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Appeal No. 164 of 1962. Appeal from the judgment and decree dated june 19,1958, of the Andhra Pradesh High Court in Appeal Suit No. 944 of 1953. K. Bhimasankaram, J. V. Kriahna Sarma and T. Satyanarayana, for the appellant. A. Ranganadham Chetty, Miss A. Vedavalli, N. Rajeshwara Rao and A. V. Rangam, for respondents 1 (a) and (b). November 14. The judgment of the Court was delivered by AYYANGAR, J. This appeal comes before us on a certificate of fitness granted by the High Court of Andhra Pradesh under article 133(1)(a) of the Constitution. 57 The following facts are necessary to be stated to apperciate the contention , urged before us. We consider it would be convenient to refer to the parties by their array in the trial Court. The 2nd defendantfirm Hajee Abdul Kadir Sahib and Lala Batcha Sahib & Co., had been apparently carrying on business in several places including Vizianagaram, Bellary, Madras etc., in skins and hides since 1941 when the partnership was formed between the 3rd and the 4th defendants. It was common ground that from about 1947 or 1948 the firm had not been doing any businesss in Vizianagaram and by that time it had contracted quite a large volume of debts, the tannery business there proving a loss. The two partners accordingly entered into a deed of dissolution dated March 31, 1949, in which it is stated that the book debts, stock in trade, immovable properties and other assets including the goodwill of the firm were of the value of Rs. 2,90,000/ , and at the same time that the partnership which was admitted to be suffering losses owed debts to the extent. of Rs. 2 1/2 lakhs. It ' was agreed between the partners that the 3rd defendant Abdul Shukoor Saheb should go out of the partnership taking with him one item of property in Vaniyambadi valued at Rs. 20,000/ while the suit tannery which was estimated as of the same value was to become the sole property of the 4th defendant who was described in the deed as "the continuing partner". Soon after this deed of dissolution the 4th defendant entered into an agreement with the plaintiff for the sale to him of the suit property for a sum of Rs. 19,000/ , and later executed the deed of sale on May 20, 1949. The plaintiff was, however, advised that it would be safer to have the conveyance in his favour executed by the other partner also and accordingly the 3rd defendant was also an executant of the sale deed. On the execution of the sale deed the plaintiff entered into possession and he claimed to have thereafter effected improvements to the property. 58 While so, the 1st defendant Arji Papa Rao filed suit O. section 46 of 1950 in the Court of subordinate judge at Visakhapatnam for the recovery of a sum of Rs. 12,950/5/8 against the 2nd defendant firm and its partners defendants 3 & 4 and obtained a decree for the sum claimed with interest and costs on June 19, 1951. Soon after filing the plaint he obtained an order for attachment before judgment of the suit property and that order was on the passing of the decree made absolute, subject however, to the result of a claim petition which had been filed by the plaintiff for raising the attachment. The Subordinate judge of Visakhapatnam dismissed the plaintiff 's claim and this has led to the suit O. section 145 of 1951 out of which this appeal arises to set aside that summary order under O. XXI, r. 63, Code of Civil Procedure. The plaintiff impleaded as parties to the suit besides the attaching decree holder who was made the 1st defendant, the debtor firm and the two partners as defendants 2 to 4 respectively and the son of the 4th defendant who executed the sale deed as his agent under a power of attorney as the 5th defendant. The plaintiff claimed that he purchased the property bonafide and for its full value, that since its purchase he having entered into possession, 'was in enjoyment thereof in his own right, paying the rates and taxes due thereon and had effected valuable improvements thereto, and that consequently the property was not liable to be attached as belonging to the partnership or any of its partners. Broadly stated, the defence of the 1st defendant the only contesting defendant, the others either remaining ex parte or supporting the plaintiff, was that the sale in favour of the plaintiff was either a sham and nominal transaction or in fraud of creditors of whom he was one. The trial court upheld the plaintiff 's claim that the sale was real and was fully 59 supported by consideration. It also negatived the contention raised by ' the first defendant that the sale was fraudulent as intended to defeat or delay creditors under section 53 (1) of the . The 1st defendant filed an appeal to the High Court and the learned judges reversed the decision of the trial judge and directed the dismissal of the plaintiff 's suit. It is the correctness of this decision that is challenged in this appeal. Learned counsel for the appellant raised four principal points in support of the appeal : (1) that on a proper construction of the written statement the only real and effective defence that was raised was that the sale in favour of the appellant was sham and nominal and that the Courts below were in error in proceeding on the basis that the sale was in the alternative impugned as brought about to defeat or delay creditors within section 53 (1) of the ; (2) that on the facts and circumstances of the case it had not been established that the sale in favour of the appellant was vitiated by fraud against creditors falling within section 53 (1) of the ; (3) that in any event, the plaintiff was a purchaser in good faith and for valuable consideration and was therefore protected even on the basis that the transferor intended, by the alienation, to defraud his creditors; (4) that on a proper construction of section 53 (1) of the , as it now stands, read in the light of the provisions of the Code of Civil Procedure particularly those relating to claim petitions under O. XXI rr. 58 to 63, a transfer which was voidable under section 53 (1) could be avoided only by a representative suit filed on behalf of creditors and not by an individual creditor who may be defeated or delayed, by way of defence to a suit to set aside a summary order under O. XXI, r. 63, Code of Civil Procedure. We shall deal with each of these points and in that order. There is no doubt that the written 60 Statement has not been artistically drafted, keeping in view the real distinction between a sham and nominal sale which is not intended to pass title and a sale which is real but which is voidable at the instance of creditors because the transfer is intended in the language of section 53 (1) of the "to defeat and delay creditors". In paragraph 2 of the Written Statement the 1st defendant stated : , "The said sale deed is sham; nominal and collusive document not intended to pass any title but brought about to screen the suit properties from the creditors of defendants 2 to 5. No consideration passed under the sale deed and the recitals thereof in the document are fictitious and make believe. " The paragraph. however, further went on to add "It is further submitted that even if the sale deed is true, it, is in fraud of creditors including the plaintiff and not binding on them." In paragraphs 3 the allegation was made that the plaintiff was the relative of defendants 2 to 5, that the plaintiff and the vendors were natives of the same place and that the sale deed was clandestinely brought into existence at Madras at a. time when defendants 2 to 5, were hard pressed by the plaintiff and other creditors and unable to pay their debts. , at V,izianagaram and that in order to put the properties beyond the reach of the creditors, defendants 2 to; 4 seem to, have hit upon the frauds device. of the alleged We to the plaintiff". In the light of these averments it, cannot be , said that the defendants did not raise two distinct pleas (1) that the sale was a sham, a pretended Sale without any consideration and not intended to pass any title to the nominal purchaser and in the alternative (2) that even if it were a 61 real transaction supported by consideration and intended to pass title to the plaintiff, still the same was, having Tegard to the circumstances stated, a fraud upon the creditors and therefore voidable at his instance. Though the pleading in the Written Statement was in this form, the issues struck did not raise the two defenses as distinct pleas but rolled both of them into a single plea raising the question "whether the plaintiff hid title to the suit property and whether the claim order was liable to be set aside. " Notwithstanding the indefiniteness in the frame of the issues it could not be said that when the parties proceeded to adduce evidence the same was not directed to both the above defences. As we have necessarily to consider thus evidence in dealing with the submissions made to us regarding the correctness of the dismissal of the plaintiff 's suit by the High Court it is unnecessary to set out the details of the evidence which indicates that the defence based upon section 53 of the was borne in mind. At the, stage of the arguments before the trial Judge it was the subject of keen contest between the parties. The learned trial judge first dealt with the question as to whether the sale was real as pleaded by the plaintiff or whether it was without consideration and sham and nominal not intended to pass any little, and recorded a clear finding in favour of the plaintiff After having done so he considered in detail the various circumstances which were relied on by the first defendant in support of the plea that the sale was in fraud of creditors so as to be voidable under. section 53(1) of the . He negatived this plea and upheld the plaintiff 's claim to the Property and passed a decree in his favour. In these circumstances we consider that there is no force in the objection that there has not been a sufficient plea of a defence based upon section 53 of the as to justify or entitle the court to afford relief if satisfied that the same was proved. 62 Before dealing with the second point it is necessary to make a few observations in relation to certain submissions made by learned Counsel for the appellant. This was in relation to the manner in which the. learned judges of the High Court had approached this question and arrived at a conclusion adverse to his client. The learned judges had formulated the questions to be considered in the appeal as follows : "The main point that falls to be considered in this appeal is whether the sale deed in favour of the Plaintiffs Exhibit A 2, is a genuine transaction supported by consideration; and, if on this point the finding is in favour of the plaintiff, the further question that falls to be determined is whether the suit sale deed was executed in fraud of creditors and as such not binding on the first defendant and other creditors of defendants, 2 to 5. If the finding on this issue is that the transaction was in fact in the fraud of creditors, the further question that would arise for consideration is whether the plaintiff could claim to be the transferee in good faith and for consideration so as to claim the benefit of the exemption contained in section 53 of the . Learned Counsel had no quarrel with the propositions as here set out or the mode of approach, but his complaint was that in dealing with the appeal these were not kept in view. He urged that they did not consider either initially or even later the question as to whether the sale to the plaintiff was real or was sham and nominal unsupported by consideration and though they stated in one portion of the judgment that they did not propose to consider this question because they were satisfied that the decision on the other points might be sufficient to dispose of the appeal,yet they made passing observation which appeared to throw doubt on the reality of the sale. 63 Again, learned Counsel pointed out that though they had formulated the two questions viz., (1) assuming the sale to be real whether the sale was intended by the transferor to defeat or delay creditors, and (2) assuming the sale was voidable under section 53(1) of the whether the plaintiff was a bona fide purchaser in good faith, as distinct and separate questions, in the discussion which followed they did not keep these two points separate. Besides, it was urged that there were some statements or assumptions made in the judgment which were entirely not, warranted by the facts. We cannot say that there is not some force in these submissions. In view of this, the course which we intimated to the teamed Counsel that we would adopt was that we would ourselves consider the entire evidence on the record and arrive at our own conclusions on such evidence in regard to the two issues: (a) whether the sale was in fraud of creditors, and (b) whether the plaintiff was a bona fide purchaser for value and that if it became necessary to arrive at any finding as regards the reality of the sale, we would remand the appeal to the High Court for the matter being considered since the learned judges had expressly reserved the consideration of that question. We shall now proceed to consider the facts and circumstances of the case which are relevant to the issue as to whether the sale was to defeat or delay creditors. There was some argument before us about the burden of proof in such cases but learned Counsel for the appellant submitted that he would assume for the purpose of argument that the onus was upon the plaintiff purchaser and that he would satisfy us that burden had been discharged. This apart, we consider that the question of onus of proof is merely academic at this stage because the entire evidence is before us and except in a rare case where the considerations are evenly balanced, it would have little significance. 64 The circumstances which are relevant for the consideration of this question are these: The second defendant firm was in financial embarrassment at the time of the sale. The deed of dissolution dated March 31, 1949 recites that the business carried on by the firm was resulting in losses and that the debts amounted to about 2 1/2 lakhs of rupees. No doubt, it is there stated that the assets of the firm were by consent of the parties estimated of the value of Rs. 2,90,000/ . This estimate however included the value of the goodwill, which would not be of any real value in the case of a losing business of this sort and we do not know how much was attributed to this item. This apart, the assets were said to be made up of book debts, stock in trade, immovable property etc. There is however, no indication as to the relative value of these several components to judge whether or not the alienation of the suit property would have the effect of delaying, if not defeating the creditors. It can however be asserted that the picture presented by the deed of dissolution is certainly of a firm whose financial position was far from satisfactory. There is no evidence on the record whether the partners or either of them had any property of their own besides the assets of the partnership for discharging the debts due to the firm 's creditors. Though the 4th defendant filed a written Statement supporting the plaintiff, the plaintiff did not choose to examine him as a witness in order to elucidate this matter or otherwise explain the circumstances in which the impugned sale ' was effected. The next feature to be noticed is that the plaintiff and the 4th defendant were both members of the same community labbais of North Arcot district, a fairly small and well knit community several of whom are engaged in the hides and skins business. The learned judges of the High Court have referred to the plaintiff and the 4th defendant as natives of ,the same place and as relatives. Learned Counsel 65 for the Appellant pointed out that whereas the 4th defendant was a native of Vaniyambadi, the plaintiff was, native of Parnambet and the suggestion made that they were relatives had been denied, in the evidence. Learned Counsel might be right on these matters but we consider that not much turns on them. Both of them were conducting business in Madras and the plaintiff had also a business in Vizianagaram though it was in bidis and not in hides and skins. In these circumstances we consider that it matters little whether they were relatives or not. The significance of the 'plaintiff and his vendors being members of the same community and well known to each other consists in this, that the plaintiff might have been chosen because of his willingness to take the sale without any searching enquiry as to the circumstances necessitating it,and because there would be less publicity in the transaction being put through between them such as for instance inspection of the property or enquiries in the locality as regards value etc. , which would take place if the sale was to be to a total stranger which would attract the attention of the firm 's creditors. The next circumstance is as regards the pressure exerted on the 3rd and 4th defendants by the creditors immediately prior to the impugned sale and which, in the normal course of events, would be relevant, as providing that the sale was effected in order to put the property beyond the reach of creditors by converting it into cash. On April 20, 1948, O. section 162 of 1948 on the file of the District Munsiff 's Court, Vizianagaram was filed for the recovery of Rs. 1,016/ on a promissory note for Rs. 1,000/executed by the firm. On September 8, 1948, it was reported as adjusted out of court. Besides this some other suits were filed for the recovery of amounts 'from the partnership but they were defended and were ultimately dismissed. Then we come to 66 O. section 191 of 1949 in which the plaint was presented on April 4, 1949, for recovery of a sum of Rs. 1,385/and odd which was decreed with interest and costs on November 22, 1949. The date on which this last mentioned suit was filed is of some significance because of another suit which was filed at about the same time. One Damayanti presented a plaint on March 9, 1949, against the firm for the recovery of Rs . 3,000/ being the principal and interest due on a promissory note. The date fixed for the appearance by the defendant was April 4, 1949. It will be noticed that the deed of dissolution was executed on March 31, 1949. The defendant did not enter appearance on the day fixed and the Court passed an ex parte decree on April 5, 1949; for the amount claimed. She filed an application for execution on April 18, 1949, and obtained an order on April 21, 1949, for the attachment of the suit property though the attachment was actually effected on June 8, 1949, because the court was closed for the summer vacation. Long before these dates the 4th defendant had made up his mind to alienate the suit property and we have a letter from the 4th defendant to the plaintiff as early as February 5, 1949, which evidences negotiations for the sale of the property. There was apparently some giggling about the price which caused some delay and a few days after the attachment was ordered, on April 27, 1949, a formal agreement of sale was entered into between the plaintiff and the 4th defendant under which he agreed to purchase the property for a sum of Rs. 19,000/and the agreement recited that the purchaser, i. e., the plaintiff had paid a sum of Rs. 10,000/ in advance as earnest money and the sale deed itself was executed on May 20, 1949. In pursuance of the order dated April 21, 1949, Damayanti attached the suit property as already stated on June 8, 1949 and thereupon the plaintiff filed a claim under O. XXI, r, 59, Code of Civil Procedure, for raising the 67 attachment but this, however, was dismissed on November 16, 1950, and thereafter the amount of the decree was paid up by the judgment debtor just a few days before tile expiry of the one year period of limitation for filing the suit under O. XXI, r. 63, Code of Civil Procedure. A suggestion was made to the plaintiff while he was examined in the case that it was he who had paid up the decree debt of Damayanti but he denied it and we shall proceed on the basis that debt was discharged by the judgment debtors themselves. For the purpose of establishing that the firm was hard pressed by its creditors at the time of the negotiations which resulted in the sale impugned in these proceedings and at the time of the sale, it matters little who paid this decree debt. Next we have the circumstance that though the properties were at Vizianagaram, the document was registered at Madras and the suggestion made to the plaintiff was that this was meant as a measure of secrecy to keep this alienation from the knowledge of the firm 's creditors. The explanation offered by the plaintiff was that having regard to the distance between the native places of the two parties from Vizianagaram and the proximity of these to Madras and the fact that both the Plaintiff, as well as the executants were at Madras it was found more convenient to have the document presented for registration at Madras instead of incurring the expenses of a journy to Vizianagaram for having it registered there. The learned trial judge accepted this explanation and held that the registration of the sale deed at Madras was not a suspicious circumstance indicating an intention to keep the transaction secret. The learned judges of the High Court, however, considered it otherwise and expressed the view that this was done in order to keep the transaction secret. We are inclined to agree with the learned judges of the High Court 68 in their appreciation of this piece of conduct. Admittedly, the 4th defendant had his agent at Vizianagaram and similarly the plaintiff himself had his men there to look after ' his, bidi business. There was no impediment in these circumstances and no expenses of traveling involved if only the 4th defendant had executed a power @ of attorney in favour,of some one at Vizianagaram to present the document for registration and admit its execution. In fact, it may be mentioned that even the sale deed now impugned was executed not by the 3rd and 4th defendants but by the 4th defendant 's son K. L. Abdulla in whose favour a general power of attorney was executed on April 26, 1949, apparently immediately the agreement for sale was concluded. It is in the light of this feature that we are not disposed to dismiss as irrelevant the circumstance that the document was registered at Madras. The next feature of the case to which. we must direct attention relates to the purpose for which the sale was executed. As regards this, there is no evidence led to indicate why exactly the 4th defendant desired with some urgency to dispose of the property at that juncture. The relevant circumstance in the present case is that there was a great deal of pressure from creditors, who not having been paid the amounts due to them as and when they became due, were forced to file suits and those which were decreed were those which were not defended and the firm was mulcted with costs under each of these decrees. In the circumstances one would expect an explanation as to why the sale was being effected. Ordinarily in circumstances such as in this case there could only be two alternatives : (1) a sale in order to pay the creditors out of the proceeds obtained; and (2) a sale in ' order to convert immovable property which was capable of being attached and brought to sale for the realisation of the amounts due to the creditors 69 into cash, which could either be secreted or used for the vendor 's own purposes. If the purpose was as that indicated in the first of the above alternatives the proceeds of the sale would have been earmarked for the payment of particular debts for which pressure Was the greatest. It is needless to add that if this were the case and if creditors who were not so provided were defeated or delayed it would merely be a case of a fraudulent preference which could be impugned only under the law relating to insolvency and not as a fraud on creditors for which section 53 of the makes provision. It is, however, common ground that apart from the sale deed not making any provision that the consideration was to be utilised for the discharge of any particular debts, it is not the case of the plaintiff that there was any such stipulation as to the application of the money or that without any stipulation therefor the money was so utilised. It would therefore not be an unreasonable inference to draw from the circumstances of the tale at the Juncture at which it took place that the Vendor 's object was merely to convert this immovable property into cash, so that it may not be available to the creditors. Before leaving this point it is necessary to advert to one matter which was suggested by learned Counsel for the appellant. He submitted that the property sold was only a part of the assets of the partners and that unless there was evidence to show that nothing was left available for the creditors after the impugned sale, its validity could not be impugned under section 53 of the . We consider that there is no force in ' this submission. As a matter of fact, there is no evidence as to what other properties the partners had beyond what 'is contained in the deed of dissolution on March 31, 1949. But that apart, the terms of section 53(1) are satisfied even if the transfer does not " 'defeat" but only "delays" the 70 creditors. The fact therefore that the entirety of the debtors ' property was not sold cannot by itself negative the applicability of section 53(1) unless there is cogent proof that there is other property left, sufficient in value and of easy availability to render the alienation in question immaterial for tie creditors. In the present case, as already pointed out, we have no definite, evidence as to the nature and quality of the property left as available to the creditors after the impugned alienation, and though light on this could have been thrown by the 4th defendant being called as a witness, the plaintiff did not choose to take the step, nor indeed did ' he even summon the production of the accounts of the firm which might have disclosed the true state of affairs. Each of these circumstances might be capable of some explanation consistent with the case that the transfer now impugned was effected in the normal and ordinary course of business by the 4th defendant for some purpose which did not involve an intention to defeat or delay his creditors, but the question we have to consider is their cumulative effect and so viewed the conclusion appears irresistible that the object of the transaction was to put the property out of the reach of the creditors. The transfer was therefore plainly within the terms of the 1st paragraph of section 53 (1) of the and was voidable at the instance of the 1st defendant who was a decree creditor. The next question is whether the plaintiff is a bona fide purchaser for value so as to be protected by the second paragraph of section 53 (1) reading : "Nothing in this section impairs the rights of the transferee in good faith and for consideration. As stated earlier, the learned trial judge held that the Rs. 19,000/ , the sale price was the full value of 71 the property and that the consideration as recited in the document was paid by the purchaser. This finding has not been set aside by the High Court. We are, therefore, proceeding on the basis that the Transfer was real and supported by consideration. The narrow question is whether the plaintiff was a transferee in good faith. It was submitted on behalf of the appellant that the learned judges of the High Court had directed the dismissal of the plaintiff 's suit even without a definite finding that the plaintiff was a party to the fraud on the part of the transferor to defeat or delay the creditors. There might be some force in this submission that there is no specific finding to that effect but that does not in any way assist the appellant. Where fraud on the part of the transferor is established i. e. by the terms of paragraph (i) of section 53(1) being satisfied, the burden of proving that the transferee fell within the exception is upon him and in order to succeed he must establish that he was not a party to the design of the transferor and that he did not share the intention with which the transfer had been effected but that he took the sale honestly believing that the transfer was in the ordinary and normal course of business. When once the conclusion is reached that the transfer was effected with the intent on the part of the transferor to convert the property into cash so as to defeat or delay his creditors, there cannot be any doubt on the evidence on record that the plaintiff shared that intent. For this purpose the following circumstances may be pointed out (1) The plaintiff and the vendor belong to the same community, a small, compact and well knit one and they must obviously have known each other having been in trade for several years in several places in common and must therefore have been wellacquainted with the financial and business affairs of each other. 72 (2) This general inference apart, the plaintiff admittedly had with him a copy of the deed of dissolution dated March 31, 1949, which disclosed that the firm 's business had resulted in losses and that it was greatly indebted, the debts amounting to Rs. 2 1/2 lakhs. (3) If as we have held that registration of the sale deed at Madras was with a view to keep the transaction secret from the creditors, the plaintiff was, as much a party to the secrecy as the transferor. (4) One matter which would be of considerable relevance and significance in this connections would be the enquiries that the plaintiff made before he took the transfer. He no doubt led evidence to show that he consulted his lawyers about the title of the vendor; but any attempt at an enquiry of the 4th defendant as to why he was effecting the sale of the only immovable property of the firm which was alloted to him under the deed of dissolution is significantly absent. In the circumstances, it stands to reason that; the plaintiff must be fixed with notice of the design in pursuance of which the transfer was effected. If the object of a transferor who is heavily indebted was to convert his immovable property into cash for keeping it away from his creditors and knowing it the transferor helped him to achieve that purpose it has naturally to be held that he shared that intention and was himself a party to the fraud. In this connection, there is one circumstance which is rather significant. Even when the plaintiff was fixed with notice that the firm 's business had been running at a loss and had accumulated a very large volume of debts as disclosed by the recitals in the deed of dissolution, which was placed in his hands, the purchaser did not insist that the consideration which he was paying should be utilised for the discharge of at least some 73 of the debts. We are therefore satisfied that the Plaintiff was not a transferee in good faith and that the transfer itself was a scheme by the transferor with the knowledge and concurrence of the transferee to put the property out of the reach of the creditors The result therefore would be that the plaintiffs suit, was liable, to be dismissed for the reason that the defence plea invoking section 53 (1) of the was made out. What remains for consideration is a ;point of law that was raised on behalf of the appellant that a transfer which is voidable under section 53 (1) of the can be avoided only by: a suit, filed by a creditor impugning the transfer on behalf of himself and the other creditors and not byway of defence to a suit under O. 21,. r. 63, Code of Civil Procedure by a claimant whose application has been rejected in summary proceedings under O. 21, rr. 58, to 61, Code of Civil Procedure. Section 53 (1) of the , as it stands at presented is, as amended by the Transfer of Property (Amendment) Act (Act 20 of 1929). As part of the argument on this head was based on a comparison of the provisions of the section before and after the same was amended, we shall set out in parallel, columns section 53 (1) as it stood before it was. amended in 1929 and as it stands as amended section 53(1);as it stood before section 53 (1) as it stands the Amending Act, 1929 after the Amending Act, 1929 "Every transfer of "Every transfer of immov immovable property able property made with made with intent to de,, intent to defeat or delay fraud prior or subsequent the creditors of 1 the 74. section 53 (1) as it stood before section 53 (1) as it standsafter the Ameding Act, 1929. transferees thereof for consideration or coowners or other persons having an interest in such property or to defeat or delay the creditors of the transferor, is voidable at the option of any person so defrauded or delayed. Where the effect of any transfer of immovable property is to defraud, defeat or delay any such person, and such transfer is made gratuitously or for a grossly inadequate con sideration, the transfer may be presumed to have been made with such intent as aforesaid. Nothing contained in this section shall impair the rights of any transferee in good faith and for consideration." after the Amending Act, 11929. transferor shall be voidable at the option of any creditor so defeated or delayed. Nothing in this sub section shall impair the rights of a transferee in good faith and for consideration. Nothing in this subsection shall affect any law for the time being in force relating to insolvency. A suit instituted by a creditor (which term includes a decree holder whether he has or has not applied fore execution of his decree) to avoid a transfer on the ground that it has been made with intent to defeat or delay the creditors of the transferor, shall be instituted on behalf of, or for the benefit of, all the creditors. " Two points were made by the learned Counsel in support of this submission; the first being independent of the amendment effected by the Act of 1929 75 and the other based on the provision as amended. The former was based on the impact of the nature G. of the proceedings under O. 21, rr. 58 to 61, Code of Civil Procedure, and of the order that would be passed therein and particularly of the questions that would arise in a suit under O. 21, r. 63, Code of Civil Procedure, to set aside summary orders; while the latter was based on the amendment by which a creditor 's suit was required to be in a representative capacity. It would be seen that so far as the first point was concerned, the amendment made no change and that if the learned Counsel were right the position would have been the same even on the section as it stood before it was amended. It was conceded that on the section as it stood prior to the amendment, there was a direct decision against this argument, of a Full Bench of five 6 judges of the Madras High Court as early as 1920 (Ramaswami Chettiar vs Mallappa Reddiar (1) which had been consistently followed by every other High Court in India up to this date without any doubt or dissent. Gleamed Counsel however urged that this Court was not precluded from considering the correctness of this decision notwithstanding its having held the field for over forty years without question, As a legal proposition, Counsel is undoubtedly right, but the question is whether any reasons have been adduced before us to consider that decision was wrong. We shall be presently setting out the reasoning on which it is contended that an attaching creditor who has succeeded in the summary proceedings under O. XXI, rr. 58 to 61, cannot, in a suit to set aside the summary order under O. XXI, r. 63, raise by way of defence the plea that the sale in favour of the plaintiff the transferee claimant is vitiated by fraud under section 53(1) of the , but (1) Mad. 760 76 before doing so it is necessary to point out that this very argument was urged before the Full Bench referred to and after elaborate consideration, rejected by them, Now the argument as regards the inference to be drawn from the nature of the enquiry in the summary proceedings for investigating. claims to property which has been attached is briefly as follows:: s 53 of the assumes that there, is a real transfer intended to pass title to the transferee but that the transfer is vitiated by fraud which renders it voidable. In the summary proceedings under O. XXI, rr. 58 to 61, having regard to the terms of r. 61, the Court is concerned only with the question as to whether the transferee is in possession of the property in his own right and not on behalf of the judgment debtor, when a transfer is real, though it is liable to be impeached as a fraud on creditors, and the tranferee has entered into possession, he would succeed in the summary proceedings, with the result that it is the defeated attaching 'creditor who would have to figure as a plaintiffq If he figures as a plaintiff the suit would have to be in a representative capacity, that is, under O. 1, r. 8, Code of Civil Procedure. In every case, therefore, when a transfer is real but is liable to be set aside under section 53 (1) on the provisions of O. XXI, rr. 58 to 61, Code of Civil Procedure,the transferee is bound to succeed in the summary proceedings and the attaching decree holder would have to figure as a plaintiff and the suit would be a representative suit. From this it is said that it follows that in no case can an attaching creditor who defends a suit to set aside a summary order in 'his favour resist it on the plea of fraud under section 53(1). It would however be seen that, this last step, which is vital for the argument to have force does not follow for the argument does not proceed on any construction of the terms of section 53(1) nor on any legal 77 theory as to the mode or procedure ,by which; the intention to avoid the transaction which the attaching creditor claims is voidable at his instance may be expressed or enforced. The argument would only establish that if the Court investigating claims under O. XXI. r. 58 etc., conformed strictly to the terms of those provision is the transferee under a real sale would succeed in those proceedings and, he would be a defendant and need 'not be a plaintiff in suits to set aside the summary order under O. XXI, r. 63. This line of reasoning does not take into account at least the following possibilities: (1) The claim or objection by the transferee may be rejected, not on :the merits, but because it has been designedly or unnecessarily delayed (vide O. XXI, r. 58, Code of Civil Procedure). It is certainly not the contention of learned Counsel that when there is a rejection of a transferee 's claim under this provision the order of rejection is any the less final and has not to be set aside by a suit contemplated by O. XXI, r. 63, Code of Civil Procedure, in order to overcome the effect of that finality. (2) The Court making the summary enquiry might come to an erroneous conclusion that the transfer is sham and not real or that the transferee is in possession for the benefit of the judgmentdebtor. In the suit filed by the transferee to set aside ' this erroneous order, the plaintiff would have to establish his title and even if he succeeds in showing that the sale to him was real and effective, still the question would remain whether, having regard to the circumstances of the transfer, the same is not voidable under section 53(1). Thus there would be occasions when a defeated transferee whose transfer is real might have to figure as a plaintiff in a suit to set aside a summary order under O. 21, r. 63, Code of Civil Procedure. (3) The attaching decree holder might raise in the summary proceedings two alternative defenses to a transferee 's claim (a) that the sale was sham and nominal and therefore the possession 78 of the transferee was really on behalf of the judgment debtor, and (b) that even if the sale be real and intended to pastitle it was voidable as a fraud on creditors. It is, no doubt, true that the second or the alternative defence is not open in the claim proceedings, but if however the same were erroneously entertained and an order passed, rejecting the claim of the transferee, the same would nevertheless be an order which would have to be set aside by a suit by the defeated transferee and he cannot ignore it. It would thus be seen that the entire argument as regards the impact of the nature of the enquiry under O. 21, r. 59,on the defences which would be open in a suit under O. 21, r. 63, depends on two factors: (1) the summary order being passed on the merits and not because the making of the claim was designedly or unnecessarily delayed, and (2) the summary order being right on the merits and strictly in conformity to the provisions of the Code. As we have already pointed out, the points urged before us as regards the scope of the enquiry into claim petitions was also the subject of elaborate argument and consideration by the learned judges of the Madras High Court in the Full Bench. Sadasiva Ayyar, J., classified the cases of transferees who failed in their claim petitions and had to file suits to set aside summary orders under O. 21, r. 63, under three heads : (a) Where the transferee was a mere benamidar; (b) Where he was a fraudulent transferee in possession; and (c) Where he was a fraudulent transferee not in possession. The learned Judge said : "A creditor decree holder, who is in most cases a stranger, cannot reasonably be expected to know of his own knowledge whether a transfer 79 by his judgment debtor is only fraudulent or is wholly nominal or partly nominal and partly fraudulent, and whether the transferee is in possession and if in possession, whether he is so for him self or for the judgment debtor. He would therefore ' usually both in the claimpetition and in the suit which afterwards arises out of the order against the claimant, be obliged to raise and be justified in raising alternatively all the pleas open to him, and the Court which decided the claim against the claimant might, in its conclusions on each of the three points, be either right or wrong." He further pertinently pointed out that to hold that a plea based on the transfer being voidable under section 53(1) could not be raised in defence to a suit to set aside a summary order would mean that " 'The creditor decree holder would be in a much worse position for his success in the summary claim proceedings than if he had lost in those proceedings". Section 53(1) of the rendered the transaction voidable at the instance of the creditors if the transfer was effected with the particular intent specified and the statute does not prescribe any particular method of avoidance. Referring to this the learned judges observed : "If the creditor knowing of the transfer applies for attachment; the application is sufficient evidence of his intention to avoid it; if he only hears of the transfer when a claim petition is preferred under O. 21, r. 58, and still maintains his right to attach, that again is a sufficient. exercise of his option to avoid and entitles him to succeed in the subsequent suit under r. 63". They further pointed out that "the suit under r. 63 is by the unsuccessful party to the claim petition to establish the 80 right which he claims to the property in dis pute. Whether this suit be instituted by the attaching decree holder or by the transferee claimant it must equally be decided in favour of the former if the transfer is shown to have been fraudulent; because, in consequence of the fraudulent character of the transfer and its avoidance by the judgment creditor, the result ,is that the transfere has not the right which he claims, namely, to hold the property free from attachment in execution by the judgments." The learned judges based their conclusion on this and on several other lines of reasons which we consider unnecessary to set out, but it is sufficient to say that we are enentire agreement with all of them. There is therefore no substance in the point ;that there is anything in section 53(1) as it originally stood which precluded a defence by an attaching creditor to a suit to set aside a summary order under O. 21, r. 63, that the: sale in favour of the plaintiff is vitiated by fraud of the type specified in the earlier quoted pro vision and the amendment has admittedly made no change in this matter. It was next urged that the third paragraph of the amended section 53 (1) has, effected a change in the law and that thereafter transfers voidable under 1st paragraph of section 53 (1) could be avoided only in suits filed by a defeated or delved creditor as plaintiff suing on behalf of himself and other creditors. We consider that there is no substance in this objection either. We shall first refer to the purpose of the amendment. In decisions rendered prior to the amendment, there were a large number in which it was held, following certain English cases decided with reference to 13 Eliz., Ch. 5, on which section 53(1) was based, 81 that suits by creditors for avoiding a transfer under section 53 (1) was a representative action. To that general rule however, an exception was recognised in a number of ' decisions when the suit was to set aside a summary order under O. 21. r. 63, and was brought by an attaching decree holder against whom an adverse order had been made in the summary proceedings, it being held that such a suit need not be in a representative capacity. The decisions on this point were however not uniform. It was merely to have a uniform rule and to avoid these conflicting decisions that the third paragraph was inserted so that after the amendment the rule that a suit by a creditor should be brought in a representative capacity would apply as much to a suit set aside a summary order under O. 21, r. 63, as to other suits. It was not suggested that there was anything in the terms of the amended section 53 (1) which referred to a defence to a suit and, in fact, learned Counsel did not contend that if a defence under section 53 (1) could be raised by defeated attaching creditor such a defence had to be in a representative capacity, and we consider that learned Counsel was correct in this submission. From a provision as to how a plaintiff, if he filed a suit, should frame it, we can see no logical process by which it could be held that a defendant cannot impugn the validity of the sale which is voidable at his instance. We have, therefore, no hesitation in rejecting the legal point urged on behalf of the appellant. The result is that the appeal fails and is dismissed with costs.

IN-Abs

The appellant purchased the suit property under a sale deed executed by defendant 4 on May 20, 1949. Defendants 3 and 4 had been doing business in partnership, which, how. ever, was dissolved on March 31, 1949. The deed of dissolution showed that the partnership owed debts to the extent of Rs. 2 1/2 lakhs and that the suit property was allotted to defendant 4. The first respondent to whom money was due from the partnership obtained a decree on june 19, 1951, and had the suit property attached. The appellant filed a claim petition for raising the attachment but it was dismissed. He then instituted a suit to set aside the summary order under O. 21, r. 63, of the Code of Civil Procedure. The first respondent 's defence, inter alia, was that the sale was fraudulent intended to defeat or delay. creditors and, therefore, was invalid under section 53 (1) of the . The appellant pleaded that on a proper construction of section 53 (1) of the Act, a transfer which was voidable under the section could be avoided only by a representative suit filed on behalf of creditors and not by an individual creditor by way of defence to a suit to set aside a claim order. The evidence in the case showed that the appellant was not a transferee in good faith and that the transferor itself was a scheme by the transferor with the knowledge and concurrence of the transferee to put the property out of the reach of the creditors. Held : (1) that section 53 (1) of the , rendered a transaction voidable at the instance of the creditors if the transfer was effected with the particular intent specified and that the statute did not prescribe any particular method of avoidance. There was nothing in section 53 (1), as 56 it originally stood before the amendment of the section in 1929, which precluded a defence by an attaching creditor to a suit to set aside a summary order under O. 2 1, r. 63, Code of Civil Procedure, that the sale in favour of the plaintiff was vitiated by fraud ; and the amendment made no change in this matter. (2) that it was merely to have a uniform rule and to avoid conflicting decisions that the third paragraph was inserted in section 53 (1) so that after the amendment, the rule that a suit by a creditor should be brought in a representative capacity would apply as much to a suit to set aside a summary order under O. 21, r. 63, as to other suits. (3) that the terms of section 53 (1) were satisfied even if the transfer did not "defeat" but only "delayed" the creditors. The fact that the entirety of the debtor 's property was not sold could not by itself negative the applicability of the section unless it was proved that there was other property left, sufficient in value and of easy availability to render the alienation in question immaterial for the creditors. Ramaswami Chettiar vs Mallappa Reddiar, Mad., 760, approved.

Appeal No. 176 of 1960. Appeal from the judgment and decree dated June 2, 1958, of the Mysore High Court in R. A. No. 268 of 1957. section K. Javali, K. P. Bhat and B. R. L. Iyengar, for the appellants. section K. Venkataranga Iyengar and R. Gopalakrishnan, for the respondents. November 14. The judgment of the Court was delivered by AYYANGAR, J. On March 27, 1954, the three Kapurs who are the respondents before us filed original Suit No. 29 of 1954 before the District 48 judge Banglore, against the 3 appellants who are brothers for the recovery of over Rs. 50,000/ and subsequent interest and costs due on a simple mortgage. Before the suit came on for trial the parties filed a memo of compromise dated September 30, 1955 and they prayed that the suit may decreed in terms there of The Court accepted the application and passed a decree as prayed for the order reading "It is ordered and decreed that the plaintiff 's suit be and the same is hereby decreed as per terms of the compromise, the copy of which is hereunto annexed". The terms of the Razinama ran as follows "1. That the defendants herein agree to a decree being passed as prayed for. That the mortgaged properties are hereby sold for the amount of the decree in full satisfaction thereof. The defendants will execute a regular sale and within ten days from this date. That the mortgaged properties are hereby put in possession of the plaintiff (decree holder) by the 3rd, defendant (judgment debtor) and judgment debtors 1 & 2 agreeing to pay rent at Rs. 75 each for the two shops bearing Nos. 12 and 14 respectively, Godown Street, Bangalore City in their actual occupation and by attornment of the other properties in the occupation of the other tenants. That on the judgment debtors or their nominees tendering the aforesaid decree amount through court or otherwise within the aforesaid one year from the date of 49 the decree, the decrce holders bind themselves to reconvey the properties which are sold to them under this rajinama at their cost provided it is distinctly agreed that time is essence of the contract and provided also that if the judgment debtors default in paying the rents as aforesaid on or before the 15th of any month they will lose the concession hereby offered to thee of having reconveyance of 'the properties in one years ' time. Attachment on the properties belonging to the 2nd 'and 3rd defendants obtained before judgment stands hereby raised. The defendants hereby assure that the properties hereby sold are not subject to any attachment. In ; the event of any attachment subsisting on the properties, it is hereby agreed that the mortgage security shall not be merged by the sale. " Broadly stated, the question raised in this appeal relates to the executability of cl. 2 of this compromise decree but before examining this contention it is necessary to state a few ' facts. It would be noticed that under the second sentence of cl. 2 the appellants had to execute a regular sale deed within ten days from September 30, 1955. They, however, did not do so and thereupon the respondents filed, on ;October 31, 1955, Interlocutory application No. 6 of 1955 (later numbered as Execution Application No. 83 of 1956) for directing the appellants to 'execute the sale deed and they annexed to their application a draft sale deed in which cls. 3 to 6 of the razmama were recited. Apparently there were disputes between the parties ' each accusing the other :that it had not conformed to its undertaking under :the compromise, but with these we are not now 50 concerned. Thereafter the appellants filed an application in the suit on March 16, 1956, praying that a sale deed might be executed in favour of a third party to the proceedings who had agreed to purchase the property on terms of paying the full decree amount as provided for by cl. 4 of the Razinama. This application was opposed by the respondents and there were further applications of a similar type which it is not necessary to detail except to point out that they all proceeded on the basis that the compromise decree was capable of execution without any necessity for a further suit. The appellants did not succeed in these applications. It is sufficient if hereafter attention were confined to the application by the respondents E. A. 83 of 1956 by which they sought to get the appellants to execute a sale deed in their favour in accordance with the opening sentence of cl. 2 of the compromise. The appellants opposed this application on the technical ground that the relief sought could not be had in execution but only by a separate suit in as much as the same did not ""relate to the suit" within O. XXIII, r. 3, Code of Civil Procedure, to whose terms we shall refer presently. This objection was upheld by the learned District judge of Bangalore and the prayer of the respondents for directing the appellants to execute a sale deed in their favour was rejected. This order has been reversed by the learned judges of the High Court on appeal by the respondents and it is the correctness 'of this judgment that is canvassed in this appeal which comes before us on a certificate of fitness granted by the High Court under article 133 (1)(a) of the Constitution. It would be seen from this narration that the point involved in the appeal is very narrow and turns on the question whether the High Court was justified in directing the appellants to execute a sale deed conveying the suit properties to the respondents in the proceedings in execution of the decree in original 51 suit No. 29 of 1954 or whether the respondents could obtain that relief only in an independent suit instituted for that purpose. It is common ground that the decree embodied the entire razinama including all its terms. The relevant statutory provision for the passing of decrees by compromise is O. XXIII, r. 3, Code of Civil Procedure, which runs: "Where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise, or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject matter of the suit, the Court shall order such agreement, compromise or satisfaction to be recorded and shall pass a decree in accordance therewith, so far as it relates to the suit. " We do not having regard to the facts of this case, consider it necessary to examine the position whether, when a decree has been passed embodying all the terms as part of the decree, an objection as to the executability of any particular term could be raised in execution proceedings, but shall proceed on the basis that it could be. There is no dispute that the agreement was lawful and an executable decree could be passed "so far as it related to the suit". Though in the courts below most of the argument turned on the import of the expression "so far as it relates to the suit" occurring in r. 3, learned Counsel for the appellants did not stress that contention before us, but rather on the construction of the several clauses of the compromise and their inter relation to which we shall advert presently. We might, however, point out that the learned Judges were right in the view they took that the. terms of the compromise " related" to the suit. The property which was to be conveyed consisted entirely of property included in the mortgage and which was therefore liable to be sold in execution of the mortgage decree which was 52 the relief sought in the plaint. The sale Price for the conveyance under the. Razinama was the sum for the recovery of which the suit was laid. There was therefore nothing which was outside the scope of the suit. Besides all this the conveyance was the consideration 'for the compromise. In these circumstances, it is not a matter for surprise that learned Counsel for the appellants laid little emphasis on the point which persuaded the teamed District judge to dis miss the respondents application. Learned Counsel for the appellants however raised before us two contentions in the alternative. His first and primary contention was that on a proper construction of the compromise, the consideration there for was not the actual execution of the conveyance by the judgment debtor to the decree holder but merely the argument to execute such a conveyance. He pointed out that under cl. 1 of the compromise the defendants had agreed to a decree being passed as ,prayed for, which meant that a mortgage decree drawn up in the usual form had to be passed. That decree, it was submitted, was under the compromise agreed to be treated as satisfied and full satisfaction to be recorded immediately on the filing of the 'compromise, and he suggested that the opening words in cl. 2 ',The mortgaged properties are hereby sold ,for the amount of the decree in full satisfaction thereof" was a reference to the agreement to execute the conveyance. There were other clauses in the compromise 'cls. 3 to 6 but these,he submitted, related ,to the inter se rights between the parties. The contention was that these other clauses of the razinama including the second limb of cl. 2 were intended to be enforced or implemented not by way of execution of the decree in this suit but that the decree to be passed under cl. 1 was to be treated as fully satisfied on the filing into court of the memo of compromise and the same being recorded by the court with the result that thereafter no portion of the 53 decree remained alive. We find ourselves wholly unable to accept this argument. No doubt. under cl 1 there, was to be a simple mortgage decree as prayed for in the suit, but it would, however, not be a proper construction of the 1st sentence of cl. 2 to say that the mere agreement to, convey and not an actual conveyance was intended to operate as a satisfaction of the decree passed or to be passed under cl. 1. Learned Counsel is, no doubt, 'right in his submission that the sale of ' the property to the decree holders under cl. 2 was not to be absolute in the sense of conferring a right to an unconditional conveyance since the title to be obtained under the sale was subject to the conditions contained in cls. 3 ,to 6 and particularly cl. 4 under which it was stipulated that the title to the property might,, on the happening of certain contingencies, be divested from decree: holders to whom it had been conveyed under cl. 2. In that sense cls. 2 to 6 might constitute an integrated scheme for adjusting the rights of parties but on that account it would not be open to the construction that the mere agreement to convey contained in cl. 2 (subject to the conditions stipulated in cls. 3 to 6) by itself amounted to a satisfaction of the decree. The other submission of learned Counsel was that the learned judges should not have directed the execution of a conveyance in favour of the respondents without attaching to it the conditions laid down in cls. 3 to 6 and also without an examination of the question whether the appellants were entitled to enforce the reconveyance provided by those clauses. On this matter the learned Judges expressed themselves thus: "The decree holder is entitled to execute the decree in respect of clause 2 of the compromise. No opinion is expressed as to the executability 54 of the other clauses of the compromise as that question has not been raised before us. " The fact, therefore, was that this point about either the inter relation between cl. 2 on the one hand and cls. 3 to 6 on the other or the contention of the appellants that they were entitled to relief under cls. 3 to 6 was not raised before the High Court and the matter was therefore left open. The appellants can in the circumstances obviously have no cause for complaint that the High Court did not deal with it. The question as to whether the appellants are entitled to relief under cls. 3 to 6 or whether they had lost their right to do so, is one which would have to be investigated on facts and cannot therefore be urged before us. We do not, therefore, propose to pronounce upon it either. It would, of course, be open to the appellants to agitate their rights in appropriate proceeding if they are 'so advised. No other point has been urged before us. The appeal fails and is dismissed with costs. Appeal dismissed.

IN-Abs

A suit instituted by the respondents for the recovery of money due under a simple mortgage from the appellants was compromised by the parties under a memo dated September 30, 1955, and the court passed a decree as per the terms of the compromise By cl. 1 of the memo the defendants agreed to a 47 decree being passed as prayed for in the suit, while cl. 2 recited: "That the mortgaged properties are hereby sold for the amount of the decree in full satisfaction thereof The defendants will execute a regular sale and within ten days from this date. " The appellants did not comply with the terms of cl. 2 and on October 31, 1955, the respondents made an application before the court praying that the appellants might be directed to excecute a sale deed as per the terms of the compromise. The appellants pleaded that the relief sought by the respondents could not be had in execution proceedings but only by a separate suit, on the grounds, inter alia, that the same did not relate to the suit within O. 23, r. 3, of the Code of Civil Procedure, and that, in any case, on a proper construction of the compromise the consideration therefore was not the actual execution of the conveyance by the judgment debtor but merely the agreement to execute such a conveyance. Held : (1) that the terms of the compromise related to the suit inasmuch as the property which was to be conveyed consisted entirely of the property included in the mortgage. (2) that on the true construction of the compromise, though cls. 2 to 6 might constitute an integrated scheme for adjusting the rights of parties, a mere agreement to convey contained in cl. 2 by itself did not amount to a satisfaction of the decree and that the consideration for the compromise was the execution of a conveyance.

riminal Appeals Nos. 11 3, 114 and 190 of 6 1. Appeals by special leave from the judgment and order dated June 16, 1961, of the Bombay High Court in Criminal Revision Applications Nos. 305 and 345 of 1961. J. C. Bhatt, J. B. Dadachanji, 0. C. Mathur and Ravinder Narain, for the appellants (in Cr. A. No. 113161) and respondents Nos. 1 to 4 (in Cr. A. No. 190 of 1961). K.R. Chaudhuri, for the appellant (in Cr. A. No. 114/61) and respondent No. 5 (in Cr. A. No. 190 /61). 341 H. R. Khanna and R. H. Dhebar, for the respondents (Cr. A. Nos. 113 and 114161) and appellant (in Cr. A. No. 190/61). November 21. DAYAL,J. These three appeals, by special leave, arise out of a criminal case pending in the Court of the Special judge, Poona, against the appellants in Criminal Appeals Nos. 113 and 114. Banwari Lal Jhunjhunwala and Champalal Jhunjhunwala, appellants Nos. 1 and 2 in Criminal Appeal No. 113 of 1961, are partners in a Firm named Shreeram Ramniranjan. The other two appellants, I. R. Oza and Gajraj Tiwari are the employees of the firm. V. A. Thomson, appellant in Criminal Appeal 114 of 1961, was Assistant Works Manager (Timber Inspection ), Central Railways, Matunga, Bombay, at the relevant time. The aforesaid firm entered into a contract with the Director General of Supplies and, Disposals, New Delhi, in 1955, for the supply of 1306.5 tons of bottom boards for railway wagons of certain specified varieties of hard wood, to the Central Railway Administration. The total cost for the entire supply was Rs. 3,99,556 8 0. The wood was to be supplied at three places in different quantities. 630 tons were to be consigned to the District Controller of Stores, C. W. E., Matunga, Bombay, 26 1/2 tons were to be supplied to the Assistant Controller of Stores, Lallaguda and 650 tons were to be supplied to the Assistant Controller of stores, Jhansi. Prior to the supply, the wood was to be inspected by the Chief Engineer (Sleeper Passing Branch), Southern Railway, Madras, or an officer acting for him, and the places of inspection were Kallayi, Mangalore and Vallapatnam. The first and the last of the places 342 were in the Kerala State. The payments were to be made by the Pay and Accounts Officer, Ministry of Works, Housing and Supply, New Delhi. The procedure to be followed in obtaining the payment was as follows. Immediately after despatch, the Constractor could submit his bill and claim 90% of the price. Along with the bill he had to attach the first copy of the inspection note. The balance, viz., 10% of the price, was paid later when two further copies of the inspection note and certain other documents had to be submitted. Subsequent to the acceptance of the tender, the District Controller of Stores. , Central Railways, C. W. E. Depot., Matunga, was also added as the Inspection Authority and Inspection Officer, for the wood to be supplied to D. C. 0. section Matunga. Still later, the Chief Mechanical Engineer, Central Railways, Bombay, was made the Inspection Authority and the Assistant Works Manager, Timber Inspection, C. W. E. Central Railways, Matunga, Bombay, was named as the Inspecting Officer. The places of Inspection were also changed to Bombay, Calicut and Baliapatam. The period of contract was also extended and the total cost of wood to be supplied was Rs. 4,08,741/ . The prosecution allegation is that the wood actually supplied was of interior quality, that Thomson and other officers issued false inspection notes certifying the quality of the wood to be per specification and on the basis of these false inspection notes the aforesaid Firm received payment of Rs. 3,77,771/ from the Pay and Accounts Officer in the Ministry of Works, Housing and Supply, Government of India. The case against the accused appellants was first sent up to the Court of the Special judge in 343 Kerala. He framed six charges against the accused. Charge No. 1 was framed against all the accused and was for an offence under section 120 B I. P. C. Charge No. 2 was against the two partners of the Firm for an offence under section 420 I. P. C. Charges Nos. 3 and 4 were against the two employee appellants, for an offence under section 420 read with section 109 1. P. C. Charge No. 5 for a similar offence was against Thomson. Charge No. 6 was against Thomson for an offence under section 5(1)(d) read with section 5(2) of the Prevention of Corruption Act. The second charge for the offence under section 420 I. P. C. was with respect to the Firm obtaining Rs. 1,41,309/ for the supply of 521 tons of timber. Charge No. 6 stated that Thomson abused his position as a public servant and obtained for the partner appellants, on behalf of the Firm, pecuniary advantage. This Court transferred the case from the Court of the Special judge, Kerala, to the Court of the Special judge, Poona. The Special judge, Poona, amended the charges and also added a 7th charge against the four appellants connected with the firm for abetting Thomson in his committing the offence under section 5(1)(d) read with section 5(2) of the Prevention of the Corruption Act. Charge No. 2 was amended to the effect that the amended charge referred to the supply of the entire quantity of wood, i.e. 13061 tons of wood and to the receipt of Rs. 3,77,771 / . Charge No. 6 was amended, inter alia, to the effect that Thomson, by abusing his position as public servant obtained advantage for himself from the partners of the firm. The accused appellants went in revision to the High Court of Bombay and questioned the legality or propriety of the various charges. The High Court ordered certain minor modifications in the charges, with which we are not concerned and restricted charge No. 2 to the supply of 521 tons of wood and to the receipt of Rs. 1,41,3091 in accordance with the charge originally framed by the 344 Special judge, Kerala, as the Kerala Court did not have jurisdiction to try the offence committed in respect of the supply of wood to places outside its jurisdiction. The Union of India has filed Criminal Appeal No. 190 of 1961 against the High Court 's order restricting the charge No. 2 to the supply of 521 tons of wood and to the receipt of Rs. 1,41,309/ odd. The relevant part of the main charge of conspiracy against all the accused may now be quoted: "That you all between, July 1955 and September 1956 at Bombay Baliapatam, Kannanore, Calicut, Ferok, Kallayi entered into conspiracy, by agreeing among yourselves to commit illegal acts and/or acts by illegal means, to wit, to supply in fulfilment of the contract bottom boards ' in inferior jungle wood and not in the species of Aine, Kalpine and Haldu, as agreed to supply as per contract and tender., referred to above, to have th e said bottom boards fraudulently passed by accused No. 5, by abusing his position as public servant by corrupt and illegal means to get false inspection notes and certificates from accused No. 5 and others to the effect that the bottom boards were of the species of Aine, Kalpine and Haldu as per species and specifications detailed in the said contract, when to your knowledge they were not, but were of inferior jungle wood and which inspection notes and certificates were issued by accused No. 5 by abusing his position as public servant by corrupt and illegal means to obtain pecuniary advantage for himself and for others i.e., accused Nos. 1 and 2; to induce the Assistant Pay and Accounts Officer in the Ministry of Works, Housing and Supply to part with a sum of Rs. 3,77,771/ as value 345 thereof, by claiming in bills, supported with inspection notes. which acts amount to offence punishable under sections 420/109 of the Indian Penal Code and section 5(2) of the Prevention of Corruption Act, 1947, and thereby committed an offence punishable under section 120 B of the Indian Penal Code. . It is contended for the appellants in appeal No. 113 of 1961 that the obtaining of money by submitting each separate bill amounted to one distinct offence for which a separate charge should have been framed in view of section 233 of the Code of Criminal Procedure and that the charge as framed is a combination of a number of charges with respect to several offences of cheating committed by obtaining money on the presentation of eighteen or nineteen bills and was therefore against the provisions of section 233 of the Code. It is also contended that the charge for cheating should have been framed against that particular accused who had submitted the bill and obtained money. The High Court considered these objections and held that a schedule giving the details of each item of cheating would sufficiently meet the require ments of law and that the bills were presumably signed by the Firm just as the forwarding letters were and that therefore both the partners could be properly charged for the offence of cheating. The cheating was in pursuance of the conspiracy entered into between the various accused. The salient features of the conspiracy were that in pursuance of the contract for the supply of 1360 1/2 tons of specified wood, inferior wood be supplied and that for the success of the scheme false inspection certificates be obtained from the Inspecting Officers and that such false inspection notes should accompany the bills purporting to be for the supply of wood per specifications. The object of the conspiracy was to .obtain the full contract price from the Government 346 on supplying material inferior in quality from that undertaken to be supplied under he contract. Naturally, the entire supply could not be made at the same time even if it was to be made at one place. Actually the supply was to be made at three places. The wood inspected at a particular place of inspection could be distributed to the various places of supply. The bills could be for the supply made at the particular time by the Firm to one place alone or to places more than one. It is therefore obvious that the conspiracy entered into by the appellants was not for obtaining diverse amounts by cheating but to obtain the entire contract money by cheating. This circumstance justifies the conclusion that the offence of cheating contemplated by the conspirators was one offence and that was of obtaining, by cheating, the full amount due under the contract for the material supplied. The charge framed for the offence under section 420 does not contravene section 233 of the Code. There is another way of looking at the same question. The obtaining. of money for each bill supported by false inspection note, amounted to the offence of cheating in pursuance of the conspiracy. All such individual offences on the basis 'of the various bills, were of the same kind as the single offence of obtaining the total amount as a result of the presentation of the various bills and, in view of section 71. I. P. C., the accused could not be punished for more than one of such offences it being provided that "where anything which is an offence is made up of parts any of which is itself an offence, the offender shall not be punished for more than one such offence unless it be so expressly provided '. Illustration (a) explains this provision and is : "A gives Z fifty strokes with a stick. Here A may have committed the offence of voluntarily causing hurt to Z by the whole beating, and 347 also by each of the blows which make up the whole beating. If A were liable to punishment for every blow, he might be imprisoned for fifty years, one for each blow. But he is liable only to one punishment for the whole beating". It is to be noted that the whole beating is considered to constitute one offence while each of the blows also amounted to the offence of voluntarily causing hurt. It can be said, therefore, that while the obtaining of money by cheating on the presentation of an individual bill did constitute the offence of cheating, the obtaining of the entire money in pursuance of the terms of the single contract and the single conspiracy entered into also constituted the offence of cheating. When the accused could not be punished with the punishment for more than one such offence, it cannot be the intention of law that the accused be charged with each of the offences which were in a way included in the complete offence made up by the entire course of conduct of the accused in pursuance of the conspiracy. Section 233 Cr. P.C. reads "For every distinct offence of which any per son is accused there shall be a separat e charge, and every such charge shall be tried separately, except in the cases mentioned in sections 234, 235, 236, and 239." The expression 'every distinct offence ' must have a different content from the expression 'every offence ' or "each offence '. A separate charge is required for every distinct offence and not necessarily ' for each separate offence. The question is, what is meant by 'every distinct offence ' ? 'Distinct ' means "not identical. ' It stresses characteristics that distinguish while the word 348 separate ' would stress the 'two things not being the same. ' Two offences would be distinct if they be not in any way inter related. If there be some interrelation, there would be no distinctness and it would depend on the circumstances of the case in which the offences were committed whether there be separate charges for those offences or not. Such a view has been the basis of certain decisions by the High Courts and this Court. In Chunnoo V. State (1) Kidwai J., said atop. 797: "The use of the word "distinct ' is great significance and the Legislature having inserted it, we must, so far as possible, give it a meaning and not treat it as redundant. "Every distinct offence ' cannot be treated as having the same meaning as 'every offence ' The only meaning that the word "distinct ' can have in the context in which it occurs is to, indicate that there should be no connection between the various acts which give rise to criminal liability. If there is such a connection, one action is not "distinct ' from other actions and each of them, even if it constitutes an offence, does not 'constitute a 'distinct ' offence". In Bhagat Singh vs The State (2 a person hit two others with a single shot from his gun. Fazl Ali, J., said at p. 375 : "The word 'offence ' has been defined in the Criminal Procedure Code as meaning "any act or omission made punishable by any law for the time being in force. ' There seems to be nothing wrong in law to regard the single act of firing by the appellant as one offence only. On the other hand, we think that it would be taking an extremly narrow and artificial view to split it into two offences. There are several reported cases in which a similar view has been (1) A.I.R. 1954 All. 795. (1) ; 349 taken and, in our opinion, they have not been incorrectly decided. " We refer to these cases later. It was further stated at p. 376 : " 'In Sudheendrakumar Ray V. Emperor (I.L.R. a person who was chased by two constables had fired at them several times, but it seems to have been rightly assumed that the firing did not constitute more than one offence, though the point was not specifically raised or decided. " In Empress vs Raghu Rai (1) the accused was convicted of stealing two bullocks by one act of theft. It was held that the offence committed was one. The rationale of the decision could be nothing but that the entire transaction of stealing or the entire action leading to the theft of the bullocks was one act and therefore constituted one offence irrespective of the fact that more than one bullock was stolen. In Poonit Singh vs Madho Bhot (2) a person 's furnishing the police with false information against two persons was held to result in one offence under section 182 I. P. C., as the false statement he had made was one though the information conveyed by the statement related to two persons. In John Subarna vs King Emperor (3) a person, who asked the villagers to pay certain amount per head for signing their parchas was held to have committed one offence of cheating as he did not ask each individual villager, but spoke to them in a body and the contention that he had made as many attempts to obtain money as there were villagers from whom he had. sought remuneration was not accepted. In this case it is clear that the accused 's act aimed at obtaining money from all the villagers whom he addressed and that act in its entirely was (1) (2) Cal. (3) (1905) 10 C. N. 520. 350 held to constitute one offence even though his asking the villagers in a body could be said to amount to his asking each individual villager for the money and thus to constitute as many offences as there were villagers whom he asked. In Promotha Natha Ray vs King Emperor one charge was framed under section 406 I. P. C., with respect to dealing with several books of accounts. It was held that the books formed one set of account books of the estate, were found together in two locked boxes the keys being with the appellant, and that therefore they may be fairly regarded as one item of property with which the appellant was dealing in one particular way. It was not accepted that a seperate offence was committed with respect to each of the books. We therefore hold that a single charge for the offence of cheating in the circumstances of the case, does not contravene the provisions of section 233 of the Code. This view also disposes of the other objection with respect to charge No. 2, it being that with respect to the cheating constituted by the obtaining of money on each bill, only that partner should have been charged for that offence who had actually signed that bill. Both the partners conspired to cheat the Government. The bills were, as held by the High Court, presumably presented on behalf of the Firm and therefore both the partners would be responsible for the obtaining of the money on the presentation of each bill. The charge therefore does not suffer from any defect on this account. The main contention in the appeal by Thomson is that the Special judge, Poona, was not competent to amend the charge No. 6 to the effect that Thomson, by abusing his position as a public (1)(1912) 351 servant, had obtained pecuniary advantage for himself, as the sanction given for the prosecution of Thomson did not state that he had abused his position for his personal gain. We do not wish to express any opinion on the merits of this contention as it is still open to the prosecution to lead evidence to the effect that the sanction given for the prosecution was based on facts which referred to his ob taining money for himself It may also be open to the prosecution to urge that it is a matter of inference from the alleged conduct of Thomson that he obtained benefit for himself. Suffice it to say that the trial of Thomson for the charge as framed at present is not illegal. It has been held by this Court in Purushottam Das Dalmia vs The State of West Bengal (1) and L. N. Mukherjee vs The State of Madras (2) that a Court trying an accused for an offence of conspiracy is competent to try him for all offences committed in pursuance of that conspiracy irrespective of the fact that any or all other offences were not committed within its territorial jurisdiction. The special judge, Poona, could try the appellants with respect to the offence of cheating and abetment thereof in connect ion with the supply of wood to places outside Kerala and for the obtaining of the price of that wood. The charge No. 2 as framed by the Special judge is correct. The order of the High Court restricting the charge to the obtaining of Rs. 1,41,309/ only for the supply of 521 tons of wood is wrong. In the result, we dismiss Criminal Appeals Nos. 113 and 114 and allow appeal No. 190 of 1961. Cr. A. Nos. 113 and 114 dismissed. Cr. A. No. 190 allowed.

IN-Abs

A firm having two partners entered into a contract for the supply of 1306.5 tons of bottom boards for railway wagons of certain specified varieties of hardwood to the Central Railwaf 339 Administration. The wood was to be supplied at different places in different quantities. The firm supplied wood of inferior quality. Thomson and other officers issued false inspection notes certifying the quality of the wood to be according to specification. On the basis of those false inspection notes, the firm received payment of Rs. 3,77,771. The accused were charged under sections 109,120 B and 420 of the Indian Penal Code and section 5 (1) (d) read with s.5 (2) of the Prevention of Corruption Act, and were sent up for trial to the court of the Special judge Kerala. Charges were also framed against them. However,the case was transferred by this court to the court of the Special judge, Poona. The latter amended certain charges and also added a new charge against certain appellants. The accused went in revision to the High Court of Bombay and questioned the legality or propriety of various charges. The High Court ordered certain minor modifications in the charges and against that order both the accused and the Union of India came to this court by special leave. It was contended 'on behalf of the accused that the obtaining of money by submitting each separate bill amounted to one distinct offence for which a separate charge should have been framed in view of s 233 of the Code of Criminal Procedure and the charge as framed was a combination of a number of charges with respect to several offences of cheating committed by obtaining money on the presentation of 18 or 19 bills and was, therefore, against the provisions of section 233. It was also contended that the charge of cheating should have been framed against that partner who had submitted the bill and obtained money. Held, that the expression "every distinct offence" in section 233 Code of Criminal Procedure has a different content from the expression "every offence" or "each offence" and that offences would be distinct if they be not in any way inter related. Chunne vs The State, A. I. R. 1954 All. 795, approved. Held, further that a single charge for the offence of cheat ing in pursuance of conspiracy did not contravene the provisions of section 233 of the Code of Criminal Procedure. The conspiracy entered into by the appellants was not for obtaining diverse amounts by cheating but to obtain the entire contract money by cheating. The offence of cheating contemplated by the conspirators was one offence of obtaining, by cheating, the full amount due under the contract for the material supplied. While the obtaining of money by cheating on the presentation of an individual bill did constitute the offence of cheating, the obtaining of the entire money in pursuance of the terms of the single contract and the single conspiracy entered into also 340 constituted the offence of cheating. When the accused could not be punished for more than one such offence, it could not be the intention of law that he be charged with each of the offences which were in a way included in the complete offence made up by the entire course of conduct of the accused in pursuance of the conspiracy. Bhagat Singh vs The State, , refered to. Empress vs Raghu Rai, , Poonit Singh vs Madho Bhot, Cal. 270, Joan Subrna vs The King Emperor, and Promotha Nath Bay vs King Emperor, , approved. Both the partners conspired to cheat the Government. The bills were presumably presented on behalf of the firm, and, therefore, both the partners were responsible for obtaining the money on the presentation of the bills. Hence, both of them were rightly charged. A court trying an accused for an offence of conspiracy is competent to try him for all offences committed in pursuance of that conspiracy irrespective of the fact that any or all the other offences were committed within its territorial jurisdiction. The charge framed by the Special judge was approved. Purushottam Das Dalmia v The State of West Bengal, ; and L. N. Mukherjee vs The State of Madras, ; , followed.

Appeal No. 332 of 1962. Appeal by special leave from the judgment and order dated August 31, 1961, of the Rajasthan High Court in D.B. Civil Writ No. 76 of 1961 ' 376 M. C. Setalvad, Attorney General of India, N.C. Chatterjee, L. L.Sharma, M. K. Ramamurthi, R. K. Garg, section C. Agarwal and D. P. Singh, for the appellant. P. D. Menon, for respondents Nos. 1 and 7. C. K. Daphtay, Solicitor General of India, Rameshwar Nath, section N.Andley and P.L.Vohra, for the respondents Nos. 2 (6). November 21. The judgment of Gajendragadkar, Wanchoo, Das Gupta and Ayyangar, JJ., was delivered by Das Gupta, J. Sarkar, J., delivered a separate judgment. DAS GUPTA, J. At Pushkar in Rajasthan exists a tank which has long been considered one of the holiest places of the Hindus and a well known place of pilgrimage. the east of the lake runs a road approximately north to south. The Ghats for getting into the lake are situated contiguous west of this road. Several Dharmshalas and at least one Gurudwara have been established by the side of this road not far from the lake. A temple of Hanumanji stands east of the road, a short distance from the southern edge of the lake. Another temple close to the road is the temple of Rangji. This is situated very near the Ghats and to the east of the road. There is also a temple of Brahamaji further away towards the north but on this very road a little away from where the road further north cast from the edge of the lake meets, another Road Ganera Deedwana Nagar. Towards the south of the Dharamashalas the road goes on to Ajmer. The police station of Pushkar is situated at some distance from the Pushkar lake. The police station stands on a road which goes on towards Ganera Deedwana Nagar to the north; and on the south joins the road 377 to Ajmer, Thus the road running north to south by the side of the police station and the road running by the east of the Ghats of the lake meet a short distance north of the police station and a greater distance towards the south. In this way the two roads form a somewhat irregular figure almost like a triangle. The pilgrims use this road in coming to the lake and for this purpose can avail of a number of motor transport services. The dispute which is the subject matter of the present appeal is as regards the location of the bus stand at Pushkar, for these numerous motor transport services. For many years the bus stand was located by the side of the road which runs cast of the lake, a little away to the north of Hanumanji 's temple and very near the, Dharamiashalas. On MAy 24, 1948, the Municipal Board of Pushkar passed a resolution that the Bus stand should be shifted to another site by the side of the road which passes by the police station. By the same resolution it was resolved to construct a passenger shed, pivaoo, baths, latrines, urinals and other facilities for the convenience of the passengers at the new bus stand as proposed. The Regional Transport Authority in its meeting held on December 3 & 4, 1959, considered this proposal and passed a resolution in the following words . "The Bus stand for Pushkar will be the plot of land at the junction of the Hallows Road with Ganera Road near the Police Station and Kalkaji 's Temple. The present bus stand on the northern Patri between Hanumangarhi Temple and Bralimannandji 's Baghichi will cease to be a bus stand and will be a bus stop only. The buses will not pass through the city. They will go back from the bus stop to the new bus stand. The Municipal Board will provide the necessary facilities. The buses will shift to 378 the new bus stand after such facilities are provided." It was not however until June 28, 1960, that a public notification was issued in pursuance of the resolution. On that date a notification was issued notifying the public of the resolution of the Regional Transport Authority fixing the new stand for buses at Pushkar and discontinuing the old stand but directing that it will be used as a bus stop. The notification further stated that the buses shall not pass through the city but will proceed to the new stand back from the bus stop and that except the above mentioned bus stand no other place shall be used as a bus stand in Pushkar. It was after this notification was issued, that the new arrangement came into force. Long before this notification was made, two residents of Pushkar, Jai Narain and Madan Mohan moved before the State Transport Authority an application for revision of ' the decision of the Regional Transport Authority changing the bus stand. This application purported to be under section 64A of the Motor Vehicles Act. It was heard by the State Transport Authority on February 18, 1960, and was rejected the same day. On April 13, 1960, five bus operators of the Ajmer Pushkar route moved a fresh application for revision under section 64A of the Motor Vehicles Act against the Regional Transport Authority's decision to change the stand. This application was decided by an order dated January 6, 1961. The State Transport Authority rejected the preliminary objection raised by the respondent 's counsel that no revision lay against the Regional Transport Authority 's order and also the objection that the matter in dispute had already been heard and decided on February 18, 1960 and the State Transport Authority had no right to review its own order. It also rejected the contention that the revision petition was barred by limitation. Coming to the merits of the case the State Transport Authority was of opinion that the proposed new bus stand was likely to be a source of inconvenience to women pilgrims and children and that the old bus stand should be retained from the point of view of both public utility and convenience. Accordingly, the State Transport Authority allowed the application for revision and reversed the decision of the Regional Transport Authority and directed that the old bus stand should continue to be recognised as the official bus stand for the Pushkar town. Against this order of the State Transport Authority the Municipal Board of Pushkar moved the High Court of Rajasthan under article 226 of the Constitution and prayed for appropriate writs or directions, setting aside the State Transport Authority's order of January 6, 1961. The main grounds on which this relief was sought were : (1) that the order of the Regional Transport Authority had been made under section 76 of the Motor Vehicles Act and was therefore not liable to revision; (2) that, in any case, the application was barred by limitation; and (3) that the State Transport Authority having already rejected one application in revision against the Regional Transport Authority 's order changing the bus stand could not entertain another application on absolutely the same grounds. The High Court came to the conclusion that there was no substance in any of these contentions and rejected the application. It is against this decision of the High Court that the present appeal has been filed by the Municipal Board, Pushkar, with special leave. In support of the appeal the learned Attorney General has contended that the HighCourt 's decision on all these three points was incorrect. He has reiterated before us that the order of the Regional Transport Authority changing the bus stand must be held to have been made under section 76 of the Motor Vehicles Act and therefore not liable 380 to revision, that the application for revision wits barred by limitation and thirdly, that in any case, the first revision application having been rejected, a second revision application did not lie inasmuch as on the rejection of the first revision application the Regional Transport Authority 's order had ceased to exist having merged in the State Transport Authority 's order. The first question that arises for decision therefore is whether the Regional Transport Authority 's order has been made under section 76 of the Motor Vehicles Act or, as urged on behalf of the respondents, it was made under section 68 of the Act. Section 76, it has to be noticed, is in Chapter VI of the Motor Vehicles Act which deals with the control of traffic. Section 68 is in Chapter TV which deals with the, control of transport vehicles. Section 76 gives power to the State Government or any authority authorised in this behalf by the State Government "to determine places at which motor vehicles may stand either indefinitely or for a specified period of time" and also to 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. According to the learned Attorney General it is under this power to determine a place at which motor vehicles may stand indefinitely or for a specified period of time that the location of a bus stand is and can be determined by the State Government or any other authority authorised by it in this behalf. The rival contention on behalf of the respondent is that the determination of places at which motor vehicles may stand either indefinitely or for a specified period of time means the determination of parking place while the determination of places at which public service vehicles may stop for a longer time than is necessary for the taking up and setting 381 down of passengers, contained in the latter portion of section 76 means the determination of halting stations. Neither of these, it is urged, has anything to do with the provision of a bus stand. A bus stand, it is argued on behalf of the respondents, means the place where a bus service either commences or terminates. This according to the learned Solicitor General, who appeared for the respondents, has to be done under a rule made under section 68(2) (r) of the Act, giving power to the Regional Transport Authority to fix bus stands. Section 68 empowers the State Government to make rules for the purpose of carrying into effect the provisions of Chapter IV. The second subsection provides that without prejudice to the generality of the power just mentioned rules under this section may be made with respect to all or any of the matters mentioned in the clause set out in the sub section. Of these cl.(r) is in these words: Section 68 (2) (r). "prohibiting the picking up and 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 and requiring the driver of a stage carriage to stop and remain stationary for a reasonable time when so required by a passenger desiring to board or alight from the vehicle at a notified halting place." In order to make an effective rule under this clause under section 68(2), it is said, it is first necessary to have duly notified stands. This clause contemplates, it is urged, that a rule has to first provide for the notification of certain stands for transport vehicles and, secondly, for prohibiting the picking up and setting down of passengers by stage or contract carriages inter alia at places other than the stands which have been duly notified. The learned Solicitor General has further urged that the question whether 382 the fixation or alteration of bus stands can be made under section 76 or section 68 of the Act is no longer res integra and must be taken to have been decided in favour of his contention in T. B. Ibrahim vs Regional Transport Authority, Tanjore. (1) There is, in our opinion, force in this argument T. B. Ibrahim, the appellant in that case, had a bus stand at a site belonging to himself. On February 21, 1950, the Regional Transport Authority, Tanjore declared that bus stand as unsuitable and with effect from April 1, 1950, altered the starting and terminal points by means of two resolutions purporting to have been passed under section 76 of the Motor Vehicles Act. When the validity of these resolutions was challenged before the Madras High Court by a petition under article 226 of the Constitution the High Court held that section 76 did not authorise the respondent to close the previous bus stand and quashed the orders. On November 10, 1950, the Regional Transport Authority of Tanjore, after hearing the appellant Ibrahim and the Municipality passed a resolution that for good and proper reasons, viz., 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 buts stand to another area of the town. Against this resolution a fresh petition under article 226 was filed in the High Court but the petition was dismissed. Against the High Court 's order, Ibrahim appealed to this Court by special leave and it is the judgment in that appeal which has been reported in [1953] section C. le. 290. The impugned resolution was passed by the Transport Authority under Rule 268 of the Madras Motor Vehicles Rules, as amended. The amended Rule was in these words : 268. In the case of public service vehicles (other than motor cabs) the transport authority (1) ; 383 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. When such places have been fixed every such vehicle shall start only from such places". The very first ground that was urged in support of the second writ petition in the High Court was that Rule 268, as amended, was beyond the rulemaking power conferred by section 68(2)(r) of the Motor Vehicles Act. This contention was rejected by the High Court and was repeated before this Court and was rejected by this Court also. After setting out the material portion of section 68, the Court pointed out that the purpose of Chapter IV was described by the compendious expression "control of transport vehicles", and the Provincial Government was invested with plenary powers to make rules for carrying out that purpose and then observed : "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." Dealing with the contention that section 68(2)(r) does not confer the power upon the transport authority to direct the fixing or the alteration of a bus stand and therefore Rule 268 of the rules framed under that section was ultra vires, the Court observed thus : "We are not prepared to accede to this contention. Sub section 2(r) clearly contem plates three definite situations. It prohibits the 384 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 prohi bited from being used for picking Upon 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 "duty notified stands" is not defined in th` 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. " The Court then discussed certain provisions of the Madras District Municipalities Act and said that these provisions did not affect the power of the Transport Authority to locate traffic control and that if Rule 268 was within the rule making authority, it followed that it could riot be challenged as being void because it was riot consistent with some general law. The discussion on this point was con cluded in these words : "Section 68, sub section (2)(r) involves both a general prohibition that the , stand will cease to exist as well as a particular prohibition, namely, that passengers shall riot 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 a rule framed 385 under the plenary rule making power referred to in section 68, sub section (1). Sub sec tion (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. " We have deliberately made these extensive quotations from the previous judgment of this Court because they clearly show, as nothing else can, that the Court had to consider in that case the question whether s.68(2) (r) did confer upon the Transport Authority the power to direct fixing or alteration of a bus stand and answered the question in the affirmative. Ibrahim 's case is thus a clear and direct authority for the proposition that under section 68(2)(r) of the Motor Vehicles Act the State Government has power to frame rules empowering the Regional Transport Authority to fix or alter bus stands. The notification of June 28, 1960, mentions Rule 134 of the Rajasthan Motor Vehicles Rules, 1955, as the source of the power under which the new bus stand was fixed, the old bus stand was discontinued and it was ordered that no other place except the new bus stand should be used as a bus stand at Pushkar. The material portion of Rule 134 reads thus: "A Regional Transport Authority by notification in the Rajasthan Gazette, or by the erection of traffic signs which are permitted for the purpose under subsection (1) of section 75 of the Act. or both, may, in respect of the taking up or setting down of passengers or both, by public service vehicles or by any specified class of public service vehicles. . . . 386 within the limits of any municipality, or within such other limits as may be specified in the notification, certain specified stands or halting places only shall be so used." This rule clearly empowers the fixation or alteration of bus stands. In framing the Rajasthan Motor Vehicles Rules, 1951, of which Rule 134 form part the Rajasthan Government mentioned the numerous sections which give the Government the power to frame rules as the "authority under which the rules were being made, viz., sections 21, 41, 65, 68, 70, 71, (2), 73, 74, 75, 77, 80, 86, (2), 88, 90 and 91 of the . In view of this Court 's decision in Ibrahim 's Case (1) it will be proper to hold that Rule 13,4 ,was made in exercise of the powers under section 68. Accordingly, the order of the Regional Transport Authority fixing the new bus stand and discontinuing the old should be held to have been made under a rule made under section 68 and thus liable to revision under section 64 A. The learned Attorney General stressed the fact that in lbrahim 's case this Court did not in so many words say that such an order. fixing or altering a bus stand cannot be made under section 76 of the Act and contended that that case is no authority for holding that the order was not made under section 76. Assuming for the sake of argument that that was so and that the order could also be made under section 76 that would not affect or weaken the authority of Ibrahim 's Case in so far as it decided that a rule empowering the Transport Authority to fix or alter bus stands can be made under section 68 (2) (r) of the Act. In that position there will be no escape from the conclusion that the Regional Transport Authority 's order in the present case would be liable to revision under s 64 A. (1) ; 387 It appears clear to us however that Ibrahim 's case is also authority for the proposition that an order fixing or altering a bus stand cannot be made under section 76. From the summary of 'what was discussed and decided in that case as has been given above, it appears that the Division Bench of the Madras High Court gave a categorical decision in the earlier writ petition that section 76 did not authorise the Transport Authority to close the bus stand. It appears to us clear that this view was approved by this Court. Indeed, the reasoning which this Court adopted for deciding that section 68 (2) (r) of the Act contemplates the fixation or alteration of a bus stand would become considerably weakened and would not have been accepted by this Court if it thought that section 76 itself authorised the Transport Authority to fix or close a bus stand. We may make it clear that even if this binding authority in lbrahim 's Case had not been present we would have had no hesitation in holding that the fixation or alteration of a bus stand is made under a rule made under section 68 of the and cannot be made under section 76. In our opinion, Chapter VI which deals with the question of " 'Control of traffic" in general has nothing to do with the fixation or alteration of bus stands. Section 76 has no doubt used the words " 'places at which motor vehicles may stand" and the learned Attorney General tried to persuade us that this includes the fixation of what is known as bus stands. While the word "bus stand" has not been defined in the Act, we have no hesitation in accepting the contention of the respondents that a bus stand means a place where bus services commence or terminate. It is the place where the buses stand for commencing its transport service or where they stand after terminating their service, that is popularly known as a bus stand. We do not think the words "places at which the motor vehicles may stand either indefinitely 388 or for a specified period of time" can be reasonably interpreted to include a bus stand in the above sense. When it is remembered that Chapter VI in which section 76 occurs, is intended to deal with the control of ,traffic it becomes clear that the determination of places at which the Motor Vehicles may stand either indefinitely or for a specified period of time means the "determination of parking places" while the determination of places at which public vehicles may stop for a longer time than is necessary for the taking up and setting down of passengers means "halting stations for public service vehicles". It is well worth noticing that while the determination of such places for stoppage, in the latter portion of the section can be in respect of public service vehicles only the determination of places of standing in the first part of the section is in respect of motor vehicles in general. All things considered, it appears to us clear that section 76 has nothing to do with the provision for bus stands. Section 91 (2) (e) which empowers the State Government to make rules for "the maintenance and management of parking places and stands" does not refer, in our opinion, to bus stands but to " 'stands" for motor vehicles which are in the nature of parking places determined under section 76. It is equally clear to us that the "control of transport vehicles" with which Chapter IV purports to deal should reasonably be expected to contain provisions for fixation of places where the transport vehicles may commence their journey or terminate their journey, that is, the fixation of bus stands. When therefore we find in section 68 (2),(r) the specific clause about "prohibiting the picking up and setting down of passengers. . at places other than duly notified stands," it is reasonable to think that the word "stand" was used there to mean "bus stands" in the sense of places where services 389 terminate or commence. The scheme of the sub section clearly shows that bus stands have first to be notified and regulatory orders can, and have to be issued thereafter. In the nature of things, the power to issue the necessary notification is implied in the provision. The conclusion that necessarily follows from this is that the State Government has been given authority under this clause to make rules for the fixation of bus stands by duly notifying the same. Rule 134 in so far as it empowers the Regional Transport Authority to fix or alter bus stands is thus a rule made under the rule making authority under section 68. Even apart from the authority of lbrahim 's Case (1) therefore we are of opinion that the order of the Regional Transport Authority was made in pursuance of powers conferred on it by a rule made under section 68 (2) (r) of the and therefore liable to revision under section 64A. This brings us to the question of limitation. Section 64 A provides that State Transport Authority shall not entertain any application from a person aggrieved by an order of the Regional Transport Authority unless the application is made within 30 days from the date of the order. According to the appellant, the impugned order was made by the Regional Transport Authority on December 4, 1959, and consequently the application for revision made by the respondents on April 13, 1960, was barred. It was suggested that in fact the respondents who moved the revision application on April 13, 1960, were aware of the order made by the Regional Transport Authority on December 4, 1959; but assuming that they had no such knowledge, the question of knowledge, it was urged, was totally irrelevant. The section has provided that no application shall bib entertained unless it is made within 30 days from the date of (1) ; 390 the order and the courts cannot read it as within 30 days from the date of the knowledge of the order. In this connection the learned Attorney General has drawn our attention to the decisions of the Privy Council in Nagendranath vs Suresh, (1) and General Accident Fire & Life Assurance Corporation Limited vs Jarmohomnad Abdul Rahim (2) where it has been emphasised that in interpreting the provisions of limitation, " 'equitable considerations are out of place, and the strict grammatical meaning of the words is the only safe guide." There can be no doubt that this principle has always been acted upon by the courts. This principle has recently been re affirmed by this Court in Boota Mal.v.The Union of India (3). We agree therefore that the words " date of the order" should not be read ""as from the date of knowledge of the order" in the absence of clear indication to that effect. In this connection the learned Attorney General has drawn our attention to several sections of the to show that where the legislature in prescribing the period of limitation intended that time should run from some other date than the date when the order was made clear indication of such intention was given. Thus section 13 in providing for an appeal from an order made refusing or revoking a driving licence says that an aggrieved person may appeal "within 30 days of the service on him of the order". Section 15 which provides for an appeal from an order of the licencing authority disqualifying a person from holding a driving licence lays down that an aggrieved person may appeal " 'within 30 days of the receipt of the order". Section 16 which provides for an appeal against certain orders of the Regional Transport Authority says that the aggrieved person may appeal "within 30 days of the receipt of intimation of such order". Section 35 which is another section providing for appeal says that the (1) A.I.R. (1932) P.C. 165 (2) , (3) ; 391 appeal may be made "within 30 days of the date of receipt of notice of the order". There is considerable force therefore in the argument that if the legislature had intended that an application for revision under section 64A may be made within 30 days from the date of intimation or knowledge of the order to the aggrieved person it would have said so; and in the absence of any such thing the court is bound to hold that the application will be barred unless made within 30 days from the date of the order by which the person is aggrieved. This still leaves open for investigation the problem as to what is the date of the order. According to the appellant the date when the Regional Transport Authority passed the resolution is the date of the order. Against this it is urged on behalf of the bus operators that it is the date when that resolution was brought into effect by the publication of the notification which should be considered to be the date of the order. In our opinion, the respondents ' contention should be accepted. For, it is a fallacy to think that the date when the Regional Transport Authority passed the resolution was the date on which the fixation of the new bus stand or the discontinuance of the old bus stand was ordered. It has to be remembered in this connection that Rule 134 itself contemplates that the fixation or alteration of bus stands would be made by a notification. It is only on such notification that a notified bus stand comes into existence. So long as the notification is not made there is in law no effective fixation of a new bus stand or discontinuance of the old bus stand. The matter may be considered from another aspect. Section 64A provides for an application for revision by a person aggrieved by an order. It is the making of the order which gives rise to the grievance. In this case it is the fixation of the new bus stand and the discontinuance of the old bus stand by which the bus operators claim to have been aggrieved, 392 It is easy to see that there is no real cause for grievance till such fixation and discontinuance of 'bus stands have been made by a notified order. In other words, the order has not been "made" till the notification has been published. Before that it is only an intention to make an order that has been expressed. That this distinction between the making of an order fixing or discontinuing a bus stand and the expression of an intention to make such an order was present in the mind of the Regional Transport Authority is abundantly clear from the language used by it. The resolution that Was Passed on December 4, 1959 which according to the appellant was the date on which the impugned order was made says : "The bus stand for Pushkar will be the plot of land at the junction of the Hallows Road with Ganera Road near the Police Station and ; Kalkaji 's Temple. The present bus ' stand on the northern Patri between Hanumangarhi Temple and Brahamanandji 's Baghichi will cease to be a bus stand and will be a bus stop, only. The buses will not pass through the city;. They will go back from the bus stop to the new stand. The Municipal Board will provide the, necessary facilities. The buses will shift to the new stand after such facilities are provided. " The Transport Authority did not follow this up on that date by a formal order. It is reasonable therefore to consider the passing of the, resolution as the preliminary stage of the making of the order and the notification by which it was published as the final making of the order. Our conclusion therefore is that the order; fixing a new bus stand at Pushkar and discontinuing the old bus stand was in effect made not on December 4. 1959, but on June 28, 1960, when. the notification about the fixation of a new bus stand was published, 393 It is this order, made on June 28, 1960, that was liable to revision and as the application for revision was made before that date in anticipation of the notification the plea of limitation raised on behalf of the appellant was rightly rejected by the Regional Transport Authority. There remains for consideration the last contention raised on behalf of the appellant that inasmuch as the State Transport Authority rejected by its order dated February 18, 1960, the first application, for revision of the Regional Transport Authority 's order fixing or altering the bus stand, the Regional Transport Authority 's order merged in the order of the State Transport Authority, the second application for revision was incompetent. In Collector of Customs ' Calcutta vs The, East India Commercial Co. Ltd., Calcutta, (1)this Court held that where once an order of original authority is taken in appeal to the appellate authority it is the order of the latter authority which is the operative order after the appeal is disposed of whether the appellate authority reverses the order under appeal or modifies that order or merely dismisses the appeal and thus confirms the order without any modification. In Madan Gopal Rungta vs Secretary to the Govt.of (2) Orissa this Court applied this principle of merger to orders passed by way of review and an order of the Central Government in effect rejecting the application of the appellant for the grant of a mining lease to him and confirming the rejection of the application of the appellant by the Orissa Government was held not amenable to the jurisdiction of the High Court of Orissa under article 226 of the Constitution in view of the fact that the Central Government was not located within the territories subject to the jurisdiction of the Orissa High Court on the ground that the Central Government 's order rejecting the review petition and in effect rejecting the application of the appellant for grant of a mining lease was the (1) ; (2) [1962] Supp. 3 S.C.R. 906, 394 operative order. It has been urged Son the authority of these cases that the principle of merger should be applied to the cases of revision also where the revising authority reverses the order or modifies it or merely dismisses the revision application thereby confirming the order. In our opinion, there is no scope for the application of the principle of merger to the facts of the present case. As we have pointed out above the order fixing a new bus stand and discontinuing the old bus stand was in effect, and in law, made not on December 4, 1959, but on June 28, 1960. The position therefore was that neither on the date when the first application for revision was made nor when the State Transport Authority disposed of that application, had any order of the Regional Transport Authority fixing the new bus stand and discontinuing the old bus stand, come into existence. The question of merger could only arise if the revision was of an order that had come into existence. If even though an application for revision was made before the notification but the State Transport Authority had considered and disposed of the matter after the notification was made it would be possible and indeed reasonable to say that the application for revision should be deemed, at the time when the State Transport Authority, dealt with the matter, to be one for this completed order and the order of the Regional Transport Authority merged in the revising authority 's order. As, however, the revising authority 's order was also made before the notification had been published there was no operative order even by the State Transport Authority 's order made on February 18, 1960. The contention that the second revision was incompetent, must therefore be rejected. Two points which emerged during arguments at the Bar however require consideration. The first 395 is that the application which the respondents busoperators made on April 13, 1960, was also not for a revision of a complete order. As it was only this application for revision which has been dealt with by the State Transport Authority by its order of January 6, 1961, the question arises whether that fact itself makes the order of the State Transport Authority bad and entitles the appellant to a direction quashing this order. It has to be noticed that the position in law that there was no complete order of fixation of a new bus stand and alteration of the old bus stand at Pushkar till the notification was made on June 28, 1960, was not present in the minds of either the applicants or the appellant, Municipal, Board, which appeared to oppose the application or even the State Transport Authority. It was not the appellant 's case in the writ petition that the State Transport Authority 's order of January 6, 1961, should be quashed, because it purported to revise an order which had no existence in the eye of law. On a consideration of all the circumstances, we do not think that the appellant can now claim an order for quashing the State Transport Authority 's decision on this ground. In our opinion, it would be proper, in the special circumstances of the case, to hold that the State Transport Authority could, immediately after June 28, 1960, when the order was completed by the notification treat the application for revision made on April 13, 1960, pending before it on the date of the notification, as an application for revision of the order as completed by the notification, and that, in substance, the order of January 6, 1961, was an order revising not the decision of the Regional Transport Authority 's order of December 4, 1959, but the Regional Transport Authority 's order fixing a new bus stand at Pushkar, as completed by the notification of June 28, 1960. The other point which was brought to our notice during the arguments at the Bar is that 396 the order of the State Transport Authority dated January 6, 1961, was made without compliance with the second proviso to section 64 A. That proviso is in these words: "Provided further that the State Transport Authority shall not pass an order under this section prejudicial to any person without giving him a reasonable opportunity of being heard. " This appears to us to make it necessary that before making any revisional order under section 64A the State Transport Authority has to see that a person likely to be affected by that revisional order receives notice of the matter and is given a reasonable opportunity to be heard. The requirement of this proviso was admittedly not complied with before the State Transport Authority made the order on January 6, 1961, in the present case. If the High Court 's attention had been drawn to this failure on the part of the State Transport Authority to comply with this statutory requirement, we have no doubt that the High Court would have felt compelled to quash the revisional order made. Now, that we find that this statutory requirement was not complied with before the revisional order was made, we do not think it will be proper for us to ignore this infirmity in the order. It is true that the learned Attorney General contended that as soon as the Court accepts the plea that the revisional order challenged by the appellant by their writ petition is invalid for the reason that the appellate authority did not comply with the provisions of section 64A, the writ petition ought to be allowed and no opportunity can or should be given to the said authority to reconsider the matter. We are not impressed by this argument. We are satisfied that in the circumstances of this case, we ought to exercise our powers under article 142 of the Constitution and 397 send the matter back to the revisional authority to be dealt with in accordance with law, because there is no doubt that by adopting this course full justice will be done between the parties. Accordingly, we allow the appeal and quash the State Transport Authority 's order made on January 6, 1961, and direct that the application for revision of the Regional Transport Authority 's order as notified on June, 28, 1961, be disposed of by the State Transport Authority in accordance with law after giving public notice of the matter and thereafter giving every person concerned in the matter who wishes to be heard a reasonable opportunity of being heard. In the circumstances of the case, we order that the parties will bear their own costs. SARKAR,J I have come to the conclusion that this appeal should be allowed. The appellant is the Municipal Board of Pushkar in the State of Rajasthan. It passed a resolution sometime in 1958 that the bus stand near the Pushkar lake should be shifted to what it considered a more suitable place. Now the power to fix bus stands was given to the Regional Transport Authorities by r. 134 of the Rules framed by the Rajasthan Government under the . That rule provides as follows : Rule 134. "A Regional Transport Authority, by notifications in the Rajasthan Gazette, or by the erection of traffic signs which are permitted for the purpose under sub section (1) of section 75 of the Act, or both, may, in respect of the taking up or setting down of passengers or both, by public service vehicles or by any specified class of public service vehicles (i) conditionally or unconditionally pro hibit the use of any specified place or of 398 any place of a specified nature or class, or (ii) require that within the limits of any municipality or within such other limits as may be specified in the notification, certain specified stands or halting places only shall be so used: " The appellant Municipality moved the Regional Transport Authority, Jaipur, for making an order shifting the bus stand to the place suggested by it. On December 3/4, 1959, the Regional Transport Authority passed a resolution accepting the appellant Municipality 's proposal and providing that the bus stand would be shifted to the place suggested by the appellant Municipality and the old bus stand would cease to be used as such but would only be used as a bus stop. The resolution further provided that the appellant Municipality would provide certain facilities and the new bus stand would start functioning after the facilities had been provided. Now section 64A of the provides as follows: section 64A. "The State Transport Authority may, either on its own motion or on an application made to it, call for the record of any case in which an order has been made by a Regional Transport Authority and in which no appeal lies, and if it appears to the State Transport Authority that the order made by the Regional Transport Authority is improper or, illegal, the State Transport Authority may pass such order in relation to the case as it deems fit : Provided that the State Transport Authority shall not entertain any application from a 399 person aggrieved by an order of a Regional Transport Authority, unless the application is made within thirty days from the date of the order Certain bus operators of Pushkar who are respondents in this appeal and whom I will refer to as the respondents, applied to the State Transport Authority on April 13, 1960, under section 64A to quash the resolution of the Regional Transport Authority of December 3/4, 1959. While this application was pending disposal by the State Transport Authority, the Regional Transport Authority issued a notification dated June 28, 1960, finally declaring and notifying to the public the fixing of the new bus stand. This notification was published in the Rajasthan Gazette of July 14, 1960. It appears that there wasthis delay in issuing the notification of the Regional Transport Authority 's notification of December 3/4, 1959, because in the meantime two other persons had moved the State Transport Authority under section 64A to quash that resolution and also because the facilities which the appellant Municipality had beed directed to provide had not till then been arranged for. That earlier petition under section 64A was dismissed by the State Transport Authority on February 18, 1960, and thereafter the facilities required had been provided by the appellant Municipality. It is after all this that the notification of June 28, 1960, had been issued. The respon dent 's petition under section 64A was allowed by the State Transport Authority by an order made on January 6, 1961. By that order the State Transport Authority directed that "the decision passed by the R. T. A. dated 3/4 December 1959 and upheld by the STA on 18. 1960 be set aside and cancelled and the old Bus stand shall continue to be recognised as Official Bus stand for the Pushkar Town. " 400 On February 10, 1961, the appellant Municipality filed a petition under article 226 of the Constitution in the High Court of Rajasthan for a writ quashing the order of the State Transport Authority of January 6, 1961. This petition was dismissed by the High Court. The appellant has now appealed to this Court against the decision of the High Court. There were various points taken in support of this appeal, but I think that one of them must succeed and I propose in this judgment to discuss that point only. It was said on behalf of the appellant Municipality that there was an error apparent on the face of the record because the respondents ' petition to the State Transport Authority under section 64A had been filed after the period of thirty days limited for that purpose by the proviso to that section. It was contended on behalf of the respondents that this was not so for under section 64 A the period of thirty days had to be counted not from the date of the order in this case the resolution of December 3/4, 1959 but from the date when the respondents had the knowledge of that order. It was contended that if the period was counted from such date, then the petition was within time. I do not think that under section 64 A the period of thirty days has to be counted from the date that the party wishing to move under that section comes to have knowledge of the 'order sought to be set aside. My learned brother Das Gupta, J., has in the judgment just delivered by him discussed this question and with his view on that point I am in entire agreement. It is unnecessary for me to discuss this question further. Therefore, it would appear that the respondents ' petition under section 64A to set aside the order of December 3/4, 1959, was out of time and should have been dismissed. The State Transport Authority 's decision that it was not out of time because the period of thirty days has to be counted from the date of the knowledge of the order was 401 patently erroneous and therefore the appellant should have been held entitled to the writ by the High Court of Rajasthan. But it was then said that the date of the order of the Regional Transport Authority was not december 3/4, 1959, but June 28, 1960. ' This was presumably put on the ground that the order could and r. 134, earlier set out, be made by notification and in this case the notification was made on June 28, 1960. Under that rule a bus stand could be fixed by the erection of traffic signs also but I will leave this method out of consideration as it was not followed in this case. I have some doubt whether the contention that the order mentioned in section 64 A, is for the purpose of the present case, the order contained in the notification, is 'right, but I will assume that to be so. If the Regional Transport Authority 's order was made, only on June 28, 1960, as the respondents contend, then their application under section 644 was not barred by limitation for in fact it was made before that date. But that gives the respondents no advantage. They had by their petition under section 64A asked that the Regional Transport Authority 's order of December 3/4, 1959, be quashed. Now, on the respondents own argument, that order was not an order under section 64 A at all and could not be set aside under that section. Therefore, again the order of the State Transport Authority setting aside the Regional Transport Authority 's resolution of December 3/4 1959, was incompetent on the face of it. That resolution was exhypothesi not art order liable to be revised under section 64A. The State Transport Authority 's order of January 6, 1961, was even off this basis patently erroneous and without jurisdiction and so liable to be set aside,.by a writ. Then it was said that it was in the power of ,the State Transport Authority to treat the petition 402 under section 64A filed on April 13,1960, and pending on June 28, 1960, the date of the notification, as an application to set aside the order contained in that notification. Now I do not think the State Transport Authority suo motu could do so. It is for thepetitioner to decide what relief he would ask in his application under section 64A. The State Transport Authority could not against the wish of the petitioner alter his prayer. Here therespondents never asked, that their application under s.64A should be treated as an application to set aside the order contained in theNotification of June 28, 1960. However that may be, even if the State Transport Authority could treat the petition of April 13, 1960, as asking, for quashing of the Regional Transport Authority 's order of June 28, 60, it did not in fact do so. This is evident from the State Transport Authority 's order of January 6, 1961, where in considering the question of limitation it proceeds on the basis that the period of thirty days provided in section 64A is to be counted , from the date of The knowledge of the.order which would be insensible if it had treated the petition as one to set aside the order of June 28, 1960. Nowhere in its judgment, of January 6, 1961, does the State Transport Authority refer to the notification of june 28, 1960. In the operative part of its order which I have earlier set out. it expressly set aside and cancelled the Regional Transport Authorities resolution of December 3/4, 1959, and it is only as consequential thereto that it stated that " 'the old Bus stand shall continue. " Even in their affidavit in opposition to the petition under article 226 the respondents themselves did, not make the case that the State Transport Authority had treated their application under section 64A as ;In application to set aside the order contained in the notification of June 28 1960. In that affidavit they Stated, that the revision filed by; the respondents before the S.T.A. was within the prescribed time as the same was filed within about a week of 'the respondents knowledge of the R.T.A. 's 403 order. " They clearly even then proceeded on the basis that their application under section 64A had been an application to set aside the resolution of December 3/4, 1959,. No doubt the High Court did not accept the view that the period of thirty days provided by section 64A has to be counted from the date of the knowledge of the order sought to be impugned. It said that it was the notification which was the source of the respondents ' grievance and, therefore, their petition under section, 64A was, not out of time. The High Court wholly omitted. to notice that the petition asked nothing concerning the notification of June 28, 1960. Therefore, it seems to me that it is to no purpose to consider whether the State Transport Authority could treat the respondents petition under section 64A as having been filed on or after June 28, 1960, to cancel the order contained in the notification of that date. In fact, it did not do so. It was neither for the High Court nor it is for this Court now to amend the application under section 64A and treat it as one for sett ing aside the Regional Transport Authority 's order contained in the notification of June 28, 1960. That application was never before either of these Courts. If the respondents themselves had made an application for such a amendment, then the application would have been dismissed if on its date, thirty days from the date of the notification had passed. Now on the dates when the State Transport Authority and the High Court passed their orders, the period of thirty days so counted had passed. On those dates the respondents could not successfully ask for an amendment of their application under section 64A. It, therefore, seems to me that if the order of the Regional Transport Authority is to be taken as having been, made, on June 28, 1960, then the respondents ' petition under section 64A was incompetent because it sought anorder for setting aside the Regional Transport Authority 's resolution of December 3/4, 1959 404 and under section 64A that order could not be effected at All. my view, the appellant municipality was clearly entitled to a writ quashing "I order of the; State Transport Authority of January 6, 1961. I would, therefore; allow the appeal with cost. By COURT By majority judgment the appeals are allowed and the matter sent back for disposal in accordance with law. Parties to bear their own Costs.

