) whether the purchases said to have been made on behalf of the two mills outside Bihar were liable to tax, were both concluded by findings of fact arrived at by the competent authorities on relevant materials in the record and were no longer open to challenge. The appellant then 280 moved the High Court for requiring the Board to state a case on the questions of law which, according to the appellant, arose out of the orders passed with regard to the first two periods of assessment. By an order dated November 17, 1954, the High Court dismissed the two applications made to it for requiring the Board to state a case to the High Court with regard to the said two periods. On a similar application made by the appellant to the High Court with regard to the third period of assessment, the High Court directed the Board of Revenue to state a case on the following question: "Whether the petitioner is entitled to claim a deduction on account of sale of mustard seed to the extent of Rs. 1,00,513 11 9 to Messrs. Panna Lal Binjraj as sales made to a registered dealer under the Schedule to Bihar Finance Act (No. 11) of 1949 read with the Bihar Sales Tax Act (Bihar Act XIX of 1947). " By an order dated January 21, 1957 the High Court answered the question against the appellant. The finding of the High Court was thus expressed: "We are satisfied that the petitioner was not entitled to deduction of the amount of the price of mustard seed sold to Messrs. Panna Lal Binjraj for the purpose of manufacture because there is no mention in the certificate of registration granted to Messrs. Panna Lal Binjraj that mustard seed could be sold to them for the purpose of manufacture free of tax. As the conditions imposed by the proviso to section 5 have not been satisfied in this case, the Sales tax authorities rightly decided that deduction of the price of mustard seed sold to Messrs. Panna Lal Binjraj cannot be granted to the petitioner. " On February 17,1955, the appellant made an application to this Court for special leave to appeal from the orders of the Board of Revenue passed on the two applications in revision as respects the first two periods. This Court granted the leave prayed for by an order dated December 23, 1955. It should be emphasised here that the appellant prayed for and got leave to appeal from the orders of the Board dated 281 August 20, 1953 and September 3, 1953 passed on the two applications in revision. No application was made for leave to appeal, nor was any leave granted, with regard to the subsequent orders made by the Board refusing to state a case or the orders of the High Court refusing the application of the appellant to direct the Board to state a case. With regard to the third period of assessment regarding which the High Court had directed the Board to state a case on a particular question of law and had actually answered it, the appellant again made an application for special leave to appeal on April 12, 1955, and this Court granted leave to the appellant by an order dated December 23, 1955, the leave granted being confined to the order of the Board of Revenue dated August 30, 1954, by which the Board decided that no questions of law arose for a reference to the High Court. Again, the appellant neither asked for nor obtained any leave to appeal from the subsequent orders of the High Court by which the High Court held that only one question of law arose out of the orders passed with regard to the third period of assessment and directed the Board to state a case on that question. Nor did the appellant move against the judgment and order of the High Court dated January 21, 1957, by which the High Court answered the one question referred to it adversely to the appellant. On the facts stated above the question which has arisen is whether as a matter of practice of this Court, the appellant is enticed to be heard on merits in the three appeals when special leave was neither asked for nor granted in respect of the subsequent orders of the High Court relating to the assessments in question which have now become final between the parties thereto. In other words, the question is whether the High Court should be allowed to be by passed in the manner sought to be done by the appellant in these three appeals? The position is quite clear. With regard to two of the assessment orders the High Court held that no questions of law arose at all; with regard to the third assessment order the High Court held that only one question of law arose and it answered 282 that question against the appellant. Can the appellant now ignore these orders of the High Court and ask us to consider on merits the orders of the Board of Revenue passed on the two revision applications for the first two periods and the orders of the Board in the reference case holding that no question of law arose out of the assessment order for the third period? This is the question, taken as a preliminary point, which we have to answer in these three appeals. The question has to be considered with regard to (a) the scope and ambit of article 136 of the Constitution; (b) the practice of this Court; and (c) the question must also be considered in the context of the scheme of the Act under which the assessments were made, appeals and revisions in respect thereof were heard, and the scope and effect of section 25 of the Act under which the Board was asked to refer certain alleged questions of law to the High Court and the High Court was asked to direct the Board to state a case on the questions of law said to arise out of the assessment orders. It is necessary at this stage to dispose of an initial point taken on behalf of the appellant, before we go to a consideration of the main question. The point is this. On behalf of the appellant it has been submitted that leave having been granted by this Court, the preliminary objection taken to the hearing of the appeals should not be entertained now and the appeals should be heard on merits. We are unable to accept this as correct. In these cases leave was granted without hearing the respondents, and full materials in the record were not available nor placed before the Court when leave was granted. In Baldota Brothers vs Libra Mining Works (1) this Court has pointed out that there is no distinction in the scope of the exercise of the power under article 136 at the stage of application for special leave and at the stage when the appeal is finally disposed of, and it is open to the Court to question the propriety of the leave granted even at the time of the hearing of the appeal. This view is in accord with some of the earlier decisions of this Court to which a reference has been made in Baldota '8 case (1) A.I.R 1961 S.C. 100. 283 (supra). Therefore, it is open to us to consider now whether leave was properly granted in these appeals and whether the appellant is entitled to be heard on merits consistently with the practice of this Court in similar circumstances. We proceed now to a consideration of the main question. As a preface to that discussion it is advisable to refer here to some of the provisions of the Act in order to bring out clearly the scheme and object of the Act. The charging section is section 4 which says in effect that every dealer whose gross turnover exceeds a particular amount in a year shall be liable to pay tax under the Act on sales taking place in Bihar. Section 5 lays down the rate of tax. The assessment section is section 13 which states the various circumstances in which the assessing authority may make the assessment. Section 24 of the Act provides for an appeal, revision or review of the assessment. Then come section 25, the scheme of which is analogous to that of section 66 of the Indian Income tax Act, 1922. Under sub section (1) of section 25, the dealer or Commissioner who is aggrieved by an order made by the Board under sub section (4) of section 24 may by application in writing require the Board to refer to the High Court any question of law arising out of such an order; if for reason to be recorded in writing the Board refuses to make such reference, the applicant may under subs. (2) of section 25 apply to the High Court against such refusal. If the High Court is not satisfied that such refusal was justified, it may require the Board to state a case and refer it to the High Court. When a case is referred to the High Court, it decides the question of law raised thereby by a judgment containing the grounds on which the decision is founded. The Board then disposes of the case according to the decision of the High Court. This in short is the scheme of section 25. It is manifest that under this scheme questions of fact ate dealt with by the assessing authorities, subject to appeal and revision; but on questions of law the decision of the High Court is the decision according to which the case has to be disposed of Section 23 of the Act says that save as provided in section 25, no 284 assessment made and no order passed under the Act or the rules made thereunder by the Commissioner or any person appointed under section 3 to assist him shall be called into question in any court and save as provided in section 24, no appeal or application for revision or review shall lie against any such assessment or order. Clearly enough, sections 23, 24 and 25 of the Act cannot override the provisions of the Constitution, nor affect the power of this Court under article 136 of the Constitution. ' The decision of the High Court under section 25 of the Act is undoubtedly subject to the power of this Court under article 136; so also the deter mination or order of any of the assessing authorities which are tribunals within the meaning of article 136. That Article reads (omitting what is not relevant for our purpose): "article 136. (1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India. " The words of the Article are very general and it is stated in express terms that this Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India. The question before us is not whether we have the power; undoubtedly, we have the power, but the question is whether in the circumstances under present consideration, it is a proper exercise of discretion to allow the appellant to have resort to the power of this Court under article 136. That question must be decided on the facts of each case, having regard to the practice of this Court and the limitations which this Court itself has laid down with regard to the exercise of its discretion under article 136. What are these limitations In Pritam Singh vs The State (1) this Court indicated the nature of these limitations in the following observations: (1) ; 285 "On a careful examination of Article 136 along with the preceding Article, it seems clear that the wide discretionary power with which this Court is invested under it is to be exercised sparingly and in exceptional cases only, and as far as possible a more or less uniform standard should be adopted in granting special leave in the wide range of matters which can come up before it under this Article. By virtue of this Article, we can grant special leave in civil cases, in criminal cases, in income tax cases, in cases which come up before different kinds of tribunals and in a variety of other cases. The only uniform standard which in our opinion can be laid down in the circumstances is that the Court should grant special leave to appeal only in those cases where special circumstances are shown to exist. . . . . . . Generally speaking, this Court wilt not grant special leave, unless it is shown that exceptional and special circumstances exist, that substantial and grave injustice has been done and that the case in question presents features of sufficient gravity to warrant a review of the decision appealed against. " Pritam Singh 's case (1) was a case of criminal appeal, but the same view was reiterated in Dhakeswari Cotton Mills Ltd. vs Commissioner of Income tax, West Bengal (2), which was an income tax case. It was there observed: "The limitations, whatever they be, are implicit in the nature and character of the power itself. It being an exceptional and overriding power, naturally it has to be exercised sparingly and with caution and only in special and extraordinary situations. Beyond that it is not possible to fetter the exercise of this power by any set formula.or rule. " We shall deal with this decision in greater detail a little later, when considering the question of the practice of this Court. It is enough to state here that this Court has uniformly held that there must be exceptional and special circumstances to justify the exercise of the discretion under article 136. (1) ; 37 (2) ; 286 Are there any such circumstances in the appeals before us? The answer must clearly be in the negative. Under the scheme of the Act which we had adverted to earlier, it is not open to the appellant to contest now the findings of fact arrived at by the assessing authorities. As to questions of law the appellant had gone up to the High Court, which held that in respect of two of the assessment orders no ' questions of law. arose and in respect of the third assessment order, only one question of law arose and this question the High Court answered against the appellant. As we have pointed out earlier, the decision of the High Court in respect of all the three assessment orders was no doubt subject to an appeal to this Court if this Court gave special leave under article 136. The appellant did not, however, move this Court for special leave in respect of any of the orders passed by the High Court; those orders have Dow become final and binding on the parties thereto. What the appellant is seeking to do now is to by pass the High Court by ignoring its orders. This the appellant cannot be allowed to do. Far from there being any special cir cumstances in favour of the appellant, there are plenty of circumstances against him. The appellant is really trying to go behind the orders of the High Court by preferring these appeals directly from the orders of the Board of Revenue, and in one appeal from the orders of the Board refusing to make a reference to the High Court. The practice of this Court is also against the appellant. The earliest decision on this point is that of Dhakeswari Cotton Mills Ltd.(1) and learned Counsel for the appellant has relied on it in support of his argument that this Court had in some previous cases interfered with an order of the tribunal in exercise of its power under article 136 even though the assessee had not moved against the order of the High Court. In Dhakeswari 's case (1) what happened was this. The assessee having exhausted all his remedies under the Income tax Act, 1922, including that under section 66(2) for the issue of a mandamus to the Tribunal, made an (1) ; 287 application to this Court for special leave to appeal against the order of the tribunal; this Court granted special leave and in the appeal filed in pursuance thereof quashed the order of the Tribunal. But the decision in Dhakeswari 's case (1) must be read in the light of the special circumstances which existed there. It was found by this Court that the tribunal had violated certain fundamental rules of just ice in reaching its conclusions, and that the assessee had not had a fair hearing; therefore, it was held that it was a fit case for the exercise of the power under article 136. The decision proceeded really on the basis that the principles of natural justice had been violated and there was in reality no fair trial. In the appeals before us no such or similar ground is alleged so as to attract the exercise of our power under article 136. In Moti Ram V. Commissioner of Income tax (2) the appellant did not make any application under section 66(2) of the Income tax Act, 1922, but obtained special leave of this Court in respect of the order of the Tribunal in the special circumstance that his property was attached and proceeded against for the recovery of the tax. The question of the propriety of the grant of special leave was not considered, but the appeal was dismissed on merits. The decision in Jogta Coal Co. Ltd. vs Commissioner of Income tax, West Bengal (3) which is a decision on its own facts, has been open to much debate. The question which fell for consideration there related to depreciation under section 10(2)(vi) of the Indian Income tax Act, 1922, namely, the amount on which the appellant was entitled to calculate deduction allowance for purposes of depreciation. The Income tax Officer made an estimate which was accepted by the Appellate Assistant Commissioner. The matter was taken to the Appellate Tribunal which made its own estimate. An application under section 66(1) was rejected and an attempt to move the High Court under section 66(2) also proved unsuccessful. Then, this Court was moved for special leave to appeal from the orders of the (1) [1955]1 S.C R. 941. (2) [1958]34 I.T.R. 646, (3) [1959]36 I.T.R. 521. 288 Tribunal, and the appeals were brought with special leave granted by this Court. This Court remitted the case to the Tribunal and directed the latter to refer two questions of law to the High Court under section 66(2). It is a little difficult to see how on an appeal from the appellate orders of the Tribunal, a direction under section 66(2) could be made. Perhaps, this fact was not noticed. In any view, the decision cannot be taken as settling the practice of this Court in favour of the appellant. In Omar Salay Mohammed Sait vs Commissioner of Income tax, Madras(1) the Tribunal based its findings on suspicions, conjectures or surmises and the principle laid down in Dhakeswari 's case (2) was followed. The decision in Sardar Baldev Singh vs Commissioner of Income tax, Delhi & Ajmer(1) was also a decision special to its own facts. There the application to the Tribunal was barred by time in circumstances which were beyond the control of the appellant. The Tribunal dismissed the application for a reference on the ground of limitation and the High Court had no power to extend the time. In these circumstances the appellant asked for special leave and condonation of delay. Special leave was granted by condoning the delay. More in point is the decision in V. Govindarajulu Mudaliar vs The Commissioner of Income tax, Hyderabad (4) which was concerned with appeals from the decision of the Tribunal by special leave, after an application under section 66(2) had been dismissed by the High Court. This Court then observed: " We must mention that against the order of the Tribunal the appellant applied for reference to the High Court under section 66(2) of the Indian Income tax Act and the learned Judges of the High Court dismissed that application. No appeal has been preferred against that at all. The present appeal is against the decision of the Tribunal itself. It is no doubt true that this Court has decided in Dhakeswari Cotton Mills Ltd. vs Commissioner of Income tax, West Bengal, 1955(1) S.C.R. 941, that an appeal (1) [1959]37 I.T.R. 151. (3) (2) ; (4) A.I.R. 1959 S.C. 248, 289 lies under article 136 of the Constitution of India to this Court against a decision of the Appellate Tribunal under the Indian Income tax Act. But seeing that in this case the appellant had moved the High Court and a decision has been pronounced adverse to him and this has become final, obviously it would not be open to him to question the correctness of the decision of the Tribunal on grounds which might have been taken in an appeal against the judgment of the High Court." In Messrs Chimmonlall Rameshwarlal vs Commissioner Income tax (Central), Calcutta(1) the facts were these. Four appeals were filed with special leave granted by this Court under article 136 which were directed against the orders of the Appellate Tribunal refusing to state a case on an application made to it under section 66(1). No appeals were filed against the orders of the Appellate Tribunal under section 33(4), nor against the orders of the High Court under section 66(2)a position which is similar to the one in the appeal before us relating to the assessment for the third period. In these circumstances this Court observed: "In the present case the circumstance of very great materiality and significance which stares the appellants in the face is that in regard to this very point there is a considered judgment of the High Court delivered by it on the applications made by the appellants to it under section 66(2) of the Act which came to the conclusion that no question of law arose out of the order of the Tribunal, which judgment stands, not having been appealed against in any manner whatever by the appellants. The result of our going into these appeals before us on the merits would be either to confirm the judgment which has been pronounced by the High Court or to differ from it. If we did the former, the appellants would be out of Court; if, however, perchance we came to the contrary conclusion and accepted the latter view, namely, that the High Court was wrong in not granting the applications of the appellants under section 66(2) of the Act there would be two (1) , 290 contrary decisions, one by the High Court and the other by us and we would be in effect, though not by proper procedure to be adopted by the appellants in that behalf, setting aside the judgment of the High Court. This is an eventuality which we cannot view with equanimity. It is contrary to all notions of comings of Courts and even though we are a Court which could in certain events set aside and overrule the decisions of the High Court concerned, we cannot by pass the normal procedure which is to be adopted for this purpose and achieve the result indirectly in the manner suggested by the appellants. We, therefore, think that in the circumstances here it would be inappropriate on our part to enter upon an adjudication of these appeals on merits. We would, therefore, dismiss these appeals without anything more. " We think that these observations apply with equal force, here. A careful examination of the previous decisions of this Court shows that whenever the question was considered, this Court said that save in exceptional and special circumstances such as were found in Dhakeswari 's case (1) or Baldev Singh 's case (2) it would not exercise its power under article 136 in such a way as to by pass the High Court and ignore the latter 's decision, a decision which has become final and binding on the parties thereto, by entertaining appeals directly from the orders of a tribunal. Such exercise of power would be particularly inadvisable in a case where the result may be a conflict of decisions of two courts of competent jurisdiction, a conflict which is not contemplated by sections 23, 24 and 25 of the Act. On the contrary, the object of these sections is to avoid a conflict by making the decision of the assessing authorities final on questions of fact subject to appeal, revision or review as provided for by section 24 and the decision of the High Court subject to an appeal to this Court, final on questions of law under section 25 of the Act. To ignore the decision of the High Court on a question of law would really nullify the statutory provisions of section 25 of the Act. (1) ; (2) ; 291 It remains now to consider one last argument urged on behalf of the appellant. Learned Counsel for the appellant has drawn our attention to article 133 of the Constitution and has pointed out that when the High Court refuses a certificate under article 133, it is open to this Court to grant special leave to appeal (and this Court has often granted such special leave) from the main decision of the High Court irrespective of the orders of the High Court refusing such a certificate. It is argued that the same analogy should apply, and in spite of the orders of the High Court under section 25 of the Act, this Court may and should grant special leave to appeal from the orders of the Tribunal. We do not think that the analogy is apposite. Firstly, in dealing with an application under article 133 the High Court merely considers whether a certificate of fitness should be given in respect of its own decision; in such a case it does not itself decide any question of law such as is contemplated by section 25 of the Act. Secondly, there is no likelihood of any conflict of decisions of the kind referred to earlier arising out of an order under article 133, when special leave is granted to appeal from the main decision of the High Court. The question of two decisions by two different courts or tribunals does not arise, and none of them is by passed by the grant of such special leave. Moreover ' as we have said earlier the question is not one of the power of this Court; but the question is what is the proper exercise of discretion in granting special leave under article 136 of the Constitution. In these appeals we have reached the conclusion, for reasons already stated, that the appellant is not entitled to ask us to exercise our power under article 136. There are no special circumstances justifying the exercise of such power; on the contrary the circumstances are such that it would be wrong both on principle and authority to allow the appellant to by pass the High Court by ignoring its orders. In our view, special leave was not properly given in these cases and we would accordingly dismiss the appeals with costs, without going into merits. There will be one hearing fee. Appeals dismissed.

IN-Abs

The appellant firm was assessed to sales tax under the pro visions of the Bihar Sales Tax, 1944, for three periods commencing from October 1, 1947, and ending on March 31, 1050. Its claim for certain deductions was disallowed, and its applications in revision under section 24 Of the Act to the Board of Revenue, Bihar, were dismissed by three orders dated August 20, 1953, September 3, 1953 and April 30, 1954. Under section 25(1) of the Act the appellant applied to the Board to state a case to the High Court of Patna on certain questions of law, but the applications were dismissed by order dated August 30, 1954, on the ground that no questions of law arose. The appellant then moved the High Court for requiring the Board to state a case on the said questions of law. The High Court dismissed the applications in respect of the first two periods of assessment, but by order dated November 17, 1934, directed the Board to state a 277 case in regard to the third period on one of the questions of law which only, in its opinion, arose. By its judgment dated January 21, 1957, the High Court answered the question against the appellant. On February 17, 1955, the appellant made applications to the Supreme Court for special leave to appeal against the orders of the Board of Revenue dated August 20, 953, and September 3, 1953, in respect of the first two periods; and on April 12, 1955, it similarly applied for special leave in respect of the third period. Leave was granted in respect of all the three applications by order dated December 23, 1955, the leave granted in regard to the third period being confined to the order of the Board dated August 30, 1954. When the appeals came up for hearing the question was raised as to whether the appeals were maintainable in view of the fact that no applications for leave to appeal were filed against the orders of the Board of Revenue and the High Court subsequent to the orders of the Board in respect of which only special leave had been granted. Held, that though the words of article 136 of the Constitution of India are wide, the Supreme Court has uniformly held as a rule of practice that there must be exceptional and special circumstances to justify the exercise of the discretion under that Article. Pritam Singh vs The State, ; , V. Govinda rajulu Mudaliar vs The Commissioner of Income tax, Hyderabad, A.I.R. 1959 S.C. 248 and Messrs Chimmonlall Rameshwarlal vs Commissioner of Income tax (Centyal), Calcutta, , relied on. Dhakeswari Cotton Mills Ltd. vs Commissioner of Income tax, West Bengal, ; and Baldev Singh vs Commis sioner of Income tax, Delhi and Ajmer, , explained. Held, further, that in the circumstances of the present case the appellant was not entitled to a grant of special leave against the orders of the Board of Revenue where the result would be to by pass the High Court by ignoring its orders. Held, also, that though special leave might have been granted on an application made under article 136, the Court is not precluded from coming to a conclusion at the time of the hearing of the appeal that such leave ought not to have been granted. Baldota Brothers vs Libra Mining Works, A.I.R. 1961 S.C.C. 100, followed.