IN-Abs

The Municipal Board of Pushkar passed a resolution on May 24, 1948, for the shifting of the bus stand on the sacred lake to another site near the Police Station where it resolved to construct a passenger shed and provide other facilities for the pilgrims. The Regional Transport Authority by a resolution dated December 3/4, 1959, accepted the suggestion and issued a public notification to that effect on June 28, 1960. Long before the notification, two residents of Pushkar moved the State Transport Authority under section 64A of the Motor Vehicles Act for revision of the decision of the Regional Transport Authority dated December 3/4, 1959, changing the bus stand but that application was rejected on February 18, 1960. Another petition for the revision of the same orders under the same section was moved by certain bus operators on April 13, 1960. The State Transport Authority on January 6, 1961, allowed that application, reversed the decision of the Regional 'Trans port Authority of December 31, 1959, and directed that the old bus stand should continue. The Municipal Board moved the High Court under article 226 of the Constitution against this order of State Transport Authority. The High Court rejected the application. The Board appealed to this Court by special leave. Its case was that the order of the Regional Transport Authority changing the bus stand was made under section 76 of the, Motor Vehicles Act and, therefore, was not open to revision, that the revision application was barred by limitation and that the first revision application having been rejected the second did not lie inasmuch as on the rejection of the first, the Regional Transport Authority 's order ceased to exist having merged in the State Transport Authority 's order, 374 Held (per curiam), that it was well settled that equitable considerations have no place in interpreting provision of limitation and their strict grammatical meaning has to be adhered to. The expression "date of the order" in the first proviso to section 64A of the Act, therefore, could not mean the date of the knowledge of the order. Per Gajendragadkar, Wanchoo, Das Gupta and Ayyangar, JJ. The order of the Regional Transport Authority fixing the new bus stand and discontinuing the old was one made not under section 76 of the Act, which had no application, but under r. 134 of the Rajasthan Motor Vehicles Rules, 1955, made in exercise of the powers conferred by section 68 (2) (r) the Motor Vehicles Act. The order was, therefore, open to revision tinder section 64A by the State Transport Authority. T.B. Ibrahim vs Regional Transport Authority, Tanjore, ; , applied. Section 76 had nothing to do with the fixation or alteration of a bus stand. Although the word bus stand ' had not been defined in the Act, it was clear that a bus stand meant a place where bus services commenced or terminated. Section 76, properly construed, dealt with the determination of parking places referred to by section 91(2)(e) of the Act. The fixation of bus stands was within section 68(2)(r) of the Act and the power to issue the necessary notification was implied in that clause. Nagendranath vs Suresh, A.I.R. (1 , General Accident Fire and Life, Assurance Corporation Ltd, vs Janmohomed Abdul Rahim, and Boota Mal vs Union of India; , , referred to. In the instant case the effective order fixing the new bus stand was made not by the declaration of intention in the resolution of December 3/4, 1959, but by the publication of the notification on June 28, 1960, and the impugned application for revision under section 64A of the Act having been made before that date, no question of limitation could arise. There was no scope for the application of the principle of merger in the present case since the State Transport Authority 's order rejecting the first revision application had been made before the effective and lawful order fixing the new bus stand was made by the notification. Collector of Customs, Calcutta vs East India Commercial Co. Ltd. ; and Madan Gopal Bungta vs Secretary to the Government of Orissa[1962] Supp. 3 S.C.R. 906, distinguished. 375 Since the notice obligatory under the second proviso to section 64A was not admittedly (riven by the State Transport Autho rity before it passed its order dated January 6, 1961, this Court should, in the ends of justice, exercise its powers under article 142 of the Constitution and send the matter back to the revisional authority for disposal according to law. Per Sarkar,J. The State Transport Authority 's order of January 6, 1961 was patently erroneous and should have been set aside as it was passed under section 64A on an application made set aside an order of the Regional Transport Authority, passed on December 3, 4, 1939, after the period of 30 days prescribed for such application under that section had expired. Assuming that the Regional Transport Authority 's order which could be set aside under section 64A was the one made on June 28, 1960. The State Transport Authority 's order of .January 6, 1961, would still be patently wrong for it set aside not that order but the order of December 3/4, 1959, which the State Transport Authority had no power tinder section 64A to set aside. The State Transport Authority had no power suo motu to treat the application to set aside the order of December 3/4, 1959, as an application to set aside the order of June 28, 1960. It had never been moved to do so nor had it in fact suo motu treated the application as one to set aside the order of June 28, 1960, for it expressly set aside only the Regional Transport Authority 's order of December 3/4, 1959. The High Court was in error in holding that as the Notification of June 28, 1960, contained the order which could be set aside Linder section 64A, the application under that section which had been made before that date was not beyond time, for it omitted to notice that that application asked nothing concerning that order. The application for setting aside the order of December 3/4, 1959, could not by amendment be turned into an application to set aside an order of June 28, 1960, after thirty days from the last mentioned day had expired.

Appeals Nos. 116 to 125 of 1961. Appeals by. special leave from the judgment and decrees dated March 4, 1955, of the former Andhra Pradesh High Court, Guntur, in section T. Appeals Nos. 83,85 88,90,91 and 119 121 of 1954. M. C. 'Setalvad, Attorney General for India, R. Ganapathy Iyer, V. Sureshan and G. Gopalakrishnan, for the appellants (in C.As. 116 119 of 61) aid the respondents (in C.As. 120 125 of 1961). 282 A.V. Viswanatha Sastri, V. Yedantachari and T.V.R. Tatachari, for respondents 1 to 5 (in C.A. No. 116/61) and respondent No. 1 (in C.As. Nos. 117 119/61) and the appellants in C.A. Nos.120125/61. K.Bhimasankaram and P. D. Menon, for respondent No. 2 (in C.A.Nos. 117 119/61). November 19. The judgment of the Court was delivered by RAGHUBAR DAYAL, J. These appeals arise out of the order of the Tribunal appointed under section 8 of the Madras Estates (Abolition and Conversion into Ryotwari) Act, 1948 (Madras Act XXVI of 1948), hereinafter called the Act, apportioning the advance compensation given and interim payments made in connection with the vesting of the Venkatagiri Estate in the Government of Madras as a result of a notification issued under sub section (4) of section 1 of, the Act from the notified date, i.e., September 7, 1949. The Act received the assent of the Governor General on April 2, 1949 and some of its sections, including sections 4 and 8, mentioned in sub section (4) of section 1, came into force at once. The other sections came into force with respect to the Venkatagiri Estate from the notified date. With effect from the notified date, i.e., September 7, 1949, the entire Venkatagiri Estate stood transferred to the Government and vested in it by reason of section 3(b) of the Act. 283 Section 39 provides for the Director of Settlements to determine the basic annual sum in respect of the estate and also the total compensation payable in respect of the estate, in accordance with the provisions of the Act. Section 54 A provides that the Government shall estimate roughly the amount of compensation payable in respect of the estate and deposit one half of that amount within six months from the notified date in the office of the Tribunal as advance payment on account of compensation. (2) of section 50 provides for the deposit of interim payments by the Government during the period between the notified date and the final determination and deposit of the compensation payable in respect of the estate. In respect of the Venkatagiri Estate, the Government deposited Rs. 12,11,419/ as and by way of advance payment of compensation, after deducting Rs. 7,28,500/ payable to the Government by the Estate for peishkush out of the sum of Rs. 19,39,919 8 0, half of the estimated amount of compensation payable. The Government also deposited as interim payment Rs. 1,55,194/ for each of the Fasli years 1359 to 1362 F. It is the distribution of these amounts in deposit as advance payment of compensation and interim payments, which is the subject matter for determination in these appeals. To understand the various claims for payment out of these deposits, the following genealogical table will be helpful: 284 KUMARA YACHENDUR VARU | | | | Rajagopala Krishna Raja Venkata Krishna Yachendra(Deacsed) Yachendra (Deacsed) | | | | Rajagopala Krishna Raja V. Kumara Krishna Yachendra Yachendra (dead). (Petitioner in O.P. No. 392 of 1950) | Petitioner | | | | | | | | Raja V. Venkata Raja V. Rama Raja Venkata | Krishna Krishna Rajagopala | Yachendra R.10 Yachendra Krishna Yachendra | O.P. R.11 O.P. R.12 O.P. | No. 382/50 384/50 | | | | | | vegna Kumara Raja Venkata Rajagopala Krishna Krishna R 3. R.4 O.P. 256/50 | | | | | Rajagopala Krishna Gopal Krishna Yachendra R 6. | | | | Son Unnamed R 8. Son Unnamed R 9. 285 | | Raja Maddukrishna Raja Venugopala Yachendra Krishna Yachendra (Died Issueless) | | | | Raja V. Rajeswara Rao Raja Maheswara Rao (R 14) (R 15) | | Venkata | | Gopala Minor Madanagopal Died Krishna (R 16 O.P. (R 15) No. 385 of 50) 3/50. | | vaneethu R O.P. 3/50 286 The Venkatagiri Estate is an ancient estate in North Arcot and the necessary history of the estate for the purposes of this case is contained in the document Exhibit A 1 with which we now deal. Kumara Yachendra Bahadur Varu, who tops the genealogical table noted above and his four sons mentioned therein, are parties to this document. Kumara Yachendra Bahadur Varu represents also his minor son Venugopala Krishna Yachendra. The document recites that the estate had been made over in 1878 to Rajagopala Krishna Yachendra, the eldest of the four brothers, by their father Kumara Yachendra Bahadur Varu, the then Rajah, as he wanted to devote himself to offering prayers to God for obtaining salvation. He was said to be the sole heir to the estate, as Venkatagiri Zamindari was an impartible estate and succession to it was governed by the rule of lineal primogeniture. In 1889, two of the brothers, Venkata Krishna Yachendra ' and Muddukrishna Yachendra, expressed a desire for the partition of the estate. The then Rajah, i.e., Rajagopala Krishna Yachendra, the eldest brother, asserted that it was not liable for partition. The four brothers then consulted their father and he told them : "that the Venkatagiri Zamindari was originally acquired by the valour of our ancestors in warfare, that the Zamindari is ancient, that it is an Impartible Estate which has to pass in the order of primogeniture, that at the time when the Sannad Istimdar Milk was given to the Raja of Venkatagiri who was ruling at the time of the permanent settlement th e Peshkush was settled for this Venkatagiri Samasthanam on the amount which was being paid as tribute and on the entire expenses relating to military assistance that was to be rendered lo the Nawab 's government which was in power previously that for this reason this Venkatagiri Samasthanam is not at all partible that the 287 immovable properties relating thereto and also other immovable properties acquired with the income of the said Samasthanam are not liable for partition that this is his opinion in regard to immovable properties. . The father suggested partition of certain other property. The terms of the final settlement between the father and his four sons are then noted. They may be briefly mentioned. (1) As the Venkatagiri Estate is an Impartible Estate and it passes to the eldest son by the rule of lineal primogeniture, the said Estate, the immovable properties pertaining to it and other immovable properties acquired with the income derived from the said Estate will be enjoyed by the Rajah, the eldest brother, and after his death his sons and grandsons and so on in succession shall enjoy, always the eldest male being the heir. (2) If in the line of the said Rajah, his natural sons or adopted so s do not have male issue and that line stops short, then the properties shall be enjoyed by him who is the nearest heir and who is also the eldest to whom the impartible properties of the family pass according to law and custom and the same shall be enjoyed by his successors. (3) The said Estate, all the properties pertaining to it, the title, power, privileges, all these shall be enjoyed fully and with all powers according to law and custom by the respective individuals who would be ruling at the respective periods subject to the condition of payment of allowances to other members of the family from the income derived from the Estate and from the properties in a manner befitting their respective status. (4) The allowances were settled as follows Each of the brothers was to get Rs. 1,000/ per mouth 288 for the rest of his life. After the death of each of these brothers, his male heir would continue to get this allowance of Rs. 1,000/ per month. This amount of Rs. 1,000/ would be distributable between such male heirs and their male issues, according to Hindu Law. If the male member died without leaving a natural son or an adopted son, the allowance was to pass the nearest agnates of the same branch according to Hindu Law and in case he left a wife or wives who had to be paid maintenance, their maintenance would be a liability on such agnate. It was further provided that if any of the three lines of the family ceased for want of male issue, i.e., whether natural or adopted son, then subject to the condition that the wife or wives of the surviving male member of that branch who dies last shall be paid for their life time as maintenance a sum of Rs. 500/ being one half of the entire allowance of Rs. 1000/ that was being paid to the said male member, the allowance which was being paid to that branch would entirely cease. This document has been acted upon. In 1904, the Madras Impartible Estates Act, 1904 (Act 11 of 1904) came into force. The Venkatagiri Estate was included in the Schedule of that Act and had to be deemed to be an impartible estate in view of section 3 of that Act. Section 9 of that Act mentioned the persons entitled to maintenance out of the impartible estate, where for the purpose of ascertaining the succession to the impartible estate the estate had to be regarded as the property of a joint Hindu family. In view of section 66 of the Act the Madras Impartible Estates Act of 1904 is deemed to have been repealed in its application to the Venkatagiri Estate with effect from the notified date. The expression 'impartible estate ' in the Act means an estate governed immediately before the notified date by the Madras Impartible Estates Act, 1904 and therefore applies to this estate. 289 section 41 of the Act provides for the compensation to be deposited in the office of the Tribunal. Section 42 provides for the; filing of claims to the compensation before the Tribunal by persons claiming any amount by way of a share or by way of maintenance or otherwise and by creditors. By section 43, the tribunal is to inquire into the validity of the claims and determine the persons who, in its opinion, are entitled to the compensation deposited and the amount to which each of them is entitled. Section 44 provides that as a preliminary to the final determination, the Tribunal shall apportion the compensation among such persons whose rights or interests in the estates stood transferred to the Government, including persons who are entitled to be maintained from the estate and its Income, as far as possible, in accordance with the value of their respective interests in the estate. Its sub section (2) provides how the value of those interests shall be ascertained, and says that in case of an impartible estate referred to in section 45, the ascertainment shall be in accordance with the provisions contained in that section and in such rules, not inconsistent with that section, as may be made by the Government in that behalf. Section 45 is the main section for our purpose and may be quoted : "45. (1) In the case of an impartible estate which had to be regarded as the property of a joint Hindu family for the purpose of as certaining the succession thereto immediately before the notified date, the following pro visions shall apply. (2) The Tribunal shall determine the aggregate compensation payable to all the following persons, considered as a single group : (a) the principal landholder and his legitimate sons, grandsons, and great grandsons in 290 the male. line living or in the womb on the notified date including sons, grandsons and great grandsons adopted before such date (who are hereinafter called 'sharers ') ; and (b) other persons who, immediately before the notified date,were entitled to maintenance out of the estate and its income either under section 9 or 12 of the Madras Impartible Estates Act, 1904, or under any decree or order of a Court, award, or other instrument in writing or contract or family arrangement, which is binding on the principal landholder (who are hereinafter called 'maintenance holders '): Provided that no such maintenance holder shall be entitled to any portion of the aggregate compensation aforesaid, if before the notified date, his claim for maintenance, or the claim of his branch of the family for maintenance, has been settled or discharged in full. (3) The Tribunal shall next determine which creditors, if any, are lawfully entitled to have their debts paid from and out of the assests of the impartible estate and the amount of which each of them is so entitled; and only the remainder of the aggregate compensation shall be divisible among the sharers and maintenance holders as hereinafter provided. (4) The portion of the aggregate com pensation aforesaid payable to the maintenanceholders shall be determined by the Tribunal and notwithstanding any arrangement already made in respect of maintenance whether by a decree or order of a Court, award or other instrument in writing or contract or family arrangement, such portion shall not exceed 291 one fifth of the remainder referred to in sub section (3), except in the case referred to in the second proviso to section 47, sub section (2). (5) (a) The Tribunal shall, in determining the amount of the compensation payable to the maintenance holders and apportioning the same among them, have regard, as far as possible, to the following considerations, namely: (i) the compensation payable in respect of the estate ; (ii) the number of persons to be maintained out of the estate (iii) the nearness of relationship of the person claiming to be maintained; (iv) the other sources of income of the clai mant; and (v) the circumstances of the family of the claimant. (b) For the purpose of securing (i) that the amount of compensation payable to the maintenance holders does not exceed the limit specified in sub section (4) and (ii) that the same is apportioned among them on an equitable basis, the Tribunal shall have power, wherever necessary, to re open any arrangement already made in respect of maintenance, whether by a decree or order of a Court, award, or otherinstrument in writing or contract or family arrangement. (6) The balance of the aggregate compen sation shall be divided among the sharers, as if 292 they owned such balance as a joint Hindu family and a partition thereof had been effected among them on the notified date," Rajah Velugoti Kumara Krishna Yachendra, appellant in Appeal No. 117 of 1961, hereinafter called Krishna Bahadur, filed Original Petition No. 2300 of 1953 before the 'Tribunal. Three of his sons Ramakrishna Yachendra, Rajagopala Krishna Yachendra and Movva Gopala Krishna Yachendra, appellants in Civil Appeals Nos. 118, 119 and 116 of 1961, respectively, filed separate petitions. By their applications they raised the contentions that they were entitled to an amount in the compensation as sharers, as the impartible estate lost its character as such from the notified date and that the compensation payable with respect to their estate became partible and that in any case, they were entitled to the amount as creditors. It was further contended that the provisions of section 45 of the Act were ultra vires the State Legislature and were discriminatory and so void and that the maintenance amount be determined with respect to the amount of compensation and not with respect to the amount of compensation minus the amount of peishkush which was payable by the estate to the Government. None of these contentions was accepted by the Tribunal or by the Special Tribunal constituted in accordance with section 21 of the Act for bearing appeals against the orders of the Tribunal. The Tribunal fixed Rs. 75,000/ as the amount payable to Krishna Bahadur 's branch out of the sum of Rs. 12,11,419/ deposited as advance payment of compensation and further fixed the ratio of the value of the interests of Krishna Bahadur and the two brothers of the present Rajah, in the 1/5th of the advance compensation, at 75:75:92. The amounts 293 deposited as interim Payment were to be distributed in the same, ratio. The present Rajah, Sarvagna Kumara Krishna, had urged before the 'tribunal that the amount of maintenance to be paid to Krishna Bahadur 's branch should be calculated on a different basis which, in brief, may be said to be that the amount to which he be; held entitled out of the compensation should bear the same proportion to the total compensation as the monthly allowance payable to him under the document Exhibit A 1 bears to the income of the Estate in 1889 when that allowance of Rs. 1,000/per month was fixed. This contention also did not find favour with the Tribunal or the Special Tribunal on appeal. The Rajah has therefore filed Civil Appeals Nos. 120 to 123 of 1961. He has also filed two appeals Nos. 124 and 125 with respect to the interim payments made so Krishna Bahadur 's branch for the Fasli years 1359 and 1360 which were apportioned in accordance with the same principle which the Tribunal had adopted for the distribution of the maintenance allowance out of the advance compensation. The points urged for the appellants in appeals Nos. 116 to 119 are (1) Venkatagiri Estate was, impartible by custom that impartibility was recognized when disputes arose in 1889, that impartibility continued under the Madras Impartible Estates Act of 1904 but ceased when the Estate vested in the Government on September 7, 1949; (2) In these circumstances, the compensation Will not bear the character of impartibility as the property,, became the property of the joint family, the coparcenary having continued all through 294 (3)Section 45 and other provisions of the Act are ultra vires the State Legislature for want of legislative competence inasmuch as the said Legislature had no power to enact a law disturbing the rights of a joint family and also because the provisions of section 45 are discriminatory and offend article 14 of the Constitution as they provide for the maintenanceholders to get 1/5th out of the compensation while the proprietor and his sons are to get 4/5ths out of it after satisfying the claims of the creditors; (4) The appellants are not maintenanceholders, but creditors; (5) The amount of peishkush payable by the Venkatagiri Estate to the Government was not to be deducted from the compensation when calculating maintenance amount payable to the maintenance. holders. Now, the amount of peishkush payable to the Government had to be deducted out of the amount to be deposited under sub section (1) of section 54 A in view of the provisions of its sub section (2) which provides that from the amount to be deposited under sub section (1) the Government shall be entitled to deduct one half of all moneys, if any, due to them in respect of peishkush. Sub section (4) of section 54 A authorizes the Tribunal, after such enquiry as it thinks fit, to apportion the amount deposited in pursuance of that section, among the persons mentioned in that sub section as far as possible in accordance with the value of their respective interests and further provides that the provisions of sections 42 to 46 (both inclusive), shall apply mutatis mutandis in respect of the amount so deposited. It is true that the peshkash was a payment which the holder of the Estate had to make to the Government out of the income of the estate and that any arrears of peshkash remain a liability on the 295 estate. It was in view of this fact that s.55(1) of the Act which takes away the right of any land holder to collect any rent which had accrued to him from any ryot before the notified date and was outstanding on that, date empowers the manager appointed under section 6 to collect such rent and to pay the balance, if any, after making certain deductions specified in the section, including any arrears of peshkash to the landholder. The real compensation which is to be paid by the Government on the vesting of the estate must be equal to the amount of the value of the estate as such, minus the liabilities of the estate. What is to be distributed between the various persons entitled to the compensation must be the net amount and not the theoretical compensation for the estate as such. In this view of the matter too, the share of the maintenance holders will have to be calculated in the amount of compensation deposited, i. e., the amount of compensation minus the permissible deductions including peshkash. It is therefore clear that the Tribunal could not have ignored the deduction of peshkash from one half of the estimated amount of compensation payable in respect of the estate and had to apportion the amount deposited after taking into consideration such deduction. The contention for the appellants that the amount to be considered for calculating the share of the maintenance holders should have been taken at Rs. 19,00,000/ odd and not at Rs. 12,00,000/ odd, the actual amount of the deposit, is not sound. The next question is whether the allowance is a debt owed by the Rajah landholder to his brothers to whom the allowance was to be paid. It might have been so only if it was postulated that the Rajah had purchased the share of the other members of the family and was paying the sale price in the form of an allowance. This is, not what the document Exhibit A 1 recites. There is nothing in it to indicate 296 that the brothers of the Rajah to whom the estate had been made over by their father claimed a share in the estate after they had been told by their father that the estate was impartible. The sale price is normally fixed while the amount of allowance to be payable is an indefinite quantity depending upon length of time through which each of the brother 's branches continues to have a male member. The word 'allowance ' appears to have been used either as a dignified expression preferable in form to that of 'maintenance ' or due to the idea that the word ,maintenance ' is to be used appropriately only for the amounts to be paid to female members of the family in certain circumstances. The allowance referred to in the deed, Exhibit A. 1, as payable to Kishen Chander, father of Krishna Bahadur, is not akin to a debt owed by the Rajah to Kishen Chander. It is not made payable on account of certain loans taken by the Rajah, but is payable for maintenance, as the estate being impartible the other members of the family had a reasonable claim to maintenance. The only ground urged in support of the contention that the allowance is not an allowance for maintenance is that the word 'maintenance ' is used in the document A 1 in connection with the amount payable to the widows. A different terminology in referring to the amounts to be paid to Kishen Chander and his brothers does not change the character of the payment. The widows were to get a share out of the same allowance when there was no male member in the particular family. That amount cannot be a debt so long as it was payable to a male member and a maintenance when payable to a female member. Kishen Chander himself 'referred to this amount as maintenance in earlier proceedings. We therefore hold that the view expressed by the Courts below with respect to the nature of this allowance is correct. 297 The validity of section 45 of the Act on the ground of the ' competence of the Legislature of the State was not questioned in the High Court. The contention, however, is that the Act was made by the State Legislature by virtue of Entry 21 in List II of the Seventh Schedule to the Government of India Act, 1935, which reads: "Land, that is to say, rights in or over land, land tenures, including the relation of land lord and tenant, and the; collection of rents transfer, alienation and devolution of agricultural land ; land improvement and agricultural loans ; colonization; Courts of Wards; Encumbered and attached estates ; treasure trove. " The question of succession to the impartible estate does not come under this Entry and comes under Entry No. 7 of List III of the Seventh Schedule to the Government of India Act which reads : "Wills, intestacy, and succession, save as regards agricultural land. " The reply for the respondent is that the Act can come within either item No. 9 or item No. 21 or both, of List II ' of the Seventh Schedule to the Government of India Act, 1935. We are of opinion that the Act does not (teal with the succession to impartible estates. The Act acquires the impartible estate which vests in the Government on the notified date. The rights of the and holder in the estate cease on that date. The Act was enacted by the State Legislature by virtue of item No. 9, List II, Seventh Schedule to the Government of India Act which reads: "Compulsory acquisition of land. " The Act is not ultra vires the State Legislature Theattack on the validity of section 45 of the Act on 298 the ground of its contravening the provisions of Art 14 of the Constitution is not open to the appellants in view of article 31B which provides inter alia that not of the Acts specified in the Ninth Schedule nor any of the provisions thereof shall be deemed to be void or ever to have become void on the ,round that the Act takes away or abridges any of the rights conferred by any provisions of Part III. Article 14 is in that Part of the Constitution. The Act is mentioned at item No. 10 in the Ninth Schedule. We therefore hold that the provisions of section 45 of the Act are not void. The next question for determination is whether the appellants should have got share in the compensation as "sharers ' on account of the partible character of the estate reviving on the notified date as a result of the repeal of the Impartible Estates Act, 1904. We are concerned in these appeals with the distribution of advance compensation given and interim payments made in accordance with the provisions of the Act. We have held the relevant provisions to be valid. Therefore, the appellants can only ask for their share of the compensation in accordance with those provi sions. We do not consider it necessary to decide the question whether any property ceased to be impartible after the notified date and understand that an appeal in which the question directly arises is pending against a judgment in a civil suit holding that the buildings to which sub section (4) of section 18 applied were impartible and were owned by the Rajah. Even if the appellants had any right in the estate, (though we do not so decide), that right ceased on the notified date in view of the provisions of section 3 of the Act and thereafter they are entitled to such rights and privileges only as are recognized or conferred by or under the Act. Section 3 of the Act provides the consequences of notification of the estate. The relevant portions of section 3 are : " x x x x 299 (b) . the entire estate. shall stand transferred to the Government and vest in them. . (c) all rights and interests created in or over the estate before the notified date by the principal or any other land holder, shall as against the Government cease and determine x x x x x (e) the principal or any other landholder and any other person, whose tights stand transferred under clause (b) or cease and determine under clause (c), shall be entitled only to such rights and privileges as are recognized or conferred on him by or under this Act. , x x x x x (g)any rights and privileges which may have accrued in the estate, to any person before the notified date, against the principal or any other landholder thereof, shall cease and determine, and shall not be enforceable against the Government or such landholder, and every such person shall be entitled only to such rights and privileges as are recognized or conferred on him by or under this Act. ' The estate was impartible up to the moment it vested in the Government on the notified date. Whatever be the nature of the compensation payable, the distribution of the compensation between the persons who had an interest in the estate would be in accordance with the provisions of sub section (2) of section 45 which defines "sharers ' to be the principal landholder and his legitimate sons, grandsons and the great grandsons in the main line living, or in the womb on the notified date, including sons, grandsons and great grandsons adopted before such date. The appellants do not come under any of the persons mentioned in this 300 clause and therefore they cannot get, compensation as "sharers". The result of our findings is that all the four appeals nos. 116 to 119 of 1961 fail. The dispute in the remaining six civil appeals relates to the principle on which the amounts of maintenance payable to the persons entitled to it are to be calculated. The contention is that when the net income of the estate in 1889, was about Rs ' 6,00,000/ a year, the allowance payable to each brother was Rs '. 1,000/ per month and that therefore the value of the interest of each brother in the estate came to about 1/50th of the income. The amount payable to him now, it is urged should% bear the same proportion to the basic annual sum which is first calculated under the provisions of the Act and later capitalised to obtain the amount of compensation payable for the estate. The relevant provisions in connection with the apportionment of the maintenance allowance applicable to impartible estates are to be found in section 45 of the Act, Sub section (3) provides for determining the amount to which the creditors of the holder ' of the estate are entitled out of the assets of the estate. The amount due to them is first to be deducted from the compensation and out of the balance the maintenance holders as a body can have an amount equal to 1/5 th and no more. If the amount due to them comes to less than 1/5th they will get it as they had been getting in the past. If the , amount exceeds 1/5th of the aforesaid balance,, the tribunal has the authority, to re open any arrangement previously made in respect of maintenance and re assess the amount to paid to each maintenance holder, keeping in regard the provisions of sub section (5) There is nothing in this sub section which authorises the Tribunal to calculate the incidents of the amount of compensation on the income of the estate at the time it was fixed. Even in the present case, the amount of 301 maintenance allowance was not. fixed as a certain proportion of the net income of the estate but was fixed, according to document A 1, after considering several factors affecting the question as is apparent from the following statement in ' the document "The aforesaid mediator considered in full the status of all the claimants. the status and dignity, of the Estate and all the other matters deserving consideration and settled that the said Rajha. Rajagopala Krishna Yachendra. . of Venkatagiri should pay the allowances as mentioned below. " We are therefore of opinion,. that the Special Tribunal had held rightly that the apportionment of the advance payment of compensation and the interim payment had been made in accordance with the provisions of the Act. In view of what we have stated above, we dismiss all the appeals with costs, one :hearing fee for Civil Appeals Nos. 116 to 119 and one hearing fee for C I Appeals Nos. 120 to 125. Appeals dismissed.

IN-Abs

Consequent upon the notification under the Estates Abolition Act, the impartible Estate of Venkatagiri vested in the Government and on claims made under section 41 of the Act, the tribunal determined advance compensation to the various persons interested. On appeal against the decision of the Tribunal it was contended, that (1) the impartible character of the Estate ceased when the estate vested in the Government; (2) the compensation did not bear the character of impartibility as it became the property of the joint family ; (3) section 45 was a law altering the rights of distribution of property among the members of a joint family and wag beyond the legislative competence of the State Legislature ; (4) the law was discriminatory ; (5) the appellants were not maintenance holders but creditors; (6) the amount of "Paishkush" payable to the Government ought not to have been deducted from the compensation in calculating the amounts payable to the appellants, as the holder of the estate alone was liable to pay it. Held, that the first question was raised directly in another proceeding and it was not necessary to decide it in these proceedings which were only in respect of advance compensation. Held, further, that in respect of such compensation the proportion of distribution could only be, in accordance with the provisions of sub section 2 of section 45 of the Act by which alone the appellants were entitled to claim advance compensation. 281 (2)that the legislation was not one in respect of wills, intestacy and succession, under Entry 7, List 3, but under Entry 9 of List 2 of the Seventh Schedule of the Constitution. (3)that in so far as the legislation came within article 31 (B) of the Constitution it was not open to attack as offending article 14 of the Constitution. (4)the appellants were maintenance holders howsoever they had been described in the earlier documents and that the earlier documents did not constitute them as creditors of the holders of the estate. (5)The distributable compensation could only be arrived at afterdeducting the liabilities mentioned in the proviso to section 41 (1) due from the estate to Government from the amount of compensation for the estate and that section 54 (A) (ii) required that half of those liabilities (including Peshkash) due to the Government be deducted from half the amount of compensation which was to be distributed under section 54A (i). Held, further, that in the other appeal proportion of 1/5th fixed by section 45 had been rightly applied and that the contention that the proportion should have been that which the allowances in the earlier documents bore to the total income in the year 1889, was not tenable.

Appeal No. 139 of 1962. Appeal from the Judgment and Decree dated the 17th March, 1950, of the High Court of Judicature at Madras (Horwill and Balakrishna Ayyar JJ.) in O.S.A. No. 34 of 1947, arising out of 791 the Judgment and Decree dated the 18th April, 1947, of the said High Court (Clark J.) in the exercise of the Ordinary Original Civil Jurisdiction of the High Court in C. section No. 208 of 1940. V. Rangachari (K. Mangachary, with him) for the appellant. K. Krishnaswami Iyengar (K. Parasuram, with him) for the respondent. March 20. The Judgment of the Court was delivered by MAHAJAN J. The dispute in this appeal is between a constituent and a firm of stock brokers. Some time before April, 1936, the plaintiff, then a young man, came into possession of property worth about 2 lakhs of rupees on a partition between him and his brothers. In the hope of getting rich by obtaining quick dividends by speculating on the stock exchange be, through the defendant firm and certain other stockholders, entered into a series of speculative transactions and it seems he did not fare badly in the beginning. But subsequent events tell a different tale. In 1937, two iron and steel companies in North India, vie., Indian Iron & Steel Co. Ltd., and the Bengal Iron & Steel Co. Ltd., merged into one concern and a new issue of shares was made. The scheme was that for every five shares which a person held in the Indian Iron Co. Ltd. on 22nd April, 1937, one fully paid up share would be given to him at a price of Rs. 25. The market price at the time this scheme was announced was about Rs. 55 per share. A wave of speculation followed this announcement and there was a boom in the market. Prices of Indian Iron shares were going up to unreal heights. To stabilize the situation thus created by heavy speculation, three members of the Committee of the Calcutta Stock Exchange presented a petition to the Committee on 5th April, 1937, to close the Calcutta Stock Exchange 792 for a while. On the same evening plaintiff 's stockbroker Annamalai Chettiar, who was carrying on business in firm name Trojan & Co., had telephonic conversation with one Ramdev Chokani, a member of the Calcutta Stock Exchange, on this subject and from this conversation he gathered that a sharp fall in the prices of Indian Irons was likely. At that time Annamalai Chettiar had on his bands some 5,000 of these shares. Shortly after this conversation and after business hours the same night, between the hours of 7 30 and 8 30, Annamalai Chettiar rang up the plaintiff and suggested to him that it would be a good thing for him to buy these shares. The youthful plaintiff in his anxiety to got rich quickly accepted the suggestion and purchased these shares, some at Rs. 77 and others at Rs. 77 4 0. Another firm of brokers, Ramlal & Co., had also in their hands another 4,000 of these shares. They too found in the plaintiff a ready buyer. They also contacted him on the phone after Annamalai had done so, and sold him 4,000 shares that they held. Out of the lot which the plaintiff purchased from the defendants he sold 1,300 shares to Ramanathan Chetti at cost price. On the 6th April the Committee of the Calcutta Stock Exchange Association passed a resolution closing the Stock Exchange on the 8th and 9th April. From the 6th April onwards the market sagged and the prices came down, at first gradually and then literally at a, run. The result of it was that the plaintiff had to sell at a very heavy loss. The defendants made demands on the plaintiff for the price of those shares. Between 5th April and 20th April, 1937, he made payments to defendants of various amounts totalling Rs. 60,000. A lot of 700 shares was sold by the plaintiff to Pilani & Co. and on 19th April, 1937, he instructed the defendants.for sale of the remaining 3,000 shares at the best price obtainable. The defendants sold 2,000 shares on 20th April, 1937, for prices ranging between Rs. 47 4 0 to 793 Rs.44 12 0 per share. The remaining 1,000 shares were sold by him through Messrs. Ramlal & Co. at Rs. 42 8 0 per share on 22nd April, 1937. The result of it was that on 22nd May, 1937, when the accounts between the plaintiff and the defendants were settled it was found that plaintiff was heavily indebted to them in the sum of Rs. 51,712 7 0 and the credit balance of Rs. 64,000 that he had with the defendants at the end of March, 1937, had been wiped off. For the amount found due he passed a promissory note in favour of defendants, Exhibit P 33. After giving credit for payments received on the promissory note the defendants filed a suit against him (O.S. 150 of 1937) on the Original Side of the Madras High Court and obtained an ex parte interim order for attachment before judgment and attached plaintiff 's movable and immovable properties at Madras, and also at Kottaiyur in Ramnad district. Owing to the attachment proceedings the firm of Ramlal & Co. filed a petition for adjudication of the plaintiff as an insolvent. On 22nd September, 1937, Trojan & Co. also filed a petition for the same relief. An order adjudicating the plaintiff an insolvent was made by the High Court on 5th October, 1937, on the petition of Ramlal & Co. In the course of the insolvency proceedings defendants tendered proof of their claim on the promissory note, Exhibit P 33. The Official Assignee having acquired knowledge about the telephonic conversation that had passed between Annamalai Chettiar and Ramdev Chokani on the evening of the 5th April, 1937, came to the conclusion that the insolvent had been a victim of a fraud perpetrated by the defendants and dismissed their claim. Defendants firm was guilty of fraud both in respect of the failure to disclose the fact that the Indian Iron shares or most of them be longed to one of its partners, Annamalai Chettiar, and also on account of the failure on its part to disclose its knowledge of the likelihood of a slump in the market because of the notice given by its members to close the Stock Exchange. 794 On an application made to the High Court against the order of the Official Assignee it was set aside by Mockett J. and he directed that the claim of the defendants be disposed of on a court motion, the claim being heard as if it were a suit. In pursuance of this direction Trojan and Co. on 29th September, 1938, filed an application in the High Court, No. 313 of 1938. The Official Assignee representing the estate of the plaintiff denied its liability on the promissory note on the ground of fraud. On 15th March, 1940, Somayya J. dismissed the claim of the defendants. He held the defendants firm guilty of fraud in both respects. From this there was an appeal which was dismissed on 12th August, 1942. The defendants applied for leave to appeal to His Majesty in Council but leave wag refused. Defendants then applied to the Privy Council for special leave and that application was also dismissed some time in October, 1943. On the 28th September, 1940, when the appeal from the decision of Somayya J. was still pending, the Official Assignee as representing the estate of the plaintiff filed the suit out of which this appeal arises against Trojan & Co. for an account of the transactions between himself as principal and the defendants as agents and claiming damages for loss sustained by him and for various other reliefs. The suit embraced in particular claims in respect of four transactions. The first related to the 5,000 Indian Iron shares. The second referred to a transaction of Associated Cements. On 22nd March,1937, the plaintiff had sold through the defendants 5O shares in Associated Cements at Rs.180 8 0 per share. On 30th March, 1937, he had similarly sold a further 200 shares in Associated Cements at Rs. 183 per share. The plaintiff did not have on hand even a single share in Associated Cements. It became necessary for him therefore to "cover the sales". On 21st July, 1937, defendants purchased on plaintiff 's account 100 shares at Rs. 161 12 0 per share. On 1st September, 1937, they purchased a further 150 shares at 795 Rs. 151 a share. The difference between the prices at which these shares had been sold and bought amounted to Rs. 6,762 8 0 and for this amount the defendants gave the plaintiff credit by adjusting it towards the promissory note account. In respect of this transaction the case of the Official Assignee was that the purchase which had been made by the defendants was not only unauthorized, but contrary to instructions and was not valid and binding on the plaintiff as it had been made after the commencement of the insolvency. No claim was made in the alternative that if this contention failed, the plaintiff was entitled to recover the amount credited towards the promissory note on the ground of failure of consideration. The third transaction related to 300 shares in Tatas, and the fourth one was in respect of shares in Ayer Mani Rubber Co. The last claim was abandoned at the trial and the claim on the third transaction was decreed in favour of the plaintiff and the correctness of the order of the trial judge was not canvassed in the appeal before the High Court. The amount decreed as regards these 300 shares was in the sum of Rs. 1,050. The defendants denied liability for the entire claim and pleaded that they were not guilty of any fraud and that in any case the plaintiff was not entitled to claim any damage, as he could have easily sold away all his shares soon after his purchase without incurring any loss, and that he retained them in order to make profit. The suit was first heard by Bell J. who decreed the claim of the plaintiff on 9th March, 1943. The defendants appealed. The appellate court set aside the decision of Bell J. and 'remanded the suit for fresh disposal on 26th August, 1944. Meantime, that is to say, on 21st February, 1944, the adjudication of the plaintiff was annulled and on his application he was brought on the record in the place of the Official Assignee and he continued the suit. Clark J. who tried the suit after remand gave a decree in favour of 103 796 the plaintiff for the sum of Rs. 61,787 9 0 with interest at the court rate of six per cent. per annum from 1st September, 1937, until payment or realization with costs. Against this decree the defendants preferred an appeal. The appellate Bench modified the decree of Clark J., and reduced the amount of the decree by a sum of Rs. 9,100. Each party was made to pay proportionate costs throughout. Leave to appeal to this court against the decree was granted and the appeal is now before us under the certificate so granted. As above stated, the claim in respect of Ayer Mani Rubber shares was abandoned at the trial and the claim on the third transaction relating to 300 shares in Tatas was decreed for the sum of Rs. 1,050 and the correctness of this order was not canvassed in the appeal before the High Court. The two claims discussed in that court were in respect of the trans action of 5,000 Indian Iron shares and in respect of the transaction made in Associated Cements. The dispute before us so far as the Indian Iron shares are concerned has narrowed down to the question of quantum of damages in respect of 3,000 out of the 5,000 shares that were transferred by the defendants to the plaintiff on the night of the 6th April, 1937, 1,300 out of these shares having been sold at cost price by the plaintiff the day after the purchase, and 700 having been sold to Pilani & Co., and regarding which the plaintiff 's claim was rejected in the High Court and plaintiff preferred no further appeal. The finding of Somayya J., that the defendants firm was guilty of fraud both in respect of the failure to disclose the fact that the Indian Iron shares or most of them belonged to one of its partners, Annamalai Chettiar, and also on account of its failure to disclose its knowledge of the probable slump in the market by reason of the notice given by three members of the Stock Exchange to temporarily close it, was not contested before Clark J., and it was conceded that that finding had become final. The main ques tion canvassed at this trial was whether the plaintiff 797 had suffered any damage as a consequence of this fraud and if so, how were the damages to be measured. In the plaint plaintiff claimed that he was entitled to be recompensed for all loss and damage which he had suffered. A sum of Rs. 45,042 9 0 was credited in his account in respect of the sale of 3,000 shares made on 20th and 22nd April, 1937. He claimed the whole of this amount as damages on this count; in other words, according to the plaintiff, the damage suffered by him was to be measured according to the difference between the purchase price of the shares and the price for which they were ultimately sold. The shares were bought on 5th April at Rs. 77 and Rs. 77 4 0 and sold at prices ranging between Rs. 42 8 0 and Rs. 47 4 0 on the 20th and 22nd April, 1937. This method of measuring damages was successfully challenged by the defendants before the trial judge. Clark J., in spite of holding that the measure of damages in a case like this could not be as suggested by the plaintiff, estimated the damage suffered by him at the difference between the rate at which the plaintiff purchased the shares and the rate at which he actually sold them, on the ground that the price at which he sold them was more than the fair value of these shares realizable on the 6th April, 1937, between bona fide purchasers and sellers having knowledge of the real state of affairs. Before the appeal Bench of the High Court it was contended that the trial judge was in error in his assessment of the real value of these shares on 5th April, 1937, and that in any case they could not be valued at four different rates. It was urged that. damages had been over estimated. This contention was negatived and it was held that in the circum stances of this case it could not be said that the plaintiff acted unreasonably in holding on to the shares for the time that be did and that the defendants had by their own double dealings placed the plaintiff in a difficult position. The learned counsel for the appellant reiterated before us the contentious raised by him in the High 798 Court and urged that the true measure of damages in actions like this is the difference between the price paid and the real value of the shares at the time of the transaction, and that any loss caused to the plaintiff by his retaining the shares after that date could not be decreed. It was strenuously contended that had the plaintiff sold the remaining shares like the 1,300 he sold, he would not have suffered any damage whatsoever, as the market price of these shares on the 6th and 7th was not below the cost price. It was said that the loss that the plaintiff suffered was merely due to the circumstance that he retained the shares for a fortnight, and was not as a consequence of the fraud. Lastly, it was contended that even if it could be held that the market on the 6th and 7th was affected by the very fact concealed from the plaintiff, its effect disappeared by the 10th April, when the fact became fully known and damage should have been assessed on the difference between the market price of these shares which ruled at Rs. 62 per share on 10th April, 1937, and their cost price. Now the rule is well settled that damages due either for breach of contract or for tort are damages which, so far as money can compensate, will give the injured party reparation for the wrongful act and for all the natural and direct consequences of the wrongful act. Difficulty however arises in measuring the amount of this money compensation. A general principle cannot be laid down for measuring it, and every case must to some extent depend upon its own circum stance. It is, however, clear that in the absence of ,any special circumstances the measure of damages cannot be the amount of the loss ultimately sustained by the representee. It can only be the difference between the price which he paid and the price which he would have received if he had resold them in the market forthwith after the purchase provided of course that there was a fair market then. The question to be decided in such a case is what could the plaintiff have obtained if he had resold forthwith that which he bad been induced to purchase by the fraud 799 of the defendants. In other words, the mode of dealing with damages in such a case is to see what it would have cost him to get out of the situation, i.e., how much worse off was his estate owing to the bargain in which he entered into. The law on this subject has been very appositely stated in McConnel vs Wright(1) by Lord Collins in these terms: "As to the principle upon which damages are assessed in this case, there is no doubt about it now. It has been laid down by several judges, and particularly by Cotton L. J. in Peek vs Derry(2), but the common sense and principle of the thing is this. It is not an action for breach of contract, and, therefore, no damages in respect of prospective gains which the person contracting was entitled by his contract to expect to come in, but it is an action of tort it is an action for a wrong done whereby the plaintiff was tricked out of certain money in his pocket ; and therefore, prima facie the highest limit of his damages is the whole extent of his loss, and that loss is measured by the money which was in his pocket and is now in the pocket of the company. That is the ultimate, final, highest standard of his loss. But, in so far as he has got an equivalent for that money, that loss is diminished; and I think, in assessing the damages, prima facie the assets as represented are taken to be an equivalent and no more for the money which was paid. So far as the assets are an equivalent, he is not damaged; so far as they fall short of being an equivalent, in that proportion he is damaged. " The sole point for determination therefore in the case is whether the shares handed over to the plaintiff were an equivalent for the money paid or whether they fell short of being the equivalent and if so, to what extent. Ordinarily the market rate of the shares on the date when the fraud wag practised would represent their real price in the absence of any other circumstance. If, however, the market was vitiated or was in a state of flux or panic in consequence of the very fact that was fraudulently concealed, (1) (2) 800 then the real value of the shares has to be determined on a consideration of a variety of circumstances disclosed by the evidence led by the parties. Thus though ordinarily the market rate on the earliest date when the real facts became known may be taken as the real value of the shares, never theless, if there is no market or there is no satisfactory evidence of a market rate for some time which may safely be taken as the real value, then if the representee sold the shares, although not bound to do so, and if the resale has taken place within a reasonable time and on reasonable terms and has not been unnecessarily delayed, then the price fetched at the resale may well be taken into consideration in determining retrospectively the true market value of the shares on the crucial date. If there is no market at all or if the market rate cannot, for reasons referred to above, be taken as the real or fair value of the thing and the representee has not sold the things, then in ascertaining the real or fair value of the thing on the date when deceit was practised subsequent events may be taken into account, provided such subsequent events are not attributable to extraneous circumstances which supervened on account of the retaining of the thing. These, we apprehend, are the well settled rules for ascertaining the loss and damage suffered by a party, in such circumstances. If damages had been measured on the rules above stated by the courts below, this court would have then respected the concurrent finding on this point as the question of assessment of damages primarily is a question of fact and the concurrent findings of the courts below on such points except in very exceptional circumstances are not reviewed by this court. We however find that in spite of the circumstance that the courts below correctly enunciated the rule of measuring damages in such cases, they estimated them on the difference between the cost price and the price realized at the sale on the 20th and 22nd at four different rates. These four rates could obviously not represent the true value of the shares on the 5th. 801 Moreover the finding that the true value of these shares was lower than what was actually realized on their resale on the 20th and 22nd is not based on any evidence whatsoever. Such a finding could only be arrived at on the basis of evidence on the record and by reference to that evidence, and this has not been done. The High Court did not make an attempt to find out to what extent the value of the 'Shares fell short of being an equivalent for the money taken from the plaintiff. Without determining this crucial issue we think it was not right to estimate the damage on the vague finding that the true value of the shares was lower than the value which they fetched at the resale on the 20th and 22nd. In this situation, we have no alternative but to arrive at our own finding on this question in spite of the concurrent finding and we have to find as to what could be said to have been the true value of these shares on the relevant date. In other words, the question for our determination is what the market value would have been on 5th April of these shares if all buyers and sellers had information that the market was to be closed on 8th and 9th April to enable settlement of outstanding transactions to be effected, and had appreciated the effect of that decision. In the words of Buckley J. in Broome vs Speak(1), it is indeed a difficult question to answer beat that difficulty is no ground for refusing to answer it as has been done by the court below. in order to determine the real price of these 3,000 shares sold to plaintiff by concealment of certain facts, the first question that needs decision is whether the market for these shares, the rate prevailing wherein would prima facie be a true index of their value, had been affected by the very fact concealed of which the plaintiff complains. In this case from the proved facts it is clear that the market rate of these shares was seriously affected by reason of the impending decision of the Stock Exchange for closing it to stop the wave of speculation that had taken the frenzy of the market by reason of the merger of the two steel (1) [1931] I. Ch. 802 companies doing business in northern India. The market reports for the week ending March 19, show that the Indian Irons were standing at or around Rs. 55. By Satur day the 3rd April after the announcement of the terms of the merger by reason of the keen speculation the shares were being dealt at around Rs. 73. On Monday the 6th April the price was Rs. 77. On Tuesday the 6th, the day when the decision was taken to close the market for two days, these shares touched Rs. 79 but by the close of business fell back to Rs. 72 a sudden drop of Rs. 7. On Wednesday the 7th April in the Calcutta market they closed at Rs. 58, a drop of Rs. 14 in a day. These sudden rises and falls in the market during the course of these two days are sufficient indication of the fact that the drop was due to the decision of the Stock Exchange to close the Exchange for two days. There is no evidence that any other factor was then disturbing the market rate of these shares. The share market report of the defendants themselves issued on 10th April, 1937, amply bears out this fact. In this report it was stated as follows : " The outstanding feature of the Indian markets during the week under review was the sudden landslide in Indian Iron and Steel shares, which proved infectious to the other sections of the market. The week opened with a cheerful bullish sentiment and Indian Iron and Steels touched Rs. 80. At this dizzy height, the markets lost their equilibrium and frenzied selling resulted in a sensational decline of about 25 points. The heavy liquidation was due to a predominance of weak holders that had come into the market at a late stage. Further, selling was accentuated by the decision of Calcutta Stock Exchange to close the Calcutta market on the 8th and 9th April to enable brokers to make deliveries and effect settlements for transactions in Indian Iron and Steel shares. Heavy volume of business has been outstanding between brokers on account of the delay in getting certificates. Prospect of immediate delivery of share certificates scared off weak holders and prices declined on heavy liquidation. " 803 It is clear therefore that the decision of the calcutta Stock Exchange to close the Calcutta market on 8th and 9th affected the market prices considerably. The Calcutta market on the 7th dropped from 72 to 58 as already stated. The decision of the Calcutta Stock Exchange was published in the Hindu of Madras on the evening of the 7th. From the statement of account, Exhibit P 41, filed by Trojan & Co. on 7th, about half a dozen transactions in these shares took place through them. Most of the transactions, it appears, were by small holders of 100 scrips or so, who unloaded their shares between 71 to 60 per share. On the 8th three transactions took place at Rs. 62. No transaction took place between 8th and 14th. There were two transactions on the 14th at Rs. 56, and there was a transaction on the 16th at Rs. 57 8 0. On the 20th Trojan and Co. sold 2,000 of the plaintiff 's shares at rates varying between Rs. 44 12 0 and Rs. 47 4 0. According to the statement of account of another broker, Ramlal & Co., there were about 16 transactions in these shares on the 7th. Most of them were sold in lots of 100 or 200 and the sale price of these shares ranged from Rs. 74 to 64. On the 8th there were a few transactions, the rates varying between Rs. 57 to Rs 66. There was a transaction on the 9th at Rs. 60. There were two or three transactions on the 10th also near about this rate. No transaction after the 10th made by this company has been exhibited on the record. Exhibit P 23 is another weekly share market report of Trojan & Co. issued on 17th April, 1937. It states as follows : "In the first place, Indian Irons are very cheap around Rs. 46. The company is doing extremely well and the stage is set for a steady rise to Rs. 70. . . Indian Iron and Steels fluctuated between Rs. 55 to Rs. 60 and closed at Rs. 47. The recent hectic speculation has brought its own nemesis. " This report proves that there was really no market as it appears from the evidence on the record in 104 804 Madras between the 8th and 17th which was a Saturday, and on the 17th the prices seemed to be settling down at Rs. 46. On the 19th the plainti gave to the, defendants an order to sell his 3,000 shares and it was said "Please retain this order till executed". The defendants were only able to dispose of 2,000 of these shares on the 20th at prices varying between Rs. 44 12 0 to Rs. 47 4 0. The remaining 1,000 shares the plaintiff was able to sell through Ramlal and Co. at Rs. 42 8 0 on 22nd April, 1937. It is quite possible and probable that had the plaintiff placed an order before the 19th, say on the 16th or 17th, with the defendants or with Ramlal & Co., he might have been able to sell these 1,000 shares also at about the same price as he was able to dispose of his 2,000 shares. No member of the defendants firm gave evidence in the case. Plaintiff went into the witness box and stated that had he known what the defendants knew, he would not have purchased the shares. The information was withheld from him that these shares were likely to godown. He said that he was told by the defendants to sell the shares but no purchasers were available and in spite of his keenness to liquidate them he was not able to do so before the 20th and 22nd, that he approached Trojan & Co., the defendants firm for selling them, but they were not able to sell more than 2,000 shares. ' Considering the whole of this material, we are satisfied that the market rate prevailing on the 5th, 6th and 7th had been affected by reason of the decision of the Calcutta Stock Exchange to keep the market closed on the 8th and 9th and the market did not settle down till about the 17th or 18th and the prices then ruling can in the circumstances of this case be said to be their true market price. In our judgment, Rs. 46 per share was the real price of these shares when they were put in the plaintiff 's pocket and he got Rs. 46 for each share in lieu of what he paid for either at Rs. 77 or at Rs. 77 4 0. He is entitled to commission also which he would have to pay on the sale of these shares. The difference between these 805 two rates is the damage that he has suffered and he is entitled to it. For the reasons given above we modify the order passed by Clark J., and by the appellate Bench of the High Court to the extent indicated above and we estimate the plaintiff 's damage at Rs. 93,000 on account of the 3,000 shares at the rate of Rs. 31 per share. The second question canvassed before the High Court and also before us was in respect of the Associated Cement shares. As above stated, the plaintiff 's account was credited in the sum of Rs. 6,762 8 0 on account of the purchase of these shares. Plaintiff had pleaded that the transaction was not authorised by him and that it had been made in contravention of his instructions. He had claimed compensation on the ground of breach of instructions he did not in the alternative claim on the ground of failure of consideration the amount credited by the defendants in the promissory note account and which credit disappeared by reason of the failure of the suit on the promissory note. At the hearing of the case before Bell J. the contention that the purchase was unauthorized was abandoned by counsel and the same position was adopted before Clark J. During cross examination of the plaintiff it was elicited that he either instructed the defendants to purchase the shares or at any rate ratified the purchase which the defendants had made on his behalf. It was argued before the appellate Bench of the High Court that having pleaded one thing and having led evidence in support of that thing but later on having been forced to admit in the witness box that the true state of things was different the plaintiff had disentitled himself to relief as regards these shares and he could not be granted the relief that he had not asked for. The High Court negatived this contention on the ground that though a claim for damages in respect of a particular transaction may fail, that circumstance was no bar to the making of a direction that the defendants should pay the plaintiff the money actually due in respect of that particular transaction. It also held 806 that the plaintiff 's claim in respect of this item of Rs.6,762 8 O was with in limitation. We are unable to uphold. the view taken by the High Court on this point. It is well settled that the decision of a case cannot be based on grounds outside the pleadings of the parties and it is the case pleaded that has to be found. Without an amendment of the plaint the court was not entitled to grant the relief not asked for and no prayer was ever made to amend the plaint so as to incorporate in it an alternative case. The allegations on which the plaintiff claimed relief in respect of these shares are clear and emphatic. There was no suggestion made in the plaint or even when its amendment was sought at one stage that the plaintiff in the alternative was entitled to this amount on the ground of failure of consideration. That being so, we see no valid grounds for entertaining the plaintiff 's claim as based on failure of consideration on the case pleaded by him. In disagreement with the courts below we hold that the plaintiff was wrongly granted a decree for the sum of Rs. 6,762 8 0 in respect of the Associated Cement shares in this suit. Accounts settled could only be reopened on proper allegations. The next point canvassed in the courts below was in respect of the claim of the plaintiff regarding interest on the amount found due to the plaintiff from 5th April, 1937, to the date of the suit. It was contended that no interest could be allowed on damages because to do so would amount to awarding damages on damages which is opposed to precedent and principle. Clark J., however, awarded interest by placing reliance on certain English decisions which enunciate the rule that an agent who receives or deals with the money of his principal improperly and in breach of his duty or who refused to pay it over on demand is liable to pay interest from the time when he so receives or deals with the same or from the time of the demand. We think it is well settled that interest is allowed by a court of eqity in the case of money obtained or retained by fraud. As 807 stated in article 423 of Volume 1 of Halsbury, the agent must also pay interest in all cases of fraud and on all bribes and secret profits received by him during his agency. Their Lordships of the Privy Council in johnson vs Rex(1) observed as follows: "In order to guard against any possible misapprehension of their Lordships ' views they desire to say that in their opinion there can be no doubt whatever ' that money obtained by fraud and retained by fraud can be recovered with interest, whether the proceedings be taken in a court of equity, or a court of law, or in a court, which has jurisdiction both equitable and legal. " The appeal court affirmed the view of Clark J. on this point. The learned counsel for the appellant contended that the decisions relied upon concerned cases where the agent had retained some money of his principal in his hands but that in the present case the claim was merely for damages. This contention is fallacious. By reason of the transaction brought about by fraudulent concealment plaintiff paid to the defendants a sum of Rs. 60,000 in cash which he would not have parted with otherwise and he also lost the money which stood at his credit with the defendants. It is thus clear that the agents had a large sum of the plaintiff with them which they would not have acquired but by reason of the fraud that they practised on him. In this view of the case we see no force in the contention of the learned counsel and we repel it. The only other point that was argued before us was in respect of future interest. It was not denied that plaintiff was entitled to future interest as allowed to him at the rate of 6% on the amount found due. it was however argued that the plaintiff should not have been allowed interest for the period of one year and six months during which the decree stood satisfied. The facts are that on 9th March, 1943, a decree for Rs. 51,805 1 0 carrying interest at six per cent. was (1) 808 passed in favour of the plaintiff. On the 11th May, 1943, an amount of Rs. 71,000 due under this decree was paid by the defendants to the Official Assignee. This amount was returned by the Official Assignee to the defendants on 12th September, 1944, after that decree had been set aside. Meanwhile the plaintiff 's adjudication had been annulled and he had been brought on the record on 16th March, 1944. It was contended that during the period when the money remained with the Official Assignee who was the plaintiff no future interest was payable as the decree stood satisfied during that period. The High Court rejected this contention on the ground that when this money was paid into court, it was coupled with a prayer that it should not be paid out to the creditors of the insolvent 's estate pending disposal of the appeal, and therefore as the money was not distributable amongst the insolvent 's creditors, interest for this period had been rightly allowed. In our opinion, this view cannot be sustained. So far as the defendants judgment debtors are concerned they had done their part and paid the money to the decree holder and had thus satisfied the decree. It was open to the Official Assignee, the decree holder, not to take the money on the condition on which it was given to him and if he had not taken the money from the defendants he could then justly have claimed future interest on this amount, but having taken the money and kept it, it could not be said that during this period anything was due to the plaintiff from the defendants. The defendants certainly had paid the decretal amount and whether the plaintiff or his predecessor in interest was able to use it or not was a circumstance wholly immaterial in considering whether future interest should or should not be allowed. In our judgment, the plaintiff was not entitled to future interest at the rate allowed for one year and six months period, beginning from 9th March, 1943, and ending with 12th September, 1944. The appeal is therefore allowed to the extent indicated above. The decree of the High Court will be 809 modified and plaintiff will be entitled to damages in the sum of Rs. 93,000 on the 3,000 Indian Iron shares. The decree given to the plaintiff in respect of ' Rs. 6,762 8 0 is set aside over and above the ' decree for Rs. 9,100 in his favour set aside by the High Court. In the calculation of future interest the plaintiff will not be allowed interest from 9th March, 1943, to 12th September, 1944. In the result the decree given to the plaintiff in the sum of Rs. 61,787 is reduced to Rs. 42,175. He will get interest at six per cent. per annum from 5th April, 1937, until payment or realization except for a period of one year and six months. Plaintiff will get proportionate costs throughout. Appeal allowed in part.