ON: Cases Nos. 11 and 12 of 1950. Appeals under article 132 (1) of the Constitution of India from the Judgment and Order dated April 5, 1950, of the High Court of Judicature for the State of Punjab at Simla (Khosla J.) in Criminal Revision Nos, 1144 and 1147 of 1949. Achhru Ram (Gopal Singh, with him) for the appellant in Case No. 11. H. J. Umrigar for the appellant in Case No. 12. section M. Sikri (Advocate General of Punjab) (H. section Gujral, with him) for the respondent, the State of Punjab. M. C. Setalvad (Attorney General for India) (B. Sen, with him) for the Intervener. 1952. December 5. The Judgment of the Court was delivered by MUKHERJEA J. The facts giving rise to these two connected appeals may be briefly narrated as follows: Darshan Singh, the appellant in Case No. 1 1, and Attar Singh who is the appellant in Case No. 12, along with three other persons were tried by the Special Magistrate, Ambala, East Punjab, on charges under section 120 B of the Indian Penal Code, read with section 3/10 of the East Punjab Cotton Cloth and Yarn (Regulation of ' Movement) Order, 1947, and section 7 of the Essential Supplies Act, 1946. There wets a further charge under section, 8 of the Essential Supplies Act against three of these accused, Darshan Singh begning on of them. 321 The allegation against all the accused, in substance, was that they conspired to export 76 bags of mill made cloth to Pakistan without a permit, by smuggling them through the customs barrier near Wagha, on the morning of the 26th ,May, 1948. Wagha is., about 18 miles from Amritsar, and at a distance of nearly half a mile from this place lies the actual Indo Pakistan border. Between the customs barrier and the border there is a small Police Post and almost opposite the Police Post is the customs office which is located in a tent. The prosecution case ' is that at about 7 a. m. on the 26th of May, 1948, a truck, loaded with a large quantity of millmade cloth owned by the accused Ram Singh, arrived at the customs barrier near Wagha. Rajendra Singh, another accused, who was on duty at that time as the Customs Supervisor, allowed the truck to pass through and the truck stopped near the customs office on the side of the Police Post. As soon as the truck stopped, Darshan Singh, who was the Deputy Superintendent in charge of the customs barrier, and Attar Singh, who was a Customs Preventive Officer at Amritsar and was then under order of transfer to some other place, went to the Police Station and asked Kulraj, the Sub Inspector in charge of the same, to allow the lorry to pass through upto the border. Kulraj did not accede to this request and thereupon both Darshan Singh and Attar Singh went back to the customs tent. The truck was then unloaded and the goods were handed over to a large number of coolies who began carrying them towards the border, being followed by both Attar Singh and Ram Singh. A little later, Kailash Chandra, a Police Sub Inspector of Amritsar who was at that time on special duty in connection with checking and detec tion of smuggling cases, arrived at the place on a motor bicycle and being informed by Kulraj of what had happened before, both he and Kulraj proceeded in his motor cycle towards the border and overtook the coolies who were carrying the goods. The coolies were rounded up and brought back to the border along 322 with Attar Singh, though Ram Singh managed to Slip away. Kailash Chandra made a report of the occurrence to Inder Singh, who was the head of the Special Police Establishment at Delhi dealing with smuggling cases, and after a detailed investigation, the five accused were sent up to take their trial. The trying Magistrate convicted all of them under section 120 B of the Indian Penal Code, read with section 3/10 of the East 'Punjab Cotton Cloth and Yarn Order, 1947, and sentenced them to rigorous imprisonment for a period of one year each. Attar Singh was further convicted under section 7 of the Essential Supplies Act and Darshan Singh under section 8 of the said Act, and there was a sentence of one year 's rigorous imprisonment and a fine of Rs. 1,000 upon each one of them under these sections, the sentence of rigorous imprisonment to run concurrently with that on the previous charges. Against this judgment there was an appeal taken by all the accused to the Court of the Sessions Judge at Amritsar. The Additional Sessions Judge, who heard the appeal, acquitted two of the accused but maintained the conviction of the other three, namely, Attar Singh, Ram Singh and Darshan Singh, though their sentences were reduced. Thereupon these three persons presented three separate revision petitions to the High Court of East Punjab at Simla which were heard and disposed of by Mr. Justice Khosla sitting singly. The learned Judge dismissed the revision petitions but granted a certificate under article 132 of the Constitution on the ground that the cases involved a substantial question of low as to the interpretation of the Constitution. It is on the strength of this certificate that these two appeals have come before us, one being filed by Darshan Singh and the other by Attar Singh. No appeal has been preferred by the accused Ram Singh. The constitutional point involved in these appeals has been presented before us very lucidly by Mr. Achhru Ram who appeared on behalf of Darslian 323 Singh, the appellant in Case No. II, and his contention, in substance, is that the East Punjab Cotton Cloth and Yarn Order, 1947, which was promulgated by the Governor of East Punjab by notification dated 15th November, 1647, and under the provisions of which the prosecution was launched against the accused, was ultra vires the authority of the Governor, in so far as it purported to legislate on matters of export and import across the customs frontier, and consequently the accused could not be held guilty of any offence for having violated such provisions. For a proper appreciation of raised by the learned counsel, it would be necessary to refer to certain provisions of the Government of India Act, 1935, as well as to those of a number of later enactments. Under entries 27 and 29 of List II of the Government of India Act, 1935, " trade and commerce within the province " and " produc tion. supply and distribution of goods " were provincial subjects, while " import and export across the customs frontier " was a central subject being covered by item 19 in List I. Section 102 of the Government of India Act, 1935, gave the Central Legislature the power to legislate on provincial subjects if and when a proclamation was issued by the Governor General that a state of emergency existed in the country, and such legislation would, under sub section (4) 'of the section, cease to have effect on the expiration of a. period of ' six months after the proclamation had ceased to operate. It appears that these extraordinary powers were assumed by the Central Legislature during the period of the last war when there was a Proclamation of Emergency by the Governor General, and the Defence of India Rules promulgated during this period dealt with various ' provincial matters. The Proclamation of Emergency was revoked by the Governor General under section 102, clause (3), of the Constitution Act on 1st April, 1946, and the result of the revocation was that all orders passed on the basis of the Defence of India Act or the Defence of India Rules ceased to be 42 324 operative after the 30th of September, 1946. The (state of the country, however, was at that time far from normal and it was considered necessary that the control of the Central Legislature over the production, supply and distribution of goods should not be discontinued. To meet this situation, the British Parliament passed a temporary Act (9 and 10 Geo. 6 chapter 39) which gave the Indian Legislature, during the period specified in the Act, the power to make laws with regard to certain provincial subjects. The provision of section 2 of the Act, so far as is necessary for our present purpose, stood as follows: "(1) Notwithstanding anything in the Government of India Act, 1935, the Indian Legislature shall, during the period mentioned in section 4 of this Act, have power to make laws with respect to the following matters: (a)trade and commerce (whether or not within a Province) in and the production, supply and distribution of, cotton and woollen textiles, paper, petroleum products, spare parts of mechanically propelled vehicles, coal, iron, steel and mica; ". Armed with this authority, the Indian Legislature passed the Essential Supplies (Temporary Powers) Act of 1946, sections 3 and 4 of which are in these terms: " 3. The Central Government so far as it appears to it necessary or expedient for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices may, by notified order provide for regulating and prohibiting the production, supply and distribution thereof and trade and commerce therein. * * * * 4.The Central Government may by notified order direct that the power to make orders under section 3 shall in relation to such matters and subject to such conditions,, if any, as may be specified in the direction, be exercisable also by 326 (a) * * * * (b)such Provincial Government or such officer or authority subordinate to a Provincial Government as may be specified in the direction. " By a notification dated 20th of December, 1946, issued under section 4 mentioned above, the Central Government delegated to the Governor of Punjab the powers under section 3 of the Act. On the 15th of November, 1947, the Governor of East Punjab, in exercise of the powers delegated by the said notification, passed the East Punjab Cotton Cloth and Yarn (Regulation of Movement) Order, 1947, and sections 2, 3 and 10 of the Order are material for our present purpose. Section 2 is in these terms: "In this Order unless there is anything repugnant in the subject or context, (a) " export " means to take out of the Province of the East Punjab or the said land by rail, road or river to any Province or State of the Dominions of India and Pakistan and includes taking out of the Province of East Punjab to any place, situated in the said lands as well as out of the said lands to any place situated in the East Punjab. " Section 3 runs as follows: " No person shall export or attempt to export cotton cloth or yarn except under the authority and in accordance with the conditions of a permit, issued by a permit issuing authority. . The permit shall be in form IV, specified in Schedule 'A ' annexed to this Order ". Section 10 provides: "If any person contravenes any provision of this Order, he shall be punishable with imprisonment which may extend to 3 years, with fine or both and without prejudice to any other general punishment which may be imposed by any court trying such contravention may direct that any cotton cloth and/,or yarn in respect of which the court is satisfied that this order, has been contravened together with the 326 covering and packing of such cloth shall be forfeited to His Majesty. " The point for our consideration is, whether the above provisions which prohibit inter alia the export of certain essential commodities to any country outside India without a permit and make the violation of such provisions an offence, were validly made by the Governor in exercise of the powers delegated to him under section 4 of the Essential Supplies (Temporary Powers) Act 1946 ? It is not suggested by the learned counsel that there was anything improper in the Central Government 's delegating its powers to the Governor of East Punjab under section 4 of the Essential Supplies (Temporary Powers) Act. His contention is that the Governor, in making the order, acted in excess of is delegated authority by prohibiting the export of cotton cloth and yarn to any I place outside India. Matters of export and import, it is said, were not within the scope of section 3 of the Essential Supplies and :the notification tinder section 4 could only delegate to the Governor such powers as the Central Government could itself 'exercise under section 3. Section 3 of the Essential Supplies Act, it is true, authorised the Central Government to make provisions for regulating and prohibiting the production, supply and distribution of the essential commodities specified in the Act and also trade and commerce therein; but it is argued by the learned counsel that the expression, " trade and commerce ", as used in the section, must be taken to mean trade and commerce within a province or at the most between provinces inter se, but it cannot include any transaction by way of exporting goods outside India. This interpretation, somewhat restricted as it appears to us, is sought to be supported by a two fold argument. In the first Place, it, is said, that the Essential Supplies Act, as its, Preamble shows, was passed by the Central Legislature in exercise of the authority conferred upon it by the India (Central Government and Legislature) Act, 1946, (9 and, 10 Geo. 6, c. 39) and that statute 327 conferred, only for a short period of time, a, power in the Central Indian. Legislature to legislate on certain provincial matters, which it could not do after the revocation of the Proclamation of Emergency on the termination of the war. It is said, therefore, that the Essential Supplies Act purported to deal exclusively with provincial matters, and import and export of goods outside the Indian territory, being a central subject, could not reasonably be brought within the purview of the Act. The other line of reasoning that is put forward in support of the argument is, that the intention of the Central Legis lature not to include export and import within the provisions of the Essential Supplies Act is evidenced by the fact, that the Central Legislature dealt with export and import of goods separately, and by an, altogether different set of enactments which exist side by side with the Essential Supplies Act and other legislation of the same type preceding it. It is pointed out that there was an order made under the Defence of India Rules on 3rd November, 1945, (being Order No. 91 c. w. (1) 45) imposing prohibitions on export of various descriptions of goods specified therein. The Defence of India Rules were due to expire on the 30th September, 1946. On the 26th September, 1946, the Essential Supplies Ordinance was passed and this was later replaced by the Essential Supplies Act. On the very day that this Ordinance ,was passed, another Ordinance, being Ordinance No. XX of 1946, was promulgated, which inter alia continued the provisions of the Defence of India Rules relating to prohibition and restriction of import and export of goods. Subsequently on the 26th of March, 1947, the Im ports and Exports (Control) Act was passed, which dealt comprehensively with the subject of control over exports and imports. As it would be unnatural to suppose that the legislature was legislating on the same subject simultaneously by two parallel sets of legislation existing side by side, it is argued that export and import of goods were not within the scope and intendment of the Essential Supplies Act. 328 These arguments though somewhat plausible at first sight, do not appear to us to be sound or convincing. It is a cardinal rule of interpretation that the language used by the legislature is the true depository of the legislative intent, and that words and phrases occurring in a statute are to be taken not in an isolated or detached manner dissociated from the context, but are to be read together and construed in the light of the purpose and object of the Act itself. The object of the Essential Supplies Act, as set out in the preamble, was to provide for the continuance, during a limited period of time, of the power to control the production, supply and distribution of, and trade and commerce in, foodstuffs, cotton and woollen textiles, petroleum, iron and other essential commodities, a list of which appeared in the Act itself. Section 3, which is the most material part of the Act,, authorised the Central Government, whenever it considered expedient or necessary, for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, to provide by notified order, for regulating or prohibiting, the production, supply and distribution thereof or trade and commerce therein. Keeping this object in view and reading the words" trade and commerce " in the light of the context, there appears to be no reason why these words should not be taken in their ordinary or natural sense and why restriction on the export of goods to any place outside a province, including a neighbouring foreign State should be deemed to be outside their scope and ambit. For maintenance or increase of supply of essential commodities within a province and to secure their equitable distribution and availability at fair prices, it might certainly be necessary to restrict export of the goods outside the province, and Pakistan being a foreign State abutting on the very borders of East Punjab, it was quite natural for the East Punjab Governor to mention Pakistan as one of the places to which export of goods from his province should not be allowed without a proper permit. As 329 the main object of the legislation was the continuance of control over the production, supply and distribution of commodities considered essential to the community and as these are provincial subjects, the Central Legislature in legislating on them must have to invoke the powers conferred upon it by the India (Central Government and Legislature) Act, 1946 (9 & 10 Geo. 6, c. 39) spoken of above; and that is plainly the reason why a reference to that statute was made in the second paragraph, of the preamble. But from this it cannot be argued that the Central Legislature was legislating only in exercise of the powers which it derived from the British Parliament and that it did not exercise the powers which it itself had under the Government of India Act. It is not disputed that the Central Legislature was fully competent to legislate on exports and imports which are central subjects and in making any provision relating thereto, it cannot be said that it acted in excess of its authority. Even taking the legislation to be purely on the provincial subjects of production, distribution and supply of goods, restriction of export as ancillary to production and supply of essential commodities would, in our opinion, be quite within the scope and ambit of such legislation and in pith and substance it would be an enactment dealing exclusively with these provincial matters. Looked at from this standpoint, the other argument advanced by Mr. Achhru Ram would also be found to be without any substance. The imports and Exports Act or the earlier Order and Ordinance, referred to by the learned counsel, were legislation essentially on the subject of exports and imports. Their object was to regulate or control imports and exports generally and they dealt with a large variety of articles far outnumbering those enumerated in the Essential Supplies Act. The object of the imports and Exports Act was not to regulate production and distribution of commodities considered essential to the community 330 and it was not as a means to secure that object that it purported to prohibit or restrict exporting of goods. Thus the scope and purpose of the two sets of legislation were totally different and there was nothing wrong if they existed side by the side and were in operation at one and the same time, We are not told that there was any overlapping of the provisions of these two statutes; and as the competency of the legislature to enact both these sets of provisions is not disputed, we do not think that any occasional overlapping, even if it is assumed to exist, would be at all material. In our opinion, therefore, the contentions raised in regard to the constitutional point involved in these appeals are unsupportable and could not be accepted. As the appeals have come up before us on the strength of a certificate granted under article. 132(1) of the Constitution, the appellants are not entitled to challenge the propriety of the decision appealed against on a ground other than that on which the certificate was given except with the leave of this court as provided for by clause (3) of article 132 of the Constitution. At the close of the arguments of the parties in regard to the constitutional point referred, to above. , we made it clear to the learned counsel appearing for both the appellants that we would not allow any question relating to the merits of the cases to be raised before us which turned merely on appreciation of evidence by the courts below. Mr. Umrigar, who appeared for Attar Singh the appellant in Case No. 12, however stated to us that he would crave leave to bring to our notice one important matter which, according to him, resulted in grave miscarriage of Justice at least so far as his client was concerned. He pointed out that both the Additional Sessions judge and the learned Judge of the High Court in deciding the case against his client relied upon an admission alleged to have been made by the latter that he was present at the customs barrier at Wagha on the morning of the day of occurrence and had gone there to say good bye to the customs staff, he 331 being under an order of transfer from Amritsar to Gurdaspur. It is said by the learned counsel that his client never admitted his presence at the customs barrier on the morning of 26th May, 1948, and that he neither did nor had any occasion to put forward any explanation regarding his presence there at that time. The whole thing, it is said, is based upon sheer misapprehension and is not warranted by anything appearing on the record. There is no doubt that the Additional Sessions Judge as well as the High Court did refer in their respective judgments to the alleged admission of Attar Singh and rely upon the same to arrive at their decision in the case. The Additional Sessions Judge said in his judgment: " The next important man is Attar Singh accused. He admits his presence at the barrier on that morning, when he says that he had gone to bid good bye to the customs staff on his transfer to Gurdaspur According to the leave obtained by him he had yet to remain at Amritsar till 28th and in view of illness of his wife he need not have been in hurry to go to the barrier for this purpose so soon. I am not convinced with his explanation. " The High Court in referring to the said admission observed as follows: " Attar Singh admitted that he was present at the barrier on that morning but the explanation he gave was this. His office is at Amritsar but be had received orders of transfer to Gurdaspur. His wife was ill and, therefore, he could not move immediately. So he applied for a few days leave, and on the morning of the 26th of May he went to the barrier to say goodbye to his colleagues in the Customs Department and while he was there this incident took place without his knowledge. . Attar Singh 's explanation of his presence at the spot does not convince me at all. " It appears that in course of the examination of the accused Attar Singh under section 342 of the Criminal 43 332 Procedure Code before the trial Magistrate a specific question was put to him as to whether he could explain his presence on the scene of occurrence on the 26th May, 1948, although it was alleged that he was on leave. To this question he replied categorically that he was not present as alleged. In this state of the records, we asked the learned Advocate General, who appeared for the State of East Punjab, as to when and how was the admission referred to above made by Attar Singh. The Advocate General, answered that the admission might be in the written statement which Attar Singh said he would file when he was interrogated under section 342 of the Criminal Procedure Code. In order to clear up the matter we had the further hearing of the case adjourned to enable the Advocate General to produce before us the written statement, if any, that was filed by Attar Singh in the trial court. The case was again taken up for hearing on the 26th of November last and the Advocate General frankly stated to us that no written statement by Attar Singh 'was on the records at all. It is clear, therefore, that both the courts below in coming to their decision regarding the guilt of the accused did rely to a considerable extent on the so called admission of Attar Singh which, it must be held, had no existence in fact. The Advocate General contends that even if there was an error committed by the courts below in this respect, we should nevertheless dismiss the appeal inasmuch as there is sufficient evidence to support the conviction of the accused independently of the so called admission of Attar Singh; and he invited us to examine the evidence ourselves and come to our own decision on the point. Without in any way disputing our right to adopt this course in cases where it may be considered necessary, we think that in the circumstances of the present case the proper order to make will be to direct a rehearing of the appeal by the Session& Court on the evidence as it actually stands after excluding from consideration the alleged Admission of Attar Singh. There can be no doubt 333 that the supposed admission was of a very damaging character and was highly prejudicial to the accused. It is quite,, problematic to value its effect upon the minds of the Judges in the courts below and it is difficult for us to say that had it been excluded from consideration the courts would have come to the same decision of guilt or that conversely a verdict of acquittal would have been a perverse one. In such cases, the function of this court, which is not an ordinary court of criminal appeal, is not so much to weigh and appraise the evidence again to find out the guilt or innocence of the accused as to see that the accused gets a fair trial on proper evidence. It has been argued by Mr. Achhru Ram, and in our opinion quite rightly, that if the case of Attar Singh is to be heard afresh, the same order should be made in the case of Darshan Singh as well. Not only are the two cases closely interconnected, but so far as Darshan Singh is concerned the prosecution sought to establish his complicity. in the affair primarily by adducing evidence to show that he was in the company of Attar Singh when both of them approached Kulraj, the officer in charge of the police station, and requested him to allow the truck to pass through. The Additional Sessions Judge observed in his judgment that the only motive of Darshan Singh was to help his colleague, namely Attar Singh, who was about to leave the district. It is necessary, therefore, that the case of Darshan Singh should also be reheard and the whole evidence against him reconsidered with a view to find out whether he is guilty or innocent. The result, therefore, is that both the appeals are allowed. The judgment of the High Court as well as that of the Additional Sessions Judge are set aside and the cases remitted to the Sessions Court in order that they may be heard afresh on the evidence on record in the light of the observations made above after excluding from consideration the supposed admission of Attar Singh., Pending the decision of the Session a Court, the accused would remain on bail 7 on the same terms as before. Appeals allowed. Agent for the appellant in Case No. 11: Naunit Lal. Agent for the appellant in Case No. 12: A. D. Mathur. Agent for the respondent and the intervener G. H. Rajadhyaksha.

IN-Abs

Section 3 of the Essential Supplies (Temporary Powers) Act, 1946, which was passed by the Indian Legislature in 1946 empowered the Central Government by notified order to provide for regulating and prohibiting the production, supply and distribution of any essential commodity and trade and commerce therein; section 4 of the Act empowered the Central Government to delegate its powers under section 3 to the Provincial Government or any officer thereof. The Governor of the Punjab to whom such powers had been delegated under section 4 passed the East Punjab Cotton Cloth and Yarn Control Order, 1947, which prohibited the export of cotton cloth and yarn to any country outside India except under a permit, and made export without permit an offence. The validity of this order was questioned on the ground that the Governor had acted in excess of his powers in so far as lie prohibited export outside India without a permit: Held, (i) that, keeping the object of the Essential Supplies Act, 1946, in view and reading the words " trade and commerce " in a. 3 of the Act in the light of the context, these words could be interpreted as including the export of goods outside the Province including a neighbouring foreign State and the Governor in passing the impugned Order did not act in excess of the powers delegated to him; (ii)that as the Central Legislature was fully competent to legislate on exports and imports and making any provision relating thereto under the Government of India Act, 1935, it had power to make a law prohibiting export to a foreign State, even &part from the powers conferred on it by the India (Central Government and and Legislature) Act, 1946 (9 320 (iii) even taking the legislation to be purely on the provincial subjects of production, distribution and supply of goods, restriction of import as ancillary to production and supply of essential commodities would be quite within the scope and ambit of such legislation and in pith and substance the enactment would be one dealing exclusively with these provincial matters. It is a cardinal rule of interpretation that the language used 'by the legislature is the true depository of the legislative intent, and that words and phrases occurring in a statute are to be taken not in an isolated or detached manner dissociated from the context, but are to be read together and construed in the light of the purpose and object of the Act itself.

Appeal No. 167 of 1960. Appeal from the judgment and order dated July 16, 1956 of the Assam High Court at Gauhati in Civil Rule No. 128 of 1954. A. V. Viswanatha Sastri and Naunit Lal, for the appellant. The Respondents did not appear. April 14. The Judgment of the Court was delivered by HIDAYATULLAH, J. This appeal has been filed by the State of Assam against a judgment of the High Court of Assam dated July 16, 1956. By the judgment under appeal, the High Court held that section 15 of the Assam Sales Tax Act, 1947, and Rule 80 framed under the Act were ultra vires, being a breach of article 286(2) of the Constitution. The High Court granted a certificate under article 132(1) of the Constitution. R. C. Dey, the answering respondent, is a wholesale dealer in tea, and has been in business since 1949. He registered himself as a dealer under the Assam Sales Tax Act on January 14, 1950. His business consists mainly of buying tea in Assam and selling it either in Assam or in Calcutta. In respect of tea sold in Calcutta, R. C. Dey consigns the tea to himself after purchasing it in Assam. This tea is then approved by prospective purchasers, to whom the documents of title are endorsed on receipt of the price. In 1951, the Assam Sales Tax Act was amended by the Assam Sales Tax (Amendment) Act, 1951 (4 of 1951). Section 15 of the Act before the amendment provided that in calculating the net turnover of a registered dealer for tax purposes all sales made to another registered dealer of goods specified in the latter 's certificate of registration were to be excluded from the gross turnover, if the goods were bought for resale. By the amendment in 1951, the section was amended by the addition of the words "in the State" after the word "resale". Thus, in calculating the net turnover of a registered dealer, the goods intended 988 for resale in the State could alone be excluded from the gross turnover. This amendment was followed by amendment of the Rules. Rule 80 was enacted to provide as follows: "80. (1) A dealer who wishes to deduct from his gross turnover the amount of sales on the ground that he is entitled to make such deductions under clause (b) of sub section (1) of section 15 shall, on demand produce in respect of such sales the copy of the relevant cash memo or bill according as the sale is a cash sale or a sale on credit, and a true declaration in writing by the purchasing dealer or by such responsible person duly authorised by the purchasing dealer in this behalf that the goods in question are specified in the certificate of registration of such dealer. (2) For purposes of this rule, the declaration shall be in the following form: I/We hereby declare that I/We have purchased the goods herein mentioned for the purposes for use in the manufacture of goods for sale in the State, or for use in the execution of a contract in the State or for resale in the State, and further declare that these goods have been specified in/our certificate of registration bearing No in the District of R. C. Dey filed a petition under article 226 of the Constitution, challenging the amendment and the Rule, and contended that they offended against article 286(2) and Part XIII of the Constitution, and were thus ultra vires. He also submitted that the amendment and the Rules were void as offending article 19 (1)(g). The last submission was given up in the High Court, and the objection about Part XIII of the Constitution, which was decided against him, must be taken to have been abandoned, because none appeared on his behalf to urge this point. We need not refer to article 19 or Part XIII of the Constitution. The High Court upheld his contention about article 286(2). In the High Court, separate judgments were delivered by the learned Chief Justice and Ram Labhaya, J. They both agreed that section 15, as amended, and the Rule were ultra vires article 286(2). The reasons given 989 by the learned Judges were different. According to the Chief Justice, the amendment and the Rule had the effect of taxing sales in the course of inter State trade or commerce and were, therefore, illegal. Ram Labhaya, J., held that the sale to R. C. Dey and the sale by him in Calcutta were separate sales, and that the first sale was not in the course of inter State trade or commerce, and was taxable. He, however, held that though by section 3, which is the charging section, sales in the course of inter State trade or commerce were excluded from the ambit of the Act, this section remained only "a pious declaration", because its effect was not incorporated in the machinery section, namely, section 15. According to the learned Judge, what was taxable under the Act was the net turnover of a registered dealer. The machinery section showed how the net turnover was to be ascertained, and it provided that to arrive at the net turnover, certain deductions could be made from the gross turnover. In the original section, anything which was sold for resale was so excluded; but by the amendment, the exclusion was only in respect of the sale of goods for resale in the State. According to the learned Judge, if sales which did not lead to resale in the State were not excluded from the gross turnover, then the not turnover would comprehend such sales and, therefore, there was a taxation of sale of goods in the course of inter State trade or commerce. Putting it briefly, while the learned Chief Justice felt that the, amendment and the Rule directly affected inter State trade or commerce, Ram Labhaya, J., held that they affected inter State trade or commerce indirectly, inasmuch as sales outside the State were not excluded from the gross turnover. We shall take up these two points separately. III so far as the decision of the Chief Justice is concerned, the point has been before this Court in another case. In Endupuri Narasimham & Son vs State of Orissa and others (1), a similar question had arisen in connection with the Orissa Sales Tax Act, 1947. In dealing with transactions such as these, this Court pointed out that only sales which affected inter (1) ; 990 State trade or commerce directly and were an integral part thereof, were saved under article 286(2). On that Occasion, reference was made to all the authorities of this Court which had discussed the question from the angle of article 286(1) of the Constitution, and it was pointed out that the same reasoning applied also to article 286(2). It was observed in the case as follows: "The argument on behalf of the petitioner is that, as the goods were purchased for the purpose of being sold to dealers outside the State, and they were, in fact, so sold, the purchases were in the course of inter State trade, and the levy of tax thereon was within the prohibition enacted by article 286(2). We do not agree with this contention. The transactions of sales which have been taxed were wholly inside the State of Orissa. They were sales by persons in the State of Orissa to persons within the State of Orissa of goods which were in Orissa. The fact that the purchaser sold those very goods to dealers outside the State is not relevant, as those sales are distinct and separate from the sales on which the taxes in question have been im. posed. The present levy is not on the sales by the petitioner to persons outside the State, but on the purchases by him inside the State. The former sales are in the course of inter State trade, and are not taxable under article 286(2), but the latter are purely intrastate sales, and tax imposed thereon does not offend article 286(2). " These observations are entirely applicable in the context of the facts, as are to be found in this appeal. Indeed, all that is necessary to apply the above passage to the facts of this case is to substitute "Assam" in the place of "Orissa". In our opinion, this point must be held to be concluded against the respondent. That leaves over for consideration the reasons given by Ram Labhaya, J., in his concurring judgment. Section 3 of the Act which created a liability to tax, was amended by Act 4 of 1951 by the introduction of sub section (1)A in that section. That sub section reads as follows: "(1)A. Nothing in sub section (1) shall, except in cases covered by the first proviso to sub section (12) of section 2 of this Act, be deemed to 991 render any dealer liable to tax on the sale of goods where such sale takes place: (i) outside the State of Assam; (ii) in the course of the import of the goods into, or export of the goods out of, the territory of India; or (iii) in the course of inter State trade or commerce except in so far as Parliament may by law otherwise provide. " The introduction of sub section (1)A did no more than repeat in the Act the prohibition contained in article 286. The first two clauses of this sub section reiterate the prohibition contained in article 286(1), and the third clause reiterates the prohibition contained in article 286(2) of the Constitution. The first proviso to section 2(12), which is referred to in sub section (1)A, enacts the Explanation to cl. (1) of article 286. Now, it is quite clear that from the operation of the charging section sales of a particular character are kept out. This provision saves from taxation all those transactions which, if they were taxed, would have fallen within the ban of article 286. The effect of this saving is to make such transactions immune from taxation, and no further amendment of the law in the machinery section was necessary. What section 15 does, is to grant an additional exemption in respect of sales in which the goods, though sold to a registered dealer, are meant for resale in the State, itself. It is quite easy to see that unless this exemption was granted, it was possible that there would have been sales tax at more than one point, namely, at the point at which the first registered dealer sold to the second regis tered dealer and again, when the second registered dealer sold in his turn. To avoid taxation at multiple points on transactions of sale of the same goods within the State, it was provided that the tax shall be paid only on the last sale and not on the previous sales, so long as the previous sales were from registered dealers to registered dealers in respect of goods mentioned in the registration certificate of the latter and provided the goods were for resale in the State. When the charging section itself excluded taxation of sales in the course of inter State trade 992 or commerce, it was hardly necessary to look for a repetition of the same exemption in the machinery section. It is an error to think that because the machinery section, namely, section 15, does not repeat the exemption given by the charging section, the turnover of a dealer would necessarily include the sales in the course of inter State trade or commerce. Even if the net turnover did, so include such sales, the dealer would, under sub section (1)A of section 3, be able to claim that those transactions were not taxable, because they fell within the ban of article 286(2) as well as section 3(1)A (iii) of the Act. What has already been excluded by the operation of the Constitution and the Act cannot become taxable, because the net turnover has to be calculated in a particular manner. From that net turnover, such sales must be excluded by the operation of article 286(2) and section 3(1)A of the Act. In our opinion, the ban of article 286(2), which is again reenacted by section 3(1)A, makes it incumbent that the sales falling within those previsions should be excluded from the net turnover. Reference was made to sub section (2) of section 3, and it was said that sub section (2) stated that every dealer to whom sub section (1) did not apply, shall be liable to be taxed under this Act, and that there was no mention of subs. (1)A there. No doubt, sub section (2) does not mention sub section (1)A; but sub section (1)A is not rendered ineffective by the omission. Sub section (1)A speaks of its own force, and has to be given effect to, along with the remaining sub sections of section 3. Sub section (1)A has the added support of article 286, and the Constitution must prevail. Thus, both article 286 and sub section (1)A of section 3 are there to save from taxation all sales in the course of inter State trade or commerce, and there is no need to look further into the Act to see whether they are exempted once again or not. In our opinion, the appeal must succeed. The decision of the High Court under appeal is set aside, and the petition is ordered to be dismissed with costs here and in the High Court. Appeal allowed.

IN-Abs

Section 15 of the Assam Sales Tax Act, 1947, as originally enacted, provided that in calculating the net turnover of a registered dealer for tax purposes, all sales made to another registered dealer of goods specified in the latter 's certificate of registration were to be excluded from the gross turnover, if the goods were brought for resale. In 1951, the section was amended by the addition of the words "in the State" after the word " resale", as a result of which the exclusion was confined only to sales of goods for resale in the State. Rule 80 was framed to give effect to the amendment. The petitioner, a registered dealer in Assam, and whose business consisted mainly of buying tea in Assam and selling it either in Assam or in Calcutta, chal lenged the legality of the amendment on the ground that the result of the amendment was that tax could be levied on interState sales and that, therefore, it contravened article 286(2) of the Constitution of India. Held: (1) that a sale of goods to a dealer within the State who purchased them for the purpose of selling them to dealers outside the State, and who, in fact, so sold them, would not make it a sale in the course of inter State trade as the two sales were distinct and separate. The first sale was an intra State sale and a tax imposed thereon did not offend article 286(2) of the Constitution. Endupuri Narasimham vs State of Orissa, ; , followed. (2) that section 15 of the Assam Sales Tax Act, 1947, and Rule 80 framed under that Act were not ultra vires article 286(2) of the Constitution. The object of section 15 of the Act was to avoid taxation at multiple points and the amendment to that section in 1951 or Rule 80 did not enable the levy of tax on sales in the course of inter State trade twice. Such sales were expressly saved from tax by the operation of article 286(2) and section 3(1)(A)(iii) of the Act. Once those sales were outside the charging section there was no need to re enact that prohibition in section 15 which was a machinery section and would stand cut down by the limitation placed by the charging section and the Constitution. 987

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.

IN-Abs

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.

Appeal No. 456 of 1958. Appeal by special leave from the judgment and order dated May 10, 1957, of the Rajasthan High Court (Jaipur Bench) at Jaipur in D. B. Civil Reference No. 17 of 1956. WITH PETITION No. 87 of 1961. Petition under article 32 of the Constitution of India for enforcement of Fundamental rights. Bishan Narain, and Govind Saran Singh, for the appellant/petitioner. N. section Bindra and T. M. Sen, for the respondents. April 25. The Judgment of the Court was delivered by 373 DAS GUPTA, J. On April 1, 1950, the Deputy Custodian, Jaipur, made an order in proceedings instituted under section 19 of the Administration of Evacuee Property Ordinance declaring the appellant Dr. Mohammad Saeed a medical practitioner of Jaipur to be an intending evacuee. By the same order a notice was directed to be issued to the respondent to show cause why he should not be declared to be an evacuee under section 2(d)(i) and section 2(d)(iii) of the Ordinance. When thereafter the (Act XXXI of 1950), came into force ano ther notice was issued on the appellant under section 22(b) of the Act to show cause why his property should not be declared evacuee property on the ground that he had transferred a substantial portion of his assets to Pakistan. On November 16, 1951, the Deputy Custodian, Jaipur held Dr. Mohammad Saeed to be an evacuee under section 2(d)(iii) of the Administration of Evacuee Property Ordinance, 1949. He also held Dr. Mohammad Saeed 's property to be evacuee property under section 7 of the Ordinance and also under section 22(b) of the . On appeal the District Judge, Jaipur, set aside this declaration of the appellant as an evacuee under section 2(d)(iii) of the Ordinance and remanded the case for a fresh decision in the light of the observations made by him. As regards the order under section 22(b) the learned District Judge agreed with the Deputy Custodian that Dr. Mohammed Saeed had transferred a substantial portion of his assets to Pakistan between November 1947 and September 1948. Being of opinion however that not only this act of transfer which took place before the 18th day of October, 1949, but other circumstances including the appellant 's conduct after October 18, 1949, have to be, taken into consideration before action under section 22(b) can be taken, he found that it was difficult to say that the appellant had been making preparations for his migration to Pakistan. Accordingly he set aside the order made by the Deputy Custodian under section 22(b). The 48 374 Custodian of Evacuee Property, Rajasthan, moved the Custodian General of Evacuee Property for revision of this order. The Deputy Custodian General of Evacuee Property who heard this petition in revision was unable to agree with the District Judge 's findings on the question as regards the order under section 22(b) and accordingly made a reference under section 27(2) of the , to the High Court of Rajasthan. The High Court rejected the contention raised on behalf of this appellant that the circumstances as to the transfer of a substantial portion of his assets should relate to an act done by any person, after, he was declared as an intending evacuee. It further held that the fact that Dr. Mohammad Saeed had during the period from August 14, 1947 to October 18, 1949, transferred a substantial portion of his assets in India to Pakistan constituted under the law a preparation for his migration to Pakistan and that this justified a declaration by the Custodian of his property situated in Rajasthan in which Dr. Mohammad Saeed has a right or interest, to be evacuee property. Accordingly, the High Court set aside the decision of the District Judge in respect of Deputy Custodian General 's orders under section 22(b) and directed the Custodian General or the Deputy Custodian General, if authorised to deal with it, to dispose of the proceedings in accordance with the decision of the High Court. In accordance with this direction the Deputy Custodian General on August 10, 1957, held that the property of the petitioner was rightly declared to be evacuee property under section 22(b) by the Deputy Custodian. The appeal has been filed against this decision by special leave granted by this Court. After the appeal was heard in part on January 23, 1961, the hearing was adjourned to enable the appellant to make a writ petition. A petition under article 32 of the Constitution was then filed on February 14, 1961, praying for a writ of certiorari and/or mandamus or direction to quash the order made under section 22(b). The appeal and the petition have come up for hearing together. 375 As the writ petition challenges the validity of the law as enacted in section 22(b) it will be proper and convenient to take up that petition for decision first. Of the several grounds urged in the petition against the validity of section 22(b) only one, viz., that section 22(b) contravenes article 14 of the Constitution has been pressed before us. While however in the grounds as stated in the petition the attack was that discrimination had been made between persons declared as intending evacuee in respect of whose property proceedings had been started before the commencement of the Act and those in respect of whose property no such proceedings had yet been started and further that article 14 was contravened because a person declared to be an intending evacuee who had done one of the acts prescribed as constituting a preparation for migration to Pakistan, was denied the right to show that he had, in fact, no intention so to migrate and had made no preparation for the purpose and by imposing upon him a very grave penalty, neither of those contentions were urged at the hearing. The only argument on the question of contravention of article 14 which Mr. Bishan Narain urged on behalf of the petitioner was that in two matters there was discrimination between an intending evacuee whose property was declared evacuee property under section 22(b) and an evacuee whose property might be declared to be an evacuee property, where the evacuee had done practically the same thing for which another person has been declared as an intending evacuee. Learned Counsel has pointed out that under section 2(d)(iv) of the , as it stood after its amendment by Act 11 of 1953, a person who has after the 18th day of October, 1949, transferred to Pakistan without the previous approval of the Custodian his assets or any part of his assets situated in any part of the territories to which the Act extends is an evacuee; so that any property of such a person is evacuee property within the meaning of the Act. When in respect of property of such a person an order has been made under section 7 of the Act declaring it to be evacuee property the evacuee or his heir will be entitled to make 376 an application for restoration of the property under section 16 of the Act, and after due inquiry the Central Government may, subject to the conditions specified in the section make an order restoring the property to the applicant. Another benefit which a person who is an evacuee within the meaning of section 2(d)(iv) is entitled to, along with other evacuees, is that of section 13 of the Displaced Persons (Compensation and Rehabilitation) Act (XLIV of 1954), under which when any property of an evacuee has been acquired under section 12 there shall be paid to an evacuee compensation in respect of his property. . . . in accordance with such principles and in such manner as may be agreed upon between the Governments of India and Pakistan. Take however the case of a person, like the present petitioner who after the 14th day of August, 1947, and before the 18th day of October, 1949, transferred his assets or any portion thereof to Pakistan. He would be an "intending evacuee" within the meaning of section 2(e)(i) of the Act and once a declaration had been made under section 19 that he was an intending evacuee his property would be liable to be declared evacuee property under section 22(b). Even so however he would not get the benefit of section 16 of Act XXXI of 1950 or of section 13 of the . The result of the several provisions of law of the , after it was amended in 1953 therefore is that if a person transferred his assets or any part of his assets to Pakistan without the previous approval of the Custodian after the 18th day of October, 1949, he would be an evacuee in law and his property will be liable to be declared an evacuee property, but he will still be entitled to restoration of the property under section 16 of the , and also to the benefit of section 13 of the (XLIV of 1954); but if a person transferred his assets or part of his assets to Pakistan between the 14th day of August, 1947, and the 18th day of October, 1949, he was liable 377 to be declared an intending evacuee at any date before the Amended Act of 1953 came into force and if that has happened, any property belonging to him was liable to be declared evacuee property under section 22 of the Act at any time before Chapter IV of that Act was repealed by the 1953 Act and even after that date if any proceeding under section 22 was pending on the ' date of the commencement of the 1953 Act. But such a person would not be entitled to the benefit of either section 16 of the , or compensation under section 13 of the (XLIV of 1954). This denial of benefits under section 16 of the 1950 Act and section 13 of the 1954 Act to one who has been declared an intending evacuee on the ground of transfer of assets to Pakistan amounts, it is urged by the learned counsel, to be a denial of equal protection of laws and it is contended that section 22(b) of the as it stood before the section war, repealed along with other sec tions of Chapter IV should be held to be void. In our judgment, this contention is not well founded. In the first place it is to be pointed out that a person who transferred assets between the 14th August, 1947, and the 18th October, 1949, and a person who transferred such assets after the 18th October, 1949, cannot properly be considered to be similarly circumstanced. It has to be borne in mind that political relations between India and Pakistan were in a fluid and disturbed state immediately after the 14th August, 1947, but the position improved to a considerable extent by the 18th October, 1949, which it may be noticed was the date when the Administration of Evacuee Property Ordinance, 1949, was made. Persons who had transferred assets between the 14th August, 1947, and the 18th October, 1949, may therefore reasonably have been considered by the legislature to form a class distinct in respect of the application of the law to their property from those who transferred assets after the 18th October, 1949. We are not however concerned with the reasons or the wisdom of the policy which underlay the denial of the 378 benefits of section 16 of the and section 13 of the (XLIV of 1954) to those persons who had been declared intending evacuees because of having transferred assets between the 14th August, 1947, and the 18th October, 1949, while granting these benefits to those who were evacuees under the law as amended in 1953, because of transfer of assets to Pakistan after the 18th October, 1949. What is clear is that the two groups of persons are not similarly circumstanced and so the denial of equal benefits to the two groups is not an infringement of the guarantee of equal protection of laws. Next it is important to note that this differenceviz., that one group of persons is entitled to the benefits of the sections mentioned above while another group is not does not flow directly or necessarily from section 22(b). What is characterised as discrimination between an evacuee and an intending evacuee is the consequence of the legislature 's omission to extend to the intending evacuees the benefits of section 16 of the 1950 Act and section 13 of the 1954 Act as mentioned above and not of the provisions under section 22(b) that under certain circumstances as specified therein the Custodian may declare the property of an intending evacuee to be evacuee property. We do not think that it is possible to say therefore that section 22(b) of the contravenes article 14 of the Constitution. The petition under article 32 of the Constitution therefore fails and is dismissed with costs. The appeal raises the question of the effect of the application of section 22(b) of the Act to the facts of the present case. Section 22(b), substituting therein for the words "he had done any of the acts specified in sub clauses (i) and (iii) of clause (e) of section 2" the words of only cluse 2(e)(i), reads thus: "If the Custodian is satisfied, after such enquiry as may be prescribed, that the circumstances relating to any person, in respect of whom a declaration has been so made on the ground that after the 14th 379 day of August, 1947, and before the 18th day of October, 1949, he has transferred to Pakistan his assets or any part thereof situated in any part of the territories to which this Act extends are such as may be prescribed as constituting a preparation for his migration to Pakistan, the Custodian may declare any property situated in the State in which such person has any right or interest to be evacuee property and on the issue of such notification any property specified in the notification shall be deemed to be evacuee property which has vested in the Custodian within the meaning of this Act. " It is important to notice the explanation to the section which runs thus: "Explanation: The following shall be deemed to be some of the circumstances prescribed under clause (b), namely (i) the transfer to Pakistan by any person referred to in that clause of a substantial portion of his assets situated in any part of the territories to which this Act extends, or (ii) the acquisition of, or the declaration of an intention to acquire, Pakistan nationality by any such person. " It need only be mentioned that a declaration has been "so made" means that a declaration has been made under section 19 of the Act that he is an intending evacuee. It is no longer in dispute that Dr. Mohammad Saeed had, before the order appealed from was made, transferred to Pakistan a substantial portion of his assets situated in Jaipur which is part of the territories to which this Act extends. It is further not in dispute that this transfer was made before he was declared an intending evacuee. The first contention raised on behalf of the appellant was that this transfer having been made before the declaration was made is not available for consideration for the purpose of an order under section 22(b). The contention is clearly unwarranted. On a normal grammatical construction of the words used by the legislature it is abundantly clear that the transfer to 380 Pakistan of a substantial portion of the assets shall be deemed to be one of the circumstances prescribed under clause (b) irrespective of whether the transfer took place before the declaration as intending evacuee was made or after such declaration. What is necessary is that the circumstance must relate to any person in respect of whom a declaration that he is an intending evacuee has been made. There is nothing to justify the conclusion that the circumstances in order that they may be taken into consideration must also come into existence after the declaration was made. Indeed the scheme of the legislation appears to be that the fact that any portion of a person 's assets has been transferred to Pakistan is sufficient to make him liable to a declaration that he is an intending evacuee; but he becomes liable to the further declaration that his property is evacuee property, where it appears that what was transferred forms a substantial portion of his assets. In some cases it may happen that what was transferred before his declaration as an intending evacuee formed a small part of his assets. In such a case if later on other portions of his assets were transferred to Pakistan and the two transfers together amount to a transfer of a substantial portion of his assets, his property will be liable to be declared as evacuee property: It will be difficult to find any logic in the argument that when what was transferred before his declaration as intending evacuee was itself a substantial portion of his assets, such liability should not fasten. Quite apart however from the question of logic or reasonableness it is quite clear from the language used in the section that the legislature in. tended such circumstance of transfer of a substantial portion of assets to be available for consideration for the purpose of an order under section 22(b) whether or not the transfer took place before the person was declared as an intending evacuee or afterwards. It was next urged that in any case it would be proper for the Custodian to take other circumstances including the later conduct of the intending evacuee to decide whether or not he should declare his property to be evacuee property. It is unnecessary for 381 us to consider whether it is open to the Custodian to consider such other circumstances. The section however gives a Custodian the authority to declare the property of a person who has been declared an intending evacuee to be evacuee property whenever the existence of any of the circumstances prescribed as constituting a preparation for his migrating to Pakistan is established. Where, as in the present case, a Custodian in exercise of such authority has given such a declaration there is no reason for saying that the declaration has been improperly made. In our opinion, the High Court was right in setting aside the order of the District Judge and in directing the Custodian General or the Deputy Custodian General to dispose of the matter in accordance with the views expressed by the High Court that on the facts proved in the case the order made by the Deputy Custodian declaring Dr. Mohammad Saeed 's property as evacuee property was right. The order made by the Deputy Custodian General in compliance with the directions given by the High Court cannot therefore be assailed. The appeal is accordingly dismissed with costs. Appeal dismissed.

IN-Abs

The appellant was held to be an evacuee under section 2(d)(iii) of the Administration of Evacuee Property Ordinance, 1949, and his property was declared to be evacuee property under section 22 (b) of the Administration of Evacuee Property Act, 950, on the ground that he had transferred a substantial portion of his assets to Pakistan. The relevant portion of section 22(b) runs thus: 372 "If the Custodian is satisfied, after such enquiry as may be prescribed, that the circumstances relating to any person, in respect of whom a declaration has been made on the ground that after the 14th day of August, 1947, and before the 18th day of October, 1949, he has transferred to Pakistan his assets or any part thereof situated in any part of the territories to which this Act extends, are such as may be prescribed as constituting a preparation for his migration to Pakistan, the Custodian may declare any property situated in the State in which such person has any right or interest to be evacuee property. . " The contentions, inter alia, of the appellant were that (1) section 22(b) contravened article 14 of the Constitution and (2) that the circumstances as to the transfer of a substantial portion of his assets should relate to an act done after he was declared as an intending evacuee. Held, that the two groups of persons who transferred their assets between the 14th August, 1947, and the 18th October, 1949 and persons who transferred their assets after the 18th October, 1949 were not similarly circumstanced and the denial of equal benefits to the two groups was not an infringement of equal protection of laws under article 14 of the Constitution. The circumstance of transfer of a substantial portion of assets was available for consideration for the purpose of an order under S, 22(b) whether or not the transfer took place before the person was declared as an intending evacuee or afterwards.

Appeal No. 3 of 1958. Appeal from the judgment and decree dated October 8, 1956, of the Rajasthan High Court in Civil Regular Appeal No. 1 of 1953. section T. Desai and B. P. Maheshwari, for the appellants. N. C. Chatterjee and H. P. Wanchoo, for the respondent. April 25. The Judgment of the Court was delivered by SINHA, C. J. The substantial question for determination in this appeal is whether or not the two hundis sued upon were admissible in evidence. The learned Trial Judge held that they were, and in that view of the matter decreed the suit in full with costs and future interest, by his judgment and decree dated September 26, 1952. On appeal, the High Court of Rajasthan at Jodhpur, by its judgment and decree dated October 8, 1956 allowed the appeal and dismissed the plaintiffs ' suit. Each party was directed to bear its own costs throughout. The High Court granted the necessary certificate under article 133(1)(a) of the Constitution. That is how the appeal is before us. It is only necessary to state the following facts in order to appreciate the question of law that has to be determined in this appeal. The defendant respondent is said to have owed money to the plaintiffs, the appellants in this case, during the course of their business as commission agents for the defendant, at 335 Bombay. Towards the payment of those dues, the defendant drew two mudatti hundis in favour of the plaintiffs, for the sum of 35 thousand rupees, one for 20 thousand rupees payable 61 days after date, and the other for 15 thousand rupees payable 121 days after date. The plaintiffs endorsed the two hundis to G. Raghunathmal Bank and asked the Bank to credit their account with the amount on realisation. On the date of their maturity, the Bank presented those hundis to the defendant, who dishonored them. Thereupon the Bank returned the hundis to the plaintiffs. As the defendant did not pay the amount due under those documents on repeated demands by the plaintiffs, they instituted a suit for realisation of Rs. 39,615, principal with interest. On those allegations, the suit was instituted in the Court of District Judge, Jodhpur, on January 4, 1949. It is not necessary to set out the defendant 's written statement in detail. It is enough to state that the defendant admitted the execution of the hundis, but alleged that they had been drawn for purchasing gold in future and since the plaintiffs did not send the gold, the hundis were not honoured or accepted. It was denied that the defendant owed any amount to the plaintiffs or that the hundis were drawn in payment of any such debt. It was thus contended that the hundis were without consideration. The most impor tant plea raised by the defendant in bar of the suit was that the hundis were inadmissible in evidence because they had not been stamped according to the Stamp Law. On those pleadings, a number of issues were joined between the parties, but the only relevant issue was issue No. 2 in these terms: "Whether the two hundis, the basis of the suit, being unstamped, were inadmissible in evidence? (OD*)" (*which perhaps are meant to indicate that the onus was on the defendant in respect of this issue). It appears that the defendant led evidence first, in view of the fact that the onus lay on him. He was examined as D.W.5, and in his examination in chief he 336 stated, "I did not receive any gold towards, these hundis I asked them to return the hundis, but 'they did not return them. , I had ' drawn the two hundis marked exhibit P. ' I and exhibit P. 2. They are written in Roopchand 's hand. I did not receive any notice to honour these hundis. " His other witnesses, D.Ws. 1, 2 and 4 were examined and cross examined with reference to the terms of the hundis and as to who the author of the hundis was. All along during the course of the recording of the evidence on behalf of the parties, these hundis have been referred to as exhibit P. I. and exhibit P. 2. The conclusion of the learned Trial Judge on issue No. 2 was in these terms: "Therefore, in this case the plaintiff having paid the penalty, the two documents in suit having been exhibited and numbered under the signatures of the presiding officer of court and the same having thus been introduced in evidence and also referred to and read in evidence by the defendant 's learned counsel, the provisions of sec. 36 of the Stamp Act, which are mandatory, at once come into play and the disputed documents cannot be rejected and excluded from evidence and they shall accordingly properly form part of evidence on record. Issue No. 2 is thus decided against the defendant. " The suit was accordingly decreed with costs, as stated above. On appeal by the defendant to the High Court, the High Court also found that the hundis were marked as Exs. P. 1 and P. 2, with the endorsement "Admitted in evidence" and signed by the Judge. The High Court also noticed the fact that when the hundis were executed in December, 1946, the Marwar Stamp Act of 1914 was in force and sections 9 and 11 of the Marwar Stamp Act, 1914, authorised the Court to realise the full stamp duty and penalty in case of unstamped instruments produced in evidence. Section 9 further provi ded that on the payment of proper stamp duty, and the required penalty, if any, the document shall be admissible in evidence. It was also noticed that when the suit was filed in January, 1949, stamp duty and penalty were paid in respect of the hundis, acting upon the law, namely, the Marwar Stamp Act, 1914. 337 The High Court also pointed out that the ' documents appear to have been Admitted in evidence because the Trial court lost sight of the fact that in 1947 a new Stamp Act had come into force in the former State of Marwar, amending the Marwar Stamp Act of 1914. The "new law was, in terms, similar to the Indian Stamp Act. The High Court further pointed out that after the coming into effect of the Marwar Stamp Act, 1947 the hundis in this case could not be admitted in evidence, in view of the provisions of section 35, proviso (a) of the Act, even on payment of duty and penalty. With reference to the provisions of section 36 of the Stamp Act., the High Court held that the plaintiffs could not take advantage of the provisions of that section because, in its opinion, the admission of the two hundis 'was a pure mistake '. Relying upon a previous decision of the Rajasthan High Court in Ratan Lal vs Dan Das (1), the High Court held that as the admission of the documents was pure mistake, the High Court, on appeal, could go behind the orders of the Trial Court and correct the mistake made by that Court. In our opinion, the High Court misdirected itself, in its view of the provisions of section 36 of the Stamp Act. Section 36 is in these terms: "Where an instrument has been admitted in evidence, such admission shall not, except as provided in section 61, be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped. " That section is categorical in its terms that when a document has once been admitted in evidence, such admission cannot be called in question at any stage of the suit or the proceeding on the ground that the instrument had not been duly stamped. The only exception recognised by the section is the class of cases contemplated by section 61, which is not material to the present controversy. Section 36 does not admit of other exceptions. Where a question as to the admissibility of a document is raised on the ground that it has not been stamped, or has not been properly stamped, it has to be decided then and there when the (1) I.L.R. 338 document is tendered in evidence. Once the Court, rightly or wrongly, decides to admit the document in evidence, so far as the parties are concerned, the matter is closed. Section 35 is in the nature of a penal provision and has far reaching effects. Parties to a litigation, where such a controversy is raised, have to be circumspect and the party challenging the admissibility of the document has to be alert to see that the document is not admitted in evidence by the Court. The Court has to judicially determine the matter as soon as the document is tendered in evidence and before it is marked as an exhibit in the case. The record in this case discloses the fact that the hundis were marked as Exs. P. 1 and P. 2 and bore the endorsement 'admitted in evidence ' under the signature of the Court. It is not, therefore, one of those cases where a document has been inadvertently admitted, without the Court applying its mind to the question of its admissibility. Once a document has been marked as an exhibit in the case and the trial has proceeded all along on the footing that the document was an exhibit in the case and has been used by the parties in examination and cross examination of their witnesses, section 36 of the Stamp Act comes into operation. Once a document has been admitted in evidence, as aforesaid, it is not open either to the Trial Court itself or to a Court of Appeal or revision to go behind that order. Such an order is not one of those judicial orders which are liable to be reviewed or revised by the same Court or a Court of superior jurisdiction. In our opinion, the High Court has erred in law in refusing to act upon those two hundis which had been properly proved if they required any proof, their execution having been admitted by the executant himself. As on the finding,% no other question arises, nor was any other question raised before us by the parties, we accordingly allow the appeal, set aside the judgment and decree passed by the High Court and restore those of the Trial Court, with costs throughout. Appeal allowed.