IN-Abs

Where a person is induced to purchase shares at a certain price by fraud the measure of damages which he is entitled to recover from the seller is the difference between the price which he paid for the shares and the real price of the shares on the date on which the shares were purchased. Ordinarily the market rate of the shares on the date when the fraud was practised would represent their real price in the absence of any other circumstance. If, however, the market was vitiated or was in a state of flux or 790 panic in consequence of the very fact that was fraudulently concealed, then the real value of the shares has to be determined on a Consideration of a variety of circumstances, disclosed by the violence led by the parties. A firm of sharebrokers sold 3,000 shares to the plaintiff who was a constituent of the firm, on the 5th April, 1937, at Rs. 77 and Rs. 77 4as, per share without disclosing to the plaintiff the fact that the shares were owned by one of the partners of the firm and also the fact that they had received telephonic information on that day from a member of the Stock Exchange that there was going to be a sharp decline in the price of the shares. On the 6th April the Stock Exchange Association passed a resolution for closing the Exchange on the 8th and 9th April. The plaintiff had to sell 2,000 shares through the defendants on the 20th April at Rs. 47 to Rs. 42 per share, and 1,000 shares on the 22nd April at Rs. 428as. The High Court awarded the difference between the price paid by the plaintiff and the prices fetched on resale as damages. On appeal, Held, that the prices received at the resale on the 20th and 22nd April could not represent the true value of the shares on the 5th April. The real question for determination was what the market value would have been on the 5th April of these shares if all the buyers and sellers know that the Stock Exchange was to be closed on the 8th and 9th April. Held also that the plaintiff was entitled to get interest on the amount awarded as damages from the 5th April till the date of suit on the principle that where money is obtained or retained by fraud a court of equity will order it to be returned with interest. Johnson vs Rex ([1904] A.C. 817) referred to. It is well settled that the decision of a case cannot be 'based on grounds outside the pleadings of the parties and that it is the case pleaded that has to be found. Where the plaintiff based his claim for a certain sum of money on the ground that the defendants had sold certain shares belonging to him without his instructions, but he was not able to prove that the sale was not authorised by him: Held, reversing the decision of the High Court, that the plaintiff could not be given a decree for the sum claimed on the ground of failure of consideration, as he had not set up any such alternative claim in the plaint or even at a later stage when he sought to amend the plaint.

iminal Appeal No. 213 of 1960. Appeal by special leave from the judgment and order dated March 24, 1960, of the Punjab High Court (Circuit Bench)Delhi in Criminal Appeal Case No. 41 D of 1958. H. L. Anand, and K. Baldev Mehta, for the appellant. V. D. Mahajan and P. D. Menon, for the respondent. November 29. The Judgment of the Court was delivered by 587 SUBBA RAO J. This appeal by Special leave raises the question as to the true meaning of the expression "fraudulently ' in section 464 of the Indian Penal Code. The facts either admitted or found by the courts below may be briefly stated. The appellant is the wife of Siri Chand Kaviraj. On january 20, 1953, she purchased an Austin 10 Horse Power Car with the registration No. DLA. 4796 from Dewan Ram Swarup in the name of her minor daughter Nalini aged about six months at that time. The price for the car was paid by Dr. Vimla. The transfer of the car was notified in the name of Nalini to the Motor Registration Authority. The car at that time was insured against a policy issued by the Bharat Fire & General Insurance Co., Ltd., and the policy was due to expire sometime in April, 1953. On a request made by Dewan Ram Swarup, the said policy was transferred in the name of Nalini. In that connection, Dr. Vimla visited the Insurance Company 's Office and signed the proposal form as Nalini. Subsequently, she also filed two claims on the ground that the car met with accidents. In connection with these claims, she signed the claim forms as Nalini and also the receipts acknowledging the payments of the compensation money as Nalini. On a complaint made by the company alleging fraud on the part of Dr. Vimla and her husband, the police made investigation and prosecuted Dr. Vimla and her husband Siri Chand Kaviraj in the Court of Magistrate 1st Class Delhi. The 'Magistrate committed Dr. Vimla and her husband to Sessions to take their trial under sections 120 B, 419, 467 and 468 of the Indian Penal Code. The learned Sessions judge held that no case had been made out against the accused under any one of those sections and on that finding, acquitted both of them. The State preferred an appeal to the High Court of Punjab and the appeal was disposed of by a Division Bench of that court comprising Falshaw 588 and Chopra,JJ. The learned judges confirmed the acquittal of Siri Chand; but in regard to Dr. Vimla, they confirmed her acquittal under section 419 of the Indian Penal Code, but set aside her acquittal under sections 467 and 468 of the Code and instead, convicted her under the said sections and sentenced her to imprisonment till the rising of the court and to the payment of a fine of Rs. 100/ or in default to under , go simple imprisonment for two weeks. Dr. Vimla has preferred the present appeal by special leave against her conviction and sentence. The facts found may be briefly summarised thus : Dr. Vimla purchased a motor car with her own money in the name of her minor daughter, had the insurance policy transferred in the name of her minor daughter by signing her name and she also received compensation for the claims made by her in regard to the two accidents to the car. The claims were true claims and she received the moneys by signing in ,he claim forms and also in the receipts as Nalini. That is to say, Dr. Vim] a in fact and in substance put through her transactions in connection with the said motor car in the name of her minor daughter. Nalini was in fact either a benamidar for Dr. Vimla or her name was used for luck or other sentimental considerations. On the facts found, neither Dr. Vimla got any advantage either pecuniary or otherwise by signing the name of Nalini in any of the said documents nor the Insurance Company incurred any loss, pecuniary or otherwise, by dealing with Dr. Vimla in the name of Nalini. The Insurance Company would not have acted differently even if the, car stood in the name of Dr. Vimla and she made the claims and received the amounts from the insurance company in her name. On the said facts, the question that arises in this case is whether Dr. vimla was guilty of offences under sections 463 and 464 of the Indian Penal Code. 589 Learned Counsel for the appellant contends that on the facts found, the appellant would not be guilty of forgery as she did not "fraudulently" sign the requisite forms and the receipts in the name of Nalini, as. by so signing, she did not intend to cause injury to the insurance company. In other words, the contention was that a person does not act fraudulently within the meaning of section 464 unless he is not only guilty of deceit but also he intends to cause injury to the person or persons deceived, and as in the present case the appellant had never had the intention to cause injury to the insurance company and as on the facts found no injury had been caused at all to the company, the appellant could not be found guilty under the said sections. Before we consider the decisions cited at the Bar it would be convenient to look at the relevant provisions of the Indian Penal Code. Section 463 : Whoever makes any false document or part of a document with intent to cause damage or injury, to the public or to any person, or to support any claim or title, or to cause any person to part with property or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery. Section 464 : A person is said to make a false document First Which dishonestly or fraudulently makes, signs, seals or executes a document or part of a document, or makes any mark denoting the execution of a document, with the intention of causing it to be believed that such document/or part of a document was made, signed, sealed or executed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed or executed, or at a time 590 at which he knows that it was not made, signed, scaled or executed; or The definition of "false document" is a part of the definition of "forgery". Both must be read together. If so read, the ingredients of the offence of forgery relevant to the present enquiry are as follows , (1) fraudulently signing a document or a part of a document with an intention of causing it to be believed that such document or part of a document was signed by another or under his authority ; (2) making of such a document with an intention to commit fraud or that fraud may be committed. In the two definitions, both mens rea described in s.464 i. e., "fradulently" and the intention to commit fraud in section 463 have the same meaning. This redundancy has perhaps become necessary as the element of fraud is not the ingredient of other in tentions mentioned in section 463. The idea of deceit is a necessary ingredient of fraud, but it does not exhaust it; an additional element is implicit in the expression. The scope of that something more is the subject of may decisions. We shall consider that question at a later stage in the light of the decisions bearing on the subject. The second thing to be noticed is that in section 464 two adverbs, "dishonestly" and "fraudulently" are used alternatively indicating thereby that one excludes the other. That means they are not tautological and must be given different meanings. Section 24 of the Penal Code defines "dishonestly" thus : "Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing dishonestly". "Fraudulently" is defined in section 25 thus: " A perosn is said to do a thing fraudulently if he does that thing with intent to 591 defrand but not otherwise". The word "defraud" includes an element of deceit. Deceit is not an ingredient of the definition of the word "dishonestly" while it is an important ingredient of the definition of the word "fraudulently". The former involves a pecuniary or economic gain or loss while the latter by construction excludes that element. Further) the juxtaposition of the two expressions " 'dishonestly" and "fraudulently" used in the various sections of the Code indicates their close affinity and therefore the definition of one may give colour to the other. To illustrate, in the definition of "dishonestly", wrongful gain or wrongful loss is the necessary enough. So too, if the expresssion "fraudulently ' were to be held to involve the element of injury to the person or persons deceived, it would be reasonable to assume that the injury should be something other than pecuniary or economic loss. Though almost always an advantage to one causes loss to another and vice versa, it need not necessarily be so. Should we hold that the concept of fraud" would include not only deceit but also some injury to the person deceived, it would be appropriate to hold by analogy drawn from the definition of "dishonestly" that to satisfy the definition of " 'fraudulently" it would be enough if there was a non economic advantage to the deceiver or a non economic loss to the deceived. Both need not co exist. Let us now consider some of the leading text book writers and, decisions to ascertain the meaning of the word "fraudulently". The classic definition of the word "fraudulently" is found in Steplien 's History of the Criminal law of England, Vol. 2, at p. 121 and it reads "I shall not attempt to construct a definition which will meet every case which might 592 be suggested, but there is little danger in saving that whenever the words "fraud" or intent to defraud" or "fraudulently" occur in the definition of a crime two elements at least are essential to the commission of the crime : namely, first, deceit or an intention to deceive or in some cases mere secrecy ; and secondly, either actual injury or possible injury or to a risk of possible 'injury by means of that deceit or secrecy. . . This intent is very seldom the only, or the principal, intention entertained by the fraudulent person, whose principal object in nearly every case is his own advantage. . . . A practically conclusive test of the fraudulent character of a deception for criminal purposes is this : Did the author of the deceit derive any advantage from it which could not have been had if the truth had been known ? If so it is hardly possible that the advantage should not have had an equivalent in loss or risk of loss to someone else, and if so, there was fraud. " It would be seen from this passage that " 'fraud" is made up of two ingredients, deceit and injury. The learned author also realizes that the principal object of every fraudulent person in nearly every case is to derive some advantage though such advantage has a corresponding loss or risk of loss to another. Though the author has not visualized the extremely rare situation of an advantage secured by one without a corresponding loss to another, this idea is persued in later decisions. As regards the nature of this injury, in Kenny 's Outline of Criminal Law, 15th Edn., at p. 333, it is stated that pecuniary detriment is unnecessary. In Haycraft vs Creasy (1) LeBlanc, observed (1) ; 593 "by fraud is meant an intention to deceive; whether it be from any expectation of advantage to the party himself or from the ill will towards the other is immaterial. " This passage for the first time brings out the distinction between an advantage derived by the person who deceives in contrast to the loss incurred by the person deceived. Buckley. J., in Re London & Clobe Finance Corporation Ltd. (1) brings out the ingredients of fraud thus : "To deceive is, I apprehend, to induce a man to believe that a thing is true which is false, and which the person practising the deceit knows or believes to be false. defraud is to deprive by deceit: it is by deceit to induce a man to act to his injury ' More tersely it may be put, that to deceive is by falsehood to induce a state of mind; to defraud is by deceit to induce a course of action." The English decisions have been elaborately considered by the Court of Criminal Appeal in R. vs Welhant (2). In that case, hire purchase finance companies advanced money on a hire purchase form and agreement and on credit sale agreements witnessed by the accused. The form and agreements were forgeries The accused was charged with offences of Uttering forged documents with intent to defraud. It was not proved that he had intended to cause any loss of once to the finance companies. His intention had been by deceit to induce any person who was charged with the duty of seeing that the credit restrictions then current were observed to act in a way in which lie would not act if he had known the true facts, namely, not to prevent the advancing of large sums of money exceeding the limits allowed by law It, the time. The Court held that the said intention amounted to intend to defraud. (1) (1903) 1 ch. 732. (2) , 264, 266. 594 Hilbery, J., speaking for the court, pointed out the distinction between deceit and defraud and came to the conclusion that ,to defraud" is to deprive by deceit." Adverting to the argument that the deprivation must be something of value, i. e. economic loss, the learned judge observed "We have, however, come to the conclusion that this is too narrow at view. While, no doubt, in most cases of an intention to defraud the intention is to cause an economic loss ' there is no reason to introduce any such limitation. Provided that the intention is to cause the person deceived to act to his real detriment, it matters not that lie suffers no economic loss. It is sufficient if the intention is to deprive him of a right or to induce him to do something contrary to what it would have been his duty to do, had lie not been deceived. " On the basis of the said principle it was held that the accused by deceit induced the finance companies to advance moneys contrary to the credit restrictions and that he was guilty of the offence of forgery. This decision is therefore a clear authority for the position that the loss or, the injury caused to the person deceived need not be economic loss. Even a deprivation of a right without any economic consequences would be enough. This decision has not expressed any definite opinion on the question whether a benefit to the accused without a corresponding loss to the person deceived would amount to fraud. But it has incidentally touched upon that aspect. The learned judge again observed. ". . . . . . This the appellant was doing in order that he might benefit by getting further loans. " This may indicate that a benefit derived by the 595 person deceiving another may amount to an act to defraud that other. A full Bench of the Madras High Court , in Kotamraju Venkatrayadu vs Emperor (1) had to consider the case of a person obtaining admission to the matriculation examination of the Madras University as a private candidate producing to the Registrar a certificate purporting to have been signed by the headmaster of it recognized High School that he was of good character land had attained his 20th year. It was found in that case that the candidate had fabricated the signature of the headmaster. The court held that the accused was guilty of forgery. White, C.J., observed : "Intending to defraud means, of course, something more than deceiving." He illustrated this by the following example: "A tells B a lie and B believes him. B is deceived but it does not follow that A intended to defraud B. But, as it seems to me, if A tells B a lie intending that B should do something which A conceives to be to his own benefit or advantage, 'and which, if done, would be to the loss or detriment of B, A intends to defraud B." The learned Chief justice indicated his line of thought, which has some bearing on the question now raised, by the following observations : "I may observe, however, in this connection that by section 24 of the Code a person does a thing dishonestly who ' does it with the intention of causing wrongful gain or wrongful loss. It is not necessary that there should be an intention to cause both. On the analogy of this definition, it might be said that either an intention (1) Mad. 99,96,97. 596 to secure a benefit or advantage on the one hand, or to cause loss or detriment on the other, by means of deceit, is an intent to defraud. " But, he found in that case that both the elements were present. Benson,J., pointed out at p. 114 : "I am of opinion that the act was fraudulent not merely by reason of the advantage which the accused intended to secure for himself ' by means of his ' deceit, but also by reason of the injury which must necessarily result to the University and, through it to the public from such acts if unrepressed. The University is injured, if through the evasion of its byelaws, it is induced to declare that certain persons have fulfilled the conditions prescribed for Matriculation and are entitled to the benefits of Matriculation, when in fact, they have not fulfilled those conditions, for the value of its examinations is, depreciated in the eyes of the public if it is found that the certificate of the University that they have passed its examinations is no longer a guarantee that they have in truth fulfilled the conditions on which alone the University professes to certify them as passed, and to admit them to the benefis of Matriculation. " Boddam, J., agreed with the learned Chief justice and Benson, J. This decision accepts the principle laid down by Stephen, namely, that the intention to defraud is made up of two elements, first an intention to deceive and second, the intention to expose some person either to actual injury or risk of possible injury but the learned judges were also inclined to hold on the analogy of the definition of "dishonestly" in section 24 of the Code that intention to secure a or advantage to the deceiver satisfies the second con dition 597 The Calcutta High Court dealt with this question in Surendra Nath Ghose vs Emperor (1) There, the accused affixed his signature to a kabuliat which was not required by law to be attested by witnesses, after its execution and registration, below the names of the attestings witnesses but without putting a date or alleging actual presence at the time of its execution. The court held that such an act was not fraud within the first clause of section 464. of the Penal Code inasmuch as it was not done dishonestly or fraudulently within the meaning of sections 24 and 25 thereof. Mookerjee, J., defined the words "intention to defraud" thus: "The expression, "intent to defraud" implies conduct coupled with intention to deceive and thereby to injury in other words, "defraud" involves two conceptions, namely, deceit and injury to the person deceived, that is, infringement of some legal right possessed by him, but not necessarily deprivation of property. " This view is in accord with the English decisions and that expressed by the Full Bench of the Madras High Court. This decision does not throw any light on the other question whether advantage to the deceiver without a corresponding loss to the deceived would satisfy the second ingredient of the expression "intent to defraud". A division Bench of the Bombay High Court in Sanjiv Ratnappa vs Emperor (2) had also occasion to consider the scope of the expression "fraudulently" in section 464 of the Penal Code. The court held that for an act to be fraudulent there must be some advantage on the one side with a corresponding loss on the other. Adverting to the argument that an advantage secured by the deceiver would constitute fraud Broomfield, J., observed thus "I think in view of the Bombay decisions to which I have referred we must hold that that (1) Cal. 75, 89 90. (2) A.I.R. 1932 Bom. 545, 550. 598 is an essential ingredient in the definition of forgery. In the great majority of cases, the point is not very material. . . But there many occasionally be a case in which the element of loss or injury is absent and I think the present is such a case. " This decision therefore does not accept the view of White C. J., of the Madras High Court. A Division Bench of the Lahore High Court,, in Emperor vs Abdul had also expressed its view on the meaning of the word "fraudulently." The learned Judges accepted Stephen 's definition but proceeded to observe as follows "It may be noted in this connection that the word " 'injury" as defined in section 44, Penal Code, is very wide as denoting "any harm whatever, illegally caused to any person, in body, mind, reputation or property." The learned judges were willing to assume that in almost every case an advantage to one would result in an injury to the other in the widest sense indicated by section 44 of the Penal Code. The other decided case cited at the Bar accept the necessity for the combination of a deceit by one and injury to other constitute an act to defraud and therefore, it is not necessary to multiply citations. No other decision cited at the Bar throws any light on the further question, namely, whether an advantage secured to the deceiver without a corresponding loss to the deceived would satisfy the second condition laid down by the decisions. To summarize : the expression " 'defraud" inoslves two elements, namely, deceit and injury to the person deceived. injury is something other than (1) A.I.R. 1944 Lah. 380,382. 599 economic loss that is ', deprivation of property, whether movable or immovable, or of money, and it will include any harm whatever caused to any person in body, mind, reputation or such others. In short, it is a non economic or non pecuniary loss. A benefit or advantage to the deceiver will almost always cause loss or detriment to the deceived. Even in those rare cases where there is a benefit or advantage to the deceiver, but no corresponding loss to the deceived, the second condition is satisfied. Now let us apply the said principles to the facts of the present case. Certainly, Dr. Vimla was guilty of deceit, for though her name was Vimla, she signed in all the relevant papers as Nalini and made the insurance company believe that her name was Nalini, but the said , deceit did not either secure to her advantage or cause any non economic loss or injury to the insurance company. The charge does not disclose any such advantage or injury, nor is there any evidence to prove the same. The fact that Dr. Vimla said that the owner of the car who sold it to her suggested that the taking of the sale of the car in the name of Nalini would be useful for income tax purposes is not of any relevance in the present case, for one reason, the said owner did not say so in his evidence and for the other, it was not indicated in the charge or in the evidence. In the charge framed, she was alleged to have defrauded the insurance company and the only evidence given was that if it was disclosed that Nalini was a minor, the insurance company might not have paid the money. But as we have pointed out earlier, the entire transaction was that of Dr. Vimla and it was only put through in the name of her made minor daughter for reasons best known to herself. On the evidence as disclosed, neither was she benefited nor the insurance company incurred loss in any sense of the term. In the result, we allow the appeal and hold that the appellant was not guilty of the offence under 600 sections 467 and 468 of the Indian Penal Code. The conviction and sentence passed on her are set aside. Fine, if paid, is directed to be refunded to the appellant, Appeal allowed.

IN-Abs

Dr. Vimla purchased a car in the name of her minor daughter Nalini aged about 6 months. The price of tile car was paid by her. The transfer of the car was notified in the name of Nalini to the Motor Registration Authority. The insurance policy already issued was transferred in the name of Nalini after the proposal form was signed by Dr. Vimla. Subsequently, Dr. Vimla filed two claims on the ground that the car met with accidents. She signed the claim forms as Nalini. She also signed the receipts acknowledging the pay ment of compensation money as Nalini. Dr. Vimla and her husband were prosecuted under sections 120 B, 419, 467 and 468 of the Indian Penal Code. Both the accused were acquitted by the Sessions Judge. The State went in appeal and the High Court convicted Dr. Vimla under section 467 and 468 of the Indian Penal Code. Dr. Vimla came to this Court by special leave. Held, that appellant was not guilty of the offence under section 467 and 468 of the Indian Penal Code. She was certainly guilty of deceit because though her name was Vimla, she signed in all the relevant papers as Nalini and made the Insurance Company believe that her name was Nalini, but the said deceit did not either secure to her advantage or cause any noneconomic loss or injury to the Insurance Company. The charge did not disclose any such advantage or injury nor was there any evidence to prove the same. The entire transaction was that of Dr. Vimla and it was only put through in the name of her minor daughter. Nalini was in fact either a Benamidar for Dr. Vimla or her name was used for luck or other sentimental considerations. The Insurance Company would not have acted differently even if the car stood in the name of Dr. Vimla. 586 The definition of 'false document ' is a part of the defini tion of forgery ' and both must be read together. If so read, the ingredients of the offence of forgery relevant to the present case are as follows: (1) fradulently signing a document or a part of a document with an intention of causing it to be believed that such document or part of a document was signed by another under his authority ; and (2) making of such a document with an intention to commit fraud or that fraud may be committed. The expression 'fraud ' involves two elements, deceit and injury to the person deceived. Injury is something other than economic loss, that is, deprivation of property, whether movable or immovable or of money and it will include and any harm whatever caused to any person in body, mind, reputation or such others. In short, it is a non economic or non pecuniary loss. A benefit or advantage to the deceiver, will almost always cause loss or detriment to the deceived. Even in those rare cases where there is a benefit or advantage to the deceiver, but no corresponding loss to the deceived, the second condition is satisfied. Haycraft vs Creasy, ; , in re. London and Globe Finance Corporation Ltd., R. vs Welham, , Kotamraju Yenkatrayadu vs Emperor Mad. 90, Surendra Nath Ghose vs Emperor, Cal. 75, Sanjiv Ratnappa vs Emperor, A. I. R. and Emperor vs Abdul Hamid, A. 1. R. , referred to.

Appeal No. 523 of 1960. Appeal from the judgment and order dated December 5, 1957 of the former Madhya Pradesh High Court at Nagpur in First Appeal No. 1 12 of 1952. C. K. Daphtary, Solicitor General of India, B. R. L. Iyengar, B. R. O. K. Achar and K. L. Hathi, for the Appellants. 419 M. C. Setalvad, Attorney General for India, J. B. Dadachanji, o. c. mathur and Ravinder Narain, for the Respondents. November, 22. The judgment of the Court was delivered by DAS GUPTA, J. There exists at Raipur in Madhya Pradesh an old Math by the name of Dudhadhari Math within which is a temple where the idols of Shri Ramchandra, Sita, Laxman, Bharat, Satrughan and Hanumanji have been worshipped for very many years. For the expenses of the worship of the deities and for the upkeep of the temple. , one village by the name of Hirmi was dedicated by Dinanath Sao, a wealthy inhabitant of the locality. The main controversy in the present litigation is whether another village of the name of Telibandha which also belonged to Dinanath was dedicated absolutely to the temple either by Dinanath Sao himself or later on by his descendants. The two appellants, both descendants of Dinanath Sao brought the present suit under section 92 of the Code of Civil Procedure, 1908, for removal of the respondent Kamal Narayan, another descendant of Dinanath Sao, from the office of trustee of the God Shri Ramchandraji Swamy for the village of Telibandha and for accounts. The appellant 's case in the plaint was that Telibandha was dedicated to the temple of Shri Ramchandraji as early as 1857 by Dinanath Sao himself and later on in the year 1896 when a partition took place between his descendants who were up till that time living jointly, all the coshares not only re affirmed the dedication made by Dinanath Sao of this village of Telibandha but themselves dedicated the village Telibandha to the deities in this temple by accepting the award made by the Panchas. 420 Dinanath died in 1862, leaving his two sons Sobharam and Keshoram. Sobha Ram had three sons, Sarjoo Prasad, Gokul Prasad and jamna Prasad; Keshoram had also three sons, Ramdin, Gajanand and Nand Kishore. At the time of the partition in 1896 Sarjoo Prasad was dead and the parties to the partition were Sarjoo Prasad 's four sons, Ram Saran Lal, Ramhirde, Ram Krishna and Ramanuj, representing Sarjoo Prasad 's branch and the other five grand sons of Dinanath. The first appellant Ram Kishore is the son of Nand Kishore Sao, while thesecond appellant, Ramanuj is Sarojoo Prasad 's son. The respondent is the son of Ram Saran Lal. By the awardof 1896, it is the plaintiffs ' case, Ram Saran Lal was not given any proprietary interest in the village Telibandha but was merely made the Manager on behalf of the deities for this property. On Ram Saran Lal 's death in 1930, Kamal Narayan, his son became the trustee. According to the plaintiffs the temple was a public temple and the trust a public trust ' The plaintiffs allege that Kamal Narayan committed several breaches of trust by the sale of certain lands of Mouza Telibandha for the sum of Rs. 1,06,774/1/ and in other ways. The plaintiffs first approached the Court of the Additional District judge, Raipur with a petition under section 3 of the Chartiable and Religious Trusts Act for directions on Kamal Narayan as provided in that section. Directions were accordingly issued by the Additional District judge; but with this the respondent did not comply. It was then that the present suit was brought by the plaintiffs without the previous consent of the Advocate General as is permitted by section 6 of the Charitable and Religious Trusts Act. The plaintiffs have prayed for a declaration that Telibandha village was held by the defendant in the trust for Shri Ramchandra of the Dudhadhari Math and that he had committed breaches of such trust; for his 421 removal from the position of a trustee and for appointment of the first plaintiff in his place; for an order on him to render accounts since 1936 and to deposit Rs. 1,06,774/1/ which he got as sale proceeds. The defendant denied that Telibandha was ever dedicated. As regards the Award of 1896 his plea was that it (lid not express accurately the decision of the Arbitrators an that, in any case, it was superseded by the Award of Mr. Bagchi on May 14, 1898, which was accepted by all the co sharers as the actual settlement of their own and on the basis of which a suit brought to challenge the validity of the earlier award was dismissed as compromised. The defendant 's case is that there was no trust, either express or constructive, created at any time by any one in respect of Telibandha village ; that neither he nor his father was trustee in respect of this village and there was no breach of trust by him. To explain his possession of the village the defendant referred to a partition in 1901 between Sarjoo Prashad 's four sons, on the one hand and jamuna Prasad, on the other, at which, it was said, that Telibandha fell to the share of Sarjoo Prasad 's four sons. Thereafter in 1913, there was a further partition between Sarjoo Prasad 's four sons and the defendant at which Telibandha was allotted to defendant 's father Ramsaranlal alone. On a consideration of the evidence the Trial Court held that there had been a valid dedication in respect of the village Telibandha for the Temple of Shri Ramchandra Swamy. It was not satisfied that the dedication had been made by Dinanath himself but held that there was such a dedication sometime before 1896 and that that dedication was confirmed by all the co sharers at the time of the partition of 1896. As regards the Bagchi Award, the learned judge was of opinion that it did purport to revoke 422 the dedication and to allot the village to the members of one branch of the family with only a moral obligation to look after the temple but this later Award had all along remained a dead letter and did not affect the Panch Faisla Award of 1896. The Trial Court held that a valid trust had been created in favour of the temple and it was a public religious trust, as Shri Ramchandra temple, for which the trust was created, was a public institution. The Court found that the defendant was the trustee of this public trust, and had committed breaches of trust by transferring trust properties and appropriating its proceeds and finally by his express repudiation of this trust and was therefore liable to be removed. Accordingly, it passed a decree declaring that defendant No. 1 had committed breaches of trust as a trustee of the village Telibandha for the temple of Shri Ramchandra Swamy and removing the defendant from the office of the trustee. By the decree the Court also directed the defendant to deposit a sum of Rs.1,06,774/1/ in Court. The first plaintiff Ram Kishore Lal was appointed the trustee in place of the defendant. It was also ordered that a commissioner would be appointed later on to enquire into the alienations made by the defendant and to take accounts of the trust from the year 1936. On appeal by the defendant, the High Court of judicature at Nagpur has set aside the judgment and decree of the Trial Court and ordered the dismissal of the suit. The High Court was of opinion that the dedication of the village Telibandha had not been proved. The High Court agreed with the Trial Court that dedication by Dinanath Sao himself, by a Patha in 1857 as alleged in the plaint had not been established ; but disagreeing with the Trial Court, it held that there was no absolute dedication of the village for the purpose of the temple by the Panch Faisla Award of 1896 and no trust was created thereby. On a construction of this document the 423 learned judges of the High Court held that it did not show more than a partial dedication of the village as distinguished from an absolute dedication. Accordingly, the High Court allowed the appeal and ordered the suit to be dismissed without going into the other questions as regards the character of the temple or whether the defendant had committed breaches of trust. Against this decision of the High Court the present appeal was filed by the plaintiffs on a certificate granted by the High Court under article 133 (1) (b) of the Constitution. The main controversy before us is whether by the Punch Faisla Award of 1896 an absolute dedication of the village Telibandha was made in favour of Shri Ramchandra Swamy temple or whether the village was given in full proprietorship to Ramsaran Lal with only a charge on it to meet the expenses of the temple. The relevant portion of the Award is in its second paragrah. The Award is in Hindi and the second paragraph has been translated thus : "2. Mouza Telibandha alias Karawatoti, sixteen annas, Asli Men Dakhli (i. e. village proper with the out skirts under control), in tahsil Raipur together with all rights and interests of proprietorship has been given to Ramsaranlal with the consent of and at the instance of all the co shares for the under mentioned purposes. From the profits and income of mouza Telibandha, Ramsaran Lal shall incur the expenses of Samaiyas (probably occasions), celebrations, Bho Rag, Bal Bhog of daily routine and white washing and plastering, etc., and other work of Shri Ramchandra Swami Math Shri Dudhadharji, according as the same expenses have been continuing to be met up to this day from the time of Dinanath Sao, Sobharam Sao and Sarjoo Prasad Sao. If this work 424 that is being done from long before, fails to be done, then out of all these six co shares, any co sharer, who may be fit to do that work and carry it on, shall take this Mouza Telibandha together with all rights and interests into his possession and carry on the work of the temple just as it has continued to be done from ever. None of the co shares and Ramsaranlal have any right over it. Ramsaranlal or any other co sharers have neither got, nor will they have, any right to transfer, either in whole or in part, Mouza Telibandha, proper, together with Dakhli, together with all the rights and privileges, by sale or mortgage or gift or will or in any other manner whatsoever, because mouza Felibandha has been reserved from ever for the aforesaid purpose and it shall continue to be so only. " The decision of the question before us depends on the proper construction of this paragraph of the Panch Faisala. It is necessary to mention that the words ""together with all rights and interests of proprietorship" in the translation stand for "Kul haq haquq samet milkiyat ke" of the original; and the words " 'from the profits and income of Mouza Telibandha" in the translation stand for "Telibandha ke munafa wo amdani se" of the original. The golden rule of construction, it has been said, is to ascertain the intention of the parties to the instrument after considering all the words, in their ordinary, natural sense. To ascertain this intention the Court has to consider the relevant portion of the document as a whole and also to take into account the circumstances under which the particular words were used. Very often the status and the training of the parties using the words have to be taken into 425 consideration. It has to be borne in mind that very many words are used in more than one sense and that sense differs in different circumstances. Again, even where a particular word has, to a trained conveyancer, a clear and definite significance and one can be sure about the sense in which such conveyancer would use it, it may not be reasonable and proper to give the same strict interpretation of the word when used by one who is not so equally skilled in the art of conveyancing. Sometimes ' it happens in the case of documents as regards disposition of properties, whether they are testamentary or nontestamentary instruments, that there is a clear conflict between what is said in one part of the document and in another. A familiar in stance of this is where in an earlier part of the document some property is given absolutely to one person but later on, other directions about the same property are given which conflict with and take away from the absolute title given in the earlier portion. What is to be done where this happens ? If is well settled that in case of such a conflict the earlier disposition of absolute title should prevail and the later directions of disposition should be disregarded as unsuccessful attempts to restrict the title already given. (See Sahebzada Mohd. Kamgar Shah vs Jagdish Chandra Deo Dhabal Deo). (1) It is clear, however, that an attempt should always be made to read the two parts of the document harmoniously, if possible. It is only when this is not possible, e. g., where an absolute title is given is in clear and unambiguous terms and the later provisions trench on the same, that the later provisions have to be held to be void. Turning now to para. 2 of the Panch Faisala, we find that the opening clause while providing for giving the village Telibandha to Ramsaran Lal uses the words "Kul haq haquq samet milkiyat ke. " It has been contended by the learned AttorneyGeneral on behalf of the respondent that these words (1)(1960) 3 S.C.R. 604, 611. 426 show an intention to give an absolute interest of ownership in the property to Ramsaran Lal. Accordingly, argues the learned Attorney General, the later provisions in the paragraph which seem to indicate that such absolute right was not given have to be ignored as an ineffective attempt to take away what has already been given. Neither the words " none of the co sharers and Ramsaran Lal have any right over it" nor the prohibition against the alienations in the following clause, nor the words "Telibandha has been reserved for ever for the aforesaid purposes and it shall continue to be so only" can,it is argued, limit the amplitude of what is given to Ramsaran Lal by the opening clause. The question therefore is : Does the use of the words "Kul haq haquk samet milkiyat ke" invariably show an intention to give full and absolute ownership ? We do not think so. The question as to the meaning to be attached to the word ""Malik" (from which the word "Milkiyat" has been derived) and "Milkiyat" have often been considered by the courts. A consideration of the pronouncements of the Privy Council on this question leave no doubt that while ordinarily an intention to give an absolute and full ownership is expressed by the words "Malik" or "Milkiyat" by saying that somebody is to be the Malik or is to have the Milkiyat, this is not invariably so. In lalit Mohan Singh Roy vs Chukkun Lal Roy (1) where the words of the gift to the appellant were "shall become owner (Malik) of all my estates and properties", it was held that they were sufficient to convey a heritable and alienable estate unless the context indicated a different meaning. In Surajmani vs Rabi Nath Ojha (2) also the use of the word "Malik" was held to import full proprietary rights, unless there is something in the context to qualify it. In Saraju Bala Devi vs Jyotirmoyee Devi (3) the Privy Council had to consider the nature of the (1) (1897) L.R. 24 I.A. 76. (2) (1907) L.R. 35 I.A. 17. (3) (1931) L.R. 58 I.A. 270, 427 interest that passed by two leases which constituted the lessee the Malik of the property in express terms. Their Lordships examined the terms of those leases to see whether there was something in the context to indicate that the words did not import full proprietary rights and held that the conditions taken singly or collectively did not cut down the absolute estate. It is important to note that in all these cases their Lordships of the Privy Council did not proceed on the basis that the mere use of the word "Malik" so clearly and unambiguously passed the absolute interest that examination of the context was not necessary. On the contrary in each case they emphasised the need of examining the context to find out what was intended. This was quite in line with what had been decided in one of the earliest cases (Mohamed Shumsool vs Shewukram) (1) where the word "Malik" came up for consideration. In that case the question arose whether a, testator in saying that "only Mst. Rani Dhan Kowar, the widow of my son is my heir and except Mst. Rance Dhun Kowari aforesaid none other is; nor shall be my heir and Malik". The document gave an estate of inheritance to the Rani which she was able absolutely to alienate. The Privy Council thought it proper to take into consideration the ordinary notions and wishes of a Hindu with respect to devolution of property and proceeded to observe : " 'Having reference to these considerations, together with the whole of the will, all the expressions of which must be taken together without any one being insisted upon to the exclusion of others, their Lordships are of opinion that the two courts in India, who both substantially agree upon this point, are right in construing the intention of the testator to have been that the widow of his son should not take an absolute estate which she should (1)(1874) L R. 2 I.A. 7. 428 have power to dispose of absolutely, but that she took an estate subject to her daughters succeeding her in that estate. " In Rai Bajrang Bahadur Singh vs Thakurain Bakhtrai Kuer (1) this Court had to consider a will which used the words "Malik Kamil" and "Naslan bad naslan" in reference to the interest given to the younger son Dhuj Singh. Mukherjea,J., speaking for the Court said: "These words, it cannot be disputed, are descriptive of a heritable and alienable estate in the donee, and they connote full proprietary rights unless there is something in the context or in the surrounding circumstances which indicate that absolute rights were not intended to be conferred. In all such cases the true intention of the testator has to be gathered not by attaching importance to isolated expressions but by reading the will as a whole with all its provisions and ignoring none of them as redundant or contradictory. " On a consideration of the context this Court came to the conclusion that Dhuj Singh had only a life interest in the properties and pointed out that "in cases where the intention of the testator is to grant an absolute estate, an attempt to reduce the powers of the owner by imposing restraint on alienation would certainly be repelled on the ground of repugnancy; but where the restrictions are the primary things which the testator desires and they are consistent with the whole tenor of the will, it is a material circumstance to be relied upon for displacing the presumption of absolute ownership implied in the use of the word "malik". *What was said in this case in connection with the construction of a will applies with equal force to the construction of every other document by which some property is disposed of. (1) ; 429 Remembering therefore that the use of words "Kul haq haquq somet Milkiyat" in the opening clause of this Panch Faisla raises a presumption that absolute interest was given thereby to Ramsaranlal, we have also to remember that this is merely a presumption which can well be displaced by what follows in the same document as regards this very property. When all these different provisions are considered it appears to us to be clear beyond any shadow of doubt that the intention was not to make Ramsaranlal the absolute owner of the village but give him possession and management of the village for the benefit of Shri Ramchandra. Swamy temple. Immediately after saying that the village is given to Ramsaranlal "Kul haq haquq samet milkiyat" the document says in the same breath that this is being done for the under mentioned purposes. Then the purposes are mentioned in the next sentence as meeting the expenses of worship and maintenance of the temple of Shri Ramchandra Swamy. The provision is next made that if Ramsaranlal does not carry out this purpose then out of the co sharers between whom the partition was being made, any co sharer may carry it on and for this such co sharer shall take the Mouza Telibandha into his possession. The document then proceeds to say that none of the co sharers and Ramsaranlal had any right over the village. Then follows the prohibition against alienation. The learned Judges of the High Court have said that the use of the words " 'from the profits and income of mouza Telibandha Ramsaranlal shall incure the expenses. . indicate that only a portion of the income was intended to be used and that supports the presumption arising from the use of the word " 'Kul haq haquq samet milkiyat" that absolute interest was being given to Ramsaran Lal. This 430 provision has to be considered, however, along with all other clauses and it would not, in our opinion, be right to take the indication of the words "from the profits and income" as out weighing or neutralising the numerous other provisions which point to an intention that Ramsaran Lal would not have the absolute ownership of the village. As has been mentioned earlier, the words "from the profits and income of mouza Telibandha" in the translation stand for "Telibandha ke munafa wo amdani se" of the original. It is not correct to say that these words as used in the original necessarily mean " from the profits and income of mouza Telibandha. " The words may equally well be translated as "with the profits and income of mouza Telibandha. " It is worth noticing that the plaintiff 's witness Mathura Prasad stated in answer to a question from the Court : "At that time there was no question as to what should be done with the savings from the income of the village Telibandha, after meeting the requirements of the temple, because the income those days was not much while the expenses which used to be incurred on the temple were far in excess of the income from the village. " The correctness of this statement was not challenged in cross examination. It appears clear to us that by the use of the words "at that time" the witness meant "the time of the partition in 1896." In using the words "Mouza Telibandha ke munafa wo amdani se" it is more than likely therefore that the Panchas wanted to say that the purposes mentioned will be carried out with the income and profits and did not expect any surplus to be left. We have therefore no hesitation in holding on a construction of paragraph 2 of the Panch Faisala that by this Award Telibandha village was dedicated absolutely to the temple of Shri Ramchandra Swamy and Ramsaran Lal was given possession of it as the manager and trustee of the temple. 431 But, says the learned Attorney General, a partition Award of this nature cannot under the Hindu Law create a valid dedication in favour of a deity. This plea was not taken by the defendant in his written statement nor does it appear to have been urged seriously before the courts below. Assuming it is open to the defendant to raise this point now, it has to be decided on the further assumption that the facts under which the provision of dedication was made in the award were correctly stated there. That is, these provisions were made "with the consent of ' and at the instance of all the co sharers. " The act of the Panchas was thus really the act of the owners of the property and as owners had full right to make a valid dedication to the deity the dedication as made in Para. 2 of the Panch Faisla must be held to be valid. This brings us to the question if the dedication thus made has ceased to be valid by anything which happened afterwards. It appears that immediately after the award was made, it was presented before the Sub Registrar, Raipur, for registration. Within a few days, however, an application in connection with this matter appears to have been made before the Civil judge, Raipur. In this Ramsaranlal stated his objection to the award on the ground that "the Panchas did not read out the award before him, that they had asked him to state in writing his objections which he did but they did not take any evidence. " The Civil judge rejected Ramsaran Lal 's contention and returned the award to the Sub Registrar with a direction to register it in due course and also directed the Panchas to file it in a Civil Court after it had been duly registered. It appears that after this the award was duly registered. In November of the same year however Ramsaranlal 's three brothers brought a suit in the Court of the Civil judge at Raipur in which they sought to have this registered award set aside. Ramsaranlal and 432 other co sharers were impleaded, in the suit as defendants. After some evidence bad been recorded the hearing was adjourned on the prayer of the parties who wanted to settle the dispute amicably. Mr. Bagchi who was the pleader of some of the plaintiffs was orally requested by the parties to decide whether the award of the panchas was proper or not and to make changes, if necessary, and on May 14, 1896 Mr. Bagchi made his award. On the same date an application for compromise was filed in Court. Accordingly, the Court dismissed the suit as compromised. It has been strenuously contended on behalf of the respondent that this award of Mr. Bagchi made on May 14, 1896 wholly supersedes the previous award and whether the village Telibandha forms the trust property of Shri Ramchandra Swamy or not has to be decided on a construction of this award. We see no force in this contention. It has to be noticed that the 1896 award was not set aside by the Court and the suit was dismissed. The mere fact that the suit is stated to be dismissed as compromised and the compromise appears to have been in accordance with Mr. Bagchi 's award, does not in law amount to the setting aside of the prior award. We are inclined to agree with the contention of the learned Attorney General that Mr. Bagchi 's award gives the property to Ramsaran Lal absolutely with only a charge on the property for the expenses of the temple and did not make an absolute dedication of the village to the temple. We are of opinion however that Mr. Bagchi 's award can have no legal effect in respect of the dedication already made. , Once an absolute dedication of the property had been made in December 1896 in favour of Shri Ramchandra Swamy temple the former owners of the property had no legal authority to go behind that dedication. The learned Attorney General concedes this position. He argues, however, that if the award 433 that made the dedication has such legal infirmity as to make it invalid in law, the dedication also must be held to be invalid. But, has the award been shown to have any legal infirmity ? The answer to this question must be in the negative. The plaintiffs in the suit of 1897 did , it is true, allege certain infirmities. We need not discuss the question whether the temple was a necessary party to the suit. For, in fact, the Court did not consider whether such infirmity existed and as pointed out above. , dismissed the suit. The reference to Mr. Bagchi was made by the parties to the suit orally requesting him as shown by the preamble to the award ""to decide whether the Faisla Panchayati (i.e., award of panchas) was proper or not, adding that in case it was not proper, changes may be made in it whenever it may be necessary and improper". On a reasonable interpretation of these words it does not seem that Mr. Bagchi was asked to consider whether the original award suffered from any infirmity in law. Even more important than that is the fact that there is not a single word in Bagchi 's award to indicate, even remotely, that in his opinion, the award suffered from any infirmity. On the contrary, Mr. Bagchi accepted the previous award and gave his own interpretation of it, saying that by the award after " 'including mouzas Borsi and Telibandha in the partition the Panchas caused the same to be given to Ramsaran Lal and his brothers. " It is true that he added the words " 'I too by means of this award cause the same to be given to them", and then gave certain directions. Quite clearly, therefore, he proceeded on the basis that the award was a good and valid award. We are therefore clearly of opinion that the validity and force of the dedication made by the Panch Faisla has not in any way been affected by the Bagchi Award. It is equally clear that the way Ramsaran Lal or after him Kamal Narayan dealt with this village 434 Telibandha or its income can in no way affect the force or validity of the absolute nature of the dedication. The fact, therefore, that Ramsaran Lal used to credit the income from Telibandha to the Gharu Khata which was maintained for the general expenses of the family or that he made certain alienations of the property cannot change the absolute dedication into a partial dedication. It may well be that Ramsaran Lal was himself led by the terms of the Bagchi award into thinking that the property belonged to the family with only a charge on it for the temple. Whether or not this was so or his conduct was due to deliberate dereliction of duty is really irrelevant for our present purpose. As the High Court rightly pointed out the course of conduct of the parties is of no relevance for the construction of a document which is itself unambiguous. As in our opinion, the document (the Panch Faisla Award of 1896) clearly and unambiguously shows an .absolute dedication of the village to Shri Ramchandra Swamy temple, we think it unnecessary to examine the oral or documentary evidence as to how the property or the income of Telibandha was dealt with. Our conclusion therefore is that the High Court 's decision that the plaintiff 's case of absolute dedication of Telibandha in favour of Shri Ramchandra Swamy has not been established is not correct and the High Court 's order based on that view that the plaintiff was not entitled to succeed, must be set aside. In view of its decision that absolute dedication had not been proved, the High Court did not consider it necessary to decide the several other issues which had been framed in the suit and without deciding which the suit cannot be properly disposed of. Accordingly, we allow the appeal, holding that the village Telibandha has been absolutely dedicated 435 to Shri Ramchandra Swamy temple, set aside the judgment and decree of the High Court and send the case back to the High Court for disposal of the appeal, after deciding the other issues in the suit that require to be decided for its proper disposal. Costs will abide the result. Appeal allowed.

IN-Abs

A registered partition award made by Panchas between all the co sharers provided : "Mouza Telibandha together with all rights and interests of proprietorship has been given to Ramsaranlal. for the undermentioned purposes. From the profits and income Ramsaranlal shall incur expenses. Shri Ramchandra Swami Math Shri Dudhaaherji, according as the same expenses have been continuing to be met up to this day. If this work fails to be done . any cosharer who may benefit . shall take this Mouza telibandha together with all rights and interests into his possession and carry on the work of the temple . None of the co sharers and Ramsaranlal have any rights over it. Ramsaranlal or any other co sharers have neither got, nor shall have, any right to transfer. Mouza Telibandha. , because Mauza Telibandha has been reserved for ever for the aforesaid purpose and it shall continue to be so only " Some of the co sharers filed a suit to set aside the award. The parties referred the matter to one Mr. Bagchi and in view of his award a compromise petition was filed and the suit was dismissed. The appellants contended that the partition award made an absolute dedication of the Monza in favour of the temple. The respondent contended that the award gave the Monza in full proprietorship to Ramsaranlal with only a charge on it to meet the expenses of the temple that the partition award could not validly create a dedication and that the partition award was modified by the Bagchi award. 418 Held, that the partition award created an absolute dedi cation of Mouza Telibandha in favour of the temple. Though the use of the words "Malik" and "Milkiyat" indicated the conferment of an absolute estate, it was not invariably so and it was necessary to examine the context in each case. Where the intention is to grant an absolute estate, an attempt to reduce the powers of the owner by imposing restraints on alienation has to be repelled on the ground of repugnancy but where the restrictions arc the primary things intended and they are consistent with the whole tenor of document, it is a material circumstance for displacing the presumption of absolute ownership implied in the use of the word "Malik". The use of the words "Kul haq haquq samet Milkiyat" in the opening clause of the award raised a presumption that absolute interest was given thereby to Ramsaranlal, but the later recitals rebutted this presumption. Considering all the different provisions, it was clear that the intention was not to make Ramsaranlal absolute owner but to give him possession and management of the Mouza for the benefit of the temple. Sahebzada Mohd. Kamgar Shah vs Jagdish Chandra Rao Dhabal Deo, ; , Lalit Mohan Singh Roy vs Chukkuna Lal Roy, [1897] L.R. 24 I.A. 76; Mst. Surajmani vs Babi Nath Ojha, (1907) L.R. 35 1. A. 17; Sarjoo Bara Devi vs Jyotirmoyee Debi, (1931) L. R. 58 r. A. 270, Mohamed Shamsool vs Shewukram, (1874) L. R. 2 I.A. 7 and Rai Bajrang Bahadur Singh vs Thakurain Bakhtrai Kuer, [1953] 3 S.C.R. 232, referred to. The partition award validly dedicated the Mouza in favour of the temple. The act of the Panchas in making the award was really the act of the owners of the property who had full right to make the dedication. Once an obsolute dedication had been made by the partition award the former owners had no legal authority to go behind the dedication and accordingly the Bagchi award could not affect the dedication.

Appeals Nos. 131 and 132 of 1960. Appeals from the judgment and decree dated April 4, 1952, of the Madras High Court in Appeal No. 816 of 1947 and No. 83 of 1948. A. V. Yiswanatha Sastri, R. Ganapathy Iyer, K. Parasaran and G. Gopalakrishnan, for the appellants. K. Bhimassankaran, Durgabai Deshmukh, A. Narayana Swami and R. Thiagarajan, for the respondents 2 to 4. R. Gopalakrishnan, for respondent No. 2 (In C. A. No. 132 of 1960). November 19. The judgment of the court was delivered by SUBBA RAO, J. These appeals filed by a certificate issued by the High Court of judicature at Madras raise a question of Hindu Law pertaining to marriage in 'Asura form '. The material facts may be briefly stated : To appreciate the, facts and the contentions of the parties the 247 following genealogy may be usefully extracted Muthusami Naicker | | | Senior wife Junior wife | | Konda Bommu Naicker Kamayasami Naicker (died 23.10.1873) (died 31. 7. 1901) | | | | Kandaswami Naicker Ponnuthayee Naicker (died 31. 7. 1881) (died 13.3 1938) | Banmuga Valla | Konda Bommu Naicker | (died 21.1 1901) | | | | | | | Dorairaja Muthusami Kama Parama | alias (2nd Plff) yasami sivam Married | Thanipuli (3rd Plff)(4th Plff) Errammal | chami (died 2.2.1933) | (1st Plff) | | Bangru Ammual | (died 14.12.1930) | | | married also 8 other wise of whom the last to die were: (a) Meenakshi Ammual (died 5.6. 1938) (b) Krishna Ammual (died 10.11.1938) (c) Vellayammal alias Chinathayammal (died 2.5. 1940). 248 Thevaram is an ancient impartible zamindari in Madurai District. Shanumugavalla Konda Bommu Naicker was zamindar from 23.8.1876 to 20.1.1901. On his death on January 21, 1901 Bangaru Ammal, his daughter, got his entire estate under the will executed by him. To discharge the debts incurred by her father Bangaru Ammal executed on March 13, 1913 a mortgage of her properties for a sum of Rs. 2,15,000/ in favour of one Chidambram Chettiar. On his death his son Veerappa Chettiar filed on April 16, of 1925 against Bangaru Ammal in the Subordinate judge 's Court, Dindigul for the recovery of a sum of Rs. 5,49,6338 7 being the balance of the amount due under the said mortgage. The suit was compromised and on July 28, 1928, a compromise decree was passed therein. Under the compromise decree the mortgaged properties were divided into three Schedules A, B & C and it was provided that if a sum of Rs. 3,75,000/ was paid by July 31, 1931, the mortgage must be deemed to have been fully discharged but in default the properties in Schedule A of the decree were to become the absolute properties of the plaintiff. B Schedule properties i.e., some of the pannai lands and the C Schedule properties, i.e., those already alienated by Bangaru Ammal were released from the mortgage. One K. V. Ramasami Iyer, the Manager of the estate was appointed Receiver of the A Schedule properties and he was directed to deposit the surplus income into court towards the payment of the amount due under the compromise decree. Before the expiry of the period prescribed under the said decree Bangaru Ammal died on December 14, 1930, and her mother Errammal claiming to be her heir on the ground that Bangaru Ammal 's marriage was held in 'Asura form ' filed I.A. No. 190 of 1931 in the court of the Subordinate judge, Dindigul, for directing the Receiver to hand over the estate to her. Veerappa Chettiar in his turn filed I.A.No.170 of 1932 for 249 directing the Receiver to deliver possession of A Schedule properties on the ground that the term prescribed under the compromise decree had expired and the balance of the amount due under the decree was not paid to him. In the petition filed by Errammal she raised the question of the validity and the binding nature of the compromise decree on her. After elaborate inquiry on February 1, 1933, the learned Subordinate judge, though he held that the marriage of Bangaru Ammal was in 'Asura form ', dismissed her petition for the reason that the mortgage was valid and binding on her and allowed the petition filed by Veerappa Chettiar directing the delivery of the possession of A Schedule properties to him. On February 2, 1933, Veerappa Chettiar had taken delivery of A Schedule properties and on July 19, 1933 he was registered as proprietor of Thevaram estate by the Collector of Madura. On February 2, 1933, Errammal died executing a will dated January 30, 1933, in favour of her nephew Thangachami Naicker. It may also be mentioned that three of the co widows of Shanmugavalla survived Errammal. They died one after another and the last of them Vellayammal passed away on May 2, 1940. Thangachami Naicker along with one of the widows filed appeals to the High Court against the said judgments but those appeals were dismissed by the High Court on the ground that they were not maintainable. As Thangachami Naicker interfered with the right of Veerappa Chettiar with regard to certain tanks and water courses in Zamindari he filed 0. section 2 of 1934 in the Subordinate judge 's court of Dindigul against Thanchami Naicker and obtained a decree declaring his right to the said tanks. The appeal filed by Thanchami Naicker against that decree was also dismissed with costs on April 10, 1940. In execu tion of the decree for costs Veerappa Chettiar got the property alleged to be in possession of Thanchami 250 Naicker attached. One section Michael (son of Thanchami Naicker) objected to the attachment of the said property on the basis of a sale in his favour by the alleged reversioners to the estate of Bangaru Ammal. That petition was dismissed on August 23, 1944. The said claimant section Michael filed 0. section No. 52 of 1944 in the court of the Subordinate judge, Dindigul for setting aside the said claim order. To that suit Veerappa Chettiar and Thangachami Naicker were made party defendants. On January 31, 1945 the alleged reversioners to the estate of Bangaru Ammal filed 0. section 14 of 1,945 in the Court of the Subordinate judge, Dindigul against Veerappa Chettiar, his younger brother and defendants 3 & 9 who were alleged to be the tenants in possession of some of the items of the plaint Schedule properties. The plaintiffs in that suit are the grandsons of one Kandaswamy Naicker shown in the genealogy a paternal uncle of Shanmugavalla Konda Bommu Naicker. They claimed that they are the reversioners to the estate of Bangaru Ammal on the ground that Bangaru Ammal was married in 'Asura form '. It is alleged in the plaint that succession opened in their favour when Vellayammal died on May 2, 1940 and that the compromise decree passed against Bangaru Ammal was not binding on them and that in any view the property set out in Schedule C and C 1 attached to the plaint did not pass to Veerappa Chettiar under the said decree. The contesting defendants in both the suits pleaded that the marriage of Bangaru Ammal was not in 'Asura form ', and therefore the plaintiffs in 0. section 52 of 1944 were not the reversioners to the estate of Bangaru Ammal, that the compromise decree was binding on the estate and that C and C 1 Schedule properties also passed to the decree holder thereunder and that in any view the suit was barred by time. 251 It is seen from the foregoing narration of facts that the same questions of fact and law arise in both the suits for the title of the plaintiffs in 0. section No. 52 of 1944 was derived under a sale deed from the plaintiffs ' in 0. section No. 14 of 1945. Therefore the plaintiffs ' claim in the former suit will stand or fall on the plaintiffs ' title in the latter suit. For that reason both the suits were heard together by the Subordinate judge and appeals arising from his common judgment by the High Court. The learned Subordinate judge held on the evidence that the marriage of Bangaru Ammal with the Mannarkottai zamindar was in Asura form as Mannarkottai zamindar had spent Rs. 300/ to Rs. 575 for Bangaru Ammal 's marriage and that circumstance was in view of certain decisions of the High Court would make it an Asura marriage. He further held that the aforesaid compromise decree was binding on the plaintiffs. As regards C and C. 1 Schedule properties lie held that they had passed to Veerappa Chettiar under the compromise decree as part of the Thevaram Zamindari and that the plaintiffs were not in possession within 12 years of the suit in regard to item 70 of the C Schedule. On those findings he dismissed O.S. No. 14 of 1945 with costs. In O.S. 52 of 1944 he held that the plaintiff therein acquired a valid title as he purchased the land in dispute therein from the plaintiffs in the other suit who are the reversioners to the estate of Bangaru Ammal and that the decree in execution of which the said property was attached was not binding on the estate of said Bangaru Ammal. In that view he decreed the said suit. As against the decree passed in O.S. 52 of 1944, Veerappa Chettiar filed an appeal in the High Court of Madras being A.S. No. 816 of 1947. As against decree in O.S. 14 of 1945 dismissing the 252 plaintiffs ' suit they filed an appeal to the High Court being A.S. 83 of 1948. Veerappa Chettiar filed cross objections therein. Both the appeals were heard together by the High Court. The High Court held that in Bangaru Ammal 's marriage the practice of giving Kambu or flour or what is called the taking of Mappetti (millet flour box) before the betrothal was followed and that the marriage expenses were entirely borne by the Mannarcottai Zamindar presumably in pursuance of the practice existing in the community or in pursuance of an arrangement between the parties and therefore the marriage was Asura. The High Court further held that under the compromise decree only Melwaram right in C and C. 1 Schedule properties passed to Veerappa Chettiar but as there was no clear evidence as to who was in actual possession of the said lands and as the persons in actual occupation of the land were not impleaded in the suit, it was necessary in the interest of the parties to reserve the right of the plaintiffs to recover possession of C and C. I Schedule lands in an appropriate proceedings instituted for the purpose. In regard to item No. 70 of C. Schedule land the High Court agreed with the finding of the Subordinate judge. The High Court also negatived the plea of limitation, with the result A.S. No. 816 of 1947 was dismissed with costs and A.S. No. 83 of 1948 subject to the said modification was dismissed with costs. Hence the appeals. Both the appeals were heard together as they raised common points. The arguments of Mr. A.V. Viswanatha Sastri, the counsel for the appellant, may be summarised thus : The marriage of Bangaru Ammal with a Mannarcottai Zamindar was not held in Asura form and therefore the plaintiffs in O.S. 52 of 1944 being her father 's uncle 's grand children were not reversioners to her estate. According to Hindu Dharamshastras the main distinction between Brahma, and Asura form of marriages is that while in the 253 former there is a gift of the bride, in the latter there is a sale of the bride. Except a bare allegation in the plaints that the said marriage was held in Asura form the plaintiffs did not give any particulars or set tip any custom in the community to which the parties to the marriage belonged. They have adduced evidence to the effect that a sum of Rs. 1,000/ was paid as parisam by the Mannarcottai Zamindar to the bride 's father for taking the bride but both the courts having rightly held that the said payment was not established by the evidence erred in making out a case of a different consideration for the marriage. The first court held wrongly that the fact that Mannarcottai Zamindar spent Rs. 300/ to Rs. 575/for the marriage expenses would make it an asura marriage while the High Court went further and erroneously held that there was a general custom in the community to pay the bride 's price by way of giving Kambu grain and Kambu flour at the time of the settlement of marriage and that for the bridegroom 's party to bear the expenditure for celebrating the marriage and that in the case of Bangaru Ammal 's marriage the said Kambu was given and that the expenditure for the marriage was incurred by the Mannarcottai Zamindar presumably in pursuance of the practice existing in the community or in pursuance of an arrangement between the parties. Apart from the fact that no such custom was pleaded, there was no evidence to sustain the said custom. That apart the mere giving of Kambu as a ceremonial relic of the past or the bearing of the expenditure on the marriage wholly or partly by the bridegroom 's party could not be a bride 's price as contemplated by the Sastras, for the bride 's father in those events could not be said to have received any price for the bride. In short the learned counsel attacks both the legal and the factual findings arrived at by the High Court. The gist of the learned counsel for the Mr. Bheemasankaran 's contention may 254 be briefly stated thus: According to Dharam Shastras there were eight forms of marriage in Hindu Law, four approved and four unapproved. But as centuries rolled by most of them became obsolete and at present there are only two forms of marriage, Brahmu and Asura. Whatever may have been their comparative merits in the bygone days, they have now come to be recognized as two valid 1, forms of marriage that can be followed without any sense of inferiority by all the castes. Though in remote antiquity the Asura form of marriage night have involved a real sale transaction, at present it would be enough to constitute such a marriage if a ritual form was observed indicating the consciousness of the community or the parties contracting the marriage that it was an Asura marriage. This consciousness may be indicated by the ceremonial giving of Kambu at the time of betrothal or by the bridegroom 's party meeting the expenses wholly or substantially of the marriage. Thai apart in the present case there is clear evidence that the practice in the community to which Bangaru Ammal and her husband belonged that Kambu is given by the bridegroom 's party to the bride 's party at the time of betrothal and the bridegroom 's party bears the expenditure of the marriage which clearly indicate that the bride 's father or in his absence by the bride 's relatives entitled to give her away in marriage get a clear benefit for giving the bride, and further there is evidence that the said practice was followed in the case of Bangaru Ammal 's marriage. What is more to constitute a Brahmu marriage there should be a 'Kanyadhan ' but in this case it has been found that there was no 'Kanyadhan ' and therefore if the marriage of Bangaru Ammal could not have been in 'Brahma form ' it could have been only in the alternative form, namely Asura form. Before we advert to the arguments advanced we would like to make some general observations. 255 We are not concerned here with the relatives importance of the said two forms of marriages at the present day but only with the conditions laid down by Shastras for the said two forms of marriage and with a question as to which form was adopted in Bangaru Ammal 's marriage. Nor are we concerned with a question whether the institution of marriage in Brahmu form is now maintained in its original purity. We are also in these appeals not concerned with any customary form of marriage but only with a marriage sanctioned by Hindu Law, for no custom was pleaded in derogation of Hindu Law. But there may be a custom in a community not in derogation of the Hindu Law but in regard to the manner of complying with a condition laid down by Hindu Law. that is to say if the criterion for an Asura marriage was that there should be a sale of the bride, there may be a custom in a community in regard to the manner of paying the consideration ' for the sale. It may be mentioned that in this case the learned counsel for the respondents does not rely upon any custom even in the later sense but only on the practice obtaining in the community in support of the evidence that the said practice was followed in Bangaru Ammal 's marriage. The main question therefore is what are the ingredients of an Asura form of marriage. As the Manu Samhita has always been treated by sages and commentators from the earliest time as being of a paramount authority, let us look to it for guidance. The following verses from Manu Samhita as translated by Manmatha Nath Dutt Shastri read as follows: CHAPTER III, Verse 21: They (different types of marriages) are known as the Brahma, Daiva A 'raha, Prajapatya, A 'sura, Gandharva, Rakshasa and Paisacha, which forms the eighth. 256 Verse 24: The four forms of marriage the seers have ordained as proper for Brahmanas : only the Rakshasa form as proper for Kshatriyas, and the A 'sura form as proper for Vais 'yas and S 'udras. Verse 25: Thus out of these five forms of marriage, three are lawful, and two are sinful (unlawful). Let a man never marry a wife either in the Pisacha or in the A 'sura form since these two forms are prohibited. Verse 27: The form (of marriage) in which well attired bride, decorated with ornaments, is given in marriage to an erudite, good charactered bridegroom especially invited by the bride 's father himself to receive her, is called Brahma. Verse 31: The form, in which the bridegroom, on paying money to her father and to herself, out of the promptings, of his own desire, receives the bride in marriage, is called A 'sura. Verse 51 : An erudite father of a girl shall not take anything by way of Sulka from her bridegroom. By taking a dowry out of greed, he becomes the seller of his off spring. Verse 53: Even the acceptance of abovine pair (by the father of the bride from the bridegroom) is designated as a dowry by certain authorities, (the acceptance of) 257 a dowry be it costly, or be it of insignificant value, constitutes the sale of the girl. Verse 54 : A marriage in which the bride 's relations do accept the dowry (voluntarily presented by the bridegroom 's father, etc.) is no sale (of the bride), since such a present is but an adoration of the bride done out of love or affection. Verse 98 (of Chapter IX) Even a S 'udra must not take any price it. duty or pecuniary consideration) for the hands of his daughter when giving her away in marriage. Such acceptance of money constitutes a sale of the girl in disguise. The gist of the verses is that before Manu Smriti came into existence the A 'sura form was considered to be proper for Vaishs and Sudras but it was prohibited for the Brahmins and Kashatriyas. But Manu was emphatic that the said form of marriage was sinful for all castes including the Shudras. There is no ambiguity in the verses in regard to the general prohibition to all castes ' for Verse No. 98 emphasizes that even a S 'udra must not take any price for the hand of his daughter when giving away in marriage. The next question is what is the criterion of an A 'sura marriage according to Manu. A contrast between the terminology in the definition of Brahma marriage and that of A 'sura marriage brings out clearly his intention. The following words stand out in the definitions. They are 'dana ' (giving) 'Kanyapradanam ' (the taking of the bride), "Dravina ' (wealth), 'dattava ' (after having given), 'Saktitah ' (as much as he can), 'Svacchandya ' (as according to his will). The word 'Apradana ' is used in the 258 definition of A 'sura marriage in contradistinction to the word 'dana ' in Brahmu form of marriage, while a, in the Brahmu form of marriage the father makes a gift of the bride, in the A 'sura form the bridegroom takes the bride otherwise than by a gift. In the former the father gives the bride decorated with ornaments, while in the latter the bridegroom takes the bride after giving wealth to the father of the bride and the bride. While in the former the father voluntarily gives the bride in the latter the bridegroom out of his own will pays as much money as he can to the father and takes his bride. The words Saktitah ' and 'Svacchandya ' imply that the payment is made because the bridegroom can and the girl is taken because he wills that is to say a bridegroom who seeks the hand of a bride takes her as he can afford to buy her from her father. The transaction is equated to that of a sale, for all the ingredients of sale were present. If there is any ambiguity that is dispelled by Verse 51 and Verse 54. In Verse 51 Manu makes it clear that by taking a dowry out of greed the father becomes the seller of his off spring. 'Sulka ' means the taking of a gratuity or price. The expression 'dravina ' in Verse 31 is clarified by the use of the word 'Sulka ' in Verse 51. What is prohibited is Sulka or the price for the bride. Verse 54 brings out the distinction between 'Sulka ' or 'dravina ' paid by the bridegroom as a price for the bride and the dowry given for the bride as a present out of love or affection or in adoration of the bride. Verse 98 further empbasizes that what Manu prohibits is the sale of a bride for price. A 'sura marriage, according to Manu, is a transaction of sale in which the girl is sold for a price. Practically the same meaning though expressed in different phraseology is given by other Hindu Law givers. The following translations given by Max Muller in the "Sacred Books of the East ', of 259 the various sages may now be extracted Baudhayana text 1, II, 20 (7) '(If the bridegroom receives a maiden) after gladdening (the parents) by money (that is) the rite of the Asuras (asura). ' Verse 2 : 'Now they quote also (the following verses) It is declared that a female who has been purchased for money is not a wife. She cannot (assist) as sacrifices offered to the Gods or the manes. Kasyapa has stated that she is a slave. ' Baudhayana Prasad Adhyaya 11, Kandika 21 Verse 3 : 'Those wicked men who, seduced by agreed, give away a daughter for a fee, who (thus) fall (after death) into a dreadful place of punishment and destroy their family down to the seventh (generation). Moreover they will repeatedly die and be born again. All (this) is declared (to happen), if a fee (is taken ). , Vasishtha Chapter I Verse 35. 'If, after making a bargain (with the father, a suitor) marries (a damsel) purchased for money, that (is called) the Manusha rite. ' Narada Chapter XII Ver8e 42. When a price is (asked for the bride by the father and) taken (by him), it is the form termed Asura. 'Gautama, 'Chapter IV Verse 11. The form of marriage in which a bride is purchased for money, is called the A 'suram. ' 260 Vishnu Chapter XXIV Verse 24. If the damsel is sold (to the bridegroom), it is called an Asura marriage. 'Yagngavalkya ' : 'The asura by largely giving of money ; the Gandharva by mutual consent; the Rakshasa by forcible taking by waging war and Paisacha by deceiving the girl ' Translation of Srisachandra Vidyaamava : 1918 Edition page 126 : In the Mitakshara the said text is commented upon thus : .lm15 " The Asura marriage is that in which money is largely given (to the father and others in exchange for the girl). 'Apastamba ':"If the suitor pays money (for his bride) and marries her (afterwards) that (marriage is called) the Asura rite. ' 'Kautilya ': Arthasastra: Sulkadanat Asura ' the word used is "Sulka" Medhatithi, in his commentary on Verse 54 of Manu Samhita points out that the receipt of money or money 's worth for the benefit of the girl (Kanyarthe) does not amount to her sale, and is desirable as it tends to enhance her self esteem and also raises her in the estimation of others, and concludes with the observation that receipt of a dowry for the girl (kanyartham danagrahanam) is prescribed by thus stating the good arising from it (arthavadena) : Vide at 772. Apte 's Dictionary : page 239 : Col. III. Asura is explained thus : 'One of the eight forms of marriage in which the bridegroom purchase ; the bride from her father or other paternal kinsmen ' Manu 331 and Yagnayavalkya 1.61 are cited 261 The said sages and commentators accepted the view expressed by Manu and in effect described A 'sura marriage as the transaction where a bridegroom purchases a girl for a price paid to the father of the girl or to kinsmen who are en titled to give her in marriage. The distinction between the bride 's price and the presents to the bride is also recognized. The learned judges of the High Court relying upon the text of Apasthamba observed that 'the payment to the bride 's father is for the purpose of complying with Dharma and not as a consideration for an commercial transaction. The interpretation may explain away on Dharmic principles the sordid nature of the transaction, but does not detract from its essential incidents. We, therefore, hold that A 'sura marriage is nothing more than a transaction of marriage whereunder a bridegroom takes a bride for the price paid by him to the bride 's father or others entitled to give her and therefore in substance it is a sale of the bride. It is said that the incurring of the expenditure of the marriage by the bridegroom is also a consideration for giving the bride. In this context reliance is placed on the Law and Custom of Hindu Castes by Arthur Steel. This book was written in 1868. The author appears to have collected the laws and customs obtaining in the Presidency of Bombay, and had compiled them for the purpose of convenience of reference. At page 24 the author says: 'There are eight kinds of marriages recognized in the Sastras : 1, Brahm, where the charges are incurred solely by the girl 's father; x x x x x 5, Usoor, where she is taken in exchange for wealth, and married; this species is peculiar in the Wys and Soodra castes, B.S.(Mit), See Munoo, 3.20,34. It is considered as Uscorwiwuha, and stree soolk, and the money, if unpaid, is an unlawful debt, B 2, 199. The definition of Asura by the author does not carry the matter further, for it is consistent with that 262 given in the Hindu law Texts but what is relied upon is his definition of Brahmu marriage as one where charges are incurred solely by the girl 's father. From the said definition a converse proposition is sought to be drawn viz : that marriage would be Asura marriage if the charges were incurred mainly by the bridegroom 's father. Firstly the definition of Brahmu marriage by the learned Author does not conform with the definition of the said marriage by the lawgivers. Secondly it does not follow from the passage that if the bridegroom 's father incurs the expenditure the marriage is an Asura marriage. If that be so, the author would have stated in his definition of Asura marriage that such incurring of the expenditure would make a marriage an Asura marriage. This valuable compilation of the laws and customs of the day does not throw any light on the question now raised before us. Let us now see whether there is any merit in the contention that the concept of sale for a price has by progress of time lost its content and that at the present time a mere form of sale irrespective of a real benefit to the bride 's father would meet the requirements of an Asura , marriage. No text or commentary taking that view has been cited to us. Indeed the case law on the subject does not countenance any such subsequent development. The earliest decision on the subject cited to us is that ofthe Divisional Bench of the Bombay High Court "Jaikisondas Gopaldas vs Harkisondas Hulleshandas '.Green j, defines the Asura marriage at page 13 'The essential characteristic of the Asura form ofmarriage appears to be the giving of money or presents by the bridegroom or his family to the father or parental kinsmen of the bride,, or, in tact, a sale of the girl by her father or other relation having the disposal of her in marriage in (1) Bom. 9. 263 consideration of money or money 's worth paid to them by the intended husband or his family. ' In 'Vijarangam and Damodhar vs Lakshuman and Lakshmi ' (1) West j . gives in interesting background to the origin of the institution of the Asura marriage and observes: "Of the several Shastras called by the plaintiffs and the defendants in this case, all agree that the giving and receiving of money for the bride is the distinctive mark of the Asura form of marriage. " In 'Muthu Aiyar vs Chidambara Aiyar, the money was paid by the bridegroom 's people to the bride 's father to meet expenses of marriage. The Subordinate judge found on the evidence that the bride 's father received the money for his own purposes and not for bride 's benefit and therefore the marriage was an Asura one. The High Court in a short judgment accepted the finding and said. "it being found that a money payment was made to Thailu 's father we are not prepared to differ from the courts below in their opinion as to the nature of the marriage. " This decision is relied upon in support of the contention that where the bridegroom incurs the expenditure of the marriage such a marriage is Asura marriage. But this decision is not a considered one. The appeal being a second appeal, the learned judges accepted the finding of fact given by the Subordinate Judge, namely that the money payment was made to the bride 's father and were not prepared to differ from it. The disinclination of the learned judges to interfere in the second appeal on a question of fact cannot throw any light on the point that has directly arisen before us. Chandavarkar J. in 'Chunilal vs Surajram '(3) accepted the aforesaid definition when he said: 'Where the person who gives a girl in marriage received (1) (1871) 8 Born. F. C. Reports 244. (2) (3) Bom. 264 money consideration for it, the substance of the transaction makes it, according to Hindu Law, not a gift but a sale of the girl. The money received is what is called bride price; and that is the essential element of the Asura form. The fact that the rites prescribed for the Brahmu form are gone through cannot take it out of that category, if there was pecuniary benefit to the giver of the girl. The Hindu law givers one and all condemn such benefit and the Shastras, regarding it as an ineradicable sin, prescribe no penance for the sale of a bride. " The learned judge also accepted the presumption that every marriage under the Hindu Law is according to the Brahma form but it can be rebutted by evidence. In 'section Authikesavulu Chetty vs section Ramanujan Chetty ' (1) at the betrothal ceremony a married woman of the caste to which the parties belonged proceeded from the bridegroom 's house to the house of the bride carrying certain presents consisting of cocoanuts, betel and nut, garlands, black beads, saffron red powder, etc. in a tray. There was also a pagoda and a fanam in it. There was also an arrangement at that time that the bridegroom 's father had to pay certain amount to the bride and the bride 's father had also to give some jewels to the bridegroom. It was contended that the marriage was an Asura marriage. The learned judges said that the distinctive mark of the Asura marriage was the payment of money for the bride, and that the payment of a pagoda and 2 1/2 annas could not have been intended to be the consideration for the bride where the bride 's father spent thousands of rupees himself and gave presents of considerable value to the bride and the bridegroom. This decision, therefore, emphasises that mere payment of small amounts as a compliment to one of the parents cannot be treated as a consideration for the sale of the bride. It also lays down that all the circumstances of the case will have to be looked into to ascertain whether any amount was paid as price for the bride. (1) Mad. 265 A Divisional Bench of the Madras High Court in 'Gabrielnathaswmi vs Valliammai Ammal ' (1) negatived the contention that the mere fact that a bride 's parents received what is known as 'parisam ' it would lead to the conclusion that the marriage of the girl took place in Asura form and not in Brahma form. The learned judges observed: "It may be that parisum is a relic of what in old days was regarded as the price for the bride. x x x x The real test is whether in the community or among the parties the payment of 'parisam ' was tacitly understood as being substantially a payment for taking the girl in marriage. That will depend generally upon the evidence in the case. " They also reaffirmed the presumption under Hindu Law in; the following words : 'Ordinarily the presumption is that whatever may be the caste to which the parties belong, a marriage should be regarded as being in the Brahma form unless it can be shown that it was in the Asura form '. This decision deals with 'parisam ' with which we are also concerned in these appeals. This is an authority for the proposition that the use of the word 'parisam ' is not decisive of the question that it is a bride 's price, but that it must be established in each case whether the payment small or large, in cash or kind, is made as a bride 's price i. c. as consideration for the bride. In "Ratnathanni vs Somasundara Mudaliar" (2) a sum of Rs. 200/ was paid to the bride 's mother for the expenses of the marriage as a term of the contract of the marriage. On that finding Ramesam. ' J. concluded that the payment was made for the benefit of the bride 's mother as in the absence of the payment, she would have had to find the amount in some other way, by borrowing or pledging her jewels or other properties and therefore the marriage was in Asura form. The learned judge relied upon Steel 's observation that the parents should incur the expenditure of the marriage in the Brahma form and presumably (1) A.I.R. 1920 Mad. 884. (2) 266 drew a contrary inference that if the bridegroom 's party met the expenditure it would be an Asura marriage. The learned judge also relied upon that decision in 'Muthu Aiyar vs Chidambara Aiyar '(1). Spencer, J. in a separate judgement agreed with him. As we have pointed out we do not see any justification in the Hindu Law texts in support of the view that the bearing of the expenditure of the marriage by the bridegroom is a test of an Asura marriage. The fact that the expenditure of the marriage is borne by bridegroom 's party cannot in any sense of the term be a consideration given to the father for taking the bride. Ramesam J. sitting singly in 'Samu Asari vs Anachi Ammal ' (2) restated his view in a more emphatic form. He observed: 'It seems to me immaterial whether it is the whole of the expenses of the marriage or a substantial portion of it. To the extent the bride 's father gets contribution of that kind from the bridegroom 's father, he benefits by it; though he does not pocket it, but he spends for the marriage. . At the same time the learned judge observed that under certain circumstances payments made to the bride 's parents which are either small or relatively small having regard to the scale in which the expenses of the marriage are incurred do not make a marriage an Asura marriage. This decision therefore makes a distinction between courtesy presents given to the bride 's parents and whole or substantial portion of the expenditure incurred by the bridegroom 's father. While we agree that courtesy presents to the bride 's parents cannot by themselves conceivably make a marriage an Asura one, we find it difficult to hold that the incurring of expenditure by a bridegroom satisfies the test of consideration for the bride. In 'Kailasanatha Mudaliar vs Parasakthi Vadivanni ', (3) Varadachar J., speaking for the (1) (2) (3) Mad. 267 Court lays down the test of the Asura marriage in the following manner : "The distinctive feature of the Asura form of marriage is the giving of money or money 's worth to the bride 's father for his benefit or as consideration for his giving the girl in marriage. " The learned judge distinguishes the case of "Samu Asari vs Anachi Ammal ' (1) on the ground that there money was held to have been paid for the father 's benefit though utilized by him to meet the expense of the marriage which he must have defrayed out of his own fund and points out also the distinction between payment to the father for his own benefit and payments to the bride received by kinsmen not for their own use. In that case a jewel was presented by the bride 's father and placed on the bride 's neck at the time of the betrothal ceremony as ' parisam ' and the value of the jewel was not even the subject of a bargain but merely left to the pleasure of the bridegroom 's father. The learned judge observed that such a gift could in no sense be called bride 's price. In 'Sivangalingam Pillai vs K. V. Ambalavana Pillai, (2) the bride 's father gave a large amount and also jewels to the bride and plaintiff 's brother in law on behalf of the bridegroom gave the bride 's father a present of Rs. 1,000/ and a cloth worth Rs. 65/ . It was also agreed that all the expenses of the marriage should be borne by the bridegroom. It was contended that the said presents and the incurring of expenditure on the marriage was a consideration for the bride and therefore the marriage was in an Asura form. The Divisional Bench rejected the contention. Pandrang Row J. observed at page 481: "It is a well known fact that, whatever the custom is, the bridegroom and his people also spend a considerable sum of money in respect of the marriage whenever they can afford it. Such expenditure obviously does not convert the marriage which is otherwise in the Brahma form into one which is in (1) (2) A.I.R. 1938. 479. 268 the Asura form. " The learned judge proceeded to state at page 480 thus : "So far as our Presidency is concerned, all marriages among Hindus are presumed to be in the Brahma form unless it is proved that they were in the Asura form; in other words, it is incumbent on the party who alleges that a particular marriage was in the Asura form to prove that bride price was paid in respect of the marriage by the bridegroom or his people to the bride 's father" and the present given to the bride 's father the learned judge remarked that this customary present would not necessarily amount to payment of bride 's price. Abdur Rahman J., added that 'if a party wishes to assert that the marriage was Asuric in form, he must establish that some price was paid for the bride in pursuance of either of an express or implied contract to the bride 's father or on his account. " This judgment we may say so with respect puts the principle on a correct legal basis and brings out in bold relief the distinction between bird 's price on the one hand and the presents and the expenditure incurred in respect of the marriage by one or the other of the parties on the other hand Patanjali Sastri J., in 'V.S. Velavutha Pandaram vs section Suryamurthi Pillai ' (1) approached the case if we may say so from a correct perspective. There a sum of Rs.500/ was paid by the bridegroom to the bride 's father for the specific purpose of making jewels for the bride in pursuance of a stipulation for such gift as a condition of giving the girl in marriage. The learned, judge held that the said payment was not bride 's price and did not make the marriage an Asura marriage. The learned judge in passing referred to the case of 'Samu Asari vs Anachi Ammal ' (2), and observed as follows : " 'As the father was benefitted by such contribution in that he was relieved to that extent from defraying such expenses (1) (2) 269 himself, the marriage was one in the Asura form. This view has been criticised in the latest edition of Mayne 's Hindu Law as not really warranted by the Hindu Law texts, and the point may have to be reconsidered when it arises. " Patanjali Sastri, J., again considered this point in Second Appeal No. 2272 of 1945. There on the occasion of the marriage one sovereign was given along with the other presents to the bride 's father as Memmekkanoni. The question was whether the mere adoption of this customary form per se brought the marriage within the category of an Asura or unapproved marriage. The learned judge expressed the view that the payment of memekanom no longer signifies in substance and in truth consideration for the transfer of the girl but has survived as a token ceremonial payment forming part of the marriage ritual. The said judgment was confirmed by a Divisional Bench of the said High Court in 'Vedakummpprath Pillai Muthu appellant vs Kulathinkai Kuppan '. (1) Balakrishna Ayyar, J., speaking for the Bench neatly summarised the law on the subject at page 804 thus : "One essential feature of an Asura marriage, the feature which makes the form objectionable, is that the father of the bride receives a gratuity or fee for giving the girl in marriage. Ordinarily, it would be expected of every decent and respectable father when he selects a husband for his daughter to make his selection uninfluenced by any considerations other than the welfare of the girl. But when he receives a payment for his personal benefit, a very objectionable factor would influence his selection and it is clearly this which the ancient lawgivers took objection to and therefore relegated the form to the category we call 'disapproved '. When the father accepts money and allows his greed or avarice to sway his judgment, he thereby converts what is intended to be a sacrament into a commercial transaction. " With respect we are in full agreement with the observations of the learned judge. Commenting upon the (1) 270 argument built upon the payment of one sovereign to the bride 's father the learned judge observed : "In most, though not necessarily in all cases, the payment has lost all its original significance and survives only as a ritualistic form '; it has become a ceremonial symbol devoid of any content or meaning or purpose. x x x x Now when a father gives such a large amount as stridhanam and receives one sovereign in compliance with traditional form it would be very wrong to say that he had been selling or mortgaging the girl and that he received the sovereign from greed or love of gain. " The foregoing discussion leads to the following results . Under Hindu Law marriage is a sacrament and it is the religious duty of the father to give his daughter in marriage to a suitable person but if he receives a payment in cash or in kind as a consideration for giving his daughter in marriage he would be converting a sacrament into a commercial transaction. Brahma marriage satisfies the said test laid down by Hindu Law. But from Vedic times seven other forms of marriage were recognized based on custom and convenience. Asura form is one of the eight forms of marriage. The essence of the said marriage is the sale of a bride for a price and it is one of the unapproved forms of marriage prohibited by Manu for all the four castes of Hindu society. The vice of the said marriage lies in the receipt of the price by the bride 's father or other persons entitled to give away the bride as a consideration for the bride. If the amount paid or the ornaments given is not the consideration for taking the bride but only given to the bride or even to the bride 's father out of affection or in token of respect to them or to comply with a traditional or ritualistic form, such payment does not make the marriage an A 'sura marriage. There is also nothing in the texts to indicate that the bearing 271 of the expenditure wholly or in part by the, bridegroom or his parents is a condition or a criterion of such a marriage, for in such a case the bride 's father or others entitled to give her in marriage do not take any consideration for the marriage, or any way benefit thereunder. The fact that the 'bridegroom 's party bears the expenditure may be due to varied circumstances. Prestige, vanity, social custom, the poverty or the disinclination of the bride 's father or some of them may be the reasons for the incurring of expenditure by bridegroom 's father on the marriage but the money so spent is not the price or consideration for the bride. Even in a case where the bride 's father though rich is disinclined to spend a large amount on the marriage functions and allows the bridegroom to incur the whole or part of it, it cannot be said that he has received any consideration or price for the bride. Though in such a case if the bridegroom 's father had not incurred the said expenditure in whole or in part, the bride 's father might have to spend some money, on that account such as indirect result could not be described as price or consideration for giving the bride. Shortly stated Asura marriage is a marriage where the bride 's father or any other person entitled to give away the bride takes Sulka or price for giving the bride in marriage. The test is two fold: There shall not only be a benefit to the father, but that benefit shall form a consideration for the sale of the bride. When this element of consideration is absent, such a marriage cannot be described as Asura marriage. As the Asura marriage does not comply with the strict standards of Hindu Law it is not only termed as an unapproved marriage, but it has been consistently held that whenever a question arises whether a marriage is a Brahmu or Asura, the presumption is that the marriage is in Brahma form and the burden is upon the person who asserts the con trary to prove that the marriage was either an Asura or any other form. 272 With this background let us look at the facts of the case. Though in both the plaints it is stated that Bangaru Ammal had been married in Asura form, no particulars are given but in the evidence the plaintiff 's witnesses in one voice depose that the custom in the Rakambala caste to which Bangaru Ammal and her husband belonged, is to give money in the shape of 'parisam ' to the bride 's father at the time of the betrothal. The witnesses who depose to Bangaru Ammal 's marrage say that at the time of her betrothal a sum of 1,000/ was paid as ' parisam '. Both the Courts did not accept this evidence and they held that it had not been established that a sum of Rs. 1,000/ was paid as 'parisam ' at the time of the betrothal of Bangaru Ammal. This finding is not attacked before us. It is argued that the evidence discloses that there is a practice in the said caste to give Kambu as IT parisam ' to the bride 's father as a bride 's price and the said practice supports the evidence that in the case of the marriage of Bangaru Ammal also such a 'parisam ' was paid as consideration for the marriage. On the question of the said alleged practice the evidence does not support it. P. W. I to P. W. 10 depose. that "parisam ' is paid in cash for marriages in their community varying from Rs. 150/ to Rs. 1,000/ . This evidence has been rightly ' disbelieved by both the courts. The evidence does not bear out the case of giving of 'parisam ' in Kambu. Some of the witnesses also depose to the payment of Rs. 1000/ as 'parisam ' at Bangaru Ammal 's marriage but that was not accepted by the courts. The evidence destroys the case that 'parisam ' was paid at her marriage in Kambu. No witness examined in the two cases says that Kambu is paid at the marriages of the members of the community or was paid at the time of Bangaru Ammal 's marriage as a consideration for the marriage but it is said that the witnesses who had been 273 examined in the earlier suit whose evidence has been marked by consent in the present case deposes to that fact. Errammal, the mother of Bangaru Ammal, whose evidence is marked as P. 11 (R) deposes that when Thevaram Zamindar married her the 'parisam ' was only Rs. 1,000/ and that when her daughter was married, the 'parisam ' was also Rs. 1000/ . In cross examination she says that according to the custom of the community, it is the practice to bring a mapelli for the nischithartham (betrothal function) and it is customary also to bring cumbu and flour at the time of the marriage and sprinkle it in the marriage hall. This evidence indicates that the 'parisam ' is only given in cash but Kambu is brought at the time of the marriage and sprinkled in the marriage hall presumably for the purpose of purification. This evidence does not show that Kambu is given as "parisam ' for taking the bride. Sermalai Naicker who gave evidence in an earlier suit which is marked as P. 11 (a) belongs to Rajakambala caste. In his chief examination he says that he paid Rs. 200/ as 'parisam ' at the time of the marriage and paid Rs. 300/ as "parisam ' for the marriage of his son and received Rs. 200/ as 'parisam ' for the marriage of his daughter. In cross examination he says that on the betrothal day only one kalam of cumbu and cash are given to the bride 's party and that the Kambu is used by the bride 's people and that at the time of the marriage 3 or 4 marakkals of cumbu are again brought which is thrown over the bride and the bridegroom byway of blessing. He adds that throwing of the kambu is a ritual in marriage ceremonies and that Kambu and cash are called "Parisam '. This evidence brings out the distinction between cash paid as the 'Parisam ' and Kambu brought to conform with the traditional ritual. 274 R.W. 3 in the earlier suit whose evidence is marked as D. 317 says that he was a guru of the Rajakambala caste and that he performed the marriage of Moolipatti zamindar. He further says that Kambu is taken by the bridegroom 's party to the bride 's house when the betrothal takes place and that seven pieces of jaggery, a cloth etc. are also taken and that no money is given in the caste. We do not see how this evidence supports the practice of paying kambu as 'parisam '. indeed his evidence shows that Kambu is taken only as a part of the ritual and he is definite that no 'parisam ' is paid in the caste. Ramasami Naicker Zamindar of Ammaianaickoor. was examined in the previous suit and his evidence is marked as D 416. He is definite in the chief examination that no 'parisam ' is paid in his community. He says that it is rather undignified to receive 'Parisam ' and that he has not seen any parisam paid in his caste. Whether this witness is speaking truth or not, his evidence does not support the plaintiff. From the aforesaid evidence it is not possible to hold that either there is a practice in the Rajakambala family to give Kambu as 'parisam ' for the bride or kambu was paid as 'parisam ' at the time of the betrothal ceremony in connection with Bangaru Ammal 's marriage. Reliance is placed upon Nelson 's Manual of the Madhura Country published in 1.865. At page 82 of Part II in that /Manual the following passage appears : "After this, the price of the bride, which consists usually of 7 kalams of kambu grain, is solemnly carried under a canopy of white cloth towards the house of the bride 's father 275 its approach being heralded by music and dancing. The procession is met by the friends of the bride who receive the price, and allege together to the bride 's house. " Similarly, in Thurston 's Castes and Tribes of Southern India published in 1902 in Volume VII under the heading 'Thotti Naickers ' at page 192, the following passage is given "The bride price is 7 kalams of Kambu and the couple may cat only this grain and horsegram until the wedding is over. " The evidence adduced in this case does not support the said statement. Even if those formalities are observed, they are only the relics of the past. That practice represents only a symbolic ritual which. has no bearing upon the reality of the situation. Indeed the witnesses in the present case realizing the ritualistic character of the said observances seek to base the case of the Plaintiffs on a more solid foundation but have miserably failed in their attempt. These passage s therefore do not help the plaintiffs. The next question is whether the expenditure for the marriage was incurred by the bridegroom 's party i. e. by the Mannarcottai Zamindar. The learned Subordinate judge held on the evidence that Thevaram Zamindar spent a large amount of money for the marriage but the Mannarcottai Zamindar also spent a sum of Rs. 300/ or Rs. 575/ for the marriage expenses. He expressed the view that if the matter was res integra, he would have held that the incurring of such an expenditure by the bridegroom 's party would not have made the marriage. an Asura marriage but felt bound by some of the decisions 276 of the Madras High Court to come to the opposite conclusion. The learned judges of the High Court came to the conclusion that the marriage expenses in their entirety were borne by the Mannarcottai Zamindar and it must have been either in pursuance of the custom or arrangement among the community. The evidence as regards the custom of the bride groom 's party incurring the expenses of the marriage is unconvinc ing. Indeed the learned counsel for the respondent does not rely upon custom but he prefers to base his case on the finding of the High Court that the entire marriage expenditure was incurred by the Mannarcottai zamindar. Let us now consider the evidence in this regard in some detail. P.W. 1 says in his evidence that Bangaru Ammal was the only child of the Thevaram Zamindar, that he was very affectionate to her and that he spent heavily for the marriage though he was not able to say how much he spent. P. W. 4 also says that Thevaram Zamindar gave her lot of jewels and finally gave her his entire estate. The evidence that Thevaram Zamindar spent large amounts on the marriage and gave lot of jewels to Bangaru Ammal must be true, for even in 1895 when the marriage of Bangaru Ammal took place it is inconceivable that the marriage would have been celebrated with a few hundred rupees that was given by the Mannarcottai zamindar. He must have spent much larger amount than that consistent with his status and position in life and particularly when he was celebrating the marriage of his only daughter. Now coming to the documentary evidence in support of the contention that Mannarcottai Zamindar met the entire expenditure, the respondents relied upon P. , P. and P. is a letter dated August 8, 1885, written by persons representing the Mannarcottai zamindar to the 277 Thevaram Zamindar office. Therein he stated :"You should soon get ready there all the materials and samans for the shed and 'Panthal ' in connection with muhurtham. We will start and come without fail". This letter does not show that Mannarcottai Zamindar gave the money for the materials and samans for the said 'Panthal '. It was only an intima tion that everything should be made ready for the marriage as Mannarcottai people would be coming there without fail. Exhibit P. 23 is the account of expenditure incurred on Bangammal 's marriage from 1.9.1895 to 5.9.1895. It is said that it represents the amount spent on behalf of Mannarcottai zamindar and the amount recouped from him. The document is not very clear. The account does not appear to represent the entire expenditure incurred at the time of marriage because the entry about charges for pounding 50 kalams of paddy shows that 50 kalams of paddy must have been supplied from Thevaram stores and there is nothing on the account to show that 50 kalams were purchased on Mannarcottai account. Be that as it may this account only shows that Mannarcottai zamindar paid about Rs. 300/ but the learned counsel for the respondents argued relying upon exhibit P. 27 that even the balance of Rs. 295/14/in exhibit P. 23 shown as the excess amount spent by Thevaram Estate was paid off by the Mannarcottai zamindar to the Thevaram Zamindar. Exhibit P. 27 is an entry dated September 30, 1885 in the account book of Thevaram Zamindar. It show that the Maha raja meaning Thevaram Zamindar gave to Thevaram office Rs. 290. It does not establish the respondent 's version. The only merit of the contention is that the two figures approximate each other. If that figure represents the amount paid by Mannarcottai Zamindar to Thevaram in full discharge of the amount due from the former to the latter, the entry would have run to the effect that the balance of the amount due from Mannarcottai under Ex.p.23 was paid and it would have been credited in Mannarcottai 278 account. It may have been that the sum of Rs. 290/was the balance out of the amount that Thevaram Zamindar took with him when he went to Mannarcottai for meeting his expenditure. The other accounts P. 25 and P. 26 filed in the case are neither full nor clear and no definite conclusion could be arrived at on the basis of the said account. We therefore hold on the evidence and probabilities that Thevaram Zamindar had spent large amounts in connection with the marriage and Mannarcottai zamindar spent only about Rs. 300/ in connection with the said marriage. Such a finding does not bring the marriage within the definition of Asura marriage as explained by us. earlier. The expenditure incurred by the bridgegroom 's party was not and could not have been the consideration for the Thevaram Zamindar giving his daughter in marriage. It is contended that the High Court found that there was no 'Kanyadhan ' at the time of the Bangaru Ammal 's marriage and as 'Kanyadhan ' was necessary ingredient of Brahmu marriage, Bangaru Ammal could not have been married in that form. The High Court relying upon the evidence of Veluchami Naicker who is stated to be the Guru of the caste held that 'Kanyadhan ' had not been observed in Bangaru Ammal 's marriage. The learned counsel for the appellant contests the correctness of the finding and he relies upon some invitations in support of his contention that 'Kanyadhan ' was observed in Bangaru Ammal 's marriage but the documents are not clear on the, point. The Guru only narrates some of the ceremonies held in marriages in the community but he does not expressly state that the ceremony of 'Kanyadhan ' was not observed at Bangaru Ammal 's marriage. In this state of evidence the presumption in. Hindu Law that the marriage was performed in Brahmu form must be invoked. As we have pointed out under the Hindu Law whether a marriage was in Brahmu form or Asura form the Court will presume 279 even where the parties are Shudras that it was in the Brahmu form. Further where it is proved that the marriage was performed in fact the Court will also presume that the necessary ceremonies have been performed. See 'Mauji Lal vs Chandrabati Kumari '(1). This presumption has not been rebutted in this case. That apart the argument of the learned counsel for the respondents mixes up an essential ingredient of the Brahmu marriage, namely the gift of the girl to the bridegroom with a particular form of ritual adopted for making such a gift. In both forms of marriages a girl is given by father or in his absence by any other person entitled to give away the girl to the bridegroom. In the case of Brahmu marriage it takes the form of a gift while in the case of Asura marriage as price is paid by the bridegroom, ,it takes the form of a sale. As we have held that in Bangaru Ammal 's marriage no consideration passed from the bridegroom to the bride 's father, the father must be held to have made a gift of the girl to the bridegroom. To put in other words there was 'Kanyadhan ' in Bangaru Ammal 's marriage. We therefore reject this contention. Lastly reliance is placed on the conduct of the appellant in not questioning the correctness of the finding given by the learned Subordinate judge in his application for delivery that the marriage was in Asura form. The learned counsel for the appellant sought to explain his conduct but in our opinion nothing turns upon it. If the marriage was not in Asura form as we held it was not, the conduct of the appellant could not possibly make it an Asura marriage. In this view it is not necessary to give opinion on the other questions raised in the appeals. In the result the decrees of the High Court are set aside and both the suits are dismissed with costs throughout. One hearing fee. Appeals allowed (1) (1911) L.R. 38 I.A.122.