IN-Abs

The respondent admitted the execution of two Hundis in suit which were tendered and marked as exhibits but denied consideration and raised the plea that the hundis exhibited were inadmissible in evidence as at the time the suit was filed in 1949 they had not been stamped according to the Stamp Law. When the hundis were executed in December, 1946, the Marwar Stamp Act of 1914 was in force and sections 9 and 11 of that Act authorised the court to realise the full stamp duty and penalty in case of unstamped instruments produced in evidence, whereupon the documents were admissible in evidence. The High Court pointed out that after coming into force of the Marwar Stamp Act, 1947, (Similar to Indian Stamp Act) which had amended the 1914 Act, the hundis in question could not be admitted in evidence in view of the provision of section 35 proviso (a) of the Marwar Stamp Act, 1947, even on payment of duty and penalty and the appellant could not take advantage of section 36 of the 1947 Stamp Act, because 'the admission of the two hundis was a pure mistake as the Trial Court had lost sight of the 1947 Stamp Act and the appeal Court could go behind the orders of the Trial Court and correct the mistake made by, thAt Court. Held, that once the Court, rightly or Wrongly decided to 43 334 admit the document in evidence, so far as the parties were concerned, the matter was closed. The court had to judicially determine the matter as soon as the document was tendered in evidence and before it was marked as an exhibit in the case, and once the document had been marked as an exhibit and the trial had proceeded on that footing section 36 of the Marwar Stamp Act, 1947, came into operation, and, thereafter, it was not open either to the trial court itself or to a court of appeal or revision to go behind that order. Such an order was not one of those judicial orders which are liable to be revised or reviewed by the same court or a court of superior jurisdiction. Ratan Lal vs Dau Das, I.L.R. , disapproved.

Appeal No. 20 of 1961. Appeal by special leave from the judgment and order dated March 25, 1960, of the Patna High Court in Election Appeal No. 4 of 1959. N. C. Chatterjee, D. P. Singh, M. K. Ramamurthy, R. K. Garg and section C. Agarwal, for the appellant. D. Goburdhan, for respondent No. 1. 1961. April 26. The Judgment of the Court was delivered by WANCHOO, J. This is an appeal by special leave against the judgment of the Patna High Court in an election matter. The brief facts necessary for present purposes are these. There was a bye election held on December 21 and 22, 1958, to fill up a vacancy in the Bihar Legislative Assembly from the Dhanbad constituency. Nomination papers for the same were to be filed on or before November 8, 1958. A large number of persons filed their nomination papers on or before that date and among them were the appellant Rangilal Choudhury and the respondent Dahu Sao. In the present appeal we are only concerned with these two. The nomination paper of the respondent was rejected by the returning officer after scrutiny on November 11, 1958. The bye election was duly held and the appellant was declared elected by a majority of votes. Thereafter the respondent filed an election petition challenging the election of the appellant on a large 403 number of grounds. In the present appeal we are only concerned with one of the grounds that the nomination paper of the respondent was improperly rejected. The appellant 's contention in this connection was that the nomination paper was rightly rejected. The election tribunal held that the nomination paper was rightly rejected and thereafter dismissed the petition. The respondent went in appeal to the High Court, and the main point pressed in appeal was that the election tribunal was wrong in holding that the nomination paper of the respondent was rightly rejected. The High Court agreed with the contention of the respondent that his nomination paper was improperly rejected and therefore allowed the appeal and set aside the election of the appellant. The appellant 's application for leave to appeal to this Court having been rejected by the High Court, he applied for and obtained special leave from this Court; and that is how the matter has come up before us. The only ground on which the nomination paper was rejected by the returning officer was that the proposer had nominated the candidate for election from Bihar and not Dhanbad assembly constituency. The nomination was made on a Hindi form printed for the purpose by the Government. Unfortunately, the printed form did not exactly conform to the Hindi printed form in the Rules framed under the Representation of the People Act, No. LXIII of 1951, (hereinafter called the Act). The heading in the specimen printed form in the Rules requires the name of the State in which the election is held, to be filled in the blank space there; but in the printed form supplied to the respondent the name of the State was already printed in the heading and therefore the blank space had to be filled in with the name of the constituency. The candidate therefore filled in the name of the constituency in the blank space in the heading. Thereafter the proposer filled in the next part of the form which has five columns, after the main part which says that the proposer nominates so and so for such and such constituency. In this main part, the name of the candidate and the name of the constituency 404 have to be filled in by the proposer. In the particular form with which we are concerned now the name of the candidate was rightly filled in but the proposer instead of putting down the name of the constituency, namely Dhanbad, put down the name Bihar there. So the proposal read as if the candidate was being nominated for the Bihar Assembly constituency. The only objection taken before the returning officer was that the proposer had not mentioned the constituency for which he was proposing the candidate for election and therefore the nomination 'form was defective and should be rejected. This found favour with the return ing officer, who rejected the nomination paper as already said, on the ground that the proposer had nominated the candidate for election for Bihar assembly constituency and not Dhanbad assembly constituency. It may be mentioned that it is no one 's case that there is any constituency like Bihar assembly constituency. It may also be mentioned that this. was a bye election and not a General Election; and the question whether the nomination paper was rightly rejected will have to be considered in this background. Now section 33(1) of the Act requires that a nomination paper completed in the prescribed form and signed by the candidate and by an elector of the constituency as proposer shall be filed on or before the date appointed for the nomination. Section 33(4) lays down that on the presentation of a nomination paper, the returning officer shall satisfy himself that the names and electoral roll numbers of the candidate and his proposer as entered in the nomination paper are the same as those entered in the electoral rolls; provided that the returning officer shall permit any clerical or technical error in the nomination paper in regard to the said names or numbers to be corrected in order to bring them into conformity with the corresponding entries in the electoral roll; and where necessary, direct that any clerical or printing error in the said entries shall be overlooked. Section 36 then prescribes for the scrutiny of nomination papers and sub section (2) (b) thereof lays down that the nomination paper shall be rejected if there has been a failure to comply with any 405 of the provisions of section 33. But sub section (4) lays down that the returning officer shall not reject any nomination paper on the ground of any defect which is not of a substantial character. The result of these provisions is that the proposer and the candidate are expected to file the nomination papers complete in all respects in accordance with the prescribed form; but even if there is some defect in the nomination paper in regard to either the names or the electoral roll numbers, it is the duty of the returning officer to satisfy himself at the time of the presentation of the nomination paper about them and if necessary to allow them to be corrected, in order to bring them into conformity with the corresponding entries in the electoral roll. Thereafter on scrutiny the returning officer has the power to reject the nomination paper on the ground of failure to comply with any of the provisions of section 33 subject however to this that no nomination paper shall be rejected on the ground of any defect which is not of a substantial character. The main dispute in the High Court centered on the question whether the defect in this case on the ground of which the returning officer rejected the nomination paper was of a substantial character or not. Generally speaking if the nomination paper does not disclose at all the name of the constituency for which the nomination has been made, the defect would be of a substantial character, for there would then be no way of knowing the constituency for which a candidate is being nominated. But there may be cases where the nomination form shows the constituency for which the nomination is being made though there may be some defect in filling up the form. In such a case it seems to us that if the nomination form discloses the constituency for which the nomination is being made even though the form may not have been properly filled in that respect, the defect in filling the form would not be of a substantial character. It is true that in this case there was a defect in filling up the blank by the proposer inasmuch as he wrote the word "Bihar" before the words "assembly constituency" instead of 52 406 the word "Dhanbad", which he should have done; and if there were nothing else in the form to disclose the constituency for which the nomination was being made there would have been a substantial defect in the nomination form which would justify the returning officer in rejecting the same. But the circumstances of the present case are rather peculiar. We have already mentioned that the printed Hindi form which was used in this case printed the heading wrongly inasmuch as the heading was not in accordance with the heading prescribed under the Rules. In the specimen form in the Rules, the blank space is meant for the State in which the election is being held; but because of the mistake in printing the heading in this case, the blank space could only be filled up with the name of the constituency, and that was what was done. This name was filled in apparently by the candidate himself and not by the proposer. But equally clearly the name of the constituency was there when the proposer in his turn came to fill up that part of the form which he had to fill. It seems that the proposer was thus misled, as the name of the constituency was already there in the heading, to write the word "Bihar" in the second blank space in his proposal instead of the word "Dhanbad" to indicate the constituency. That was undoubtedly a defect in the form as filled in by the proposer. The question however is whether in these circumstances it can be called a defect of a substantial character which would justify the rejection of the nomination paper. It seems to us that the defect appeared partly because of the mistake in the printing of the Hindi form which was supplied to the candidates for the purposes of the nomination to this bye election. The form however as put in clearly shows in the heading the particular assembly constituency for which the election was being held. Then follows the part which has to be filled in by the proposer and there the proposer made a mistake in filling the word "Bihar" instead of the word "Dhanbad" in the blank space relating to the constituency. Considering however that the name of the constituency was already there in the heading, it would in our 407 opinion be not improper in the circumstances of this case to say that the proposer was nominating the candidate for the constituency which was already mentioned in the heading. It seems to us therefore that in view of the mistake that occurred in the printing of the form and in view of the fact that the name of the constituency for which the election was being held was already in the heading, the mistake of the proposer in putting in the word "Bihar" instead of the "Dhanbad", which resulted in a defect in the filling up of the form was not of a substantial character and that it was quite clear on the form in this case that the nomination was for the Dhanbad assembly constituency. The returning officer does not seem to have attached any importance to the name of the constituency in the heading in this case and also seems to have ignored the fact that this was a bye election to one constituency, when he came to consider the defect which undoubtedly was there in this respect in the nomination paper. We therefore agree with the High Court that in the peculiar circumstances created by the mistake in printing the Hindi nomination form by the Government, the defect which has occurred in this case is not of a substantial character and it was quite clear that the nomination paper was for the Dhanbad assembly constituency and was in consequence improperly rejected by the returning officer. As we have already said, this was the only ground on which the nomination paper was challenged as defective before the returning officer; but before the election tribunal the appellant also contended that the nomination paper was defective as columns 2 and 5 of the part which has to be filled in by the proposer were not properly filled in and were defective; and it was urged that the defect there was substantial and therefore even if the reason for the rejection of the nomination paper as given by the returning officer was not substantial, these defects were substantial and the rejection should be upheld on the ground of these defects. Column 2 requires the electoral roll number of the proposer and column 5 of the candidate to be 408 filled in there. Further according to the directions given in the form columns 2 and 5 should contain the name of the constituency, the part of the electoral roll and the serial number in that part. The purpose of this provision is that the returning officer should be able readily to check that the proposer and the candidate are voters on the electoral roll. In the present case only the serial number and the house number are mentioned in columns 2 and 5 and not the name of the constituency and the number of the part. Undoubtedly therefore there was a defect in these two columns. Apparently the constituency was the same, viz., Dhanbad, as will appear from the address given in column 4. No part number could be given as the electoral roll in this particular case was not numbered by Parts. The question is whether in these circumstances this defect can be called a defect of a substantial character. In this connection we cannot ignore the provisions of section 33(4) of the Act, which casts a duty on the returning officer to satisfy himself that the names and electoral roll numbers of the candidate and his proposer as entered in the nomination paper are the same as those entered in the electoral roll and gives him the power to permit the removal of any defect in this connection. The returning officer does not seem to have noted this defect in the form for if he had done so he would have given an opportunity to the proposer to make the corrections. It is true that the failure of the returning officer to give this opportunity for correction does not mean that the defect can be ignored, if it is of a substantial character. But considering the purpose for which the electoral roll numbers are given, it seems that the returning officer found no difficulty in checking that the proposer as well as the candidate was a voter on the electoral rolls. The High Court in this connection referred to the evidence of the respondent who stated that when his nomination paper was taken up for scrutiny, the returning officer compared the names in the nomination paper with those in the electoral rolls. It seems therefore that in this case the returning officer found no difficulty in tracing the names of the proposer and the candidate 409 in the electoral rolls and that is why no objection was raised before him as to the defect in columns 2 and 5. In the circumstances it must be hold that the defect was of an unsubstantial character and would not result in the rejection of the nomination paper. We may in this connection refer to Karnail Singh vs Election Tribunal, Hissar and Other8 (1), where this Court observed that it was quite clear on the evidence that there was no difficulty in identifying the candidate and the candidate himself pointed out to the returning officer his own name in the electoral rolls. Therefore the defect in columns 2 and 5 was in the circumstances held to be a technical one and not of a substantial character. The principle of that case in our opinion applies to the present case also, for there is no doubt here that the returning officer found no difficulty in identifying the proposer as well as the candidate and as a matter of fact the evidence is that the candidate himself pointed out the place in the electoral rolls where his name was entered. We therefore agree with the High Court that in the circumstances of this case the defects in columns 2 and 5 were of an unsubstantial character and the rejection of the nomination paper cannot be upheld on this further ground, which was not even urged before the returning officer. We therefore dismiss the appeal. In these circumstances we pass no order as to costs. Appeal dismissed.

IN-Abs

The appellant was elected as a member of the Bihar Legis lative Assembly in a bye election from the Dhanbad constituency by a majority of votes while the nomination paper of the respondent was rejected by the Returning Officer on the ground that the respondent 's proposer had nominated him for election from the Bihar and not Dhanbad assembly constituency inasmuch as in the nomination paper he wrote the word "Bihar" before the words "assembly constituency" instead of the word "Dhanbad". This defect arose out of a mistake in the Hindi printed form of the nomination paper which did not exactly conform to the form prescribed by the Rules. In an election petition by the respondent the Election Tribunal held that his nomination paper was rightly rejected but on appeal the High Court held that it was improperly rejected. On appeal by special leave, Held, that in view of the mistake that occurred in the 402 printing of the form and in view of the fact that the name of the constituency for which the election was being held was already in the heading, the defect in the filling up of the form which resulted from a mistake of the proposer in putting the word "Bihar" instead of the word "Dhanbad" was not of a substantial character as contemplated under s 33 of the Representation of the People Act, 1951. Held, further, that the defect arising out of the fact that columns nos. 2 and 5 were not properly filled was not of a substantial character as the Returning Officer bad no difficulty in checking that the proposer and the candidate were voters on the electoral rolls. Karnail Singh vs Election Tribunal, Hissay, [1954] 10 E.L.R. 189, relied on.

Appeal No. 356 of 1959. Appeal by special leave from the judgment and order dated the November 18, 1957, of the Punjab 18 High Court at Chandigarh in Civil Miscellaneous Application No. 712 of 1956. B. D. Sharma, for appellant. Hardev Singh and A. G. Ratnaparkhi, for respondent No. 1. Y. Kumar, for respondent No. 2. 1961. April 17. The Judgment of the Court was delivered by SHAH, J. The Singer Sewing Machine Company hereinafter referred to as the company was, since the year 1934, the tenant for business purposes of a shop situate at Gurgaon in the State of Punjab and belonging to Pandit Kishan Lal hereinafter called the appellant. One Ganpat Ram Khosla hereinafter referred to as Khosla was the Sales Manager of the company. The Legislature of the State of East Punjab enacted Act III of 1949 called the East Punjab Urban Rent Restriction Act, 1949, to restrict the increase of rent of certain premises situated within the limits of urban areas and the eviction of tenants therefrom. The Act granted protection to tenants of premises used for residential and non residential purposes. By section 2, el. (1), the expression "tenant" was defined, in so far as the definition is material, as meaning any person by whom or on whose account rent was payable for a building or rented land and included a tenant continuing in possession after the termination of the tenancy in his favour, but did not include a person placed in occupation of a building or rented land by its tenant, unless with the consent of the landlord. By section 13, the right of the landlord to evict a tenant even in execution of a decree was restricted and the landlord could seek to evict his tenant by an application to the Controller in certain specified circumstances set out in that section. On August 30, 1954, the company addressed a letter to the appellant intimating that it desired to close down its office in Gurgaon with effect from September 1, 1954. The relevant part of the letter ran as follows: 19 "Now the Company has closed its agency busi ness at Gurgaon and Mr. Khosla will be carrying on Sewing Machine business in Gurgaon in your shop in his personal capacity and not as a Manager of Singer Company. In order that there may not be any misunderstanding about the payment of rent in future, you are informed that from September, 1954 onwards Mr. Khosla will be personally responsible for the payment of rent of your shop. " The appellant informed the company that unless vacant possession was delivered to him tenancy could not be validly determined, and that the company will be held responsible till such delivery for liability to pay rent and that in the event of possession being transferred to any other person, legal action will be taken against the company. But the company delivered possession of the shop to Khosla and allowed him to occupy the shop in his personal capacity from September 1, 1954. Thereafter, on October 31, 1954, the appellant applied under section 13 of the Act to the Controller for an order against Khosla and the company on three grounds, (1) that the company did not require the premises any longer while the appellant required the same for his own use, (2) that the company had neglected to pay rent since September 1, 1954, and (3) that the company had assigned or sublet the shop to Khosla without the written consent of the appellant. Khosla and the company resisted the application contending that Khosla was the tenant of the appellant and that in any event, on August 28, 1954, the company through its local Supervisor had delivered possession of the shop to the appellant and that the latter agreed to treat Khosla as his tenant with effect from September 1, 1954. The Controller rejected the pleas raised by Khosla and the company and ordered that possession be delivered by the com pany to the appellant. In appeal to the District Court at Rohtak, the order passed by the Controller was confirmed. In a petition under article 227 of the Constitution filed by Khosla in the High Court of Judicature for. Punjab at Chandigarh, the order passed by the District Court was quashed. The High Court was of the view that after August 31, 1954, the 20 company had no interest left in the tenancy and the tenancy being from month to month terminable at the will of the appellant, such tenancy could not be the subject matter of transfer or of sub letting. The High Court therefore held that the order passed was without jurisdiction. In the course of the judgment, the High Court observed that full rent had been paid even after September 1, 1954, and therefore the ground of non payment of rent "was not open to" the appellant. It is accepted at the bar that in making this observation, the High Court was under a mis apprehension. The rent accruing due was not paid to the appellant, but was deposited in court. Against the order passed by the High Court, this appeal is preferred with special leave. The Controller and the District Court found that the tenant of the shop in dispute was not Khosla but the company. These two tribunals also found that possession of the shop was handed over by the company to Khosla without the consent of the appellant. These findings were binding upon the High Court. The only question which fell to be determined by the High Court was whether by unilateral action on its part, the company could require the appellant to treat Khosla as his tenant. In our view, the High Court misconceived the nature of the tenancy. A tenancy except where it is at will, may be terminated only on the expiry of the period of notice of a specified duration under the contract, custom or statute governing the premises in question. A tenant does not absolve himself from the obligations of his tenancy by intimating that as from a particular date be will cease to be in occupation under the landlord and that some one else whom the landlord is not willing to accept will be the tenant. It is one of the obligations of a contract of tenancy that the tenant will, on determination of the tenancy, put the landlord in possession of the property demised (see section 108(q) of the Transfer of Property Act). Unless possession is delivered to the landlord before the expiry of the period of the requisite notice, the tenant continues to hold the premises during the period as tenant. Therefore, by merely assigning the rights, the tenancy of the 21 company did not come to an end. It was observed by this court in W. H. King vs Republic of India (1): "There is a clear distinction between an assignment of a tenancy on the one hand and a relinquishment or surrender on the other. In the case of an assignment, the assignor continues to be liable to the landlord for the performance of his obligations under the tenancy and this liability is contractual, while the assignee becomes liable by reason of privily of estate. The consent of the landlord to an assignment is not necessary, in the absence of a contract or local usage to the contrary. But in the case of relinquishment it cannot be a unilateral transaction; it can only be in favour of the lessor by mutual agreement between them. Relinquishment of possession must be to the lessor or one who holds his interest: and surrender or relinquishment terminates the lessee 's rights and lets in the lessor. " In the present case, the company did not surrender its rights to the appellant; it sought to transfer its rights to Khosla. The company admittedly did not serve the notice as required by law, nor did the appellant agree to accept the unilateral determination of the tenancy by the company. The true position was therefore that the company did not immediately on the service of the notice cease to be a tenant; and Khosla, because he was let into possession became an assignee of the rights of the company as a tenant, and he could not be regarded as a trespasser. The High Court was therefore in our view in error in holding that the proceedings were not maintainable in the court of the Controller for possession. Khosla being an assignee of the tenancy rights of the company was as much liable to be sued in the court of the Controller as the company for an order in ejectment. We therefore allow the appeal, set aside the order passed by the High Court and restore the order passed by the District Court, Rohtak. The appellant will be entitled to his costs in this court as well as in the High Court from Khosla. Appeal allowed.

IN-Abs

The Singer Sewing Machine Company, respondent 2 in the appeal, was the tenant in respect of a shop under the appellant and informed him that the company had closed its premises, that respondent I will conduct his business in the shop, and that he will be personally responsible for payment of rent, and in spite of the appellant 's protest and without his consent delivered possession of the said shop room to respondent 1. Thereupon the appellant applied to the Controller under section 13 of the East Punjab Urban Rent Restriction Act, 1949, for eviction of the respondents and the Controller directed the company to deliver possession to the appellant. The District Court confirmed the Controller 's order but the High Court set aside the order, in a petition under article 227 of the Constitution, as having been made without jurisdiction, holding that the company had no interest in the tenancy after August 31, 1954, and nothing had passed to the respondent 1. Held, that the High Court was in error on both the points and its order must be set aside. One of the obligations of a tenant under section 108(q) of Transfer of Property Act, on the determination of the tenancy, is to put the landlord in possession. If the tenant fails to do so before the expiry of the period of notice, his tenancy continues and cannot be terminated by an assignment in favour of another. W. H. King vs Republic of India, , referred C.to. In the instant case, the company had not admittedly served the notice as required by law and, therefore, did not cease to be the tenant and since the respondent I was let into possession as assignee he was not a trespasser and, consequently, the proceeding before the Controller was maintainable against both.