IN-Abs

The main question involved in both the appeals was whether the marriage of Bangaru Ammal was in Asura form or in Brahma form. The contention of the appellant was that it was not in Asura form. Except a bare allegation in the plaint that the said marriage was held in Asura form, the plaintiffs did not give any particulars or set up any custom in the community to which the parties to the marriage belonged. They had given evidence that 'a sum of Rs. 1000 was paid as 'Parisam ' to the father of bride but that evidence had been rejected by both the courts. Respondents pointed out to the giving of Kambu by bridegroom 's party to the bride 's party at the time of betrothal and expenditure of Rs. 300/ by bridegroom 's party in connection with the marriage of Bangaru Ammal and maintained that it was Asura marriage. Held, that the marriage of Bangaru Ammal was not in Asura form but in Brahma form. There was nothing to show that there was a practice in the family to give Kambu as 'Parisam for the bride or Kambu was paid as 'parisam ' at the time of the betrothal ceremony in connection with the marriage of Bangaru Ammal. The father of the bride had spent large amounts and the bridegroom 's party had spent only about Rs. 300/ in connection with the said marriage. The expenditure incurred by the bridegroom 's party was not and could not have been the consideration for the father giving his daughter in marriage. There is a presumption in Hindu Law that every Hindu marriage is in Brahma form and that pre sumption has not been rebutted in this case. The court was entitled to presume that the necessary ceremony of Kanyadan must have been performed. As no consideration passed from the bridegroom to the father of the bride, the father must be held to have made a gift of the girl to the bridegroom. 245 The essence of the Asura marriage is the sale of a bride for a price and it is one of the unapproved forms of marriage prohibited by Manu for all the four castes of Hindu society. The vice of the said marriage lies in the receipt of the price by the bride 's father or other persons entitled to give away the bride as a consideration for the bride. If the amount paid or the ornament given is not the consideration for taking the bride but only given to the bride or even to the bride 's father out of affection or in token of respect to them or to comply with a traditional or ritualistic form, such payment does not make the marriage an Asura marriage. There is also nothing in the texts to indicate that the bearing of the expenditure wholly or in part by the bridegroom or his parents is a condition or a criterion of such a marriage, for in such a case the bride 's father or others entitled to give her in marriage do not take any consideration for the marriage, or in any way benefit thereunder. The fact that the bridgeroom 's party bears the expenditure may be due to varied circumstances. Prestige, vanity, social custom, the poverty or the disinclination of the bride 's father or some of them may be the reasons for the incurring of expenditure by bridegroom 's father on the marriage but the money so spent is not the price or consideration for the bride. Even in a case where the bride 's father, though rich, is disinclined to spend a large amount on the marriage functions and allows the bridegroom to incur the whole or part of it, it cannot be said that he has received any consideration or price for the bride. Though in such a case if the bridegroom 's father had not incurred the said expenditure in whole or in part, the bride 's father might have to spend some money on that account, such an indirect result could not be described as price or consideration for giving the bride. Asura marriage is a marriage where the bride 's father or any other person entitled to give away the bride takes Sulka or price for giving the bride in marriage. The test is two fold. There shall not only be a benefit to the father, but that benefit shall form a consideration for the sale of the bride. When this element of consideration is absent, such a marriage cannot be described as Asura marriage. Jaikisondas Gopaldas vs Harikisandas Hulleshandas Born. 9, Vijarangam vs Lakshman, (1871) 8 Born. H. C. Report. 244, Muthu Aiyar vs Chidambara Aiyar, , Chunilal vs Surajram, (1909) I. L.R. 33 Born. 433, section Authikesayulu Chetty vs section Ramanvjan Chetty" (1909) 1. L. R. , Gabrielnathaswami vs Valliammai Ammal, A. 1. R. , Ratnathanni vs Somasundara 246 Mudaliar, , Samu Asari vs Anachi Ammal, ; Kailasanath Mudaliar vs Parasakthti Vadivanni, Mad. 488, Sivangalingam Pillai vs K. V. Ambalayana Pillai, A. 1. R. ; V. section Velavutha Pandaram vs section Suryamurthi Pillai (1941) 2 M. L. J. 770 and Vedakummapprath Pillai vs Kulathinkai Kuppan, , referred to.

Appeal No. 628 of 1961. Appeal from the judgment and order dated February 24, 1960, of the Kerala High Court in Tax Revision Case No. 22 of 1957. G. B. Pai, J. B. Dadachanji, O. C. Mathur and Ravinder Narain, for the appellant. 609 V. P. Gopalan Nambiar, Advocate General, State of Kerala and Sardar Bahadur, for the respondent. A. V. Viswanatha Sastri, section N. Andley, Rameshwar Nath andP. L. Vohra, for the interveners. November30. The Judgement of the, Court was delivered by KAPUR, J. Thisappeal by certificate of the High Court of Keralaraises the question of the taxability of sales of tea under the Travancore Cochin General Sales Tax Act, hereinafter termed the Act, and the Rules made thereunder. The assessment period is 1952 53 and the turnover was of a sum of Rs.3,77,644/ on which a tax of Rs. 5900/11/ was levied. The appellant before us is the assessee company and the respondent is the Deputy Commissioner of ' Agricultural Income tax and Sales tax. Mr. A. V. Viswanatha Sastri on behalf of Outcherloney Valley Estates (1938) Ltd. has applied for intervention on the ground that in case of that company also the State or Kerala has, on similar fact;, levied sales tax on certain transaction that the High Court of Kerala has upheld the taxability of the transactions relying on the judgment which is under appeal in the present case, and that the intervener has obtained Special leave to appeal against that judgment and the records are under print. In view of these circumstances we have allowed that company to intervene in the present appeal. The assessment was made on March 30, 1955, under r. 33(1) of the Act on the ground that the sales of tea had escaped assessment. The appeal against 610 that order was unsuccessful and thereafter a further appeal was taken to the Sales tax Appellate Tribunal which by its order dated August 12, 1957, held that the ban under article 286(1)(a) of the Constitution on sales which are outside the State applied, in regard to the sales of 'full lots ' and therefore remanded the case to the Sales tax Officer. Against that order a revision was taken to the High Court which held that the decision of the Appellate Tribunal in regard to the applicability of article 286(1)(a) was erroneous and therefore the sales were subject to sales tax under the Act. It is against that judgment and order that the assessee company has come to this court on a certificate of the High Court. Put shortly, the nature and procedure of sales of teas was this; that the teas were stored in the godowns at Willingdon Island which was in the State of Travancore Cochin., samples of those teas etc., were taken to Fort Cochin which at the relevant time was in the State of Madras. There by the samples the teas were sold by public auction in lots, some were purchased in their entirety and others in parts and after the consideration money was paid at Fort Cochin delivery orders. were given to the buyers addressed to the godown keepers at Willingdon Island and actual delivery of tea was taken there. These teas were then sent out from Willingdon Island in Travancore Cochin for consumption either in other parts of India or were exported out of India. The taxability of the sales of teas in the manner above mentioned will depend upon whether the sales can be held to have taken place at Willingdon Island i.e. within the territory of Travancore Cochin State and were liable to the imposition of sales tax under the Act or they were what for convenience are called Ire outside sales" and therefore not subject to sales tax in the State of Travancore Cochin. The argument raised on behalf of the assessee company was that 611 these sales were effected at Fort Cochin which was outside the territory of Travancore Cochin and therefore were not liable to tax because of the ban imposed by article 286(1)(a) of the Constitution. That Aricle with the Explanation at the relevant time was as follows "article 286(1) No law of a State shall impose, or authorise the imposition of, a tax on the sale or purchase of goods where such sale or purchase takes place (a) outside the State; or (b). . . . . . . Explanation : For the purpose of sub clause (a) a sale or purchase shall be deemed to have taken place in the State in which the goods have actually been delivered as a direct result of ' such sale or purchase for the purpose of consumption in that State, notwith standing 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". Under the Sale of Goods Act in an auction sale the title in goods passes and the sale is complete as soon as the hammer falls. The relevant portion of section 64 of the Sale of Goods Act dealing with sale by auction reads as follows In the case of a sale by auction. (1) where goods are put up for sale in lots, each lot is prima 612 facie deemed to be the subject of the separate contract of sale; (2) the sale is complete when the auctioneer announces its completion by the fall of the hammer or in the customery manner; and until such announcement is made any bidder may retract his bid. " Specific goods in section 2 (14) of the Sale of Goods Act means goodsidentified and agreed upon at the time contract is made. Therefore on the fall of the hammer theoffer is accepted and if the goods are specified goods the title passes to the buyer. In the present case as soon as the hammer fell the title in the goods passed to the buyer as the goods were specific goods i.e. goods which were auctioned in full lots and this event took place at Fort Cochin which was in the State of Madras. But in the case of unascertained goods the title in the goods does not pass to the buyer unless and until the goods are ascertained. It was for this reason that a distinction was drawn by the Sales tax Appellate Tribunal between goods which were sold in full lots and those which were sold in portions. In regard to the former it was held that the title passed as soon as the hammer fell but not so in regard to the latter and therefore the sale of "full lots ' was held to have taken place outside the State of Travancore Cochin and of portions of lots inside that State. The case was consequently remanded to the Sales tax Officer for determining the amount of the tax. The High Court in revision held that the words in article 286 (1) (a) " 'outside the State" do not mean transfer of ownership, according to the Sale of Goods 613 Act but it was lex situs which determines the taxability of the transaction and the correct position is that the ownership in the goods is transferred according to the law of the place where the goods are situate. Therefore the sale in the present case was in the State of Travancore Cochin and there is nothing in the Explanation to article 286 (1) (a) which provides to the contrary. It has been found and it has not been disputed that the title to the goods in the present case passed at Fort Cochin. The purchase money was paid there and the purchaser obtained from the auctioneer delivery notes directing the godown keepers at Willingdon Island to deliver the goods and only the actual physical delivery of the goods took place at Willingdon Island. In these circumstances the question is whether the sale was "outside" or "inside sale" as the expressions have been compendiously used in various judgments to indicate sales taking place within a State or without it. The Explanation to article 286 (1) (a) which has been set out above explains what a sale outside the State is. According to that Explanation a fiction is created as between two States, one where the goods are delivered for consumption in that State and the other where the title in the goods passes and the former is treated as the situs of the taxable event to the exclusion of the latter. Therefore where the Explanation applies the difficulty about the situs is resolved but in a case like the present one the difficulty still remains because the explanation does not operate in the sense that the rival States claiming to tax the same taxable event are not the States of delivery for consumption in that State and those where the title in the goods passes. In somewhat similar circumstances this court in Indian Copper Corporation Ltd. vs State of Bihar (1) held by a majority decision that the opening words of Art: 286 (1) which speak of a sale or purchase taking place and the non obstante clause in (1) ; ,286, 614 the Explanation which refers to the general law relating to the sale of goods, indicated that it was the "passing of property within the State" that was intended to be fastened on, for the purpose of determining, whether the sale in question was "inside" or "outside" the State and therefore subject to the operation of the " 'Explanation", that State in which property passed would be the only State which would have the power to levy a tax on the sale. At page 286 it was observed: "The conclusion reached therefore is that where the property in the goods passed within a State as a direct result of the sale, the sale transaction is not outside the State for the purpose of article 286 (1) (a) unless the Explanation operates". The majority decision in Indian Copper Corporation Ltd. vs State of Bihar (1) concludes the point in favour of the appellant. On the facts of this case it was found by the Sales Tax Appellate Tribunal that in regard to the sales of tea in 'full lots ' the property passed at Fort Cochin and this view has not been challenged in this court. Therefore, on the majority decision in Indian Copper Corporation Ltd. vs State of Bihar (1) the only State which would have the power to levy a tax on such sales would be the State of Madras and so far as Travancore Cochin was concerned, the sale would be an outside sale. In the present case therefore the sale was an "outside sale" and cannot be said to be an "inside sale" qua Travancore Cochin because the title passed at Fort Cochin which is in the State of Madras. Apart. from that the money was paid there and the delivery order was also received there even though the actual physical delivery of goods was made at a Willingdon Island in the State of Tranvancore Cochin. The fiction created by the Explanation to, article 286 (1)(a) is inapplicable (1)[1961] 2 S.C.R. 276, 615 because there was no delivery as a direct result of sale for the purpose of consumption in any particular State. There then remains the question of goods which were exported out of India from Willingdon Island. In the case of those goods 'also it cannot be said that there was a sale inside the 'State of Travancore Cochin because the same considerations will apply to those sales as to the sales already discussed i.e. goods the title to which passed at Fort Cochin were delivered at Willingdon Island and were delivered for 'consumption in parts of India other than Travancore Cochin. In our view therefore the High Court was in error and the appeal should therefore be allowed and the judgment and order of the High Court of Kerala set aside. The appellant will have its costs in this court and in the High Court. Appeal allowed.

IN-Abs

The sales of teas were by auction which was conducted in Fort Cochin in Madras State. The price was paid in Fort Cochin and delivery orders were also given there for goods which were at Willingdon Island in Travancore Cochin State. From Willingdon Islands the goods were sent for consumption to other States and to foreign countries. The State of Travancore Cochin sought to tax these transactions for sales tax. Held that the property in the goods passed when the contract was accepted on the fall of the hammer in Fort Cochin. Under article 286(1) it was the "passing of the property within the State" that was intended to be fastened on for the purpose of determining whether the sale was "inside" or "outside" the State. Subject to the operation of the "explanation" that State in which property passed would be the only State which would have the power levy the tax on the sale. But the explanation did not apply in the present case as there was no delivery as a direct result of the sale for consumption in any particular State. Indian Copper Corporation Ltd. vs State of Bihar, ; , followed.

minal Appeal No. 155 of 1961. Appeal by, special leave from the judgment and order date April 10, 1961 of the Kerala High Court in Criminal Appeal No. 143 of 1960. B. R. L. Iyengar and T. section Venkataraman, for the appellant. V. Narayana Menon and Sardar Bahadur, for. the respondent. December 5. The judgment of the Court was delivered by SUBBA RAO J. This appeal by special leave is preferred against the Judgment of the High Court of Kerala, confirming that of the Special judge, ,Trivandrum, convicting the accused under section 5(2), read with section 5(1)(d) of the Prevention of Corruption Act, 1947,(2 of 1947), hereafter called the Act, and sentencing; him; to pay a fine of Rs. 1,0001 , or in default to undergo simple imprisonment for four months. The appellant was, a Special Revenue Inspector for land assignment at Manantoddy in Wynad Taluk in the old Malabar district. 726 The case of the prosecution was that he, by abusing his position as a public servant,, got 4 acres and 80 cents of Government land in R section No 376/2 of Tavinhal village assigned in the name of his brother in law P. V. Gopinathan Nambiar without revealing the fact that he was his brother in law and by making false entries in the relevant records showing that the said land contained only 97 trees valued at Rs. 165/ , whereas the land had actually 150 trees worth Rs. 1450/ . The suppression of the fact that the assignee was his brother in law and the underestimate of the value of the land were dishonestly made to circumvent the rules governing the assignment of lands to landless poor. The Special judge and on appeal the High Court held that the appellant dishonestly underestimated the extent and the value of the trees in the said land with a view to help his brother in law and thereby committed an offence under section 5(2), read with section 1(4) of the Act. Hence the appeal. Learned counsel for the appellant raised before us 2 points : (1) Section 5(1)(a) of the Act does not apply to a case of wrongful loss caused to Government by a public servant who by deceit induced it to part with its property : (2) The High Court acted erroneously in relying upon a report dated April 5, 1961, made by the district Forest Officer, Kozhikode, filed by the public prosecutor after the appeal was reserved for judgment without giving an opportunity to the appellant to file objections thereto or contesting the correctness of the valuation given therein. As the first contention turns upon, the provisions of section 5(1), it will be convenient to read the same, 5. (1) A public servant is said to commit the offence of criminal misconduct in the discharge of his duty (a) if he habitually accepts or obtains or 727 agrees to accepts to obtain from any person for himself if or for any other person, gratification (other than legal remuneration) as a motive or reward such as is mentioned in section 161 of the, Indian Penal Code, or (b) if he habitually accepts or obtains or ' agrees to accept or attempts to obtain for himself or for any other person, any valuable thing without consideration or for a consideration which he knows to be inadequate, from any person whom he knows to have been or to be, or to be likely to be concerned in any proceeding or business transacted or about to be transacted. by him, or having any connection with the official functions of himself or of any public servant to whom he is subordinate, or From any ' person whom he knows to be interested in or related to the person so concerned, of (c) if he dishonestly or fraudulently mis appropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person so to do, or (d) if he, by, corrupt or illegal means or by otherwise abusing his position as public servant obtains for himself or for any other person any Valuable thing or pecuniary advan tage. We are concerned in this case with 5(1)(d) of the act Under that" clause it a public servant by corrupt or illegal means or by otherwise abusing his position as public servant obtains for, himself or for any other person valuable thing, or pecuniary advantage, he will be guilty of Criminal misconduct, punishable under section 5(2) of the Act with imprisonment for a term which shall not be less than one year and which may extend to 7 years, and shall also be liable to fine. 728 The learned counsel contends that clause (d) being a penal provision, shall be strictly construed and that if so construed, it would only take in cases of direct benefit obtained by a public servant for himself or for any other person from a third party in the manner described therein and does not cover a case of a wrongful loss caused to the Government by abuse of his power. This conclusion, the argument proceeds, flows from three circumstances. (1) The benefit obtained in clause (b) must be similar to that provided for in clauses (a) & (b) 14 e., benefit obtained from a third party; (2) The case of wrongful loss to the Government is provided by clause (c) and any other loss which does not fall within that clause is outside the scope of the section; (3) Though the word "obtains ' has a wide meaning in the setting in which it appears in clause (d) but in view of the fact that the same word used in a limited sense in is used in a limited sense in clauses (a) & (b), it should be given a limited meaning, namely, "gets a benefit from a third party". It takes colour from the same word used in clauses (a) & (b). He finally contends that the construction he is seeking to put forward for our acceptance fits in the general scope and scheme of the Act and that the Legislature intended to leave the losses caused to the Government by the deception caused by its public servant to be dealt with in accordance with the provisions of the Indian Penal Code or other appropriate laws. At the outset we may say that the argument is rather subtle but on a deeper scrutiny of the provisions and the clear phraseology used therein, we find that the contention is not sound. Before we construe the, relevant provisions of the section in the light of the criticism levelled by the learned counsel, it will be useful and convenient to know briefly the scope and the object of the Act. The long title of the Act reads: 729 'An Act for the more effective prevention of bribery and corruption '. The preamble indicates that the Act was passed as it was expedient to make more effective provision for the prevention of bribery and corruption. The long title as well as the preamble indicate that the Act was passed to put down the said social evil i. e. bribery and corruption by public servant. Bribery is a form of corruption. The fact that in addition to the word "bribery" the word " 'corruption" is used shows that the legislation was intended to combat also other evils in addition to bribery. The existing law i.e. Penal Code was found insufficient to eradicate or even to control the growing evil of bribery and corruption corroding the public service of our country. The provisions broadly include the existing offences under sections 161 & 165 of the Indian Penal Code committed by public servants and enact a new rule of presumptive evidence against the accused. The Act also creates a new offence of criminal misconduct by public servants though to some extent it overlaps on the pre existing offences and enacts a rebuttable presumption contrary to the well known principles of Criminal Jurisprudence. It also aims to protect honest public servants from harassment by prescribing that the investigation against them could be made only by police officials of particular status and by making the sanction of the Government or other appropriate officer a precondition for their prosecution. As it is a socially useful measure conceived in public interest, it should be liberally construed so as to bring about the desired object. i.e. to prevent corruption among public servants and to prevent harassment of the honest among them. A decision of the judicial Committee in Dyke vs Elliot, (1) cited by the learned counsel as an aid for construction neatly states the principle and therefore may be extracted : Lord justice James speaking (1) (1872) L. R. ,191. 730 for the Board observes at P. 191 "No doubt all penal Statutes are to be construed strictly, that is to say, the Court must see that the thing charged as an offence is within the plain meaning of the words used, and must not strain the words on any notion that there has been a slip, that there has been a casus omissus, that the thing is so clearly within, the mischief, that it must have been intended to be included and would have been included if thought of. On the other hand, the person charged has a right to say that the thing charged, although within the Words, is not within the spirit of the enactment. But where the thing is brought within the words and within the spirit, there a penal. enactment to be construed, like any other instrument, according to the fair common sense meaning of the language used, and the Court is not to find or make any doubt or ambiguity in the language of a penal statute, where such doubt or ambiguity would clearly not be found or made in the same language in any other instrument. " In our view this passage, if we may say so, restates the rule of construction of a penal provision from A correct perspective. As we will presently show the case of the appellant on the facts found clearly falls not only within the words of clause (d) but also within 'its spirit. Indeed if his argument be accepted not only we will be doing violence to the language but also to the spirit of the enactment. First taking the phraseology used inthe clause, the case of a public servantcausing wrongful loss; to the Government be benefiting a thirdparty squarely falls within it. Let us look at the clause "by otherwise abusing the position of a public servant ', for the argument mainly turns upon the said clause. The phraseology is very comprehensive. It covers acts done " 'otherwise" than by corrupt or illegal means by an officer 731 abusing his position. The gist of the offence under this clause is that a public ' officer abusing his position as _a public servant obtains for himself or for any other person any valuable thing or pecuniary advantage. "Abuse" means misuse 1. e. using his position for something for which it is not intended That abuse may be by. corrupt or illegal means or otherwise than those means. The word 'otherwise ' has wide connotation and if no limitation is placed on it, the words 'corrupt, 'illegal ', and "otherwise ' mentioned in the clause become surplusage, for on that construction every abuse of position is gathered by the clause. So 'some limitation will have to. be put on that word and that limitation is that it takes colour from the preceding words along with which it appears in the clause, that is to say something savouring of dishonest act on his part. The contention of the learned counsel that if the clause is widely construed even a recommendation made by a public servant for securing a job for another may come within the Clause and that could not have been the intention of the Legislature. But in our view such innocuous acts will not be covered by the said clause. The juxtaposition of the word or otherwise ' with the words "corrupt or illegal means" and the dishonesty implicit in the word " 'abuse" indicate the necessity for a dishonest intention on his part to bring him within ,the meaning of the clause. Whether he abused his position or not depends upon the facts of each case; nor can the word 'obtains ' be sought in aid to limit the express words of the section. 'Obtain ' means acquire or get. If a corrupt officer by the said means obtains a valuable thing or a pecuniary advantage, he can certainly be said to obtain the said thing or a pecuniary advantage; but it is said that in clauses () & (c) the same word is used and in the context of those clauses it can only mean getting from a third party other than the Government and therefore the game meaning must be given to the said word in clause (d). "Obtains ' in clause 732 (a) & (b) in the context of those provisions may mean taking a bribe from a third party, but there is no reason why the same meaning shall be given to that word used in a different context when that word is comprehensive enough to fit in the scheme of that provision. Nor can we agree that as dishonest misappropriation has been (c), the other cases of wrongful loss caused Government by the deceit practiced by a public officer should fall outside the section. There is no reason why when a comprehensive statute was passed to prevent corruption, this particular category of corruption should have been excluded therefrom because the consequences of such acts are equally harmful to the public as acts of bribery. On a plain reading of the express words used in the clause, we have no doubt that every benefit obtained by a public servant for himself, or for any other person, by abusing his position as a public servant falls within the mischief of the said clause. Coming to the spirit of the provision, there cannot be two views. As we have expressed earlier, the object of the Act was to make more effective provision for the prevention of bribery and corruption. Bribery means the conferring of benefit by one upon another, in cash or in kind, to procure an illegal or dishonest action in favour of the giver. Corruption includes bribery but has a wider connotation. It may take in the use of all kind of corrupt practices. The Act. was brought in to purify public administration. When the Legislature used comprehensive terminology in section 5(1)(d) to achieve the said purpose, it would be appropriate not to limit the content by construction when particularly the sipirit of the statute is in accord With the words used therein, Two decisions of this court cited at the Bar indicate that a wide construction was placed by this Court ' on the provisions of section 5(1)(d) of the Act. 733 In Ram Krishan vs The State of Delhi, (1) the appellants were prosecuted for offering bribe to a Railway Officer for hushing up the case against them. In that context, section 5 (1)(d) was construed by this court. At p. 188 Chandrasekhara Ayyar, J., speaking for the court made the following observation: "Apart from 'corrupt and illegal means ', we have also the words 'or by otherwise abusing his position as a public servant. If a man obtains a pecuniary advantage by the abuse of his position, he will be guilty under sub clause (d). Sections 161, 162 & 163 refer to a motive or a reward for doing or forbearing to do something, showing favour or disfavour to any person, or for inducing such conduct by the exercise of personal influence. It is not necessary for an offence under clause (d) to prove all this. It is enough if by abusing his position as a public servant a man obtains for himself any pecuniary advantage, entirely irrespective of motive or reward for showing favour or disfavour." This Court again in Dhaneshwar Narain Saxena vs The Delhi Administration. (2) pointed the wide net cast by this provision in order to put down corruption. There the appellant was an Upper Division Clerk in the office of the Chief Commissioner of Delhi. He knew one Ram Nara who was a fireman serving in Delhi FireBrigade, The latter sought the assistance of the aappellant who had nothing to do with the issuing of licences of fire arms which was done by the 'Office of the Deputy Commissioner, Delhi. The appellant took a bribe in order to get the licence for him. It was argued that as it was not the duty of the appellant to issue licences or do something in connection therewith, he, did not commit any offence within the meaning of section 5 (1)(d) of the Act. This (1) ; (2) ; 734 Court rejected his contention. Sinha, C.J., speaking for the Court observed at p. 198: "The legislature advisedly widened the scope of the crime by giving a who, holding public office and taking advantage of their position obtain any valuable thing or pecuniary advantage. " The observations made by this Court in the above two cases though made in a different context show the comprehensive nature of the said provision. We therefore hold that the accused in order to assign the land to his brother in law underestimated the value of the said land to conform with the rules and thereby abused his position as a public servant and obtained for him a valuable thing or a pecuniary advantage within the meaning of the said clause and therefore is guilty of an offence under sub. section (2) thereof. It is next contended that the said finding was vitiated by the fact that the High Court in arriving at the finding relied upon a valuation list prepared by the District Forest Officer and filed into court without giving an opportunity to the appellant to canvass its correctness '. The admitted facts relevant to the argument may be stated. The arguments in the appeal were concluded on March 22, 1961. On April 6, 1961, the Public Prosecutor filed a Valuation list purporting to have been made by the District Forest Officer, Kozhikode. No notice of this list was given to the appellant and therefore he did not file any objections. On April 10, 1961, the High Court delivered the judgment basing its finding on the said Valuation list and rejecting the appeal. Before the Special Leave was granted by this court, a report was called for from the High Court with regard to the said facts. The report sent by the Registrar is as follows : "The learned Counsel for the appellant contended before the High Court that the 735 method of calculation adopted by P.W. 15 in assessing the value of the timber was not correct and that the following method should have been adopted viz., in the case of timber trees to calculate the value of each tree at the rate given in the Madras Forest Manual for that particular species, and for fuel trees, to calculate the value at the official rate for cart load fixed by the Government. ' Thereupon the Court directed in open court that a statement showing the value of the timber calculated by the above method may be submitted by either of the parties. No statement was filled by the appellant 's ounsel and on 6 4 1961 the State filed a statement. Since the statement was meant only to assist the Court in calculating the correct value of the timber along the lines suggested by the appellant 's counsel the matter was not posted for further argument. " The appellant denied in his affidavit filed before us that any direction was given by the court before the judgment was reserved but the Public Prosecutor filed an affidavit to the effect that such a statement was made in the open court. We have no reason to reject the report of the Registrar and the affidavit filed by the Public Prosecutor. Even so, the fact remains that the learned judge acted upon a document filed by the respondent without given an opportunity to the appellant to file objections or to contest its reliability. We think the principles of natural justice require that no court shall give a finding whether on fact or law and particularly on facts without giving an opportunity to all the con;testing parties. As that principle has been violated in this case, we have no option but to set aside the finding of the learned judge on the question of the valuation of the trees on the plot assigned to the appellant 's brother in law. We therefore set aside 736 this finding and request the High Court to submit a revised finding on the said question within two months from the receipt of the record. The respondent may file a further statement if I e so chooses to explain or even to correct the valuation list already filed by it. Thereafter an opportunity will be given to the appellant to file his objections. The objections filed by the appellant in this Court may be also considered by the High Court. The High Court will submit the finding on the evidence already on record including the said objections and statements. The parties may file objections to the finding within two weeks from the date the said And is received. The appeal will be posted as early as possible after objections are filed or after the expiry of the time given for filing the objections. Case remitted for submission of fresh finding.

IN-Abs

The appellant was convicted under s.5(1)(d)of the Prevention of Corruption Act, 1947, on the ground that by abusing his position as a public servant he obtained an assignment of Government land in the name of his brother in law without revealing the relationship and by undervaluing the trees standing on the land. The High Court on appeal directed that a statement showing the value of the timber calculated on the basis contended by the appellant may be submitted by either of the parties. The appellant did not file any statement but a statement was filed on behalf of the prosecution. The High Court without giving an opportunity to the appellant to file objections to the correctness of the report and the reliability of the statement filed by the prosecution relied upon the statement to come to the conclusion that there had been an under valuation by the appellant. It was contended that section 5(1) (d) did not apply to the case and that before the High Court there had been a failure of natural justice. Held, that a penal statute must be construed strictly and only such thing,; are offences as come within not merely the letter but also the spirit of the statute. Dyke, vs Elliot, , referred to. Held, further, that considering the object and scope of the Prevention of Corruption Act, 1947, the expression otherwise ' in section 5(1) (d) is employed to bring in every abuse of official position by a public servant. But the juxtaposition of the word otherwise with the words 'corrupt ' or 'illegal means ' and the fact that dishonesty is implicit in the word 'abuse ' indicate the necessity for a dishonest intention as an ingredient of the offence and innocuous acts will not be covered by the said clause. 725 Held, further, that the spirit of the Act which. is in accord with the words used therein is to take in every form of corruption, and the facts in the instant case if established constitute an offence under. vs 5(1)(d). Ram Krishna vs State Of Delhi, ; and Dhaneshwar Narain Saxena vs Delhi Administration, ; , referred to. Held, also that before the High Court, there had been violation of the principles of natural justice and that the matter had to go back to the High Court for the appellant being given an opportunity to meet the material put in by the prosecution before the High Court.

minal Appeal No. 121 of 1961. Appeal by special leave from the judgment and order dated May 26, 1961 of the Punjab High Court, Circuit Bench at Delhi in Criminal Revision No. 159 D of 1961. Nur ud din Ahmed and Naunit Lal, for the appellant. V. D. Mahajan and P. D. Menon for R. N. Sachthey, for the respondent. November 27. The judgment of the Court was delivered by SUBBA RAO, J. This appeal by special leave is directed against the order of the Punjab High Court dismissing the Revision petition filed against the order of the Additional Sessions judge, Delhi. The appellant entered India on May 9, 1956, on a Pakistan passport dated February 11, 1956. He had a visa endorsed on the said passport permitting him to stay in India for three months. Under that visa he had to leave India on or before August 8, 1956, As he failed to do SO., a notice under section 3 (2) of the as amended in 1957, hereinafter called the Act, was served on him on 562 November 19, 1959, by the Delhi Administration. By that notice he was asked to report his presence personally to the Foreigners Regional Registration Officer, Taj Barracks, janpath, New Delhi, between 11 A. M. to 12 noon daily and enter into a personal bond in the amount of Rs. 5,000/ with two sureties in the amount of Rs. 10,000/ each for the due, observance of ' the restriction imposed on his movements. The appellant did not comply with the requirements of the notice. Therefore he was prosecuted under section 14 of the Act for violating the provisions of section 3 in the Court of the Sub Divisional Magistrate, Delhi. The appellant pleaded in defence that the said notice was not served on him and that he was a citizen of India. The learned Magistrate held on the evidence that the said notice was served on him and that he was not a citizen of India but a foreigner within the meaning of that Act and that he had committed an offence, inasmuch as he did not comply with the provisions of the said notice. On those findings he convicted him under section 14 of the Act and sentenced him to six months ' rigorous im prisonment. On appeal the Sessions Judge, Delhi confirmed the findings of the Magistrate and dismissed the appeal filed by him. He held that the burden was upon the appellant to prove that he was not a foreigner and that he had failed to discharge the same. He also rejected the plea of the appellant 'viz. that as on the date he entered India, he was not a foreigner within the meaning of the definition of "foreigner ' as it then stood he could not be convicted, on the ground that be was prosecuted for an offence committed after the definition was amended. The High Court confirmed the conviction of the appellant and the sentence passed against him. Hence the appeal. The learned counsel Mr. Nur ud Din appearing for the appellant raised before us the following two points: (1) the appellant was not a foreigner 563 within the meaning of the definition of a foreigner as existed at the time he entered India, i. e. on May 9, 1956, and therefore the High Court went wrong in convicting him, and (2) the appellant is not a foreigner even under the amended definition To appreciate the first contention it will be convenient to read the relevant provisions of the Section 3 : "The Central Government may by order make provision, either generally or with respect to all foreigners or with respect to any particular foreigner or any prescribed class or des cription of foreigner, fir prohibiting, regulating or restricting the entry of foreigners into India or their departure therefrom or their presence or continued presence therein. (2)In particular and without prejudice to the generality of the foregoing power, orders made under this section may provide that the foreigner. . (a) x x x (b) x x x (c) x x x (d) x x x (e) shall comply with such conditions as may be prescribed or specified (i) requiting him to reside in a particular place; (ii) imposing any restrictions on his movements; 564 (iii), (iv), (V), (vi), (vii), (viii), (iX), (X) (f) shall enter into a bond with or without sureties for the due observance of, or as an alternative to the enforcement of any or all prescribed or specified restrictions or conditions: The definition of a foreigner as it stood in 1953 was 'Foreigner ' means a person who is not a natural born British subject as defined in sub sections 1 & 2 of section 1 of the British Nationality and Status of Aliens Act, 1914. Section I (1) of the British Nationality and Status of Aliens Act, 1914, is in these terms : 'The following persons shall be deemed to be natural born British subjects, namely, (a) any person born within His Majesty 's Dominion and allegiance. ' The definition of a foreigner was substituted by the Foreigners Laws (Amendment) Act, 1957 (11 of 1957) section 2 (a). This amendment came into force with effect from January 19, 1957. Under the said definition, ,foreigner ' means a person who is not a citizen of India. Section 14 is : 'If any person contravenes the provisions of this Act or of any order made thereunder, or any direction given in pursuance of this Act or such order, he shall be punished with imprisonment for a term which may extend to five years and shall also be liable to fine; and if such person has entered into a bond in pursuance of clause (f) of Sub section (2) of section 3, his bond shall be forefeited; and any person bound thereby shall pay the penalty thereof, or show cause to the satisfaction of the convicting Court why such penalty should not be paid. ' 565 The gist of the foregoing provisions relevant to the present inquiry may be stated thus : Under the definition of a foreigner as it stood in the Act in 1953 before the amendment of 1957, any person barn within His Majesty 's Dominion and allegiance was a citizen of India but after the amending Act 11 of 1957 which came into effect from january 19, 1957, a person who is not a citizen of India is a foreigner. After that date if an order is issued by the Central Government in exercise of powers conferred on it under section 3 of the Act directing a foreigner so defined and prescribing certain conditions for his stay, it is the duty of such a foreigner to obey the said order. If he did not, he would be committing an offence within the meaning of section 14 of the Act. In the light of the said provisions let us look at the facts of the present case. As aforesaid the appellant entered India in 1956 on a Pakistan passport, the visa endorsed on it enabled him to stay in India till August 8, 1956. The Delhi Administration made an order and served on him on November 19, 1959, imposing the restrictions on his stay. Admittedly the appellant did not comply with the said restrictions and therefore lie committed an offence within the meaning of section 14 of the Act. It is contended that as the appellant was not a foreigner at the time he made his entry into India, he could not be convicted on the basis he was a foreigner within the meaning of the definition of a foreigner as subsequently amended. There is a fallacy underlying in this argument. The appellant was certainly not a foreigner when he entered India under the definition of a foreigner as it then stood. In view of the amendment of the definition he became a foreigner after January 19, 1957. He could not be convicted for an offence for an act done by him before the amendment on the basis he was a 566 foreigner ; for instance an act done by him such as his entry into India or his noncompliance with the conditions of an order issued on him before the amendment on the foot that he was a foreigner. But the offence for which he is now charged is an act done by him in derogation of an order issued to him after the amendment. On the date when the Delhi administration served on him the notice imposing certain restrictions and directing him to comply with certain conditions for his stay he was a foreigner within the meaning of amended definition. On the basis of the existing law he committed an offence and it will be futile for him to contend that he was not a foreigner under the original definition. The legality of the act done by him must be judged on the basis of the existing law as the act was done subsequent to the amendment. Reliance is placed upon the decision of this court in Fida Hussain vs State of Uttar Pradesh (1) in support of the contention that as the appellant was not a foreigner when he made the entry, he could not be convicted on the ground he was a foreigner. But the facts of that case are different from those in the present appeal and that decision is clearly distinguishable. There a person was born at Allahabad at the time when it was his Majesty 's Dominion. * He had left India to Pakistan but 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 up to November 1953. Under Paragraph 7 of the Foreigners Order 1948 issued under section 3 of the , every foreigner entering India on the authority of a visa 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 the appellant stayed after November 15, 1953, without permission given 567 under that order, lie was prosecuted for breach of the said order. It would be seen from the said facts that the appellant therein was prosecuted for an offence committed by him before the Amending Act of 1.957 came into force on January 19, 1957. This court on the said facts held that the appellant therein could not be convicted for the breach of Paragraph 7 of the Foreigners Order as lie not being a. foreigner at that time could not have committed a breach thereof, but clearly this decision cannot apply to an offence committed by a person who falls within the amended definition of foreigner ', after the Amending Act came into force. Indeed this court in express terms left open that question at page 1523 "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 arc not to be understood as deciding any question as to whether such an order could or could , not have been made against the appellant. " What has been left open in that decision is to be considered in the present case. The appellant who is 'a foreigner under the amended definition has committed a breach of an order served on him after the amended definition of a foreigner came to hold the field. The appellant therefore in disobeying the directions given to him, by the Delhi Administration his committed an offence within the meaning of section 14 of the Act. Even so it is contended that the appellant is an Indian citizen and therefore is not a foreigner within the meaning of the amended definition of a foreigner under the Act. Some of the relevant provisions of the Constitution and the Citizenship Act 57 of 1955 may conveniently be extracted. Article 5 of the Constitution says "At the commencement of this Constitution, 568 every person who has his domicile in the territory of India and (a) who was born in the territory of India; or (b) either of whose parents was born in the territory of India; or (c) who has been ordinarily resident of the territory of India for not less than five years immediately preceding such commencement, shall be a citizen of India. " Section 9 of the Indian is in these terms : "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". Under article 5(a) of the Constitution the appellant cannot be a citizen of India unless he was born in the territory of India and had his domicile in the territory of India at the commencement of the Constitution. In this case the appellant claimed to be a citizen under article 5(a) of the Constitution. By reason of section 9 of the Foreigners ' Act whenever a question arises whether a person is or is not a foreigner, the onus of proving that he is not a foreigner lies upon him. The burden is therefore upon the appellant to establish that he is a citizen of India in the manner claimed by him and therefore he is not a foreigner. This court in Union of India vs Ghaus Mohammad (1) accepted this legal position and laid down at page 748 thus : "It does not seem to have (1) ; 569 been 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," Rightly throwing the onus on the appellant the Magistrate considered the evidence and came to the conclusion that the appellant had failed to prove that he was a citizen of India and therefore not a foreigner. The learned Additional Sessions judge after noticing that the onus was on the appellant considered the evidence both oral and documentary and came to the conclusion that the appellant had failed to discharge the onus. It cannot be and indeed is not suggested that the said finding is vitiated by any error of law, but it is contended that the Additional Sessions judge was not justified in ignoring the evidence of 'respectable witnesses who spoke to the fact that the appellant was born in India and continued to reside in India at the date of the commencement of the Constitution and thereafter. The learned Additional Sessions Judge as a Judge of fact considered the evidence in the light of probabilities and the documentary evidence and rejected the same as unworthy of credence. The High Court in revision refused to interfere with that finding. We do not see any permissible ground for interference with that finding in an appeal under article 136 of the Constitution. No other point is raised before us. The appeal fails and is dismissed.

IN-Abs

The appellant entered India on May 9, 1956, on a Pakistani passport. He had a visa permitting him to stay in India for three months. He had to leave India on or before August 8, 1956. As he failed to do so, a notice under section 3 (2) of the , as amended in 1957, was served on him on November 19, 1959, by the Delhi Administration. As he did not comply with the requirements of the notice, he was prosecuted under section 14 of the and convicted. His appeal and revision were dismissed. All came to this court by special leave. His contention was that he was not a foreigner within the meaning of the definition of a foreigner as it existed at the time he entered India, and he was not a foreigner even under the amended definition. Held, that the appellant was a foreigner under the amended definition and he had committed a breach of the order served on him after the amended definition of foreigner came into force. In disobeying the directions given to him by the Delhi Administration, he had committed an offence within the meaning of section 14 of the . Before the amendment of the definition in 1957, a person born within His Majesty 's Dominion and owing allegiance was a citizen of India, but after the amendment in January, 1957 a person who was not a citizen of India became a foreigner. After that date, if an order was issued by the Central Government in exercise of powers conferred on it under section 3 of the Act, it was the duty of such a foreigner to obey that order and if he did not do so, he committed an offence within the meaning of section 14 of the Act. The appellant was certainly not a foreigner when he entered India, but in view of the amendment of the definition, he became a foreigner after January 19, 1957. He could not be convicted for an offence for an act done by him before the amendment on the 561 basis that he was a foreigner, but in the present case he had been punished for not complying with an order passed after the amendment. The burden of proving that he was not a foreigner was on the appellant and he had failed to discharge that burden. The legality of an act done by a person must be judged on the basis of the existing law at the time the act is done. Union of India vs Ghaus Mohammad, ; followed Fida Hussain vs State of Uttar Pradesh 11962] 1 S.C.R. 776, distinguished.

minal Appeal No. 144 of 1962. Appeal by special leave from the judgment and order dated May 10, 1962, of the Patna High Court in Criminal Appeal No. 339 of 1961. B.K. P. Sinha and A. G. Ratnaparkhi, for the appellants. S.P. Varma, P. D. Menon and, B. N. Sachthey, for the respondent. December 6. The judgment of the Court was delivered by AYYANGAR, J. This appeal by special leave granted by us on September 7, 1962, raises for 747 consideration the proper construction of sections 6 and 11 of the (XX of 1958), hereinafter called the ,Act '. The appellants are two brothers Ramji and Basist. It was alleged that these two assaulted one Sidhnath (P.W. 2) who as a result suffered grievous injuries Basist, the younger brother was charged before the Assistant Sessions judge, Arrah, with the commission of an offence under section 307, Indian Penal Code, for the reason that the injury he inflicted was a bhala blow under circumstances ""that if by that act death had been caused he would have been guilty of murder", and as the injury actually sustained was grievous he was further charged with causing grievous hurt under section 326, Indian Penal Code. The elder brother who too caused hurt to the victim was charged under section 324, Indian Penal Code. The Assistant Sessions. Judge held the prosecution case as alleged establish against both the accused. It is now necessary to mention that according to the Sessions judge Ramji was 21 years old and Basist 19. Section 6 of the Act enacts : "6. (1) When any person under twenty one years of age is found guilty of having committed an offence punishable with imprisonment (but not with imprisonment for life), the Court by which the person is found guilty shall not sentence him to imprisonment unless it is satisfied that, having regard to the circums tances of the case including the nature of the offence and the character of the offender, would not be desirable to deal with him under section 3 or section 4, and if the Court passes any sentence of imprisonment on the offender, shall record its reasons for doing so. (2) For the purpose of satisfying itself Whether it would not be desirable to deal under section 3 748 or section 4 with an offender referred to in subsection (1), the Court shall call for a report from the probation officer and consider the report, if any, and any other information available to it relating to the character and physical and mental condition of the offender. " The terms of this section excluded the application of its provisions to Basist who was found guilty of an offence punishable with imprisonment for life (both sections 307 and 326, Indian Penal Code). He accordingly sentenced Basist to undergo rigorous imprisonment for six years under section 307, Indian Penal Code, and to four 'years under section 326, Indian Penal Code, the sentences to run concurrently. As regards Ramji, the elder brother, he considered it inappropriate to afford him the benefit of this provision and recorded his finding on this matter in these terms: "So far as accused Ramji is concerned I am not inclined to take recourse to the provisions of the , because the act of assault on the informant on the part of this accused is premeditated." He sentenced him to undergo rigorous imprisonment for two years under section 324, Indian Penal Code. Both the accused filed an appeal to the High Court. The learned Single judge who heard the appeal considered the evidence in the case and the circumstances in which the injury was inflicted and held that there was no intention on the part of Basist to cause grievous hurt to P.W. 2, with the result that as against him the ' conviction under section 307 as well as that under section 326, Indian Penal Code, were set aside and in their place he recorded a finding of guilty in respect of an offence under section 324, Indian Penal Code, for which he imposed a sentence of rigorous imprisonment for two years. As against Ramji the conviction was maintained but being informed by 749 counsel that that accused had been suffering from tuberculosis the sentence of imprisonment was reduced from 2 years to 9 months. It was urged before the High Court that the reasons assigned by the Assistant Sessions judge for refusing to apply the provisions of section 6 of the Act to accused Ramji were not proper. This submission was, however, repelled since the learned judges considered the section inapplicable to that accused because, though he might have been "under 21 Years of age" on the date of the offence (October 17, 1960), "he was not a person under 21 years of age" on May 24, 1961, when the Sessions judge found him guilty and sentenced him to a term of imprisonment, holding that the crucial date on which the age had to be determined being not the date of the offence but the date on which as a result of a finding of guilty sentence had to be passed against the accused. As regards Basist also, it was urged before the High Court that in view of the alteration in the finding recorded as regards his guilt, the beneficial provisions of section 6 of the Act became applicable to him, the learned judge holding that he could pass the same order as the trial court could have done because of the provisions contained in section 11 of the Act reading : "11. (1) Notwithstanding anything contained in the Code or any other law, an order under this Act may be made by any Court empowered to try and sentence the offender to imprisonment and also by the High Court or any other Court when the case comes before it on appeal or in revision. (2) Notwithstanding anything contained in the Code, where an order under section 3 or section 4 is made by any Court trying the offender (other than a High Court), an appeal shall lie to the 750 Court to which appeals ordinarily lie from the sentences of the former Court. (3) In any case where any person under. twenty. one years of age is found guilty of having committed an offence and the Court by which he is found guilty declines to deal with him under section 3 or section 4, and passes against him any sentence of imprisonment with or without fine from which no appeal lies or is preferred, then, notwithstanding anything contained in the Code or any othe r law, the Court to which appeals ordinarily lie from the sentences of the former Court may, either of its own motion or on an application made to it by the convicted person or the Probation officer, call for and examine the record of the case and pass such order thereon as it thinks fit. (4) When an order has been made under section 3 or section 4 in respect of an offender, the Appellate Court or the High Court in the exercise of its power of revision may set aside such order and in ' lieu thereof pass sentence on such offender according to law Provided that the Appellate Court or the High Court in revision shall not inflict a greater punishment than might have been inflicted by the Court by which the offender was found guilty. " The learned judge however, declined to do so observing: "No doubt, under the provisions of section 11 of the this Court is competent to make an order, but it is entirely discretionary for this Court to exercise the power conferred on it under section II. In, view of the fact that the Court below has already dealt with 751 this matter, though not very satisfactorily, I do not consider it desirable to deal with the cases of these appellants under the provisions of the at this stage." and instead, passed the sentence of imprisonment as already mentioned. It is the correctness of these orders refusing to apply the provisions of section 6 of the Act to the cases of the appellants that is raised for consideration in this appeal. Taking first the case of Ramji , the elder brother, we entirely agree with the High Court in their construction of section 6. The question of the age of the person is relevant not for the purpose of determining his guilt but only for the purpose of the punishment which he should suffer for the offence of which he has been found, on the evidence, guilty. The object of the Act is to prevent the turning of youthful offenders into criminals by their association with hardened criminals of mature age within the walls of a prison. The method adopted is to attempt their possible reformation instead of inflicting on them the normal punishment for their crime. If this were borne in mind it would be clear that the age referred to by the opening words of section 6(1) should be that when the court is dealing with the offender that being the point of time when the court has to choose between the two alternatives which the Act in supersession of the normal penal law vests in it, viz., sentence the offender to imprisonment or to apply to him the provisions of section 6(1) of the Act. As the High Court has found that Ramji was not a person under the age of 21 on May 24, 1961, when. the learned Sessions judge found him guilty it is clear that section 6(1) of the Act has no application to him. The position in regard to the second appellant Basist tands on an entirely different footing. He was said to be of the age of 19 by the Sessions judge 752 which is apparently a reference to the time when the offence was committed. If so, he would have been about 20 at the time when the Sessions judge found him guilty of offences under sections 307 and 326, Indian Penal Code, and possibly also below 21 at the time when the High Court altered his conviction into one under section 324, Indian Penal Code. If by reason of his age, and the offence of which he was been found guilty the provisions of section 6(1) are not excluded, the question that has next to be considered is whether the learned judge had an absolute and unfettered discretion to pass or refuse an order under 'the Act by virtue of the terms of section 11 of the Act. This would obviously turn on (1) whether or not section 6(1) was applicable to the High Court, and (2) the proper construction. of the terms of section 11 which empowers appellate and revisional courts to pass orders under the Act. It was urged by learned Counsel for the appellant that the High Court when it recorded a finding that Basist was guilty of an offence under section 324, Indian Penal Code, was squarely within the words "the court by which a person is found guilty" occurring in section 6(1) as it was only by that Court that for the first time the accused was found guilty of an offence which was not excluded by the opening words of that section. Learned Counsel relied for this position on the judgment of High Court of Madras in Narayananwami Naidu vs Emperor (1) following a ,decision of the Allahabad High Court to a similar effect in Emperor vs Birch (2). The question that arose in the first of the above cases related to the scope of the words "Court before whom he is con victed" occurring in section 562, Code of Criminal Procedure, as it originally stood. The provision in section 562, Code of Criminal Procedure, is somewhat in pari materia with section 4 of the Act wherein a Person found guilty of having committed offences not punishable (1) Mad. (2) All. 306. 753 with death or imprisonment for life may, instead of being sentenced to imprisonment, be released on entering into a bond. In the Code as originally enacted which the decision referred to had to deal with, there was no express provision as regards the power of appellate courts to pass similar orders. The accused in that case was tried and convicted by a magistrate under sg. 447 and 352, Indian Penal Code, and sentenced to undergo rigorous imprisonment for two weeks. The accused filed an appeal and the Deputy Magistrate who heard it while affirming the conviction directed his release on his executing a bond applying to him the provisions contained in section 562, Code of Criminal Procedure. The District judge considered that the Deputy Magistrate had exceeded his jurisdiction in making this order and referred the question to the High Court. The learned judges rejected the reference observing that the words ""Court before whom he is convicted ' used in s.562 were not intended to limit the power of making orders under that section to the court of first instance. It might be mentioned that the Code has since been amended by the addition of sub section (2) which runs : "An order under this section may be made by an appellate court or by the High Court when exercising its powers of revision." so that it is no longer necessary for an appellate or revisional court to rely on any construction of the words ", 'the court by which the person is found guilty" for invoking or exercising its jurisdiction. The position therefore comes to this the words referring to ""the court by which a per son is found guilty" are wide enough to include an appellate court, and particularly so where it is the appellate court alone which by reason of its finding on the guilt of the accused becomes for the first time vested with the power or the duty to act under the section. 754 Undoubtedly if section II were attracted to the case, then there would be no need for invoking the Jurisdiction of the High Court under section 6, and indeed in those circumstances the proper construction of section 6 itself would be to exclude an appellate or revisional court since a redundancy could not have been intended by the statute. The first question would therefore be to ascertain whether the jurisdiction or powers envisaged by section 6(1) are within ' the scope of the jurisdiction conferred by section 11. The power conferred on the High Court is to pass ""an order under the Act. " One is thrown back on the Act for determining what these are. They are: (1)Under section 3 a court might order the release of a person found guilty of an offence of the type specified in the section after due admonition. (2)Under section 4 an order may be passed in circumstances set out in it releasing such person on entering into a bond with or without sureties or pass a supervision order. (3)Orders which are consequential on orders under section 3 or section 4 like those for which provision is made by sections 5 & 9. So far as section 6 is concerned it is, to say the least, doubtful whether it. involves the " 'passing of an order", for the operative words are that the court finding a person guilty refrains from passing any sentence. An injunction enacted by this Act against passing a sentence of imprisonment which the court under the normal law is empowered or enjoined to pass can hardly be termed ",passing an order" under the Act. If this were correct, the result would be that on the reasoning which the High Courts of Madras and Allahabad adopted to construe the words in section 562, of the Code, the High Court, when hearing an appeal, would be subject to the provisions of section 6. 755 It is however possible that the words in section 11 (1) "" ',pass an order under the Act" are not to be construed so strictly and literally, but to be understood to mean "to exercise the powers or Jurisdiction conferred by the Act. " This wider interpretation might perhaps be justified by the scope and object of this section. Section 11 is to apply ""notwithstanding anything in the Code or any other law" to all courts empowered to sentence offenders to imprisonment. TO read a beneficial provision of this universal type in a restricted sense, so as to confine the power of these courts to the exercise of the powers under sections 3 and 4 alone would not, in our opinion, be in accord with sound principles of statutory interpretation. We are therefore inclined to hold that the Courts mentioned in section 11 be they trial courts or exercising appellate or revisional jurisdiction are thereby empowered to exercise the jurisdiction conferred on Courts not only under sections 3 and 4 and the consequential provisions but also under section 6. Accepting therefore the interpretation of section 11 (1) which was urged by Counsel for the respondent, that the courts mentioned in it could pass orders under sections 3, 4 or 6, the question next to be considered relates to the incidents of that jurisdiction with regard to the amount and nature of discretion vested in these courts. It was submitted on behalf of the appellant that the power conferred on the High Court and other courts by section 11 (1) was neither more nor less than those of the court under section 6 (1) and that the former were bound to exercise it, subject to the same conditions and limitations as are set out in the latter provision. Stated in other words the interpretation suggested was that the terms of s.6 had, so to speak, to be read into the jurisdiction of the courts acting under section II (1). On the other hand the contention urged by the respondent was that section II (1) had to be read on its own language and so read it conferred on 756 the courts mentioned in it, an absolute and unfettered discretion "to pass or not to pass an order under the Act" as they thought fit having regard to the circumstances of each case. A considerable portion of the argument by the respondent was based on the import of the facultative verb "may" in the words " 'may be made" occurring in the operative part of the sub section as conferring a discretion and that as no limitations were placed ' by this or any other section on the exercise of this discretion, the same should be held to be unfettered and therefore capable of being exercised, no doubt, on judicial principles but not subject to any statutory limitations. It might be mentioned that from the relevant passage of the judgment of the High Court which we have extracted, it would appear that the learned judge has proceeded on this interpretation of section 11. Though the word "may" might connote merely an enabling or permissive power in the sense of the usual phrase ""it shall be lawful", it is also capable of being construed as referring to a compellable duty, particularly when it refers to a power conferred on a court or other judicial authority. As observed in Maxwell on Statutes "Statutes which authorise persons to do acts for the benefit of others, or, as it is sometimes said, for the public good or the advancement of justice, have often given rise to controversy when conferring the authority in terms simply enabling and not mandatory. In enacting that they 'may ' or 'shall ' if they think fit, or '&hall have power, ' or that, 'it shall be lawful ' for them to do such acts, a statute appears to use the language of mere permission but it has been so often decided as to have become an axiom that in such cases such expressions 757 may have to, say the least a compulsory force. The fact that the power is conferred on a Court might militate against the literal interpretation of "may" suggested by the respondent. This apart, the power conferred by section 11(1) is to pass " 'an order under the Act" and the question arises as to the precise import of these words, and in particular whether these words would not imply that the order to be passed would be subject to the same limitations or conditions as the orders under what might be termed the primary provisions of the Act. Thus section 3 empowers a court to release certain offenders on probation of good conduct after due admonition, and it lays down certain tests as a guidance or the bases upon which that discretion is to be exercised : (1) that no previous conviction should have been proved against him, and (2) that the court by which the person is found guilty should be of the opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender it is expedient so to do. Similarly, section 4 empowers a court to release certain offenders on probation of good conduct, The criteria laid down there. and the guidance set out is that the court by which the person is found guilty should be of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient to release him, on probation of good conduct, with a proviso that the power is not to be exercised unless the court were satisfied that the offender or his surety has :a fixed place of abode or regular occupation in the place over which the court exercises jurisdiction or in which the offender is likely to live during the period for which he enters into the bond. Would it be a proper construction of section 11 (1) to hold that the High Court etc. could pass orders in appeal or revision without reference to these standards, 758 tests or guidance which the statute has prescribed for the primary courts? We are clearly of the opinion that this is capable only of a negative answer and that the power conferred on appellate or other courts by section II (1) was of the same nature and characteristics and subject to the same criteria and limitations as that conferred on the courts under sections 3 & 4. We are confirmed in this view by the terms of section 11(3). If this were so it would not be possible to adopt a, different rule of interpretation when one came to consider the power under section 6. It cannot, for instance, be suggested that the High Court could in its discretion exercise the power under section 6 in the case of a person who is above the age of 21, nor where a person is found guilty of an offence punishable with death or imprisonment for life. These limitations on the exercise of the discretion have surely to be gathered only from the terms of section 6(1). If section 6(1) applies so far to restrict the absolute and unfettered discretion implied by the word "may", it appears to us that logically the conclusion is inescapable that the entirety of section 6(1) applies to guide or condition the jurisdiction of the High Court under section 11(1). We there. fore reject the submission made to us on behalf of the respondent that an appellate court has an unfettered discretion in dealing with a case which comes before it under section 11 and that its discretion and powers are not to be governed by the terms of section 6(1). The question next to be considered is the result of applying the terms of section 6(1) to a person in the position of Basist. It was not disputed by learned counsel for the respondent that the learned Judge of the High Court failed to consider the case of this accused with reference to the terms of section 6 since he has proceeded on the basis that he had an unfettered discretion in the matter and which in the circumstances of the present case he was not inclined to exercise in favour of the accused. The order of the High Court in so far as it relates to the second appellant 759 Basist must therefore be set aside and the High Court directed to exercise its discretion on the basis that it was judging the matter with reference to the criteria laid down in section 6. We shall now proceed to consider one question which was mooted before us in regard to the crucial date for reckoning the age where an appellate court modifies the judgment of the trial judge, when section 6 becomes applicable to a person only on the decision of an appellate or a revisional court. Is the age of the offender to be reckoned as at the date of the judgment of the trial judge or is it the date when the accused is, for the first time, in a position to claim the benefit of section 6. We consider that on the terms of the section, on grounds of logic as well as on the theory that the order passed by an appellate court is the correct order which the trial court should have passed, the crucial date must be that upon which the trial court had to deal with the offender. In this view as Basist was admittedly below 21 years of age at the time of the judgment of the Assistant Sessions judge, section 6 was not inapplicable to him even assuming he was above that age by the date of the order in appeal. The appeal is accordingly allowed in part i.e., in regard to the second appellant Basist and is remanded to the High Court to consider the proper order to be passed in his case by applying the provisions of section 6 of the probation of offenders Act, 1958. Appeal allowed in part.

IN-Abs

The appellants, R and B, who were brothers, were pro. secuted for having assaulted S who as a result suffered grievous injuries. Both the appellants were found guilty by the Assistant Sessions judge, and sentenced to various terms of imprisonment. While B was convicted under sections 307 and 326 of the Indian Penal Code, the conviction of R was under section 324. Section 6 (1) of the , enacts "When any person under twenty one years of age is found guilty of having committed an offence punishable with imprisonment (but not with imprisonment for life), the Court by which the person is found guilty shall not sentence him to imprisonment. . . Though B was 19 years old, section 6 (1 was inapplicable to him as he was found guilty of an offence punishable with imprisonment for life. R, the older brother was aged 2 1, but the trial judge considered it inappropriate to afford him the benefit of the section on the ground that the. act of assault Was premeditated. On appeal, the High Court set aside the convictions of B and in their place a finding of guilty under section 324 of the Indian Penal Code was recorded for which a sentence of 2 years was imposed, and, as regards R, his conviction under section 324 was maintained but the sentence was reduced from 2 years to 9 months. On the question of the applicability of the provisions of the Act to the accused, the High Court took the view (1) that section 6 (1) was inapplicable to R because though lie might have been under 21 years of age an the date of the offence he was not a person under 21 years when the Sessions judge found him guilty, and (2) that though under section 1 1 of the Act, the High Court was competent to make an order in favour of B, it was entirely discretionary for that Court to exercise the power conferred on it under that section, and that in view of the fact that the court below had already dealt with the matter, it wag not desirable to deal with the case of the appellant under the provisions of the Act at that stage. 746 Held : (1) that the age referred to in section 6 (1) of the , is that when the courts deal; with the offender, that being the point of time when the court has to choose between the two alternatives, whether to sentence the offender to imprisonment or to apply to him the provisions of section 6(1) of the Act. (2)that the courts mentioned in section 11 of the Act, be they trial courts or courts exercising appellate or revisional jurisdiction, are empowered to exercise the jurisdiction conferred on courts not only under sections 3 and 4 and the con. sequential provisions but also under section 6. (3)that the power conferred on appellate or other courts by section 1 1 (1) of the Act is of the same nature and chara cteristics and subject to the same criteria and limitations as that conferred on the courts under sections 3 and 4. (4)that the provisions of section 6. (1) restrict the absolute and unfettered discretion implied by the word ,may" in section 11 (1), and the entirety of section 6 (1) applies to guide or con dition the jurisdiction of the High Court under section 11(1). (5)that the crucial date for reckoning the age where an appellate court modifies the judgment of the trial judge when section 6 becomes applicable to a person only on the decision of an appellate or a revisional court, is that upon which the trial court had to deal with the offender.

Appeal No. 226 of 1960. Appeal from the judgment and decree dated February 2, 1956, of the Allahabad High Court in Special Appeal No. 158 of 1954. M.C. Setalvad, Attorney General for India, Veda Vyasa, R. K. Garg, section C. Agarwal, Shiv Sastri and K. K. Jain, for the appellant. S.T. Desai, K. section Hajela and C. P. Lal, for respondent No. 1. C.K. Daphtary, Solicitor General for India, Radhy Lal Agarwal and P. C. Agarwal, for respondent No. 2. 764 1962. December 6. The Judgment of Das, Kapur, Sarkar and Hidayatullah, was a delivered by Hidayatullah, J., Dayal, J., delivered a separate judgment. HIDAYATULLAH.J., This is an appeal on a certificate granted by the High Court of Allahabad under Article 133 (1) (c) of the Constitution against its judgment and order dated February 2, 1956. By the judgment, under appeal, which was passed in a Letters Patent Appeal, the Divisional Bench confirmed the order of a learned single judge dismissing the petition of the appellant under article 226 of the Constitution. Seth Banarsi Das, the appellant before us, was the petitioner in the High Court and the two respondents before us, namely, the Cane Commissioner, U. P., Lucknow, and the Cane Marketing Society Ltd., Bijnor, were the opposite parties. The petition asked for a number of writs in the alternative, but its purport was to seek to prohibit the two respondents from continuing certain proceedings pending before the Cane Commissioner under rule 23 of the United Provinces Sugar Factories Control Rules, 1938. That rule provides for arbitration in disputes touching agreements entered into by sugar cane factories and cane growers for supply of sugar cane as laid down by the United Provinces Sugar Factories Control Act, 1938. The facts of the case are as follows: The appellant was at the material time the lessee and "Occupier" of Shiva Prasad Banarsi Das Sugar Mills, Bijnor, for five years from the crushing season 1946 47 to 1950 51. The second respondent is the Cane Marketing Society Ltd., Bijnor, which is a society registered under the Uttar Pradesh Co operative Societies Act, and one of its objects is to supply sugar cane grown by its members to the sugar mills. Before the control of 765 sugar cane, cane growers, whether they belonged to a co operative society or not, sold sugar cane directly to the factories and made Supplies from any area as it suited them. The United Provinces Sugar Factories Control Act was passed for the purpose of licensing of sugar factories and for regulating the supply of sugar cane intended for use in such factories and the price at which it may be purchased and for such other matters as may be incidental thereto. The broad outline of the Act and the rules framed thereunder may be given here. Under the Act the control of sugar cane grown in the State was vested in an officer known as the cane Commissioner and Advisory Committees and Sugar Control Board were to be appointed to advise upon and effectuate control of sugar and sugar cane. There was a scheme for licensing of factories with which we are not concerned in this case. Chapter IV of the Act made provision for regulating the purchase of sugar cane. Under section 14, the State Government could require the "Occupier ' of any factory to submit to 'the Cane Commissioner an estimate in the prescribed form and manner of the quantity of sugar cane which would be required in his factory during a crushing season. This estimate was examined by the Cane Commissioner who, after consulting the Advisory Committee in that area, published it with such modifications, if any, as he. thought fit to make. Under section 15 the Cane Commissioner, in consultation with the Advisory Committee (if any) and the ,Occupier ' of the factory, could issue an order declaring an area to be 'a reserved area ' for the purpose of supply of sugar 'cane to a particular factory. Section 18 then provided as follows "18.Purchase of cane in reserved area. (1) A cane grower or a Cane growers ' Co operative Society in a reserved area may offer, in the form and by the date prescribed, to supply to 766 the occupier of the factory for which the area is reserved cane grown by the cane grower or by the members of such Cane growers ' Co operative Society as the case may be, not exceeding the quantity, if any, prescribed for such grower or Cane growers ' Co operative Society. (2)The Occupier or manager of a factory for which an area is reserved shall enter into an agreement, in such form, by such date and on such terms and conditions as may by prescribed, to purchase the cane offered in accordance with sub section (1) : Provided that, he shall not enter into an agreement to purchase cane from a person who is a member of a Cane growers ' co operative Society. (3)Except with the permission of the Provincial Government, cane grown in a reserved area shall not be purchased in such area by a purchasing agent, or by any person other than occupier of the factory for which such area has been reserved. (4)Cane grown in a reserved area shall not be sold by any person other than a cane grower or a Cane growers ' Co operative Society: Provided that a cane grower or a Cane growers ' Co operative Society may deliver cane intended for use in a factory through another cane grower or through a carrier. (5)During the crushing season the Provincial Government may, if it is satisfied that there is likely to be in the area reserved for a factory any quantity of cane available for sale to the occupier of the factory in excess of the quantity 767 for which he is required to enter into agree ments, direct that cane shall not be purchased outside the reserved areas until the occupier of the factory enters into agreements to purchase all the cane offered to him in the reserved area : Provided that such prohibition shall not apply in respect of cane for the supply of which agreements in writing have been entered into before such direction was issued." In addition to the reserved area, section 19 provided for declaration of assigned area and purchase of sugar cane therein. The factory was authorised to take its supplies also from the assigned area. The important difference between the two areas was that the factory was bound to enter into agreements with cane growers or cane growers ' co operative societies in an area reserved for the factory for the prescribed quantity of sugar cane but in an assigned area, the Factory could enter into an agreement for a specified quantity of sugar cane as the factory desired. In other words, in a reserved area if sugar cane of the prescribed quality was offered by the cane grower or cane growers ' society, the factory was bound to purchase that cane up to the prescribed quantity but in an assigned area the factory was at liberty to purchase cane, as it needed, subject to its entering into an agreement for the purpose. In addition to the reserved and assigned areas there was a third category, namely, areas which were neither reserved nor assigned. We are not concerned with such areas or the provisions dealing with the purchase of sugar cane from such areas. Section 27 provided for certain penalties. Sub section 3 (b) provided as follows: "(3) If the occupier or manager of a factory x x x x 768 (b) intentionally fails to enter into agree ments as required by section (2) of section 18. he shall be punishable with fine which may extend to two thousand rupees" Section 30 gave power to the Government to make rules. The material portions of section 30 for our purpose are as follows: "30 Power to make rules (1) The Provincial Government may make rules to carry out the provisions of this Act. (2)In particular and without prejudice to the generality of the foregoing power, such rules may provide for; x x x x (u)the reference to the Cane Commissioner of disputes relating to the supply of cane for decision or if he so directs to arbitration, the mode of appointing an arbitrator or arbitrators, the procedure to be followed in proceedings before the Cane Commissioner or such arbitrator or arbitrators, and the enforcement of the decisions of the Cane Commissioner or the awards of arbitrators;" In exercise of the powers conferred by the last quoted section, the following, rules (among others) were framed "15. Purchase of cane growing in a reserved area. (1) The occupier or manager of a factory shall estimate or cause to be estimated by 30th September, the quantity of sugarcane with each grower enrolled in the Growers ' Register and shall submit the estimates to the Collector. The Collector may, after such enquiries as he considers necessary, modify the estimates and 769 cause them to be published in such manner as he may direct, In framing these estimates, sugarcane grown in more than one third of the area of land suitable for sugarcane cultivation in the holding of each grower may be excluded. (2)A cane grower or a cane grower 's co operative society in a reserved area may offer in form 10, Appendix III, by the 15th October each year to supply during the crushing season to the occupier or manager of the factory for which the area has been reserved, cane not exceeding, in the case of a cane grower, the quantity estimated in accordance with subrule (1). (3)The occupier or manager of the factory for which the area is reserved shall enter into an agreement with the cane grower or the cane growers ' co operative society as the case may be, in forms 15 and 18 respectively or in any other form approved by the Cane Commissioner within a month of the offer mentioned in sub. rule (2). (4)The occupier or manager of a factory shall spread the purchase made in the reserved area in an equitable manner and shall in the case of cane grower of the reserved area make purchase of cane only after issuing requisition slips. In order to comply with this rule the occupier or manager shall 'cause identification cards to be distributed to all cane growers of the reserved area to whom requisition slips have been issued and shall maintain a record of the same. He will also keep a record of the requisition slips issued and distributed to the growers and returned by them. 770 (5)Cane grown in a reserved area shall not except with the permission of the Cane Commissioner be purchased by any person with out the previous issue at convenient centres in the reserved area of requisition slips and identification cards to the growers, by the occupier or manager of the factory for which the area is reserved. (6)Requisition slips and identification cards to members of a "can growers ' co operative society shall not be issued except by such society. (7)In case of a dispute whether a particular system adopted for the purchase of cane grown in the reserved area is equitable or not, the dispute may be 'referred to the Cane Commissioner whose decision shall be final "23. Arbitration (1) Any dispute touching an agreement referred to in section 18 (2) or section 19 (2) of the Act shall be referred to the Cane Commissioner for decision, or if he so directs to arbitration. No suit shall lie in a civil or revenue court in respect of any such dispute. (2)If the Cane Commissioner directs the reference of a suit to arbitration, it shall be referred to a sole arbitrator acceptable to the parties concerned. In case no sole arbitrator is acceptable to both parties, the dispute in question shall be referred to a Board of Arbitration, consisting of one representative of each party and an umpire acceptable to both representatives. If the representatives or the parties are unable to elect such an umpire within a fortnight, the Cane Commissioner shall either himself act as umpire or nominate one. The umpire shall be the President of the Board of 771 Arbitration and shall have a vote in case of disagreement between the representatives. (3)The sole arbitrator or the President of the Board, of Arbitration shall have the full power of a court in respect of summoning the parties, witnessess and records. (4) The decision of the sole arbitrator or Board of Arbitration shall be final and binding on both parties and shall not be called in question in any civil or revenue court. (5) The sole arbitrator or the Board of Arbitration shall give an award within the time fixed by the Cane, Commissioner, failing which the Cane Commissioner may decide the dispute himself or appoint another arbitrator or arbitrators for the purpose. (6)Any party considering himself aggrieved by an award may appeal to the Commissioner of the Division in which the factory is situated within one month of the date of the communication of the award and the Commi ssioner shall pass such order as he deems fit. (7)The Commissioner 's order in appeal shall be final. (8)On application to the Civil Court having jurisdiction over the subject matter of the decision or award, the decision of the Cane Commissioner, or the award of the arbitrator or arbitrators, or the Commissioner 's order in a peal against an award, shall be enforced by the Court as if such decision, award, or order in appeal were a decree of that Court. " " 25.Penalties (1) Any person contravening any of the provisions of these rules for which no 772 penalty has been provided in the Act or not obeying a lawful order or direction conveyed to him in writing which the Cane Commissioner or a Collector or an Inspector is authorised to pass or issue shall be punishable with fine which may extend to Rs. 750: (Proviso omitted) We are concerned with the crushing seasons of 1949 50 and 1950 51. In these two years, the Cane Marketing Society offered sugar cane by Form 10. According to the appellant, the Society should have offered 85% of its net estimated crop but it made an offer in both the years which was less than 85% and actually supplied a quantity which was still less. The relevant figures or the two years, according to the appellant, were as follows: 1949 50 1950 51 (In Lacs of Maunds) Net estimated Crop 45.82 55.20 Less 15% 6.82 8.28 85% which should have been offered 39.00 46.92 Opposite party No 2 offered to sell finally 32.00 32.00 Shortage in offer 7.00 14.92 Actually supplied 23.1113129 7954 Actual shortage 15.8886917.1246 The appellant therefore preferred a claim to the Cane Commissioner for compensation for the short supply calculated at one anna per maund of sugar cane, by an application dated October 31, 1950. This was preceded by a long correspondence 773 which began in June 1950. Of this correspondence a few of the letters have been printed in the record of the case. The first letter is by the appellant to the Cane Marketing Society Ltd., Bijnor, in which a claim for Rs. 1,02,116 13 0, as compensation on account of short supplies in the season 1949 50 was made. The next letter in August, 1950, showed that the Society was claiming a sum of Rs. 1,64,094 4 6 as commission for the years 1948 49 and 1949 50 and that the appellant was setting up a counterclaim for Rs. 1,04,890 2 9 as compensation for short supply. On November 4,1950, the appellant wrote a final letter giving the accounts and sending a cheque for Rs. 22628 13 0 in full satisfaction of the claim. This cheque was accepted by the Society but under protest. The real dispute was about the compensation for short supplies which the Society did not admit. According to the Society they had a claim for Rs. 2,63,624 2 6 and they also moved the Cane Commissioner under Rule 23 (1) of the U. P. Sugar Control Act and Rules, 1938, for arbitration. The Cane Commissioner, who had not acted on the letter of the appellant, then passed an order on July 26, 1951, calling upon the parties to be present before him on August 18, 1951, for the decision of the dispute. On September 3, 1951, the appellant filed a petition under article 226 of the Constitution for a Writ of Certiorari to quash the proceedings pending before the Cane Commissioner, for a Writ of Prohibition for restraining the Cane Commissioner from continuing the proceedings and for a writ of quo warranto for a declaration that the Cane Commissioner had no right to assume the office of arbitrator in the dispute. In support of the petition the appellant contended that there could be no arbitration in this dispute because the agreement was not a proper agreement as the Society had omitted to complete the prescribed form XII by leaving the Schedule, the area of cultivation and the estimated yield, blank and as the agreements were not signed 774 by the Mills who did not accept them in their incomplete state. In the alternative, it was contended that Rule 23 offended against article 14 of the Constitution because it provided two different methods of decision of the disputes one by the Cane Commissioner and the other by arbitration leaving it to the arbitrary will of the Cane Commissioner to choose which it should be in a particular case, and by providing an appeal in one case, and not in the other. It was further contended that the provision in sub Rule (6) of Rule 23, which provided for an appeal went beyond the rule making power of the Provincial Government as no such power was conferred on it by section 30 of the Act and sub Rule (6) being unseverable, the whole of Rule 23 must fail and that, there could be no action by the Cane Commissioner. The petition was heard by Chaturvedi, J., and was dismissed. A special appeal under the Letters Patent was heard by Mootham, C. J., and C. B. Agarwala, J. Both of them concurred in dismissing the appeal but there was a difference as to sub Rule (6) between the learned judges. According to the learned Chief justice, in making sub Rule (6) of Rule 23 the Provincial Government had exceeded its power and the Rule was invalid but the sub Rule was severable and the rest of the Rule was validly framed. According to Agarwala, J,, the sub Rule was properly framed and there was a right of appeal both against the order of the Cane Commissioner as well as the award of the arbitra tors to the Commissioner of the Division. Both the learned judge held that the provisions of Rule 23 were not discriminatory and thus not void under article 14. In this appeal the same points, which were urged before the High Court, have been urged before us. The scheme of the Act and the Rules analysed above shows that the purchase of suger cane was 775 regulated. There were reserved areas, assigned areas and other areas. Supplies from a reserved area were meant for a factory for which the area was reserved and forms were prescribed for offer, agreements etc.so that the scheme might not be defeated by parties contracting out of the scheme. We are not concerned with the merits of the rival contentions about short supply or unpaid commission. Those are matters for adjudication elsewhere. We are only con cerned with the. legality of the proceedings before the Cane Commissioner. This dispute has been referred to him under Rule 23 not only by the Society but earlier also by the appellant. The appellant now says that he had made a mistake arid seeks to avoid a decision by the Cane Commissioner or by arbitrator and has set up two contentions. The first is that by reason of three defects in the agreement of 1949 50 season and two in the agreement of 1950 51 season there is no binding contract as is contemplated by section 18(2) and the agreement not having come into force the Commissioner has no power to act under Rule 23. The defects are : (a) Absence of signature for the mills in both agreements, (b) Schedule left blank in both agreements, (c) Two blanks left in the agreement for 1949 50 season where an area and a quantity had to be mentioned. The second contention is that Rule 23 enjoining arbitration is void under articles 13 and 14 of 'the Constitution as, on its face it allows discrimination and sub Rule (6) of Rule 23 making provision for an appeal is beyond the rule making power conferred by section 30 of the Act and that sub Rule being unseverable Rule 23 as a whole fails. We shall deal with the first contention separately and the other two points in the second contention together. 776 The first question thus to consider is whether there is a binding contract between the parties or not. Clause No. 10 of the agreement which is in the prescribed form, says that "all disputes touching the agreement shall be decided by arbitration as provided for in the rules and no suit shall lie in a civil or revenue court in respect of any such dispute". The exclusion of the jurisdiction of 'courts is also provided in Rule 23(1). If the agreement were binding the matter would have to be referred to arbitration as laid down in Rule 23. The agreement was challenged in the petition under Article 226 on four grounds. Three of them deal with the facts in dispute with which we are not concerned. The last was that "no agreement was entered into at all between the parties as contemplated under section 18(2) of the U.P. Sugar Factories Control Act and in the form No. 12 as prescribed under the Rules made thereunder." The defects that are pointed out now, it is said, make out that there was no agreement at all. To begin with the agreement was accepted on both sides and was acted upon. The appellant himself moved the Cane Commissioner for the enforcement of the agreement on October 31, 1950. He now says that this was under the erroneous belief that even without a written agreement Rule 23 app lied. Even in the proceedings before the Cane Commissioner the appellant caused an appearance to be made and asked for time. No objection that there was no valid agreement, was taken. In his letters to the Society the appellant relied upon the agreements and calculated his compensation and the commission of the Society on its basis. The appellant sent requisitions for supplies for sugar cane in accordance with Rule 15(5) and (6) and the agreement. He accepted bills and paid for them. The appellant had the signed form 10 and also form 12 with him. He could have got the blanks filled in and also signed the agreement but evaded doing this. By his conduct 777 the appellant appears prima facie to have accepted the agreement though now he is relying on his own default and petty omissions in the form. Now it must be remembered that this form was prescribed so that the scheme of the Act and Rules should work smoothly, and the purchase and sale of sugar cane should follow a particular pattern. The failure to enter into an agreement in the prescribed form was made an offence to compel the factories to keep to the scheme. Here the form in fact has been used. All the terms are included and none has been altered or new terms added. The agreement has also been acted upon. The question is whether the want of signature of the complaining party and the existence of the blanks render the contract void and non existing. There is no doubt that in the agreement for the season 1949 50 the area of the crop in one place and the approximate yield from that area in another have not been filled in the blank space provided for that purpose. The form in 1950 51 has no such blanks. The agreement was preceded by from No. 10 which showed these particulars. That form was with the appellant and it supplied these two details, namely, the area under cultivation and the estimated yield. 'Indeed, the two forms between them contained all the particulars which are required to be entered in the body of the agreement. As regards the schedule to the agreement the headings read as follows: Village Area under sugar Approximate Remarks cane Deal: Ra yield in Mds.toon: Plant If the appellant required this information it could have been furnished. The Schedule merely gives details village by village of the area under cultivation mentioned in form No. 10 and the body of the agreement and also shows the quality grown 778 in each village. This is obviously to facilitate re quisitions being sent and the appellant if he has any complaint on this score can raise it in the proceedings. The banks in the body of the agreement for 1949 50 thus are insignificant. Those details were already mentioned in form 10. They do not bear upon the terms which are quite unaffected by the omissions. The form for 1949 50 season was therefore not invalid because of the omissions in the body of the agreement. The schedule was intended to record the details of the crop grown but those details were not an integral part of the agreement or its terms. The agreements for 1949 50 and 1950 51 season were therefore not invalid for this reason also. This leaves over the absence of the signature of the party who had the custody of the document and who is now complaining of its absence. It is somewhat odd that he should complain of the lack of his own signature because it is tantamount to his making a virtue of his own lapse. The argument is therefore attempted to be put on a legal foundation and it is that section 18 (2) used mandatory language and attached penal consequences and the slightest deviation in a material respect and particularly the lack of signature of one of the contracting parties renders the agreement null and void. What the law requires is that the cane growers and the factories should, in view of the scheme, conform to certain terms and conditions which have been predetermined so that the scheme of rationalisation does not fail. For this purpose a form is prescribed and the form shows the place where the parties have to sign in token of their acceptance. Of course, the terms could be accepted orally but the section requires that the contract should be in a particular form and hence in writing. As to signatures it was held by Duke L. J. as he then was in Ruf (T. A.) & Co. vs Pauwels (1) as follows (1) , 670.779 "As to the suggestion which was made that the words 'contract in writing ' imports a contract made by means of a writing or writings signed by both parties, I do not think the words necessarily have that meaning. A document purporting to be an agreement may be an agreement in writing sufficient to satisfy the requirements of an Act of Parliament though it is only verified by the signature of one of the parties. Re Jones The learned Attorney General, however, contends that the prescriptions of section 18(2) being manda tory they had to be followed to the letter. He urges that in as much as the Act and the rules prescribe a penalty for breach the section cannot but be regarded as mandatory in all its parts. He assumes that the appellant may be guilty and punished but, says he, the mandatory provision not having been followed according to the letter there can be no resulting valid contract. A large number of rulings on how to distinguish between mandatory and directory provisions of law were cited before us, in support of the contention. More cases were cited ' to show that where a form is prescribed, the form and must be used otherwise there is no contract. We shall only briefly refer to them. The general rule as to which provision of law, can be regarded as mandatory and which directory is stated in Maxwell on the Interpretation of Statutes at page 364 "It has been said that no rule can be laid) down for determining whether the command (of the statute) is to be considered as a mere direction or instruction involving no invalidating consequence in its disregard, or as imperative, with an implied nullification for dig ) obedience, beyond the fundamental one that 780 it depends on the scope and object of the enactment. It may, perhaps, be found generally correct to say that nullification is the natural and usual consequence of disobedience, but the question is in the main governed by considerations of convenience and justice (R. vs Ingall (2) , per Lush, J.), and, when that result would involve general inconvenience or injustice to innocent persons, or advantage of those guilty of the neglect, without promoting the real aim and object of the enactment, such an intention is not to be attributed to the legislature. The whole scope and purpose of the statute under consideration must be regarded. The general rule is, that an absolute enactment must be obeyed or fulfilled exactly, but it is sufficient if a directory enactment be obeyed or fulfilled substantially. " This rule has been applied in many cases both in India and in England. In State of U. P. vs Manbodhan Lal Srivastava (1) this Court observed that no general rule can be laid down but the object of the statute must be looked at and even if the provision be worded in a mandatory form, if its neglect would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty and at the same time would not promote the main object of the Legislature, it is to be treated only as directory and the neglect of it though punishable would not affect the validity of the acts done; These observations have been followed in other cases and recently in Bhikraj vs Union of India (2) it was observed that where a statute requires that a thing shall be done in a particular manner or form but does not itself set out the consequences of non compliance the question whether the prescription of law shall be treated as mandatory or directory could only be solved by regarding the object, purpose and scope of that law. If the statute (1) ; (2) A.I.R. (1962) 113,119.781 is found to be directory a penalty may be incurred for noncompliance but the act or thing done is regarded as good. It is unnecessary to multiply these cases which are based upon the statement in Maxwell which is quoted over and over again. Now the prescription of the law in the present case was that the cane growers and the factory must enter into an agreement in a prescribed form. That form has in fact been used, only there are certain blanks and the appellant has not signed where he was expected to do so. Reliance is placed by the appellant upon a decision of the House of Lords reported in Thomas vs Kelly (1) particularly the observations of Lord Macnaghten where a distinction was made between the words "in accordance with the form" and "in the form". It is argued that the Act and the rules in the present case require the agreement to be in the form prescribed and not in accordance with the form. It is submitted that a substantial compliance may be permissible when the words of the statute are " 'in accordance with the form" but that strict compliance is necessary when the words are "in the form": The form in Thomas vs Kelly (1) was in a different category from their form which we have. Under the statute, which prescribed the form (a bill of sale), it was provided that a bill of sale given by way of security was void unless made in accordance with the form. , The form used there being not in accordance with the form prescribed was held to be void though there are observations to show that if this consequence had not been attached a departure from the statutory form in any thing which was not a characteristic of that form would not have been fatal. In the body of the bill of sale executed in that case there was no description of the things intended to be assigned and this portion was regarded as characteristic of the form prescribed. There are some cases of this Court in which the prescribed forms have been considered, In two (1) 782 cases under the Representation of the People Act,1950, the form for making a security deposit which was prescribed, was not strictly followed but it was held that it was merely a matter of form and as there was substantial compliance the penal consequences did not ensue. See Jagan Nath vs Jaswant Singh (1) and Kamaraja Nadar vs Kunju Thevar (2), In Hari Vishnu Kama the vs Syed Ahmed Ishaque (3) votes not given in the form prescribed were held to be invalid because the form prescribed was considered to be essential and an intention of the voter expressed otherwise than in the form prescribed was considered to be an intention not expressed at all. In Radhakisson Gopikisson vs Balmukund Ramchandra (4) a by law provided that contract between agents and their constituents shall be in the form prescribed. It was held by the Privy Council that a literal compliance with the forms was not essential if the contract contained all the terms and conditions set out in the form but it was otherwise if it did not. In the present case the form prescribed set out a number of conditions and these have all been incorporated in the agreement which has been executed by the society. In other words the form has been used. There is no deviation from the prescribed form except in respect of the three defects which we have mentioned earlier. We have pointed out that the failure to execute the agreement in the form is made an offence but no other consequence is indicated if the form is not followed. The utmost that can be said is that if the form which was used included conditions which were at variance with the conditions in the prescribed form a contract might not have resulted. But we need not express any opinion on this, because in this case the terms as stated in the prescribed form are the terms in the form used. We have pointed out that no consequence attaches to the failure to observe the form except punishment by fine and section 18 (2) is capable (1) ; (2) (3) ; (4) [1932] L.R. 60 1.A. 63.783 of being read as directory. Even if it be read as mandatory we have shown already that the failure of the appellant to sign the form is not a matter of which he can take advantage regard being had to his own conduct. The blanks also do not matter in view of the existence of form No. 10 which suppli ed the information accidentally omitted from the agreement. The form is also sufficiently identified by the signature on behalf of the Society and it has been acted upon not only by the Society but also by the appellant who is complaining of the want of signature. In our opinion, the agreement was binding. It may be pointed out that the arbitration clause in the agreement was enforceable, if agreed to, even without the signature of the appellant as it is settled law that to constitute an arbitration agreement in writing it is not necessary that it should be signed by the parties and it is sufficient if the terms are reduced to writing and the agreement of the parties thereto is established. See Jugal Kishore Rameshwardas vs Mrs. Goolbai Hormusji (1). In our opinion even if the section be held to be mandatory to the extent that the terms as prescribed should appear in writing, that is complied with in this case. There was thug a binding contract between the parties and the dispute was to be ,resolved as required by Rule 23. The appellant has an alternative argument by which he challenges the validity of Rule 23 itself. He says that Rule 23 permits the Cane Commissioner to follow two different methods for the adjudication of the disputes. One method is that the Cane Commissioner can himself hear and decide the dispute and the other is that he can direct the parties to have their dispute decided by arbitration. It is said that Rule 23 thus confers on the Cane Commissioner an arbitrary power to proceed with some cases in one way and in some cases in another because there is no (1) ; 784 guiding principle. It is also contended that one of the procedures, (namely the decision by the arbitrators) gives a right of appeal from the award to the Commissioner of the Division while there is no right of appeal in the other (namely, decision by the Cane Commissioner) and there is thus discrimination between those persons whose case is decided by the Cane Commissioner and those whose case is decided by arbitration. It is contended that the Commissioner is given an arbitrary power to discriminate between one case and another in as much as he can decide one case himself and refer another to arbitration and the rule thus offends against the equal protection clause contained in article 14 of the Constitution. Reference is made to those cases in which this Court has ruled that in such circumstances the law is void. It is also contended that Rule 23 contains a provision for appeal but sub r.(6) providing for an appeal goes beyond the power conferred by section 30 which confers the rule making power on the Provincial Government. It is also said that sub r.(6) is not severable from the rest of the Rule because the Provincial Government would not have made a rule for arbitration in that form if it was not able to enact a rule giving a right of appeal to an aggrieved party when there was arbitration. It is thus contended that sub r.(6) allowing the right of appeal should be struck down as ultra vires the Provincial Government and the whole rule because sub r.(6) is not severable from the rest of the rule. The arguments are somewhat conflicting. If sub r.(6) was ultra vires the Provincial Government and must be struck down then one of the reasons on which the complaint of discrimination is based must disappear provided the sub r.is severable, because the decision in either case then would be final. It is only if it is unseverable that other considerations would arise. It is therefore necessary to see if section 30 of the Act confers power to provide for appeal from 785 the award of the arbitrators. An appeal is no doubt a creature of statute and does not lie in the nature of things. Under the general law relating to arbitration there is no appeal against an award. The power to provide for an appeal by a rule must, therefore, flow from section 30 of the Act. Section 30 first confers a general power to make rules and then enumerates, as illustrative of the general power, certain topics on which rules in particular may be made ' The general power is conferred by the first sub section which reads: "The Provincial Government may make rules to carry out the provisions of this Act. " It is argued by the appellant that this sub section does not use the common formula "carry out the purposes of this Act" and the Provincial Government could only provide for an appeal if a provision enabling it to ' do so existed in the Act, and no such provision regarding appeals is to be found. The other side relies upon sub section(2) which says that rules may provide for : "(u) the reference to the Cane Commissioner of disputes relating to the supply of Cane for decision or if he so directs to arbitration, the mode of appointing an arbitrator or arbitrators, the procedure to be followed in proceedings before the Cane Commissioner or such arbitrator or arbitrators, and the enforcement of the decisions of the Cane Commissioner or the awards of arbitrators. " It is contended that this clause confers on the rule making authority the power to make rules regarding disputes relating to the supply of cane for decision by arbitration and being itself a provision of the Act '. rules can be made to carry out this provision. The appellant however contends that 186 clause (u) mentions only four matters and the provision of an appeal is not one of them. In our opinion, clause (u) conferred a general power to make rules for the resolving of disputes either by the Cane Commissioner or if he so directs by arbitration and to give effect to the latter part of this provision arbitration with an appeal from the arbitrator 's decision would be giving effect to the provisions as a whole. In this sense sub r.(6) providing for an appeal against the decision of the arbitrators must be considered as a rule giving effect to the provision of section 30 (2) (u) providing for the resolving of disputes by arbitration. Sub Rule (6) was thus within the rule making power of the Provincial Government and it is unnecessary to discuss whether it is severable or not from the rest of the rule. We shall now pass on to the main contention in this case, that Rule 23 provides for two different types of procedures to be followed at the option of the Cane Commissioner. If it could be said that the rule, as framed, allows the Cane Commissioner to discriminate between one party and another, then the rule must offend Article 14. We shall, therefore, see whether there is any room for discrimination at the hands of the Cane Commissioner. It is necessary in this connection to see first whether the Cane Commissioner can compel a party to go to arbitration against his will. The rule says that any dispute touching an agreement shall be referred to the Cane Commissioner for decision or if he so directs to arbitration. It also provides that no suit shall lie in a civil or revenue court in respect of any such dis pute. At first sight, it does look as if the Cane Commissioner can pick and choose between two disputes of like nature., keeping one two himself ' and sending another for decision by a sale arbitrator or Board of arbitrators. But the purport of the first sub Rule is that an arbitration can be with the permission of the Cane Commissioner 787 and parties cannot go to arbitration without the permission of the Cane Commissioner. The rest of the rule shows that there can be no arbitration without the consent of the parties. If the reference to arbitration is purely on a voluntary basis then there can be no complaint that two different procedures are provided for the solution of the same kind of disputes. If parties cannot be compelled to go to arbitration and refuse to go to arbitration then the Cane Commissioner must decide the dispute himself. If this view was correct then there is but one mode of deciding disputes, namely, by the Cane Commissioner and an alternative mode, no doubt, under the direction of the Cane Commissioner but only if the parties agree, by arbitration. Therefore the provisions regarding arbitration cannot be compared with the procedure before the Cane Commissioner, and the provision for an appeal in the former but prima facie not in the latter loses all significance. The procedure of arbitration with the appeal included really applies only if both sides accept that procedure willingly. To determine whether the procedure involving arbitration is voluntary or not we shall have to examine Rule 23 in some detail but before we do so we shall advert to section 46 and three other sections of he Arbitration Act. That section provides : "The provisions of this Act, except sub section (1) of section 6 and sections 7, 12, 36 and 37, shall apply to every arbitration under any other enactment for the time being in force, as if the arbitrations were pursuant to an arbitration agreement and as if that other enactment were an arbitration agreement, except in so far as this Act is inconsistent with that other enactment or with any rules made thereunder. " It was admitted before us by the learned counsel for the appellant that section 46 in its first part does not apply but it was argued that section 8, 9 and 10 of the 788 arbitration Act must be considered in deciding whether the arbitration is purely on a voluntary basis or not. We have thus to compare the provisions of Rule 23 with those of these sections to find out if the rule prevails over the sections. Rule 23(2) provides that when the Cane Commissioner directs the reference of the dispute to arbitration "it shall be referred to a sole arbitrator acceptable to the parties concerned". It is thus clear that arbitration by a sole arbitrator can only be by consent of parties. New if the matter were governed by section 8 of the Arbitration Act it would be open to any party to serve the other party with a written notice to concur in the appointment and after a lapse of a fortnight the Court could be moved to make the appointment. This provision is clearly inconsistent with what happens in the same circumstances under the Rule. The Rule provides : in case no sole arbitrator is acceptable to both parties the dispute in question shall be referred to a Board of Arbitration., consisting of one representative of each party and an umpire acceptable to both representatives. The Board is a three member board and this eliminates from consideration section 8. It also excludes section 9, of the Arbitration Act which deals with situations in which the reference is to two arbitrators and if one party fails to appoint his arbitrator the other party after appointing his own arbitrator can give a notice and the appointed arbitrator becomes the sole arbitrator. Under Rule 23 this cannot happen. Section 9 is thus inconsistent with a three member board which is the sine qua non of the Rule. The Rule provides that each party must appoint his, own arbitrator and then the umpire is to be chosen by the two representatives. Tile Cane Commissioner comes into the picture again when the representatives are unable to agree regarding the umpire. But there is an initial stage at which any of the parties can frustrate the arbitration by declining in limine to 789 select his own arbitrator. The arbitration must therefore be by agreement or it cannot take place at all. It remains to mention section 10. That section has no relation to the appointment of arbitrators to begin with. It deals with the position of the third arbitrator chosen by two arbitrators appointed by the parties. That stage does not reach at all if one of the parties does not appoint his arbitrator. It is thus quite clear that sections 8, 9 and 10 of the Arbitration Act do not apply being inconsistent with Rule 23. It is also quite clear that the decision by the Commissioner is the normal mode of disposing of disputes regarding the supply of sugar cane. The Cane Commissioner has the power to direct that the dispute be referred to arbitration but the rules show that there can be no arbitration unless the parties themselves agree. If it is to a sole arbitrator then the sole arbitrator must be acceptable to the parties concerned. If parties do not agree about the sole arbitrator the arbitration is by a Board of arbitrators consisting of one representative of each party and an umpire acceptable to both representatives. The Rule stops short of providing what is to happen if a party does not appoint his representative and the Arbitration Act furnishes no answer because it is inconsistent with the Rule. It is, therefore, obvious that the arbitration must be with the consent of parties and they must express this consent either by selecting an agreed sole arbitrator or by appointing their representative on the Board. This choice is entirely theirs, If the parties do not agree thus far there can be no arbitration at all and the case must be disposed of by the Cane Commissioner himself. Where there are two procedures one for every one and the other if the disputants voluntarily agree to follow it, there can be no discrimination because discrimination can only be 790 found to exist if the election is with someone alse who can exercise his will arbitrarily. It remains to consider an argument which was raised by Mr. Veda Vyasa at the end of the hearing but which was not urged by the learned Attorney General and it is that there may be discrimination in as much as the Cane Commissioner may refer some, disputes to arbitration and keep some to himself even though in all of them parties wish for arbitration. In other words, the discrimination is said to exist the other way round that is to say not because there are two modes from which one may be selected arbitrarily but because parties in some cases may be deprived of their election to proceed by arbitration. As we have said the normal mode is decision by the Cane Commissioner with a possibility of arbitration by the agreement of parties. It is most unlikely that the Cane Commissioner would decline to refer a dispute to arbitration where the parties agree that it should be so referred. Where the Cane Commissioner declines to make a reference the question may arise whether he could not be compelled to do so and also whether his decision given against the wishes of the parties would be binding on the parties. But we cannot say that the rule offends Article 14 because the Cane Commissioner may himself decide a dispute which the parties wish to go to arbitration. In our opinion the agreement was a binding agreement and Rule 23(6) of the U.P. Sugar Factories Control Rules 1938 was not ultra vires the Provincial Government and the Rule as a whole does not offend Article 14 of the Constitution. This appeal must therefore fail. It is dismissed with costs. RAGHUBAR DAYAL, J. I have had the advantage of perusing the judgment of my learned brother Hidayatullah,J., and I agree that there was a binding contract between the parties and in the view of 791 cl.10, the dispute was capable of being referred to arbitration. 1, however, do not agree that r. 23 of the U. P. Sugar Factories Control Rules, 1938 is not discriminatory. Sub r.(1) of r. 23 provides that the dispute be referred to the Cane Commissioner for decision or,.if he so directs, for arbitration, and thus gives discretion to the Cane Commissioner to direct that the dispute touching the agreement be referred to arbitration. There is nothing to guide his discretion. The procedure contemplated seems to be that when a party approaches the Cane Commissioner for the settlement of the dispute, the Cane Commissioner may either proceed to decide the dispute himself or may direct the party to go to arbitration. There is nothing in this sub rule to suggest that the Cane Commissioner can refer the dispute to arbitration by arbitrators only when the parties agree to have the dispute so settled. In the absence of such a provision, the discretionary power of the Cane Commissioner cannot be restricted. There seems to be no justification for taking the clause 'if he so directs ' to be if he so directs on the parties agreeing to have the dispute settled by arbitrators '. Clause 10 of the agreement in Form 12, together with the direction of the Cane Commissioner, amounts to the arbitration agreement. Once the Cane Commissioner has given the necessary direction the dispute is to go to the sole arbitrator acceptable to the parties concerned. This is what sub r.(2) provides. In case no sole arbitrator is acceptable to both the parties, the dispute is to be referred to a Board of Arbitration. The parties can thus avoid arbitration by the sole arbitrator by their not agree ing to any particular person to act as sole arbitrator. If the parties do not accept any sole arbitrator each of the parties has to appoint one representative 792 to the Board of Arbitration and the representatives so appointed, then appoint an umpire acceptable to them. It is suggested for the respondent that in case a party does not wish the matter to be referred to the Board of Arbitration, it can easily avoid it by not appointing a representative and that in that contingency, the Cane Commissioner will have to decide the dispute himself. If the parties agree to appoint a representative, the reference of the dispute to the Board of Arbitration would be a reference with the consent of the parties and therefore no question of discrimination can arise, even if the incidents of the dispute decided by the Cane Commissioner himself and by the Board of Arbitration be different. Sub r.(2) or any other sub rule of r.23, does not provide what is to happen when any of the parties does not appoint a representative. It does not necessarily follow from the absence of such a provision that the dispute goes back to the Cane Commissioner for decision or that the Cane Commissioner is empowered to withdraw his direction of referring the dispute to arbitration. Rule 23 has no such express provision in this regard, though sub r.(5) expressly, provides for the Cane Commissioner to take charge of ' the dispute afresh in another contingency. Once the Cane Commissioner has directed reference of the dispute to arbitration, he, in the absence of any provision in the rules empowering him to do so, is not to withdraw that direction and take over the decision of the dispute himself. The omission to provide for such a contingency can only mean that the rule does not contemplate a party not nominating his representative. This appears to be more reasonable to suppose than to hold that the reference of the dispute reverts to the Cane Commissioner who had already decided not to decide the dispute himself. Further, the party 's nominating a representative would not make the reference to arbitration a 793 voluntary act. The parties have no choice. They had to enter into an agreement in Form 12. Their agreeing to cl. 10 of the agreement is not voluntary but is due to statutory requirement. So is their agreement to nominate representative to the Board of Arbitration as they cannot go to a Civil Court for the decision of the dispute in view of sub r. There is nothing in r. 23 to indicate that the decision of the dispute by the Cane Commissioner is the normal procedure contemplated by the rule. Of course, the Cane Commissioner can act as an umpire if he so desires in case the two representatives appointed by the parties to the Board of Arbitration are unable to elect an umpire within a fortnight of the reference to them. In case the Board of arbitration does not give the award within a time fixed by the Cane Commissioner, the dispute is to be deemed to have been freshly referred to the Cane Commissioner, as sub r.(5) in these circumstances, empowers the Cane Commissioner to decide the dispute himself or to appoint another arbitrator or arbitrators for the purpose. It is clear from the various provisions of r. 23 that there is a difference in the procedure for the dispute being decided by the Cane Commissioner and the dispute being decided by the arbitrator or Board of Arbitration. In the former case, the decision of the Cane Commissioner is final and enforcible by the Civil Court referred to in sub r. In the latter case, the award of the sole arbitrator or the Board of Arbitration is appealable to the Commissioner of the Division in which the factory is situated and the Commissioner 's order is final and enforcible by the Civil Court. It follows that the procedure provided by r. 23 for decision of the dispute touching the agreement is such that parties similarly situated may have the dispute decided by different person an by different procedures according to the, 794 inclination of the Cane Commissioner whose discretion in this matter is uncontrolled by any guiding principles. The rule therefore offends against article 14 of the Constitution and is void. It is also contended that sub r.(6) providing an appeal to the Commissioner, against the order of the arbitrator or Board of Arbitration is void as the ,State Government had no power to make a provision about appeal. Sub section(1) of section 30 of the U. P. Sugar Factories (Control) Act empowers the State Government to make rules to carry out the provisions of that Act, There is nothing in the Act to the effect that provision be made for an appeal against the award of the arbitrator or arbitrators. A rule providing for appeal against the order of the arbitrator or arbitrators is therefore not a rule to carry out any provision of the Act. Clause (u) of sub section (2) of section 30 states that the State Government may make rules to provide for the reference to the Cane Commissioner of disputes relating to the supply of cane for decision or, if he so directs, to arbitration, the mode of appointing arbitrator or arbitrators, the procedure to be followed in proceedings before the Cane Commissioner and such arbitrator or arbitrators and the enforcement of the decisions of the Cane Commissioner or of the award of the arbitrators. It is true that these provisions relate to the settlement of disputes between the parties, but that by itself does not mean that the State Government can provide for appeals against the orders of the arbitrator or arbitrators. These provisions of cl.(u) do not expressly state that the rule can provide for an appeal against the award of the arbitrator. Provisions of cl.(u) make no reference either for the provision of an appeal or for the procedure to be followed by the appellate Tribunal, or for the enforcement of the order of the appellate Tribunal. The absence of such reference establishes that cl.(u) did neither contemplate nor empower the State 795 Government to make rules providing an appeal against the award of arbitrator or arbitrators. Further, the order of the Commissioner is not an award and this is recognised by the language of sub r. (8) of r. 23 which refers to the decision of the Cane Commissioner to the award of the arbitrator or arbitrators and to the Commissioner 's order in appeal. The provision for an appeal in sub r.(6) therefore is not to be treated as something ancillary to the provision for settling disputes between the parties by the Cane Commissioner for which object cl.(u) empowered the State Government to make rules with respect to certain matters. The right to appeal is a substantive right and is to be conferred on a party by or under the Act. The Act must either provide for the appeal or enact that the rules framed thereunder may provide for appeals against certain orders of decisions. ' In the absence of such a provision in the Act, the rules cannot provide for appeals. I am therefore of opinion that sub r.(6) is void. It is true that if sub r.(6) is struck down as void, there would not be any substantial difference between the procedure to be followed by the Cane Commissioner or the Arbitrator or Board of Arbitrators in deciding the dispute, but it does, not necessarily follow from this that r. 23 minus sub rule (6) and other incidental deleted provisions, is valid. It is difficult to say that sub r.(6) is severable. The existence of sub r.(6) and other consequential provisions makes it clear that the State Government which made r. 23 provided for the decision of the dispute by the arbitrator or arbitrators subject to an appeal against the award. It will be sheer speculation to say that the State Government would have made provision for the dispute to be settled by arbitrators if it had known that it could not make any provision for an appeal against that order. I am therefore of opinion that the entire r. 23 is to be struck down both because in its present for it is 796 discriminatory and because sub r.(6) is void inasmuch as the State Government had no power to enact it and it is not servable from the rest of the rule. I would therefore allow the appeal with costs and order the issue of a writ quashing the proceedings pending before the Cane Commissioner and prohibiting him to continue those proceedings. By COURT : In accordance with the opinion of the majority, this Appeal is dismissed with costs.