Appeal No. 27 of 1960 WITH Civil Appeals Nos. 574, 92 411 and 285 of 1960, 351 of 1959 and Petitions Nos. 20 and 106 of 1960. Appeal by special leave from the judgment and order dated August 6, 1957, of the Patna High Court in M. J. C. No. 57 of 1956. Lal Narayan Sinha and section P. Varma, for the appellants (in C. A. No. 27 of 1960). D. Goburdhan, for respondents Nos. 1 to 7. K. K. Sinha, for the appellant (in C. A. No. 574 of 1960). D. P. Singh, for the respondent. D. P. Singh, for the appellants (in C. A. No. 92 of 1960). D. Goburdhan, for the respondents. R. C. Prasad, for the appellants (in C. A. No. 411 of 1960). L. K. Jha, section K. Jha and K. K. Sinha, for the respondents. section P. Varma, for the appellants (in C. A. No. 285 of 1960). L. K. Jha, B. K. Garg and section C. Agarwal, for the respondent. section P. Varma, for the appellant (in C. A. No. 351 of 1959). R. K. Garg and section C. Agarwala, for the respondents. Tarkeshwar Dayal, K. K. Sinha and R. C. Prasad, for the petitioners (in Petition No. 20 of 1960). Lal Narayan Sinha and section P. Varma, for respondent No. 1. R. K. Garg and section C. Agarwala, for the petitioner (in Petition No. 106 of 1960). section P. Varma, for respondent No. 1. 384 1961. April 25. The judgment of the Court was delivered by DAS GUPTA, J. The common question which arises for decision in this group of cases is as regards the validity of the Bihar Act No. XVI of 1959 (Bihar Land Reforms Amendment Act, 1959), in so far as it amends with retrospective effect sections 4 and 6 of the Bihar Land Reforms Act, 1950, to be indicated later, and inserts the new sections, section 7B and section 7C in that Act. It appears that sometime after the Bihar Land Reforms Act became law and action was taken under section 3 thereof by the State Government issuing notifications, declaring that the estates or tenures of proprietors or tenure holders, specified in the noti fications had passed to and become vested in the State, the Revenue authorities started interfering with the rights of those ex proprietors and ex tenureholders to hold Melas on lands of which they were thereafter in occupation as occupancy raiyats under the State and started settling rights to realise tolls from such Melas on behalf of the State Government. Aggrieved by this action taken by the Revenue authorities on behalf of the State Government applications were made by several of these erstwhile intermediaries now occupancy raiyats to the High Court of Patna for writs restraining the Government and its officers from such interference with their rights. Five such applications have given rise to the five appeals which are numbered as C. A. No. 351 of 1959, C. A. No. 27 of 1960, C. A. No. 92 of 1960, C. A. No. 285 of 1960 and C. A. No. 411 of 1960. The High Court held that in view of the provisions of section 6 of the Bihar Land Reforms Act (before its amendment) and the fact that the provisions made in section 4(a) of the Act about the consequences that would ensue on the vesting of an estate or tenure in the State were "subject to" the provisions of section 6, the State had no right to hold Melas on the Bakasht lands of the ex intermediaries now occupancy raiyats. Accordingly the High Court allowed the applications and issued writs as prayed for. Against these orders of the High Court the State of Bihar and its officers have preferred the 385 five appeals mentioned above, after obtaining special leave from this Court. Some time after special leave was obtained by these appellants the Bihar Legislature enacted in 1959, the Bihar Land Reforms Amendment Act, 1959, (Bihar Act XVI of 1959). This Act amended inter alia section 4, cl. (b) of the Bihar Land Reforms Act, 1950, by adding the word "Mela" after the words "jalkars, hats, and bazars" and by omitting the words "subject to the subsequent provisions of this Chapter" in cl. (a) of section 4. It also amended section 6 of the 1950 Act by substituting for the words "Notwithstanding anything contained in this Act" the words "subject to the provisions of sections 7A and 7B". Of these section 7B provides that "Where on any land deemed to be settled with the intermediary under the provisions of section 5, section 6 or section 7, a Mela was being held by the intermediary at any time within 3 years of the date of vesting, the right to hold such Mela on such land shall, with effect from such date, vest in the State and notwithstanding anything contained in any law, the State shall have and the intermediary shall not, except with the consent of the State Government have the right to hold such Mela on such land or to do anything which may prejudicially affect such Mela". Section 7C contains provisions as regards settlement of hats, bazars or melas referred to in section 7A and section 7B and provides inter alia that settlements will be made with the outgoing intermediary or his heir after application is received from him and if there are several of them who apply for settlement, with the most suitable of them. The Amending Act made the amendments mentioned above, except the insertion of a. 7C, retrospective, with effect from the date of enactment of the parent Act. The Amending Act had already been passed, when several other applications under article 226 of the Constitution for similar relief against the interference by the Government with the intermediaries ' right to hold Melas came up for consideration before the High Court. The High Court rejected these applicants ' attack against the validity of the Amending Act and held that in view of the provisions 386 now made the applicants were not entitled to any relief. Civil Appeal No. 574 of 1960 has been preferred by one of such applicants on a certificate granted by the High Court. The two applications under article 32 of the Constitution were filed in this Court for writs of mandamus against the State of Bihar and its officers restraining them from interfering with the applicant 's right to hold melas on their lands. Both of these were filed after the Bihar Land Reforms Amendment Act, 1959, had become law. It is obvious that if the Amending Act is valid legislation, in so far as it amends with retrospective effect section 4 and section 6 of the 1950 Act as mentioned above and inserts section 7B, the ex intermediaries have not and the State has the right to hold melas on the Bakasht lands. The main question therefore is whether this is a valid legislation. To answer this question we have to examine in the first place whether the Bihar Legislature which enacted the Amending Act had on that date the legislative competence under article 246 of the Constitution to do so; and secondly, whether the law was void because of the provisions of article 13 of the Constitution. The Amending legislation was clearly within Item 42 of the Concurrent List, being a law as regards acquisition of property. Mr. Tarkeshwar Dayal, who appeared on behalf of one of the ex intermediaries submitted that this was really not a matter of land reform; the purpose of the Amending legislation being only to augment the revenue of the State. It is true that the law by taking the right to hold melas from certain persons and giving it to the State is likely to augment the revenues of the State. It may well be that this object of augmenting the revenues was one of the main purposes behind the Amending legislation. That however is no reason to think that this legislation is not also concerned with land reform. It is however unnecessary for us to consider this question further, for whether it is a law as regards land reform or not, it is clearly and entirely as regards acquisition of property. The question of the legislature having attempted legislation not within 387, its competence by putting it into the guise of legislation within its competence does not even arise. The conclusion that necessarily follows is that the amending legislation was within the legislative competence of the Bihar Legislature under article 246 of the Constitution. This brings us to the main question in controversy, viz., whether the amending legislation is void on the ground that it violates articles 31, 19 and 14 of the Constitution. A complete answer to this question is furnished in favour of the State if this is a law within the saving provisions of article 31A. article 31A was enacted in the Constitution by the Constitution (First Amendment Act) with retrospective effect from the commencement of the Constitution. It was further amended by the Constitution (Fourth Amendment) Act, also with retrospective effect from the date of the commencement of the Constitution. This Article provides inter alia, that notwithstanding anything contained in article 13, no law providing for the acquisition by the State of any estate or of any rights therein. . . shall be deemed to be void on the ground that it is inconsistent with or takes away or abridges any of the rights conferred by articles 19, 31 and 14 of the Constitution. Is the amending legislation a law "providing for the acquisition by the State of any estate or of any rights therein?" Two arguments have been advanced on behalf of the ex intermediaries to convince us that it is not such a law. The first argument is that what the amending legislation provides for is not "acquisition" at all within the meaning of article 31A as it is not "acquisition" for a public purpose. It has been urged that the purpose is a mere augmentation of revenue. It does not appear to us that when the right of holding the Mela is taken over by the State the only purpose is the augmentation of revenue. There is scope for thinking that the legislature believed that melas would be better run and be more in the interests of the general public when run by the State than when they are left without control in the hands of private individuals with whom the profit motive is 388 likely to be the sole guiding principle. It is unnecessary however to answer this question for, in our opinion, a law, may be a law providing for "acquisition" even though the purpose behind the acquisition is not a public purpose. It is important to notice that the Constitution (Fourth Amendment) Act made important alterations in article 31 also. One of the amendments of article 31 was that clause 2 now provides that no property shall be compulsorily acquired, (1) save for a public purpose and (2) save by authority of a law which contains provisions for compensation for the property acquired and either fixes the amount of compensation or specifies the principles on which and the manner in which the compensation is to be determined and given. Then, article 31 A provides inter alia that a law providing for "acquisition" will not be void on the ground that it is inconsistent with or takes away or abridges a right conferred by article 31. Reading the two articles together as they stand after the fourth amendment of the Constitution it becomes obvious that when article 31A speaks of a law of "acquisition" it contemplates a law which may be for acquisition, though not for a public purpose and lays down that even though this will be in violation of the fundamental right guaranteed by the first part of article 31(2) the law will not be void because of such violation. The question whether the validity of a law for compulsory acquisition of property by the State can be challenged on the ground that the "acquisition" is not for a public purpose bad to be considered by this Court even before the amendment of article 31(2) as mentioned above in The State of Bihar vs Sir Kameshwar Singh (1). article 31(2) as it then stood did not in so many words provide that no acquisition can be made save for a public purpose; but it was argued on behalf of the State that such a provision was implicit in the words of article 31(2). This argument was rejected by Mahajan and Chandrasekhara Aiyar, JJ., but it was accepted by Patanjali Sastri, C. J., and Das, J., both of whom held that the requirement of public (1) 389 purpose being a condition for compulsory acquisition laid down by article 31(2) the law was saved in spite of the violation of such condition by article 31(4) and also article 31A. Mukherjea, J., also said that the requirement of public purpose was a condition implied in the provisions of article 31(2). His Lordship then added: "For my part, I would be prepared to assume that cl. (4) of article 31 relates to everything that is provided for in clause (2) either in express terms or impliedly and consequently the question of the existence of a public purpose does not come within the purview of an inquiry in the present case. " It was in this state of judicial opinion that article 31(2) was amended by the Constitution (Fourth Amendment) Act as mentioned above and the requirement of public purpose was expressly made a condition for compulsory acquisition by the State. The basis for the argument that the question whether there was a public purpose or not is open to judicial review in spite of article 31A has therefore disappeared. It is worth noticing in this connection that in Sir Kameshwar Singh 's case(1) the argument that quite apart from anything in article 31(2) as it then stood no law of acquisition could be made except for a public purpose was sought to be reinforced by the words in Item 36 of the State List and Item 42 of the Concurrent List. These items read as follows: "36. Acquisition or requisitioning of property, except for the purposes of the Union, subject to the provisions of entry 42 of List Ill." "42. Principles on which compensation for property acquired or requisitioned for the purposes of the Union or of a State or for any other public purpose is to be determined, and the form and the manner in which such compensation is to be given. " The argument on the basis of these entries was that the State legislatures had no power to make a, law for acquisition of property without fulfilling ' the condition of public purpose. The Constitution (.Seventh Amendment) Act which came into force on the 1st (1) 50 390 day of November, 1956, deleted Entry 36 of the State List and substituted for the former phraseology of Item 42 of the Concurrent List the words "acquisition and requisition of property". It is quite clear that after its amendment the legislative list permits the State legislature to enact a law of acquisition even without a public purpose; and that the only obstacle to such a law being enacted without a public purpose is the provisions of article 31(2). That obstacle also disappears if the law in question is one within article 31 A. It was next contended that the acquisition of the right to hold the Mela, for which the amending Act provides is not acquisition, in any case, of "rights" "in any estate" within the meaning of article 31A as defined in cl. 2(b) of the same Article. It was argued that this definition includes only rights of persons who are intermediaries and unless the raiyat whose rights are being acquired is an intermediary, that is, a person between the State and the tiller of the soil, his rights are not rights within the definition of "rights in relation to an estate"; and consequently, a law providing for acquisition of the rights of such a raiyat is not a law within the saving provisions of article 31A. It is pointed out that on the date the Amending Act was passed the ex intermediaries had ceased to exist as intermediaries and had become occupancy raiyats under section 6 of the parent Act. What were being acquired therefore, it is argued, were not rights of intermediaries but rights of raiyats who had ceased to be intermediaries. It has to be noticed that the impugned provisions amending section 4 and section 6 and section 7(b) have been given retrospective effect so that the parent Act of 1950 has to be read as containing on the very date of its enactment provisions in these sections not as originally enacted but as they stood after the amendment of 1959. In deciding whether rights of raiyats were being acquired or not we have to forget what happened in consequence of the unmended section 6. Projecting ourselves to the date September 25, 1950, when the President 's assent to the Bihar Land Reforms Act, 1950, was published in the 391 Gazette and reading the Act as containing section 4 and section 6 as amended and also section 7(b) it cannot but be held that what were being acquired by means of these provisions of the amending legislation giving retrospective effect were certain rights of the intermediaries. These intermediaries had not on September 25, 1950, ceased to be intermediaries and the fact that under the unmended provisions of section 6 they later on became occupancy raiyats should not be allowed to confuse the fact that the acquisition of certain properties by the amending legislation being itself with effect from September 25, 1950, what was being provided for was acquisition of intermediaries ' rights. Even if it be assumed that what the amending legislation provided for was the acquisition of raiyats ' rights, there is no justification for holding that these rights were not "rights in any estate" within the definition of el. 2 of article 31A. Clause 2(b) is in these words: "the expression 'rights ' in relation to an estate, shall include any rights vesting in a proprietor, sub proprietor, under proprietor, tenure holder, ralyat, under raiyat or other intermediary and any rights or privileges in respect of land revenue. " The contention on behalf of the ex intermediaries is that the rights of raiyats who are not intermediaries, in the sense of being middlemen between the State and the tiller of the soil, are not within this definition. This contention does not however stand a moment 's scrutiny, for the simple reason, that it is well known that ordinarily at least, a raiyat or an under raiyat is not a person, who can be called an intermediary. It is reasonable to think that the word "raiyat"was used in its ordinary well accepted sense, of the person "who holds the land under the proprietor or a tenure holder "for the purpose of cultivation" and the word "under raiyat" used in the equally well accepted and ordinary sense of "a person who holds land under a raiyat for the purpose of cultivation. " It is necessary to remember in this 392 connection that article 31A as first enacted by the Con stitution (First Amendment) Act did not contain these words "raivat, under raiyat"; and that after the First Amendment the definition ran thus: "the expression rights ', in relation to an estate shall include any rights vesting in a proprietor, sub proprietor, under proprietor,, tenure holder or other intermediary and any rights or privileges in respect of land revenue. " It was the Fourth Amendment which in the year 1956 inserted the words "raiyat, under raiyat "immediately after the words "tenure holder". At that time laws bad already been passed in most of the States for the acquisition of the rights of intermediaries in the estates; rights of raiyats or under raiyats who might answer the description "intermediary" were also within the definition because of the use of the word "or other intermediary". The only reason for specifically including the rights of "raiyats" and "under raiyats" in the definition could therefore be to extend the protection of article 31A to laws providing for acquisition by the State Governments of rights of these "raiyats" or "under raiyats". In the circumstances and in the particular setting in which the words "raiyat" or "under raiyat" were introduced into the definition, it must be held that the words "or other intermediary" occurring at the end, do not qualify or colour the meaning to be attached to the tenures newly added. Another contention raised in support of the argument that the impugned law is not for acquisition of a right in an estate is that the right to hold a Mela is not a right in the lands at all. This contention is wholly unsound. Holding a hat, or bazar or mela is only a mode of user by the owner of his land. Just as he can enjoy the land belonging to him in other ways, he can use it for the purpose of having a concourse of people buyers and sellers and others for a hat, or bazar or mela subject, as in the case of other user to the requirement that no nuisance is created and the legal right of others are not infringed. Consequently, the right to hold a Mela has always been 393 considered in this country to be an interest in land, an interest which the owner of the land can transfer to another along with the land or without the land. There can be no doubt therefore that the right of the proprietor of an estate to hold a Mela on his own land is a right in the "estate, being appurtenant to his ownership of the land; so also the right of a tenureholder, who it has to be remembered is the owner of the land subject only to the payment of rent to the proprietor, to hold a mela on land forming part of the tenure. It is true that a licence to hold a Mela on another 's land in which no interest is transferred is not an interest in land; but there is no question here of the acquisition of any licence to hold a Mela at another person 's land. The argument that the impugned law was not a law for acquisition of a right in the "estate" because the right to hold a mela was not a right in the land must therefore be rejected. Lastly, it was contended that long before the date of the amending Act the "estates" had ceased to exist as a consequence of the notifications issued under section 3 of the Parent Act and consequently whatever was being acquired in 1959 could not be a right in an "estate". Here also we have to take note of the fact that the impugned provisions of the Amending Act were made retrospective with effect from the date of the original enactment so that we have to project ourselves to September 25, 1950, the date of the original enactment, and consider whether on that date the law provided for acquisition of a right in an "estate". Undoubtedly the "estates" did exist on that date and so the acquisition retrospectively provided for from that date was acquisition of a right in an estate. Even if we ignore the fact that the impugned provisions of the Amending Act were given retrospective effect there is no warrant for saying that what was being acquired was not a right in an "estate". "Estate" was defined in the Bihar Tenancy Act to mean "any land included under one entry in any of the general registers of revenue paying lands and revenue free lands, prepared and maintained under the law for the time being in force by the Collector of 394 a District". It is not disputed before us that in spite of the fact that in consequence of notifications under section 3 of the Act the "estates" had become vested in the State, these registers continued to be maintained at least up to the date of the Amending Act and even later. The position therefore is that the "estates" have become vested in the State but have still not ceased to be "estates". We have therefore come to the conclusion that the impugned provisions of the Amending Act is a law providing for the acquisition by the State of rights in an "estate" ". within the meaning of article 31A of the Constitution and consequently even if we assume that they are inconsistent with or take away or abridge any of the rights conferred by articles 14, 19 and 31 they are not void on that ground. The conclusion cannot therefore be escaped that the ex intermediaries have not and the State has the right to hold melas on the Bakasht lands of which they have be. come occupancy raiyats under the provisions of section 6. We therefore allow the appeals by the State and set aside the order of the High Court for the issue of writs and order that the applications under article 226 made before the High Court be dismissed. We also dismiss the two petitions under article 32 of the Constitution filed in this Court, and also Civil Appeal No. 574 of 1960. In the circumstances of the case, we make no order as to costs. Appeals by the State allowed. C. A. No. 574 of 1960 and Petitions under article 32 dismissed.

IN-Abs

After the estates and tenures of proprietors or tenure holders had passed to and became vested in the State by virtue of the Bihar Land Reforms Act, 1950, the Revenue Authorities interfered with the rights of those ex proprietors and ex tenureholders to hold Melas on lands which were occupied by them thereafter as occupancy raiyats and collected tolls from such Melas on behalf of the Government whereupon those intermediaries made applications to the High Court for writs restraining the Government from such interference which were allowed by the High Court. During the pendency in this Court of these appeals preferred by the Officers of the State of Bihar against the order of the High Court the Bihar Land Reforms Amendment Act, 1959, was passed amending the Bihar Land Reforms Act of 1950 with retrospective effect by which the word Mela was added after the words jalkars, hats and bazars in section 4, cl. (b) of the amended Act. Further amendments provided inter alia that the State Government and not the intermediaries except with the consent of the State Government shall have the right to hold such Melas. The main question arising for decision in these appeals and certain other applications made to this Court under article 32 of the Constitution of India was whether the amending legislation violated articles 14, 19 and 31 of the Constitution. Held, that the Bihar Land Reforms Amendment Act, 1959, is a law providing for the acquisition by the State of rights in an "estate" within the meaning of article 31A of the Constitution and even if it is assumed that it abridges the rights conferred by articles 14, 19 and 31 of the Constitution its provisions are not void on that ground. The amending legislation was within the legislative com petence of the Legislature under article 246 of the Constitution and after its amendment the legislative list permitted the State 383 Legislature to enact a law of acquisition even without a public purpose. The State of Bihar vs Sir Kameshwar Singh, [1952] S.C.R. 889, considered.