IN-Abs

Certain disputes arose between the appellant and the Cane Marketing Society Ltd., Bijnor. The appellant preferred a claim to the Cane Commissioner for compensation for short supply of Sugar cane. The Society also moved the Cane Commissioner for arbitration. The Commissioner passed an order calling upon the parties to be present before him for a decision of the dispute. It was then that the appellant filed a petition under article 226 of the Constitution of India for a writ of certiorari to quash the proceeding pending before the Cane Commissioner, for a write of prohibitation for restraining the Cane Commissioner from continuing quo warranto for a declaration that the Cane the proceedings and a writ of Commissioner had, no right to assume the office of arbitrator in the dispute. The appellant contended that there could be no arbitration because the claim was not a proper claim as the Society had omitted to complete the prescribed form XII by leaving the schedule, the area of cultivation and the estimated yield blank and as the agreements were not signed by the Mills who did not accept them in their incomplete state. In the alternative, it was contended that Rule 2 3 offended against article 14 of the Constitution. It was also contended that r. 23(6) providing for an appeal went beyond the rule making power of the Provincial Government under section 30 of the Act. The writ petition was dismissed by the High Court. The Letters Patent appeal was also dismissed. The appellant came to this Court by a certificate. Held, that the agreement was a binding agreement. The form prescribed set out a number of conditions and all of them have been incorporated in the agreement executed by the Society. There has been no deviation from the prescribed form except some minor omission. The failure to execute the 761 agreement in the form is made an offence but no other cons equence is indicated if the form is not followed. The utmost that can be said is that if the form that was used included conditions which were at variance with the conditions in the prescribed form, a contract might not have resulted, but in the present case the terms as stated in the prescribed form are the terms in the form used. No consequence attaches to the failure to observe the form except punishment by fine and section 18(2) is capable of being read as directory. Even if it be read as mandatory, the failure of the appellant to sign the form is not a matter of which he can take advantage, regard being bad to his own conduct. The blanks also do not matter in view of the existence of form 10, which supplied the information accidently omitted from the agreement. The arbitration clause in the form was enforceable, if agreed to, even without the signature of the appellant as it is settled law that to constitute an arbitration agreement in writing it is not necessary that it should be signed by the parties and it is sufficient if the terms are reduced to writing an the agreement of the parties thereto is established. Even if section 18(2) be held to be mandatory to the extent that the terms as prescribed should appear in writing, that is complied with in this case, Held (Raghubar Dayal, J., dissenting), that section 30(2 of the Act conferred a general power to make rules for the resol ving of disputes either by the Cane Commissioner or if he so directs, by arbitration and to give effect to the latter part of this provision arbitration with an appeal from the arbitrator 's decision would be giving effect to the provisions as a whole. Rule 23(6) providing for an appeal against the decision of arbitrators must be considered as a rule giving effect to the provisions of section 30(2)(u) providing for the resolving of disputes by arbitration. Sub rule (6) was thus within the rule making power of the Provincial Government. Sections 8, 9 and 10 of the Arbitration Act do not apply being inconsistent with r. 23. The decision by the Commis sioner is the normal mode, of disposing of disputes regarding the supply of sugar cane. The Cane Commissioner has the power to direct that the dispute be referred to arbitration, but the rules show that there can be no arbitration unless the parties themselves agree. If it is to a sole arbitrator, then the sole arbitrator must be acceptable to the parties concerned. If the parties do not agree to the appointment of a sole arbitrator, the arbitration is by a Board of Arbitrators consisting of one representative of each party and an Umpire acceptable to both the representatives. The Rule stops short of providing what is to happen if a party does not appoint his 762 representative and the Arbitration Act furnishes no answer because it is inconsistent with the Rule. It is, therefore, obvious that the arbitration must be with the consent of the parties and they must express their consent either by selecting an agreed sole arbitrator or by appointing their representative on the Board. This choice is entirely theirs. If the parties do not agree, there can be no arbitration at all and the case must be disposed of by the Cane Commissioner himself. Where there are two procedures, one for everyone and the other if the disputants voluntarily agree to follow it, there can be no discrimination because discrimination can only be found to exist if the election is with some one else who can exercise his will arbitrarily. Rule 23 as a whole does not offend Art.14 of the Constitution. Per Raghubar Dayal, J. It is true that the provisions of section 30(2)(u) relate to the settlement of disputes between the parties but that by itself does not mean that the State Government can provide for appeals against the orders of the arbitrator or arbitrators. These provisions do not expressly state that the rule can provide for an appeal against the award of the arbitrator. They make no reference either for the provision of an appeal or for the procedure to be followed by the Appellate Tribunal or for the enforcement of the order of the Appellate Tribunal. The absence of such a reference establishes that cl. (u) did neither contemplate nor empowered the State Government to make rules providing an appeal against the award of arbitrator or arbitrators. Further, the order of the Commissioner is not an award and this is recognised by the language of r. 23(8) which refers to the decision of the Cane Commissioner to the award of the arbitrator or arbitrators and to the Commissioner 's order in appeal. The provision for an appeal in r. 23(6), therefore, is not to be treated as something ancillary to the provision for settling disputes between the parties by the Cane Commissioner for which object cl. (u) empowered the State Government to make rules with respect to certain matters. The right to appeal is a substantive right and is to be conferred on a party by or under the Act. The Act must either provide for the appeal or enact that the rules framed thereunder may provide for appeals against certain orders or decisions. In the absence of such a provision in the Act, the rules cannot provide for appeals. The result is that r. 23(6) is void. It is clear from the various provisions of r. 23 that there is a difference in the procedure for the dispute being decided by the Cane Commissioner and the dispute being decided by the arbitrator or a Board of Arbitration. In the former case, 763 the decision of the Cane Commissioner is final and enforceable by the Civil Court referred to in r. 23(8). In the latter case, the award of the sole arbitrator or the Board of Arbitration is appealable to the Commissioner of the Division in which the factory is situated and the order of the Commissioner is final and enforceable by the Civil Court. It follows that the procedure provided by r. 23 for decision of the dispute touching the agreement is such that parties similarly situated may have the dispute decided by different persons and by different procedures according to the inclination of the Cane Commissioner whose discretion in this matter is uncontrolled by any guiding principles. The rule, therefore, offends against article 14 of the Constitution and is void. The entire r. 23 is struck down both because in its present form it is discriminatory and because sub r. (6) is void inasmuch as the State Government had no power to enact it and it is not severable from the rest of the rule. Ruf (T. A.) & Co. vs Pauwels, ; State of U. P. vs Manbodhan Lal Srivastava, ; , Bhikraj vs Union of India, A. I. R. , Thomas vs Kelly, 888) 13 App. 506, Jagan Nath vs Jaswant Singh, ; , Kamaraja Nadar vs Kunju Thevar, , Hari Vishnu Kamath vs Syed Ahmed Ishaque, ; , Radhakinsson Gopikis8on vs Balmukund Ramchandra (1932) L. R. 60 I. A. 63 and Jugal Kishore Rameshwardas vs Mrs. Goolbai Hormusji, [1955] 2 section C. R. 857, referred to.

minal Appeal NO. 134 of 1961. Appeal from the judgment and order dated March 28/29, 1961, of the Calcutta High Court in Criminal Appeal No. 769 of 1960. D. N. Mukherjee, for the appellant. P. K. Chakravarti and P. K. Bose, for the respondent. December 10. The judgment of the Court was delivered by AYYANGAR, J. This is an appeal on a certificate under article 134 (1) (c) against the conviction of the appellant under section 302, Indian Penal Code and the sentence for imprisonment for life passed against him for the said offence. One Pancham Sukla was an employee under the Calcutta Port Commissioner where also the 854 appellant was employed. Pancham attended office last on the 10th of March, 1960 and at about 5.30 that evening he was seen in the company of the appellant. That was the last time he was seen alive and since then he has not been found. Pancham not having returned to his house, his brother in law and another lodged a report with the police stating that Pancham had been missing for the previous two days and in the said report gave a description of the missing person as well as the clothes that he wore at the time he left his residence. The fact that Pancham was last seen with the appellant was stated in a further report which the brother in law lodged with the police on the next day March 13, 1960. The appellant was arrested on March 21, 1960 and on interrogation by the police he stated that Pancham Sukla was dead and admitted that he had buried the body of the deceased in the mud in a tank of which he gave a description. The place pointed out was searched and therefrom a human skeleton partly covered with a torn dhoti, underwear and a torn kurta in the side pocket of which was found a flag, were discovered. The appellant was also stated to have pointed out to the police in the course of further investigation that he had thrown a knife into the same tank. A search was made when not merely a knife but a shoe with a rubber sole, a human lower jaw bone etc., were recovered. After some more investigation a complaint was laid before the Magistrate, who after enquiry committed the appellant to take his trial before the Sessions Court where he was tried with the aid of a jury. of two offences : (1) under section 364, Indian Penal Code of having abducted Pancham Sukla in order that he might be murdered, and (2) the substantive offence of having committed the murder under section 302, Indian Penal Code. It may be mentioned that at the trial the articles recoverd the dhoti, shirt, underwear, 855 shoe and the flag were all indentified as having belonged to and being worn by the deceased when he was last seen. The jury accepted the evidence of the prosecution and returned a verdict of guilty against the appellant on both the counts. The learned Session 's judge accepted the verdict and sentenced him to death under section 302, Indian Penal Code and to rigorous imprisonment for life in respect of the offence under section 364, Indian Penal Code. The appellant filed an appeal to the High Court of Calcutta and the learned judges acquitted the appellant of the offence of kidnapping under section 364, Indian Penal Code but confirmed the finding of guilt as regards the offence of murder tinder s.302, Indian Penal Code but reduced the sentence to imprisonment for life. Having regard to the points which have been urged before us we do not think it necessary to canvass the grounds upon which the learned judges set aside the verdict of guilty returned by the jury and the conviction of the appellant by the Sessions judge in respect of the offence under section 364, Indian Penal Code, but are concerned only with two points which have been made by learned Counsel in support of the appeal. The first point urged relates to the identification of the skeleton which was found in the tank as that of the deceased Pancham Sukla; in other words, whether there was proof that Pancham Sukla was killed or had even died. The identification of the skeleton rested on three distinct lines of evidence : (1) The statement of the appellant to the police under section 27 of the Indian Evidence Act which led to the discovery of the skeleton; (2) The identification of the clothes, shoe etc. which were found on or near the skeleton as those which were worn by Pancham Sukla at the time he last left his house. The place where these articles were discovered in relation to that where the skeleton was 856 found unmistakably pointed to the articles having formed part of the dress of person whose skeleton was there found; and (3) a photograph of Pancham Sukla superimposed on the photograph of the skeleton. judge and the High Court as regards the admissibility in evidence of the superimposed photograph as a means of identifying the skeleton as that of the deceased and it is this legal objection raised by the appellant that forms the ground of the certificate granted by the learned judges of the High Court. Learned Counsel urged before us that the superimposed photograph was not admissible in evidence and that its reception vitiated the verdict of the jury. We are clearly of the opinion that even if this photograph was not admissible in evidence the verdict of the jury and the conviction of the appellant could not be set aside, because there was very cogent other evidence to prove the identity of the skeleton. Since, however, the learned judges of the High Court have thought fit to grant a certificate, though they were themselves conscious of the fact that besides the photographs there was plenty of other evidence to sustain the conviction, we consider it proper to express our opinion on the question. The process adopted for taking the superimposed photograph as explained by P. W. 18 the Assistant Chemical Examiner of the West Bengal Government was this : He first got a photogrgph of Panchom Sukla. This was photographed, the negative being taken on a quarter plate and the negative was enlarged. He got the skull and as the skull Was broken in some parts the bones were pieced together and an enlarged photograph of the skull as reconstructed was taken. A negative of this was enlarged to the same size as the negative of the photo of the deceased with the angle and positions of the two being identical. The two negatives were 857 then superimposed. For the superimposition the technique employed by him was thus explained : "The ground glass of the camera was taken out, the negative of the photograph alleged of Pancham Sukla was placed on it, prominent markings of the negative were carefully jotted down on the ground glass, the markings being the following, viz., nasion nasomental line, malar bones with prominences and two outer canthuses and two inner canthuses of the two eye balls and the inner ends of the supra orbital ridges, thereafter the ground glass was fitted in the camera, the skull was so orientated that all the points of the skull came in exact position with the markings made on the ground glass as mentioned when the photograph of the skull was taken; then the two negatives were placed by aligning in such a way that all the points as mentioned above corresponded on a sensitive bromide paper under an enlarger. The resultant is the photograph submitted to the Court. " The photographer who executed this work under the supervision of P. W. 18 was Tapendra Nath Mazumder, who was examined as P. W. 19. This superimposed photograph showed the shape and contour of the bones of the face underneath the face as it looked when the deceased was alive, and the prosecution sought by means of this document to establish the identity of the skull as that of the deceased, or in any event to dispel any positive argument for the. defence that the skull was not that of the deceased. The contention urged before us by learned Counsel was that this photograph was not admissible under any section of the Indian Evidence Act. If learned Counsel is right here, he could succeed in 858 having this evidence rejected as inadmissible. We are, however, clearly of the opinion that it is admissible in evidence under section 9 of the Evidence Act. The section reads: "9. Facts necessary to explain or introduce a fact in issue or relevant fact, or which support or rebut an inference suggested by a fact in issue or relevant fact, or which establish the identity of any thing or person whose identity is relevant, or fix the time or place at which any fact in issue or relevant fact happened, or which show the relation of parties by whom any such fact was transacted, are relevant in so far as they are necessary for that purpose. " The question at issue in the case is the identity of the skeleton. That identity could be established by its physical or visual examination with reference to any peculiar features in it which would mark it out as belonging to the person whose bones or skeleton it is stated to be. Similarly the size of the bones, their angularity or curvature, the prominences or the recessions would be features on which examination and comparison might serve to establish the " 'identity of a thing" whithin the meaning of section 9. What we have in the present case is first a photograph of that skull. That the skull would be admissible in evidence for establishing the identity of the deceased was not disputed, and similarly a photograph of that skull. That a photograph of the deceased was admissible in evidence to prove his facial features, where these are facts in issue or relevant facts, is also beyond controversy. Now what P.W. 18 with the assistance of P.W. 19 has done is to combine these two. The outlines of the skull which is seen in the superimposed photograph show the nasion prominences, the width of the jaw bones and their shape. the general contours of the cheek bones, the position of the eye cavity 859 and the comparison of these with the contours etc., of the face of the deceased as seen in the photograph serve to prove that features found in the skull and the features in the bones of the face of the deceased are indentical or at least not dissimiliar. It appears to us that such evidence would clearly be within section 9 of the Evidence Act. The learned Counsel for the appellant urged that the superimposed photograph was not a photograph of any thing in existence and was for that reason not admissible in evidence. This argument proceeds on a fallacy. In the first place, a superimposed photograph is not any trick photograph seeking to make something appear different from what it is in reality. There is no distortion of truth involed in it or attempted by it. A superimposed photograph is really two photographs merged into one or rather one photograph seen beneath the other. Both the photographs are of existing things and they are superimposed or brought into the same plane enlarged to the same size for the purpose of comparison. Possibly some illustrations might make this point clear. For instance, if the photo of the deceased when alive were printed on a transparent medium and that were placed above a photograph of the skull both being of the same size the visual picture seen of the two together would approximate to the document objected as inadmissible. In the above, it would be seen both the photographs would be admissible in evidence and no objection could be taken to their being examined together. Again for instance, if instead of a two dimensional photograph we had first a hollow model of the head of the deceased say of transparent or semi transparent material constructed or made from a photograph, that certainly would be admissible in evidence provided there was proof that the model was exactly and accurately made. If the model were dismantled into segments and placed upon the skull with a view 860 to show that the curves and angles, the prominences or depressions etc. exactly corresponded there could be no dispute that it would be a perfect method of establishing identity. If this were granted the superimposed photograph which is merely a substitute for the experiment with the model which we have just now described would be equally admissible as evidence to establish the identity of a thing. It was pointed out that this was the first occasion that in India an identity of a skeleton was sought to be established by means of superimposed photographs and that P. W. 18 had done this experiment by reference to what he had read in the books on the subject and that on that ground the evidence could ' not be accepted. Any deficiency in scientific accuracy might go to the weight of the evidence which in the case on hand was a matter for the jury to consider, but we are now only on a very narrow question as to whether it is excluded from evidence as inadmissible. Our answer is that it was admissible in evidence. , The next point urged was that there had been a misdirection to the jury in setting out the statement of the accused to the police which led to the discovery of the skeleton. We have carefully gone through the charge to the jury and are satisfied that there is no substance in this objection. The learned Sessions judge has quoted extracts from the decision of the Privy Council in Kotayya vs Emperor (1) and of this Court in State of U. P. vs Deoman Upadhyaya (2) in which the scope of section 27 of the Indian Evidence Act has been discussed and has drawn to the attention of the jury only that portion of the statement of the accused which led to the discovery of the skeleton and the knife etc. Lastly it was urged that the grounds upon which the learned judges had set aside the conviction of the appellant of the offence under section 364, Indian Penal Code would necessarily lead to the conclusion (1) A.I.R. 1947 P.C. 67. (2) ; , 861 that he could not be held guilty of an offence under section 302, Indian Penal Code. The argument was on these lines. The learned judges considered that the appellant had not, having regard to certain facts which they considered had been made out, the intention of killing Pancham when he took him out and that the killing must have taken place as a result of some quarrel which arose between them. From this learned Counsel sought to urge : (1) that there was a quarrel, (2) that having regard to the quarrel the appellant must have had the right of private ,defence, and that (3) consequently killing was either fully protected or at the most it was a case of an offence under section 304 Part 1, Indian Penal Code. We consider that there is no foundation for this argument. The trial was by jury whose verdict was that the appellant was guilty of murder. As we stated earlier, we are not now concerned with the correctness of the acquittal by the High Court of the appellant of the offence under section 364, Ind tan Penal Code or of the reasons on which that order was based. We must, however, point out that there is no suggestion before us that save and except what we have discussed earlier there had been any misdirection by the Sessions judge in his charge to the jury. There is therefore no scope for the argument that that verdict should be interfered with or the conviction based on it altered on hypothetical considerations not founded on any facts on record.

IN-Abs

The appellant was tried by the jury for kidnapping and committing the murder of one Pancham Sukla. The jury returned a verdict of guilty against him under sections 364 and 302 of the Indian Penal Code. The Sessions judge accepted the verdict and sentenced him to death under section 302 and to rigorous imprisonment for life under section 364. The High Court acquitted appellant of the offence of kidnapping under section 364, but while confirming his conviction under section 302, reduced the sentence to imprisonment for life. The appellant came to this Court on a certificate granted by the High Court. In this Court, the appellant challenged the identification of the skeleton produced in the case as that of the deceased. His other contentions were that the super imposed photograph was not admissible under any section of the Evidence Act, there was misdirection to the jury in setting out the statement of the accused to the police which led to the discovery of the skeleton and that he had no intention of killing deceased and killing must have taken place as a result of some quarrel between him and the deceased. The super imposed photograph was admissible in evidence under section 9 of the Evidence Act. That photograph was not any trick photograph seeking to make something appear different from what it was in reality. There was no distortion of truth involved in it or attempted by it. A superimposed photograph is really two photographs merged into one or rather one photograph seen beneath the other. Both the photographs are of existing things and they are superimposed or brought into the same plane enlarged to the same size for the purpose of comparison. Both the photographs would be admissible in evidence and no objection could be taken to their being examined together. 853 There was no misdirection to the jury insetting out the statement of the accused to the police which led to the dis covery of the skeleton. There was no substance in the contention of the appellant that killing must have taken place as a result of some quarrel. The jury had held appellant guilty of murder. This Court is not concerned with the correctness of the acquittal of the appellant by the High Court under section 364 of Indian Penal Code. No suggestion has been made before this Court that there was misdirection by the Sessions judge in his charge to the jury. There is no scope for the argument that verdict of the jury should be interfered with or the conviction based on it altered on hypothetical considerations not founded on any facts on record. Kotayya vs Emperor, A. 1. R. and State of U.P. vs Deoman Upadhyaya, (19611 1 section C. R. 14, relied on.

ppeal No. 237 of 1961. Appeal by special leave from the judgment and order dated September 30, 1958, of the Patna High Court in M.J.C. No. 5 of 1956. S.T. Desai and B. P. Maheshwari, for the appellant. section P. Varma, for the respondent. 461 1962. November 26. The judgment of Kapur and Shah, JJ., was delivered by Shah, J. Hidayatullah, J., delivered a separate judgment. SHAH, J. M/S. New India Sugar Mills Ltd.hereinafter called 'the assessees 'own a factory at Hasanpur in the State of Bihar. During the assessment period April 1, 1947, to March 31, 1948, the assessees who were registered as dealers under the relevant Sales Tax Acts despatched sugar valued at Rs. 6, 89,482/ to the authorised agents of the State of Madras in compliance with the directions issued by the Controller exercising powers under the Sugar and Sugar Products Control Order, 1946. The Sales Tax Officer, Darbhanga rejected the plea of the assessees that despatches of sugar to the Province of Madras in compliance with the instructions of the Controller were not liable to be included in the taxable turnover, and ordered the assessees to pay sales tax on a taxable turnover of Rs. 27,62,226/. The order of assessment was confirmed by the Deputy Commi ssioner, but the Board of Revenue exercising jurisdiction in revision set aside the order, in so far as it related to the inclusion into the taxable turnover the value of sugar despatched to the Province of Madras. The Board of Revenue observed that the " 'Controller passed orders in exercise of statutory powers, which, as a result of mere compliance, could not create a contract in law," and there was no evidence justifying the view that there could " 'possibly be any contract between the assessees and some dealers in Madras or between the assessees" and the Sugar Controller. The Board of Revenue under the direction of the High Court of judicature at Patna submitted under section 25(3) of the Bihar Sales Tax Act, 1947, the following question for the opinion of the High Court : "Whether in the facts and circumstances of the case, the disposal of sugar to the Province of Madras is liable to be taxed. " 462 The High Court answered the question in the affirmative observing that the sugar despatched by the assessees to different Provinces including the Province of Madras under orders of the Controller was liable to be taxed under the provisions of the Bihar Sales Tax Act, 1947. With special leave the assessees have appealed to this Court against the judgment of the High Court. The only question arising in the appeal is whether there was a sale by the assessees of sugar despatched by them to the Provincial Government of Madras in compliance with the directions issued by the Controller in exercise of authority under the Sugar and Sugar Products Control Order, promulgated on February 18, 1946, by the Central Government under powers conferred by sub rule (2) of r. 81 of the Defence of India Rules. The material clauses of the Order concerning sugar are these. By cl. 3 of the Order producers of sugar were prohibited from disposing of or agreeing to dispose of or making delivery of any sugar except to or through a recognised dealer or persons specially authorised in that behalf by the Controller to acquire sugar on behalf of the Central Government or of a Provincial Government or of an Indian State. Clause 5 enjoined upon every producer or dealer duty to comply with such directions regarding production, sales, stocks or distribution of sugar as may from time to time be issued by the Controller. By cl. 6 the Controller was authorised to fix the price at which sugar may be sold or delivered, and upon fixation of the price all persons were prohibited from selling or purchasing or agreeing to sell or purchase sugar at a price higher than the fixed price. By sub clause (1) of cl. 7 the Controller was authorised, inter alia, to allot quotas of sugar for any specified province, or area or market and to issue directions to any producer or dealer to supply sugar to such provinces, areas or markets or such persons or organisations, in such 463 quantities, of such types or grades, at such time, at such prices and in such manner as may be specified by the Controller, an sub clause (2) provided that every producer shall, notwithstanding any existing agreement with any other person give priority to, and comply with directions issued to him under subclause (1). Clause 11 provided that against a person contravening the provisions of the Order without prejudice to any other punishment to which he may be liable, an order of forfeiture of any stocks of sugar in respect of which the Court trying the offence was satisfied that the offence was committed may be passed. By sub rule (4) of Rule 81 of the Defence of India Rules, 1939, contravention of orders made under the Rule was liable to be punished with imprisonment for a term which may extend to three years or with fine or with both. The course of dealings between the assessees and the State of Madras to which sugar was, under the directions of the Controller. supplied by the assessees is stated by the High Court as follows : "The admitted course of dealing between the s was that the Government of various consuming States used to intimate to the Sugar Controller of India from time to time their requirement of sugar, and similarly the factory owners used to send to the Sugar Controller of India statements of stock of sugar held by them. On a consideration of the requisitions received from the various State Governments and also the statements of stock received from the various factories, the Sugar Controller used to make allotments. The allotment order was addressed by the Sugar Controller to the factory owner, directing him to supply sugar to the State Government in question in accordance with the despatch instructions received from the competent officer of the State Government. A copy 464 of the allotment order was simultaneously sent to the State Government concerned, on receipt of which the competent authority of the State Government sent to the factory concerned detailed instructions about the destinations to which the sugar was to be despatched as also the quantities of sugar to be despatched to each it is admitted that it also laid down the procedure of payment, and the direction was that the draft should be sent to the State Bank and it should be drawn on Parry and Company or any other party which had been appointed as stockist importer on behalf of the Madras Government. " The assessees contend that sugar despatched pursuant to the directions of the Controller was not sold by them to the Government of Madras, and sales tax was therefore not exigible in respect of those dispatches under the relevant Sales Tax Acts of the province of Bihar. The assessment period in respect of which the dispute is raised is one year April 1, 1947, to March 31, 1948 for the first three months the relevant law imposing liability to pay tax was Bihar Act 6 of 1944 and from July 1, 1947, to March 31, 1948, liability to pay tax had to be determined under Bihar Act 19 of 1947. It is common ground that the scheme of the two Acts for levy of tax was similar and the definition of "sale" on which primarily the dispute centred under the two Acts was identical. We will therefore refer in dealing with this appeal as if the liability arose under Act XIX of 1947. The expression "sale" as defined under section 2(g) of the Bihar Sales Tax Act, at the material time stood as follows : "Sale means, with all its grammatical variations and cognate expressions any transfer of property in goods for cash or deferred payment 465 or other valuable consideration, including a transfer of property in goods involved in the execution of contract but does not include a mortgage, hypothecation, charge or pledge : Provided that a transfer of goods on hire purchase or other instalment system of payment shall, notwithstanding the fact that the seller retains a title to any goods as security for payment of the price, be deemed to be a sale : Provided further that notwithstanding anything to the contrary in the Indian (111 of 1930), the sale of any goods which are actually in Bihar at the time when, in respect thereof, the contract of sale as defined in section 4 of that Act is made, shall, wherever the said contract of sale is made, lie deemed for the purpose of this Act to have been made in Bihar. " Apparently in the first paragraph of the definition a transaction (other than a transaction expressly specified) in which there is a transfer of property in goods for valuable consideration, was included as a sale within the meaning of the Act. By the first proviso transfer of goods on hire purchase or other instalment system of payment are to be deemed sales. The second proviso (which has since been repeated) dealt with the situs of the sale and was not in truth a part of the definition of sale. What constituted a sale, the second proviso did not purport to say : it merely fixed for the purpose of the Bihar Sales Tax Act the place of sale in the circumstances mentioned therein. Tax is leviable under the Bihar Sales Tax Act on the gross turnover (exceeding a prescribed Minimum) on sales "which have taken place in 466 Bihar". Counsel for the assessees says that the value of sugar despatched in compliance with the directions of the Controller is not liable to be included in the taxable turnover, for there was no sale of sugar, despatched by the assessees, and that in any event the sale did not take place in Bihar. In elaborating his submission counsel says : Under the Government of India Act, 1935 the Provincial Legislature had power to legislate for levy of tax on " sale of goods" under Entry 48 of List II of the Seventh Schedule; that the expression " 'sale of goods" in the Entry was used not in the popular but in the narrow and technical sense in which it is used in the Indian ; that power under the entry could be exercised for taxing only those transactions in which by mutual assent between parties competent to contract property in goods was transferred absolutely from one person to another, in consideration of price paid or promised, and the transactions in which there was no mutual assent as a result of negotiations express or implied are not sales within the meaning of the and therefore not sales within the meaning of the Bihar Sales Tax Act. Counsel alternatively submits that even if the despatches resulted in sales, as the sales did not take place in Bihar, the same were not liable to be taxed under the Bihar Sales Tax Act. In popular parlance 'sale ' means transfer of property from one person to another in consideration of price paid or promised or other valuable consideration. But that is not the meaning of 'sale ' in the . Section 4 of the provides by its first sub section that a contract of sale of goods is a contract where the seller agrees to transfer the property in goods to the buyer for a price. "Price" by cl. (10) of section 2 meanS the money consideration for sale goods, and " 'where Under a contract of sale property in the goods is transferred from the seller to the buyer, 467 the contract is called a sale, but where the transfer of the property in the goods is to take place at a future time or subject to some condition thereafter to be fulled, the contract is called an agreement to sell" (sub section (3) section 4). It is manifest that under the Sales of Goods Act a transaction is called sale only where for money consideration property in goods is transferred under a contract of sale. Section 4 of the was borrowed almost verbatim from section 1 of the English 56 & 57 Vict. c. 71. As observed by Benjamin in the 8th Edn. of his work on 'sale ', "to constitute a valid sale there must be a concurrence of the following elements viz. (1) Parties competent to contract; (2) mutual assent; (3) a thing, the absolute or general property in which is transferred from the seller to the buyer; and (4) a price in money paid or promised". The Provincial Legislature by Entry 43 List II of the Seventh Schedule of the Government of India Act 1935 was invested with power to legislate in respect of " ' Taxes on sale of goods". The expression " 'sale of goods" was not defined in the Government of India Act, but it is now settled law that the expression has to be understood in the sense in which it is used in the . In the State of Madras vs Gannon Dunkerley & Co. (1) this Court in considering whether section 2 (1) Explanation I (i), of the Madras General Sales Tax Act IX of 1939 as amended by the Madras General Sales Tax Amendment Act XXV of 1947 was intra vires the Provincial Legislature, has decided that the expression 'sale of goods ' in entry 48, List 11, is used not in the Popular but in the restricted sense of the Sale of Goods Act, 1931. The primary question which fell to be determined in that case was whether in a "building contract which was one, entire and indivisible" there was sale of goods of the building materials used in the execution, liable to be taxed under the Madras General Sales Tax Act (1) ; 468 which by section 2 (c) defined "goods ' as meaning all kinds of movable property (except certain kinds which arc not material in this case) and included all materials, commodities and articles including those to be used in the construction, fitting out, improvement or repair of immovable property, and by section 2 (h) defined the expression "sale ' as meaning every transfer of property in goods by one person to another in the course of trade or business for cash or for deferred payment or other valuable consideration and includes also a transfer of property in goods involved in the execution of a works contract. Power of the Provincial Legislature of Madras to legislate in respect of a levy of tax on the value of goods used in the execution of a works contract was challenged by a firm of building contractors, and this Court held that the power under Entry 48, List 11, Seventh Schedule, did not include power to legislate for levying tax on the value of goods used " 'in the course of a building contract which was one, entire and indivisible". The Court held that the expression " 'sale of goods" in Entry 48 List II was used not in the popular sense but in the strictly limited sense in which it was defined in the Sale of Goods Act and that the Madras Provincial Legislature had no power to legislate under the power derived under ]Entry 48 in List II for taxing transactions other than those of sales strictly so called under the Sale of Goods Act. It was observed "the expression " sale of goods ' in Entry 48 is a nomen juris, its essential ingredients being an agreement to sell movables for a price and property passing therein pursuant to that agreement. In a building contract which is, as in the present case, one, entire and indivisible and that is its norm, there is no sale of goods, and it is not within the competence of the Provincial Legislature under Entry 48 to impose a tax on the supply of the materials used in such a contract treating it as a sale. " In Gannon Dunkerley & Company 's case (1) the Court was (1) , 469 concerned to adjudicate upon the validity of the provisions enacted in acts of Provincial Legislatures imposing liability to pay sales tax on the value of goods used in the execution of building contracts, and the judgment of the Court proceeded on the ground that power conferred by Entry 48 List II was restricted to enacting legislation imposing tax liability in respect of sale of goods as understood in the Sale of Goods Act, 1.930, and that the Provincial Legislature under the Government of India Act, 1935 had no power to tax a transaction which was not a sale of goods, as understood in the Sale of Goods Act. The ratio decidendi of that decision must govern this case. According to S.4 of the Sale of Goods Act to constitute a sale of goods, property in goods must be transferred from the the seller to the buyer under ;a contract of sale. A contract of sale between the parties is therefore a pre requisite to a sale. The transactions of despatches of sugar by the assessees pursuant to the directions of the Controller were not the result of any such contract of sale. It is common ground that the Province of Madras intimated its requirements of sugar to the Controller, and the Controller called upon the manufacturing units to supply the whole or part of the requirement to the Province. In calling upon the manufacturing units to supply sugar, the Controller did not act as an agent of the State to purchase goods : he acted in exercise of his statutory authority. There was manifestly no offer to purchase sugar by the Pro vince, and no acceptance of any offer by the manufacturer. The manufacturer was under the control Order left no volition : he could not decline to carry out the order; if he did so lie was liable to be punished for breach of the order and his goods were liable to be forfeited. The Government of the Province and the manufacturer had no opportunity to negotiate, and sugar was despatched pursuant to the direction of the Controller and not in acceptance of any offer by the Government. 470 The High Court observed "as soon as an application for allotment is made, there is an implication of an offer to purchase the quantity of sugar at the price fixed by the Controller from the producer to whom the allotment order is to be made by the Controller. It is also clear that if the allotment order is communicated by the Controller to the assessee and the latter appropriates the sugar ' in accordance with the allotment order and in accordance with the despatch instructions of the competent officer appointed by the Madras Government, there is in the eye of law an acceptance of the offer by the assessee and a contract is immediately brought into existence between the parties". We are with respect unable to hold that this view is correct. The Provincial Government of Madras gave intimation of its requirements of sugar to the Controller and applied for allotment of sugar : thereby the Government was not making any offer to purchase sugar. Evidently the offer could not be made to the Controller because the Controller was not a manufacturer of sugar or his agent. The communication of the allotment order to the assessees was again not of any offer made by the State which it was open to the asscssecs to accept or decline. Mere compliance with the dispatch instructions issued by the Controller, which in law the assessees could not decline to carry out, did not amount to acceptance of an offer. A contract of sale postulates exercise of volition on the part of the contracting parties. and there was in Complying With the orders passed by the Controller no such exercise of volition by the assessees. By the Indian Contract Act 9 of 1872 a proposal or an offer is defined as signification by one person to another of his willingness to do or to abstain from doing anything, with a view to obtaining the assent of that other to such act or abstinence. When the person to whom the proposal is made or signified assents thereto, the proposal is said to be accepted. The person making the proposal is called the 471 promisor and the person accepting the. proposal is called the promisee, and every promise or every set of promises, forming the consideration for each other is an agreement. These provisions of the Contract Act are by section 2 (15) of the Sale of Goods Act, incorporated therein. There was on the part of the Province of Madras no signification to the assessees of their willingness to do or to abstain from doing anything, with a view to obtaining the assent of the assessees to such act or abstinence, and the Controller did not invite any signification of assent of the assesses to the intimation received by them. He did not negotiate a sale of sugar : he in exercise of his statutory authority, ordered the assesses to supply sugar to the Government of Madras. We are unable to hold that from the intimation of order of the Controller, and compliance therewith by the assessees any sale of goods resulted in favour of the State of Madras. Mr. Varma appearing for the State of Bihar contended that even if there was no offer and no acceptance when intimation was sent by the Government of Madras to the Controller, and the Controller directed the assessees to deliver specified quantities of sugar, still by the conduct of the assessees in despatching sugar to Madras in pursuance of the directions of the Controller and acceptance of price by them, a contract of sale resulted. But the action on the part of the assessees in despatching the goods. was not voluntary : they were compelled to send the goods. They could not be deemed by despatching sugar to have made any offer to supply goods and in the absence of any offer, no contract resulted by the acceptance of goods by the Provincial Government. To infer a contract from the compulsory delivery of sugar and acceptance thereof would be to ignore the true position of the parties, and the circumstances in which goods were delivered. Mr. Varma contended that in any event the 472 Legislature had by the definition included in the expression "sale of ' goods ' all transfers of property in goods for consideration and the transactions which are sought to be taxed by the State of Bihar fell within that definition. Counsel submitted that a literal meaning should be given to the words of the Act without any pre disposition as to what the expression 'sale ' means under the Sale of Goods Act. But if the Bihar Legislature had under the Government of India Act, 1935 no power to legislate in respect of taxation of Transactions other than those of sale of goods as understood in the Sale of Goods Act, a transaction to be liable to pay sales tax, had to conform to the requirements of the . Attributing a literal meaning to the words used would amount to imputing to the Legislature an intention deliberately to transgress the restrictions imposed by the Constitution Act upon the Provincial Legislative authority. It is a recognised rule of interpretation of statutes that the expressions used therein should ordinarily be understood in a sense in which they best harmonise with the object of the statute, and which effectuate the object of the Legislature. If an expression is susceptible of a narrow or technical meaning, as well as a popular meaning, the Court would be justified in assuming that the Legislature used the expression in the sense which would carry out its object and reject that which renders the exercise of its power invalid. If the narrow and technical concept of sale is discarded and it be assumed that the Legislature sought to use the expression sale in a wide sense as including transactions in which property was transferred for consideration from one person to another without any previous contract of sale, it would be attributing to the Legislature an intention to enact legislation beyond its competence. In interpreting a statute the Court cannot ignore its aim and object. It is manifest that the Bihar Legislature intended to erect machinery within the frame work of the Act for 473 levying sales tax on transactions of sale and the power of the Legislature being restricted to imposing tax on sales in the limited sense, it could not be presumed to have deliberately legislated outside its competence. In the definition of the expression "sale ' in section 2 (g) of the Bihar Sales Tax Act it must be regarded as implicit that the transaction was to have all the elements which constitute a sale within the meaning of the . Use of the expression "including a transfer of property in goods involved in the execution of the contract" in the first paragraph of the definition also does not justify the inference that the transfers of property in goods under the earlier part of the definition were not to be the result of a contract of sale, If any such intention was attributed to the Legislature, the legislation may, for the reasons already stated, be beyond the competence of the Legislature. The non obstante clause in the second proviso is in truth in the nature of an explanation to the charging section : it merely fixes the situs of sale. If there is no sale the second proviso will have no application. Mr. Varma finally contended that in the Tata Iron & Steel Co. Ltd. vs The State of Bihar(1) by implication it was decided that the definition of 'sale ' in section 2(g) of the Bihar Sales Tax Act included transactions in which good , were supplied in compliance with directions which left no volition to the manufacturers, But this argument is not borne out by what was actually decided in that case. The Tata Iron & Steel Company Ltd., which carried on the business of manufacturing iron and steel in its factory at Jamshedpur in Bihar was assessed to sales tax under the Bihar Sales Tax Act, 1947. Tile company sent its goods from its factory to different Provinces and Indian States by rail, the railway receipts being obtained by the company in its own name as consignor and consignee. The Branch Offices of the company or its Bankers at the destination handed (1) ; 474 over the railway receipts to the purchasers against payment of the price. The Sales Tax Officer of the State of Bihar included in the gross turnover of the Company the value of goods manufactured in Bihar but delivered and consumed outside the State of Bihar in the manner already stated. The contention of the company that the goods delivered were not liable to be included in the taxable turnover was negatived by the taxing authorities and the High Court of Patna. The matter was then carried in appeal to this Court, and it was held that the provisions of section 4(1) read with section 2.(g) proviso 2 of the Bihar Sales Tax Act was within the legislative competence of the Province of Bihar. It was pointed out that the second proviso to the definition of sale in section 2(g) of the Act did not extend the meaning of sale so as to include therein a contract of sale: what it actually did was to lay down certain circumstances in which a sale, although completed elsewhere, was to be deemed to have taken place in Bihar. Those circumstances did not constitute a sale, but only located the situts of such sale. The Court in that case was not called upon to consider whether a transaction to be a sale must be preceded by a contract of sale : the Court was merely considering the vires of the second proviso to section 2(g) of the Bihar Sales Tax Act. Das, C. J., in delivering the judgment of the majority of the Court observed "the basis of liability under section 4(1) remained as before, namely, to pay tax on 'sale '. The fact of the goods being in Bihar at the time of the contract of sale or the production or manufacture of goods in Bihar did not by itself constitute a 'sale ' and did not by itself attract the tax. The taxable event still remained the 'sale ' resulting in the transfer of ownership in the thing sold from the seller to the buyer. No tax liability actually accrued until there was a concluded sale in the sense of transfer of title. It was only when the property passed and the 'sale ' took place that the liability for paying the sales tax under the 1947 Act arose. There 475 was no enlargement of the meaning of 'sale ' but the proviso only raised a fiction on the strength of the facts mentioned therein and deemed the sale ' to have taken place in Bihar. Those facts did not by themselves constitute a 'sale ' but those facts were used for locating the situs of the sale in Bihar. It follows, therefore, that the provisions of section 4(1) read with section 2(g), second proviso, were well within the legislative competency of the Legislature of the Province of Bihar". In Tata Iron & Steel Company Ltd 's case (1),the question as to the true content of the expression "sale ' in the Bihar Sales 'Fax Act did not fall to be determined, and the principle of the case can have no application in deciding the present case. It would be fruitless to enter upon a detailed discussion of the two decisions of the House of Lords cited at the Bar : The Commissioner of In lan Revenue vs New Castle Breweries Ltd (2 ) and Kirkness (Inspector of Taxes) vs John Hudson & Company Ltd. (3). It may be sufficient to observe that in the first of these cases goods belonging to the assessee were taken over by order of the Admiralty, acting under the relevant regulations, and in compliance with the order of a Compensation Court, the assessee was paid an amount exceeding pound 5000/ being the difference between the amount originally paid and the amount settled as due under the order of the Compensation Court. House of Lords held that the transaction under which the Administrative took over the goods was a sale in the business, and although no doubt it affected the circulating capital of the assessee it was none the less proper to be brought into the profit and loss account arising from the assessee 's trade for the purpose of computation of liability to pay Excess Profits duty. In Kirkness (Inspector of Taxes) vs John Hudson 's case (3) it was held by the House of Lords that the vesting of a company 's railway wagons in the Transport Commission under section 29 of the, Transport Act, 1947, with compensation fixed in (1) ( ; (2) [1927) (3) 476 the form of transport stock under the relevant sections of that Act did not constitute a sale for the purpose of section 17 of the Income tax Act, 1945 so as to render the company liable to a balancing charge under that section. The cases turned upon the meaning of or sale ' for the purposes of the Excess Profits Tax legislation and the Income tax Act, 1945 (8 & 9 Geo. 6, c. 32) and observations made therein have little relevance in determining the limits of the legislative power of the Provincial legislature under the Government of India Act, 1935, and the interpretation of statutes enacted in exercise of that power. The second contention raised by counsel for the assessees requires no elaborate consideration. If it be assumed that the intimation of the requirement by the State of Madras to the Controller amounted to an offer, delivery of sugar by the assessee pursuant to such an order would constitute a sale within the meaning of section 2(g) of the Bihar Sales Tax Act, by the second proviso which has been held intra vires by this Court in Tata. Iron & Steel Company Ltd. 's case (1) the assessees would be liable to pay sales tax, for it is not in dispute that at the time when the orders were received from the Controller the goods were within the State of Bihar and the condition prescribed by section 2(g) second proviso for locating the situs of the sale is fulfilled. But the intimation by the Province of Madras of its requirements did not amount to an offer, and the supply of goods pursuant thereto could not amount to a sale; consequently liability to pay sales tax under the Bihar Sales Tax Act on the amounts received by the assessees from the Government of Madras for sugar supplied did not arise. HIDAYATULLAH J. I regret my inability to agree that Gannon Dunkerley 's case (2) can be (1) ; (2) ; 477 extended to cover the facts here. I would confirm the decision of the High Court and dismiss these appeals for the reasons proceed to give. These reasons are applicable to all the appeals in today 's group. This case is concerned with the levy of sales tax under the Bihar Sales Tax Act 1944 (VI of 1944) for a period of three months April 1, 1947, to June 30,. 1947, and another of the nine months following, under the Bihar Sales Tax Act, 1947 (XIX of 1947). The assessee companies in all these appeals run sugar mills and are admittedly dealers under these Acts and the commodity on the sale of which tax was sought to be levied was sugar. The disputed tax relates to supplies of sugar made by the assessee companies under the orders of the Sugar Controller of India to certain Provincial Governments in the relevant periods. There is only one contention of the assessee companies in these appeals and it is that in the circumstances of the case there was no "sale ' of sugar, regard being had to the decision of this Court in Gannon Dunkerley 's case (1) and the amounts received from the Provincial Governments should not be included in the taxable turnover. I have already mentioned that the assessment period in this case is one whole year April 1., 1947 to March 31, 1948, and that it is divided into two parts of three months and nine months respectively governed by the Acts. There was however no difference in the mode of dealing in this case in the two periods. In the other cases the assessment periods were different but there was no other difference. The transactions were stereotyped being under the Sugar and Sugar Products Order,, 1946, which was passed by the Government of India on February 18. 1946, in the exercise of powers conferred by sub rule (2) of Rule 81 of the Defence of India Rules. The mode, which has been accepted by the (1) ; 478 parties, as correctly summarised was as follows: "The admitted course of dealing between the parties was that the Governments of various consuming States used to intimate to the Sugar Controller of India from time to time their requirement of Sugar, and similarly. the factory owners used to send to the Sugar Controller of India statements of stock of sugar held by them. On a consideration of the requisitions received from the various State Governments and also the statements of stock received from the various factories, the Sugar Controller used to make allotments. The allotment order was addressed by the Sugar Controller to the factory owner, directing him to supply sugar to the State Government in question in accordance with the despatch instructions received from the competent office of the State Government. A copy of the allotment order was simultaneously sent to the State Government concerned, on receipt of which the competent authority of the State Government sent to the factory concerned detailed instructions about the destinations to which the sugar was to be despatched as also the quantities of sugar to be despatched to each place. In the case of the Madras Government it is admitted that it also laid down the procedure of payment, and the direction was that the draft should be sent to the State Bank and it should be drawn on Party and Company or any other party which had been appointed as stockist importer on behalf of the Madras Government. It should be added that in this, case the assessee was called upon to produce nessary documents relating to the transactions in question, but the assessee (lid not produce the documents. The assessee, however, admitted 479 that general arrangement between the parties was the one set out in this paragraph." Two typical documents in this connection may be read and they are the permit by the Controller and the despatch order sent by the Provincial Government. They were not produced in this case but can be seen in the record of C. A. No. 633 of 1961 at pages 15, 16. First the permit : No. 78 p (1)/46/7132 Office of the Sugar Controller for India GOVERNMENT OF INDIA Department of Food. Dated Simla, the 12 11 56 ORDER In exercise of the power conferred by clause 7 of the Sugar and Sugar Products Control Order, 1943. 1.Shashi Kiran, Assistant Sugar Controller for India, having been duly authorised in this regard under clause 2 of the said order by the Sugar Controller for India hereby direct you to supply 1200 tons/maunds of Sugar by 31 1 47 to Bengal in accordance with the despatching instructions of the Director of Civil Supplies Bengal, Calcutta. 2.A permit No. 1988 to enable you to despatch sugar in compliance with this order is attached. (Sd.) Shashi Kiran, Asstt. Sugar Controller for India. 480 To the Motilal Padampat Sugar Mills Co. Ltd., Majhawlia, District Champaran. And now the despatch order : EXPRESS STATE MOTIPAT MAJHOWALIA UNDERSTAND SUGAR CONTROLLER ISSUED PERMIT FOR 600 TONS SUGAR THIS PROVINCE FULLSTOP DESPATCH IMMEDIATELY 300 TONS MANGALORE DRAFTS ON ME THROUGH CENTRAL BANK CALICUT 300 TONS COIMBATORE DRAFTS OF ME THROUGH CENTRAL BANK MADRAS FULLSTOP SEND RAIL RECEIPTS FOR EACH WAGON LOAD OR 100 BAGS LOAD WAGONS FULL CAPACITY FULLSTOP BOOK AT RAILWAY RISK IF NO SPECIAL RATES IN FORCE. PRICES T.R.L. Narsinmhan, Assistant Secretary. Post copy in confirmation to Motilal Padampat Sugar Mills Ltd. Majhowlia, Cliamparan District. Forwarded/By Order, (Sd.) Illegible, Supdt. Board of Revenue, (Civil Supplies) Chepauk, Madras. Kitta 10 5 47. 481 These documents between them disclose that free trading in sugar was not possible. All Provinces intimated their requirements to the Controller who was kept informed by the Mills about the supplies available. The price was controlled and the Controller directed the supply of a certain quantity from a particular Mill to an indenting Province. After giving his permit and sending a copy of this permit to each party, the Controller passed out of the. Picture and the Mill supplying aid the Province receiving the supply (I am avoiding the words seller & buyer since that is the point to decide) arranged the rest of the affair including the issue of despatch instructions regarding the quantity and the quality to be sent to different areas and the payment of price. The question is whether there was a 'sale ' in the circumstances and the price should be included in the turnover for purposes of Sales tax under the Bihar Sales Tax Act for the time being in force. The definition of sale in the two Bihar Acts at all material times was : "2(g) " 'sale" means, with all its grammatical variations and cognate expressions, and transfer of property in goods for cash or deferred payment or other valuable consideration, including a transfer of property in goods involved in the execution of contract but does not include a mortgage, hypothecation, charge or pledge; Provided that a transfer of goods on hire purchase other instalment system of payment shall, notwithstanding the fact that the seller retains a title to any goods as security for payment of the price, be deemed to be a sale : Provided further that notwithstanding anything to the contrary in the Indian Sales of Goods Act, 1930 the sale of any good which 482 are actually in, Bihar at the time when, in respect thereof, the contract of sale as defined in section 4 of that Act is made, shall wherever the said contract of sale is made, be deemed for the purposes of this Act to have taken place in Bihar." In the present case, we arc required only to decide whether, regard being had to the decisions of this Court expounding the ambit of entry No. 48 of ,List II Seventh Schedule of the Government of India Act 1936, the tax could not be demanded as there was no sale of sugar at all. The entry in question is "48. Taxes on the sale of goods and on advertisement." "Goods" was defined in section 311 as follows "Goods" include all materials, commodities and articles. " The white Paper had the entry "taxes on the sale of commodities and on the turnover". It was altered to " 'taxes on the sale of goods" and as pointed out by Gwyer, C. J., In re The Central Province & Berar Act No . XIV of 1938, (1) it is idle to speculate what the reason was. The expression " 'sale of commodities" would not have taken the mind to the as the redrafted entry does. There is no provision in the whole of the Government of India Act 1935 which expressly seeks to limit the meaning of the plain words "taxes on the sale of goods" which include all materials, commodities and articles. Such a limitation could of course arise from a competing entry in List No. 1. Otherwise the entry conferred powers as large and plenary as those of any sovereign legislature. The ambit of (1) 483 the entry, prior to the inauguration of the Constitution, was the subject of three leading decisions by the Federal Court, in one of which there was also an appeal to the Privy Council. The first case was In re The Central Provinces and Berar Act No. XIV of 1938, (1) a reference under section 213 of the Constituting of 1936. In that case the imposition of sales tax on retail sales of motor spirit and lubricants was questioned on the ground that though described as tax on the sale of motor spirit etc. , the tax was, in effect, a duty of excise under entry 45 of List I and there being an overlap between the two entries that in List I must prevail. Legislative practice in respect of Excise Duty was invoked but as sales tax legislation did not exist in India before 1938 there was no legislative practice to consider on the meaning of the express "tax on sale of goods". The Government of India claimed that the entry 48 List II must be limited to a direct tax like a turnover tax which is not identifiable in the price. Taxes on retail sales, it was argued,, being indirect and identifiable in the price, were more of the nature of an excise duty and the pith and substance of the Act being this the impugned Act was bad. The main argument on behalf of the provinces, which was accepted, was that the Constitution Act must not be construed in any narrow and pedantic sense. Gwyer, C.J., expressed himself forcefully on this point in the following words: , " I conceive that a broad and liberal spirit should inspire those whose duty it is to interpret it. . . ." The essence of the argument on the part of the Provinces was that if only a turnover tax (which was a species of sales tax) was meant why was a wider expression used in the entry ? It was, therefore, contended that the entry should not be truncated and the (1) 484 plain words of the entry should be given their normal and ordinary meaning. The contention of the Provinces prevailed. Though the learned judges pointed out that the words were "taxes on the sale of goods" and not "sales tax" simpliciter, thereby excluding taxes on services which in some systems are regarded also as sales tax, the words were wide enough to include more than a mere turnover tax. It was held that the power included a power to levy a tax or duty on the retail sale of goods and this did not impinge upon the power of the Legislative Assembly to make laws "with respect to" duties of excise. In the next case the Province of Madras vs Boddu Paidanna & Sons (1). Government of India reversed its stand and contended that the power of the Provincial Legislatures did not extend to levying sales tax on first sales but only after the goods were released by the producer or manufacturer. The argument of the Government of India was not accepted and it was declared that the power of a Provin cial Legislature to levy a tax on the sale of goods extended to sales of every kind and at all stages between a producer or manufacturer and a consumer. The Central Government had filed a suit and the third case before the Federal Court was an appeal from that decision. The Federal Court followed its own decision in Boddu Paidanna 's Case. (1) The Central Government appealed to the judicial Committee and the judgment is to be found in Governor General in Council vs Province of Madras. (2) The Judicial Committee examined in detail the provisions of the Madras General Sales Tax Act 1938 to emphasize its essential character and observed that "Its real nature, its "pith and substance," is that it imposes a tax on the sale of goods. No other succinct description could be given of it (1) (2) P.C. 485 except that it is a "tax on the sale of 'goods. ' It is, in fact, a tax which according to the ordinary canons of interpretation appears to fall precisely within entry No. 48 of the Provincial Legislative List." In repelling the contention that first sales were not included in the entry their Lordships observed that it did violence to the plain languages and implied the addition of the words "other than first sale of goods manufactured or produced in India. " The judicial Committee expressed itself in complete agreement with the two decisions of the Federal Court. The ambit of the entry was thus settled to be that it included all "sales of goods ' though not 'services ' from the first sale by the producer or manufacturer to the last sale to the consumer and that the tax could be collected on wholesales or retail sales as well as on the turnover. It was however pointed out that the expressions "sales tax" and "taxes on the sale of goods" were not the same, the first including sales other than those of goods. No definition of what is " 'sale" was attempted in these cases either with or without reference to the . Thus it was firmly established that the entry ""taxes on the sale of goods" authorised the making of laws for the imposition of tax on all transactions of sale of goods from the manufacturer or producer to consumer. It also could be imposed on the turnover which meant the sum total of prices for which taxable goods were sold in a particular period. The definition of "goods" was enlarged to include "commodi ties, materials and articles. " The word "commodities" indicated "articles of trade", the word ire materials" indicated "matter from which things are made", (the use of the word being the same as in the expression 'raw materials ') and by "articles" was meant "any particular thing. " in this way it was 486 clearly indicated that articles sold by way of a trade or otherwise were equally within the expression (goods ' and also finished articles and raw materials from which finished articles are made. The entry was framed in 1935 in the form with which we are concerned. Previously it read in the white paper "taxes on sale of commodities and turnover. " The reframed entry was wider in one respect (it included materials and articles in the sense explained) and apparently narrower in another (by omitting turnover ') than the original entry. There was no occasion to expound the meaning of 'goods ' in the two Federal Court decisions but the decisions laid down that 'turnover ' was included even though not expressly mentioned. I have already said above that prior to 1938 a tax on the sale of goods was not imposed in India. It is claimed that in ancient times sales tax was levied in India but we do not have to delve into these matters. The tax, as it is known today, is of comparatively modem growth though economists have traced it to Ptolemies, Greeks and Romans. Findlay Shirras and other writers give us the history of the tax. It was imposed in a recognisable form in Spain in 1342 and was known as the skabala. This notorious tax continued for five hundred years. In France it was also imposed in the fourteenth century but was soon given up. We are not con cerned with these ancient progenitors of the modem tax. They could not have influenced the selection of the tax or its form. The modem tax was the result of the First World War. Germany imposed in 1916 a turnover tax called 'die Umatzsteuer ' and that is the form in which the tax is collected there. France followed a year later but with a transaction tax which was known as 'L 'impot sur le chiffre d 'affaires '. Soon other countries followed as it was almost as productive as Customs and income tax. 487 By the time the Government of India Act 1935 was passed, no less than thirty countries had imposed this tax in different forms. India, however, was not one of them. The period in India following the First World War opened with the Government of India Act with its Devolution Rules and the allocation of taxes by ', the Scheduled tax Rules, to the Provinces framed in 1920. The latter Rules contained only octroi and taxes on markets and trades, professions and callings which resembled very distantly, the modem sales tax. , Indeed, sales tax was first visualized in the Report, of the Taxation Enquiry Committee 1924 25) but only as a modification of the octroi through the intermediate steps of taxing markets and slaughterhouses. It was hoped that price competition would stop inclusion of the tax in the price. It would have been a vain attempt to convert an indirect tax into a direct one. The Committee visulised it as a composition tax from traders but it was realised that the 'tax would soon get converted into a tax, on sales of goods, or, of services like those of a doctor or goldsmith and that it would be difficult to separate services from goods in case where the two were combined. It was also recognised that turnover taxes imposed on persons in respect of raw materials and finished goods tended to be cumulative, but taxes imposed at one point did not have that vicious tendency: The difficulty of entrepot trade in octroi, where goods bore the tax whether or not consumed, sold or used was avoided because the tax under retail sales tax scheme was payable only when the goods were actually sold and being ad valorem bore lightly on cheap goods. The suggestions were (1) A turnover tax on retail merchants; (2) registration of such dealers; (3) collection of taxes quarterly; 488 (4) licensing of and charging of fees from petty traders and hawkers whose. turnovers were uncertain as no accounts were maintained by them. Sales tax particularly that imposed on goods assumed by 1935 different forms in different countries. Its incidence was sometimes the turnover, sometimes wholesale and sometimes the retail sale. In Canada and Australia it was a producers ' or manufacturers ' tax almost of the nature of excise. In France the excise and sales tax were interchangeable, the former being a replacement tax on the turnover of the manufacturer. In Germany the tax included both goods and services, in France services were excluded unless there was a commercial element ' In England, it took the form of a purchase tax. France also devised a simpler method by imposing a forfait a lump sum which represented, so to speak, a quit tax. In Belgium it was collected by stamps from both the seller and the buyer according to their respective invoices. In America the position was unique. It can be stated from a passage from Beuhler 's Public Finance (3rd Edn.) page 410 " 'A sale tax is an excise in so far as it is imposed upon domestic transaction of commodities, and it may also have some of the aspects of customs duties because national sales taxes commonly fall upon importing and sometimes upon expor ting. The popular name for American excises is sales taxes. Not all excises are imposed upon sales or the privilege of selling, however, for they may be placed upon the purchase or use of commodities, including services. " The varieties this elastic tax took in that country is illustrated from the following passage from the same author " 'Here, again, there is no standard usage, for selected sales taxes are often called sales taxes, 489 limited sales taxes, selective sales taxes, and special sales taxes, while general sales taxes may be called sales taxes, turnover taxes, manufacturers ' sales taxes, retails sales taxes and gross receipts or gross income taxes. " It was in the background of these laws of foreign countries and the recommendations of the Taxation Inquiry Committee that the entry in the Government of India Act 1935 was framed. Taxes on the sale of goods being a kind of commodity taxes had to be demarcated from other commodity taxes like excise, octroi, terminal tax, market dues etc. The difficulty was solved by viewing the goods as the subject of taxation in different stages. These stages were production, movement sale and consumption. Taxes on production of goods which were excise proper were given to the centre with certain exceptions (Entry 45 list I and Entry 40 of list II), taxes on sale of goods were given to the Provinces (Entry 48 List II), while taxes on movement of goods were divided those carried by railway and air being allotted to the centre as terminal taxes (Entry 58 List 1) and those carried by inland waterways being allotted to the Provinces (Entry 52 List II). Taxes on the entry of goods in a local area for consumption, use or sale (octrois) were allotted to the Provinces (Entry 49 List II). This was the demacation of commodity taxes in addition to local taxes for local purposes. The two cases of the Federal Court to which detailed reference has been made above outlined the scope of competing entries relating to duties of excise and taxes on the sale of goods. It was pointed out that though there was an overlap the taxes were different. In the recent case of The Automobile Transport (Rajasthan) Ltd. vs The state of Rajasthan (1). I have given the history of the distribution of the heads of revenue on the eve of the Government of India Act 1935 and have there (1) [1963] 1 S.C.R. 491, 490 pointed out that the attempt was to give adequate resources to the Provinces ' to enable Provincial Governments to undertake nation building activities. It was there pointed out by me that experts at that time were in favour of alloting an elastic tax like sales tax to the Provinces as the main source of revenue and abolish altogether the category of deficit Provinces and the subventions. It was expected that land revenue would have to be reduced and income tax could not be increased beyond a point. The only tax that was new and fell imperceptibly upon consumers was the sales tax and it was allotted to the Provinces. It was expected to be a very productive tax, an expectation which has been amply fulfilled. In 1954 55, this tax alone yielded about 60 crores and it has been even more productive since. The inroads upon the tax were many but they were resisted in the pre Constitution period by the Provinces both in Courts and in administration. Indeed, appeals were made in cases before the Federal Court, not to cut down unduly the ambit of the natural words and Mr. justice jayakar mentioned them in his judgment with sympathy. I feel that what he said will bear repetition here: "A powerful appeal was made to us by the Advocates General of the Provinces that, consistently with its terminology, we should so interpret entry No.41 (List II) as to give it a content sufficiently extensive for the growing needs of the Provinces. It was argued that the provincial autonomy granted by the new scheme of government would be unmeaning and empty, unless it was fortified by adequate sources of revenue. Whatever value such an appeal may have in a judicial decision, I personally appreciate it, and I feel no doubt that the interpretation that I am placing on 491 entry No. 48 (list II) is sufficiently practical to leave an adequate source of revenue in the hands of the Provinces without making inroads on Central preserves. I may add here that the several authors I have been able to consult on this point agree in their opinion that, since the War, a tax on the sale of goods has proved to be both productive and practicable in many countries, under circumstances not very diffe rent from those prevailing in the Provinces of ,India. The yield naturally varies with the scope and rates of the tax, business conditions and administrative efficiency, but it is stated that the tax itself has become a major source of revenue in a number of countries, yielding more than the income tax in a few instances, and nearly as much as other sources of revenue in others. " In re The Central Provinces & Berar Act No. XIV of 1938 (1). The two cases of the Federal Court having established the area of operation of entry No. 48 List II in relation to the competing entry relating to excise, the Provinces attempted to extend the tax to cover all situations. This was done by incorporating definitions of 'sale ' which in some respects were inconsistent with the definition in the Indian . The Taxation Enquiry Commission (1953 54) gave in its report an analyses of how these definitions ran and I find it convenient to quote from the report (page 10, para 24 Vol. III) : "In Madras, Mysore, Travancore Cochin and Hyderabad, sale means transfer of property in the course of trade or business. By implecation, all other sales are excluded. Casual sales by individuals, sales of food by hotles attached educational institutions, sales of old furniture, for example, by firms not dealing (1)[1939] F.C.R. 19 at p. 119. 492 in furniture and so on are, therefore, not liable for the tax in these States. The States of Bengal and Delhi define sale as transfer of property in goods for money consideration, which accordingly excludes transfers for other consideration like exchange or barter. According to the Acts of certain States, the Sale is deemed to have taken place in the territory of the State, if at the time when the contract of sale or purchase was made, the goods were actually in those States. In certain States, the transfer of property in goods supplied in the execution of a contract is also included in the definition of sale. " The definitions led to a variety of decisions on the meaning of the word "sale" which were likely to bewilder the common man. The Taxation In Commission summed up the situation in the following words : ""The layman who asks : "What is a sale" would not have to go without an answer, he would find plenty of replies in the reported judgments of courts of law; and he would not be a layman if, piecing them together, he was able to say when, where and how a sale because a sale which a sales tax may tax. " From the earliest times the extension of the word "sale" was in three recognisable directions. Firstly, the definition by a fiction took in transactions of sale in which the goods were produced in the Provinces or were in the Province at the time the contract of sale took place, no matter where the contract could, in law, be said to have taken place. In other words, by a fiction incorporated in the definition of sale ' the situs of sale could be established in the Province. Secondly, forward transactions in which the passing of property was postponed to a future date, if at all it took place, were included in the definition of " 'sale". Thirdly, 493 materials in a works contract, where the bargain was for a finished thing, were treated as the subject matter of sale. Laws in which transactions of sale were sought to be taxed on the ground that goods were in the province or some part of the component elements of a contract of sale took place in the Province were generally upheld by the High Courts. In these cases the doctrine of nexus was extended to sales tax legislation following the analogy of the decision of the Privy Council in Wallace Brothers etc. & Co. vs Commissioner of Income tax, Bombay. (1) The cases recognised the sovereignty of Provincial Legislatures which were erected by the British Parliament in its own image and which within the jurisdiction conferred by a legislative entry enjoyed powers as large and ample as those of the British Parliament. It was generally held that in the Plenitude of that power it was open to the Provincial Legislatures to tax transactions of sale in which there was a sufficient nexus between the Province and the taxable event namely the sale, and that the Provincial law could by a function bring the whole transaction into the Province for purposes of tax. The Supreme Court also took substantially the same view in the State of Bombay vs The United Motors Ltd., (2); Bengal Immunity Co. Ltd. vs State of Bihar (3); Tata Iron and Steel Co. Ltd. vs State of Bihar (4) and Commissioner of Sales tax vs Husenali (5). The meaning of the world "sale ' in the Entry was laid down in several cases but I shall refer to only one of them. In Poppatlal vs State of Madras, (6) Venkatarama Ayyar, J., (Rajamannar, C. J. concurring) observed as follows : " 'The word "sale ' has both a legal and a popular sense. In the legal sense it imports (1) [1948] F.C.R. I P.C. (2) (1953] S.C.R. 1069. (3) (5) [1959] Supp. 2 S.C.R. 702. (4) ; (6) A.I.R. (1953) Mad. 494 passing of property in the goods. In its popular sense it signifies the transactionswhich results in the passing of property. To alawyer the legal sense would appear to be thecorrect one to be given to the word in ' the Sales Tax Act. That is the conception which is familiarised in the provisions of . If one leaves out of account sales tax legislation which is of comparatively recent origin, questions relating to sale of goods usually come up before the Courts only in connection with disputes between the sellers and purchasers. If the goods perish, on whom is the loss to fall? If the purchaser becomes insolvent before payment of price can the goods be claimed by the trustee in bankruptcy? For deciding these and similar questions it is necessary to determine at what point of time the property in goods passed to the purchaser. Sometimes when the point for determination is as to jurisdiction of Courts to entertain suits based on contract, it may be material to consider where property in the goods passed, that being part of the cause of action. These being the questions which are accus tomed to be debated in connection with sale of goods, it is natural that a lawyer should, as a matter of first impression approach the question of sale under the Sales Tax Act with the same concept of a sale. 'But if the matter is further considered it will be seen that considerations which arise under the Sales Tax Act are altogether different from those which arise under the . The object of the Sales Tax Act is to impose a tax on all sales and it is a tax imposed on the occasion of sale. . So far as the Government is concerned, it would be 495 immaterial at which point of time property in the goods actually passed from the seller to the buyer. Of course, there must be a completed sale before tax can be levied and there would be a completed sale when property passes. That is the scope of the definition of 'sale ' in section 2 (h). But when once there is a comp leted sale, the question when property passed in the goods would be a matter of no concern or consequence for purposes of the Sales Tax Act. The Government is interested only in collecting tax due in respect of the sale and the only fact about which it has to satisfy itself is whether the sale took place within the Province of Madras. In this context the popular meaning of the word is the more natural and there is good reason for adopting it. . Our conclusion accordingly is that the word 'sale ' in the Madras General Sales Tax Act must be understood in a popular sense and sales tax can be levied under the Act if the transaction substantially takes place within this Province,, notwithstanding that the property in the goods does not pass within the State. " Against the decision of the High Court of Madras an appeal was filed in this Court and the .judgment of this Court is reported in ; The appeal was allowed. On the question of territorial nexus this Court agreed with the Madras High Court but on the question of the meaning of the word "sale ' it expressed itself differently. In an earlier case (State of Travancore Cochin vs The Bombay Co. Ltd. (1)), this Court had reserved the question whether the word 'sale ' had the same meaning as in the law relating to the sale of goods or a wider meaning. In Poppatlal Shah 's case (2) the Supreme Court, referred to the decision of the Madras High Court that the word was used in a popular sense and without any expression of (1) ; (2) A.I.R. (1953) Mad. 496 disapproval held that there was no indication of the popular meaning of sale in the definition in the Madras General Sales Tax Act where unmistakably stress was laid 'on the clement of transfer of property in a sale and no other. ' The Bench held that, the presence of goods within the province at the time of the contract would have made the sale, if subsequently completed, a sale within the province by reason of the Explanation added by Act XXV of 1947 but as the Explanation was not in operation during the relevant period the assessment of sale tax was held to be illegal and unwarranted by the law as it then stood. It would appear from this that this Court took the view that the word 'sale ' in the entry "Taxes on the sale of goods" was used in a sense wider than that commonly accepted in the law relating to sale of goods, and the judgment of Venkatarama Ayyar, J., in the Madras High Court on this part was not questioned. Then came a decision of the Allahabad High Court from which an appeal was brought to this Court. The judgment of this Court is reported in the Sales Tax Officer, Pilibhit vs Messrs Budh Prakash Jai Prakash (1). The definition of the word " sale ' in the U.P. Sales Tax Act (XV of 1948) included 'forward contracts ', and this part of the definition was declared ultra vires entry 48 in List I of the Government of India Act 1935 and Explanation III to section 2 (h) of that Act which provided that forward contract " 'shall be deemed to have been completed on the date originally agreed upon for delivery and also section 3 B taxing turnover of dealers in respect of transactions of forward contracts were also declared ultra vires. Venkatarama Ayyar, J., speaking for this Court held that under the statute law of England and also of India there was a well recognised distinction between "sales" and " 'agreement to sell" though they were grouped under the generic name of "contract of sale. " The distinction, it was pointed out, lay in the transfer of property which, if simultaneous (1) ; 497 with agreement, made for a sale, but if in the future, operated only for an agreement to sell. In the latter case property could only pass as required by section 23 of the . Relying on the observation of Benjamin on Sale that "In order to constitute a sale there must be (1) An agreement to sell, by which alone the property does not pass; and (2) an actual sale, by which the property passes," the learned judge observed that though the definition of a contract of sale included a mere agreement to sell as well as an actual sale, there was a distinction between the two which led to different remedies and entry No. 48 when it spoke of "sale ' meant a completed sale involving transfer of title. The question whether the legislature in the exercise of its sovereign powers for purposes of taxing the event of sale could treat a sale as complete when there was a final agreement for purchase and sale even though price was not paid was apparently not mooted before this Court. Emphasis was laid on the definition of 'turnover ' as "the aggregate of the proceeds of sale by a dealer ' and it was pointed out that there could be no aggregate of prices unless the stage had been reached when the seller could recover the price under the contract, it being well settled in the law under the sale of goods that "an action for price is maintainable only when there is a sale involving transfer of the property in the goods to the purchaser" and that "where there is only an agreement to sell, then the remedy of the seller is to sue for damages for breach of contract and not for the price of the goods". The exceptional circumstance when under an agreement between the parties the price is payable on a day certain irrespective of delivery was considered not material for the purpose of the discussion. 498 In these cases by the application of the legislative practice relating to sale of goods the meaning of the expression "taxes on sale of goods" was determined and future contracts in which delivery and payment of price were deferred were held to be outside the purview of the Entry. There can hardly be any doubt that the entry is concerned with a completed sale because it is only a sale ' which can be taxed and not anything which is short of a sale and if a transaction which is sought to be taxed is merely in the region of an agreement de futuro there is no taxable event. The opinion that if there be a completed sale then the law dealing with taxation would be indifferent whether price was paid or not. expressed by Venkatarama Ayyar,J., in Poppatlal Shah 's case(1) of the Madras High Court was not accepted. Then came the third batch of cases. This batch was concerned with the taxing of materials which were supplied and used as part of building or repair operations, like bricks, timber and fittings in buildings girders, beams, rails etc. in bridges, spare parts in repair of motor vehicles etc. Two distinct views were held by the High Courts. The Madras High Court in sub nom Gannon Dunkerley & Co, vs State of Madras (2 ) held that such transactions did not involve a sale of goods and there could be no tax. A contrary view was expressed in Pandit Banarsi das vs State of Madhya Pradesh (s) where it was held that such contract , involved both labour as well as materials and in as much as materials were goods and property in them passed, it wag within the competence of the Provincial legislatures to separate the sale of goods from the composite and entire transactions and to tax them. It was pointed out that legislative practice in relation to the was not conclusive, and though it could not be doubted that a limited legislature could not create a power for itself which did not flow from an entry, the entry itself must be given the widest amplitude (1) A.I.R. (1953) Mad 91. (2) (1954) 5 S.T.C. 216. (3) (1955) 6 S.T.C. 93. 499 possible and its scope should not be cut down by anything not found in the Constitution Act 1935. It was, therefore, concluded : "The text being explicit, the text is conclusive alike in what it directs and what it prohibits. The necessary conditions for the impost, however, were that there should be a sale of goods. The selection of the taxable event and the severance of transactions of sale from other transactions in which they might be embedded was a necessary part of the power. The legislature could not say that a contract of service amounted to a sale of services (goods) but it could tax a genuine transaction of sale of goods whatever form it took. " x x x x x " 'If a building contract was not split up into its component parts, that is to say, material and labour, in legislative practice relating to the ordinary regulation of sale of goods there is no warrant for holding that it could not be, so split up even for purposes of taxation. " Some High Courts accepted the decision in Gannon Dunkerley 's case and some others the decision in Pandit Banarsidas 's case.(1), In all these cases there were appeals to this Court. All these appeals were heard together. The leading Judgment was delivered in Gannon Dunkerley 's case. The Madras view was accepted and the view expressed in Pandit Banarsidas 's case (1) was not accepted. It is contended for the appellants that this view of the Supreme Court controls the present case and it is, therefore, necessary to follow the reasoning in some detail. Before I do so I shall refer to a case of the House of Lords which influenced in no small measure the decision of this Court. 'that case is Kirkness vs John Hudson & Co. Ltd. (2). ( 1) (1955) 6 S.T.C. 93. (2) 500 Under section 29 of the Transport Act 1947 (10 & 11 Geo. C.49) the company 's railway wagons were vested on January 1, 1948, in the British Transport Commission. These wagons were already under requisition to the Ministry of Transport under the powers contained in Regulation 53 of the Defence (General) Regulations, 1939. Later the company received compensation. This amount was higher than the written down value. A balancing charge of pound, 29,021 was made under section 17 of the Income tax Act, 1945 (8 & 9 Geo. 6 C. 32) in an assessment under clause I of schedule D to the Income tax Act, 1918. The company appealed against the balancing charge and succeeded. Section 17 (1) of the Income tax Act 1945 (which in its purport resembled section 10 (2) (vii) of the Indian Income tax Act (1922) ordained that a balancing charge or allowance should be made if certain events occured, one such event being "(a) the machinery or plant is sold, whether still in use or not". The question was whether there was such a " sale ' justifying a balancing charge. It was contended for the Revenue that the word sale had a wider meaning than a contract and a conveyance of pro perty and that in its legal meaning it did not involve a contract at a but just the transfer of the property in or ownership of something from A to B for a money price, whether voluntary or affected by operation of law or compulsory. Passages were cited from Benjamin on sale (2nd Edn. p. 1), Halsbury 's Laws of England (2nd Edn. xxi p.5), Blackstones Commentaries 19th Edn. (1836) vol. If p. 446, and Chalmer 's Sale of Goods(11th Edn. p. 161) to show that a bargain only shows a mutual assent but it is the transfer of property which is the actual sale. Analogy of Lands Clauses Consolidation Act 1845, Stamp Act and other Acts was invoked and later Finance Acts were also called in aid where such compulsory transactions were described as sale or purchase. The House of ' Lords by a majority of 501 4 to 1 overruled these contentions. It was held that the vesting of the wagons in the Transport Commission by operation of section 29 of the Transport Act and the payment of compensation in the shape of transport stock did not constitute a sale and the analogy of compulsory acquisition of land did not apply, since the procedure there was entirely different. The word 'sale ' in section 17 of the Income tax Act 1945, it was held, imported a consensual relation and the meaning of the section being plain, it was not possible to go to later Acts to construe the section. I shall quote a few passages from the speeches to show how this conclusion was reached so as to be able to show how the same reasoning was used in connection with the building contracts. Viscount Simonds pointed out that what was to be construed were the two words 'is sold ' in section 17 (1) (a) of the Income tax Act 1945, that there was nothing in the Act to give a special colour or meaning to the words and that analogous transactions could net help to decide that should be the meaning. Agreeing with Singleton L. J. where he said "what would anyone accustomed to the use of the words 'sale ' or 'sold ' answer ? It seems to me that everyone must say "Hudsons did not sell," Viscount Simonds went on to say : "When Benjamin said in the passage quoted by Singleton and Birkett. JJ., from his wellknown book on sale, 2nd. ed.p.1, that by the common law a sale of personal property was usually termed a 'bargain and sale of goods ' he was by the use of the word 'bargain ' perhaps unconsciously emphasizing that the consensual relation which the word 'bargain ' imports is a necessary element in the concept. In this there is nothing new, the same principle is exhibited in the Roman Law, for the opening words of Title 23 of the third book of the 502 Institutes of Justinian "De Emptione et venditione" are "emptio et venditio contrahitur simulatque de pretio convenerit. . sometimes the contract for sale is itself the sale, as so often in the sale of goods : sometimes, and particularly in the sale of land, it is regarded as a part of the sale as, for example, when it is said by a modern writer that "the first step in the sale of land is the contract for sale (see Cheshire, Modern Real Property 7th Ed.p.631). But it is immaterial whether the contract is regarded as the sale itself. , or as a part of it, or a step in, the sale or as a prelude to the sale : there is for the present purpose no substance in any such distinction. The core of it is that the consensual relation is connoted by the simple word 'sale ' ". Lord Reid also emphasised the consensual relation in "sale ' as its vital element and observed : " 'Sale ' is, in my opinion, a nomen juris, it is the name of a particular consensual contract. The law with regard to sale of chattels or corporeal movables is now embodied in the Sale of Goods Act, 1893. By section I (1) "A contract of sale of Goods is a contract whereby the seller transfers or agrees to transfer the property in goods to the buyer for money consideration, called the price," and by section 1 (3) : "where under a contract of sale the property in the goods is transferred from the seller to the buyer the contract is called a sale; but where the transfer of the property in the goods is to take place at a future time or subject to some condition thereafter to be fulfilled the contract is called an agreement to sell." As a contract of sale, as distinct from an agreement . to sell and unlike other contracts, operates by itself and without delivery to transfer the property in the thing sold, the 503 word ' sale" connotes both a contract and a conveyance or transfer of property." Lord Reid agreed "that sale ' is a word which has become capable in an appropriate context of having a meaning wider than its ordinary and correct meaning. But it is only permissible to give to a word some meaning other than its ordinary meaning if the context so requires". Lord Tucker in agreeing observed : "I feel that the answers must be that the word is unambiguous and denotes a transfer of property in the chattel in question by one person to another for a price in money as the result of a contract express or implied. This is in substance the definition of "sale" given in the second edition of Benjamin on sale, but for present purposes it is sufficient to emphasize that natural assent is an essential element in the transaction. It is no doubt true that the contract or agreement to sell may precede the formal instrument or act of delivery under which the property passes but to describe a transfer of property in a chattel which takes place without the consent of transferor and transfer as a sale would seem to me a misuse of language. By express enactment or by necessary implication from the context any word may be given a meaning different from or wider than that which it ordinarily bears, and this may apply to the word "sale" where it appears in a context relating to the process of compulsory acquisition of land. . ." I do not find it necessary to quote from the minority view of Lord Morton of Henryton but he did point out that the word 'sale ' for 100 years was being used in connection with transactions by which the property of A had been transferred to B, on payment of compensation to the owner but without 504 the consent of the owner and said of the question posed by Singleton L. J. that if it were put to ten persons unconnected with the company, five of them might say "No, the wagons were taken over under the Transport Act" and the other five might say,""Yes", adding, possibly, " 'but it was a compulsory sale" or " 'because they had to do it". I have paused long over this case but only because the line of reasoning of this case has been closely followed in Gannon Dunkerley 's case. The decision of the Court of Appeal, later approved by the House of Lords, had also influenced in a large measure the decision of the Madras High Court earlier in the same case. In Gannon Dunkerley 's case Venkatarama Aiyar, J., posed the question thus : "The sole question for determination in this appeal is whether the provisions of the Madras General Sales Tax Act are ultra vires, in so far as they seek to impose a tax on the supply of materials in execution of works contract, treating it as a sale of goods by the contractor and the answer to it must depend on the meaning to be given to the words " 'sale of goods" in Entry 48 in List II of Sch. VII of the Government of India Act, 1935. " His Lordship accepted that building materials were 'goods ' in view of the definition and narrowed the inquiry to whether there was "a sale of those materials within the meaning of that word in Entry 48." The learned judge then pointed out that in interpreting a Constitution a liberal spirit should inspire courts and the widest amplitude must be given to the legislative entries and they should not be cut down by resort to legislative practice and that subjects of taxation in particular should be 505 taken in rerum natura irrespective of previous laws on the subject. The learned judge next asked the question in what sense the words 'sale of goods ' were used, "Whether popular or legal, and what its connotation is either in the one sense or the other." After noticing meanings of "sale" as given by divars authors, it was laid down that it meant transfer of property in a thing from one person to another for a money price. It was next pointed out that in popular sense a sale ",is said to take place when the bargain is settled between the parties, though property in the goods may not pass at that stage" and the Observations of Sankey, J., (later Viscount Sankey L. C. , in Nevile Reid & Co. Ltd. vs C. 1. R. (1) that the words 'sale ' in the British Finance Act, 1918, should not be construed in the light of the Sale of Goods Act, 1893 but in a commercial and business sense were rejected as obiter and opposed to the decisions of this Court in Poppatlal Shah 's Case and Budh Prakash 's Case. (3) where " 'executory agreements" were not held to be sales within the Entry. It was observed " 'We must accordingly hole that the expression "sale of goods ' in Entry 48 cannot be construed in its popular sense and that it must be interpreted in its legal sense. What its connotation in that sense is must now be ascertained. For a correct determination it is necessary to digress somewhat into the evolution of the law relating to sale of goods". The learned judge next referred to Roman Law of emptio venditio and pointed out that the consideration of sale could not be anything but only money or something valuable and that it was so recorded in the Institutes of Justinian Title XXIII and that Emptio Venditio was a consensual contract. The learned judge next referred to Benjamin on sale and observed that according to that learned author to Constitute a valid sale there must be a concurrence (1) (2) A.r. R. (3) ; 506 of the following elements vis: "(1)Parties competent to contract (2) mutual assent; (3) a thing, the absolute or general property in which is transferred from the seller to the buyer; and (4) a price in money paid or promised." (Vide 8th edn. p. 2) "In 1893 the Sale of Goods Act, 56 & 57 Vict. c. 71 codified the law on the subject. , and section 1 of the Act which embodied the rules of the common law runs as follows : 1 . (1) "A contract of sale of goods is a contract whereby the seller transfers or agrees to transfer the property in goods to the buyer for a money consideration, called the price. There may be a contract of sale between one part owner and another. (2)A contract of sale may be absolute or conditional. (3)Where under a contract of sale the property in the goods is transferred from the seller to the buyer the contract is called a sale; but where the transfer of the property in the goods is to take place at a future time or subject to some condition thereafter to be fulfilled the contract is called an agreement to sell. (4)An agreement to sell becomes a sale when the time elapses or the condition are fulfilled subject to which the property in the goods is to transferred. " It was then pointed out that in section 77 of the sale was defined as "the exchange of property for a price involving the 507 transfer of ownership of the thing sold from seller to buyer". It was then held that in view of the scheme of the sections 1 75 a bargain was an essential element and that even after the Indian Sale of Goods Act the position had not changed. It was next pointed out that ,Thus, if merely title to the goods passed but not as a result of any contract between the parties, express or implied, there is no sale. So also if the consideration for transfer was not money but other valuable consideration, it may then be exchange or barter but not sale. And if under the contract of sale, title to the goods has not passed, then there is an agreement to sell and not a completed sale". The State in the case urged four points to resist the conclusion that the words " 'sale of goods" in Entry 48 must be interpreted in the sense which they bear in the Indian . These contentions were examined seriatum and rejected and it was concluded thus : ""To sum up, the expression "sale of goods" in Entry48 is a nomen juris, its essential ingredients being an agreement to sell movables for a price and property passing therein pursuant to that agreement. In a building contract which is, as in the present case, one entire and indivisible and that is its norm, there is no sale of goods, and it is not within the competence of the Provincial Legislature under Entry 48 to impose a tax on the supply of the materials used in such a contract treating it as a sale . " In so far as building contracts were concerned two reasons why there could not be a sale of goods were mentioned. The first was that there was no agreement express or implied to sell 'goods '. It was observed : ". . . We are concerned here with a building contract, and in the case of such a 508 contract, the theory that it can be broken up into its component parts and as regards one of them it can be said that there is a sale must fail both on the grounds that there is no agreement to sell materials as such, and that property in them does not pass as movables. " The second reason was that the property in the building materials does not pass in the materials regarded as 'goods ' but as part of immovable property. It was observed : "When the work to be executed is, as in the present case, a house, the construction imbedded on the land becomes an accretion to it on the principle quicquid Plantatur solo, solo cedit and it vests in the other party not as a result of the contract but as the owner of the land. " I shall refer to two other cases which were decided with Gannon Dunkerley 's case. In Pandit Banarasi Das vs State of Madhya Pradesh (1) it was observed at page 437. "It should be made clear, however, in accordance with what we have already stated, that the prohibition against imposition of tax is only in respect of contracts which are single and indivisible and not of contracts which are a combination of distinct contracts for sale of materials and for work, and that nothing that we have said in this judgment shall bar the sales tax authorities from deciding whether a particular contract falls within one category or the other and imposing a tax on the agreement of sale of materials, where the contract belongs to the latter category." In Mithanlal vs State of Delhi (2) from a composite transaction involving work and materials, the (1) ; (2) 509 materials were held liable to sales tax under a law made by Parliament for a State. This was held to fall within the residuary powers of Parliament without any specific reference to any particular entry or entries in Legislative Lists. I shall now proceed to discuss the facts of the. present case in relation to the decisions on Entry 48 of List 11, Seventh Schedule of the Government of India Act 1935. Before considering the facts of this case in the light of the Sugar and Sugar Products Order 1946, I shall summarise what I have said so far. Sales tax is a tax which may be laid on goods or services. It assumes numerous shapes and forms. It is a modern tax being the product of the First World War. The concept of 'sale ' is of course much older and even the English Sale of Goods Act 1893 on which our own statute is based, was prior to the first imposition of tax in modern times. In India, the tax was first levied in 1937 under laws made under entry No. 48 which read " 'Taxes on the sale of goods". It was introduced as the main source of revenue to the Provinces under a scheme of Provincial Autonomy. Being a commodity tax it came into competition with other commodity taxes like excise but it was held that the entry comprised, wholesale, retail and turnover taxes from the stage of manufacture or production to consumption. Later textual interpretation based on statutes relating to sale of goods and books on the subject of sale, pointed out intrinsic limitations. One such limitation was that the term "sale ' was used in the limited sense it bears in that part of the law of contract which is now incorporated in the Sale of Goods Act. As a result of this fundamental con sideration forward contracts ' were held to be outside the scope of the Entry. The sale, it was held, had to be a completed sale with passing of property before the tax could become payable. A further limitation was pointed out in certain cases relating to building 510 contracts in which it was held that though property in materials passed, it did so without an agreement, express or implied, in that behalf, and only when the materials ceased to be goods and became immovable property. It was held that the supremacy of the Provincial Legislatures did not extend to levying a tax on sales in these circumstances by modifying the definition of sale. It was however held that if the parties agreed to divide a works contract into labour plus materials, the tax might be leviable. It was also held that a tax on building materials was leviable by the legislature having power to levy a tax not expressly mentioned. It was, however, held that if the taxing Province had the goods at the time of the contract or there was other substantial connection with the contract by reason of some element having taken place there, the Legislature could validly make a law which treated the whole transaction as having taken place in the Province. The argument in this case is that the tax can only be placed upon a transaction of sale which is the result of mutual assent between the buyer and seller and observations in Gannon Dunkerley 's case where stress is laid upon the consensual aspect of " sale ' are relied upon. It is true that consent makes a contract of sale because sale is one of the four consensual contracts recognised from early times. "Consensu fiunt obligationes in emptionibus venditionibus" and "Ideo autem isti modis Consensu dicimus obligationes contrahi". But consent may be express or implied and it cannot be said that unless the offer and acceptance are there in an elementary form there can be no taxable sale. The observations in Gannon Dvnkerley 's case were made in connection with materials utilised in the construction of buildings, roads, bridges etc. It was there pointed out that there must at least be an agreement between the parties, express or implied, in respect of some 'goods ' as 'goods ' and the levy of the tax on building 511 materials was struck down because "there is no agreement to sell materials as such, and that property in them does not pass as movables. " The commodity with which we are concerned is sugar and it is delivered as sugar. Thus one part of the reasoning from Gannon Dunkerley 's Case which rested on the passing of property in building materials as a part of realty does not apply. It is also quite clear that the tax is being demanded after the sugar has changed hands or expressing it in legal phrase when property in it has passed. It is argued that by reason of the Control Order there was no bargaining. It is pointed out that the control of sugar operated to fix ex factory price, to determine who should be the supplier and who should receive the supply, to fix the quantity, quality and the time of delivery. The question which we are deciding is not a question arising under the Sale of Goods Act but under a taxing entry in a Constitution. The entry described a source of revenue to the Provinces. The Provincial Legislature made its laws taxing sales of commodities like sugar. In a period of emergency the Federal Government imposed certain controls to regulate prices and supplies. This control involved a permit system under which every Province had to indent its requirements to the Controller and every sugar mill had to inform the Controller of the existing and future stocks. What the Controller did was to permit a particular mill to supply sugar of a stated quality and quantity to a named Province. The mill then had to send the sugar on pain of prosecution and forfeiture and receive price according to the fixed rates. Bargaining, it is said, was not possible but bargaining in the sense of offer and acceptance may be express or implied. That after the permit was obtained the two parties agreed to 'sell ' and purchase ' sugar admits of no doubt. I shall now analyse the whole transaction and see how the element of compulsion and control affect 512 the existence of a sale. First there is the fixation of price by the Controller. Can it be said that there is no sale because the price is fixed by a third person and not by the buyer and seller. This is the old controversy between Labeo and Proculus that if price is fixed by a third person a contract of sale results or not. Labeo with whom Cassius agreed, held that there was not, while Proculus was of the contrary opinion : "Pretium autem certum esse debet. nam alioquin si its inter nos convenerit, ut quanti Titius rem aestemasuerit, tanti sit empta, Labeo negavit ullam uim hoc negotium habere, cuius opinionem Cassius probat. Ofilius et earn emptionem et uenditionem cuius opinionem Proculus secutus est." (Gaius III, 140). This was solved by justinian holding that there was : "Sed nostra decisio its hoc constituit." (Inst. III, 23, 1) I do not think the modem law is any different. long as the parties trade under controls at fixed rice and accept these as any other law of the realm because they must, the contract is at the fixed price both sides having or deemed to have agreed to such a price. Consent under the law of contract need not be express it can be implied. There are cases in which a sale takes place by the operation of law rather than by mutual agreement express or implied. See Benjamin on Sale (8th Edn. p. 91). The present is just another example of an implied contract with an implied offer and implied acceptance by the parties. What I have said about price applies also 10 quantity and quality. The entry in No. 48 of List II Seventh Schedule dealt with sale of goods in all its forms. We have seen above how numerous are these forms. The entry was expressed in six simple words but was meant to include a power to 513 tax sale of goods an all: its forms. It, was apt meant to operate only in those elementary cases where there is offer by A and an acceptance by B with the price as consideration. The concept of taxes on sale of goods is more complicated and the, relations of people do not always take elementary forms. When the, Province after receiving the permit telegraphed instructions to despatch sugar and the mill despatched it, a contract emerged and consent must, be in on both side 's though not expressed antecedent the permit. The indent of the Province was the offer to purchase sugar of such and such quality and quantity. The mills by quoting their stocks offered to sell sugar. The controller , brought the seller and purchaser together and gave them his permission with respect to a particular quantity and quality. There was thus an implied contract of sale in the words of the Digest (XII, 1, IX, 4) " 'Si cui libera universorum negotiorum administratio a domino permissa fuerit, isque ex hic negotiis rem vendiderit et tradiderit facit cam accipientis. " No doubt, there is compulsion in both selling, and buying, perhaps more for the mills than for the Provinces. But a compelled sale is nevertheless a sale as was held by the House of Lords in New Castle Breweries vs inland Revenue Commissioner The case in Kitkness V. John Hudson & Co. Ltd, was different because the section there interpreted required a 'sale ' and there was no sale express or implied when the wagons were taken away and compensation was paid in the shape of transport stock. There a sale in its ordinary forms wag, obviously meant though it was recognise that ,sale ' in other context has other meanings. It was argued that there must be mutuality. That one party must be free to offer and must offer and the other side must be free to accept and must 514 accept 'the offer before a sale tan be said to arise. But sales often take place without volition of a party. A sick man is given medicines under the orders of his doctor and pays for them to the chemist with tax oil the price. He does not even know the names of the medicines. Did he make an offer to the chemist from his sick bed ? The affairs of the world are very complicated and sales are not always in their elementary forms. Due to short supply or maldistribution of goods, controls have to be imposed. There are permits, price controls, rationing and shops which are licensed. can it be said that there is no sale because mutuality is on one account or another? It was not said in 'the Tata Iron and Steel case (1) which was a case of control, that there was no sale. The entry should be interpreted in a liberal spirit and not cut down by narrow technical considerations. The entry in other words should not be shorn of all its content to leave a mere husk of legislative power. For the purposes of legislation such as on sales tax it is only necessary to see whether there is , a sale express or implied. ' Such a sale was not found in ""forward contracts" and in respect of materials used in building contracts. But the same cannot be said of all situations. I for one would not curtail the entry any further. The entry has its meaning and within its meaning there is a plenary power. If a sale express or implied is found to exist then the tax must follow. I am of the opinion that in these transactions there was a sale of sugar for a price and the tax was payable. I would, therefore, dismiss these appeals with costs. BY COURT: Having regard to the judgment of the mojority, all these appeals(Nos. 237 and 633 636 of 1961) would be allowed with costs one hearing fee.