Appeals Nos. 33 and 34 of 1959. Appeal by special leave from the order dated May 29,1957, of the Central Government Ministry of Finance, New Delhi in Appeal Cases Nos. 24 and 33 of 1957. A. V. Viswanatha Sastri and Ganpat Rai, for the appellants. B. P. Maheshwari, for the respondents. M. C. Setalvad, Attorney General for India, B. B. L. Iyengar and T. M. Sen, for Union of India. April 25. The Judgment of section K. Das, Kapur, Shah and Venkatarama Ayyar, JJ., was delivered by Shah, J. Hidayatullah, J. delivered a separate Judgment. SHAH, J. M/s.Harinagar Sugar Mills Ltd. is a public limited company incorporated under the Indian Companies Act, 1913 (7 of 1913). Article 47B of the Articles of Association of the company invests the 44 342 directors of the company with absolute discretion to refuse to register any transfer of shares. That Article is in the following terms: "The directors may in their absolute discretion and without giving any reason refuse to register any transfer of any shares whether such shares be fully paid or not. If the directors refuse to register the transfer of any shares, they shall within two months, after the date on which the transfer was lodged with the company, send to the transferees and the transferor notice of the refusal. " One Banarasi Prasad Jhunjhunwala is the holder of a block of 9500 fully paid up shares of the company. In January, 1953, he executed transfers in respect of 2500 out of those shares in favour of his son Shyam Sunder and in respect of 2100 shares in favour of his daughter in law Savitadevi and lodged the transfers with the company for registration of the shares in the names of the transferees. The directors of the company by resolution dated August 1, 1953, in purported exercise of the powers under Article 47B of the Articles of Association, declined to register the shares in the names of the transferees. Petitions were then filed by Banarasi Prasad and the transferees in the High Court of Judicature at Bombay for orders under section 38 of the Indian Companies Act, 1913 for rectification of the register of the company maintaining that the refusal by the board of directors to register the transfer of the shares was "mala fide, arbitrary and capricious" and that the directors had acted with improper and ulterior motives. The High Court rejected these petitions holding that in summary proceedings under section 38, controversial questions of law and fact could not be tried and that the proper remedy of the transferees, if so advised, was to file suits for relief in the civil court. Requests were again made by the transferees to the company by letters dated February 29, 1956 to register the transfers made by Banarasi Prasad in 1953. The directors of the company in their meeting of March 15, 1956 reiterated their earlier resolution not to register the shares trans ferred in the names of the transferees. Against this 343 action of the company, appeals were preferred to the Central Government under section 111 el.(3) of the Indian , which had since been brought into operation on April 1, 1956. K. R. P. Ayyangar, Joint Secretary, Ministry of Finance, who heard the appeals declined to order registration of transfers, because in his view, the questions raised in the appeals could, as suggested by the High Court of Bombay, be decided only in a civil suit. Thereafter, Banarasi Prasad transferred a block of 100 shares to his son Shyam Sunder and another block of 100 shares to his daughter in law Savitadevi, and the transferees requested the company by letters dated November 21, 1956, to register the transfers. In the meeting dated January 12, 1957, the directors of the company resolved not to register the transfers and informed the transferees accordingly. Against this resolution, separate appeals were preferred by Shyam Sunder and Savitadevi under section 111 el.(3) of the Indian to the Central Government. It was submitted in para 4 of the petitions of appeal that the refusal to register the transfer of shares was without "any reason, arbitrary and untenable". The company filed representations submitting that the refusal was bona fide and was not "without any reason, arbitrary and untenable" as alleged. Shyam Sunder and Savitadevi filed rejoinders to the representations submitting that they had never alleged that refusal to transfer the shares "was capricious or mala fide" and that all they had alleged was that the "refusal was without any reason, arbitrary and untenable". By separate orders dated May 29, 1957, the Deputy Secretary to the Government of India, Ministry of Finance set aside the resolution passed by the board of directors in exercise of the powers conferred by sub sections(5) and (6) of section Ill of the Indian , and directed that the company do register the transfers. In so directing, the Deputy Secretary gave no reasons. Against the orders passed by the Deputy Secretary, with special leave under article 136 of the Constitution, these two appeals are preferred by the company. Two questions fall to be determined in these appeals, (1) whether the Central Government exercising appellate powers under section 111 of the before its amendment by Act 65 of 1960 is a tribunal exercising judicial functions and is subject to the appellate jurisdiction of this court under article 136 of the Constitution, and (2) whether the Central Government acted in excess of its jurisdiction or otherwise acted illegally in directing the company to register the transfer of shares in favour of Shyam Sunder and Savitadevi. Article 136 of the Constitution, by the first clause provides: "Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India". The Central Government exercising powers under section Ill of the is not a court; that is common ground. The Attorney General intervening on behalf of the Union of India submits that the Central Government merely exercises administrative authority in dealing with an appeal under section 111 of the Indian and is not required to act judicially. He submits that the authority of the directors of the company which is in terms absolute, and is not required to be exercised judicially, when exercised by the Central Government under section 111 does not become judicial, and subject to appeal to this court. But the mere fact that the directors of the company are invested with absolute discretion to refuse to register the shares will not make the jurisdiction of the appellate authority administrative. In a recent case decided by this court Shivji Nathu bhai vs The, Union of India (1), it was held that the Central Government exercising power of review under r. 54 of the Mineral Concession Rules, 1949 against an (1) ; 345 administrative order of the State Government granting a mining lease was subject to the appellate jurisdiction of this court, because the power to review was judicial and not administrative. In that case, the action of the State Government granting the mining lease was undoubtedly an administrative act, but r. 54 of the Mineral Concession Rules, 1949 granted a right of review at the instance of an aggrieved party to the Central Government, and authorised it to cancel the order of the State Government or to revise it in such manner as it deemed just and proper. The exercise of this power was held by this court to be quasi judicial. Before it was amended by section 27 of Act 65 of 1960, section III of the Indian Companies Act, 1956 omitting parts not material provided: (1) Nothing in sections 108, 109 and 110 shall prejudice any power of the company under its articles to refuse to register the transfer of, or the transmission by operation of law of the right to, any shares or interest of a member in, or debentures of, the company. (2) If, in pursuance of any such power, a company refuses to register any such transfer or transmission of right, it shall, within two months from the date on which the instrument or transfer, or the intimation of such transmission, as the case may be, was delivered to the company, send notice of the refusal to the transferee and the transferor or to the person giving intimation of such transmission, as the case may be. (3) The transferor or transferee, or the person who gave intimation of the transmission by operation of law, as the case may be, may, where the company is a public company or a private company which is a subsidiary of a public company, appeal to the Central Government against any refusal of the company to register the transfer or transmission, or against any failure on its part within the period referred to in sub section (2) either to register the transfer or transmission or to send notice of its refusal to register the same. (4). . . . . . . . . (5) The Central Government shall, after causing reasonable notice to be given to the company and 346 also to the transferor and the transferee or as the case may require, to the person giving intimation of the transmission by operation of law and the previous owner, if any, and giving them a reasonable opportunity to make their representations, if any, in writing by order, direct either that the transfer or transmission shall be registered by the company or that it need not be registered by it: and in the former case, the company shall give effect to the decision forthwith. (6) The Central Government may, in its order aforesaid give such incidental and consequential directions as to the payments of costs or otherwise as it thinks fit. (7) All proceedings in appeals under sub section (3) or in relation thereto shall be confidential and no suit, pro secution or other legal proceeding shall lie in respect of any allegation made in such proceedings, whether orally or otherwise. (8) In the case of a private company which is not a subsidiary of a public company, where the right to any shares or interest of a member in, or debentures of, the company, is transmitted by a sale thereof held by a court or other public authority, the provisions of sub sections (3) to (7) shall apply as if the company were a public company: Provided that the Central Government may, in lieu of an order under sub section (5) pass an order directing the company to register the transmission of the right unless any member or members of the company specified in the order acquire the right aforesaid within such time as may be allowed for the purpose by the order, on payment to the purchaser of the price paid by him therefor or such other sum as the Central Government may determine to be a reasonable compensation for the right in all the circumstances of the case. Against the refusal by a company to register the transfer or transmission of a right to the shares, an appeal lies to the Central Government. The Government, after giving notice of the appeal and hearing the parties concerned may order that the shares be registered if it thinks that course is in the circumstances proper. The Central Government may 347 by the proviso to sub section (8) in lieu of an order under sub section (5), directing a private company to register,, transmission of shares sold by a court or public authority, order that any member or members of the company specified in the order do acquire the right on payment to the purchaser of the price paid by him, or such other sum as the Central Government determine to be reasonable compensation. In exercise of the powers under section 642, rules called "The Companies (Appeals to the Central Government) Rules, 1957" have been framed by the Central Government. By cl. (3) of the rules, the form of the petition of appeal is prescribed. Clause (4) provides that the memorandum of appeal shall be accompanied by an affidavit and documentary evidence if any in support of the statements made therein including a copy of the letter written by the appellant to the company for the purpose of registration of the shares. Clause (5) pres cribes the mode of service of notice of appeal to the company and el.(6) authorises the Central Government before considering the appeal to require the appellant or the company to produce within a specified period such further documentary or other evidence as it considers necessary. Clause (7) enables the parties to make representations if any in writing accompanied by affidavits and documentary evidence. Clause (8) authorises the Central Government after considering the representations made and after making such further enquiries as it considers necessary to pass such orders as it thinks fit under sub section(5) of section 111 of the Act. By the appendix to the rules, the form in which notice is to be given to the company is prescribed. Paragraph 2 of the form states that the company shall be called upon to make its representations in writing against, the appeal and be informed that if no representation is received, the appeal will be determined according to law. There was no provision similar to section Ill of the Indian , in the Act of 1913, nor is our attention invited to any provision in the English on which our Act is largely based, to a similar provision. Prior to 1956, if transfer of 348 shares was not registered by the directors of a company, action under the of 1913 could only be taken under section 38 of the Indian Companies Act, 1913 by petition for rectification of the share register. As we will presently point out, the power to refuse to register a transfer granted by the Articles of Association, if challenged in a petition for rectification of register was to be presumed to have been exercised reasonably, bona fide and for the benefit of the company, and unless otherwise provided by the Articles, the directors were not obliged to disclose reasons on which they acted. The power had to be exercised for the benefit of the company and bona fide, but a heavy onus lay upon those challenging the resolution of the directors to displace the presumption of bona fide exercise of the power. The discretion to refuse to register transfers was not liable to be controlled unless the directors "acted oppressively, capriciously or corruptly, or in some way mala fide" (Re Bell Brothers Ltd. ex parte Hodgson) (1). Power to refuse to register transfer of shares, without assigning any reasons, or in their absolute and uncontrolled discretion, is often found in the Articles of Association, and exercising jurisdiction under section 38 of the Indian Companies Act, 1913, the court may not draw unfavourable inferences from the refusal to disclose reasons in support of their resolution. The power given to the court under section 38 is now confirmed with slight modification by section 155 of the Indian . Under that section, the court may rectify the register of shareholders if the name of any person is without sufficient cause entered in or omitted from the register of members of a company, or default is made, or unnecessary delay has taken place in entering on the register the fact of any person having ceased to be a member. The court is in exercising this jurisdiction competent to decide any question relating to the title of the person claiming to have his name registered and generally to decide all questions which may be necessary or expedient to decide for the rectification. A person aggrieved by the refusal to (1) 349 register transfer of shares has, since the enactment of the , therefore two remedies for seeking relief under the , (1) to apply to the court for rectification of the register under section 155, and (2) to appeal against the resolution refusing to register the transfers under section 111. It is common ground that in the exercise of the power under section 155, the court has to act judicially: to adjudicate upon the right exercised by the directors in the light of the powers conferred upon them by the Articles of Association. The respondents however submit and they are supported by the Union of India that the authority of the Central Government under section Ill is nevertheless purely administrative. But in an appeal under section 111 el.(3) there is a lis or dispute between the contesting parties relating to their civil rights, and the Central Government is invested with the power to determine that dispute according to law, i.e., it has to consider and decide the proposal and the objections in the light of the evidence, and not on grounds of policy or expediency. The extent of the power which may be exercised by the Central Government is not delimited by express enactment, but the power is not on that account unrestricted. The power in appeal to order registration of transfers has to be exercised subject to the limitations similar to those imposed upon the exercise of the power of the court in a petition for that relief under section 155: the restrictions which inhere the exercise of the power of the court also apply to the exercise of the appellate power by the Central Government, i.e., the Central Government has to decide whether in exercising their power, the directors are acting oppressively, capriciously or corruptly, or in some way mala fide. The decision has manifestly to stand those objective tests, and has not merely to be founded on the subjective satisfaction of the authority deciding the question. The authority cannot proceed to decide the question posed for its determination on grounds of expediency: the statute empowers the Central Government to decide the disputes arising out of the claims made by the transferor or transferee which claim is opposed by the company, 45 350 and by rendering a decision upon the respective con tentions, the rights of the contesting parties are directly affected. Prima facie, the exercise of such authority would be judicial. It is immaterial that the statute which confers the power upon the Central Government does not expressly set out the extent of the power: but the very nature of the jurisdiction requires that it is to be exercised subject to the limitations which apply to the court under section 155. The proviso to sub section(8) of section III clearly indicates that in circumstances specified therein reasonable compensation may be awarded in lieu of the shares. This compensation which is to be reasonable has to be ascertained by the Central Government; and reasonable compensation cannot be ascertained except by the application of some objective standards of what is just having regard to all the circumstances of the case. In The Province of Bombay vs Kusaldas section Advani(1), this court considered the distinction between decisions quasi judicial and administrative or ministerial for the purpose of ascertaining whether they are subject to the jurisdiction to issue a writ of certiorari. Fazl Ali, J. at p. 642 observed: "The word "decision" in common parlance is more or less a neutral expression and it can be used with reference to purely executive acts as well as judicial orders. The mere fact that an executive authority has to decide something does not make the decision judicial. It is the manner in which the decision has to be arrived at which makes the difference, and the real test is: Is there any duty to decide judicially?" The court also approved of the following test suggested in The King vs London County Council (2) by Scrutton L.J.: "It is not necessary that it should be a court in the sense in which this court is a court; it is enough if it is exercising, after hearing evidence, judicial functions in the sense that it has to decide on evidence between a proposal and an opposition; and it is not necessary to be strictly a court; if it is a tribunal which has to (1) T. (2) , 233.351 decide rights after hearing evidence and opposition, it is amenable to the writ of certiorari. " In The Bharat Bank Ltd., Delhi vs Employees of the Bharat Bank Ltd., Delhi (1), the question whether an adjudication by an industrial tribunal functioning under the Industrial Disputes Act was subject to the jurisdiction of this court under article 136 of the Constitution fell to be determined:, Mahajan J. in that case observed: "There can be no doubt that varieties of administrative tribunals and domestic tribunals are known to exist in this country as well as in other countries of the world but the real question to decide in each case is as to the extent of judicial power of the State exercised by them. Tribunals which do not derive authority from the sovereign power cannot fall within the ambit of article 136. The condition precedent for bringing a tribunal within the ambit of article 136 is that it should be constituted by the State. Again a tribunal would be outside the ambit of article 136 if it is not invested with any part of the judicial functions of the State but discharges purely administrative or executive duties. Tribunals however which are found invested with certain functions of a Court of Justice and have some of its trappings also would fall within the ambit of article 136 and would be subject to the appellate control of this Court whenever it is found necessary to exercise that control in the interests of justice. " It was also observed by Fazl Ali J. at p. 463 that a body which is required to act judicially and which exercises judicial power of the State does not cease to be one exercising judicial or quasi judicial functions merely because it is not expressly required to be guided by any recognised substantive law in deciding the disputes which come before it. The authority of the Central Government entertaining an appeal under section 111(3) being an alternative remedy to an aggrieved party to a petition under section 155 the investiture of authority is in the exercise of the judicial power of the State. Clause (7) of section III (1) ; 352 declares the proceedings in appeal to be confidential, but that does not dispense with a judicial approach to the evidence. Under section 54 of the Indian Income tax Act, (which is analogous) all particulars contained in any statement made, return furnished or accounts or documents produced under the provisions of the Act or in any evidence given, or affidavit or deposition made, in the course of any proceedings under the Act are to be treated as confidential; but that does not make the decision of the taxing authorities merely executive. As the dispute between the parties relates to the civil rights and the Act provides for a right of appeal and makes detailed provisions about hearing and disposal according to law, it is impossible to avoid the inference that a duty is imposed upon the Central Government in deciding the appeal to act judicially. The Attorney General contended that even if the Central Government was required by the provisions of the Act and the rules to act judicially, the Central Government still not being a tribunal, this court has no power to entertain an appeal against its order or decision. But the proceedings before the Central Government have all the trappings of a judicial tribunal. Pleadings have to be filed, evidence in support of the case of each party has to be furnished and the disputes have to be decided according to law after con sidering the representations made by the parties. If it be granted that the Central Government exercises judicial power of the State to adjudicate upon rights of the parties in civil matters when there is a lis between the contesting parties, the conclusion is inevitable that it acts as a tribunal and not as an executive body. We therefore over rule the preliminary objection raised on behalf of the Union of India and by the respondents as to the maintainability of the appeals. The Memorandum and Articles of Association of a company when registered bind the company and the members of the company to the same extent as if they respectively had been signed by the company and each member, and contained covenants on its and 353 his part to observe all the provisions of the Memorandum and of the Articles. Clause 47B of the Articles of Association which invests the director with discretion to refuse to register shares is therefore an incident of the contract binding upon the transferor, and registration of transfer or transmission cannot therefore be insisted upon as a matter of right. The conditions subject to which a party can maintain a petition for an order for rectification of the register of shareholders have been settled by a long course of decisions. Two of those may be noticed. In In re Gresham Life Assurance Society Ex parte Penney (1), the deed of settlement of a life insurance company provided that any shareholder shall be at liberty to transfer his shares to any other person who was already a shareholder, or who should be approved by the board of directors, and that no person not being already a shareholder or the executor of a shareholder, should be entitled to become the transferee of any share unless approved by the board. One J. R. De Paiva who was the holder of ten shares of the company sold them to W. J. Penney and lodged the transfer with the shares for registration at the company 's office. The directors in exercise of the powers conferred upon them by the deed of settlement refused to register the shares. In a joint summons taken out by Paiva and Penney under section 35 of the Companies Act, 1862, the Master of the Rolls directed the transfer to be registered, the directors of the company having failed to submit any reasonable ground or objection to the purchaser. In the view of the Master of the Rolls, it was for the court to judge whether the objection was reasonable and that objection must be disclosed to the court. Against this order, the company approached the Court of Appeal. James L. J. in dealing with the contention raised by the appellant observed that the directors were in a fiduciary position both towards the company and towards every shareholder and that it was easy to conceive of cases in which the court may interfere with any violation of the fiduciary duty so (1) (1872) Law Rep. 8 Ch. 354 reposed in the directors. It was observed by James L. J.: "But in order to interfere upon that ground it must be made out that the directors have been acting from some improper motive, or arbitrarily and capriciously. That must be alleged and proved, and the person who has a right to allege and prove it is the shareholder who seeks to be removed from the list of shareholders and to substitute another person for himself . this Court would have jurisdiction to deal with it as a corrupt breach of trust; but if there is no such corrupt or arbitrary conduct as between the directors and the person who is seeking to transfer his shares, it does not appear to me that this court has any jurisdiction whatever to sit as a Court of Appeal from the deliberate decision of the board of directors, to whom, by the constitution of the company, the question of determining the eligibility or non eligibility of new members is committed. If the directors had been minded, and the Court was satisfied that they were minded, whether they expressed it or not, positively to prevent a shareholder from parting with his shares, unless upon complying with some condition which they chose to impose, the Court would probably, in exercise of its duty as between the cestui que trust and the trustees, interfere to redress the mischief, either by compelling the transfer or giving damages, or in some mode or other to redress the mischief which the shareholder would have had a just right to complain of. " It was also observed by James L.J.: " I am of opinion that we cannot sit as a Court of Appeal from the conclusion which the directors have arrived at if we are satisfied that the directors have done that which alone they could be compelled by mandamus to do, to take the matter into their consideration". Mellish L.J. observed: "But it is further contended that in order to secure the existing shareholder against being deprived of the right to sell his shares, the directors are 355 bound to give their reason why they reject the transferee, and if they reject him without giving a reason that is a ground from which the Court ought to infer that they were acting arbitrarily. I cannot agree with that. It appears to me that it is very important that directors should be able to exercise the power in a perfectly uncontrollable manner for the benefit of the shareholders; but it is impossible that they could fairly and properly exercise it if they were compelled to give the reason why they rejected a particular individual. I am therefore of opinion that in order to preserve to the company the right which is given by the articles a shareholder is not to be put upon the register if the board of directors do not assent to him, and it is absolutely necessary that they should not be bound to give their reasons although I perfectly agree that if it can be shown affirmatively that they are exercising their power capriciously and wantonly, that may be a ground for the Court interfering". A similar view was also expressed in In re, Smith and Fawcett Ltd. (1) where the Court of Appeal held that where the directors of the company had uncontrolled and absolute discretion to refuse to register any transfer of shares, while such powers are of a fiduciary nature and must be, exercised in the interest of the company, the petition for registration of transfer should be dismissed unless there is something to show that they had been otherwise exercised. Rectification of the register under section 155 can therefore be granted only if the transferor establishes that the directors had, in refusing to register the shares in the names of a transferee, acted oppressively, capriciously or corruptly, or in some way mala fide and not in the interest of the company. Such a plea has, in a petition for rectification, to be expressly raised and affirmatively proved by evidence. Normally, the court would presume that where the directors have refused to register the transfer of shares when they have been invested with absolute discretion to refuse registration, that the exercise of the power was bona fide. When (1) 356 the new Companies Act was enacted, it was well settled that the discretionary power conferred by the articles of association to refuse to register would be presumed to be properly exercised and it was for the aggrieved transferor to show affirmatively that it had been exercised mala fide and not in the interest of the company. Before the Committee appointed by the Government of India under the Chairmanship of Mr. C. H. Bhabha representation was made by several bodies that this power which was intended to be exercised for the benefit of the company was being misused and the Committee with a view to afford some reasonable safeguards against such misuse of the power recommended that a right of appeal should be provided against refusal to register transfer of shares. The Legislature, it appears, ,accepted this suggestion and provided a right of appeal. But the power to entertain the appeal is not unrestricted: being an alternative to the right to approach the civil court, it must be subject to the same limitations which are implicit in the exercise of the power by the civil court under section 155. The Central Government may therefore exercise the power to order that the transfer which the directors have in their discretion refused, be registered if it is satisfied that the exercise of the discretion is mala fide, arbitrary or capricious and that it is in the interest of the company that the transfer should be registered. Relying upon el.(7) of section 111 which provided that the proceedings in appeals under sub section(3) or in relation thereto shall be confidential, it was urged that the authority hearing the appeal is not obliged to set out reasons in support of its conclusion and it must be assumed that in disposing of the appeal, the authority acted properly and directed registration of shares. But the provision that the proceedings are to be treated as confidential is made with a view to facilitate a free disclosure of evidence before the Central Government which disclosure may not, in the light of publicity which attaches to proceedings in the ordinary courts, be possible in a petition under section 155 of the 357 Companies Act. The mere fact that the proceedings are to be treated as confidential does not dispense with a judicial approach nor does it obviate the disclosure of sufficient grounds and evidence in support of the order. In the present case, the position is somewhat un satisfactory. The directors passed a resolution declining to register the shares and informed the transferor and the transferees of that resolution. The transferees in their petition stated that the refusal to register transfer was without any reason, arbitrary and untenable and in the grounds of appeal they stated that they did not know of any reasons in sup port of the refusal and reserved liberty to reply thereto if any such reasons were given. The company in reply merely asserted that the refusal was not without any reason or arbitrary or untenable. The transferees in their rejoinder made a curious statement of which it is difficult to appreciate the import that they had "nowhere stated in the memoranda of appeals that the refusal to transfer shares was capricious or mala fide" and all that they "had stated was that the refusal was without any reason, arbitrary or untenable". The Deputy Secretary who decided the appeals chose to give no reasons in support of his orders. There is nothing on the record to show that he was satisfied that the action of the directors in refusing to register the shares "was arbitrary and untenable" as alleged. If the Central Government acts as a tribunal exercising judicial powers and the exercise of that power is subject to the jurisdiction of this court under article 136 of the Constitution, we fail to see how the power of this court can be effectively exercised if reasons are not given by the Central Government in support of its order. In the petition under section 38 of the Indian Companies Act, 1913, the Bombay High Court declined to order rectification on a summary proceeding and relegated the parties to a suit and a similar order was passed by the Joint Secretary, Ministry of Finance. These proceedings were brought to the notice of the Deputy Secretary who heard the appeals. Whether 46 358 in spite of the opinion recorded by the High Court and by the Joint Secretary, Ministry of Finance in respect of another block out of shares previously attempted to be transferred, there were adequate grounds for directing registration, is a matter on which we are unable to express any opinion. All the documents which were produced before the Deputy Secretary are not printed in the record before us and we were told at the bar that there were several other documents which the Deputy Secretary took into con sideration. In the absence of anything to show that the Central Government exercised its restricted power in hearing an appeal under section 111(3) and passed the orders under appeal in the light of the restrictions imposed by article 47B of the articles of association and in the interest of the company, we are unable to decide whether the Central Government did not transgress the limits of their power. We are however of the view that there has been no proper trial of the appeals, no reasons having been given in support of the orders by the Deputy Secretary who heard the appeals. In the circumstances, we quash the orders passed by the Central Government and direct that the appeals be re heard and disposed of according to law. Costs of these appeals will be costs in the appeals before the Central Government. HIDAYATULLAH, J. I have had the advantage of reading the judgment just delivered by my brother, Shah, J. In view of the strong objection to the competence of the appeals under article 136 by the respondents, to whom liberty was reserved by the order granting special leave, I have found it necessary to express my views. The facts have been stated in detail by my learned brother, and I shall not repeat them in full. Very shortly stated, the facts are that the second respondent, Banarsi Prasad Jhunjhunwala, transferred 2500 shares to his son, and 2100 shares to his daughter in law, in the appellant Company in 1953. The appellant Company declined to register these transfers. Proceedings for rectification of the Register under section 38 of the Indian Companies Act, 1913, followed 359 in the High Court of Bombay, but the High Court referred the disputants to the Civil Court. In the petition before the High Court, the respondents had charged the Directors of the appellant Company with bad faith and arbitrary dealing. The respondents renewed their requests for registration, but they were again declined, and appeals were filed before the Central, Government under section 111(3) of the , which had come into force from April 1, 1956. These appeals were heard by Mr. K. R. P. Aiyengar, Joint Secretary, Ministry of Finance, who dismissed them, holding that only a suit was the appropriate remedy. Banarsidas Prasad then made a fresh transfer of 100 shares each to his son and daughter in law, and requests for registration of these shares were made. The appellant Company again declined to register the shares, but gave no reaons. Under cl. 47 B of the Articles of Association of the appellant Company, it is provided: "The Directors may in their absolute discretion and without giving any reason refuse to register any transfer of any shares whether such shares be fully paid or not. If the Directors refuse to register the transfer of any shares, they shall, within two months after the date on which the transfer was lodged with the company, send to the trans feree and the transferor notice of the refusal. " The appellant Company was prima facie within its rights when it did not state any reasons for declining to register the shares in question. Appeals were again taken to the Central Government under section 111(3). It was alleged that the refusal to register the shares without giving any reasons was "arbitrary and untenable". In accordance with the provisions of the section, representations were filed by the appellant Company and rejoinders by the opposite party. The transferees made it clear that they did not charge the appellant Company with "capricious or mala flee conduct" but only with arbitrary any reasons. The appeals 360 succeeded, and the shares were ordered to be registered. The Deputy Secretary, who heard and decided the appeals, gave no reasons for his decision. Against his order, the present appeals have been filed with special leave. The preliminary objection is that the appeals are incompetent, because the Central Government, which heard them, is not a tribunal muchless a Court, and the action of the Central Government is purely administrative. It is, therefore, submitted that article 136 does not apply, because special leave can only be granted in respect of a determination by a Court or a tribunal, which the Central Government is not. This is not the only provision of law, under which the Central or State Governments have been empowered to hear appeals, revisions or reviews, and it is thus necessary to find out the exact status of the Central Government when it hears and decides appeals, etc., for the application of article 136. Article 136(1) reads as follows: "Notwithstanding anything in this Chapter, the Supreme Court may in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any Court or tribunal in the territory of India. " The orders which the Central Government passes, certainly fall within the words "determination" and "order". The proceeding before the Central Government also falls within the wide words "any cause or matter". The only question is whether the Central Government, when it hears and decides an appeal, can be said to be acting as a Court or tribunal. That the Central Government is not a Court was assumed at the hearing. But to ascertain what falls within the expression "Court or tribunal", one has to begin with "Courts". The word "Court" is not defined in the . It is not defined in the Civil Procedure Code. The definition in the Indian Evidence Act is not exhaustive, and is for the purposes of that Act. In the Now English Dictionary (Vol. II, pp. 1090, 1091), the meaning given is: 361 "an assembly of judges or other persons legally appointed and acting as a tribunal to hear and determine any cause, civil, ecclesiastical, military or naval. " All tribunals are not Courts, though all Courts are tribunals. The word "Courts" is used to designate those tribunals which are set up in an organised State for the administration of justice. By administration of justice is meant the exercise of judicial power of the State to maintain and uphold rights and to punish "wrongs". Whenever there is an infringement of a right or an injury, the Courts are there to restore the vinculum juris, which is disturbed. Judicial power, according to Griffith, C. J. in Huddart, Parker & Co. Proprietary Ltd. vs Moorehead (1) means: "the power which every sovereign authority must of necessity have to decide controversies between its subjects, or between itself and its subjects, whether the rights relate to life, liberty or property. The exercise of this power does not begin until some tribunal which has power to give a binding and authoritative decision (whether subject to appeal or not) is called upon to take action. " When rights are infringed or invaded, the aggrieved party can go and commence a querela before the ordinary Civil Courts. These Courts which are instrumentalities of Government, are invested with the judicial power of the State, and their authority is derived from the Constitution or some Act of legislature constituting them. Their number is ordinarily fixed and they are ordinarily permanent, and can try any suit or cause within their jurisdiction. Their numbers may be increased or decreased, but they are almost always permanent and go under the compendious name of "Courts of Civil Judicature". There can thus be no doubt that the Central Government does not come within this class. With the growth of civilisation and the problems of modern life, a large number of administrative tribunals have come into existence. These tribunals have the authority of law to pronounce upon valuable (1) ; , 357.362 rights; they act in a judicial manner and even on evidence on oath, but they are not part of the ordinary Courts of Civil Judicature. They share the exercise of the judicial power of the State, but they are brought into existence to implement some administrative policy or to determine controversies arising out of some administrative law. They are very similar to Courts, but are not Courts. When the Constitution speaks of 'Courts ' in article 136, 227 or 228 or in Art,% 233 to 237 or in the Lists, it contemplates Courts of Civil Judicature but not tribunals other than such Courts. This is the reason for using both the expressions in articles 136 and 227. By "Courts" is meant Courts of Civil Judicature and by "tribunals", those bodies of men who are appointed to decide controversies arising under certain special laws. Among the powers of the State is included the power to decide such controversies. This is undoubtedly one of the attributes of the State, and is aptly called the judicial power of the State. In the exercise of this power, a clear division is thus noticeable. Broadly speaking, certain special matters go before tribunals, and the residue goes before the ordinary Courts of Civil Judicature. Their procedures may differ, but the functions are not essentially different. What distinguishes them has never been success fully established. Lord Stamp said that the real distinction is that Courts have "an air of detachment". But this is more a matter of age and tradition and is not of the essence. Many tribunals, in recent years, have acquitted themselves so well and with such detachment as to make this test insufficient. Lord Sankey, L.C. in Shell Company of Australia vs Federal Commissioner of Taxation (1) observed: "The authorities are clear to show that there are tribunals with many of the trappings of a Court, which, nevertheless, are not Courts in the strict sense of exercising judicial power. In that connection it may be useful to enumerate some negative propositions on this subject: 1. A tribunal is not necessarily a Court in this strict sense because it gives a final decision. Nor because it hears (1) [1931] A.C.275.363 witnesses on oath. Nor because two or more contending parties appear before it between whom it,, has to decide. Nor because it gives decisions which affect the rights of subjects. Nor because there is an appeal to a Court. Nor because it is a body to which a matter is referred by another body. See Rex vs Electricity Commissioners In my opinion, a Court in 'the strict sense is a tribunal which is a part of the ordinary hierarchy of Courts of Civil Judicature maintained by the State under its constitution to exercise the judicial power of the State. These Courts perform all the judicial functions of the State except those that are excluded by law from their jurisdiction. The word "judicial", be it noted, is itself capable of two meanings. They were admirably stated by Lopes, L.J. in Royal Aquarium and Summer and Winter Garden Society vs Parkinson (2), in these words: "The word 'judicial ' has two meanings. It may refer to the discharge of duties exercisable by a judge or by justices in court, or to administrative duties which need not be performed in court, but in respect of which it is necessary to bring to bear a judicial mind that is, a mind to determine what is fair and just in respect of the matters under con sideration. " That an officer is required to decide matters before him "judicially" in the second sense does not make him a Court or even a tribunal, because that only establishes that he is following a standard of conduct, and is free from bias or interest. Courts and tribunals act "judicially" in both senses, and in the term "Court" are included the ordinary and permanent tribunals and in the term "tribunal" are included all others, which are not so included. Now, the matter would have been simple, if the had designated a person or persons whether by name or by office for the purpose of hearing an appeal under section 111. It would then have been clear that though such person or persons were not "Courts" in the sense explained, they were clearly (1) (2) , 452, 364 "tribunals". The Act says that an appeal shall lie to the Central Government. We are, therefore, faced with the question whether the Central Government can be said to be a tribunal. Reliance is placed upon a recent decision of this Court in Shivji Nathubai vs The Union of India (1), where it was held that the Central Government in exercising power of review under the Mineral Concession Rules, 1949, was subject to the appellate jurisdiction conferred by article 136. In that case which came to this Court on appeal from the High Court 's order under article 226, it was held on the authority of Province of Bombay vs Kushaldas section Advani (1) and Rex vs Electricity Commissioners (3) that the action of the Central Government was quasi judicial and not administrative. It was then observed: "It is in the circumstances apparent that as soon as r. 52 gives a right to an aggrieved party to apply for review a lis is created between him and the party in whose favour the grant has been made. Unless therefore there is anything in the statute to the contrary it will be the duty of the authority to act judicially and its decision would be a quasi judicial act. " This observation only establishes that the decision is a quasi judicial one, but it does not say that the Central Government can be regarded as a tribunal. In my opinion, these are very different matters, and now that the question has been raised, it should be decided. The function that the Central Government performs under the Act and the Rules is to hear an appeal against the action of the Directors. For that purpose, a memorandum of appeal setting out the grounds has to be filed, and the Company, on notice, is required to make representations, if any, and so also the other side, and both sides are allowed to tender evidence to support their representations. The Central Government by its order then directs that the shares be registered or need not be registered. The Central Government is also empowered to include in its orders, directions as to payment of costs or otherwise. The (1) ; (2) ; (3) 365 function of the Central Government is curial and not executive. There is provision for a hearing and a decision on evidence, and that is indubitably a curial function. Now, in its functions Government often reaches decisions, but all decisions of Government cannot be regarded as those of a tribunal. Resolutions of Government may affect rights of parties, and yet, they may not be in the exercise of judicial power. Resolutions of Government may be amenable to writs under articles 32 and 226 in appropriate cases, but may not be subject to a direct appeal under article 136 as the decisions of a tribunal. The position, however, changes when Government embarks upon curial functions, and proceeds to exercise judicial power and decide disputes. In these circumstances, it is legitimate to regard the officer who deals with the matter and even Government itself as a tribunal. The officer who decides, may even be anonymous; but the decision is one of a tribunal, whether expressed in his name or in the name of ' the Central Government. The word "tribunal" is a word of wide import, and the words "Court" and "tribunal" embrace within them the exercise of judicial power in all its forms. The decision of Government thus falls within the powers of this Court under article 136. It is next argued by the learned Attorney General that there is no law to interpret or to apply in these cases. He argues that since there are no legal standards for judging the correctness or otherwise of the order of the Central Government and the decision being purely discretionary, it is neither judicial nor quasi judicial but merely administrative, and that no appeal can arise from the nature of things. Such a line was taken before the Committee on Ministers ' Powers by Lord Hewart, and the argument reminds one of what he then said that such decisions are purely discretionary and the exercise of such arbitrary power is "neither law nor justice or at all". Sir Maurice Gwyer also was of the opinion that an appeal could not be taken to Court against a Minister 's 47 366 decision even on the ground of miscarriage of justice, because that, in his opinion, was "putting a duty on the Court" which was "not the concern of the Court". This argument takes me to the heart of the controversy, and before I give my decision, I wish to say a few preliminary things. Article 47 B gives to the Directors a right to refuse to register shares in their absolute discretion, without giving reasons. In In re Gresham Life Assurance Society, Ex Parte Penney James, L.J. observed: "No doubt the directors are in a fiduciary position both towards the company and towards every shareholder in it. It is very easy to conceive cases such as those cases to which we have been referred, in which this Court would interfere with any violation of the fiduciary duty so reposed in the directors. But in order to interfere upon that ground it must be made out that the directors have been acting from some improper motive, or arbitrarily and capriciously. That must be alleged and proved, and the person who has a right to allege and prove it is the shareholder who seeks to be removed from the list of shareholders and to substitute another person for himself. But if it is said that wherever any shareholder has proposed to transfer his shares to some new member, the Court has a right to say to the directors, 'We will presume that your motives are arbitrary and capricious, or that your conduct is corrupt, unless you choose to tell us what your reasons were, and submit those reasons to our decision ', it would appear to me entirely altering the whole constitution of the company as provided by the articles." That shows that the Directors are presumed to have acted honestly in the interests of the company and a case has to be made out against them. I shall only quote from another case, which summarises the position very aptly. In In re Hannan 's King (Browning) Gold Mining Company (Limited) (2), Lindley, M.R. is reported to have decided the case thus: "Their Lordships did not sit there as a Court of (1) (1872) Law Rep. 8 Ch.(2) , 367 honour; the question was whether the applicants had made out that the transferee was being improperly kept off the register. There was no evidence of that . The Court ought, as a matter of honesty between man to man., to presume that the directors were acting within their powers unless the contrary was proved; but that was not proved by casting unfounded aspersions upon them." Thus, the matter comes to this that the Directors have a presumption in their favour and the opposite party must prove that there was want of good faith. The right of appeal which is given under the , allows the Central Government to judge this issue. For that purpose, parties are required, if they desire, to make representations and to put in evidence. But to enable the parties to have a free say, the proceedings are made confidential by law, and there is protection against action, both civil and criminal. The appeal is disposed of on the basis of the representations and the evidence. A decision of a tribunal on a dispute inter partes, in the light of pleadings and evidence, is essentially a judicial one, and this Court ought to be able, on the same material, to decide in an appeal whether the decision given was correct. If no substantive law is applicable, there are questions of evidence, of burden and adequacy of proof and of the application of the principles of justice, equity and good conscience to guide the Court. Once it is held that the decision is that of a tribunal and subject to appeal, it is manifest that an appeal may lie, unless there be some other reason. The difficulty which arises in these cases is whether it was not the intention of the law that the decision of the Central Government was to be final. The law makes all allegations and counter allegations confidential. If Courts cannot compel disclosure of these allegations and the veil of secrecy drawn by law is not rent, then it appears to me that a further appeal can hardly be efficacious. In this view, in my opinion, this Court should not grant special leave in such cases. The situation which arises is not very different from what arose before the Judicial Committee in Moses vs 368 Parker, Ex Parte Moses (1). The headnote adequately gives the facts, and may be quoted: "By Tasmanian Act No. 10 of 1858, section 5, disputes concerning lands yet ungranted by the Crown are referred to the Supreme Court, whose decision is to be final; and by section 8 the Court is directed to be guided by equity and good conscience only, and by the best evidence procurable, even if not required or admissible in ordinary cases, and not to be bound by strict rules of law or equity or by any legal forms: Held: that the Crown 's prerogative to grant special leave to appeal is inapplicable to a decision so authorised." In dealing with the case, Lord Hobhouse observed at p. 248: "The Supreme Court has rightly observed that Her Majesty 's prerogative is not taken away by the Act of 1858, but intimates a doubt whether it ever came into existence. Their Lordships think that this doubt is well founded. They cannot look upon the decision of the Supreme Court as a judicial decision admitting of appeal. The Court has been substituted for the commissioners to report to the governor. The difference is that their report is to be binding on him. Probably it was thought that the status and training of the judges made them the most proper depositaries of that power. But that does not make their action a judicial action in the sense that it can be tested and altered by appeal. It is no more judicial than was the action of the commissioners and the governor. The Court is to be guided by equity and good conscience and the best evidence. So were the commissioners. So every public officer ought to be. But they are expressly exonerated from all rules of law and equity, and all legal forms. How then can the propriety of their decision be tested on appeal? What are the canons by which this Board is to be guided in advising Her Majesty whether the Supreme Court is right or wrong? It seems almost (1) 369 impossible that decisions can be varied except by reference to some rule; whereas the Court making them is free from rules. If appeals were allowed, the certain result would be to establish some system of rules; and that is the very thing from which the Tasmanian Legislature has desired to leave the Supreme Court free and unfettered in each case. If it were clear that appeals ought to be allowed, such difficulties would doubtless be met somehow. But there are strong arguments to show that the matter is not of an appealable nature." See also The ' berge vs Laudry (1). The exercise of the powers under article 136 is a counterpart of the royal prerogative to hear appeals in any cause or matter decided by Courts or tribunals. But where the Articles of Association of a company give absolute discretion to the Directors and empower them to withhold their reasons, the appeal taken to the Central Government would involve decision on such material, which the parties place before it. If the allegations are made confidential by law and the Central Government in giving its decision cannot make them public, it is manifest that the decision, to borrow Lord Hobhouse 's language, "is not of an appealable nature". Whether the right to hear appeals generally against decisions of the Central Government acting as a tribunal be within article 136, in my opinion and I say it with great respect special leave to appeal should not be granted in such cases, unless this Court is able to rend the veil of secrecy cast by the law without rending the law itself. The argument is that the allegations are confidential only so far as the public are concerned but not confidential where Courts are concerned. The question is not that but one of practice of this Court. This Court should intervene only when practicable, and that can only arise if the parties agree not to treat the allegations as confidential. That, however, does not end the present appeals. Special leave has been granted, and I have held that the appeals are competent, even though such cases (1) 370 often may not be fit for appeal. In this case, there is no claim that any allegation was confidential. In fact, the appellants before the Central Government made it clear that they did not charge the Directors with "capricious or mala fide conduct" but only with arbitrary refusal, without stating any reasons. The appellant Company in its representation set out the history of previous refusals and the decisions of the High Court of Bombay and the Central Government, and made it clear that the action was taken in the interest of the Company. There are indications in the representation to show that on the previous occasion when these claimants were referred by the High Court and by Mr. K. R. P. Aiyengar, Joint Secretary, to the Civil Court, they did not go to Court to establish that the action was mala fide and capricious. Before the Central Government, they dropped that allegation, and confined the case to one of refusal without giving any reasons, and that was the plain issue before the Central Government. There was no evidence for the Central Government to consider, and the Articles of Association give the Directors an absolute discretion to refuse to register shares without giving any reasons, and, on the authorities quoted earlier, the Directors must be presumed to have acted honestly. There was thus no reason for the Central Government to reverse the decision of the Directors, and the fact that no reasons have been given when nothing was confidential, leads to the only inference that there was none to give. In my opinion, these appeals must succeed. I would, therefore, set aside the order of the Central Government, and allow the appeals with costs here and before the Central Government, if an order to that effect was passed by the Central Government. Before parting with the case, I may say that the Report of the Amendment Committee had recommended amendment of section 111, and it has been amended, inter alia, by the addition of sub section (5A), which reads: "Before making an order under sub section (5) on an appeal against any refusal of the company to 371 register any transfer or transmission, the Central Government may require the company to disclose to it the reasons for such refusal, and on the failure or refusal of the company to disclose such reasons, that Government may, notwithstanding anything contained in the articles of the company, presume that the disclosure, if made, would be unfavourable to the company." That would stop the blind man 's buff under the unamended law! By COURT. In view of the majority judgment of the Court, we quash the orders passed by the Central Government and direct that the appeals be reheard and disposed of according to law. Costs of these appeals will be costs in the appeals before the Central Government.

IN-Abs

One B who held a large number of shares in the appellant company, transferred two blocks of 100 shares each to his son and daughter in law. The transferees applied to the company to register the transfers. Purporting to act under article 47B of the Articles of Association of the company the directors of the company resolved not to register the transfers. Against this resolution the transferees preferred appeals to the Central Government under section III(3) of the . The Central Government, without giving any reasons for its decision, set aside the resolution of the directors and directed the company to register the transfers. The company obtained special leave to appeal against the decision of the Central Government under article 136 of the Constitution and appealed to the Supreme Court on the ground that the Central Government acted in excess of its jurisdiction or otherwise acted illegally in directing the company to register the transfers. The respondents raised a preliminary objection that the Central Government exercising appellate powers under section III of the Act (before its amendment in 1960) was not a tribunal exercising judicial functions and was not subject to the appellate jurisdiction of the Supreme Court under article 136. Held, that the appeal was competent to the Supreme Court by special leave against the decision of the Central Government under section III (3) Of the . The Central Government, when exercising powers under section III was a tribunal within the meaning of article 136 and was required to act judicially. A person aggrieved by the refusal to register transfer of shares had two remedies under the Act, viz., (1) to apply to the court for rectification of the register under section 155 or (2) to prefer an appeal under section III. The power of the Court under section 155, which has necessarily to be exercised judicially, and the power of the Central Government under section III have to be exercised subject to the same restrictions. In both cases it has to be 340 decided whether the directors have acted oppressively, capriciously corruptly or malafide. The decision has manifestly to stand those objective tests and has not merely to be founded on the subjective satisfaction of the authority. In an appeal under section III(3) there is a lis or dispute between the contesting parties relating to their civil rights, and the Central Government has to determine the dispute according to law in the light of the evidence and not on grounds of policy or expediency. There was thus a duty imposed on the Central Government to act judicially. The proviso to sub section (8) of section III which provided for the award of reasonable compensation in lieu of the shares in certain circumstances also fortifies that view. Shivji Nathubhai vs The Union of India, ; , Re Bell Brothers Ltd. Ex Parte Hodgson, , The Province of Bombay vs Kusaldas section Advani, [1950] S.C.R. 621, The King vs London County Council, and The Bharat Bank Ltd., Delhi vs Employees of the Bharat Bank Ltd., Delhi, ; , referred to. In an appeal under section 111(3) of the Act the Central Govern ment has to determine whether the exercise of the discretion by the directors refusing to register the transfer is malafide, arbitrary or capricious and whether it is in the interest of the company. The decision of the Central Government is subject to appeal to the Supreme Court under article 136; the Supreme Court cannot effectively exercise its power if the Central Government gives no reasons in support of its order. The mere fact that the proceedings before the Central Government are to be treated as confidential does not dispense with a judicial approach, nor does it obviate the disclosure of sufficient grounds and evidence in support of the order. In the present case no reasons have been given in Support of the orders and the appeals have to be remanded to the Central Government for rehearing. In re Gresham Life Assurance Society, Ex Parte Penney, (1 872) Law Rep. 8 Ch. 446 and In re Smith and Fawcett, Ltd., L. R. , referred to. Per Hidayatullah, J. The appeal to the Supreme Court under article 136 was competent. The Act and the Rules showed that the function of the Central Government under section 11(3) was curial and not executive; there was provision for filing a memorandum of appeal setting out the grounds, for the company making representations against the appeal, for tendering evidence and award of costs. There was provision for a hearing and a decision on evidence. The Central Government acted as a tribunal within the meaning of article 136. Huddart, Parker & Co. Pyoprietar Ltd. vs Moorehead, (108) ; , Shell Company of Australia vs Federal Commissioner of Taxation, , Rex vs Electricity Commissioners, Royal Aquarium and Summer and Winter Garden 341 Society vs Parkinson, , Shivji Nathubai vs The Union of India; , and Province of Bombay vs Kushaldas section Advani, ; , referred to. But special leave should not ordinarily be granted in such cases. The directors were not required to give reasons for their decision and there was a presumption that they had acted properly and in the interest of the company. In the appeal under section 111 of the Act all allegations and counter allegations were confidential and the Central Government could not make them public in its decision. An appeal against such a decision could rarely be effective. In the present case the appeal under section III(3) was confined to the ground that the refusal to register was without giving any reasons; there was no question of confidential allegations and there was no evidence to consider. The Articles of Association gave the directors absolute discretion to refuse to register the transfers without giving any reasons and there was a presumption that the directors had acted honestly. There was thus no reason for the Central Government to reverse the decision of the directors. In re Gresham Life Assurance Society; Ex Parte Penney, (1872) Law Rep. 8 Ch. 446, In re Hannan 's King (Browning) Gold Mining Company Limited, and Moses vs Parkar Ex parte Moses, , referred to.

minal Appeal No. 146 of 1959. Appeal by special leave from the judgment and order dated January 5, 1959, of the Punjab High Court in Criminal Appeal No. 238 of 1958. J. N. Kaushal and Naunit Lal, for the appellant. B. K. Khanna, R. H. Dhebar and D. Gupta, for respondent. April 26. The Judgment of the Court was delivered by RAGHUBAR DAYAL, J. This appeal, by special leave, is against the judgment of the Punjab High Court dismissing the appellant 's appeal and confirming his conviction under section 302 and section 307 read with section 149, Indian Penal Code. The case for the prosecution was that the appellant and twelve other persons who were tried with him, had, on account of a dispute about the possession of a plot of land, assaulted Darshan, deceased, and his companions, when they were returning from their fields and that Darshan Singh and his companions also struck the appellant 's party in self defence. In the incident, Darshan and Nand Lal received injuries on the one side while Daya Ram, Hamela and Kartar Singh the appellant, received injuries on the appellant 's side. Darshan Singh died on account of the injuries received. Daya Ram stated that when be, Kartar Singh, Hamela and a few other persons were going near about their field, Darshan, Nand Lal and others, who happened to be sitting on a well, challenged them and Nand Lal remarked that he would not let him (Daya Ram) escape. At this fight ensued between both the parties in which injuries were inflicted on each, other. Daya Ram said that he did not know who speared Darshan, deceased. 397 Kartar Singh stated that a member of Nand Lal 's party caused a spear blow in his abdomen and that he then ran away. He states that he did not cause any injury to anybody. Hamela stated that Darshan and others assaulted his party when they were going to plough the land in dispute and that they caused them, injuries in selfdefence. The learned Sessions Judge, after noting the allegations of the parties and the admitted facts about the dispute with respect to the plot of land, said: "It is also not denied that the parties in this case instead of taking resort to law wanted to force the issue by the force of arms and for that purpose both the parties collected number of persons from Seel and other villages who were armed with deadly weapons such as spears, gandasis and sticks and in order to decide the issue had a pitched fight which was pre concerted. The Public Prosecutor therefore maintained that under these circumstances the question of right of self defence to any party does not arise. " The learned Sessions Judge also said: "This proposition of law has not been challenged by the defence. As observed above, in this case, both the parties, in order to assert their rights, had a free fight which was pre concerted with the set purpose of forcing the issue mentioned above. " He further said: "The only point therefore which requires determination in this case is whether all or only some of the accused did participate in this assault," and came to the conclusion that three accused, viz., Daya Ram, Hamela and Kartar Singh, who had admitted their presence in the incident and had received injuries, were proved to have taken part in that free fight, and that the participation of the other ten accused in the case was not established beyond doubt. He, however, said: "Although I feel that Daya Ram, Hamela and Kartara accused were accompanied by at least 9 or 51 398 10 persons, but it is difficult to say who those 9 or 10 persons were." He therefore acquitted those ten persons giving them the benefit of doubt. The three convicted persons preferred an appeal to the High Court. Two questions were urged at the hearing. One was that when there was no evidence that there were more than five persons in the fight on the side of the appellants, the learned Sessions Judge could not, in law, record a conviction under section 302 read with section 149, he having acquitted the other ten persons specifically named by the P. Ws., as being the companions of the appellants. The other point was that the other party was the aggressor. The High Court, on the first point, said. : "The circumstances of this case leave no manner of doubt in our mind that there were a large number of persons on the side of the appellants and this number must have exceeded five, and was more or less near the number of persons who were actually accused in the case. " On the second point, it said: "We have no manner of doubt in our mind that there is no question of right of private defence and it is a clear case of a free fight between both the parties. It would not therefore be of any importance as to who gave the first lalkara and who started the fight. " It further held that the appellant 's party formed an unlawful assembly and its common object was to cause injuries to the opposite side which could result in the ordinary course of nature in death and, consequently, the conviction of the three appellants, whose participation could not be doubted, under sections 302 and 307 read with section 149, Indian Penal Code, was well based and must be upheld. Two points have been urged in this Court: (i) When ten out of the thirteen persons charged with the offence have been acquitted, the remaining three persons cannot constitute an unlawful assembly; (ii) in a case of free fight, each participant is liable for his own 399 individual act and as the appellant is not proved to have actually caused any injury to Darshan or Nand Lal, he could not be convicted of the offences under sections 302 and 307. If the Courts below could legally find that the actual number of members in the appellant 's party were more than five, the appellant 's party will constitute an unlawful assembly even when only three persons have been convicted. It is only when the number of the alleged assailants is definite and all of them are named, and the number of persons found to be proved to have taken part in the incident is less than five, that it cannot be held that the assailants ' party must have consisted of five or more persons. The acquittal of the remaining named persons must mean that they were not in the incident. The fact that they were named, excludes the possibility of other persons to be in the appellant 's party and especially when there be no occasion to think that the witnesses naming all the accused could have committed mistakes in recognizing them. This is clear from the observations in Dalip Singh vs State of Punjab (1) of this Court: "Now mistaken identity has never been suggest ed. The accused are ail men of the same village and the eye witnesses know them by name. The murder took place in daylight and within a few feet of the two eye witnesses. " The same cannot be said in this case. The witnesses are from village Seel. A good number of the accused are from other villages. Only Nand Lal and Chetan Singh, P. Ws. 22 and 23, named all the thirteen accused. The other prosecution witnesses, viz., Prem Singh, P.W. 15, Puran, P. W. 16, Jethu, P. W. 17 and Norata, P. W. 18, did not name all the thirteen accused. None of them named more than seven accused and all of them said that there were thirteen persons in the appellant 's party. In this state of evidence, it is not possible to say that the Courts below could not have come to the conclusion that there were more than five persons in the appellant 's party. (1) [1954].C.R. 145,150. 400 It follows therefore that the finding of the Courts below that the appellant 's party formed an unlawful assembly and that the appellant is constructively liable for the offences under section 302 and section 307, Indian Penal Code, in view of section 149, is correct. The second contention that in a free fight each is liable for an individual act cannot be accepted in view of the decision of this Court in Gore Lal vs State of U. P. (1). This Court said in that case "In any event, on the finding of the Court of first instance and of the High Court that both the parties had prepared themselves for a free fight and had armed themselves for that purpose, the question as to who attacks and who defends is wholly immaterial," and confirmed the conviction under section 307 read with section 149, Indian Penal Code. It may, however, be noted that it does not appear to have been urged in that case that each appellant could be convicted for the individual act committed by him. When it is held that the appellant 's party was prepared for a fight and to have had no right of private defence, it must follow that their intention to fight and cause injuries to the other party amounted to their having a common object to commit an offence and therefore constituted them into an unlawful assembly. The injuries they caused to the other party are caused in furtherance of their common object. There is then no good reason why they be not held liable, constructively, for the acts of the other persons of the unlawful assembly in circumstances which makes section 149, Indian Penal Code, applicable to them. Even if the finding that there were more than five persons in the appellant 's party be wrong, we are of opinion that the facts found that the appellant and his companions who were convicted had gone from the village armed and determined to fight, amply justified the conclusion that they had the common intention to attack the other party and to cause such injuries which may result in death. Darshan had two incised wounds and one punctured wound. Nand Lal (1) Criminal Appeal No. 29 of 1950, decided on December 15, 1960. 401 had two incised wounds and one punctured wound and two abrasions. The mere fact that Kartar Singh was not connected with the dispute about the plot of land is not sufficient to hold that he could not have formed a common intention with the others, when he went with them armed. The conviction under section 302 and section 307 read with section 149 can be converted into one under section 302 and section 307 read with section 34, Indian Penal Code. We therefore see no force in this appeal and accordingly dismiss it. Appeal dismissed.