IN-Abs

Under the Sugar and Sugar Products Control Order, 1946, the consuming States intimated to the Sugar Controller of India their requirements of sugar and the factory owners sent statements of stocks of sugar held by them. The Controller made allotments to various States and addressed orders to the factory owners directing them to supply sugar to the States in question in accordance with the despatch instructions from the State Governments. Under such allotment orders, the assesses, a sugar factory in Bihar, despatched sugar to the State of Madras. The State of Bihar treated these transactions as sales and levied sales tax thereon, under the Bihar Sales Act, 1947. The assesses contended that the despatches of the sugar pursuant to the directions of the Controller did not amount to sales and that no sales tax was exigible on such transactions. Held (per Kapur and Shah, JJ. Hidayatullah, J., dissenting), that the transactions did not amount to sales and were not liable to sales tax. Under Entry 48, List II of Government of India Act, 1935, the Provincial Legislature had no power to levy sales taxes on a transaction which was not of the nature of a sale of goods, as understood in the Sale of Goods act. To constitute a sale of goods, . property in the goods must be transferred from the seller to the buyer under a contract of sale. A contract of sale between the seller and the buyer is a prerequisite to a sale. Despatches of sugar under the directions of the Controller were not the result of any such contract of sale. There was no offer by the assesses to the State of Madras and no acceptance by the latter; the assessee was, under the Control Order, compelled to carry out the directions of the Controller and it had no volition in the matter. Intimation by the State 460 of its requirement of sugar to the controller or communi cation of the allotment order to the assesses did not amount to an offer. Nor did the mere compliance with despatch instructions issued by the Controller, which the assessee could not decline to carry out, amount to acceptance of an offer or to making of an offer. A contract of sale postulates exercise of volition on the part of the contracting parties. State of Madraa vs Gannon Dunkerky & Co., [1959] section C. R. 379; relied on. The Tata Iron & Steel Co. Ltd. vs The State of Bihar, ; , explained. Per Hidayatullah, J. In these transactions there was a sale of sugar for a price and sales tax was payable in respect thereof. Though consent is necessary for a sale, it may be express or implied, and it cannot be said that unless the offer and acceptance are in an elementary direct form there can be no taxable sale. The controller permitted the assesses to supply sugar of a Stated quality and quantity to the State of Madras; thereafter the two parties agreed to "sell" and "purchase" the sugar. So long as the parties trade under controls at fixed price they must be deemed to have agreed to such a price; there wasan implied contract with an implied offer and an implied acceptance. The same is the position with respect to the quality and quantity fixed by the Controller. when the State , after receiving the permit, sent instructions to the assesses to despatch sugar and the assesses despatched it a contract emerged and consent must be implied on both sides though not expressed antecedently to the prmit. State, ofMadras vs Gannon Dunkerky Co.; , andThe Tata Iron and SPA Co. Ltd. vs The State of Bihar, ; , explained.

the Court to interpret words of ambiguous meaning in a, broad and liberal sense, 107 826 & CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 61 of 1952. Appeal by special leave granted by the Supreme Court on the 10th September, 1951, from the Judgment and Order dated the 5th March, 1951, of the High Court of Judicature at Bombay (Chagla C.J. and Bhagwati J.) in Criminal Appeal No. 394 of 1950 arising out of the Judgment and Order dated the 29th May, 1950, of the Court of the Presidency Magistrate, Second Court, Mazagaon, Bombay, in Cases Nos. 630 /P and 635/P of 1949. M.P. Amin (R. J. Kolah, with him) for appellants Nos. 1, 2 and 4. As K. Muthuswami for appellant No. 3. C. K. Daphtary, Solicitor General for India (Porus A. Mehta, with him) for the respondent. 1953. March 30. The Judgment of the Court was delivered by BOSE, J. The appellants have been convicted under sections 7 and 9 of the Essential Supplies Act (No. XXIV of 1946) on two counts. The first appellant is a registered joint stock company, the Seksaria Mills Ltd. It was fined Rs. 10,000 on each of the two counts, that is to say, a total fine of Rs. 20,000, and this was upheld in appeal. The second appellant is the Director of the Mills. He was sentenced to two months ' rigorous imprisonment and to a fine of Rs. 2,00,000 on each count. In appeal the sentence of imprisonment was set aside and the fine reduced to Rs. 10,000 on each count. The third appellant is the General Manager of the Mills. He was sentenced to a fine of Rs. 2,000 on each count. This has been upheld. The fourth appellant is the Sales Manager of the Mills. He was sentenced to four months ' rigorous imprisonment and a fine of Rs. 1,00,000 on. each count. In appeal the sentence of imprisonment was upheld but the fine was reduced to Rs. 10,000 on each count. The substantive sentences are to run concurrently. 827 A Government of India Notification dated 2nd February, 1946, required every manufacturer to submit " true and accurate information relating to his undertakings " to the Textile Commissioner C.S.T. Section at Bombay. In compliance with this Order the first appellant submitted a return, signed by the third appellant, on 10th March, 1947. This return is Exhibit A 1. It showed that 13 bales of cloth (20 half bales and 3 full bales) were delivered to Messrs. Dwarkadas Khetan & Company of Bombay during the month of February, 1947, on behalf of the quotaholder Shree Kishan & Company. Another return of the same date (Exhibit A 2), also relating to the month of February, 1947, showed that 6 bales were delivered to the same Dwarkadas Khetan & Company on behalf of another quota holder Beharilal Bajirathi. A note on the back of each printed form states. By 'delivered 'or delivery ' is meant physical delivery of cloth in bales or in pieces but not cloth which though paid for is still in the I physical possession of the seller. " The offence charged is that this information is not true and accurate. The case for the prosecution is that the bales remained in the physical possession of the first appellant at all material times and were not physically delivered to Messrs. Dwarkadas Khetan & Company. Before us the learned Solicitor General added that even if there was physical delivery to Dwarkadas Khetan that did not comply with the requirements of the form because the form requires information regarding physical delivery to the quota holder or his agent and as Dwarkadas Khetan was not the agent of the quota holder, the statement is inaccurate and misleading. The learned Presidency Magistrate who tried the case, and also the High Court on appeal, hold that the prosecution have established their case and so have convicted and upheld the convictions respectively. 828 The business procedure of the first appellant is explained by Dwarkadas Khetan. His firm, Dwarkadas Khetan & Company, are the first appellant 's sole selling agents. ' They are del credere agents and guarantee payment to the first appellant of all sales made and, on the other side, guarantee delivery to the purchasers with whom they deal direct. It is necessary at this stage to understand that because of various orders and rules made under the Essential Supplies Act the first appellant could only sell to specified quota holders and only up to the limits of their quotas. The two quota holders which concern us are Shree Kishan & Company and Beharilal Bairathi. The first appellant 's selling procedure is this. When goods are ready for sale, it sends Dwarkadas Khetan & Company in duplicate a " ready sale note ". These notes contain particulars about the bales and the persons to whom they are to be delivered. Upon receipt of this Dwarkadas & Company contact the quota holders or their agents. The next step is for the quota holder to pay Dwarkadas & Company the price of the goods specified in the " ready sale note". Upon receipt of the money, one of the two notes is handed over to the quota holder or his agent and he is given a receipt for the money paid. At the same time Dwarkadas & Company send the first appellant an " advice slip " telling it that the money has been received and asking it to prepare a delivery order. The first appellant then debits Dwarkadas & Company with the price and not the purchaser. For payment it looks to Dwarkadas & Company. Upon receipt of this advice slip the first appellant 's office prepares the delivery order and delivers the goods to the party concerned. The person receiving the goods then signs the delivery order in token of receipt and the signed order is sent to Dwarkadas & Company who, after making the necessary entries in their books, return the order to the Mills office. It will be seen that the first appellant has no direct dealing, with the purchaser. It acts through Dwarkadas & Company in every case. 829 It will now be necessary to trace the history of the two consignments relating to the 13 bales and the 6 bales separately. We will deal with the 13 bales first. The quota holder in respect of the 13 bales was Shree Kishan & Company. This firm was an up country firm and so it was necessary for it to appoint a local agent in Bombay for making payments and receiving delivery. There was some confusion about the agent so appointed; at first one Dharsi Moolji was appointed and then P. C. Vora. The letter informing the first appellant that Dharsi Moolji bad been appointed is not on record but we were told at the Bar that it is not disputed that I the letter is dated 7th February, 1947. In any case, Dharsi Moolji wrote to the first appellant on 20th February, 1947, saying that he had been authorised to take delivery of the January quota on behalf of Messrs. Shree Kishan & Company and on 21 st February, 1947, he paid Dwarkadas Khetan & Company a sum of Rs. 14,000 for this quota. A receipt and an entry in Dwarkadas ' books evidence the payment. The same day Dwarkadas Khetan wrote to the first appellant telling it that his firm had received payment in advance from Shree Kishan & Company and that the 13 bales should be sent to "our godown ", Whether the " our " refers to Dwarkadas ' godown or to a godown jointly shared between Dwarkadas and the first appellant is not clear. The learned High Court Judges hold that the godown belonged to the first appellant, but that, in our opinion, is not very material for reasons we shall give later. On receipt of this " advice slip " the first appellant prepared what it has called a " ready sale note " on the same. day, 21st February, 1947, authorising the purchaser to take delivery within a week. Dharsi Moolji was named as the Commission Agent. (The man now entered is Prataprai Chunilal, that is, P. C. Vora, but the original name was Dharsi Moolji. The change was made for reasons which will presently appear). 830 In pursuance of all this, the first appellant dispatched the 13 bales on 28th February, 1947, and sent them to Dharsi Moolji. But in the meanwhile other events had taken place. One P. C. Vora wrote to the first appellant on 17th February, 1947, and said that he had been authorised to take possession of these 13 bales. What had happened in the meanwhile was that the, quota holder Shree Kishan & Company had changed its local agent. Accordingly, when the goods reached Dharsi Moolji he refused to take delivery. The selling agent Dwarkadas thereupon telephoned the first appellant. He explained that he had actually, received the money for the bales from Dharsi Moolji and had not received anything from P. C. Vora and so could not deliver the goods to the latter and equally could not accept money from P. C. Vora until the matter had been straightened out with Dharsi Moolji. The first appellant thereupon told Dwarkadas to keep the goods in the Dady Seth godown. On the same day, apparently before all this occurred, the first appellant credited Dwarkadas Khetan with the money he had received from Dharsi Moolji on account of the 13 bales, less Dwarkadas ' commission. In other words, this adjustment in the accounts was the equivalent of payment for the 13 bales by Dwarkadas Khetan to the first appellant on account of the purchaser Shree Kisban & Company. It will be remembered that Dwarkadas Khetan & Company were the sole selling agents and they alone were responsible to the Mills for orders ' which. were placed through them. The muddle between Dharsi Moolji and P. C. Vora was cleared up between 3rd March, 1947, and 14th March, 1947. On 3rd March, 1947, Dwarkadas Khetan returned the Rs. 14,000 which Dharsi Moolji had paid and on 14th March, 1947, accepted the money from P. C. Vora. The alteration in the "ready sale note" of 21st February, 1947, was presumably made because of these facts. Four days later, Dwarkadas Khetan delivered the goods to P. C. Vora. (There was no need to make any alterations in the first 831 appellant 's account books because Dwarkadas was responsible for the price whatever happened between him and Dharsi and also because in any event the. goods were sold to Shree Kishan: the only query at that time was who was his agent to accept delivery for him). The return with which we are concerned was made on 10th March, 1947. It will be seen from the above that the position at that date was as follows: (1) the selling, agent bad informed the first appellant that he had effected a sale, (2) the selling agent had paid the first appellant for the goods, (3) specific bales had been set aside and appropriated to the sale and consequently the property in the goods had passed, (4) the goods had actually left the Mills ' premises, and (5) they were in the Dady Seth godown under the control of Dwarkadas Khetan. We say the goods were under the control of Dwarkadas Khetan for three reasons: (1) as shown above, the property in the goods had passed and so the, first appellant no longer had title to them, (2) Dwarkadas says that until be received the money for them from P. C. Vora he would have refused to deliver them, (3). being a del credere agent he would have been within his rights (a) to refuse delivery to anybody till he was paid and (b) to deliver them despite anything the first appellant might say once he received his money; also because Dwarkadas ' Mehtaji says "If the goods are not, accepted by the merchants or their agents, the same are sent to us and we keep them in the godown. " Bearing these facts in mind, we will now examine the offending document. It is a printed form. The heading is " Manufacturer 's Returns showing detail% of delivery to quota holders or other8 of civil cloth. " Then there is a note as follows : " IMPORTANT: This form should be completed in accordance with the instructions printed overleaf. giving full details relating to the previous month, 832 Under that is the following "All stocks pledged/hypothecated by manufacturers with banks or others shall be included in this statement. " The only column in the printed form which could be related to this is column 3 headed " Full name and address of person to whom delivered. " On the back there are the following instructions: "II. The word I others ' in the heading of the form includes artificers who are privileged to purchase cloth under General Permission No. TCS 42 / 1, dated 10th August, 1944, and any person to whom deliveries are made under any other General or Special Permission or Order of the Textile Commissioner. The name of artificers or any other persons shall be 'mentioned in column 3 and against their names, number and date of General or Special Permission shall be mentioned in column 2. By 'delivered ' or 'delivery 'ismeantphysical delivery of cloth in bales or in pieces but not cloth which, though paid for, is still in the physical possession of the seller. " The form was filled in as follows : In the column headed 11 Full name and address of quota holder " the name of ShreeKishan & Company is entered. In the column headed Full name and address of person to whom delivered the name of Dwarkadas Khetan & Company is entered. The question we,have to decide is whether these two entries are inaccurate. Dealing first with the learned Solicitor 'General 's argument regarding the construction of the words used in the form, we are of opinion that it cannot be accepted. The second clause of the portion marked "Important" towards the head of the form states that all stocks pledged or hypothecated with banks or others must also be included, and Instruction No. II on the back directs that the names of "any other person" must be entered in column 3 and that the number and date of the General or Special Permission must be set out in column 2, Whether this means that goods 833 cannot be pledged without permission or that only goods allotted to quota holders can be pledged we do not know, but whatever it means, it is clear that the entry in column 3 is not intended to be confined to quota holders or their agents but means what it says, namely the person to whom physical delivery of the goods has been made whoever he may be. The only question therefore is whether there was physical delivery to Dwarkadas Khetan. In one sense, there can be no doubt about that. The goods left the Mills ' premises, the property in them had passed and when Dharsi Moolji refused to receive them they were handed over to Dwarkadas Khetan and not taken back to the Mills. Dwarkadas Khetan asked the Mills what he should do with them, and in the end he placed them in the Dady Seth godown. In any ordinary understanding of the term it would be clear that the goods had been physically delivered to Dwarkadas Khetan. But the learned High Court Judges do not appear to have concerned themselves with the question of actual physical possession because they say: "It would not be true to say, and the record amply bears it out, that this godown belonged to Dwarkadas Khetan. Even if Dwarkadas Khetan had control over the godown, the control was exercised on behalf of and as the agent of the Mills. " Therefore, the test of the sort of possession which they had in mind was not the control over the goods. But that has always been regarded as one of the tests of physical or de facto possession. Lancelot Hall distinguishing between possession in law and possession in fact says that "possession in the popular sense denotes a state of fact of exclusive physical control". See his treatise on Possessory Liens in English Law, page 2. See also Pollock and Wright in their Essay on Possession in the Common Law, page 119. Drawing the same distinction they say that "physical possession" may be generally described by stating that 108 834 "when a person is in such a relation to a thing that, so far as regards the thing, he can assume, exercise or resume manual control of it at pleasure, and so far as regards other persons, the thing is under the protection of his personal presence, or in or on a house or land occupied by him, or in some receptacle belonging to him and under his control. " This would seem exactly to meet the case of Dwarkadas Khetan. Possession is an ambiguous term. The law books divide its concept into two broad categories, (1) physical possession or possession in fact and (2) legal possession which need not coincide with possession in fact. The offending form with which we are concerned draws the same broad line. But even on the factual side of the border niceties creep in and so the possession of a servant is called custody rather than possession. But what of an agent ? If a man lives abroad over a period of years and leaves his house and furniture in charge of an agent who has the keys of the house and immedi ate access to and physical control over the furniture, it would be difficult to say that the agent was not in physical possession. It is true the legal possession would continue to reside in the owner but the actual physical possession would surely be that of the agent. And so with a del credere agent, because such a person is the agent of the seller only up to a point. Beyond that he is either a principal or an agent of the buyer. This distinction was discussed by one of us in the Nagpur High Court in Kalyanji Kuwarji vs Tirkaram Sheolal(1) and was accepted by the Madras High Court in Kandula Radhakrishna Rao vs The Province of Madras(2). But we need not go into all this. Here is an Order which is to affect the business of hundreds of persons, many of whom are small petty merchants and traders, the sort of meni who would not have lawyers constantly at their elbow; and even if they did, the more learned their advisers were in the law the more puzzled (1) A.I.R. 1938 Nag. (2) 835 they would be as to what advice to give,for it is not till one is learned in the law that subtleties of thought and bewilderment arise at the meaning of plain English words which any ordinary man of average intelligence, not versed in the law, would have no difficulty in understanding. In a penal statute of this kind it is our duty to interpret words of ambiguous meaning in a broad and liberal sense so that they will not become traps for honest, unlearned (in the law) and unwary men. If there is honest and substantial compliance with an array of puzzling directions, that should be enough even if on some hypercritical view of the law other ingenious meanings can be devised. In our opinion, Dwarkadas Khetan could, in the circumstances given above, be described, without any straining of language, as the person to whom the goods were actually delivered. It follows the conviction on this count cannot stand. We would like to add that in any event, even if ultra technical notions regarding the concept of possession were to be incorporated into the case, it would be wrong to say that there had been anything beyond a technical and unintentional breach of the law. The facts are truly and accurately given according to the popular and natural meaning of the words used; nothing was hidden. The goods did reach the quotaholder in the end, or rather his proper agent, and we cannot see what anyone could stand to gain in an unauthorised way over the very natural mistake which occurred owing to what seems to have been a time lag in the consequences of a change of agency. So, even if there was a technical breach of the law, it was not one which called for the severe strictures which are to be found in the trial court 's judgment and certainly not for the savage sentences which the learned Magistrate imposed. In the High Court also we feel a nominal fine would have met the ends of justice even on the view the learned Judges took of the law. The charge on the second count relating to the 6 bales is a similar one and the facts follow the same pattern. They have been detailed in the High Court 's 836 judgment, so it is not necessary to do more than outline them here. The quota holder here is Beharilal Bairathi. In this case also, Dharsi Moolji paid Dwarkadas Khetan for the goods and the Mills sent the bales to Dharsi Moolji for delivery in the same truck as the 13 bales. Dharsi Moolji refused to accept these bales also, so they were deposited in the Dady Seth godown along with the other thirteen. Dwarkadas Khetan & Company has been entered as the person to whom delivery was made. For the reasons given above, we hold that this was a true and accurate return. The appeal is allowed. The conviction and sentence in each of the four cases is set aside. The fines, if paid, will be refunded. Appeal allowed. Agent for appellants Nos. 1, 2 & 4: Rajinder Narain. Agent for appellant No. 3: Ganpat Rai.

IN-Abs

A Government Notification issued under the Essential Sup plies Act, 1946, required every manufacturer to submit "true and accurate information relating to his undertakings" and a note of the printed form stated that "by 'delivered ' or 'delivery ' is mean physical delivery of cloth in bales and pieces but not cloth which though paid for, is still in the physical possession of the seller. The appellant Mills were manufacturers of cloth and D.K. & Co. were their sole del credere, selling agents who guaranteed payment to the appellant of the price of all sales made and, on the other side, guaranteed delivery to the purchasers with whom they dealt direct. One D.M. informed the Mills as the agent of an up country quota holder that he bad been authorised by the latter to take delivery of 13 bales and on this account paid Rs. 14,000 to D.K. & Co. D.K. & Co. wrote to the Mills that they bad received payment. The Mills dispatched the goods to D.M. but meanwhile the quota. holder had changed his agent and D.M. refused to take delivery. The Mills credited the money which had been received from D.M. to D.K. godown till the question of delivery was settled. In a return submitted under the Essential Supplies Act 1946, these 13 bales were shown &a "delivered" to D. K. & Co. The appellants were prosecuted and convicted on the ground that physical delivery was not given to D.K. & Co. and the return, was not therefore true and accurate: Held, that, as the goods had left the Mill premises, the price had been paid and the property in them had passed and as they were in a godown under the control of D. K. & Co., D. K. & Co. were in the circumstances, the persons to whom the goods were actually delivered, and the conviction was illegal. A del credere agent is an agent of the seller only up to a point. Beyond that he is either a principal or an agent of the buyer.

Appeal No. 597 of 1961. Appeal from the judgment and order dated July 3, 1959, of the Bombay High Court in 1. T. Reference No. 45 of 1958. A. V. Viswanatha Sastri, N. A. Palkhivala, J. B. Daduchanji, O. C. Mathur and Ravinder Narain, for the appellant. K.N. Rajagopal Sastri and R. N. Sachthey, for the respondent. December 4. The judgment of Das, Kapur and Hidayatullah, jj., was delivered by Das, J. The judgment of Sarkar and Dayal, jj., was delivered by Sarkar, J. 670 S.K. DAs, J. This is an appeal on a certificate of fitness granted by the High Court of Bombay under section 66.A(2) of the Indian Income tax Act, 1922. The short facts giving rise to the appeal are these. The original assessee was Purshottamdas Thakurdas, a well known businessman of Bombay. He died sometime after the proceedings in the High Court had terminated and the appellants herein are his legal representatives. As nothing turns upon the distinction between the assessee an& his legal representatives in this case, we shall ignore it for the purpose of this judgment. By a notice issued under section 18 A(1) of the Act the Income tax Officer concerned required the assessee to make advance payment of tax in respect of the assessment year 1947 1948. On September 15, 1946, the assessee submitted an estimate of his income under sub s, (2) of section 18 A. In this estimate the assessee showed his total income at Rs. 4,64,000/ . He deducted the sum of Rs. 3,64,000/ , stated to be his dividend income, on the ground that section 18 of the Act applied to such income. After claiming credit for Rs. 10,000/ on the ground of double taxation relief, the assessee estimated the advance tax payable by him at Rs. 2,67,752/ . The Income tax Officer took the view that under section 18 A(2) of the Act the assessee was bound to include in his estimate, and to pay advance super tax on, his dividend income. Since that was not done and the advance tax paid was less than eighty per cent of the tax determined on the basis of the regular assessment, he levied penal interest on the assessee under sub section (6) of section 18 A of the Act in respect of the super tax payable on the dividend income. There was an appeal to the Appellate Assistant Commissioner who confirmed the view of the Income tax Officer. On a further appeal, the Appellate Tribunal held by its order dated October 25, 1957, that sub section (6) of section 18 A did not apply to dividend income and the assessee was not 671 liable to pay penal interest in respect of the dividend income. The Commissioner of Income tax, Bombay City, respondent before us, moved the Appellate Tribunal to state a case to the High Court of Bombay on the following question of law which arose out of the Tribunal 's order : "Whether on the facts and circumstances of the case, the assessee is liable to pay interest in respect of dividend income as provided under section 18 A(6) of the Income tax Act The Tribunal stated a case on the aforesaid question and the reference made by the Tribunal was dealt with by a Division Bench of the High Court of Bombay by its judgment dated July 3, 1959. The question framed by the Tribunal was slightly altered by the High Court , but the alteration made is not material for our purpose. Mr. justice J. C. Shah came to the conclusion that dividend income was not income in respect of which section 18 made any provision " 'for deduction of income tax at the time of payment" within the meaning of sub section (1) of section 18 A and though the phraseology used in sub section (6) of s.18A was slightly different from the phraseology used in sub section (1) of section 18 A, the two sub sections substantially had the same meaning. Accordingly, he answered the question in the affirmative and against the assessee. Mr. justice section T. Desai also gave the same answer to the question, though he reached a somewhat different conclusion. He held that on a proper construction of sub section (6) of section 18 A an assessee was liable to pay interest in respect of tax on dividend income to the extent that sub section (5) of section 18 did not apply to the same. He said "An assessee who is called upon to make advance payment of tax under section 18 A (1) may under sub section (2) of that section pay such amount as accords with his own estimate, If he 672 excludes the amount of super tax on dividend income from his estimate he takes the risk of the application of the ratio of eighty per cent resulting in a shortfall and he would have to pay interest "upon the amount by which the tax so paid falls short of the said eighty per cent. " The eighty per cent would be of the amount of tax determined on the basis of the regular assessment. so far as such tax relates to income to which the provisions of section 18 do not apply. The provisions of section 18(5) as I have already pointed out do not apply to super tax and the amount of super tax on the dividend income must be included and taken into consideration in the computation necessary for the purpose of fixing the quantum of tax to which the ratio of eighty per cent is to be applied. I would, therefore, answer the question as framed by us in the affirmative. " The assessee then moved the High Court for a certificate of fitness and having obtained such certificate preferred this appeal to this court. On behalf of the assessee, the contention is that the answer given by the High Court to the question referred to it is not correct and this contention is based on two grounds. The first ground is that on a proper construction of sub section (2) of section 16, sub section (5) of section 18 and section 49 B of the Act, dividend income is income in respect of which provision is made under section 18 for " 'deduction of income tax at the time of payment" and therefore section 18 A is not attracted to it. The second ground which has been taken in the alternative is that sub section (6) of section 18 A clearly states that where in any year an assessee has paid tax under sub section (2) on the basis of his own estimate and the tax so paid is less than eighty per cent of the tax determined on the basis of the regular assessment, so far as such tax relates to income 673 to which the provisions of section 18 do not apply, simple interest at the rate of; six per cent per annum etc. shall be payable by the assessee upon the amount by which the tax so paid falls short of the said eighty per cent, It is submitted that thephraseology used in sub. section (6) of section 18 A is "to whichthe provisions of section 18 do not apply. Thealternative argument is that sub section (5) of section 18 is undoubtedly a provision which applies to dividend income and therefore under sub section (6) of section 18 A the assessee was not liable to pay penal interest by his failure to pay advance tax On that head of income. Put differently, the alternative argument is that sub section (6) of section 18 A refers to a category of income wider than what is referred to in sub section (1) of section 18 A and if there is some provision in section 18 relating to a head of income, namely, dividend income, (though that provision may not amount to deduction of income tax at the time of payment '), failure to pay advance tax on that head of account will not attract the penal provisions of sub section (6) of section 18 A. We proceed now to consider these two arguments advanced on behalf of the appellants and the replies thereto on behalf of the respondent. First as to the argument that on a, proper construction of sub section (2) of section 16, sub section (5) of section 1 8 and section 49 B of the Act, dividend income is income in respect of which provision is made under section 18 for "deduction of income tax at the time of payment. " To appreciate this argument it is necessary first to refer to the scheme of sections 18 and 18 A of the Act. Under the Indian Income tax Act 1922, tax is assessed and paid in the succeeding year upon the results of the previous year of account. The legislature has by enactings. 18 A, made a provision for imposing a liability uponthe tax payers who had been previously assessedand even upon those who had not been so assessedto make advance payment of 674 tax in respect of income, exceeding a certain amount, for which provision is not made under section 18 for deduction of tax at the time of payment. Sections 18 and 18 A between themselves exhaust all categories of taxable income. The Act provides for two modes of collecting taxes . direct levy and levy by deduction at the source. The ordinary method of collection is direct collection of the tax from the assessee which is dealt with by. sections ,19, 45 and 46. Deduction of tax at the source is provided for only in certain specified cases mentioned in section 18. Sub section (2) of section 18 relates to salaries and makes the, person responsible for paying any income chargeable under the head salaries" to make deduction of income tax and super tax on the amount payable at a rate representing the average of the rates applicable to the estimated total income of the assessee under that head. Sub section (3) relates to interest on securities and makes the person responsible for paying any income chargeableunder the head ",,interest on securities". unless otherwise prescribed in the case of any security of the Central Government, to deduct at the time of payment income tax but not super tax on the amount of interest payable at the maximum rate. Sub sections (3 A) to (3 E) relate to certain other cases which are not very material for our purpose. We need not therefore refer to those sub sections. section (4) of section 18 says that all sums deducted in accordance with the provisions of this section shall, for purposes of computing the income of an assessee, be deemed to be income received. Then there is sub section (5) which in so far as it is relevant for our purpose is in these terms "Any deduction made and paid to the account of the Central Government in accordance with the provisions of this section and any sum which a dividend has been increased under sub section (2) of section 16 shall be treated as a payment of income. tax or super tax on behalf 675 of the person from whose income the deduction was made, or of the owner of the security or of the shareholder, as the case may be, and credit shall be given to him therefor on the production of the certificate, furnished under subsection (9) or section 30, as the case may be in the assessment, if any, made for the following year under,this Act Provided that, if such person or such owner obtains, in accordance with the provisions of this Act, a refund of any portion of the tax so deducted, no credit shall be given for the amount of such refund: xx xx xx xx xx xx xx xx Put briefly, the scheme of section 18 is to provide for deduction of income tax at the source in respect of certain categories of income. With regard to two of the categories, namely, ""salaries" and "interest on securities, there is no difficult. The difficulty arises with regard to the category of income, referred. to in sub s.(5) of s.18,: namely, dividend income, and to this difficulty we shall come later. S.18 A which was inserted in 1944 deals with advance payment of tax. It was introduced as a war measure probably to combat inflation, but, like many other innovations in taxation legislation it has outlived the exigency which necessitated it. The section applies to those assessees whose total income in the latest assessment, and also to those hitherto unassessed whose total income of the previous year, exceeded by a certain sum the maximum amount not chargeable to tax. The section attempts to reconcile the principle of advance payment of tax with the ,scheme of the Act which is to tax the income of the previous year. The basis of the section is the 676 principle of ""pay as you earn that is, paying tax 'by instalments in respect of the income of the very year in which the tax is paid. Sub.s. (1) provides for the payment of tax in respect of the income of " the latest previous year" while under sub.s. (II) the tax so paid is treated as having been paid in respect of the income of the year of payment and credit therefore is given to the assessee in the regular assessment made in the next financial year. The 'advance" payment 'of taxis only provisional, and if after the regular assessment is made the tax paid in advance is found to be in excess of the tax payable, the assessee would be entitled to a refund of such excess. Further, it is worthy of note that the provision for advance payment of tax under section 18 A is only in respect of income from which the tax is not deductible at the source, under section 18. Where the tax is deductible at the source, that in itself amounts to advance payment of tax and therefore such income is left out of the purview of the section. Sub section (2) of section 18 A enables an assessee to make his own estimate if in his opinion, the income of the year is likely to be less than that on which he has been asked to make advance payment of tax ' in accordance with the provisions contained in sub section Sub section (6) of section 18 A so far as it is material for our purpose is in these terms "Where in any year an assessee has paid tax under sub section (2) or sub section (3) on the basis of his own estimate, and the tax so paid is less than eighty per cent of the tax determined on the basis of the regular assessment, so far as such tax relates to income to which the provisions of section 18 do not apply and so far as it it not due to variations in the rates of tax made by the Finance Act enacted for the year for which the regular assessment is made, simple interest at the rate of six per cent per annum from the 1st day of January in the financial 677 year in which the tax was paid up to the date of the said regular assessment shall be payable by the assessee upon the amount by which the tax so paid falls short of the said eighty per cent xx xx xx xx xx xx xx xx XX. It provides for cases where the assesee 's estimate turns out to be too low and it lays down inter alia that where an, assessee has paid advance tax under sub section (2) and the amount so paid is less than eighty per cent of the final assessment of his income for the particular year, he is liable to pay interest at six per cent. There is however the necessary qualification that this is in the context of "income to which the provisions of section 18 do not apply. " ' Having regard to the scheme of sections 18 and 18A explained above, the first question before us is this: can it be said that sub section (5) of section 18 in its true scope and effect treats dividend income as income from which a deduction of income tax has been made at the time of payment of the dividend ? The contention on behalf of the assessee is that sub section (5) of section 18 read with sub section (2) of section 16 and section 49 B has that 'effect. The argument on behalf of the respondent is that it has not that effect. In our opinion the contention urged on behalf of the assessee is correct. Sub.s. (2) of section 16 declares in the first part thereof that any dividend shall be deemed to be income of the year in which it is paid etc. regardless of the question as, to when the profits out of which the dividend is paid were earned. A shareholder 's right to dividend arises upon its declaration. Under the second part of the sub section, the net dividend paid to the shareholder is to be ",grossed up" before in. , clusion in the shareholder 's total income, by adding 678 thereto the amount of income tax paid by the company. In general law the company is chargeable to tax on its profits as a distinct taxable entity and it pays the tax in discharge of its own liability and not on behalf of or as agent for its shareholder . This aspect of the matter has been rightly emphasised by learned counsel for the respondent in his reply. While it is true that the company pays its own tax, a legal fiction is introduced by section 49 B of the Act. Under that section when a dividend is paid to a shareholder by a company which is assessed to tax, the income tax (but not super tax) in respect of such dividend is deemed to have been paid by the shareholder himself Since the income tax in respect of the dividend is deemed under section 49 B to have by been paid by the shareholder himself on his own income, though in reality it was tax paid by the company in discharge of its own liability, credit is given therefore to the share. holder in the assessment, under sub section (5) of section 18. He is not liable to pay income tax again in respect of the dividend and may claim a refund under section 48, if the maximum rate of income tax, which is applicable to companies, is not applicable to him The combined effect of sub section (2) of section 16, section 49B and sub section (5) of section 18 is that the tax free dividend is not really a dividend of the amount received, but a dividend of a larger sum less the tax thereon, and as in the case of tax free salaries and tax free securities, it is the gross amount which is included in the shareholder 's total income, because the income tax paid by the company remains part of the income derived from the shareholding. If this be the true effect of the section referred to above, then section 18 in sub section (5) does provide " 'for deduction of income tax at the time of payment" within the meaning of that clause in sub section (1) of section 18 A. Learned counsel for the respondent has, however, drawn our attention to that part of subs. (5) of section IS which refers to ',any deduction made and paid to 679 the account of the Central Government in accordance with the provisions of this section" and "any sum by which a dividend has been increased under sub section (2) of section 16. " His argument is that the sub section talks of two different matters : one is deduction of tax referred to in the earlier sub sections and the other is addition of a sum to the dividend. These two, according to learned counsel, stand on a different footing; one is in reality " 'deduction of income tax at the time of payment" and the other, namely, the sum added to dividend income under sub section (2) of section 16, is not really " 'deduction of income tax at the time of payment" but is included in the sub section merely for the purpose of giving credit to the shareholder for the amount which has been added to his dividend. We are of opinion that this line of argument does not give full effect to the legal fiction created by section 49 B under which the tax paid by the company is deemed to have been paid by the shareholder himself in respect of his dividend income grossed up under sub section (2) of section 16. If the shareholder is deemed to have paid the tax himself at the time when the company.paid the dividend, we do not see why this payment is not " 'deduction of income tax at the time of payment" within the meaning of that clause in sub section (1) of section 18A. Deduction at the source is only a mode of collecting tax from the person from whose income the deduction is made . The tax paid by the company at the time of payment of the dividend is treated as part of the income of the shareholder and the gross amount has to be included in his total income; on the same principle, the tax deducted at the source and paid to the Government is treated as having been paid by the shareholder himself. In this view of the matter, sub section (5) merely works out the principle of sub section (41 of section 18, namely, that all sums deducted in accordance with the provisions of the section shall, for the purpose of computing the income of an assessee, be deemed to be income received. 680 There was some argument before us as to the omission of the word "shareholder" in the first proviso to sub section (5) of section 18. The Amending Act of 1939 which added the reference to the " 'shareholder" in the substantive part of the sub section did not make similar addition to the first two provisos; whether this was an over sight, as one commentator has said, or not is not a matter which need be decided in this case. We have rested our conclusion on the substantive part of sub section In the view which we have taken on the main argument urged on behalf of the appellant, section 18 A is not attracted to the dividend income of the assessee in this case. The assessee was not therefore liable to penal interest under sub section (6) of section 18 A. It becomes unnecessary, therefore, to decide this case on the alternative argument presented on behalf of the appellant which is based on the phraseology of sub section We need only point out that sub section (6) uses the phraseology "income to which the provisions of section 18 do not apply. " It is difficult to see how it can be said that sub section (5) of section 18 does not "apply" to dividend income. It refers to dividend income in express terms. The argument on behalf of the respondent is that sub section (6) of section 18A will be unworkable in the matter of dividend income., unless it has the same meaning as in sub section (1). Learned counsel has relied on two decisions of this court : Commissioner of Income tax vs Teja Singh (1) and Gursahai Saigal vs The Commissioner of Income tax, Punjab (2). The first decision lays down that in construing the scope of a legal fiction it would be proper and even necessary to assume all those facts on which the fiction can operate. a decision which is really against the respondent on the main argument. The second decision related to sub section (8) of section 18 A and proceeded on the rule that it is proper to give a machinery provision an interpretation which makes it workable. We do not think that sub section (6) (1) [1959] Supp. 1 S.C.R. 394. (2) ; 681 of section 18 A will be unworkable, even if it refers to an income wider in category than that referred to in sub section It is unnecessary, however, to go into this point more elaborately. Our conclusion is that sub section (5) of section 18 read with sub section (2) of section 16 and section 49 B provides for " 'deduction of income tax at the time of payment" in respect of dividend income; therefore, section 18 A does not apply to such income. We would accordingly allow this appeal, set aside the judgment of the High Court, and answer the question referred to the High Court in the negative and in favour of the assessee: The appellants will be entitled to their costs of this court an in the High Court; SARKAR, J. Under.the Income tax Act, 1922, the usual rule is to charge tax for a year on the income of the previous year. Section 18A of the Act makes a departure from this usual rule and provides for advance payment of tax, that is, payment of tax on income during the year in which the income is earned. The question in this appeal is as to the interpretation of certain provisions in section 18A and of a few other sections of the Act. The contention advanced in this case can be appreciated only after these provisions have been referred to. Sub section (1) of section 18A states, "In the case of income in respect of which provision is not made under section 18 for deduction of income tax at the time of payment, the Income tax Officer may. . require an assessee to pay quarterly. . . . an amount equal to one quarter of the income tax and super tax payable on so much of such income as is included in his total income of the latest previous year in respect of which he has been assessed. " This liability to pay arises only however if the total income of the latest previous year exceeds a certain 682 amount mentioned in the subsection. Under this sub section, therefore, the amount demanded as payment of tax in advance is calculated on income found in a previous assessment. Now it may so happen that the assessee thinks that his income for the period for which the demand had been made would be less than his income in that previous assessment. Sub section (2) provides that in such a case the assessee may "send to the Income tax Officer an estimate of the tax payable by him. . . and shall pay such amount as accords with his estimate in equal instalments. . . . So under sub s.(2) the assessee is given the liberty to make his own estimate of the tax payable in advance instead of paying according to a previous regular assessment by the revenue authorities. As in the case of sub section (1), in making the estimate of the tax under sub section (2), the assessee is only to take into account income in respect of which provision is not made under section 18 for deduction of income tax at the time of payment. Sub section (3) provides for the case of an assessee who has never been assessed before but whose total income is likely to exceed the amount upon which tax is payable in advance under sub section it requires such an assessee to "send to the Income tax Officer an estimate of the tax payable by him on that art of his income to which the provisions of section 18 do not apply", and to pay that amount on certain specified dates. Here also the assessee makes his own assessment. Payment of tax in advance under sub sections (1), (2) or (3) is only provisional and the assessee would be entitled to a refund if on regular assessment after the year it is found that he had paid more than he is liable to pay; or he may be called upon to pay more if he had 'paid less than what is due from him. As the responsibility for making the assessments under sub sections (2) and (3) is on the assessee, sub section (6) is intended to provide a machinery whereby the 683 assessee is put under a certain disadvantage if it is found that his estimate is erroneous beyond a certain limit. This appeal turns largely on this sub section and, so far as relevant, it is in these terms "Where in any year an assessee has paid tax under sub section (2) or sub section (3) on the basis of his own estimate, and the tax so paid is less than eighty percent of the tax determined on the basis of the regular assessment, so far as such tax relates to income to which the provisions of section 18 do not apply. . . . simple interest at the rate of six percent per annum. . . shall be payable by the assessee upon the amount by which the tax so paid falls short of the said eighty per cent. " This sub section also prescribes the period for which the interest payable under it is to be calculated but it is not necessary to trouble ourselves with such period in this appeal. Now, Purshottamdas Thakurdas, the assessee in this case, sent an estimate under sub section (2) of, section 18A of the tax payable by him in advance in the year 1947 48. In that estimate he did not include the dividends received on shares held by him. Upon regular assessment it was found that the tax estimated by him was less than eighty per cent of the regular assessment and on this shortfall he was held liable to pay interest under sub section (6) of section 18A. The shortfall would not have arisen if the assessee had taken the dividends into account in making the estimate of the tax payable by him. Against this decision the assessee appealed to the Appellate Assistant Commissioner but his appeal failed. He then appealed to the Income tax Appellate Tribu nal and was successful there. Thereafter, at the instance of the respondent Commissioner of Income tax, the Tribunal referred under section 66 (1) of the Act 84 the following questions for the decision of the High Court. "Whether on the facts and circumstances of the case the assessee is liable to pay interest in respect of dividend income as provided under Section 18A(6) of the Income tax Act?. The High Court answered the question in the affirmative though the reasons upon which the learned judges constituting the bench deciding the case based themselves were somewhat different. The assessee has now come to this Court in further appeal. Pending the appeal here, the assessee died and his legal representatives have been substituted in his place and are the appellants now. The real question in, this appeal is whether in making an estimate under section 18A (2) of the tax payable by him, the assessee should have taken into account the dividends received by him. Now, it is not in dispute that in making this estimate only that income "in respect of which provision is not made under section 18 for deduction of income tax at the time of payment" is to be taken into account. Learned counsel for the appellants contends that dividend is income in respect of which provision is made under section 18 for deduction of income tax at the time of payment. If this contention is sound, then of course no interest is payable under section 18A (6). Now, the appellants ' contention was based on sub section (2) of section 16, sub section (5) of section 18 and section 49B of the Act. The first of these, that is, sub section (2) of section 16, says that for the purpose of inclusion in the total income of an assessee, a dividend shall be deemed to be income of the previous year in which it is paid and shall be increased in a certain manner, and without going into the question of the increase in great detail, which would be unnecessary for the 685 purposes of this case, it would perhaps be right to say that the increase is to be substantially by such amount as would be payable by the company as income tax on the amount of the dividend at the rate applicable to it in the financial year in which the dividend is paid. Sub section (5) of section 18 provides. "Any deduction made and paid to the account of the Central Government in accordance with the provisions of this section and any sum by which a dividend has been increased under sub section (2) of section 16 shall be treated as a payment of income tax or super tax on behalf of the person from whose income the deduction was made, or of the owner of the security or of the shareholder, as the case may be, and credit shall be given to him therefor on the production of the certificate furnished under sub section (9) or section 20, as the case may be, in the assessment, if any, made for the following year under this Act;" Lastly, section 49B states that "Where any dividend has been paid. . or deemed to have been paid. to any of the persons specified in Section 3 who is a shareholder. .such person shall, if the dividend is included in his total income, be deemed in respect of such dividend himself to have paid the income tax (exclusive of super tax) of an amount equal to the sum by which the dividend had been increased under sub section (2) of section 16. " Now, the contention of the learned counsel for the appellants is that as a result of the two provisions last referred to, there is a fictional deduction of tax on dividends which fiction must be given effect to and, therefore, in making an estimate of income under section 18A (2) dividends have to be excluded and 686 they have to be treated in view of the fiction, as income in respect of which tax has been deducted at the time of payment. We are wholly unable to accept this argument All that the provisions on which the learned counsel for the appellants relies, show is that a shareholder who received dividends on his shares is entitled in his assessment to have a certain sum. paid or payable as tax by the company, treated as paid as tax on his behalf and to require that sum to be deemed to have been paid as tax by himself. We are not concerned with payment of tax by or on behalf of the assessee. We are concerned with income, income tax on which has been deducted at the time of payment by the payer of it under section 18. Payment of tax by the assessee or on his behalf is not deduction of tax on the income by the payer of that income. We are wholly unable to agree that payment of tax by the assessee, fictional or otherwise, on income received by him is in any sense a deduction of tax under section 19 by the person who pays the income to the assessee. Clearly there is no deduction as contemplated by section 18. We do not see that sections 16 (2), 18(5), and 49B require any fiction of a deduction under section 18 to be raised. Indeed section 18(5) by mentioning expressly and separately "Any deduction made. . . in accordance with. . . . this section" and " 'any sum by which a dividend has been increased under sub section (2) of section 16" shows that these two are different, or, in other words, that the increased amount is not a deduction under section 18. It is important also to remember that for section 18A(1), (2) and (3) there has to be a deduction under section 18 to exclude a part of the income; deduction under other provisions will not do. Then again, under section 18(5) an assessee is entitled to credit for the amount to be added to the dividend under section 16(2) as tax paid on his behalf 687 but this only at the time of the assessment, if any. for the following year. Obviously, there is no question of giving any credit till assessment later, that is to say, later than the time of payment of the dividend to the assessee. This again shows that dividends are not income in respect of which tax is deducted under section 18 at the time of payment. We would also point out that if there is no assessment of the assessee, then no tax can be treated as having been paid by him. The position under section 49B is the same. If tax is deducted at the source under section 18, it would be deducted in all cases and the deduction would not depend on any assessment. This is a further reason for saying that dividends are not income on which tax is deducted at the time of payment under section 18. The appellants then contend that even if dividends are not income from which tax is deducted at the time of payment, still no interest is chargeable in this case under section 18A(6) for another reason. It was said that in finding out the shortfall under subs. (6) of section 18A you have to compare the amount of tax paid by an assessee on his own estimate with the amount of tax ascertained on the regular assessment taking into account only that part of the income " 'to which the provisions of section 18 do not apply. " Hence it is contended that in ascertaining for the purpose of this sub section the tax payable on regular assessment that part of the assessee 's income should be kept out of consideration to which the provisions of section 18 apply. Then it is pointed out that sub section (5) of that section applies to income received in the shape of dividends. Therefore, in finding out the amount of tax payable on regular assessment under sub section (6) of section 18A, dividends have to be kept out of account and if that is done, then the shortfall would disappear. It is true that if the dividends were excluded from the regular assessment as also the estimate, then there would be no shortfall. 688 Now, it seems to us that this argument is fallacious. The words are ""tax determined on the basis of the regular assessment, so far as such tax relates to income to which the provisions of section 18 do not apply". Obviously, these words refer to tax on income of a certain type, namely, income of any one of the different varieties mentioned in any of the provisions in section 18. Only income of such types is to be left out of consideration for the purpose of making the regular assessment under section 18A (6). Let us turn to section 18. It consists of a very large number of sub sections. Sub section (1) has been omitted. We may also leave out of consideration sub sections (2A), (2B), (4) and (6) to (9), for they do not deal with any particular kind of income which has not been dealt with in the other sections. Each of the rest of the sub sections, excepting sub section (5), deals with deduction of tax at the source from one particular kind of income. In some of the cases, both income tax and super tax are deducted while in others, only income tax is deducted. It is not necessary to discuss this distinction for the purpose of this judgment. We will now have to refer to the various sub sections dealing with deductions from different kinds of income. Sub section (2) deals with deduction from salaries, sub section (3 ) from interest on securities in the case of residents, sub section (3A) from interest on securities in the case of non residents, sub section (3B) from interest not being interest on securities or any other sum chargeable under the provisions of this Act in the case of non residents, sub section (30) from any sum chargeable under this Act other than interest payable to a non resident and sub section (3D) from dividends payable to nonresidents. As the section stood at the relevant time, there was no provision in it for deduction of income tax from dividends paid to a resident shareholder. Indeed, it is because of this that all this argument has arisen. Sub section (5), it would have been noticed, does not deal with any particular or individual type of income but it deals 689 with all the various kinds of income mentioned earlier as also with dividends payable to a resident. Therefore, it seems to us that this sub section is not one of those provisions in section 18 which is contemplated in section 18A (6). It does not particularise any kind of income which has to be kept out of account in considering the amount due on regular assessment under sub section (6) of section 18A. It seems to us, therefore, that the words in that subsection now under discussion refer to the provisions of section 18 which specify particular kinds of income and provide for deduction of tax from them. It is clear that any other view of the matter would produce anomalous results which could not have been intended. In the view that we have taken on the first contention of the appellants, it is obvious that under sub section (1) of section 18A dividend income cannot be left out of account for the purpose of calculating tax payable in advance. Under sub section (2) the position 'is the same. Now if sub section (2) requires dividend income to be taken into account in making an estimate, then how is that requirement to be enforced if interest under sub section (6) is not made payable on the failure to take dividends into account. Question of interest under sub section (6) arises only on regular assessment. The amount found due on regular assessment can be realised in the usual way but that would not enable the obligation imposed by sub section (2), namely, payment in advance, to be enforced. On such reading, there would be no effective provision for payment of tax in advance in a case where the assessee makes his own estimate. That could not have been intended. It is of interest to note that sub section (3) contains the same words " 'income to which the provisions of section 18 do not apply". Now if these words are interpreted in the way suggested by the appellants, then in a case under this sub section dividends need not 690 be included in the income for the purpose of computation of tax payable in advance. But clearly dividends would be liable to be included in cases where sub section (1) or (2) applies. It is impossible to imagine that the legislature could have intended to provide differently for a case coming under sub section As we have already said, the main purpose of section 18 is to provide for deduction of tax at the source. Therefore, it is correct to interpret the words " 'income to which provisions of section 18 do not apply" as referring to that type of income in respect of which section 18 provides for deduction of tax at the source. That fits in also with the scheme of section 18A. If once tax has been deducted, then no question of paying tax on it again in advance or otherwise would arise. For all these reasons, it seems to us that income contemplated in the words " 'income to which provisions of section 18 do not apply" does not include dividends payable to a resident assessee. For these reasons we would dismiss the appeal with costs. By COURT: In accordance with the opinion of the majority, this appeal is allowed with costs.

IN-Abs

The assessee submitted his estimate of income for advance payment of tax under section 18 A, in which he did not include his dividend income. The Income tax Officer held that under section 18 A(2) the assessee was bound to include in his estimate, and to pay advance super tax, on his dividend income. Since that was not done and the advance tax paid was less than 800% of the tax determined on regular assessment, he levied penal interest under section 18 A(6) in respect of the super tax payable on the dividend income. The assessee contended (i) that the dividend income was income in respect of which provision was made under section 18 for "deduction of income tax at the time of payment" and as such section 18 A was not applicable to it, and (ii) that since section 18(5) was applicable to dividend income the penal provisions of section 18 A(6) were not attracted. Held, (per Das, Kapur and Hidayatullah, jj., Sarkar and Dayal,JJ., dissenting) that section 18(5) read with sections 16(2) and 49 B provided for the deduction 'of income tax at the time of payment" in respect of dividend income and therefore section 18.A did not apply to such income. A shareholder 's right to the dividend arises upon its declaration. Under the leg, Al fiction 669 introduced by section 49 B, when dividend is paid to a shareholder 'by a company which is assessed to tax, the income tax (but not super tax) in respect of such dividend is deemed to have been paid by the shareholder himself and credit is given therefore to him under section 18(5). If the shareholder was deemed to have paid the tax himself at the time when the company paid the dividend, the payment was "deduction of income tax at the time of payment" within the meaning of section 18 A(1). Per Sarkar and Dayal, JJ The dividend income should have been included in the estimate of income and the penal interest was properly levied on the assessee. Dividend income is not one on which tax was deducted at the time of payment under section 18. Payment of tax by the assessee, fictional or otherwise, on income received by him was not a deduction of tax under section 18 by the person who paid the income to the assessee. for purposes of section 18 A there had to be a deduction under s.18; deduction under other provisions was not relevant. Under section 18(5) credit for the tax paid by the company was to be given to the shareholder not at the time of payment of the dividend but later at the time of assessment, Further, the provisions of section 18 A(6 ) were applicable in respect of dividend income. The words "Income to which provisions of section 18 do not apply" in section 18,A(6) refer to that type of income in respect of which section 18 provides for deduction of tax at the source and they do not include dividend income.