IN-Abs

The appellant was tried along with two others under sections 302 and 307 read with section 149 of the Indian Penal Code. The prosecution case against them was that they along with ten others had taken part in a free fight resulting in the death of one belonging to the other side. The Sessions judge held that the accused were accompanied by nine or ten others but that it was not proved who they were. He, therefore, gave them the benefit of the doubt and acquitted them. The High Court on appeal affirmed that decision. It was urged on behalf of the appellant in this Court that (1) the offence of unlawful assembly had not been made out and (2) that in a free fight each participant is liable for his own act and the conviction of the appellant, who had caused no injury to the deceased, was untenable under sections 302 and 307 of the Indian Penal Code. Held, that the contentions must fail. It is only when the number of the alleged assailants is definite and all of them are named and the number of persons proved to have taken part in the incident is less than five that it can be said that there was no unlawful assembly. The acquittal of the remaining named persons must mean that they were not in the incident. The fact that they were named, excludes the possibility of other persons to be in the appellant 's party and especially when there can be no occasion to think that the witnesses naming all the accused could have committed mistakes in recognising them. Since this was not the position in the instant case, it could not be said that the courts below were wrong in holding that there was unlawful assembly. Dalip Singh vs State of Punjab, ; , referred to. It is not correct to say that in a premeditated free fight each is liable for his individual act. Where the accused party prepare for a free fight and can, therefore, have no right of private defence, their intention to fight and cause injuries to the other party amounts to a common object so as to constitute unlawful assembly. Gore Lal vs State of U. P., Cr. A. No. 129 of 1959 dated 15 12 1960, referred to. 396 Even assuming that in the instant case the finding that there were more than five persons in the appeLlant 's party was wrong, the conviction of the appellant would be maintainable under section 302 and section 307 read with section 34 of the Indian Penal Code.

minal Appeal No. 162 of 1959. Appeal by special leave from the judgment and order dated January 13, 1959, of the Rajasthan High Court in D. B. Criminal Revision No. 47 of 1957. 267 N. C. Chatterjee, J. L. Datta and C. P. Lal, for the appellant. Mukat Behari Lal Bhargava and Naunit Lal, for respondent No.2. April 24. The Judgment of the Court was delivered by GAJENDRAGADKAR, J. On June 13,1950, the Municipal Committee, Ajmer, respondent 2, issued a notice against the appellant, the Durgah Committee, Ajmer, under section 153 of the Ajmer Merwara Municipalities Regulation, 1925 (VI of 1925) (hereafter called the Regulation) calling upon it to carry out certain repairs in the Jhalra Wall which was in a dilapidated condition. The appellant did not comply with the said requisition and so respondent 2 served another notice on the appellant under section 220 of the Regulation inti mating to it that the required repairs would be carried out at the expense of respondent 2 and that the cost incurred by it would be recovered from the appellant. This notice was served on July 3, 1950. Even so the appellant took no steps to make the repairs and so respondent 2 proceeded to get the repair work done at its expense which amounted to Rs. 17,414. Under section 222(4) of the Regulation this sum became recoverable from the appellant as a tax. A notice of demand in that behalf was issued on the appellant on April 1, 1952, and in pursuance of the said notice respondent 2 applied to the Additional Tehsildar and Magistrate II Class, Ajmer, for the recovery of the said amount under section 234 of the Regulation. In the proceedings before the learned Magistrate the appellant raised certain pleas. These pleas were rejected and an order was passed calling upon the appellant to pay the dues in question by August 30, 1956. Against this order the appellant preferred a criminal revision application in the Court of the Sessions Judge, Ajmer. The learned Sessions Judge considered the contentions raised by the appellant and held that the view taken by the Magistrate cannot be said to be incorrect and so there was no ground to interfere in revision. Feeling aggrieved by the dismissal of its 268 revision application the appellant moved the High Court of Judicature for Rajasthan in its revisional jurisdiction. Before the High Court, on behalf of respondent 1, the State of Rajasthan, as well as respondent 2, a preliminary objection was raised that the criminal revision application filed by the appellant was incompetent since the Magistrate who entertained respondent 2 's application made under section 234 ",as not an inferior criminal court under section 439 of the Code of Criminal Procedure. This preliminary objection was upheld by the High Court and the criminal revision application dismissed on that ground. It is against this order that the appellant has come to this Court by special leave; and the short question which the appeal raises for our decision is whether the Magistrate who entertained the application made before him by respondent 2 under section 234 was an inferior criminal court under section 439 of the Code of Criminal Procedure. Before dealing with this point it is relevant to refer to the scheme of the material provisions of the Regulation. Section 153 confers power on the Municipality to order removal or repair of buildings which may be found in a dangerous state. Under this section the Committee may by notice require the owner of the building, wall or structure to remove the same forthwith or cause such repairs as the Committee may consider necessary for the public safety. This section also empowers the Committee to take at the expense of the owner any steps which it thinks necessary for the purpose of averting imminent danger. If the owner on whom a notice is served under section 153 complies with the requisition nothing more need be done. If, however, the owner does not comply with the requisition served on him the Committee is empowered to cause the repairs to be made after six hours notice to the owner under section 220. This section provides that whenever the terms of any notice issued under this Regulation have not been complied with the Committee may, after six hours ' notice, cause the act to be done by its officers. As a corollary to this provision, and indeed as its consequence, section 222 empowers the Committee to recover the cost of the work done 269 under section 220. Section 222(1) authorises the Committee to recover the cost of the work from the person in default. Sub sections (2) and (3) of section 222 then deal with the question as to which person should be held to be in default, the owner or the occupier; with that question we are not concerned in the present appeal. Sub section (4) of section 222 provides that where any money recoverable by the Committee under this section is payable by the owner of the property, it shall be charged thereon and shall be recoverable as if it were a tax levied by the Committee on the property. By sub section (5) it is provided that the contract between the owner and the occupier is not affected by this section. It is under section 222(4) that a demand notice was served on the appellant by respondent 2. That takes us to section 234 which provides for the machinery of recovery of municipal claims. This section provides, inter alia, that any tax claimable or recoverable by a Committee under this Regulation, after demand has been made therefor in the manner prescribed by rule, be recovered on application to a Magistrate having jurisdiction within the limits of the Municipality or in any other place where the person by whom the amount is payable may for the time being reside, by the distress and sale of any movable property within the limits of such Magistrate 's jurisdiction belonging to such person. The proviso to this section prescribes that nothing in this section shall prevent the Committee at its discretion from suing for the amount payable in any competent Civil Court. It would thus be seen that the object of making an application to the Magistrate is to obtain an order from the Magistrate direct ing the recovery of the tax claimable or recoverable by distress and sale of any movable property belonging to the defaulter. It is under this section that tile Magistrate was moved by respondent 2. That in brief is the scheme of the material provisions of the Regulation. The main argument which Mt . Chatterjee, for the appellant, has pressed before us is that in determining the nature of the proceedings under section 234 and the character of the Magistrate who entertains an application made under the said section, it is important to 35 270 bear in mind that a person in the position of the appellant has no other opportunity to challenge the validity of the notice as well as the validity of the claim made against him by the Committee. The argument is that it would be open to the owner to contend that the notice issued under section 153 is invalid or frivolous. It would also be open to him to contend that the amount sought to be recovered from him is excessive and that even if the repairs were carried out they could not have cost as much, and since the scheme of the Regulation shows that it provides no opportunity to the owner to raise those contentions except in proceedings under section 234 the nature of the proceedings and the character of the Magistrate who entertains them should be liberally construed. The proceedings should be deemed to be judicial proceedings and the Magistrate should be held to be an inferior criminal court when he entertains the said proceedings. If the assumption on which the argument proceeds that the Regulation provides no other opportunity to the owner to challenge the notice or to question the amount claimed from him were sound then there would be some force in the contention that section 234 should be liberally construed in favour of the appellant. But is that assumption right? The answer to this question would depend upon the examination of three relevant provisions of the Regulation; they are sections 222(4), 93 and 226. We have already seen that section 222(4) provides that any money recoverable by the Committee under section 222(1) shall be recovered as if it were a tax levied by the Committee on the property and shall be charged thereon. Section 93 provides for appeals against taxation. Section 93(1) lays down, inter alia, that an appeal against the assessment or levy of any tax under this Regulation shall lie to the Deputy Commissioner or to such officer as may be empowered by the State Government in this behalf. The remaining five subsections of section 93 prescribe the manner in which the appeal should be tried and disposed of. If the amount recoverable by respondent 2 from the appellant is made recoverable as if it were 271 a tax levied by the Committee, then against the levy of such a tax an appeal would be competent under section 93(1). Mr. Chatterjee argues that section 93(1) provides for an appeal against the levy of a tax, and he draws a distinction between the amount made recoverable as if it were a tax and the amount recoverable as a tax. His contention is that the amount which is recoverable under section 222(1) is no doubt by fiction deemed to be a tax but against an amount thus deem.s. 93(1). We are not impressed by this argument. If by the fiction introduced by section 222(4) the amount in question is to be deemed as if it were a tax it is obvious that full effect must be given to this legal fiction; and in consequence just as a result of the said section the recovery procedure prescribed by section 234 becomes available to the Committee so would the right of making an appeal prescribed by section 93(1) be available to the appellant. The consequence of the fiction inevitably is that the amount in question can be recovered as a tax and the right to challenge the levy of the tax accrues to the appellant. This position is made perfectly clear by section 226. This section provides, inter alia, that where any order of a kind referred to in section 222 is subject to appeal, and an appeal has been instituted against it, all proceedings to enforce such order shall be suspended pending the decision of the appeal, and if such order is set aside on appeal, disobedience thereto shall not be deemed to be an offence. It is obvious that this section postulates that an order passed under section 222 is appealable and it provides that if an appeal is made against such an order further proceedings would be stayed. It is common ground that there is no other provision in the Regulation providing for an appeal against an order made under section 222(1); and so inevitably we go back to section 93 which provides for an appeal against the levy of a tax. It would be idle to contend that though section 226 assumes that an appeal lies against an order made under section 222(1) the Legislature has for. gotten to provide for such an appeal. Therefore, in our opinion, there can be no doubt that reading 272 sections 222, 93 and 226 together the conclusion is inescapable that an appeal lies under section 93(1) against the demand made by the Committee on the owner of the property under section 222(1). If that be so, the main, if not the sole argument, urged in support of the liberal construction of section 234 turns out to be fallacious. ow, looking at section 234 it is clear that the proceedings initiated before a Magistrate are no more than recovery proceedings. All questions which may legiti mately be raised against the validity of the notice served under section 153 or against the validity of the claim made by the Committee under section 222 can and ought to be raised in an appeal under section 93(1), and if no appeal is preferred or an appeal is preferred and is dismissed then all those points are concluded and can no more be raised in proceedings under section 234. That is why the nature of the enquiry contemplated by section 234 is very limited and it prima facie partakes of the character 'of a ministerial enquiry rather than judicial enquiry. In any event it is difficult to hold that the Magistrate who entertains the application is an inferior criminal court. The claim made before him is for the recovery of a tax and the order prayed for is for the recovery of the tax by distress and sale of the movable property of the defaulter. If at all, this would at best be a proceeding of a civil nature and not criminal. That is why, we think, whatever may be the character of the proceedings, whether it is purely ministerial or judicial or quasi judicial, the Magistrate who entertains the application and holds the enquiry does so because he is designated in that behalf and so he must be treated as a persona designata and not as a Magistrate functioning and exercising his authority under the Code of Criminal Proce dure. He cannot therefore be regarded as an inferior criminal court. That is the view taken by the High Court and we see no reason to differ from it. In the present appeal it is unnecessary to consider what would be the character of the proceedings before a competent Civil Court contemplated by the proviso. Prima facie such proceedings can be no more than execution proceedings. 273 Mr. Chatterjee also attempted to argue that the proceedings under section 234 taken against the appellant by respondent 2 were incompetent because a demand, has not been made by respondent 2 on the appellant in the manner prescribed by rule as required by section 234. It does appear that rules have not been framed under the Regulation and so no form has been prescribed for making a demand under section 222(1). Therefore the argument is that unless the rules are framed and the form of notice is prescribed for making a demand under section 222(1) no demand can be said to have been made in the manner prescribed by rules and so an application cannot be made under section 234. There are two obvious answers to this contention. The first answer is that if the revisional application made by the appellant before the High Court was incompetent this question could not have been urged before the High Court because it was part of the merits of the case and so cannot be agitated before us either. As soon as it is held that the Magistrate was not an inferior criminal court the revisional application filed by the appellant before the High Court must be deemed to be incompetent and rejected on that preliminary ground alone. Besides, on the merits we see no substance in the argument. If the rules are not prescribed then all that can be said is that there is no form prescribed for issuing a demand notice; that does not mean. that the statutory power conferred on the Committee by section 222(1) to make a demand is unenforceable. As a result of the notice served by respondent 2 against the appellant respondent 2 was entitled to make the necessary repairs at its cost and make a demand for reimbursement of the said cost. That is the plain effect of the relevant provisions of the Regulation; and so, an amount which was claimable by virtue of section 222(1) does not cease to be claimable just because rules have not been framed prescribing the form for making the said demand. In our opinion, therefore, the contention that the application made under section 234 was incompetent must be rejected. It now remains to consider some decisions to which 274 our attention was drawn. In Crown through Municipal Committee, Ajmer vs Amba Lal (1), the Judicial Commissioner Mr. Norman held that a Magistrate entertaining an application under section 234 of the Regulation is an inferior criminal court. The only reason given in sup port of this view appears to be that the Magistrate before whom an application under the said section is made is appointed under the Code of Criminal Procedure, and so he is a criminal court although he is not dealing with crime. That is why it was held that he had jurisdiction to decide whether the conditions under which the Municipality can resort to the Magistrate are fulfilled. Having come to this conclusion the learned Judicial Commissioner held that a revision against the Magistrate 's order was competent. In our opinion this decision does not correctly represent the true legal position with regard to the character of the proceedings under section 234 and the status of the Magistrate who entertains them. In Re Dinbai Jijibhai Khambatta (2) the Bombay High Court held that the order made, by a Magistrate under section 161(2) of the Bombay District Municipalities Act, 1901 (Bombay III of 1901) can be revised by the High Court under section 435 of the Code of Criminal Procedure. This decision was based on the ground that the former part of section 161 was purely judicial and it was held that the latter part of the said section though not clearly judicial should be deemed to partake of the same character as the former part. Thus the decision turned upon the nature of the provisions contained in section 161(2). In V. B. D 'Monte vs Bandra Borough Municipality(1) a Full Bench of the Bombay High Court, while dealing with a corresponding provision of the Bombay Municipal Boroughs Act XVIII of 1925, namely, section 110, has held that in exercising its revisional jurisdiction under section 110 the High Court is exercising a special jurisdiction conferred upon it by the said section and not the jurisdiction conferred under section 435 of the Code of Criminal Procedure. According to this (1) Ajmer Merwara Law journal, Vol. V, P. 92. (2) Bom. (3) I.L.R. 275 decision the matter coming before the High Court in such revision is of civil nature and so the revisional application would lie to the High Court on its civil side and not on its criminal side. It is significant that the decision in the case of Emperor vs Devappa Ramappa (1) which took a contrary view was not followed. In Re Dalsukhram Hurgovandas (2) the Bombay High Court had occasion to consider the nature of the proceedings contemplated by section 86 of the Bombay District Municipal Act III of 1901. Under the said section a Magistrate is empowered to hear an appeal specified in the said section; and it was held that in hearing the said appeals the Magistrate is merely an appellate authority having jurisdiction to deal with questions of civil liability. He is therefore not an inferior criminal court and as such his orders are not subject to the revisional jurisdiction of the High Court under section 435 of the Code of Criminal Procedure. The Madhya Bharat High Court had occasion to consider a similar question under section 153 of the Gwalior Municipal Act (1993 Smt.) in Municipal Committee, Lashkar vs Shahabuddin (3). Under the said section an application can be made by the Municipality for recovering the cost of the work from the person in default. It was held that the order passed in the said proceedings cannot be revised by the High Court under section 435 because the order is an administrative order and that there was no doubt that the Magistrate was not an inferior criminal court. In Mithan Musammat vs The Municipal Board of Agra & Anr., (4) the Allahabad High Court has held that a Magistrate passing an order under section 247(1) of the United Provinces Municipalities Act, 1926 does not do so as an inferior criminal court within the meaning of section 435 of the Code of Criminal Procedure. To the same effect is the decision of the Allahabad High Court in Madho Ram vs Rex (1). We have referred to these decisions only to illustrate that in dealing with similar provisions under the (1) (3) A.I.R. (39) 1952 M.B. 48. (2) (4) I.L.R. (1956) 2 All. (5) I.L.R. (1950) All. 276 municipal law different High Courts seem to have taken the view that Magistrates entertaining recovery proceedings under the appropriate statutory provisions are not inferior criminal courts under the Code of Criminal Procedure. Though we have referred to these decisions we wish to make it clear that we should not be taken to have expressed any opinion about the correctness or otherwise of the views taken by the different High Courts in regard to the questions raised before them. The result is the appeal fails and is dismissed. Appeal dismissed.

IN-Abs

On the failure of the appellant to carry out the requisition by the Municipality to execute certain repairs to its property the Municipality carried out the said repairs after giving due notice, the cost of which became recoverable from the appellant as tax under section 222(4) of the Ajmer Merwara Municipalities Regulation. The Municipality applied under section 234 Of the Regulation to the Additional Tehsildar and Magistrate, II Class, Ajmer for the recovery of the amount of cost incurred by them, and the magistrate passed an order calling upon the appellant to pay the dues. Against this order the appellant preferred a criminal revision application in the court of Sessions judge which was rejected as there was no ground to interfere in revision. The appellant then moved the High Court in its revisional jurisdiction wherein the respondents raised preliminary objection that the criminal revision application filed by the appellant was incompetent since the Magistrate who entertained respondent No. 2 Municipal Committee 's application under section 234 was not an inferior criminal court under section 439 of the Criminal Procedure 266 Code, the said objection was upheld and the criminal revision application dismissed on that ground. The question was whether the Magistrate who entertained the application made before him by the Municipality under section 234 of the Regulation was an inferior criminal court under section 439 Of the Code of Criminal Procedure, and also whether an application under section 234 could be made unless the rules were framed and the forms of the notice for making a demand under section 222 were prescribed. Held, that the Proceedings initiated before a Magistrate under section 234 of the Ajmer Merwara Municipalities Regulation were merely in the nature of recovery proceedings and no other questions could be raised in the said proceedings. The nature of the enquiry contemplated by section 234 was very limited; it prima facie partook of the character of a ministerial enquiry rather than judicial enquiry and at the best could be treated as a proceeding of a civil nature but not a criminal proceeding and the Magistrate who entertained the application was not an inferior criminal court. Whatever may be the character of the proceedings, whether it was purely ministerial or judicial or quasi judicial, the Magistrate who entertained the application and held the enquiry did so because he was designated in that behalf and so he must be treated as a persona designate and not as a Magistrate functioning and exercising his authority under the Code of Criminal Procedure. He could not therefore be regarded as an inferior criminal court. Held, further, that if the rules were not prescribed as required by section 234 of the Regulation then all that could be said was that there was no form prescribed for issuing a demand notice, that did not mean that the statutory power conferred on the committee by section 222(1) to make a demand was unenforceable and an amount which was claimable by virtue of section 222(1) did not cease to be claimable just because rules had not been framed prescribing the form for making the said demand. Crown through Municipal Committee, Ajmer vs Amba Lal, Ajmer Merwara Law journal, Vol. V, 92, Re Dinbai Jijibhai Khambatta, Bom. 864, V. B. D 'Monte vs Bandra Borough Municipality, I.L.R. , Emperor vs Devappa Ramappa, , Re Dalsukhram Hurgovandas, and Municipal Committee, Lashkay vs Shahbuddin, A.I.R. 1952 M. B. 48, referred to.

160 of 1952. Contempt of Court proceedings against the Editor, Printer and Publisher of the "Times of India" (Daily), Bombay and Delhi, for publishing a leading article in their paper of October 30, 1952, entitled A Disturbing Decision ". M. C. Setalvad, Attorney General for India (P. A. Mehta, with him) (amicus curiae). N. C. Chatterjee (Nur ud Din Ahmad and A. E. Dutt, with him) for the contemners. December 12. The Order of the Court was delivered by MAHAJAN J. In its issue of the 30th October, 1952, the " Times of India", a daily newspaper published in Bombay and New Delhi, a leading article was published under the heading " A disturbing decision ". The burden of it was that in a singularly oblique and infelicitous manner the Supreme Court had by a majority decision tolled the knell of the much maligned dual system prevailing in the Calcutta and Bombay High Courts by holding that the 217 right to practise in any High Court conferred on advocates of the Supreme Court, made the rules in force in those High Courts requiring advocates appearing on the Original Side to be instructed by attorneys inapplicable to them. The article concluded with the following passage: " The fact of the matter appears to be that in the higher legal latitudes at New Delhi and elsewhere the dual system is regarded as obsolete and anomalous. There is a tell tale note at the top of the rules framed by the Supreme Court for enrolment of advocates and agents to the effect that the rules were subject to revision and the judges had under consideration a proposal for abolishing the dual system. Abolish it by 'all means if the system has outgrown its usefulness and is found incongruous in the new setting of a democratic Constitution. But to achieve a dubious or even a laudable purpose by straining the law is hardly edifying. Politics and policies have no place in the pure region of the law; and courts of law would serve the country and the Constitution better by discarding all extraneous considerations and uncompromisingly observing divine detachment which is the glory of law and the guarantee of justice." No objection could have been taken to the article had it merely preached to the courts of law the sermon of divine detachment. But when it proceeded to attribute improper motives to the judges, it not only transgressed the limits of fair and bona fide criticism but had a clear tendency to affect the dignity and prestige of this Court. The article in question was thus a gross contempt of court. It is obvious that if an impression is created in the minds of the public that the judges in the highest court in the land 'act on extraneous considerations in deciding cases, the confidence of the whole community in the administration of justice is bound to be undermined and no greater , mischief than that can possibly be imagined. It was for this reason that the rule was issued against the respondents. 218 We are happy to find that the Editor, Printer and the Publisher of the paper in their respective affidavits filed in these proceedings have frankly stated that they now realize that in the offending article they had exceeded the limits of legitimate criticism in that words or expressions which can be construed as casting reflection upon the court and constituting Contempt had crept into it. They have expressed sincere regret and have tendered unreserved and unqualified apology for this first lapse of theirs. We would like to observe that it is not the practice of this Court to issue such rules except in very grave and serious cases and it is never over sensitive to public criticism; but *hen there is danger of grave mischief being done in the matter of administration of justice,. the animadversion cannot be ignored and viewed with placid equanimity. In this 'matter we are of the same opinion as was expressed by their Lordships of the Privy Council in Andre Paul vs Attorney General of Trinidad (1), Where they observed as follows: "The path of criticism is A public way: the wrong headed are permitted to err therein; provided that members of the public abstain from imputing improper motives to those taking part in the administration of justice, and are genuinely exercising a right of criticism and not acting in malice or attempting to impair the administration of justice, they are immune. Justice is not a cloistered virtue; she must be allowed to suffer the scrutiny and respectful even though outspoken comments of ordinary men. " In view of the unconditional apology tendered by the respondents and the undertaking given by them to give wide publicity to their regret, we have decided to drop further proceedings and we accept the apology and discharge the rule without any order as to costs. Rule discharged. Agent for the contemners: Rajinder Narain. (1) A.I.R. 1936 P.C. 141.

IN-Abs

It is not the practice of the Supreme Court to issue a rule for contempt of Court except in very grave and serious cases and it is never over sensitive to public criticism; but when there is danger of grave mischief being done in the matter of administration of justice, the animadversion will not be ignored and viewed with placid equanimity. A leading article in the " Times of India " on the judgment of the Supreme Court in Aswini Kumar Ghose vs Arabinda Bose and Another ([1953] S.C.R. 1) contained the following statements: "the fact of the matter is that in the higher legal latitudes in Delhi the dual system was regarded as obsolete and anomalous. . There is a, tell tale note at the top of the rules framed by the Supreme Court for enrolment of advocates and agents to the effect that the rules were subject to revision and the Judges had under consideration a proposal for abolishing the dual system. . To achieve a dubious or even a laudable purpose by straining the law is hardly 216 edifying. Politics and policies have no place in the pure region of the law and Courts of law would serve the country and the Constitution better by discarding all extraneous considerations and uncompromisingly observing divine detachment. . " In proceedings for contempt of Court: Held, that if the articles had merely preached to Courts of law a sermon of divine detachment no objection could be taken, but in attributing improper motives to the judges, the article not only transgressed the limits of fair and bona fide criticism but had a clear tendency to affect the dignity and prestige of the Court and it was therefore a gross contempt of court. If an impression is created in the minds of the public that the judges of the highest court in the land act on extraneous considerations in deciding cases the confidence of the whole community in the administration of justice is bound to be undermined and no greater mischief than that can possibly be imagined. [In view of the unconditional apology tendered by the Editor, Printer and Publisher and the undertaking given by them to give wide publicity to their regret, the proceedings were dropped.] Andrew Paul vs Attorney General of Trinidad (A.I.R. referred to.