Appeal No. 339/60. Appeal from the judgment and decree dated November 17, 1955, of the Andhra Pradesh High Court in A. section No. 51/1951. A. Banganadham Chetty, A. V. Rangam, A. Vedavalli and K. R. Chaudhri. for the appellants. B. Ganapathy Iyer, R. Thiagarajan and G. Gopalakrishnan, for the respondent No. I. 1962. December 12. The judgment of ' the Court was delivered by 997 MUDHOLKAR, J. This is an appeal by a certificate granted by the High Court of Andhra Pradesh under article 133 (1) (a) of the Constitution. The relevant facts arc these The plaintiff respondent Ramaswamy & Co who carry on business in tobacco at Guntur instituted a suit against the appellant firm which also carries on similar business at that place and its alleged partners Kurapati Venkata Mallayya and Mittapalli Abbayya, for the recovery of the price of 112 bales of DB tobacco strips (hereafter referred to as DB strips) sold to them on June 5, 1946, amounting to Rs. 14,099/ and interest thereon from the date of purchase to the date of suit. In addition, the respondent firm claimed interest from the date of suit to the date of realization. It is the respondent firm 's case that the tobacco weighed 28,196 pounds and that the appellant firm purchased it by agreeing to pay its price at 8 annas per pound. Further according to the respondent firm the appellant firm agreed to pay interest on the amount at 9% per annum. The appellant firm denied having purchased 112 bales of tobacco from the respondent firm and denied also having agreed to pay its price at annas per pound or at any other rate. They also denied the existence of any agreement to pay any interest. According to the appellant firm in May, 1946 it secured a contract to supply to the Russian Government 3,000 bales of inferior tobacco at the rate of 8 annas per pound. One Kottamasu Venkateswarlu (who was distantly 'related to the partners of the appellant firm) was managing partner of the respondent firm. This firm had some inferior tobacco and Venketashswarlu pressed the appellant firm to take over 112 bales of the tobacco from it and tender them towar ds the contract with the Russian Government saying that the appellent firm may deduct one 998 anna per pound from the price received from the Russian Government towards their expenses and commission. The appellant firm had reluctantly agreed to this request and despatched 97 out of the 112 bales to Kakinada after getting Agmark certificate with respect to them, with the assistance of Venkateswarlu The representative of the Russian Government, however, rejected the goods on the ground that they were of inferior quality. Five bales out of these 97 bales were rejected by the Agmark authorities after re inspection of the goods at Kakinada. Those bales were returned to Guntur along with other rejected bales which belonged to the appellant firm but they were consumed in an accidental fire in the godown of the a pellant firm. The remaining 92 bales are said to be apeal lying with the shipping agent at Kakinada and that as the tobacco is of very poor quality no purchaser had yet been found for it. Fifteen bales out of the 112 bales which had not been sent to Kakinada got damaged and had to be rebaled. As a result of the rebaling they were reduced to ten bales and these are still lying with the appellant firm, which the appellantfirm was willing to return to the respondent firm on its paying the godown charges. Thus, the main defence of the appellant firm is that it never purchased 112 bales of tobacco from the respondent firm and, therefore, the respondent firm could not sue it for the price of those bales. It may be mentioned that before the institution of the suit a Receiver had been appointed in another suit for realization of the debts due to the 'respondent firm The court before which the suit was pending had made an order on June 22, 1949 permitting the ]Receiver to collect the debts due to the respondentfirm. In pursuance of this order the Receiver Suryanarayana instituted the suit out of which this appeal arises, describing himself thus in the plaint: " 'I, Suryanarayana Garu, Receiver appointed 'in O.S. 999 275 of 1948 on the file of the District Munsif 's Court, Guntur". The appellant firm contended that the suit was untenable because a Receiver has no right to institute a suit in his own name and further that the Receiver had not been expressly authorised by the court to institute the suit in question. The appellantfirm also contended that the suit was barred by time. It specifically contended that the respondent firm was not entitled either to the alleged price or to any interest. The appellant firm further contended that Mittapalli Abbayya ceased to be a Partner of the firm since the vear 1942 because as a result of a partition between Abbayya and his son ., Abbayya 's interest in the appellant firm fell to the share of one of his sons, Kotilingam. In consequence of the plea taken by the appellant firm that the suit was not tenable the respondentfirm amended the plaint with the leave of the court on December 27, 1949 by describing the plaintiff as ""Messrs. Thondepu Ramaswami & Co., represented by Suryanarayana Garu receiver appointed in O.S. 275 of 1948 on the file of the District Munsif 's Court, Guntur" in place of the original "I. Suryanarayana Garu, Receiver appointed in O.S. 275 of 1948 on the file of the District Munsif 's Court, Guntur". Thereupon the appellant firm filed an amended written statement in which it contended that the amendment was made long after the period of limitation and that it does not cure the initial defect in the suit of having been filed by a person other than the one who was entitled to institute a suit and that consequently the suit was barred by limita. The trial court held that the respondent firm had established the contract alleged by it but that it had not established that the appellant firm had agreed to pay the price at the rate of 8 annas per pound. It, however, held that the price of tobacco 1000 was Rs. 5,639 3 0, but it, dismissed the suit on the ground that I, Suryanarayana was not entitled to institute a suit in his capacity as Receiver in 0. section 275 of 1948, that the amendment of the plaint was made beyond the period of limitation and that, therefore, the suit was barred by time. In appeal the High Court held that the Receiver was entitled to institute the suit having been authorised by the court to collect the debts of T. Ramaswami & Co., that at the most 'there was a misdescription of the plaintiff firm in the cause title of the suit which could be corrected any time and that consequently the suit was within time. It further held that the price of tobacco agreed to between the parties was 8 annas per pound and that the plaintiff was entitled to a decree for Rs. 14,098/ and interest at 6% p.a. from the date of delivery of the goods till realisation. The first point urged before us by Mr. Ranganadham Chetty on behalf of the appellant firm is that the High ' Court, as well as the Subordinate judge were in error in holding that the bales in question had been purchased by the appellant firm from the respondent firm. This, however, is a question of fact and since the two courts below have found against the appellant firm on this point this court would not ordinarily interfere with such a finding. Mr. Ranganadham Chetty, however, contended on the authority of the decision in Srimati Bibhabati Devi vs Kumur Ramendra Narayan Roy( ') that the practice of the court in appeals by special leave is not a castiron one and that it, would, therefore, be open to this Court to depart from it in, an appropriate case. The aforesaid decision was referred to by this Court in Srinivas Ram Kumar vs Mahabir Prasad (2 ) and it was pointed out that when the courts below have given concurrent findings on pure questions of fact, this court would not ordinarily interfere with them (1) (1946) L.R. 73 I.A. 246, 259. (2) (1951] S.C.R 277,281. 1001 and review the evidence for the third time unless there are exceptional circumstances justifying a departure from the normal practice. Learned counsel contended that this is an unusual case because the reasons given by the High Court for holding that the transaction was a sale are quite different from those given by the trial court and in fact one of the reasons given by the High Court proceeds on a view of an important piece of evidence which is diametrically opposite to that expressed by the trial court. Mr. Ringanadham 'Chetty pointed out that in support of its claim the respondent firm relied upon two entries in its account books Exs. A 13 and A 14, that these entries were not relied tin by the trial court, but the High Court has without giving any reason for regarding them as genuine acted upon them. What the trial court has said in para 14 of its judgment is as follows : " 'In order to establish the sale of 122 bales of flue cured virginia tobacco strips,, Ramaswami relies on certain entries in the account books of his firm. Exhibit A 13 is the katha on page 27 of the day book of Thondepu Ramaswami & Co., containing an entry in respect of 112 bales weighing 28, 196 pounds at Re 0 8 0 per pound and debiting a sum of Rs. 14,098/ . The words " 'Re. 0 8 0 per pound" are contai ned in the third line of the entry. The words "112 bales weighing 28.,196 pounds at Re. 0 8 0 per pound" appear to be written closely. The sum of Re. 14,098 appears in different ink. Exhibit A 14 is the katha of the 1st defendant firm found on page 111 of the corresponding, ledger of Thondepu Ramaswami & Co. On 5 6 1964 a sum of Rs. 14,098 was debited in respect of 112 bales of barn tobacco weighing 28 196 pounds at Re. 0 8 0 per pound. ' In the second line of the entry the price therefore (in Telugue) and the debit 1002 of the sum of Rs. 14,098are found. On 21st August, 1946 interest of Rs. 267 1 9 was added. Exhibit A 17 is the interest Katha of Messrs. Thoadepu Ramaswami & Co, Exhibit A 16 is the katha at page 41 of the day book of Thondepu Ramaswami & Co. The katha shows that on 21 8 1946 to balancing entries 21 8 1946 two balancing entries for interest of Rs. 267 13 6 were made in the day book. The entry on the right hand side has been scored out and Ramaswamy has not been able to explain why and under what circumstances the entry happens to be scored out. The entry on the left hand side however, was not scored out. The totals do not tally unless the sum of Rs. 267 13 6 is included in the aggegate sum mentioned on the right hand side on page 41. It has been commented on behalf of the defendants that Ramaswamy himself has no personal knowledge of the entries, that the clerks who made the entries in the account books have not been examined and that Exhibits A 13, A 14 and A 1 6 cannot be relied on in order to come to the conclusion that the transaction relating to 112 bales was a sale and only a sale. Though Ramaswamy was not present when the entries were made in the several registers of his firm, it is not disputed that the accounts have been maintained in the usual course of business. " ling with the question of price the trial court has ob served: " 'Much reliance cannot be placed on the rate mentioned in Exhibits A 13 and A 14 and the price has to be determined independently having regard to the fact that the price of tobacco depreciates gradually with its age. " If will thus be seen that the trial court has not rejected these entries outright but only rejected them in so far as they were intended to establish the price agreed to be paid to the respondent firm. 1003 Dealing with this matter the High Court has observed thus : " 'Exhibit A 13 is the entry in the day book of Thondepu Ramaswami & Co. under date 5 6 1946 wherein a sum of Rs. 14,098 is debited to the defendant firm in respect of 112 bales of tobacco weighing 286196 pounds at 8 annas per pound. Though the figures "Rs. 14,098" were written in a different ink from the rest of the entry this is not a suspicious circumstance because the rest of the entry which is in the same ink and which is written in a normal manner contains reference to the sale of 28,196 pounds at 8 annas per pound. The resultant total is entered in the column on the right hand side as Rs. 14,098. It may be that the figure of Rs. 14 098 was entered a: little later before the accounts for the day were closed. Exhibit A 14 is the corresponding ledger of Thondepu Ramaswami & Co. and the entries in the day book are duly incorporated in the ledger. " Then later on the High Court has observed "At the same time the entries in the regularly kept books of the plaintiff firm cannot be thrown overboard particularly when no challenge was made of their genuineness. " The High Court has also stated : ""It is apparent from Exhibit A 23 that the defendant firm was shown to be a debtor not merely with respect to Rs. 14,098 the price of 28,196 pounds but also in respect of the interest due upon the sum, and the plaintiff firm has paid income tax thereon." toto the High Court has given certain reasons and even though we may not agree with them it cannot be said that there is any unusual circumstance which would warrant our reviewing afresh the evidence on 1004 the point as to whether the transaction in question was a sale or not. Mr. Ranganadham Chetty next contended that the courts below have not borne in mind the true significance of the words ""no price" occurring in the entry relating to the 112 bales in question in the verification register exhibit A 28. The Entry reads thus "5 6 46 For 112 bales of Baru tobacco no price at Re. 0 8 0 per pound The entries were in Telugu and the actual words used are and according to Mr. Ranganadham Chetty they mean that there was no sale. The Courts below, however, which were conversant with the language, have understood the entry to mean "no price" and that is how the ' expression has been translated in the paper book and it is not open to Mr. Ranganadham Chetty to say that the meaning is otherwise than this. Mr. Chetty then contended that even accepting that the meaning is only " 'no price" the proper inference to be drawn is that there was no transaction of sale and that the rate of 8 annas per pound stated in the entry is given merely for valuing the 112 bales. That may be so but it does not negative the effect of the other entries which clearly point to the transaction being a sale. Some point was also sought to be made by Mr. Ranganadham Chetty from the fact that no copy of the transport permit required to be taken for the transfer of excisable articles from one bonded warehouse to another was placed on record. We fail to see the significance of this because the appellant firm admits that 112 bales of tobacco were actually received by it from the respondent firm. It will thus be seen that there are no exceptional circumstances or unusual reasons which would induce us to re examine the entire evidence on the point ourselves. We, therefore, decline to do so. 1005 The next question is whether the suit was in proper form and was within time. Though the case of section for the suit arose on June 5, 1945, it is admitted before us that the courts were closed on June 5, 1949 and the suit was filed on the day on which they reopened. It would, therefore, be within time if it was properly constituted on the date on which it was filed. In Jagat Parini Dasi vs Naba Gopal Chaki (1) which is the leading case on the point it was held by the Calcutta High Court that a court must authorise a Receiver to sue in his own name and a Receiver who is authorised to sue though not expressly in his own name, may do so by virtue of his appointment with full powers under section 503 of the Code of Civil Procedure (Act XIV of 1882). In coming to this conclusion the learned judges pointed out that though, the object and purpose of the appointment of a Receiver may be generally stated to be the Preservation of the subject matter of the litigation pending judicial determination of the rights of the parties it does not necessarily follow that if he is authorised to sue, he cannot sue in his own name. Then the learned judges pointed out : ,,Though he is in one sense a custodian of the property of the person, whom in certain respects he is made to supplant, there seems to be no reason why his power should not be held to be co extensive with his functions. It is clear that he cannot conveniently perform those functions, unless upon the theory that he has sufficient interest in the subject matter committed to him, to enable him to sue in respect thereof by virtue of his office, in his own name. On the whole, we are disposed to take the view that, although a receiver is not the assignee or beneficial owner of the property entrusted to his care, it is an incomplete and inaccurate statement of his relations to the property to say that (1) Cal. 305. 1006 he is merely its custodian, When a Court has taken property into its own charge and custody for the purpose of administration in accordance with the ultimate rights of the Parties to the litigation, it is in custodia legis. The title of the property for the time being, and for the purposes of the administration, may, in a sense, be said to be in the Court. The receiver is appointed for the benefit of all concerned; he is the representative of the Court, and of all Parties interested in the litigation, wherein he is appointed. He is the rightarm of the Court in exercising the jurisdiction invoked in such cases for administering the property; the Court can only administer through a receiver. For this reason; all suits to collect obtain possession of the property must be prosecuted by the receiver, and the proceeds received and controlled by him alone. If the suit has to be nominally prosecuted in the name of the true owners of the property, it is an inconvenient as well as useless form inconvenient, because in many cases, the title of the owners may be the subject matter of the litigation in which the receiver has been appointed useless, because the true owners have no discretion as to the institution of the suit, no control over its management, and no right to the possesion of the proceeds." (pp. 316 317) Later the learned judges pointed out, that for the time being and for the purpose of administration of the assets the real party interested in the litigation is the Receiver and, therefore, there is no reason why the suit could not be instituted in his own name. The learned Judges then referred to a number of cases in support of their conclusion. It seems to us that the view of the Calcutta High Court that a Receiver who is appointed with full powers to administer the property which is Custodia legis or 1007 who is expressly authorised by the court to institute a suit for collection of the assets is entitled to institute a suit in his own name provided he does so. in his capacity as a Receiver. If any property is in custodia legis the contesting parties cannot deal with it in an manner, and, therefore, there must be some authority competent to deal with it, in the interest of the parties themselves. A Receiver who is placed in charge of the property on behalf of a court can be the only appropriate person who could do so. His function cannot be Limited merely to the preservation of the property and it is open to a court if occasion demands, to confer upon him the power to take such steps including instituting suits in the interest of the parties themselves. Here apparently the Receiver was not a person with full powers but by its order dated June 26, 1949 the, court authorised him to collect debts, particularly as some debts were liable to get barred by time. The Receiver, therefore, had the right to institute the suit in question. It is, however, contended that the order does not say specifically that he should institute a suit. In our opinion, the authority given to the Receiver ",to collect the debts" is wide enough to empower the Receiver to take such legal steps as he thought necessary for collecting the debtsincluding instituting a suit. The suit as originally instituted, was thus perfectly competent. The High Court has observed that even assuming that it would have been more appropriate for the Receiver to show in the cause title that it was the firm which was the real plaintiff and that the firm was suing through him it was merely a case of misdescription and that the plaint could be amended at any time for the purpose of showing the correct description of the plaintiffs We agree with the High Court that where there is a case of misdescription of parties it is open to the court to allow an amendment of the plaint at any time and the question of limitation would not arise in such a case. 1008 [His Lordship then dealt with the point regarding the rate of interest.] x x x x x x x x x Accordingly we set aside the decree of the High Court, allow the appeal in part and pass a decree in favour of the respondent firm for Rs. 5,639/3/ with interest at 6 per cent per annum from the date of the transaction till realization. The respondent firm will proportionate costs throughout from the appellant firm, which would bear its own costs. Appeal allowed in part.

IN-Abs

A Receiver authorised and appointed by a Court to collect the debts due to the plaintiff respondent instituted a suit against the appellant firm and its alleged partners for the recovery of the price of tobacco and interest thereon. The right of the receiver to institute a suit in his own name was challenged by the appellant. Thereupon the respondent firm amended the Plaint by describing the plaintiff as "M/s. T. R. & Co., represented by I. Surayanarayana Garu receiver appoin. ted in O.S. 275 of 1948 on the file of the District Munsiff 's Court Guntur. " The appellant firm amended the written statement and contended that the amendment of the plaint was timebarred, that it did not cure the initial defect in the suit and that consequently, the suit was barred by limitation. The trial court dismissed the suit on the ground that Suryanarayana was not entitled to institute a suit in his capacity as Receiver, that the amendment of the plaint was beyond time and that the suit was therefore time barred. On appeal the High 996 Court held that the Receiver was entitled to institute the suit, that at the most there was a misdescription of the plaintifffirm in the cause title of the suit which could be corrected any time, that consequently the suit was within time and that the plaintiff was entitled to a decree with interest from the date of delivery of the goods till realization. Held, that a Receiver invested with full powers to administer the property which is custodia legis or who is expressly authorised by the court to institute a suit for collection of the assets is entitled to institute a suit in his own name provided he does so in his capacity as a Receiver. His function cannot be limited merely to the preservation of the property and it is open to a court, if occasion demands, to confer upon him the power to take such steps including instituting suits in the interest of the parties themselves. The suit as originally instituted, was thus perfectly competent. The High Court rightly held, that where there is a case of misdescription of parties it is open to the court to allow an amendment of the plaint at any time and the question of limitation would not arise in such a case. Jagat Tarini Dasi vs Naba Gopal Chaki (1907) r. L. R. , relied on. Held, further that this court does not interfere with the concurrent findings of the courts below on a pure question of fact, unless there are exceptional circumstances or unusual reasons which induce it to re examine the entire evidence. Srimati Bibhabati Devi vs Kumar Ramendra Narayan Boy, (1946) L. R. 73 1. A. 246 and Sriniwas Ram Kumar vs Mahabir Prasad, ; , referred to.

Appeal No. 509 of 1958. Appeal from the judgment and order dated February 22, 1956, of the Madras High Court in Case referred No. 66/52. K. N. Rajagopal Sastri and P. D. Menon, for appellant. T. section Venkataraman and M. K. Ramamurthi, for respondents. 139 1962. December 12. The following judgments were delivered. section K. Das J., J. L. Kapur J., and A. K. Sarkar,delivered separate judgments. The judgment of M. Hidayatullah and Raghubar Dayal, JJ., was delivered by Hidayatullah, J. section K. DAS, J. The facts of this appeal have been stated by my learned brother Kapur, J., and as I am in agreement with him, I need not re state the facts. The relevant assessment year was 1942 1943. The proceedings under section 34 of the Indian Income tax Act, 1922, were initiated with the issue of a notice on July 25, 1949. The assessee 's contention was that the initiation of proceedings on July 25, 1949, was invalid as the department 's right to revive the assessment was governed by old section 34 where the period of limitation prescribed was only four years in the case of a failure to file a return and this period having expired on March 31,1947, and the Amending Act of 1948 (XLVIII of 1948) having come into force on March 30, 1948, the eight years ' provided period therein could not be invoked. The High Court upheld this contention and said : "In our opinion, the contention of the learned counsel for the assessee is well founded, that the new rule of limitation of eight years prescribed by the amended section 34 would not apply to the case of the assessee before us., whose was an instance of a failure to submit a return, when the period of four years had ran out long before 30th March 1948 when the amended section 34 came into force as part of the Income tax Act with effect from that date, 30th March 1948. The learned counsel for the Department next referred to section 31 of Act XXV of 1953 140 in support of his contention, that 'the notice issued on 25th July 1949 was valid. The learned counsel himself had to realise that section 31 of Act XXV of 1953 did not enlarge the scope of the amended section 34; nor did it purport to amend it. The validity of the notice, dated 25th July 1949 will still have to be decided with reference to the provisions of the amended section 34. Section 31 of Act XXV of 1953 does not therefore affect the question at issue, whether the extended period of limitation of eight years would apply to the assessee when the period of limitation applicable to the assessee had expired before the amended section 34 came into force on 30th March 1948. " For the reasons given by me in section C. Prashar, Income tax Officer vs Vasantsen Dwarkadas (1) (C. A. 705/1957) in which judgment has been delivered today, I think that the High Court correctly answered the question referred to it. I would therefore dismiss the appeal with costs. KAPUR, J. This is an appeal against the judgment and order of the High Court of ' Madras. The appellant is the Commissioner of Income tax and the respondent is the assessee and the year of assessment is 1942 43. The respondent is the wife of one Sheikh Abdul Khadar who was residing abroad in Bangkok from September 1940 to July 1947. Daring that period he remitted moneys in the name of his agent for payment to the respondent. In the account year the aggregate amount so remitted was Rs. 9,180/ . The respondent submitted no return of her income as she was bound to do and the amount became taxable (1) [1964] Vol, 1 S.C.R. 29. 141 under section 4 (2) of the Income tax Act, hereinafter referred to as the "Act in 1949 the Income tax Officer on receipt of definite information that such income had escaped assessment issued a notice under section 34 of the Act as amended by the Amending Act of 1948 and an appeal was taken to the Appellate Assistant Commissioner but the assessment was con firmed. A further appeal to the Income tax Appellate Tribunal Madras, was also unsuccessful. The reference was thereupon made to the High Court and one of the questions referred was : "Whether the proceedings under section 34 of the Indian Income tax Act initiated on 25th July, 1949 to assess the amount of Rs. 9,180/ which escaped assessment during the year 1942 43 by failure to submit a voluntary return are valid in law"? It was held that the limitation of eight years prescribed by section 34 as amended by the Amending Act of 1948 did not apply to the case of the assessee which was a case of failure to submit the return and the period of four years ' had expired before March 30, 1948, when the amendment in section 34 was made by Amending Act of 1948. It was also held that section 31 of the Amending Act of 1953 was not applicable and the question was therefore answered in the negative. Against that judgment and order the Commissioner of Income tax has come in appeal to this Court. This case is governed by the decision in C. A. No. 705 /57 (section C. Prashar, Income tax Officer vs Vasantsen Dwarkadas) (1) the judgment in which has been delivered today. The appeal is therefore dismissed with costs. The appellant was granted the certificate by the High Court expressly on the condition that he would pay the costs of this appeal in any event to which he had agreed. (1)[1964] Vol. 1 S.C.R. 29. 142 SARKAR, J. The respondent in this appeal is the assessee. She is the wife of one Sheikh Abdul Khader who lived in Siam. In the year 1941 42, she received from her husband from Siam a sum of Rs. 9,180/ . It is not disputed that this amount constituted " 'income" in her hands within section 4 (2) of the Income tax Act, 1922. She did not however submit any return in respect of it. On July 25, 1949, a notice under section 34 of the Act was issued to her asking her to file a return. Thereafter she was assessed on the aforesaid income on October 24, 1949. She appealed from that order but was unsuccessful in having the assessment set aside. At her request, the Appellate Tribunal submitted the following question to the High Court at Madras for its decision: "Whether the proceedings under section 34 of the Indian Income tax Act initiated on 25th July 1949 to assess the amount of Rs. 9,180/ which escaped assessment during the year 1942 43 by failure to submit a voluntary return are valid in law ?" The High Court answered the question in the negative. The revenue authorities have, therefore, come up in appeal. Section 34 contains provisions for assessment and re assessment in cases where income for any year has not in the relevant assessment year been fully assessed for the reasons mentioned in it. With these reasons it is not necessary to trouble ourselves in this appeal. Sub section (1) of section 34 deals with the period of time within which a notice calling for a return of the escaped income may be served and sub section (3) deals with time within which the assessment can be made. This section was amended by the Income tax and Business Profits Tax (Amendment) Act, 1948. This Act was passed on 143 September 8, 1948 but the section which amended section 34, of the Income tax Act was brought into force retrospectively from March 30, 1948. It is not in dispute that under section 34, as it stood before the amendment, the time to issue the notice calling for a return and to make the assessment in this case had expired on March 31, 1947, that is, on the expiry of four years after the year in which the escaped income was first assessable, namely, 1942 43. It is not in dispute either that under section 34, as it stood after the amendment in 1948, the notice could be served and an assessment made within eight years from the end of that year, that is, in this case, within March 31, 1951. The notice and the assessment order impugned in this case have, therefore, to be held to be valid if section 34 after its amendment in 1946 was applicable. It is the contention of the appellant that it was so applicable. The High Court held that the time having already expired under the existing law, the amended section 34 could not be given retrospective operation to validate the notice and the order of assessment. Now, on May 24, 1953, was passed the Income tax (Amendment) Act, 1953, (XXV of 1953) which was brought into force retrospectively from April 1, 1952. This Act contained a section, namely, section 31, which to my mind makes section 34 as amended by the 1948 amending Act, applicable to the proceedings in this case. I am unable to accept the High Court 's view to the contrary and regret my inability to comprehend the reasons on which that view is based. That section also amended sub section (3) of section 34 so as to include in it provisions regarding the time of the issue of the notice but we will not be concerned with this amendment in this appeal. Now, section 31 is in these terms : Section 31. "For the removal of doubts it is hereby declared that the provisions of 144 sub sections (1), (2) and (3) of section 34 of the principal Act shall apply and shall be deemed always to have applied to any assessment or re assessment for any year ending before the 1st day of April, 1948, in any case where proceedings in respect of such assessment or re assessment were commenced under the said sub sections after the 8th day of September, 1948, and any notice issued in accordance with sub section (1) or any assessment completed in pursuance of such notice within the time specified in sub section(3), whether before or after the commencement of the Indian Income tax (Amendment) Act, 1953, shall, notwithstanding any judgment or order of any Court, Appellate Tribunal or Incometax authority to the contrary, be deemed to have been validly issued or completed, as the case may be, and no such notice, assessment or re assessment shall be called in question on the ground merely that the provisions of section 34 did not apply or purport to apply in respect of an assessment or re assessment for any year prior to the 1st day of April 1948." No question as to sub section (2) of section 34 mentioned in this section arises in this appeal and that sub section may be left out of consideration. It seems to me quite plain that section 31 of the 1953 Act applies sub sections (1) and (3) of section 34 of the Income tax Act, 1922 (hereafter called the principal Act), as it stood after the 1948 amendment, to assessment proceedings in respect of years ending before April 1, 1948 where the proceedings commenced after September 8, 1948 and makes the validity of the proceedings depend on that section as so amended. Indeed, the contrary has not been contended at the bar. It has to be remembered that the amending Act of 1948 was passed on September 8, 1948 145 but it was given retrospective effect from March 30, 1948. It may be stated that the amending Act repealed the existing section 34 of the principal Act and substituted for it a new section. I think it is quite clear that the pre existing section 34 which was repealed by the 1948 amendment could not have applied to proceedings commenced after repeal. There was no question of applying the pre existing law to such proceedings. But where the proceedings related to a period when the per existing law was in force, there might be some doubt as to which law was to apply. Section 31 was enacted to remove that doubt and to make section 34 of the principal Act as it stood after the 1948 amendment applicable to these proceedings. That is why the words "shall always be deemed to have applied" are used; they emphasise that the amended section is deemed always to have applied to proceedings even in respect of a period when the amendment had not been made. The latter part of section 31 also makes this view equally clear. It says that no notice or order of assessment shall be called in question on the ground that section 34 did not apply in respect of assessment for a year prior to April 1, 1948. Section 34 here contemplated must be the section as amended in 1948, for if it was not so, then it would be the pre existing section which of course would have applied, if not repealed, to an assessment for a year ending prior to April 1, 1948 and no question of its not so applying would have arisen. I thus arrive at the conclusion that under section 31 of the 1953 Act, the provisions of sub sections (1) and (3) I leave sub section (2) out as irrelevant of section 34 of the principal Act as amended in 1948 are to be applied and deemed always to have applied to assessment proceedings in respect of a year ended before April 1, 1948 where the proceedings were commenced after September 8, 1948, A notice issued and an order of assessment made in such proceedings are to 146 be held valid if the notice is issued ",in accordance with sub section (1)" of section 34 as it stood after the 1948 amendment and the assessment is ',completed in pursuance of such notice within the time specified in sub section (3)" of the same section 34. Now the notice and assessment in tie present case satisfy all these conditions. To them, therefore, section 34 as amended in 1948 applies. Judged by that section, admittedly the notice and assessment order are unexceptionable. It is true that in the present case when the notice was issued and the assessment made, the time to do either under the law as it stood before the 1948 amendment had expired. It may be that law would have applied to it if the 1953 Act had not been passed. It may also be, as was said in the Calcutta Discount Co. (1) case, that by itself, the 1948 amendment of section 34 would not have permitted assessment proceedings in respect of 1942 43 to be commenced in 1949 when under the previous law the time to issue a notice and to make an assessment for that year had expired before the 1948 amendment had come into force. All this however is to no purpose. No such question arises here. The legislature had undoubtedly the power to makes. 34 as amended in 1948 apply to an assessment for 1942 43 by giving it a retrospective operation inspite of the time to issue a notice and to make an assessment fixed by the preexisting law having expired before the amendment came into effect. The question really is one of interpretation, namely, whether the legislature had given such retrospective operation. Now it seems to me that section 31 of the 1953 Act clearly gives section 34 of the principal Act as amended in 1948 such retrospective operation. It plainly makes section 34 as so amended applicable to assessments for years ended before the amendment came into force. It does not say that section 34 as amended is to apply to assessments for these years only when the time to (1) I.A.R. 147 issue the notice or make the assessment in respect of these years under the pre existing law had not expired. It applies the amended section 34 "to any assessment for any year ending before the 1st day of April, 1948 in an case where proceedings . . . were commenced after the 8th day of September 1948". Likewise any notice and any assessment in respect of any year ending before April 1, 1948 is to be held valid, if valid under section 34 as amended in 1948. I find no justification in view of the language used to interpret section 31 as applying section 34 as amended in 1948 only to cases where thetime to issue the notice and make the assessment hadnot expired while the pre existing law was in force. The latter part of section 31 seems to lead independently to the same conclusion. It makes "any notice issued in accordance with sub section (1) or any assessment completed in pursuance of such notice within the time specified in sub section (3)" valid. All that is necessary is that all notices and assessment orders in respect of years ending before April 1, 1948 in proceedings commenced after April 8,1948 shall comply with the provisions of section 34 as amended in 1948. So a notice and an assessment order valid under section 34 as amended in 1948 would be valid even if the time prescribed in respect of them by section 34 as it stood before the 1948 amendment, had expired. In my view, for these reasons, section 34 of the principal Act as amended in 1948 applies to the notice issued and the assessment order made in this case. Both of them are valid under section 34 as so amended. The High 'Court should have answered the question framed in the affirmative. In the result, I would allow the appeal and set aside the order of the High Court. The appellant will however pay the respondent 's costs of this appeal as it had agreed to do so as appears from the certificate on which this appeal has been admitted. 148 [For the judgment of Hidayatullah and Raghubar Dayal, JJ., see section C. Prashar, Income tax Officer vs Vasantsen Dwarkadas, ante p. 29.] By COURT : In accordance with the opinion of the Omajority, the appeal is allowed. The appellant will pay the costs of the respondent as was agreed to by the parties. Appeal allowed.

IN-Abs

In the year of account relevant to the assessment year 1942 43, the assessee received Rs. 9,180/ , but submitted no return of her income. On July 25, 1949, the Income tax Officer, on receipt of definite information that such income had escaped assessment, issued a notice to her under section 34 of the Indian Income tax Act, 1922, as amended by the Indian Income tax and Business Profits Tax (Amendment) Act, 1948. Thereafter, she was assessed on the aforesaid income on October 24, 1949. She challenged the validity of the proceedings under section 34 initiated on July 25, 1949, on the grounds, that the right to revive the assessment was governed by the provisions of section 34, before it was amended in 1948, under which the period of limitation prescribed was four years in the case of a failure to file a return and that this period having expired on March 31, 1947, and the Amending Act of 1948 having come into force only March 30, 1948, the eight years ' period provided therein could not be invoked. For the Income tax Authorities, the validity of the notice was sought to be sustained by the additional ground that, in any case, section 31 of the Indian Income tax (Amendment) Act, 1953, validated the notice. Held (per Sarkar, Hidayatullah and Reghubar Dayal, JJ., Das and Kapur,JJ., dissenting), that section 34 of the Indian Income tax and Business Profits Tax (Amendment) Act, 1948, was applicable to the proceedings in the present case and that the notice dated July 25, 1949, was valid. 138 Per Das and Kapur,JJ. The limitation of eight years prescribed by section 34 as amended by the Amending Act of 1948 did not apply to the present assessee which was a case of failure to submit the return, when the period of four years had expired before March 30, 1948, when the amendment in section 34 was made by the Amending Act of 1948. Section 31 of the %mending Act of 1953 did not enlarge the scope of the amended section 34, and did not validate the notice dated July 25, 1949. Per Sarkar, J. By virtue of section 31 of the Amending Act of 1953, a notice issued and an order of assessment made in respect of a year ended before April 1, 1948, where the proceedings were commenced after September 8, 1948, were to be held valid if the notice was issued in accordance with sub s, (1) of section 34 as it stood after 1948 amendment and the assessment was completed in pursuance of such notice within the time specified in sub section The notice and assessment in the present case satisfied all these conditions and, therefore, section 34 as amended in 1948 was applicable. Such a notice and an assessment order valid under section 34 as amended in 1948 would be valid even if the time prescribed in respect of them by section 34 as it stood before the 1948 amendment had expired. Per Hidayatullah and Raghubar Dayal, JJ. The action was taken after 1948 amendment by which income, profits and gains which had escaped assessment by reason of the omission or failure of the assessee to make a return of the income could be brought to tax after serving a notice within eight years from the end of the relevant year. Hence the notice in 1949 was within eight years from 1942 43 and was validly issued section C. Prashar, Income tax Officer vs Vasantsen Dwarkadas, [1964] Vol. 1 S.C.R. 29. , relied on.

ppeal No. 209 of 1962. Appeal by special leave from the judgment and order dated October 10, 1961, of the Gujarat High Court in Civil Revision Application No. 378 of 1960. R. Ganapathy Iyer, B.R.G.K. Achar and K.L, Hathi, for the appellant. M. section K. Sastri and M. section Narasimhan, for respondents. 314 1962. May 4. 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 Gujarat. The appellant was a tenant of certain residential premises situate at Anand, and belonging to the respondents landlords. Under a contract between the parties, he held them at Rs. 75/ per mensem according to Indian Calendar. In 1951 the appellant applied for fixation of standard rent. On March 31, 1954, the standard rent was fixed at Us. 25/. per mensem. The appellant did not pay the arrears of rent from July 27, 1949, to July 5, 1954. On October 16, 1954, the landlords gave him notice to quit the premises stating therein 'that rent for over six months was in arrears and that he was to quit on the last day of the month of tenancy which was Kartak Vad 30 of Samvat Year 2011. The appellant neither paid the arrears of rent nor vacated the premises. (in December 16, 1954, the respondents filed the suit for ejectment basing their claim for ejectment on the provisions of section 12(3) (a) of the Bombay Rents, Hotel and Lodging House rates Control Act, 1947 (Bom. LVII of 1947), hereinafter called the Act. Within two months of the institution of the suit, the appellant deposited an account of Rs. 1,075/ in Court, towards arrears of rent and, with the permission of the Court, the respondents withdrew a sum of Rs. 900/ which was the amount due for arrears up to that time. The Trial Court decreed the suit for ejectment together with arrears of rent for three years and costs. An appeal against the decree for ejectment was dismissed by the appellate Court. The revision to the High Court was also uusuccessful, and, it is 315 against the order in revision that this appeal has been preferred. Four points were urged before the High Court: (1) That the month of tenancy was not by the Indian Calendar, but was by the British Calendar and that the Courts below had ignored evidence in that regard. (2) Assuming that the month of tenancy was by the Indian Calendar according to the lease, it would be deemed to be by the British Calendar in view of the provision of section 27 of the Act. (3) As the arrears of rent had been paid within two months of the institution of the suit, the appellant be deemed to be ready and willing to pay the rent and that therefore the landlord was not entitled to recover possession of the premises. (4) It is discretionary with the Court to pass a decree for ejectment in a. case under section 12(3) (a) of the Act, as the expression, used in that subclause is 'the Court may pass a decree for eviction in any such suit for recovery of possession. ' The High Court held that the findings of the Courts below that the month of tenancy was by the Indian Calendar was based on a consideration of the evidence on the record and therefore was binding. It also held that it could not be deemed to be by the British Calendar in view of section 27 of the Act which provided that the rent would be recovered according to the British Calendar, notwithstanding anything contained in any contract and did not provide for the tenancy to be by the month according to the British Calendar even if the tenancy under the Contract was by a different Calendar. The High Court also held that the tenant 's depositing arrears of rent within two months of the institution of the suit would not justify holding that the tenant was ready and willing to pay the amount of standard rent and that therefore the .landlord was not entitled to recover possession 316 of the premises in view of sub s.(1) of section 12 of the Act. Lastly, the High Court held that the Court is bound to pass a decree for ejectment under section 12 (3) (a) if it be proved that the rent was payable by the month, that ' it had been in arrears for a period of six months and that the tenant failed to make payment of the arrears until the expiration of the period of one month after the service of notice referred to in sub.s. (2) of that section. , As a result, the revision was dismissed. Two points have been urged for the appellant in this Court. One is that the month of the tenancy was to be by the British Calender in view of section 2 7 of the Act and r. 4 framed thereunder, and that there could be no forfeiture of the tenancy when the arrears of rent had been paid within two months of the institution of the suit. The significance of the first question is that if the appellant 's tenancy was to be by the month of the British Calendar, notice to quit was a bad notice as it did not comply with the requirements of s.106 of the Transfer of Property Act and that therefore there had been no determination of the tenancy which is a condition precedent for the landlord being entitled to possession and, coin. sequently, for instituting a suit for ejectment on any ground whatsoever, including the ground of rent being in arrears. The first point to determine, therefore, is whether it is a condition precedent for the institution of a suit by a landlord for the recovery of possession from a tenant who has been in arrears of rent that there had been first a determination of the contractual tenancy. If it is not a condition precedent; it will not be necessary to determine whether the month of the tanancy continued to be according to the Indian Calendar according to the contract, or had been according to the British 317 Calendar in view of a. 27 of the Act, when a tenancy is created under a contract between the landlord and the tenant, that contract must hold good and continue to be in force till, according to law or according to the terms of contract, it comes to an end. Section III of the Transfer of Property Act states the various circumstances in which a lease of immovable property determines. Clause (b) provides for the determination of the lease on the expiration of a notice to determine the lease, or to quit, or of intention to quit, the property leased, duly given by one party to the other. There is nothing in the act which would give a right to the landlord to determine the tenancy and thereby to got the right to( evict the tenant and recover possession. This Act was enacted for the purpose of controlling the rents and repair of certain premises and of evictions due to the tendency of landlords to take advantage of the extreme scarcity of premises compared to the demand for them. The Act intended therefore to restrict the rights which the landlords possessed either for charging excessive rents or for. evicting tenants. A tenant stood in no need of protection against eviction by the landlord so long as he had the necessary protection under the terms of the contract between him and the landlord. He could not be evicted till his tenancy was determined according to law and therefore there was no necessity for providing any further protection in the Act against his eviction so long as his tenancy continued to exist under the contract. Sub section(1) of section 12 of the Act provides 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 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 318 provisions of the Act. It creates a restriction on the landlords right to the recovery of possession. When the landlord will have such a right is not provided by it. Ordinarily, the landlord will have a right to recover possession from the tenant when the tenancy had determined. The provisions of this section therefore will operate against the landlord after the determination of the tenancy by any of the modes referred to in a. III of the Transfer of property Act. What this section of the Act provides is that even after the determination of the tenancy, a landlord will not be entitled to recover possession, though a right to recover possession gets vested in him, so long as the tenant complies with what he is required to do by this section. It is this extra protection given by this section which will be useful to the tenant after his tenancy has determined. The section does. not create a new right in the landlord to evict the tenant when the tenant does not pay his rent. It does not say so, and therefore, it is clear that a landlords right to evict the tenant for default in payment. of rent will arise only after the tenancy is determined, and the continued possession of the tenant is not account of the contractual terms but on account of the statutory right conferred on him to continue in possession so long as he complies with what sub s.1 requires of him. The landlord is restricted from evicting the tenant till the tenant does not do what he is required to do for peaceful possession under sub s.(1) of section 12. We are therefore of opinion that where a tenant is in possession under a lease from the landlord, he is not to be evicted for a cause which would give rise to a suit for recovery of possession under s.12 if his 'tenancy has not been determined already. It follows that whenever a tenant acts in a way which would remove the bar on the landlord 's right to evict him it is necessary for the landlord to serve him with. a notice 319 determining his tenancy and also serve him with a notice under sub s.(2) of section 12 of the Act. In this connection reference may be made to what wag stated in Dr. K. A. Dhairyawan vs J. R. Thakur .(1). In that case, the landlord granted a lease of a parcel of land to the lessees for a certain period. The lessee was to construct a building on that land. On the termination of the lease, the lessees were to surrender and yield up the demised promises including the building to the lessors. After the expiry of the period of the lease, the lessor sued for a declaration that they were entitled to the building and were entitled to claim possession of the same. The lessees pleaded that they were also lessees of the building and were protected from eviction therefrom by the provisions of the Bombay Rents, Hotel and lodging House Control Act, 1947, and that the covenant for delivering possession of that building could not be enforced as the lease in respect of the land could not be terminated on account of the protection given by the Act. It was held that under the lease there was a demise only of the land and not of the building, and, consequently, the provisions of the Act dit not apply to the contract of delivery of possession of the building. It was contended that even in such a case, possession of the building could not be given until the lease bad been determined, which in law, could not be determined so long as the respondents could not be evicted from the demised land of which they were tenants within the meaning of the Act. This contention was repelled. It was said at p. 808: "This contention is without force as the provisions of the Act do not provide for the continuation of a lease beyond the specified period stated therein. All that the Act does is to give to the person who continues to (1) ; 320 remain in possession of the land, although the period of the lease had come to an end, the status of a statutory tenant. That is to say, although the lease had come to an end but the lessee continued to remain in possession without the consent of the lessor, he would nonetheless be a tenant of the land and could not be evicted save as provided by the Act. " This means that the provisions of the Act did not affect the terms of the lease according to which the lease came to an end after the expiry of the period for which it was given. The lessee 's possession after the expiry of the lease was by virtue of the provisions of the Act and not by virtue of the extension of the period of the lease. It is a necessary consequence of this view that the restriction on the landlord 's right to recover possession under section 12 of the Act operates after he has determined the tenancy and that till then the rights between the parties with respect to eviction would be governed by the Ordinary law. It was said in Ragbubir Narayan Lotlikar vs Fernandez (1). Rents, Hotel and Lodging House Rates Control Act (Bom Act LVII of 1947): ,, 'In our opinion, s.28 applies only to those suits between a landlord and a tenant where a landlord has become entitled to possession or recovery of the premises demised. Under the Transfer of Property Act a landlord becomes entitled to possession when there is a determination of tenancy. A tenancy can be determined in any of the modes laid down in section 111; and once the tenancy is determined, under s.108 (q) the lessee is bound to put the lessor into possession of the property. It (1) , 511. 321 is, therefore, only on the determination of the lease or the tenancy that the landlord be comes entitled to the possession of the pro perty, and when he has so becomes entitled to possession, if he files a suit for a decree for possession, then section 28 applies and such a suit can only be filed in the Small Causes Court. " Again it was said at the same page: "Section 12 postulates the fact that landlord is entitled to recovery of possession and he is only entitled to possession under the provisions of the Transfer of Property Act. It is only when he so becomes entitled that the Legislature steps in and prevents the enforcement of his right by the protection which it gives to the tenant. No question of the application of section 12 can arise if a landlord is not entitled to possession at all. " A similar view was expressed in Karsandas vs Karsanji (1) It was said: ". that a tenancy must be duly determined either by a notice to quit or by efflux of time or under one or the other of the clauses of section III, T. P, Act before a landlord can one to, evict his tenant on any of the grounds contained in the clauses of s 13 (1) of the Bombay Rent Act as applied to Saurashtra. Therefore a notice determining the tenancy and calling upon the tenant to quit was in this case a necessary prerequisite to the institution of the suit. " The cases reported as Rai Brij Raj Krishna vs section K. Shaw and Brothers (2) and Shri Hem Chand vs Shrimati Sham Devi (3) are distinguishable. In, the former case, s.11 of the Bihar Buildings (1) A.I.R. (1953) Sau. 113, 118. (2) ; ,150. (3) I.L.R. (1955) Punj. 322 (Lease, Rent and Eviction) Control Act, 1947, (III of 1947), came for interpretation by this Court and, in that connection it was said "Section II beings with the words 'Not withstanding anything contained in any agree ment or law to the contrary ', and hence any attempt to import the provisions relating to the law of transfer of property for the inter pretation of the section would seem to be out of place. Section 11 is a self contained sec tion, and it is wholly unnecessary to g o outside the Act for determining whether a tenant is liable to be evicted or not, and under what conditions he can be evicted. It clearly provides that a tenant is not liable to be evicted except on certain conditions, and one of the conditions laid down for the eviction of a month to month tenant is non payment of rent. " In the present case, section 12 of the Act is differently worded and cannot therefore be said to be a complete Code in itself. There is nothing in it which overrides the provisions of the Transfer of Property Act. Shri Hem Chand 's Case (1) dealt with the provisions of s.13(i) of the Delhi and Ajmer Merwara Rent Control Act XXXVIII of 1952. This section provided that no decree or order for the recovery of possession of any promises shall be passed by any court in favour of the landlord against a tenant, notwithstanding anything to the contrary contained in any other law or any con tract. It was held that the Rent Control Act provided the procedure for obtaining the relief of ejectment and that being so the provisions of section 106 of the Transfer of property Act had no relevance, in considering an application for ejectment (1) I.L.R. (1955) Punj 36. 323 made under that Act. There is nothing in the Act corresponding to the provisions of section 13(1) of the Delhi Ajmer Merwara Act. It is unnecessary for us to consider whether Shri Hem Chand 's case was rightly decided or not. In Meghji Lakhamahi and Brothers V. Furniture Workshop (2) the Privy Council dealt with an application for possession under section 16 of the Increase of rent (Restriction) Ordinance, No. 23 of 1949 (Kenya) whose relevant portion is : "(1) No order for the recovery of possession of any premises to which this Ordinance applies, or for the ejectment of a tenant therefrom, shall be made unless . (k) the landlord requires possession of the premises to enables the reconstruction or rebuilding thereof to be carried out. " It was said : "In the present case the only question is whether section 16(i) (k) is so framed as to envisage or make provision for such an order. An application for possession under section 16 presupposes that the contractual tenancy of the demised premises has been determined. It is not possible to determine it as to part and keep it in being as to the remainder. In the present case the tenancy of the entire demised premises had been determined. " The right to possession is to be. distinguished from the right to recover possession. The right to possession arises when the tenancy is determined. The right to recover possession follows the right to possession, and arises when the person in possession does not make over (1) I.L.R. (1955) Punj. (2) ,90. 324 possession as he is bound to do under law, and there arises a necessity to recover possession through Court. The cause of action for going to Court to recover possession arises on the refusal of the person in possession, with no right to possess, to deliver possession. In this context, it is clear that the provisions of section 12 deal with the stage of the recovery of possession and not, with the stages prior to it and that they come into play only when the tenancy is determined and a right to possession has come in existence. Of course, if there is not contractual tenancy and a person is deemed to be a tenant only on account of a statute giving him right to remain in possession, the right to possession arises on the person in possession acting in a manner which, according to the statute, gives the landlord right to recover possession, and no question for the determination of the tenancy arises, as really speaking, there was no tenancy in the ordinary sense of that expression. It is for the sake of convenience that the right to possession, by virtue of the provisions of a statute, has been referred to as statutory tenancy. In Ebner vs Lascelles (1) It was said, dealing with the provisions of Increase of Rent and Mortgage Interest (Restrictions) Act, 1920 (10 and 11 Geo. 5, c. 17) : "It has been truly said that the main rights conceded to a tenant under these Acts are, first a right to hold over or 'status of irremovability, ' and, next, a right not to have his rent unduly raised. The right to hold over is a right that comes into existence after the expiration of the contractual tenancy. During the contractual tenancy the tenant, being in possession under the protection of his contract, has no need of the protection of the Act to enable him to retain possession, but (1) ,497. 325 during that tenancy the Act protects him in regard to rent by providing that, notwith standing any other agreements which he may make with his landlord as to rent, he is not to be charged a higher rent than the law allows, and if he is charged a higher rent than that he can have it reduced. The right to hold over after the termination of the con tractual tenancy. and the right to protection during the contractual tenancy are two right s which must be kept distinct from each other. " It may be mentioned that section 5 of the aforesaid Act of 1920 provided that no order or judgment for the recovery of possession of any dwelling house to which the Act applied or for the ejectment of a tenant therefrom would be made or given unless the case fell within one of the clauses mentioned in sub. s.(1). We are therefore of opinion that so long as the contractual tenancy continues, a landlord cannot sue for the recovery of possession even if s.12 of the Act does not bar the institution of such a suit, and that in order to take advantage of this provision of the Act he must first determine the tenancy in accordance with the provisions of the Transfer of Property Act. It is now necessary to determine whether a notice served on the appellant to quit the tenancy on October 16, 1954, the last date of the month according to the Hindu Calendar, as October 16 happened to be Kartik Vad 30 of section Y. 2011, the tenancy having commenced from Kartik Sud 1 of S.Y. 1963. It is not disputed that originally the tenancy was according to the Hindu Calendar. The contention for the appellant is that this month to month tenancy, according to the Hindu Calendar, was 326 converted to a similar tenancy according to the British Calendar in view of the provisions of s.27 of the Act and r. 4 of the Rules framed under the Act. Section 27 of the Act reads: "(1) Notwithstanding anything contained in any law for the time being in force or any contract, custom or local usage to the contrary, rent payable by the month or year or portion of a year shall be recovered according to the British Calendar. (2) The State Government may prescribe the manner in which rent recoverable according to any other calendar before the coming into operation of this Act shall be calculated and charged in terms of the British Calendar. " Rule 4 of the Bombay Rents, Hotel and Lodging House hates Control Rules, 1948, hereinafter called the Rules, reads: "Calculation of rent according to British Calender. If, before the Act comes into force, the rent in respect of any premises was chargeable according to a calendar other than the British Calendar, the landlord shall recover from the tenant rent for the broken period of the month, year or portion of the year immediately preceding the date on which the Act comes into force, proportionate amount according to the aforesaid Calendar month, year or portion of the year at which the rent was then chargeable. After such date the landlord shall recover rent according to the British Calendar. The rent chargeable per month according to the British 327 Calendar shall not exceed the rent which was chargeable per month according to the other calendar followed immediately before such date. " There is nothing irk the aforesaid rule or the section about the conversion of the month of the tenancy from the month according to the Hindu calendar to the month according to the British Calendar. They only provide for the recoverability of the rent according to the British Calendar. Since the enforcement of the Act on February 13, 1948, the monthly rent would be for the month according to the British Calendar. The monthly rent could be recovered after the expiry of a month from that date or the rent for the period from the 13th February to the end of the month could be recovered at the monthly rate and thereafter after the expiry of each Calendar month. There is nothing in the section or the rule in regard to the date from which the month for recovery of rent should commence. This provision was made probably, as a corollary, to the statute providing for standard rents. Standard rents necessitate standard months. There are a number of calendars in use in this country. The Hindus themselves use several calendars. The Muslims use a different one. Some calendars are used for particular purposes. It appears to be for the sake of uniformity and standardisation that a common calendar was to govern the period of the month of the tenancy and the date for the recovery of the rent. Rule 4 provided a procedure for adjustment of the recovery of the rent according to a calendar other than the British Calendar, and further provided that the rent chargeable per month, according to the British Calender, would not exceed the rent which was chargeable per month according to the other calendar followed immediately before that date. In the absence of any specific provision in the Act with respect to any alteration to be made in the period of the month of the 328 tenancy, it cannot be held merely on the basis of an alteration in the period for the recovery of rent that the monthly period of tenancy had also been changed. The tenancy can be from month to month and the recoverability of the rent may not be from month to month and may, under the contract, be based on any period say, a quarter or half year or a year. There is nothing in law to make the month for the period of recovering rent synchronize with the period of the month of the tenancy. The tenancy must start on a particular date, and, consequently, its month would be the month from that date, according to the calendar followed. The month of tenancy according to that calender are settled by contract from the commencement of, the tenancy. The tenancy under a lease for a certain period starts from a certain date, be it according to the British Calendar or any other Calendar. The period of, lease. and consequently the tenancy, comes to an end at the expiry of that period according to the calendar followed by the parties in fixing the commencement of the tenancy. A lease, even according to the British Calendar, can start from any intermediate date of the calendar month. There is nothing in section 27 to indicate that the month of the tenancy to such a lease will start from the first of a regular month. Section 27 simply states that the rent would be recovered according to the British Calendar without fixing the first date of the month as the date from which the month, for the purposes of the recovery of the rent, would be counted. It follows that the month of the tenancy which commences on the 14th of a month, would be from the 14th to the 13th of the next month, according to the British Calendar. The rent would be recoverable with respect .to this period of a month. No interference with any such term of the contract has been made by any provision of the Act and therefore we hold that the provisions of section 27 of the Act and r. 4 of 329 the Rules, do not in any way convert the month of the tenancy according to the Indian Calendar to the month of the British Calendar. The High court said in his judgment that Mr. Parghi, who was appearing for the appellant, was unable to cite any decision in support of the contention raised by him. Our attention, however, has been drawn to two cases decided by the Bombay High Court. They are Civil Revision Applications Nos. 247 of 1956 and 1583 of 1960 decided by Dixit and Tendolkar, JJ and Patwardban J., on February 22, 1957, and August 16, 1961, respectively. The latter decision had to follow the earlier one. In the earlier case, the notice to quit required the tenant to give possession on May 1, 1953. The tenancy had commenced according to the Hindu Calendar. The notice was given according to the British Calendar. The High Court held the notice to be valid, agreeing with the contention that . the effect of the provisions of a. 27 of the Act was lo make the tenancy which was originally according to the Hindu Calendar, a tenancy according to the British Calendar. The ratio of the decision, in the words of the learned Judges, is : "Now rent is payable for occupation by the defendant and therefore, the tenancy must be deemed to be one according to the British Calendar from the first of the month to the end of the month. . . . Here is a local law which by section 27 makes the tenancy as one according to the British Calendar". We are of opinion that this view is wrong. We, therefore, hold that the notice to quit issued to the appellant was therefore a valid notice as held by the Court below and determined the tenancy of the appellant. 330 The second contention that, the appellant 's having paid the arrears of rent within 2 months of the institution of the suit, there would be no forfeiture of the tenancy has no force in view of the provisions of section 12 of the Act. Sub section (2) permits the landlord to institute a, suit for the eviction of a tenant on the ground of non payment of rent after the expiration of one month from the service of the notice demanding the arrears of rent, and cl. (a) of sub s.(3) empowers the Court to Pass a decree in case the rent had been payable by the month, there was no dispute about the amount of standard rent, the arrears of rent, had been for a period of six months and the tenant had neglected to make the payment within a month of the service of the notice of demand. The tenant 's paying the arrears of rent after the institution of the suit therefore does not affect his liability to eviction and the Court 's power to pass a decree for eviction. It is true that the expression used in el. (a) of sub s.(3) is 'the Court may pass a decree for eviction in any such suit for recovery of possession ', but this does not mean as contended for the appellant, that the Court has discretion to pass or not to pass a decree for eviction in case the other conditions mentioned in that clause are satisfied. The landlord became entitled to recover possession when the tenant failed to pay rent and this right in him is not taken away by any other provision in the Act. The Court is therefore bound in law to pass the decree when the requirements of sub s (2) of s.12 are satisfied. This is also clear from a comparison of the language used in cl. (a) with the language used in cl. (b) of sub section (3) which deals with a suit for eviction which does not come within cl.(a) and provides that no decree for eviction shall be passed in such a 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 331 standard rent then due and thereafter continues to pay or tender in Court regularly such rent till the suit is finally decided and also pays costs of the suit as directed by the Court. It is clear that where the legislature intended to give some benefit to the tenant on account of the payment of the arrears during the pendency of the suit, it made a specific provision. In the circumstances, we are of opinion that the Court has no discretion and has to pass a decree for eviction if the other conditions of sub.s. (2) of section 12 of the Act are satisfied. The result therefore is that this appeal fails, and is accordingly dismissed with costs. Appeal dismissed.

IN-Abs

The appellant was a tenant of the respondents in respect of certain residential premises. The tenancy was by the Indian Calendar. The appellant did not pay arrears of rent for about 5 years and the landlords gave him notice to quit as he was in arrears of rent for more than six months and asked him to quit on the last day of the Indian month. On the appellant 's failure to comply the landlords filed a suit for ejectment under section 12 (3) (a) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. Within two months of the institution of the suit the appellant deposited the arrears of rent. The suit for ejectment was decreed. The appellant contended that in view of section 27 of the Act and r. 4 the tenancy was deemed to be by the British Calendar and the notice to quit expiring with the end of the Indian month was invalid and that he should have been relieved against forfeiture. The landlords contended that no notice to quit was necessary for filing the suit, that the notice given was valid and that there could be no relief against forfeiture. Held, that the suit for ejectment was rightly decreed. it was incumbent upon the landlords to determine the contractual tenancy by a proper notice before they could file a suit for the ejectment of the tenant on the ground of non. payment of arrears under section 12(3) (a) of the Act. The Act did not create a new right in the landlord to evict the tenant for nonpayment of rent; the right to evict was dependent upon a proper termination of the tenancy. The Act gave extra protection to the tenant which he could avail of after his tenancy was determined. There was nothing in section 12 of the Act which overrode the provisions of the transfer of Property Act. The right to possession had to be distinguished from 313 the right to recover possession. The right to possession arose on the determination of the tenancy and the right to recover possession arose under the Act after the right to possession had arisen. Dr. K.A. Dhairyawan, vs J.R. Thakur, ; , Baghubir Narayan Lotlikar vs Fernandiz, (1952) Bom. L.R. 505, Karsandas vs Karsanji, A.I.R. (1953) Sau. 113, Meghji Lakhamahi vs Furniture Workshop, and Ebner vs Lascelles, , referred to. Bai Brij Bai Krishna vs S.K. Shaw and Bros. [1951] S.C.R. 145 and Shri Hem Chand vs Shrimati Sham Devi, I.L.R. 1955) Punj. 36, distinguished. The notice to quit was a valid notice. The original tenancy was according to the Indian Calendar and there was nothing in section 27 of the Act or in r.4 which converted it into a tenancy according to the British Calendar. Section 27 and r. 4 merely provided for the recoverability of rent according to the British Calendar. In view of the provisions of section 12 there could be no relief against forfeiture in the present case. Section 12(3)(a) empowered the court to pass a decree for eviction in case of rent payable month by month if the arrears of rent had been for a period of six months and the tenant had neglected to make the payment within a month of the service of the notice of demand. The payment of arrears after institution of the suit did not affect his liability to eviction and the court 's power to pass the decree. The Court was bound to pass the decree when the requirments of the section were satisfied.where the ' legislature intended to give relief against forfeiture it made a specific provision.

Appeals Nos. 489 & 490 of 1961. Appeals by special leave from the award dated March 16, 1959, of the Second Industrial Tribunal, Delhi in Reference I. D. No. 20 of 1958. G.S. Pathak, section T. Desai, M. L. Sethi, B. Dutta and Anand Prakash, for the appellant (in C. A. No. 489/61) and the respondent (in C. A. No. 490/61). M. C. Setalvad, Attorney General for India M.K. Ramamurthi, D. P. Singh, R. K. Garg and S.C. Agarwal, for the respondents (in C.A. No. 489/61) and the appellants (in C. A. No. 490/61). December 14. The judgment of the Court was delivered by DAs GUPTA,. ' J. These two appeals by special leave, one by the employer and the other by the workmen, arise out of an industrial dispute that was referred for adjudication to the Industrial Tribunal Delhi, by an order made on January 23, 1958 by the Chief Commissioner, Delhi. The Tribunal made its award on March 16, 1959. Out of the numerous 237 matters that were included in the terms of reference, we are concerned in these appeals only with a few. The employer challenges the award as regards : (1) Scales of pay, (2) Dearness allowance, (3) Adjustments, (4) Leave Rules, (5) Gratuity and (6) Retrospective effect of the award. The workmen also attacked the award as regards the scales of pay and dearness allowance. In addition, they have attacked the award as regards the working hours, leave rules, night shift allowance, retirement age and procedure for taking disciplinary action. At the time of the hearing before us however the learned Attorney General, appearing for the workmen, did not press their claim for modification of the award as regards, night shift allowance, leave rules and procedure for taking disciplinary action and working hours. It appears that when the dispute was before the Conciliation Officer, Delhi, for settlement an interim agreement was arrived at between the parties on December 20, 1957 by which the management agreed to give certain interim reliefs, ranging between Rs. 6/ to Rs. 10/ per month from the month of November 1957. One of the terms of the agreement was that this payment "will be adjusted against the final outcome of the demands by constitutional means". The Tribunal has in its award given a direction that this interim relief shall remain unaffected. Taking this to be a direction that the adjustment as agreed upon of payments under the interim arrangement shall not be made, the employer has in its appeal challenged the correctness of this direction also. The most important of the matters in dispute are the questions of the wage scale, the dearness allowance and the adjustment of existing employees into the new scales. It appears that from 1946 onwards the Company 's workmen have had a consolidated wage scale, no distinction being made between 238 the basic wage and the dearness allowance. This wage scale has remained practically unaltered except for some special increments given in the year 1948. By the award the Tribunal has introduced new wage scale for certain existing categories of workmen and in some cases has introduced new scales, after amalgamating more than one category. Thus certain railway despatchers, advertisers, Box No. sorters, filing clerks and bank clerks who were formerly in the scale of Rs. 50 4 90 EB 4 115 and Junior Clerks etc., who had a scale of Rs. 60 100EB 4 115 have all been put on a new scale of Rs. 70 5 100 EB 5 150. There has been a similar amalgamation or clerks, assistants, cashiers, record keepers and others some of whom were on Rs. 80 175 and some on Rs. 80 203 scale, all of them being now put on a new scale of Rs. 90 200. In both cases the starting salary has been raised; the maximum has been raised for the first category. Supervisors and others who were formerly on three different scales, some on Rs. 125 350, some on Rs. 125 300, and some on Rs. 100 250, have all been amalgamated and have been put on a new scale of Rs. 100 350. Obviously, this would mean a lower starting salary for some and maximum for some. ,job I)Daftries some of whom were on Rs. 70 115 scale and others on Rs. 100 155 have all been put on a new scale of Rs. 80 to Rs. 11,15, resulting thus in a lowering of starting salary for some and a rise of a higher maximum for all. A similar lowering in the starting salary has also occurred in cases of some of the jobmachinemen. They were formerly on two scales, one of Rs.125 175 and the other of Rs. 75 175. The Assistant Foremen in the job Department formerly on Rs. 125 175 are put on a scale of Rs. 125 202. Where there has been no amalgamation the new scale has resulted in a slight increase in some cases both in the starting salary and the maximum. In some catagories, no change has been made at all, 239 It is unnecessary to give more details of the difference between the old scale and the new scale as what has been mentioned above is sufficient to indicate that there has been some change in favour of the workmen, though this change is not much. The employer 's contention before us is that there was no case for any revision whatsoever and the Tribunal acted wrongly in making any change in the old wage scale. The workmen 's contention on the contrary is that the changes do not go far enough. The fixation of wage structure is among the most difficult tasks that industrial adjudication has to tackle. On the one hand not only the demands of social justice but also the claims of national economy require that attempts should be made to secure to workmen a fair share of the national income which they help to produce, on the other hand, care has to be taken that the attempt at a fair distribution does not tend to dry up the source of the national income itself On the one hand, better living conditions for workmen that can only be possible by giving them a "living wage" will tend to increase the nation 's wealth and income on the other hand, unreasonable inroads on the profits of the capitalists might have a tendency to drive capital away from fruitful employment and even to affect prejudicially capital formation itself. The rise in prices that often results from the rise of the workmen 's wages may in its turn affect other members of the community and may even affect prejudicially the living conditions of the workmen themselves. The effect of such a rise in price on the Country 's international trade cannot also be always ignored. Thus numerous complex factors, some of which are economic and some spring from social philosophy give rise to conflicting considerations that have to be borne in mind. Nor does the process of valuation of the numorous factors remain static. While international movements in the cause of labour have for many years influenced thinking and 240 some times even judicial thinking in such matters, in this country, the emergence of an independent demo cratic India has influenced the matter even more profoundly. Gajendragadkar, J. speaking for the Court in Standard vacuum Refining Co., of India vs Its Workmen (1), has observed : "In constructing a wage structure in a given case industrial adjudication does take into account to some extent considerations of right and wrong, propriety and impropriety, fairness and unfairness. As the social conscience of the general community becomes more alive and active, as the welfare policy of the State takes a more dynamic form, as the national economy progresses from stage to stage, and as under the growing strength of the trade union movement, collective bargaining enters the field, wage structure ceases to be a purely arithmetical problem. Considerations of the financial position of the employer and the state of national economy have their say, and the requirements of a workman living in a civilised and progressive society also come to be recognised. " In trying to keep true to the two points of social philosophy and economic necessities which vie for consideration, industrial adjudication has set for itself certain standards in the matter of wage fixation. At the bottom of the ladder, there is the minimum basic wage which the employer of any industrial labour must pay in order to be allowed to continue an industry. Above this is the fair wage, which may roughly be said to approximate to the need based minimum, in the sense of a wage which is "adequate to cover the normal needs of the average employee regarded as a human being in a civilised society. " Above the fair wage is the "living wage" a wage "which will maintain the workman in the highest state of industrial efficiency, which will enable him to (1) , 543. 241 provide his family with all the material things which are needed for their health and physical well being, enough to enable him to qualify to discharge his duties as a citizen." (Cited with approval by Mr. justice Gajendragadkar in Standard Vacuum Company 's Case (1) from "The living Wage" by Philip Snowden). While industrial adjudication will be happy to fix a wage structure which would give the workmen generally a living wage economic considerations make that only a dream for the future. That is why the industrial tribunals in this country generally confine their horizon to the target of fixing a fair wage. But there again, the economic factors have to be carefully considered. For these reasons, this court has repeatedly emphasised the need of considering the problem on an industry cum region basis, and of giving careful consideration to the ability of the industry to pay. (Vide Crown Aluminium 's Case (2); the Express Newspapers Ltd., Case (8) and the Lipton 's Case (4). On an examination of the Tribunal 's award as regards the wage scale, we are satisfied that all the considerations mentioned above were present in the mind of the adjudicator and we are of opinion that there is nothing that would justify us in modifying the award either in favour of the employer or in favour of the workmen. It is stated in the award that before the Tribunal the Company 's representative desired that a fair wage level within its paying capacity should be evolved though at the time he argued that existing wage structure is quite fair ""looking to the Company 's financial position as well as the comparative rates prevailing in the other concern. " The Tribunal has not accepted the Company 's contention that the existing wage structure is fair, though at the same time it has held that the wage system needs no such radical change as alleged by the Union. (1) , 543. (3) (2) ; (4) [1959] Supp. 2 S.C.R. 150. 242 Mr. Pathak, who appeared before us for the Company, did not seriously suggest that the present wage structure gives the employees "a fair wage." He argued generally that no case was made out for any revision of the wage structure. Such an extreme proposition has only to be mentioned to deserve rejection. At the time the Tribunal was dealing with this question the wage scale of the workmen in this concern had remained practically unaltered for almost 12 years 12 years of momentous change through which social ideas have moved forward in favour of workmen getting a better share of the national income; 12 years during which the new India was born and a Constitution was framed for this new democracy "to secure to all its citizens, justice, social and economic and political" and enshrining in its 43rd Article the principle that ,the State shall endeavour to secure by suitable legislation or economic Organisation or in any other way to all workers agricultural, industrial or otherwise" among other things tea living wage and conditions of work ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunities. . . . ". The mere passage of time and these revolutionary changes would be sufficient to convince any right thinking man of the need for revision of wage scales which, on the face of it, were far below the "living wage" and mostly also below the " 'fair wage", provided the industry could bear the additional burden. The case for revision becomes irresistible when one takes into consideration the further fact that the cost of living rose steeply during this period. On the basis of 1939 cost as 100, the index for 1946 was 282. By 1958 it had risen to 389. It may be mentioned that since then there has been a further rise. Nor can it be seriously suggested that this concern cannot bear the burden of an increased wage scale. The Tribunal was, in our opinion, right in its conclusion that the material on record shows that the Company has been prospering and has financial 243 stability. We have for ourselves examined the balance sheets and the other materials on the record and have no hesitation in agreeing with that conclusion. Mr. Pathak 's uphill task in the face of these balance sheets already on the record to show that the Company would not be able to bear the burden of an increased wage scale has been made more difficult by the discovery that even after the imple mentation of the award the Company has made large profits during the years 1959 60, 1960 61 and 1961 62. It appears that when the Company was given special leave to appeal to this Court the operation of the Tribunal 's award was stayed only in so far as it directed the management to pay arrears of the wages determined thereby but the operation of the award in so far as it related to the payment of wages from the date of the award was not stayed; and the management was directed to pay to the workmen from that date wages in accordance with the wage scale fixed by the Tribunal by its award under appeal. The result of this has been that the Tribunal 's award as regards the wage scales has been implemented with effect from the date of the award and it is possible for this Court to know how such additional payment has affected the financial position of the Company. It appears that after meeting the additional charges and also after payment of bonus and appropriation to reserves the net profits for the year 1959 60 rose to Rs. 8,04,508/ . For the year 1960 61 these profits were Rs. 8,44,627/ . For the year 1961 62 the profits are shown in the balance sheet as Rs. 59,955/ . That the Company has been prospering is clear. It has its own aeroplanes and possesses immovable properties of considerable value. It has built up good reserves and inspite of that it has been making good profits. It is reasonable to think that with the progress of education in the country and the increasing news mindedness of the people the future prospects of the Company are no less bright. On a consideration 244 of all this,, we are clearly of opinion that Mr. Pathak 's contention that the wage scale fixed by the Tribunal is too heavy for the Company to bear, must be rejected. Equally unacceptable is Mr. Pathak 's next contention that the wage scale fixed by the Tribunal operates unfavourably on this Company vis a vis two other concerns in Delhi region, viz., the Times of India, Delhi and the Statesman, Delhi. We have compared the wage scales in these two concerns viz., the Times of India, Delhi and the Statesman, Delhi, with the wage scale under the award and have for the purpose of comparison taken into consideration the dearness allowance as fixed by the Tribunal. The comparison shows that while in some cases the Company (the Hindustan Times) will have to pay more to its workmen than what is being paid to workmen of the same category by the Times of India, Delhi and the Statesman, Delhi, in several cases it will be less. It has also to be borne in mind that the Times of India, Delhi and the Statesman, Delhi, are much smaller units of the newspaper industry than the Hindustan Times. These Companies are mere adjuncts to the Times of India, Bombay and the Statesman, Calcutta, respectively. Therefore, even if for some categories the wage scale under the award is higher than that in the Times of India, Delhi and the Statesman, Delhi, that would be no ground for modifying the award in favour of the Company. We have therefore come to the conclusion that there is no ground whatsoever for modifying the wage scale fixed by the award in favour of the Company. On behalf of the workmen it was strenuously contended that the increase given by the award over the previous wage scale falls far short of justice. It is pointed out that even the Times of India, Delhi and the Statesman, Delhi, which are much smaller 245 concerns and of lesser financial stability and strength, pay to some categories of its workmen higher wages than what has been fixed by the award. Thus our attention has been drawn to the fact that for Assistants, the Times of India, Delhi, rate is Rs. 241 402, and in the Statesman, Delhi, it is Rs. 190 297 for some and Rs. 264 463 for others while under the award the scale is Rs. 125 375. There are several other cases also where the wage scale under the award appears to be lower than what is being paid by the Times of India, Delhi and the Statesman, Delhi. It has been urged by the learned Attorney General that in view of the fact that the wage scale of the Company has remained practically stationary for the last 12 years and that it is indisputably well below the fair wage and the further fact that even smaller concerns in this region, like the Times of India, Delhi and the Statesman, Delhi, have been paying more to some categories of its workmen, the wage scale as fixed by the Tribunal should be raised at least for some of the categories. There is undoubtedly some force in the contention and it maybe said that the Tribunal has been rather cautious in the matter of revision of wage scales. Even so, it has to be remembered that where, as in the present case, the proper principles have been applied by the Tribunal, it is not the practice of this Court to interfere, ordinarily, with details of this nature when exercising its special jurisdiction under article 136 of the Constitution. It also appears to us that the very fact that the Tribunal has been cautious in the matter of raising the wage scales has influenced it in the directions it has given on the question of adjustment of the present employees into the wage scale. In this way some relief has been given to the present employees which might otherwise have been given by raising the wage scale. On a consideration of all these facts we have reached the conclusion that it will not be 246 proper for us to modify the wage scales fixed by the Tribunal in favour of the workmen also. On the question of dearness allowance it is not disputed before us that in the circumstances of the resent case the Tribunal acted rightly in awarding dearness allowance at a flat rate for all categories of workmen. On behalf of the Company it was however urged that the Tribunal has made an obvious mistake in fixing the amount of dearness allowance at Rs. 25/ . For fixing the rate at Rs. 25/ the Tribunal has said : "In view of the revised scales as now laid down, I think the same should further be supplemented in the circumstances stated above by a flat rate of dearness allowance in all cases, viz., Rs. 25/ with retrospective effect from the date of reference so that the lowest paid worker will start not less than Rs. 75/ . 1 direct accordingly. " Mr. Pathak points out that the lowest paid worker for whom wage scales have been fixed will be getting under the award a minimum of Rs. 6l0/ so that with the dearness allowance of Rs. 25/ "the lowest paid worker" will start at Rs. 85/ and not Rs. 75/ . Mr. Pathak suggests that the Tribunal has made a mistake in its calculations and that having decided that the lowest paid worker will start at not less than Rs. 75/ , it should have fixed Rs. 15/ and not Rs. 25/as the dearness allowance. This argument however overlooks the fact that the reference as regards the dearness allowance was in respect of all categories of workmen, though the reference as regards scales of pay did not cover some categories, viz., mazdoors and canteen boys. They therefore continue to remain on their old scale of Rs. 50 3 85. When the Tribunal in considering the question of dearness allowance was thinking of the starting pay of the lowest paid worker 247 it had obviously these categories in mind. Having concluded that the lowest paid worker should start at Rs. 75/ as the total amount of basic pay and dearness allowance the necessary conclusion reached by the Tribunal was that Rs. 25/ should be fixed as the dearness allowance. It is, in our opinion, proper and desirable that the dearness allowance should not remain fixed at this figure but should be on a sliding scale. As was pointed out in Workmen of Hindusthan Motors vs Hindusthan Motors (1), the whole purpose of dearness allowance being to neutralise a portion of the increase in the cost of living, it should ordinarily be on a sliding scale and provide for an increase on rise in the cost of living and a decrease on a fall in the cost of living. On a consideration of all the circumstances of this case, we direct that a sliding scale be attached to the dearness allowance of Rs. 25/ per month as awarded by the Tribunal on the lines that it will be liable to be increased or decreased on the basis of Re. 1/ for every ten points in case of rise and fall in the cost of living from the base of 400, the 1939 index being taken to be 100 the sliding scale to take effect from April 1, 1959. This brings us to the question of adjustment of the existing employees into the new scale. The Tribunal has dealt with this matter thus : " '. the adjustment in the new scales shall be made with retrospective effect from the date of the reference, viz., 23rd January, 1958. In making adjustment in the new scales no one shall be adversely affected and it shall be on the line laid down by the Industrial Tribunal in the case of Caltex India Ltd., at p. 659 read with para. 23 of the decision of the Labour Appellate Tribunal, reported in at page 188. " It appears that in the case of Caltex India Ltd. ,(Supra) the Industrial Tribunal, West Bengal, gave (1) 248 the following directions for adjustment of employees into the wage scale fixed by it. All employees for whom the scale has been stated above should be stepped up in the stage next above which the present pay is drawn. A special increment at the rate of one increment in the new scale for every three completed years of service should be given. The employees whose salaries are less than the minimum prescribed will be pulled up to the minimum of the prescribed scale. If the existing salary of an employee is higher than the salary he will be entitled to under the prescribed scale, there will be no cut and he will be stepped up to the nearest increase with the increments given above. After the salaries are adjusted, no employee should be staggered and he will continue to get future increments. If an employee be already drawing a salary which is higher than the maximum prescribed by the award, he will be subjected to no cut in his salary. " This was followed by a direction as regards the date by which the adjustment was to be made. The Labour Appellate Tribunal modified these directions by introducing two provisions : (1) that the maximum of the grade should not be exceeded and (2) that the basic wage that was being paid to an employee at the date of the award of the Tribunal is not to be affected to the employees 'prejudice. The employer 's objection is to the provision that a special increment at the rate of one increment in the new scale for every 249 three completed years of service should be given. It is argued that such a provision may well be appropriate in a case where wage scale is being fixed for the first time or where even if there was already a wage scale in force the rate of increment in the new scale is much higher than that in the old wage scale, but not where, as in the present case, the increments under the new scale and the old scale are practically the same. We are not impressed by this argument. As was pointed out by this Court in a recent judgment in French Motor Car Co., Ltd. vs Its Workmen (1), what adjustment should be given is to be decided when fixing wage scales whether for the first time or in place of an old existing scale has to be decided by industrial adjudication after consideration of all the circumstances of the case. It may well be true that in the absence of any special circumstances and adjustment of the nature as allowed in this case by allowing special increment in the new scale on the basis of service already rendered may not be appropriate. Clearly, however, in the present case the Tribunal took into consideration in deciding this question of adjustment the fact that it had been extremely cautious as regards increasing the old wage scales. Apparently, it thought that it would be fair to give some relief to the existing employees by means of such increase by way of adjustment while at the same time not burdening the employer with higher rates of wages for new incumbents. In these circumstances, we do not see ally Justification for interfering with the directions given by the Tribunal in the matter of adjustment. It will be convenient to consider at this stage the objection raised in the Company 's appeal to the Tribunal 's direction in connection with the interim agreement. As has been stated earlier, this agreement was arrived at between the parties when the dispute was before the Conciliation Officer. The (1)(1962) 250 relevant portion of the agreement is in these words : "It is hereby agreed between the parties that: 1. The Management agrees to make interim relief on the following terms to every employee, excluding working journalists, drawing salary up to Rs. 400 p.m. (i)Advance payment ranging between Rs. 6/ to Rs. 10/ per month beginning from the month of November, 1957 in the following manner : (a) Those with annual increment of Rs. 3/ , Rs. 4/ , and Rs. 5/ Rs. 6/ (b) Those with annual increment of Rs. 6/ Rs. 7/ (c) Thosewith annual increment of Rs. 7/ Rs. 8/ (d) Thosewith annual increment of Rs. 10/ Rs. 10/ Note. (i) In case any employee has already reached the ceiling of his grade, even then he would he entitled for the above benefit. (ii) This payment will be adjusted against the final out come of the present demands by constitutional means." "The final out come of the present demands by constitutional means 's is the Tribunal 's award. Under the agreement therefore what has been received by 251 the workmen as advance payment at Rs. 6/ or Rs. 71or Rs. 8/ or Rs. 10/ per month as interim relief has to be adjusted against what is due to be paid to them under the award. In other words, the Company is entitled under the agreement to deduct the payments made as interim relief from what is payable to these very employees under the award. The Tribunal 's direction that the interim relief shall remain unaffected is in effect an order that term (ii) of the agreement need not be complied with. We can find no justification for such an order. While it is true that industrial adjudication can and often has to modifiy existing contracts between an employer and its workmen, there can be no justification for modification of an agreement of this nature pending final settlement of a dispute. Such a direction that the solemn words of the workmen 's representatives that interim relief which may be given will be adjusted against the relief finally given need not be complied with, is not only unfair to the employer but is also not calculated to serve the best interests of the workmen themselves. For one thing, an order of this nature in one case by a Tribunal that such an undertaking need not be carried out is likely to hamper interim settlements generally; it is also not desirable that workmen should be encouraged to treat their undertakings as of no value. Industrial adjudication must be careful not to encourage bad faith on the part of the workmen or the employer. A direction as given by the Tribunal in this case that the term in the agreement that payments made will be adjusted against the final outcome need not be complied with, is unfortunately to have such effect on workmen. We therefore set aside the Tribunal 's direction that interim relief will remain unaffected and direct that adjustments should be made in terms of the said interim arrangement. This brings us to the question of Leave Rules. The Company objects to the award as regards this matter in so far as it directs the Company to allow 15 252 day 's sick leave with full pay and allowances with accumulation up to six months on production of medical certificate given by a registered medical practitioner. It also objects to the direction that the present practice as to insistence on previous application for the purpose of casual leave should not be relaxed in cases where it cannot possibly be so done in emergent and unforeseen circumstances and the direction that up to 3 days no medical certificate should be asked for. It appears that at present the Management grants 10 days ' casual leave to the business staff and 7 days ' casual leave to all the other categories and there is no sick leave facility available. Mr. Pathak has tried to convince us that in view of the provisions of the , no provision need be made about sickness leave at all. , That this Act has been applied to the Company and that the workmen of the Company get the benefit of this Act is not disputed. It is difficult to see however how the benefit that the workmen will get under this Act can affect the question of sickness leave being provided for the workmen. This Act it has to be noticed does not provide for any leave to the workmen on the ground of sickness. It provides in section 46 (1) (a) for periodical treatment of any insured person in case of his sickness if certified by a duly appointed medical practitioner. It is unnecessary to mention here the several provisions in the Act; viz., Sections, 47, 48 and 49 which deal with the eligibility of workmen for sickness benefit and the extent of the benefit that may be granted. Section 56 of the Act provides for medical benefits to the insured workman or in certain cases to the members of his family. It appears to us clear however that in providing for periodical payments to an insured worker in case of sickness (sickness benefit) or for medical treatment or, attendance to him or the members of his family, the legislature did not intend 253 to substitute any of these benefits for the workmen 's right to get leave on full pay on the ground of sickness. It is next contended that the Tribunal 's direction as regards sickness leave offend the provisions of Delhi Shops and Establishments Act, 1954. Admittedly, a large number of workmen covered by the reference are governed by the provisions as regards leave under the Delhi Shops and Establishments Act, 1954. Section 22 of that Act fixes the maximum for sickness or casual leave with wages to a period of 12 days and further provides that such leave shall riot be accumulated. It is thus clear that as regards those workmen to whom the Delhi Shops and Establishments Act, 1954 applies the Tribunal has acted illegally in fixing the period of sick leave at 15 days and permitting accumulation. We therefore set aside this direction in the award and direct instead that the Company shall allow to the workmen to whom the Delhi Shops and Establishments Act, 1954 applies, sickness or casual leave of a total of 12 days with full pay and allowances and that such leave shall not be accumulated. We are also of opinion that it will not be right to have two separate leave rules for the two classes of workmen, one to whom the Delhi Shops and Establishments Act, 1954 applies and the other two whom it does not apply. For that is likely to be a source of much discord and heartburning. Therefore, in respect also of those workmen to whom the Delhi Shops and Establishments Act, 1954 does not apply, we think that the same period of 12 days in a year with full pay and allowances should be fixed for sickness or causal leave, and there should be no accumultation of such leave; and we direct accordingly. We cannot find any justification for the direction of the Tribunal that the practice of insistence on 254 previous application for the purpose of casual leave should be relaxed in cases where it cannot possibly be so done in emergent and unforeseen circumstances and that upto 3 days no medical certificate should be asked for. The leave rules of the Company as they now stand provide that ordinarily previous permission of the head of the department and the Establishment Manager shall be obtained before casual leave is taken but that when this is not possible due to sudden illness, the head of the Department or the Manager as soon as may be practicable should be informed in writing of the absence from work and of the probable duration of such absence. In our opinion, this provision is reasonable and is calculated to meet the needs of workmen for taking leave without previous permission, in case of emergency. In these circumstances, the further directions as regards this that have been given by the Tribunal appear to us to be unnecessary and are hereby set aside. On the question of gratuity, the only argument seriously pressed by Mr. Pathak was that the scheme as framed by the Tribunal would put undue strain on the Company 's sources. We have already expressed our agreement with the Tribunal 's conclusion that the Company 's financial resources are strong and stable and that not only has the Company been prospering in recent years but that its future prospects are also bright. Therefore, we do not think that the scheme of gratuity as framed by the Tribunal is unduly favourable to the workmen or that it places any undue strain on the Company 's financial resources. One provision in the gratuity scheme which ought to be mentioned is that under it an employee who is dismissed for misconduct shall not be entitled to any gratuity. It has been pointed out by this Court in more than one case that having regard to the nature of gratuity it will not be proper to deprive 255 an employee of the gratuity earned by him because of his dismissal for misconduct and the proper provision to make in this connection is that where an employee is dismissed for misconduct which has resulted in financial loss to the employer the amount lost should be deducted from the amount of gratuity due. As however in the present case, the workmen have not appealed against the award as regards the gratuity scheme framed by the Tribunal, it will not be proper for us to make the modification as indicated above. Coming now to the question of retirement age on which the workmen have appealed, we find there is some controversy as regards the existing position. The workmen stated in their written statement before the Tribunal that " 'at present there are no set rules in the Company in this matter. " Their claim was that the retirement age should be fixed at 60 for all the employees of the Company. According to the Management 's written statement "the existing superannuation system is that the age of retirement is fixed at 55." The Magagement further stated that the age of retirement " 'as fixed, that is, 55 years" is appropriate and should not be raised. In respect of this controversy as regards the existing position there appears to be little material on the record. From the appointment letters of some of the employees that we find on the record it appears that for some appointments made in 1955 the age of retirement was mentioned as 55. In the several letters of appointments made prior to that year no age of retirement has been mentioned. It is not clear, therefore, how on the question of retirement age the Tribunal proceeded on the basis that the "existing retirement" age is 55. Proceeding on this basis the Tribunal directed "that the existing retirement age at 55 years should continue but the workers may be allowed to remain in employment and work up to 60 years if found fit. The question of the further extension 256 should rest with the discretion of the Management. " On behalf of the workmen the learned Attorney General has contended that the assumption that the existing retirement age is 55 is wrong in respect of most of the workmen and that except for a few persons appointed after 1955 no retirement age is fixed either in the letters of appointment or in the standing orders of the Company. For all these employees for whom no retirement age has been fixed already, the learned Attorney General argued on the basis of the decision of this Court in Guest Keen, Williams Private Ltd., vs P. J. Sterling., (1) that it would not be fair to fix any age of superannuation. It was held in that case that it was unfair to fix the age of superannuation of previous employees by a subsequent standing order. The Labour Appellate Tribunal had held that it would be unreasonable and unfair to introduce a condition of retirement at the age of 55 in regard to the prior employees having regard to the fact that when they entered service there was no such limitation. This Court felt that it would not be justified in reversing this decision of the Labour Appellate Tribunal. Dealing next with the question whether it followed that there should be no rule of superannuation in regard to these previous employees the Court said : "In our opinion it is necessary to fix the age of superannuation even with regard to the prior employees, and we feel no difficulty in holding that it would not be unfair or unreasonable to direct that these employees should retire on attaining the age of 60. An option to continue in service even thereafter which the respondent claimed is wholly unreasonable and is entirely inconsistent with the notion of fixing the age of superannuation itself. Once the age of superannuation is fixed it may be open to the employer for special reasons to continue in its employment a workman who has passed that (1) ; 257 age : but it is inconceivable that when the age of superannuation is fixed it should be in the option of the employee to continue in service thereafter. We would accordingly hold that in the circumstances of this case the rule of retirement for the previous employees in the concern should be 60 instead of 55 and that the rule of 55 should apply to all employees who enter the service of the appellant after the relevant standing orders came into force." Assuming therefore that for the majority of the employees there is no existing retirement age it would on the authority of the above case, be open to the Tribunal to fix the age of superannuation even with respect to them. As however the Tribunal 's decision that this age should be 55 is vitiated by the incorrect assumption that there is an existing retirement age of 55 it has been necessary for us to consider the question for ourselves. It appears that before the Tribunal the Union 's representative himself desired that the retirement age should be fixed at 58 years which may be extended up to 60 years in fit cases. Before us the Counsel for the Company did not seriously contest that in consideration of the present day circumstances in the country it would be fair to fix the retirement age at 58. Accordingly, we set aside the Tribunals award on this question of retirement age and fix the age at 58 years, subject to the proviso that it will be open to the Company to continue in its employment a workman who has passed that age. This rule should apply to all the employees of the Company. There remains for consideration the question of retrospective operation of the award. Under section 17A of the , an award shall come into operation with effect from such date as may be specified therein but where no date is so specified it shall come into 258 operation on the date when the award becomes enforceable. Even without a specific reference being made on this question it is open to an industrial tribunal to fix in its discretion a date from which it shall come into operation. The reference, in the present case, included as a matter in dispute the question of retrospective effect in these words : "Whether all the above demands should be made applicable retrospectively with effect from April 1, 1956 and what directions are necessary in this respect ?" The Tribunal rejected the workmen 's claim for giving effect to its award from April 1956. Wherever however the Tribunal has given relief the Tribunal has directed that the award should come into effect from the date of reference, i. e., January 23, 1958. On behalf of the Company Mr. Pathak contends that there is no reason why the award should be given effect to from any date prior to the date of its pronouncement. We are not impressed by this argument . No general formula can be laid down as to the date from which a Tribunal should make its award effective. That question has to be decided by the Tribunal on a consideration of circumstances of each case. There have been cases where this Court has made an award effective from the date when the demand was first made. There are other cases where the orders of the Tribunal directing the award to be made effective from the date of the award has not been interfered with. It is true that in some cases this Court has modified the Tribunal 's award in such a case. But it does not appear however that any general principles have been laid down. Indeed, it is difficult and not even desirable that this Court should try to lay down general principles on such matters that require careful consideration of the 259 peculiar circumstances of each case for the exercise of discretion. It is sufficient to say that we find no reason to interfere with the Tribunal 's direction in this case that the reliefs given by it would become effective from the date of the reference. We therefore allow both the appeals in part by modifying the Tribunal 's award as regards dearness allowance, leave rules and retirement age and also as regards the adjustment of the interim relief as mentioned above. In all other matters in appeal before us the award is confirmed. The modifications made as regards dearness allowance will, as already stated, take effect from April 1, 1959. The modifications as regards leave rules and as regards retirement age will take effect from this date. In both the appeals the parties will bear their own costs. Appeals allowed in part.

IN-Abs

The Chief Commissioner, Delhi, referred an industrial dispute for adjudication to the Industrial Tribunal, Delhi, which gave its award on March 16, 1959. Both the appellant and the respondents were dissatisfied with the award and they came to this Court by special leave. The award was challenged by the appellant with regard to scales of pay, dearness allowance, adjustments, leave rules, gratuity and retrospective effect of the award. The respondents attacked the award as regards the working hours, leave rules and retirement age. Held, that while social justice demands that workmen should get a fair share of the national income which they help to produce, it has also to be seen that that does not result in the drying up of the source of national income itself. Inroads 235 on the profits of the capitalists should not be such as have a tendency to drive capital away from fruitful employment and thereby affect prejudicially capital formation itself The Tribunal had applied the correct principles and the award should not be disturbed, Held, also, that the Tribunal had erred in awarding a fixed dearness allowance of Rs. 25 / . The object of dearness allowance being to neutralise part of the rise or fall in the cost of living, it should ordinarily be on a sliding scale. Held, that the contention of the appellant that in view of the provisions of the , no provision need be made about sickness leave at all, was rejected. It was pointed out that in providing for periodical payments to an insured worker in case of sickness or for medical treatment or attendance to him or the members of his family under the Act of 1948, the Legislature did not intend to substitute any of these benefits for the workmen 's right to get leave on full 'Pay on the ground of sickness. Held, that as regards those workmen to whom the Delhi Shops and Establishments Act, 1954, applied,. the Tribunal had acted illegally in fixing the period of sick leave at 15 days and permitting accumulation. The appellant shall allow to the workmen to whom the Delhi Shops and Establishments Act applied, sickness or casual leave for a total period of 12 days with full pay and allowances, and such leave shall not accumulate. As it was not desirable to have two separate leave rules for two classes of workmen, one to whom the Act of 1954 applied and tile other to whom the Act did not apply, it was held that the same rule should apply to other workers also. Held, also, that tile scheme of gratuity as framed by the tribunal was not unduly favourable to workmen and it also did not place any undue strain on the financial resources of tile Company. As regards the provision in the gratuity scheme that an employee who is dismissed for misconduct shall not be entitled to any gratuity; it was held that the proper provision should be that where an employee is dismissed for misconduct which has resulted in financial loss to the employer, the amount of loss should be deducted from the amount of gratuity due. The award of the Tribunal on tile question of retirement age was set aside and the retirement age was fixed at 58, subject to the proviso that it would be open to the company to continue in its employment a workmen who had passed that age, The rule was to apply to all tile employees of the Company. 236 No general formula could be laid down as to the date from which a Tribunal should make its award effective. That question has to be decided by the Tribunal on consideration of the circumstances of each case. There was no justification for interfering with the direction of the Tribunal that in this case the reliefs given by it should become effective from the date of the reference. Standard Vacuum Refining Co., of India vs Its workmen, , M/s. Crown Aluminium Works vs Its workmen; , , Express Newspapers Ltd. vs Union of India, , M/S. Lipton Ltd. vs Their Workmen [1959] Supp. 2 section C. R. 150, Workmen Hindustan Motors vs Hidustan Motors, 52, French Motor Car Co. vs Their Workmen, and Guest Keen, Williams (P) Ltd. vs P. J. Sterling [1961] 1 section C. R. 348, referred to.

Appeal No. 493 of 1960. Appeal by special leave from the judgment and order dated April 29,1959, of the Calcutta High Court in Appeal from Original Order No. 177 of 1958. section T. Desai, D. N. Mukherjee and B. N. Ghosh, for the appellants. C. K. Daphtary, Solicitor General of India, section K. Kapur and P. C. Chatterjee, for the respondent. December 12. The judgment of the Court was delivered by SHAH,J. The appellants are a firm carrying on business as importers in the name and style of "M. 21 Golodetz & Company" at 120, Wall Street, New York in the United States of America. The respondents are a firm carrying on business, among others as exporters of manganese ore and their principal office of business is at Bentinck Street in the town of Calcutta. By a contract in writing dated July 5, 1955 the respondents agreed to sell and the appellants agreed to buy 25,000 tons of manganese ore on the terms and conditions set out therein. The contract contained the following arbitration clause : "Arbitration : Any dispute arising out of the contract is to be settled by arbitration in New York according to the rules of the American Arbitration Association. " Between September 1956 and August 1957 the respondents supplied 5478 tons of manganese ore. Disputes having arisen between the parties about the liability of the respondents to ship the balance of the goods not delivered, the appellants referred them on or about January 15, 1958 to the arbitration of the American Arbitration Association and claimed compensation on the plea that the respondents had unlawfully made default in shipping the balance of the goods agreed to be sold. On February 2, 1958 the respondents commenced an action on the original side of the High Court of Calcutta claiming a decree that the written contract dated July 5, 1955 be adjudged void and delivered up and cancelled, that a perpetual injunction be issued restraining the appellants, their servants and agents from taking steps in purported enforcement of the said contract and that a declaration (if necessary) be made that the said contract stands discharged and that the parties have no rights and obligations thereunder. It was the case of the respondents that the appellants had accepted manganese ore shipped till August 1957 in full satisfaction of their liability and that the contract was discharged and the rights and liabilities 22 of the parties thereunder came to an end. In the alternative the respondents pleaded that the appellants had repudiated the contract or had committed breaches thereof and on that account also the contract stood discharged or had become void or voidable at their option and that they had avoided the same. In the further alternative they pleaded that the contract had become impossible of further performance and that the same stood frustrated or discharged and they were exempted from further performance thereof. The appellants thereupon petitioned the High Court of Calcutta for an order that the proceedings in suit No. 194 of 1958 commenced by the respondents be stayed by an order under section 34 of the X of 1940. and that an injunction be issued restraining the respondents, their agents and servants from proceeding with the hearing of the suit. Ray, J, who heard the petition held that to the agreement to submit the disputes to arbitration to a foreign arbitral body section 34 of the Indian , applied that the remedy of the party aggrieved by the manner in which the proceedings are conducted, or by the award was to contest the arbitration proceeding and the award in the foreign tribunal, according to the law applicable thereto, and that there was no sufficient reason for not staying the action filed in breach of the agreement to refer the disputes arising under the contract to arbitration. In appeal under the Letters Patent against the order, the High Court held that the Court of first instance had not exercised its discretion properly for it had failed to take into consideration certain important circumstances emerging from the evidence, viz. that all the evidence regarding the contract and the disputes was in India, that there were on account of the restrictions imposed by the Government of India special difficulties in securing foreign exchange for producing evidence before a foreign arbitration tribunal, that it would be impossible for the respondents to produce their evidence and there 23 fore the foreign arbitration tribunal "would Dot be a safe and convenient forum for a just and proper decision of the disputes between the parties. " The learned judges also observed that it was conceded by the Advocate General appearing on behalf of the appellants that the entire matter would be governed by the Indian laws, the Indian and the Indian Contract Act and on that account also the discretion of the Court to refuse to stay the suit should be exercised. The High Court accordingly reversed the judgment of Ray, J., and vacated the order passed by him. Against that order, with special leave, this appeal is preferred. We will assume for the purpose of this appeal that section 34 of the invests a Court in India with authority to stay a legal proceeding commenced by a party to an arbitration agreement against any other party thereto in respect of any matter agreed to be referred, even when the agreement is to submit it to a foreign arbitration tribunal. Where a party to an arbitration agreement commences an action for determination of a matter agreed to be referred under an arbitration agreement the Court normally favours stay of the action leaving the plaintiff to resort to the tribunal chosen by the parties for adjudication. The Court in such a case is unwilling to countenance, unless there are sufficient reasons, breach of the solemn obligation to seek resort to the tribunal selected by him, if the other party thereto still remains ready and willing to do all things necessary for the proper conduct of the arbitration This rule applies to arbitrations by tribunals, foreign as well as domestic. The power enunciated by section 34 of the is inherent in the Court : the Court insists, unless sufficient reason to the contrary is made out, upon compelling the parties to abide by the entire bargain, for not to do so would be to allow a party to the contract to approbate and reprobate, and this consideration may 24 be stronger in cases where there is an agreement to submit the dispute arising under the contract to a foreign arbitral tribunal. A clause in a commercial transaction between merchants residing in different countries to go to arbitration is an integral part of the transaction, on the faith of which the contract is entered into, but that does not preclude the Court having territorial jurisdiction from entertaining a suit at the instance of one of the parties to the contract, even in breach of the covenant for arbitration. The Court may in such a case refuse its assistance in a proper case, when the party seeking it is without sufficient reason resiling from the bargain. When the Court refuses to stay the suit it declines to hold a party to his bargain, because of special reasons which make it inequitable to do so. The Court ordinarily requires the parties to resort for resolving disputes arising under a contract to the tribunal contemplated by them at the time of ' the contract. That is not because the Court regards itself bound to abdicate its jurisdiction in respect of disputes within its cognizance, it merely seeks to promote the sanctity of contracts, and for that purpose stays the Suit. The jurisdiction of the Court to try the suit remains undisputed : but the discretion of the Court is on grounds of equity interposed. The Court is therefore not obliged to grant stay merely because the parties have even under a commercial contract agreed to submit their dispute in a matter to an arbitration tribunal in a foreign country. It is for the Court, having regard to all the circumstances, to arrive at a conclusion whether sufficient reasons are made out for refusing to grant stay. Whether the circumstances in a given case make out sufficient reasons for refusing to stay a suit is essentially a question of fact. In the present case the circumstances, in our judgment, are somewhat peculiar. The appellants in their petition for stay averred that the petition was bona fide, and was filed at the earliest possible 25 opportunity, that the appellants were ready and willing to do all things necessary for the proper conduct of the arbitration proceeding and there was no sufficient reason why the matters in respect of which the suit had been filed could not be referred to arbitration in accordance with the arbitration agreement. The respondents by their counter affidavit contended that the entire evidence regarding the subject matter of the suit and all the witnesses in connection therewith were in India and that no part of the evidence regarding any of the aforesaid matters was in New York. They also submitted that the proper law applicable to the contract dated July 5, 1955 was the Indian law and that the Indian law of Contracts would govern the rights and obligations of the parties. They also contended that the suit raised difficult questions of law applicable to the contract, and on that account also they should not be required to submit the dispute to adjudication by lay men. It was also submitted that the arbitration clause even if it was binding on the respondents firm contemplated a foreign arbitration i.e. the arbitration was to be held in New York and any award, that might be made would be a foreign award, the arbitrators not being subject to the control of the Courts in India and therefore the provisions of the including section 34 would not be availed of by the appellants. By their counter affidavit the appellants did not challenge the assertion made by the respondents that all the evidence in connection with the dispute was in India and that no part of the evidence was in New York. The constituted attorney of the appellants in paragraph 11 of his counter affidavit merely affirmed that " 'there is no sufficient reason why the matters in respect of which the said suit has been filed should not be referred to arbitration in accordance with the arbitration clause in the said agreement. I deny that there is any valid and/or sufficient reason why the said disputes which are the subject matter of the said suit should not be so referred 26 to arbitration. I further say that it would be a cause of injustice to the petitioners to permit the respondents, subsequent to the conclusion of a contract to pick and to choose as whim or prejudice may dictate which clauses are binding and which are "inoperative." He further stated in paragraph 12 I do not admit that evidence with regard to matters mentioned in the said paragraph (10(a) of the res pondent 's affidavit) is necessary or cannot be given before the arbitrators as alleged. In particular, deny that if arbitration is held in terms of the agreement as deliberately concluded by and between the parties there will be any denial of justice as alleged or at all. I do not admit that it will be necessary or that it will not be possible for the respondent to send any representative or to take any witness to New York as alleged. On the other hand, if the suit is not stayed, the petitioners will be greatly prejudiced and will suffer hardship. " The High Court addressed itself to the question, whether the pleas raised by the respondents constituted sufficient reason within the meaning of the , and pointed out, and in our judgment it was right in so doing, that the statement made in the affidavit of the respondent had remained practically unchallenged, that all the evidence in the case relating to the disputes was in India and that was a strong ground for not exercising the discretion in favour of the appellants. It must be observed that having regard to the severe restrictions imposed in the matter of providing foreign exchange to individual citizens it would be impossible for the respondents to take their witnesses to New York and to attend before the arbitrators at the arbitration proceeding to defend the case against them and the proceeding before the arbitrators would in effect be ex parte. That would result in injustice to the respondents. Undoubtedly the appellants would be put to some inconvenience if they are required to defend 27 the suit filed against them in India, but the High Court has considered the balance of inconvenience and the other circumstances and has come to the conclusion, and in our judgment that conclusion is right, that the facts established make out 'sufficient reason ' for not granting stay. It was urged by counsel for the appellants that the High Court for reasons which were not adequate interfered with the order which was within the discretion of the trial judge and on that account the order must be set aside. But the High Court has pointed out that Ray, J., 'did not give full, proper and adequate consideration to all the circumstances and failed to apply his mind to the relevant affidavits ' from which it emerged that all the evidence relating to the dispute was in India and that he did not express his views on the diverse contentions raised and remained content to observe that he was not in a position to decide the questions raised thereby and granted stay because he did not find any compelling reasons for exercising the discretion against the appellants. This criticism of the High Court appears not to be unjustified. The High Court was therefore competent on the view expressed in interfering with the discretion. The two Courts below have differed on the question as to the law applicable to the contract. Ray, J., held that the contract was governed by the American law. In appeal Mr. section Choudhry appearing for the appellants propounded that view, but the Advocate General of Bengal who followed him conceded (as observed by the High Court) that the "entire matter would be governed by the Indian law, the matter of arbitration by the Indian , and the other matters under the aforesaid contract by the Indian Contract Act, x x x x x so far as the rights and obligations under the disputed contract are concerned, the parties must now be taken 28 to have accepted the Indian Contract Act as the relevant law for their determination. " Counsel for the appellants say that no such concession was made before the High Court by the Advocate General, and the observations made in the judgment were the result of some misconception. Counsel relies in support of this submission upon an affidavit sworn by one Surhid Mohan Sanyal constituted attorney of the appellants filed in this Court on the day on which special leave to appeal was granted. Apart from the circumstance that the affidavit is couched in terms which are vague, and the denial is not sworn on matters within the personal knowledge of the deponent, it is a somewhat singular circumstance, that Sanyal who swore the affidavit relied upon, did not when he swore an affidavit in support of the petition for certificate under article 133 of the Constitution before the High Court, make any such assertion. But on the view expressed by us, we deem it advisable not to express any opinion on the question as to the law applicable to the contract. It will be for the Court trying the suit to deal with that question, and to decide the suit. The appeal therefore fails and is dismissed with costs. Appeal dismissed.

IN-Abs

The appellants are a firm carrying on business in the United States of America. The respondents are an Indian Firm. These two firms entered into a contract in writing by which the appellant agreed to buy certain goods from the respondents. An arbitration clause in the contract provided that disputes arising out of the contract are to be settled by arbitration in New York according to the rules of the American Arbitration Association. Disputes having arisen the appellants referred them to arbitration. The respondents thereupon filed a suit on the Original side of the Calcutta High Court for the cancellation of the contract and for the issue of a perpetual injunction restraining the appellants from taking steps in purported enforcement of the contract. The appellants then filed a petition before the same High Court for the stay of that suit under section 34 of the . This petition was heard by a Single Judge who held that the remedy of the party aggrieved by manner in which the proceedings are conducted by foreign Tribunal was to contest the proceedings according to the law applicable to the tribunal and that the respondents have not shown sufficient reasons for not granting stay. In appeal under the Letters Patent the order was set aside and the appellants appealed with special leave. The main question before this Court was whether the Court of first instance has or has not exercised its discretion properly in granting stay. Held, that a clause in a commercial contract between mer chants residing in different countries to go to arbitration is 20 an integral part of the contract on the faith of which the contract is entered into, but that does not preclude the court having territorial jurisdiction from entertaining a suit at the instance of one of the parties to the contract even in breach of the covenant. The court ordinarily requires the parties to resort for resolving disputes arising under a contract to the tribunal contemplated by them at the time of the contract. The court may in such cases refuse its assistance in a proper case when the party seeking it is without sufficient reason resiling from the bargain. It is for the court having regard to all the circumstances to arrive at a conclusion whether sufficient reasons are made out for refusing to grant stay. Whether the circumstances in a given case make out sufficient reasons for refusing to stay a suit is essentially a question of fact. In the present case all the evidence of the parties was in India, and the current restrictions imposed by the Government of India on the availability of foreign exchange, made it impossible for the respondents to carry their witnesses to New York for examination before the arbitrator. The proceeding before the arbitrator would in effect be ex parte. The High Court was therefore right in its conclusion, on a review of the balance of convenience, that stay should not be granted.

Appeals Nos. 94 to 97 of 1960. Appeals from the judgment and order dated March 15, 1956, of the ' Allahabad High Court in First Appeals Nos. 172, 364, and 379 of 1954. Veda Vyasa, R. K. Garg, D. P. Singh, Shiv Shastri and K. K. Jain, for the appellant (in C. As. Nos. 94 96/60) and respondent No. 2 (in C. A. No. 97 of 1960). Rameshwar Nath, section N. Andley and P. L. Vohra, for the appellant (in C. A. No. 97/60) respondent No. 2 (in C. A. No. 94/60) and respondent No. 1 (in C. As . Nos. 95 and 96/60). K. L. Gossain and Sohan Lal Pandhi for respondent No. 1 (in C. As. 94 and 97/60) respondent No. 2 (in C. A. No. 95 of 60) and respondent No. 4 (in C. A. No. 96/60). Harbans Singh, for respondent No. 3 (in C. A. No. 94/60). J. P. Agarwal, for respondent No. 4 (in C. A. No. 94160) respondents No. section 3 and 4 (in C. A. No. 95/60) respondents Nos. I and 3 (in C. A. No. 96/60) and respondents Nos. 3 and 4 (in C. A. No. 97/60). 318 1962. December 17. The relevant facts are briefly as follows : The plaintiff Kundanlal and the defendants 1 to 5 Banarsi Das, Kanshi Ram, Kundan Lal, Munnalal, Devi Chand and Sheo Prasad are brothers and formed a joint Hindu Family, till the year 1936. Amongst other properties the family owned a sugar mill at Bijnor in Uttar Pradesh called "Sheo Prasad Banarsi das Sugar Mills". After the disruption of the family the brothers decided to carry on the business of the said sugar mill as partners instead of as members of a joint Hindu Family. The partnership was to be at will and each of the brothers was to share all the profits and losses equally. The mill was to be managed by one of the brothers who was to be designated as the managing partner and the agreement arrived at amongst the brothers provided that for the year 1936 37, which began on September 1,1936, the first defendant Banarsi Das, who is the appellant in Civil Appeals 94 to 96 of 1960, was to be the managing partner. The agreement provided that for subsequent years the person unanimously nominated by the brothers was to be the managing partner and till such unanimous nomination was made, the person functioning as managing partner in the previous year must continue. For the years 1941 44, Kundanlal was the managing partner. On May 13,1944, Sheo Prasad defendant No. 5 now deceased, instituted a suit in the court of the Sub ordinate judge, First Class, Lahore, for dissolution of partnership and rendition of accounts against Kundanlal and joined the other brothers as defendants to the suit, In the course of that 319 suit the court, by its order dated August 3,1944, appointed one Mr. P.C.Mahajan, Pleader, as Receiver but as the parties were dissatisfied with the order the matter was taken up to the High Court in revision where they came to terms. In pursuance of the agreement between the parties the High Court appointed Kanshiram as Receiver in place of Mr. Mahajan as from April 5,1945. In the meanwhile, the District Magistrate, Bijnor took over the mill under the Defence of India Rules and appointed Kundanlal and his son to work the mill as agents of the U. P. Government for the year 1944 45. This lease was renewed by the Government for the year 1945 46. On August 28,1956, the parties, except Devi Chand, made an application to the Court at Lahore praying that the Receiver be ordered to execute a lease in favour of Banarsidas for a period of five years. It may be mentioned that this application was made at the suggestion of the District Magistrate; Bijnor. The Subordinate Judge made an order in terms of the application. In September 1946, Banarsidas obtained possession of the mill. It may be mentioned that Sheo Prasad had in the meanwhile applied to the court for distribution amongst the erstwhile partners of an amount of Rs. 8,10,000/(out of the total of Rs. 8,30,000/ ) which was lying with the Receiver and suggested that the amount which fell due to Kundanlal and Banarsidas should be withheld because they had to render accounts. However, the aforesaid amount lying with the receiver was distributed amongst all the brothers and Devichand acknowledged receipt on November 14, 1946. On October II, 1947, the Lahore suit was dismissed for default, the parties having migrated to India consequent on the partition of the country. On November 8,1947, Sheo Prasad instituted a suit before the court of Civil judge, Bijnor against his brothers for a permanent injunction restraining Banarsidas from acting as Receiver. The suit, how 320 ever, was dismissed on March 3,1948. On July 16, 1948, Sheo Prasad transferred his 1/6th share to Banarsidas and since then Banarsidas has been getting the profits both in respect of his own share as well as in respect of that of Sheo Prasad. On October 7,1948, the suit out of which these appeals arise was instituted by Kundanlal against all his brothers claiming the reliefs set out in para 29 of the plaint. The reliefs are as follows : "(a) That it may be declared that the partner ship of the Shiv Prasad Banarsi Das Sugar Mills, Bijnor between the parties was dissolved on 13th May, 1944 and if in opinion of the court the partnership is still in existence, the court may be pleased to dissolve it. Valued at Rs. 5000. (b) That an account be taken from defendants I and 2 or any of them and decree be passed in favour of the plaintiff for the amount that may be found to be due to the plaintiff on account of his share in the assets and profits and sums of money in their possession. Valued at Rs. 500. (c) That a pendete lite interim Receiver may be appointed for the Seth Shiva Prasad Banarsi Das Sugar Mills, Bijnor. (d) Any other relief which the plaintiff may be entitled against any or either of the defendants as the court may deem fit to grant. (e) Costs may be awarded to the plaintiff. " On July 30, 1949 , Banarsidas filed his written statement but none of the other dependents put in an 321 appearance. On Decemberl8,1950, an application which had been made for the appointment of a Receiver was dismissed on the ground that kanshi Ram who had been appointed as Receiver by the Lahore High Court continued to be the Receiver. It may be mentioned that during the pendency of this suit the appellant Banarsidas entered into an agreement with Devchand and Kanshi Ram whereunder he took over all their rights and interests in the said mill for a period of five years commencing from July 1, 1951. On February 19,1951, he made an application to the court for directing Kanshi Ram to give a lease of the mill to him for a period of five years commencing from July 1, 1951. It may be mentioned that under an earlier arrangement Banarsidas had obtained a lease for a similar term which was due to expire on June 30, 1951. On April 26 1951, one Mr. Mathur was appointed Receiver by the court and in july 1 951, he granted a lease for five years to Kundanlal on certain terms which would be settled by the court. It may be appropriate to mention here that, issues in the suit instituted by Kundanlal were framed on December 7, 1951, and one of the important issues was whether the lease dated September 12, 1946, granted to Banarsidas was void ab initio or wits voidable and in either case what was its effect. On April 2, 1954, the advocate appearing for Kundanlal stated that he did not wish to press this issue and that the only question left was of taking accounts. In view of this concession by the plaintiff, the Court decreed the suit in the following terms: "1. The suit is decreed for declaration that the section B. Sugar Mills, Bijnor, stood dissolved with effect from 13th May, 1944. The plaintiff 's share is declared to be 1/6th; of defendant No. 1 Seth Banarsi Das as 1/3rd and of defendants 2 to 4 1/6th each. 322 2. Seth Kanshi Ram is held liable to render accounts to the plaintiff and other defendants in respect of joint stores and lubricants in Exhibits I and 7. 3. Shri P. N. Mathur shall continue to be the receiver till further orders. And it is ordered that Shri Kashi Nath who is appointed Commissioner for the purpose of winding up the affairs of the Mills, in this case, shall prepare accounts of the credits, properties and effects and stocks now belonging to the said mills and then submit the report to the court. After the report has been submitted and objections heard and decided, the court would fix a date for the sale of the assets of the Mills. The Commissioner shall receive instructions from the court from time to time. Three appeals were preferred before the High Court against this decision. One was by Kanshi Ram, another by Banarsidas and the third was by Munnalal. It may be mentioned here that the suit has been decreed ex parte against both Kanshi Ram and Munna Lal. It may also be mentioned that even in the appeals the winding up of the partnership business and the appointment of Mr. Kashi Nath as Commissioner for this purpose was not challenged by any party to the appeals. These appeals were heard together and were disposed of by a common judgment by the High Court on March 15, 1958. The High Court, in effect, dismissed the appeals of Banarsidas and Munnalal but granted partially the appeal of Kanshi Ram. As a result of the High Court 's decision, Kundanlal 's suit stood decreed for declaration that the partnership 323 should be dissolved with effect from May 13, 1944, and that the six brothers had shares in the partnership as found by the trial court. But the suit stood dismissed with regard to other reliefs. As there were three appeals before the High Court, the appellant Banarsidas has preferred three separate appeals for complying with the requirements of the law. Before the High Court the stand taken by the parties was this : Devichand and Munnalal wanted that the winding up order should be set aside while Kundanlal wanted that it should be upheld but that he should not be asked to render any accounts. Kanshi Ram contended that the suit was barred by time and that at any rate he should not be called upon to account. The appellant Banarsidas wanted that the winding up order should be maintained and also wanted that accounts should be rendered both by Kundanlal and Kanshi Ram. The ground on which the High Court dismissed the suit was that the suit for accounts was barred by article 106 of the Limitation Act. It was, however, contended before the High Court on behalf of the plaintiff that although a suit for accounts and share of profits may be barred by time, the suit in so far as it related to the distribution of the assets of the dissolved firm was not barred by limitation as such a suit falls outside article 106 of the Limitation Act. This contention was also rejected by the High Court and it held that not only the claim for accounts and share for profits was time barred but also the claim for distribution of the assets of the dissolved firm was time barred. The High Court was alive to the fact that the plea of limitation was not taken by any of the defendants in the trial court but was of the opinion that the plaint itself disclosed that the Suit was barred by time and, therefore, it was the duty of the court under section 3 of the Limitation Act to dismiss it. It was then contented before the High Court on behalf of the plaintiff that as in none of the appeals preferred 324 before it the appellants had questioned that portion of the decree which granted the plaintiff the relief of a share in the assets of the partnership and therefore it ought not to be interfered with. The High Court, however, resorted to O. 41, r. 33 of the Code of Civil Procedure and held that under this provision, it was competent to it to disallow the claim decreed by the trial court. Upon this view, the High Court allowed Kanshi Ram 's appeal, but lost sight of the fact that same order had to be made with regard to the moneys lying in the court. In his appeal, it was contended by Banarsidas that that portion of the decree which declared the partnership to have been dissolved on May 13, 1944, should be set aside. But the High Court refused to permit him to urge this point in as much as he had admitted in his written statement that the partnership was dissolved on May 13,1944. The High Court also said that the decree which had been passed against Banarsidas in so far as this relief is concerned was a consent decree and that an appeal therefrom is barred by s.96, sub section (3), of the Code of Civil Procedure. Upon this view, the High Court dismissed his appeal. Dealing with Munnalal 's case, the High Court observed that the only relief sought by him was that Banarsidas should be asked to render accounts for the year 1944 1945, and that as it had already held, while dealing with Kanshi Ram 's appeal that this claim was barred by time, his appeal should also be dismissed. Banarsidas has come up in appeal against the judgments and decrees of the High Court in all the three appeals and his appeals are Civil Appeals Nos. 94 to 96 of 1960. Kundanlal has preferred an appeal from the judgment and decree of the High Court in Kanshi Ram 's appeal, which is numbered 325 Civil Appeal No. 97 of 1960. This judgment governs all these appeal. The points raised by Mr. Veda Vyasa on behalf of Banarsidas are these : (1) Under the Partnership Act, the partners are entitled to have the business of the partnership wound up even though a suit for accounts is barred under article 106 of the Limitation Act. (2) Kanshi Ram having been appointed a Receiver by the Court stood in a fiduciary relationship to the other partners and the assets which were in his possession must be deemed to have been held by him for the benefit of all the partners. Therefore, independently of any other consideration, he was bound to render accounts. (3) The question of ' limitation was not raised in the plaint or the grounds of appeal before the High Court and as it is a mixed question of fact and law, it should not have been made this foundation of the decision of the High Court. If it was thought necessary to allow the point to be raised in view of the provisions of section 3 of the Limitation Act, the courts should at least have followed the provisions of O. 41, r. 25, Code of Civil Procedure, and framed an issue on the point and remitted it for a finding to the trial court. (4) The Court was wrong in holding that limitation for the suit commenced on May 13, 1944. (5) The High Court was wrong in resorting to the provisions of O.41, r.33, of the code of Civil Procedure. Before we consider the points raised by Mr. Veda Vyasa, we would like to point Out that at 326 the commencement of the argument, Mr. Veda Vyasa made an offer that if all the parties agreed, Banarsidas was prepared to waive his claim for accounts against Kundanlal and Kanshi Ram provided that the decree of the trial court was restored in other respects. While the learned counsel appearing for those two Parties were willing to accept the offer, two others were not, and, therefore, we must proceed to decide the appeals on their merits. The most important point to be considered is whether the suit was barred by limitation. If the appellants in these appeals succeed on this point, the first, second and fifth points will really not arise for consideration. In the plaint in the present suit, the plaintiff Kundanlal alleged in para 10 that the partnership being at will it stood dissolved on May 13, 1944, when Sheo Prasad filed suit No 105 of 1944 in the court of the Sub Judge, Lahore. No doubt, as pointed out by the High Court, Banarsidas has admitted this fact in his written statement at no less than three places. The admission, however, would bind him only in so far as facts are concerned but not in so far as it relates to a question of law. It is an admitted fact that the partnership was at will. Even so, Mr. Veda Vyasa points out, the mere filing of a suit for dissolution of such a partnership does not amount to a notice for dissolution of the partnership. In this connection, he relies upon 68, Corpus Juris Secundum, P. 929. There the law is stated thus : The mere fact that a party goes to court asking for dissolution does not operate as notice of dissolution. , He then points out that under O.20, r. 15, of the Code of Civil Procedure, a partnership would stand dissolved as from the date stated in the decree, and that as the Lahore suit was dismissed in default arid no decree was ever passed therein it would be incorrect even to say that the partnership at all stood dissolved because of the institution of the suit. On the other hand, it was contended on behalf of some 327 of the respondents that the partnership being one at will, it must be deemed to have been dissolved from the date on which the suit for dissolution was instituted and in this connection reference was made to the provisions of sub section (1) of section 43 of the Partnership Act which reads thus : "(1) Where the partnership is at will, the firm may be dissolved by any partner giving notice in writing to all the other partners of his intention to dissolve the firm. " The argument seems to be based on the analogy of suits for partition of joint Hindu family property, with regard to which it is settled law that if all the parties are majors, the institution of a suit for partition will result in the severance of the joint status of the members of the family. The analogy however cannot apply, because, the rights of the partners of a firm to the property of the firm are of a different character from those of the members of a joint Hindu family. While the members of a joint Hindu family hold an undivided interest in the family property, the partners of a firm hold interest only as tenants in common. Now as a result of the institution of a suit for partition, normally the joint status is deemed to be severed, but then, from that time onwards they hold the property as tenants in common i.e., their rights would thenceforth be somewhat similar to those of partners of ' a firm. In a partnership at will, if one of the partners seeks its desolution, what he wants is that the firm should be wound tip, that be should be given his individual share in the assets of the firm (or may be that he should be discharged from any liability with respect to the business of the firm apart from what may be found to be due from him after taking accounts) and that the firm should no longer exist. He can call for the dissolution of the firm by giving a notice as provided in sub section (1) of section 43 i.e., without the intervention of 328 the court, but if he does not choose to do that and wants to go to the court for effecting the dissolution of the firm, lie will, no doubt, be bound by the procedure laid down in 0.20, r. of the Code of Civil Procedure, which reads thus: "Where a suit is for the dissolution of a partnership or the taking of partnership accounts, the Court, before passing a final decree, may pass a preliminary decree declaring the proportionate share of the parties, fixing the day on which the partnership shall stand dissolved or be deemed to have been dissolved, and directing such accounts to be taken, and other acts to be done, as it thinks fit. " This rule makes the position clear. No doubt, this rule is of general application, that is, to partnerships at will as well as those other than at will; but there are no limitations in this provision confining its operation only to partnerships other than those at will. Sub section (1) of section 43 of the Partnership Act does not say what will be the date from which the firm will be deemed to be dissolved. For ascertaining that, we have to go to sub section (2) which reads thus : "The firm is dissolved as from the date men tioned in the notice as the date of dissolution or, if no date is so mentioned, as from the date of the communication of the notice. " Now, it will be clear that this provision contemplates the mentioning of a date from which the firm would stand dissolved. Mentioning of such a date would be entirely foreign Lo a plaint in a suit for dissolution of partnership and therefore such a plaint cannot fall within the expression "notice" used in the Sub Section. It would follow therefore that the date of service of a summons accompanied by a copy of a plaint in the suit for dissolution of 329 partnership cannot be regarded as the date of dissolution of partnership and section 43 is of no assistance. Even assuming, however, that the term "notice" in the provision is wide enough to include within it a plaint filed in a suit for dissolution of partnership, the sub section itself provides that the firm will be deemed to be dissolved as from the date of communication of the notice. It would follow, therefore, that a partnership would be deemed to be dissolved when the summons accompanied by a copy of the plaint is served on the defendant, where there is only one defendant, and on all defendants, when there are several defendants. Since a partnership will be deemed to be dissolved only from one date, the date of dissolution would have to be regarded to be the one on which the last summons was served. Now, if the High Court wanted to give the benefit of the provisions of section 43 to any of the parties defendants before it , it should have borne in mind the full implications of those provisions. We have no material on record for ascertaing the date on which the last summons was served in this case. Since that date is not known or could have been known by the High Court, it was in error in holding that the suit was barred by time. The High Court has overlooked the fact that even upon the argument addressed before it on behalf of Kanshi Rain, the question of limitation was not one purely of law but was a mixed question of fact and law and, therefore, it was not proper for it to allow it to be raised for the first time in argument. We are satisfied that what the High Court has done has caused prejudice to some of the parties to the suit and on that ground alone, we would be justified in setting aside its decision. If the High Court felt overwhelmed by the provisions of section 3 of the limitation Act, it should at least have given an opportunity to the parties which supported the 330 decree of the trial court to meet the plea of limitation by amending their pleadings. After allowing the pleadings to be amended, the High Court should have framed an issue and remitted it for a finding to the trial Court. Instead of doing so, it has chosen to treat the pleading of one of the defendants as conclusive not only on the question of fact but also on the question of law and dismissed the suit. It is quite possible that had an opportunity been given to the defendants, they could have established, in addition to proving the dates on which the summonses were served, that the suit was not barred by time because of acknowledgment in the course of the discussion, the High Court had said that it was not suggested before it by anyone that the claim was not barred by reason of acknowledgments. Apparently, no such argument was advanceb before it on behalf of the plaintiff and the defendant Banarsidas because the counsel were apparently taken by surprise and had no opportunity to obtain instructions on this aspect of the case. We are clearly of opinion that the High Court was in error in allowing the plea of limitation to be raised before it particularly by defendants who had not even filed a written statement in the case. We do not think that this was a fit case for permitting an entirely new point to be raised by a non contesting party to the suit. In view of our decision on this point, it would follow that the High Court 's decision must be set aside and that of the trial court restored. We may, however, mention that some of the parties including the appellant Banarsidas and the plaintiff respondent, Kundenlal as well as the defendant respondent Kanshi Ram were agreeable to certain variations in the decree. But as there were other parties besides them to whom these variations are not acceptable, we are bound to decide the appeals on merits. For the aforesaid reasons, we allow the appeals of Banarsidas and Kundanlal and restore the decree of the trial 331 court, but make no order as to costs. Along with the appeals, we heard two Civil Miscellaneous Petitions, Nos. 1482 of 1962 and 1534 of 1962. The first is to the effect that the lease granted by this Court during the pendency of these appeals should be terminated early. It is said that the reason why the term of five years was fixed was that this Court was seized with the litigation and it was expected to last for five years. But as it happens, it has terminated within about a year and a half and therefore there is no reason for the lease to continue. Apart from the fact that it would not be in the interest of the parties to determine the lease before its expiry we doubt whether we can legally do SO. We, therefore, reject this application. As regards the other application, it is agreed between parties that it should be considered by the Receiver when the assets are distributed. We may also mention that during arguments it was stated before us on behalf of Banarsidas that he had installed some new machinery for the efficient running of the mill and that before the mill is sold he should be allowed to remove the machinery. It was suggested that perhaps it would be in the interest of all the parties if the mill is sold along with the new machinery at the date of sale. The other parties, however said that it would be best if Banarsidas removes the machinery before the expiry of the lease. In the circumstances, we can give no direction in the matter. It will be open to the parties, however, to agree upon the course to be adopted when the Receiver sets about selling the machinery, or if they do not agree, to obtain directions from the High Court. While we dismiss the Civil Miscellaneous Petitions, we make no order as to costs. Appeals allowed.

IN-Abs

The plaintiff filed a suit against his brothers who had for merly constituted a joint family for a declaration that the partnership which had been formed by them after they ceased to be joint in respect of a sugar mill stood dissolved on May 13, 1944, on which date one of the brothers had filed an earlier suit for dissolution of the partnership. The earlier suit had been dismissed for default. The plaintiff in the present suit also prayed for a decree for accounts from defendants I and 2 as well as for the appointment of a Receiver. The trial court decreed the suit, ordered winding up and appointed a Commissioner. It also directed the accounts prayed for. Before the High Court Kanshi Ram who had not filed a written statement and against whom the proceedings in the trial court had been ex parte contended that the suit was barred by limitation and in any event he should not be called upon to account. The plaintiff contended that the suit was one for distribution of the assets of a dissolved firm and was not barred by limitation. The High Court while noticing that the plea of limitation taken by one of the parties was raised before it for the first time, held that by reason of section 3 of the Limitation Act it was bound to take notice of the bar of limitation and dismissed the suit. Having decided Kanshi Ram 's plea the High Court passed consequential orders with regard to the several appeals by the other defendants. On appeal it was contended in this Court that the question of limitation which was not raised even in the grounds of appeal before the High Court was a mixed question of fact and law and it should not have been entertained by the High Court. Hold, that the suit for dissolution filed on May 13, 1944, had ended in a dismissal for default, and as such no date 317 of dissolution of the partnership as contemplated by 0.20, r. 15, of the Code of Civil Procedure had been fixed by the Court; the plaint could not be construed as the notice contemplated by section 43 of the Partnership Act, to terminate the partnership. Even on the assumption that the summons accompanied by the plaint could be said to be the service of notice for dissolution of the partnership, the date of dissolution could only be the date on which the last of the partners was served. With all these questions of fact to be investigated, the High Court had committed an error in treating the question of limitation as purely one of law and allowing it to be raised at the hearing for the first time before it, at the instance of a party who had not filed a written statement and raised an issue on the question before the trial court.

Appeal No. 541 of 1962. Appeal by special leave from the judgment and order dated May 31, 1962, of the Punjab High Court (Circuit Bench) at Delhi in section A. O. No. 86 D of 1962. A.S. B. Chari, M. K. Ramamurthi, D. P. Singh and B. K. Garg, for the appellant. G. section Pathak, F. C. Bedi and D. D. Sharma, for respondents. December 17. The judgment of the Court was delivered by SINHA, C. J. This appeal by special leave is directed against the judgment and order of a learned single judge of the Punjab High Court summarily dismissing the appeal filed by the appellant, by his order dated May 31, 1962, from the order of the Rent Control Tribunal dated March 7, 1962, con firming that of the Additional Rent Controller, Delhi, dated July 27, 1961, whereby he had directed the appellant to be evicted from the premises in question. It appears that the respondents are admittedly the landlords of the premises, No. 24, Ansari Road, Darya Ganj, Delhi. The appellant claims to have been in occupation of the premises since prior to 1950, at a monthly rent of Rs. 50/ . In 1955, the respondent had instituted a suit for the eviction of the All India Postal & R.M.S. Union, and the appellant was also impleaded as a party to the suit. The respondents, in 1958, made an application for amendment of the plaint on the ground that they had come to know that the last owner, the father of the first respondent, had let the building to the appellant for his residential purposes and that the case should proceed againt him only. But the 262 Subordinate judge, before whom the suit was pending, did not permit the amendment of the plaint but granted permission to withdraw from the suit with liberty to bring a fresh one, by his order dated May 8, 1959. Thereafter, on February 25, 1960, the respondents made an application before the Rent Controller, Delhi, for the eviction of the appellant alone, without impleading the Union aforesaid as a party: The contention of the appellant was that the premises had been let out by the father of the first plaintiff respondent to the All India Postal & R.M.S. Union for office cum residential purposes and the tenancy of the Union had never been terminated. The appellant also alleged that he was not a tenant and, therefore, the application for his eviction was not maintainable. The petition for eviction was founded on the allegation that the appellant as tenant had made persistent default in the payment of rent and, secondly, that the premises were bonafide required by the respondents for their own residence, as the first respondent was about to leave the employment of a certain hospital which had provided him with residential accommodation. That is to say,the petition for eviction was brought under s.14(1)(a) & (e) of the Delhi Rent Control Act (LIX of 1958)which will be referred to in the course of the judgment as the Act. The appellant besides denying his tenancy and asserting the tenancy of the Union aforesaid stated that the respondents had already got suitable accommodation and that their requirement of the premises in question was not bonafide; the notice of demand for payment of rent served on the appellant was neither valid nor proper in law inasmuch as he was not the tenant in respect of the premises, and that the notice of demand should have been served on the Union. The appellant asserted that he was only a licensee of the Union, and that there was no relationship of landlord and tenant between him and the respondents. On April 2, 1960, the Additional Rent Controller passed an order 263 directing the appellant to deposit the arrears of rent from August 1,1958, up to date, at the rate of Rs. 50/ per month, and future monthly rent, month by month, by the 15th of every following month. The respondents made an application on May 16, 1961, under section 15(7) of the Act for striking out his defence against eviction on the ground that the tenant had failed to make the payment or deposit, as directed by the order dated April 2, 1960, aforesaid. The appellant denied that he had made any default in the regular payment of rent, but also asserted that if there was any such default it was not intentional and was the result of a miscalculation. By his order dated July 26, 1961, the Additional Rent Controller ordered the defence of the appellant to be struck out. An appeal against the order striking out his defence was made to the Rent Control Tribunal on September 15, 1961, which was late by one day. The learned Tribunal dismissed the appeal as time barred, as also on merits, by its order dated March 6, 1962. By his order dated July 17 , 1961, the Additional Rent Controller passed an ex parte order of,ejectment against the appellant holding that prima facie the relationship of landlord and tenant had been established, on the basis of certain rent receipts granted by the respondents to the appellant. He also held that the respondents ' personal bonafide need for accommodation had been established. Appeal against that order was dismissed on March 7, 1962, by the Rent Control Tribunal. On May 28, 1962, the appellant filed a second appeal in the High Court of Punjab at Delhi against the order dated March .7, 1962, of the Rent Control Tribunal, dismissing his appeal against the order of eviction. No second appeal was taken to the High Court in respect of the dismissal of the appeal relating to the order dated March 6, 1962, of the Rent Control Tribunal dismissing his appeal in respect of the order of the Additional Rent Controller striking out his defence. The second appeal was dismissed summarily by a 264 Single judge on May 31, 1962. The appellant moved this Court during the long vacation and obtained an order from the learned Vacation judge granting special leave to appeal, on June 5, 1962. A preliminary objection was taken on behalf of the landlord respondent that no second appeal having been filed againts the order aforesaid of the Rent Control Tribunal, dismissing his appeal in respect of the order of the Additional Rent Controller striking out his defence, that order had become final between the parties, and, therefore, this appeal was incompetent. As will presently appear, this question is bound up with merits of the appeal and has, therefore, to be determined not as a preliminary objection but as one of the contentions between the parties, on the merits of the appeal itself. It was argued on behalf of the appellant that the authorities under the Act had no jurisdiction to entertain the proceedings, inasmuch as it was denied that there was any relationship of landlord and tenant between the parties. Consequently, it was further contended, the provisions of section 15 (7) of the Act could not be applied against the appellant in the absence of a finding that he was the tenant in respect of the premises in question. It was also contended that the delay of one day made in preferring the appeal to the Rent Control Tribunal should have been condoned, and the order refusing condonation was vitiated by applying erroneous considerations. Other contentions raised related to concurrent findings of fact of the Rent Controller and the Rent Control Tribunal and we need not, therefore, take notice of these arguments. The most important question that arises for determination in this case is whether or not the Rent Control authorities had jurisdiction in the matter in controversy in this case. Ordinarily it is for the Civil Courts to determine whether and, if so, what jural relationship exists between the litigating 265 parties. But the Act has been enacted to provide for the control of rents and evictions of tenants, avowedly for their benefit and protection. The Act postulates the relationship of landlord and tenant which must be a preexisting relationship. The Act is directed to control some of the terms and incidents of that relationship. Hence, there is no express provision in the Act empowering the controller, or the Tribunal, to determine whether or not there is a relationship of landlord and tenant. Inmost cases such a question would not arise for determination by the authorities under the Act. A landlord must be very ill advised to start proceedings under the Act, if there is no such relationship of landlord and tenant. If a person in possession of the premises is not a tenant, the owner of the premises would be entitled to institute a suit for ejectment in the Civil Courts, untrammelled by the provisions of the Act. It is only when he happens to be the tenant of premises in an urban area that the provisions of the Act,are attracted. If a person moves a Controller for eviction of a person on the ground that he is a tenant who had, by his acts or omissions, made himself liable to be evicted on any one of the grounds for eviction, and if the tenant denies that the plaintiff is the landlord, the Controller has to decide the question whether there was a relationship of landlord and tenant. If the Controller decides that there is no such relationship the proceeding has to be terminated, without deciding the main question in controversy, namely the question of eviction. If on the other hand, the Controller comes to the opposite conclusion and holds that the person seeking eviction was the landlord and the person in possession was the tenant the proceedings have to go on. Under section 15 (4) of the Act, the Controller is authorised to decide the question whether the claimant was entitled to an order for payment of rent, and if there is a dispute as to the person or persons to whom the rent is payable, he may direct the tenant to deposit with him the 266 amount payable until the decision of the question as to who is entitled to that payment. "Landlord" has been defined under the Act as a person who is receiver or is entitled to receive the rent of the premises (omitting the words not necessary for our present purposes). If the Controller comes to the conclusion that any dispute raised by the tenant as to who was entitled to receive rent had been raised by the tenant for false or frivolous reasons, he may order the defence against eviction to be struck out (section 15 (5)). Similarly, if a tenant fails to make payment or deposit as required by section 15 (2), the Controller may order the defence against eviction to be struck out and proceed with the hearing of the application for eviction (section 15 (7)). Such an order was, as already indicated, passed by the Rent Controller in this case. Now, proceedings under section 15 are primarily meant for the benefit of the tenant, and the section authorises the Controller after giving the parties an opportunity of being heard, to make an order directing the tenant to pay the amount found on calculation to be due to the landlord or to deposit it with the Controller, within one month of the date of the order. Such an order can be passed by the Controller for the benefit of the tenant, only if the Controller decides that the person against whom the proceedings for eviction had been initiated was in the position of a tenant. Thus, any order passed by the Controller, either under section 15 or other sections of the Act, assumes that the Controller has the jurisdiction to make the order, i. e., to determine the issue of relation ship. In this case, when the Controller made the order for deposit of the arrears of rent due, under section 15 (1), and on default of that made the order under sub section (7) of section 15, striking out the defence, the Controller must be deemed to have decided that the appellant was a tenant. Such a decision may not be res judicata in a regular suit in which a similar issue may directly arise for decision. Hence, 267 any orders made by a Controller under the Act proceed on the assumption that he has the necessary power to do so under the provisions of the Act, which apply and which are meant to Control rents and evictions of tenants. An order under section 15 (1) is meant primarily for the protection and benefit of the tenant. If the appellant took his stand upon the plea that he was not a tenant he should have simply denied the relationship and walked out of the proceedings. Instead of that, he took active steps to get the protection against eviction afforded by Act, by having an order passed by the Controller, giving him a locus poenitentiae by allowing further time to make the deposit of rent outstanding against him. The Controller, therefore, must be taken to have decided that there was a relationship of landlord and tenant between the parties, and secondly, that the tenant was entitled to the protection under the Act. It is true that the Act does not in terms authorise the authorities under the Act to determine finally the question of the relationship of landlord and tenant. The Act proceeds on the assumption that there is such a relationship. If the relationship is denied, the authorities under the Act have to determine that question also, because a simple denial of the relationship cannot oust the jurisdiction of the tribunals under the Act. True, they are tribunals of the limited jurisdiction, the scope of their power and authority being limited by the provisions of the Statute. But a simple denial of the relationship either by the alleged landlord or by the alleged tenant would not have the effect of ousting the jurisdiction of the authorities under the Act, because the simplest thing in the world would be for the party interested to block the proceedings under the Act to deny the relationship of landlord and tenant. The tribunals under the Act being creatures of the Statute have limited jurisdiction and have to function within the four corners of the Statute creating them. But within the provisions 268 of the Act, they are tribunals of exclusive jurisdiction and their orders are final and not liable to be questioned in collateral proceedings like a separate suit or application in execution proceedings. In our opinion, therefore, there is no substance in the contention that as soon as the appellant denied the relationship of landlord and tenant; the jurisdiction of the authorities under the Act was completely ousted. Nor is there any jurisdiction in the contention that the provisions of sub section (7) of section 15 of the Act had been erroneously applied to the appellant. The orders under those provisions were for his benefit and he must be deemed to have invited the Controller to pass those orders in his favour. Otherwise, he should have walked out of the proceedings after intimating to the Controller that he was not interested to contest the proceedings in as much as he was not a tenant, and that a third party was the tenant. This order, of course, will bind only the appellant and no one else, and as he failed to take advantage of the order passed in his favour under section 15 (7), he cannot make a grievance of it. Whether or not a delay of one day should have been condoned was a matter of discretion with the appellate authority, and it is not for this Court to say that this discretion should have been exercised in one way and not in another. The crucial question is not whether the delay is of one day or more, but whether or not there was any justification for the delay. It is for the appellate authority to determine whether or not the appellant had satisfied it as to the sufficiency of the ground for condoning the delay. This question of condonation of delay is more or less of academic interest only, because the Tribunal not only considered the question of delay but also the appeal on its merits, and on merits also it came to the conclusion that there was no ground for interference with the orders passed by the Rent Controller. Hence, the question of condonation of delay is of no importance in this case. What is of greater importance is the 269 merit of the decision awarding possession to the landlord. In this connection, it may be added that it was a little inconsistent on the part of the appellant to have taken all the advantages the Act affords to a tenant and then to turn round and to assert that the Rent Controller had no jurisdiction in the matter, because he was not. the tenant. The Rent Controller had to determine the controversy as between the parties for the purposes of disposing of the case under the Act. If the appellant really was a tenant, he has had the benefit of the provision of the Act, including the six months ' time as a period of grace after an order of the Rent Controller granting the landlord 's prayer for eviction. If he was not the tenant, he has nothing to lose by the order of the Rent Controller. These proceedings cannot affect the interest of one who is not a party to the present case. Furthermore, a second appeal lay from the appellate order of the Rent Control Tribunal dismissing the appellant 's appeal against the order striking out his defence. No such second appeal was taken to the High Court, though as already stated a second appeal was preferred against the order of the Rent Control Tribunal dismissing his appeal against the order of eviction. The position is that the appellate order of the Rent Control Tribunal, dated March 6, 1962, dismissing the appeal against the order striking out his defence became final between the parties and is no more open to challenge. Hence, it is no more open to the appellant to challenge the jurisdiction of the authorities under the Act. In our opinion, therefore, there is no merit in his appeal. It is accordingly dismissed with costs. Appeal dismissed.

IN-Abs

The appellant was sought to be evicted by the landlord on the ground that he had habitually defaulted in the payment of rent as well as on the ground of the bonafide requirement of the land lord for his own occupation. He resisted the suit inter alia on the ground that the premises had been let to the 260 All India Postal R. M. section Union for office cum residential purposes and that the tenancy of the Union had not been terminated and that the rent had not been demanded from the Union. The appellant was directed to deposit the arrears of rent up to date as also to go on depositing the future rent accruing due month by month. The respondent applied under section 15(7) of the Act for striking out the defence of the appellant on the ground that he had failed to comply with the orders directing him to deposit the rent. Rejecting the explanation of the appellant the Additional Rent Controller ordered the defence of the appellant to be struck out on July 26, 1961, and proceeded to pass an ex parte decree for eviction. The appellant went in appeal against the order striking out the defence which was dismissed by the Rent Control Tribunal both on the ground that it was barred by time as also on merits on March 6, 1961. The appellant did not take the matter in further appeal to the High Court. Against the decree for eviction the appellant went to the Rent Control Tribunal which dismissed the appeal. The appellant went in further appeal to the High Court which also dismissed the appeal summarily. On special leave, it was contended that the appellant having denied the existence of the relationship of landlord and tenant, the Rent Controller had no jurisdiction in the matter. Held, that under the Rent Control Law, the special tribunal has to proceed on the basis of the relationship of landlord and tenant existing between the parties but a mere denial by the tenant of the tenancy would not suffice to oust the jurisdiction of the special tribunal. It is only when the tribunal comes to the conclusion that such a relationship did not exist that it will have no jurisdiction. Held, further, that the provisions of section 15 read with the definition of "landlord" enable the Rent Controller to determine the question of the relationship of landlord and tenant for the benefit of the tenant and when a party has invited the Rent Controller to apply the provisions of section 15 for his benefit and the Rent Controller does so, he is deemed to have decided such a person is a tenant. The proper course for a person pleading that he was not a tenant would be to raise the plea and walk out of the proceedings and not to submit to jurisdiction. Held, further, that the appellant not having taken the matter of striking out his defence under section 15 (7) in appeal to the High Court the question of his being a tenant or otherwise had become final and could not be reagitated.

No. 142 of 1962. PetitioN under article 32 of the Constitution of India for the enforcement of fundamental rights. B.Chhangani and B. D. Sharma, for the petitioners. 222 C.K. Daphtary, Solicitor General of India, Kan Singh, section K. Kapoor and P. D. Menon, for the respondents. December 14. The judgment of ' the Court was delivered by WANCHOO, J. This petition under article 32 of the Constitution challenges the constitutionality of a scheme finalised under section 68D (3) of the Motor Vehicles Act, No. IV of 1939, (hereinafter referred to as the Act) in the State of Rajasthan. The petitioners are holders of stage carriage permits on Jodhpur Bilara and Bilara Beawar routes. A draft scheme was published under section 68C of the Act by the Rajasthan Roadways, which is a State Transport Undertaking, (hereinafter referred to as the Roadways), on January 26, 1961. It provided for taking over of the transport service on the Jodhpur BilaraBeawar Ajmer route by the Roadways. Further it provided for taking over three overlapping routes or portions thereof which were entirely on Jodhpur Bilara Beawar Ajmerroad, namely, Jodhpur Bilara, Bilara Beawar, and Beawar Ajmer, and as required by r. 3 of the Rajasthan State Road Transport Services (Development) Rules, 1960, (hereinafter referred to as the Rules), the names of the permitholders on these three overlapping routes with their permits were also specified for cancellation, and no transport vehicles other than the vehicles of the Road ways were to ply on the route to be taken over. The usual time was also given for filing objections to all those whose interests were affected by the draftscheme. The petitioners filed objections under s.68D of the Act, which were heard by the Legal Remembrancer to the Government of Rajasthan, he being the person appointed to hear and decide the objec tions, The objectors wanted to lead evidence and did produce some witnesses but some witnesses to whom summonses were issued did not turn up and 223 the objectors wanted the issue of coercive processes against them. The Legal Remembrancer however refused this on the ground that lie had no power to issue coercive process. As the objectors did not produce any further witnesses, the arguments were heard and the Legal Remembrancer gave his decisions on May 31, 1962. One of the main points then raised before the Legal Remembrancer was that there were a dozen other overlapping routes which were not touched by the scheme, and therefore the scheme was bad on the ground of discrimination. It may be mentioned that these overlapping routes were not completely overlapping the route to be nationalised, though the vehicles paying on those twelve routes had to pass over part of the Jodhpur Bilara Beawar Ajmer road. It was urged on behalf of the Roadways before the Legal Remembrancer that the intention was to render ineffective the permits on these twelve routes also insofar as they overlapped the route to be taken over, though these, routes were not mentioned in the draft scheme like the three routes which were completely covered by the Jodhpur Bilara Beawar Ajmer route and no notice was apparently given to the seventy two permit holders on these twelve partially over lapping routes. The Legal Remembrancer held that even though these routes were not specified in the draft scheme and no notice had been given to the permit holders thereof, it was open to him to render the permits ineffective with respect to these routesalso and proceeded to pass orders accordingly. Thereupon five writ petitions were filed in the High Court of Rajasthan by the permit holders on the three routes which had been notified in the draftscheme as well as by some of the permit holders of the twelve partially overlapping routes which had not been notified but which had been 224 affected by the order of the Legal Remembrancer. Two main points were urged before the High Court in support of the cbchallenge to the validity of the scheme as finally published on June 16, 1962. In the first place, it was urged that the State Government when publishing the scheme as required by section 68D(3) of the Act had made certain changes in it beyond the decision of the Legal Remembrancer and therefore the final scheme as published was invalid as it was not open to the State Government to make any changes in the scheme as approved by the Legal Remembrancer. Secondly, it was urged on behalf of the operators on the twelve partially overlapping routes which had not been notified in the draft scheme that it was not open to the Legal Remembrancer to affect their interests when their routes were not specified in the draft scheme and they had been given no notice thereof. The High Court accepted both these contentions. It was of the opinion that it was not open to the State Government to make any modification in the decision of the Legal Remembrancer and inasmuch as that had been done the final scheme as published was invalid. It also held that as the twelve partially overlapping routes were not notified in the draftscheme and no notice had been given to the permitholders thereof, it was not open to the Legal Remembrancer to pass any orders with respect to them. It therefore set aside the scheme as published under section 68D (3) of the Act. Finally, the High Court observed that as the scheme as published was not the scheme as approved by the Legal Remembrancer and as the decision of the Legal Remembrancer becomes final when it is published, it was open to the Legal Remembrancer to modify his decision, even though he may have signed and pronounced it. The Legal Remembrancer was thus directed to go into the matter again and leave the question of the twelve partially overlapping routes for a subsequent scheme. The final scheme as published under section 68D (3) of the Act was set aside and the Regional Transport 225 Authority was directed not to implement it until it was regularised in accordance with law. The matter then went back to the Legal Remembrancer who considered the draft scheme in the light of the decision of the High Court and after hearing further agruments disposed of the objections. The main effect of his decision was that all the twelve partially overlapping routes were left out of the scheme and only the three routes notified in the draft scheme which were completely covered by the route Jodhpur Bilara Beawar Ajmer, were affected. The decision of the Legal Remembrancer approving the scheme as modified by him was published on August 31, 1962, and the present petition is directed against that decision. The decision of the Legal Remembrancer is being challenged before us on the following grounds: (1)A draft scheme under the Act has to be approved as a whole and the procedure of approving a part of the scheme once and another part later is illegal, and therefore, the approval given to the draft scheme by the Legal Remembrancer does not result in approving the scheme, as required by law. (2)It was not open to the Legal Remembracer to review his order dated May 31, 1962 even after the decision of the High Court, and insofar as the Legal Remembrancer did so in obedience to the order of the High Court he abdicated his own judgment, and the approval therefore after such abdication of his own judgment, is no approval in law. (3)As the scheme as published on June 16, 1962 was set aside by the High Court, it was the duty of the Legal Remembrancer to give a fresh hearing ab initio to the objectors which he did not do, and therefore the approval accorded by him to the draft scheme 226 after the judgment of the High Court is no approval in law. (4)Hearing requires taking of evidence; but as the Legal Remembrancer expressed his inability to compel attendance of witnesses, there was no hearing as contemplated by law, and therefore the approval of the draft scheme without a proper hearing is no approval in law. (5) There was discrimination inasmuch as the operatorsof the twelve partially overlapping routes were left out of the scheme. (1) &(2). There is no doubt that a draft scheme has to be considered as a whole and all objections to it have to be decided before it can be approved by the State Government or by the officer appointed in that behalf, and the Act does not envisage approving of a part of the scheme once and putting it into effect and leaving another part unapproved and left over for enforcement later. It is also true that the Act does not provide for review of an approval once given by the Legal Remembrancer, though he may be entitled to correct any clerical mistakes or inadvertent slips that may have crept in his order. It is also true that the Legal Remembrancer when considering the objections has to exercise his own judgment subject to any directions that the High Court. might give on questions of law relating to a particular draftscheme. But we do not think that this is a case where the draft scheme has been approved in part and another part of it has been left unapproved to be taken up later; nor is this a case where the Legal Remembrancer abdicated his own judgment or reviewed his earlier decision when he proceeded to reconsider the matter after the High Court had set aside the scheme as published under section 68D (3) of the Act on June 16, 1962. 227 Let us see what the draft scheme was meant to provide in this case. As we have already indicated, the draft scheme was published in order to take over the Jodhpur Bilara Beawar Ajmer route. It also provided for taking over all the three completely overlapping routes, namely, Jodhpur Bilara, Bilara Beawar, and Beawar Ajmer routes, and also portions thereof falling entirely on this road from Jodhpur Ajmer. There was no indication in the draft scheme for taking over what are called partially overlapping routes, only parts of which overlapped on the Jodhpur Bilara Beawar Ajmer road. These partially overlapping routes were of two kinds. In some cases one terminus was on Jodhpur Bilara Beawar Ajmer road while the other terminus was not on this road. In other cases, both the termini of the overlapping routes were not on this road, though a part of the route fell on this road. Rule 3 of the Rules provides for indi cating all such overlapping routes as are intended to be affected and the draft scheme in the present case only indicated three routes which were completely on this road namely, Jodhpur Bilara, Bilara Beawar, and Beawar Ajmer, and was not concerned at all with the other overlapping routes, where overlapping was only partial. It was therefore in our opinion unnecessary to bring in the question of the twelve partially overlapping routes when objections to this draft scheme were being considered. There is no doubt that the Roadways was also responsible for the introduction of this confusion for it seems to have been urged on its behalf, when the objections were considered on the first occasion, that these partially overlapping routes were also meant to be covered by the draft scheme, even though they were not mentioned in the draft scheme as required by r. 3 of the Rules and no notice had been issued to the permitholders of those routes. The petitioners also raised a point with respect to these overlapping routes, and that is how on the first occasion, the Legal Remembrancer held that even though these routes had 228 not been included in the draft scheme and no notice had been given to the permit holders thereof, it was open to him to pass orders with respect thereto and he proceeded to render the overlapping part of these routes ineffective. It is obvious from a perusal of the draft scheme that these twelve partially overlapping routes were not included in it at all and they were brought in only because of the objection raised by the petitioners and the reply of the Roadways that they were meant to be included. That is why when the writ petitions were decided by the High Court, it pointed out that the scheme did not intially include the partially overlapping routes. The High Court then went on to observe that if the Legal Remembrancer thought fit to include these routes in the scheme also, he should have given notice to all concerned to file their objections. With respect, it seems to us that this observation of the High Court is not correct. If the scheme did not include the partially overlapping routes as it undoubtedly did not, in spite of what the objectors might have said and what the Roadways might have maintained before the Legal Remembrancer on the first occasion it was not open to the Legal Remembrancer to include these overlapping routes in the scheme at all and he could not do so even if he had given notice to the permit holders on these overlapping routes. The question therefore whether the final approval of the draft scheme as published on August 31,1962 is an approval of a part of the scheme only, leaving another part of the scheme unapproved and therefore liable to enforcement later, can only admit of one answer, namely, that the approval was of the scheme as a whole. The contention therefore on behalf of the petitioners that part of the scheme has been approved and the rest of it has been left unapproved, can have no force on the facts of the present case. The twelve overlapping routes were never meant to be affected by the scheme which left them untouched. The contention that only part of the scheme has been 229 approved appears to have been based on the fact that these routes have not been rendered ineffective as to the overlapping part. But as these routes were never included in the draft scheme, the approval given to the draft scheme without touching these routes cannot in the circumstances be called an approval of a part of the scheme. Nor do we think that there is any force in the contention that the Legal Remembrancer abdicated his judgment when going into the question on the second occasion after the judgment of the High Court. The order of the Legal Remembrancer dated August 17, 1962 shows that he reconsidered the entire matter after hearing further arguments and there can be no doubt that he was exercising his own judgment when he finally decided to approve the draft scheme with certain modification. What the Legal Remembrancer has done in this case is to reappraise the evidence in the light of the legal position indicated by the High Court. Nor do we think that there is any substance in the argument that the order of the Legal Remembrancer dated August 17, 1962, is a review of his earlier order dated May 31, 1962. No question of review of that order arises for that order was in effect set aside when the High Court set aside the final scheme as published on June 16, 1962. It is true that publication made certain further modifications into the scheme as approved by the Legal Remembrancer but that in our opinion makes no difference to the fact that the order of the High Court setting aside the final scheme as published on. June 16, 1962 put an end to the order of the Legal Remembrancer dated May 31, 1962 also. This argument as to review has been raised because of the observation in the Judgment of the High Court that the scheme as finally published on June 16, 1962 was not the decision of the Legal Remembrancer because of the changes made in it by the State Government and 230 therefore it was open to him to modify it, though he might have signed his decision and pronounced it. With respect, we consider that this observation is not correct. It may be that the State Government had no authority to modify the decision of the Legal Remembrancer but when the High Court set aside the finally approved scheme as published on June 16, 1962, it meant the decision of the Legal Remembrancer dated May 31, 1962, also came to an end, for the final scheme as published on June 16, 1962 was undoubtedly based on it, even though there were further changes in that decision at the time of publication. In the present case the order of the High Court was analogous to a remand as understood in courts of law. What the Legal Remembrancer did on the second occasion was to reappraise the evidence in the light of the law laid down by the High Court. Therefore, it cannot be said that the decision of the Legal Remembrancer on August 17, 1962, is a review of his earlier decision dated May 31, 1962. It must be treated as a fresh decision, after the High Court had set aside the final scheme as published on June 16, 1962. Though therefore the proposition put forward on behalf of the petitioners may be accepted as correct, there is no scope for applying the principles contained in these propositions to the facts of this case. The contention therefore that the scheme as finally published on August 31, 1962 is bad because it militates against these principles must be rejected. (3) & (4). It is urged that after the High Court set aside the final scheme as published on June 16, 1962, the Legal Remembrancer should have given a fresh hearing ab initio and that he did not do so. It is further urged that in as much as there is no provision in the Rules for compelling the attendance of witnesses whom an objector might like to produce, there 231 can be no effective hearing of the objection, and therefore the scheme as finally published on August 31, 1962, is invalid. It is not disputed that the Legal Remembrancer did give a hearing to the objectors after the order of the High Court. What is urged however is that the objectors should have been allowed to give evidence afresh before the Legal Remembrancer finally disposed of the objections. We are of opinion that though the result of the order of the High Court was to set aside the order of the Legal Remembracer dated May 31, 1962, it cannot be said that the order of the High Court wiped out the evidence which the objectors had given before the Legal Remembrancer on the first occasion. We have already mentioned the two grounds on which the High Court set aside the final scheme as published on June 16, 1962, and those grounds had nothing to do with the evidence which was already produced. In our opinion, it was open to the Legal Remembrancer to take that evidence into account and it was not necessary that evidence should be given again, particularly when no fresh issues arose; nor was the Legal Remembrancer bound to take fresh evidence simply because the final scheme as published on June 16, 1962 had been set aside on account of certain technical and Legal defects. When the objectors had been given full opportunity to lead evidence on the previous occasion which was still there for the Legal Remembrancer to take into account, it was sufficient for the Legal Remembrancer to hear the objectors ' arguments in full after the order of the High Court in the light of the observations made by it, and the petitioners therefore cannot have any grievance on the score that they were not given any hearing after the order of the High Court. If it is borne in mind that the order passed by the High Court in the proceedings was in the nature of a remand order, all these objections will plainly be untenable. 232 As to the contention that the Rules do not provide for compelling the attendance of witnesses and all that the Legal Remembrancer can do is to summon witnesses who may or may not appear in answer to the summonses, it is enough to say that the proceedings before the Legal Remembrancer though quasi judicial are not exactly like proceedings in court. In proceedings of this kind, it may very well be concluded when a witness is summoned and does not appear, that he does not wish to give evidence, and that may be the reason why no provision is made in the Rules for any coercive process. We think in the circumstances of the hearing to be given by the Legal Remembrancer, it is enough if he takes evidence of the witnesses whom the objectors bring before him themselves and if he helps them to secure their attendance by issue of summonses. But the fact that the Rules do not provide for coercive processes does not mean in the special circumstances of the hearing before the Legal Remembrancer that there can be no proper hearing without such coercive processes. We are therefore of opinion that the Legal Remembrancer did give a hearing to the objectors after the order of the High Court and that in the circumstances that hearing was a proper and sufficient hearing. The challenge therefore to the validity of the scheme as published on June 16, 1962, on this ground must be rejected. Lastly we come to the question of discrimination. The argument is based on the fact that the twelve partially overlapping routes to which we have already alluded have not been touched by the scheme. That is undoubtedly so. We have already pointed out that in the case of some of these routes one terminus is on the Jodhpur Bilara Beawar Ajmer road while the other is not on this road. In some cases neither termini is on this road and only a part of 233 the route overlaps this road. The argument is that as the permit holders on these partially overlapping routes have not been touched by the scheme, there is discrimination inasmuch as the permit holders on the three routes which were totally overlapping the route which was being taken over, have been completely excluded. We do not think that this amounts to discrimination. It may be pointed out that under section 68C it is open to take over any area or route to the complete or partial exclusion of other persons. Therefore, it was open to the State Government to take over this route only and exclude those who may be plying completely on this route or parts thereof and unless it can be shown that others who are similarly situated have not been excluded from the scheme there can be no question of discrimination. In our opinion it cannot be said that those permit holders whose routes were completely covered by the route taken over stand on the same footing as those whose routes were only partially covered by the route taken over. It may very well have been considered that in the first instance only those permit holders will be excluded whose routes are completely covered by the routes taken over, and if that is permissible under the law it cannot be said that that would amount to discrimination when there is an obvious distinction between routes completely covered by the route to be taken over and the routes partially covered by the route to be taken over. We have been informed that since this scheme was approved steps have been taken even to exclude those permit holders whose routes are partially covered by making their permits ineffective over the overlapping part of the route. But that apart, we can see no ground to uphold the plea of discrimination in the present case, for routes completely covered by the route taken over stand on a different footing from the routes only partially covered. The contention therefore that the final scheme as published on August 31, 1962 is bad because it discriminates in this manner, must be rejected. 234 We therefore dismiss the petition but in the circumstances of this case pass no order asto costs. Petition dismissed.

IN-Abs

The petitioners were holders of Stage carriage permits on Jodhpur Bilara arid Bilara Beawar routes. The Rajasthan Roadways published a draft scheme which provided for taking over the transport service on the Jodhpur Bilara Beawar Aj mer route by the Roadways and also for taking over three overlapping routes or portions thereof which were entirely on Jodhpur Bilara Beawar Ajmer road and the names of the permit holders on these three overlapping routes with their permits were also specified for cancellation and no other transport vehicles were to ply on the route to be taken over. The petitioners filed objection and challenged the scheme on the ground of discrimination before the Legal Remembrancer as some overlapping routes were not notified. He held that even though these routes were not specified in the draft scheme and no notice had been given to the permit holders thereof, it was open to him to render the permits ineffective with respect to these routes also and passed orders accordingly. The permitholders affected by the order of the Legal Remembrance filed writ petitions in the High Court. The High Court directed the Legal Remembrancer to go into the matter again and to leave the question of the twelve partially overlapping routes for a subsequent scheme. The effect of the decision of the Legal Remembrancer considered in tile light of the decision of the High Court was that all the twelve partially overlapping routes were left out of the scheme and only the three routes notified in the draft scheme were affected. The present petition is directed against his decision approving the scheme as modified by him and published on August 31, 1962. In this Court it was urged (1) that the procedure of approving a part of the scheme once and another part later was illegal; 221 (ii)that the approval of the scheme by the Legal Rem embrancer after abdication of his own judgment was not a valid approval ; (iii) that the Legal Remembrancer ought to have given a fresh hearing ab initio to the objectors ; (iv) that there was no proper hearing and (v) that there was discrimination, as the, operators of the twelve partially overlapping routes were left out of the scheme. Held, that as the twelve overlapping routes were never included in the draft scheme, the approval given to the craft scheme without touching these routes cannot be called 0an approval of a part of the scheme. Held, further that in the present case the order of the High Court was analogous to a remand order and therefore, the decision of the Legal Remembrancer must be treated as a fresh decision and not a review of his earlier decision and there was no abdication by him of his functions. Held, further, that when the objectors had been given full opportunity to lead evidence on the previous occasion which was still there for the Legal Remembrancer to take into account, it was sufficient for him to hear the objector 's arguments. If it is borne in mind that the order passed by the High Court in the proceedings was in the nature of a remand order, this objection must fail. Held, further, that the fact that the rules did not provide for a coercive process to secure attendance of witnesses did not mean that there could be no proper hearing without it. Held, further, that under section 68C it was open to the State Government to take over any area or route to the complete or partial exclusion of other persons and there was no discrimination in the present case, for routes completely covered, by the route taken over stand on a different footing from the routes only partially covered.

Appeal No. 414 of 1960. Appeal from the judgment and decree dated September 25, 1958, of the Mysore High Court in Regular Appeal (B) No. 256 of 1956. Naraindas C. Malkani and G. Gopalakrishnan, for the appellant. Bishan Narain and section P. Verma, for the respondent No. 1. 1962. December 12. The judgment of the Court was delivered by SUBBA RAO, J. This appeal on certificate relates to an internal dispute of the members of a 4 Masonic Lodge called the "Lodge Victoria No. 363 S.C." at Belgaum. There is a Scotish institution known as "Grand Lodge of Ancient Free and Accepted Masons of Scotland" at Edinburgh, hereinafter called the "Grand Lodge of Scotland". Under its supervision there arc Provincial or District Grand Lodges spread throughout the world. There are Daughter Lodges under the superintendence of the District Grand Lodges. The Grand Lodge of Scotland is governed by its own written Constitution and Laws. There is also a separate Constitution and Laws for every District Grand Lodge. One such District Grand Lodge known as "The Grand Lodge of All Scotish Freemasonary in India and Pakistan" has its headquarters at Bombay. The aforesaid daughter Lodge at Belgaum is directly under the said District Grand Lodge and is governed by the Constitution and Laws of the latter. The appellant was a member of the lodge Victoria, having joined it in the year 1948. On October 16, 1952, the second respondent made a complaint against the appellant to the Master, Lodge Victoria, alleging that the appellant was guilty of 12 masonic offences. It was alleged therein that, as the appellant had committed masonic offences, he should be tried by the Lodge for the charges levelled against him under Law 198 of the Constitution. On October 20, 1952, notice of the said complaint was issued to the appellant and he was required to send to the Secretary of the Lodge his answers to the charges within 14 days from the date of the notice. He was also informed that he was entitled to be present and to state his defence at the special meeting to be held on November 8, 1952. On the same day, the Secretary of the Lodge sent notices to all the members of the Lodge asking them to attend the said special meeting convened for considering and 5 passing judgment on the said complaint. On October 27, 1952, the appellant submitted his answer in extenso to the various charges levelled against him in the complaint; in that answer he requested that "my complete replies be read in toto to the brethren assembled to decide this matter and I be informed of the total number of brethren present and the number of votes cast one way or the other. " A perusal of that reply also shows that the appellant under stood the charges levelled against him as relating to certain offences alleged to have been committed by him and his reply proceeded on that basis. On November 8, 1952, the special meeting of the Lodge was held and the minutes show that 18 members attended the meeting, that each charge was read at the meeting, that comments of the members were invited and that decision was taken on each of the charges. Each of the charge was put to vote and the members present unanimously held that every one of the charges levelled against the appellant was established. In the result they passed a resolution excluding the appellant from the Lodge until the exclusion was confirmed by the District Grand Lodge under Law 199 of the Constitution. On November 15, 1952, the said decision was communicated to the appellant. On November 24, 1952, the appellant preferred an appeal against that order to the District Grand Lodge. On October 5, 1953, a meeting of the District Grand Lodge was convened to consider the appeal and the appeal was dismissed. It was noted in the proceedings of the District Grand Lodge that though earlier an adjournment was given to enable the appellant to appear in person at the meeting, he remained absent. On a further appeal to the Grand Lodge of Scotland, the said Lodge considered the sentence imposed on the appellant as one of "suspension sine die" and recommended to the Lodge Victoria to review the suspension after a period of 12 months if the appellant applied for reinstatement. It does not appear that the appellant filed any application for review. On September 7, 1954, the appellant instituted a suit in the Court of the Civil Judge, Senior Division, Belgaum, for a declaration that the resolution of the Victoria Lodge dated November 8, 1952, was illegal and void and that he continued to be a member of the Lodge despite the resolution, for an injunction to restrain the officers and servants of the said Lodge from preventing him from exercising his rights therein, and for recovery of damages. To that suit he made the Victoria Lodge, the first defendant ; the complainant, the second defendant ; the Secretary of the Lodge, the third defendant ; and the District Grand Lodge, Bombay, the fourth defendant. The defendants contested the suit. The learned Civil judge dismissed the suit. The appeal filed by the appellant to the High Court of Mysore was also dismissed. The present appeal has been filed on a certificate issued by the said High Court. Learned counsel for the appellant raised before us all the contentions which his client had unsuccessfully raised in the courts below. Before we advert to the said contentions it would be convenient to notice briefly the law on the subject relevant to the present enquiry. The source of the power of associations like clubs and lodges to expel their members is the contract on the basis of which they become members. This principle has been restated by Lord Morton in Bonsor vs Musicians ' Union, (1). There, one Bonsor, who became a member of a trade union, was expelled. In that context Lord Morton observed : "When Mr. Bonsor applied to join the respon dent union, and his application was accepted, a contract came into existence between Mr. Bonsor and the respondent, whereby Mr. Bonsor agreed to abide by the rules of the (1) ,127.7 respondent union, and the union impliedly agreed that Mr. Bonsor would not be excluded by the union or its officers otherwise than in accordance with the rules". This contractual origin of the rule of expulsion has its corollary in the cognate rule that in expelling a member the conditions laid down in the rules must be strictly complied with. In Maclean vs The Workers ' Union, (1), the contractual foundation of the power is described thus : "In such a case as the present, where the tribunal is the result of rules adopted by persons who have formed the association known as a trade union, it seems to me reasonably clear that the rights of the plaintiff against the defendants must depend simply on the contract, and that the material terms of the contract must be found in the rules". Proceeding on that basis,the learned Judge observed: "It is certain, therefore, that a domestic tribunal is bound to act strictly according to its rules and is under an obligation to act honestly and in good faith." The same idea was expressed by the Calcutta High Court in Ezra vs Mahendra Nath Banerji (1) thus : ". . Where the rule provides in any particular respect that some condition must be fulfilled, then that condition must be strictly complied with, since the power of expulsion is itself dependent on the terms of the rule." The next question is whether the doctrine of strict compliance with the rules implies that every minute deviation from the rules, whether substantial or not, would render the act of such a body void. The answer to this question will depend upon the (1) , 623.(2) I.L.R. , 109, 8 nature of the rule infringed ; whether a rule is mandatory or directory depends upon each rule, the purpose for which it is made and the setting in which it appears. We shall consider this aspect of the doctrine when we deal with the argument of the learned counsel that in the present case the rules have not been complied with. The scope of the jurisdiction of a civil court vis a vis the decisions of tribunals is also well settled. In Maclean vs The Workers ' Union Maugham,J., observed: "It appears to me that we have no power to review the evidence any more than have a power to say whether the tribunal came to a right conclusion." Much to the same effect the judicial Committee observed in L.A.P.0 ' Beilly vs C.C. Gittens, (2). ". . . It is important to bear in mind that neither the learned. Judge nor their Lordships ' Board is " entitled to sit as a Court of appeal from the decisions of a domestic tribunal such as the Stewards of the Trinidad Turf Club". Later on the Privy Council stated: "All these matters, however, are essentially matters for the domestic tribunal to decide as it thinks right. Provided that the tribunal does not exceed its jurisdiction and acts honestly and in good faith, the Court cannot intervene even if it thinks that the penalty is severe or that a very strict standard has been applied". Another aspect which may also be noticed is how far and to what extent the doctrine of bias may be (1) , 628.(2) A.I.R. (1949) P.C. 313, 316, 317. 9 invoked in the case of domestic tribunals like those of clubs. The observations of Maugham J. in Maclean 's case(1) in this context may be noticed. The learned judge observed in that case thus: "A person who joins an association governed by rules under which he may be expelled . . . . has in my judgment no legal right of redress if he be expelled according to the rules however unfair and unjust the rules or the action of the expelling tribunal may be provided that it acts in good faith . . . . . The phrase, "the principles of natural justice," can only mean in this connection the principles of fair play so deeply rooted in the minds of modern Englishmen that a provision for an inquiry necessarily imports that the accused should be given his chance of defence and explanation. On that point there is no difficulty. Nor do I doubt that in most cases it is a reasonable inference from the rules that if there is anything of the nature of a lis between two persons, neither of them should sit on the tribunal." Another difficulty that one is confronted with in proceedings held by committees constituted by clubs is to demarcate precisely the line between the prosecutor and the,Judge. Maugham, J. noticed this difficulty and observed in Maclean 's case (1) at p. 626 thus : "In many cases the tribunal is necessarily entrusted with the duty of appearing to act as prosecutors as well as that of judges; for there is no one else to prosecute. For example, in a case where a council is charged with the duty of considering the conduct of any member whose conduct is disgracefull and of expelling him if found guilty of such an offence, it constantly occurs that the matter is brought to the (1) , 628. 10 attention of the council by a report of legal proceedings in the press. The member is summoned to appear before the council. The council 's duty is to cause him to appear and to explain his conduct. It may be that in so acting the council are the prosecutors. In one sense they are; but if the regulations show that the council is bound to act as I have mentioned and to that extent to act as prosecutors, it seems to be clear that the council is not disqualified from taking the further steps which the rules require." Though it is advisable for a club to frame rules to avoid conflict of duties, if the rules sanction such a procedure, the party, who has bound himself by those rules, cannot complain, unless the enquiry held pursuant to such rules discloses malafides or unfair treatment. The following principles may be gathered from the above discussion. (1) A member of a masonic lodge is bound to abide by the rules of the lodge; and if the rules provide for expulsion, he shall be expelled only in the manner provided by the rules. (2) The lodge is bound to act strictly according to the rules, whether a particular rule is mandatory or directory falls to be decided in each case, having regard to the well settled rules of construction in that regard. (3) The jurisdiction of a civil court is rather limited; it cannot obviously sit as a court of appeal from decisions of such a body; it can set aside the order of such a body, if the said body acts without jurisdiction or does not act in good faith or acts in violation of the principles of natural justice as explained in the decisions cited supra. Bearing the said principles in mind, we shall now proceed to consider the arguments of learned counsel for the appellant. 11 The first contention is that Lodge Victoria has no jurisdiction to decide on the question whether a member committed a masonic offence, for, it is said, such offences are within the jurisdiction of a District Grand Lodge, Bombay. The question falls to be decided on a construction of the relevant Laws of the Lodge : The said Laws read: Law 198. Every Daughter Lodge shall be entitled to try any member accused of any offence. A complaint, in writing, shall be served on the accused brother, by registered letter posted to his last known address, specifying the offence of which he is charged, which he shall be entitled to answer in writing within fourteen days of the date of posting of the complaint, or within such longer time as may be specified in the complaint. On the answer being lodged, or on the expiry of the time for doing so, the matter of the complaint shall be brought before the Lodge for consideration and judgment, either at a special meeting called for that purpose, or at a regular meeting of the Lodge. The meeting at which it is to be considered must be called by circular sent by the Secretary, which shall state the fact that the complaint, and answer, if any, are to be brought before the Lodge for consideration and judgment. In the case of a Lodge which does not convene its meetings by circular, the meeting shall be called in such manner as may be ordered by Grand Committee, or by Grand Secretary on its behalf. Notice of the meeting shall be sent to the accused brother by registered letter posted to his last known address at least fourteen clear days prior to the day of the meeting and that whether he has lodged a written answer or not, and he shall be entitled 12 to appear at the. meeting and any adjournment thereof and state his defence. After the case has been considered, the Lodge shall give its decision. Such decision shall be by votes of a majority of the qualified members voting thereon and only those present throughout the hearing of the case shall be entitled to vote. If the complaint be sustained, the Lodge shall pronounce such admonition or sentence as shall be decided by the majority of votes as aforesaid. A Daughter Lodge may not, however, pronounce a sentence of expulsion as power to expel is vested in Grand Lodge alone; but, if the circumstances are deemed of sufficient gravity, a Daughter Lodge may recommend to Grand Lodge that a brother be expelled from the craft. The judgment pronounced shall be intimated forthwith in writing by registered letter to the said brother, who shall therein be apprised that it shall 'be final unless appealed against to the Provincial or District Grand Lodge, or to Grand Lodge in the case of a Daughter Lodge not within the jurisdiction of a Province or District within one month after the date of posting the said intimation. In special circumstances, Grand Committee, through Grand Secretary, may extend the period within which an appeal may be made. Law 128: A Provincial or District Grand Lodge shall hear and determine all subjects of maso nic complaint, dispute, or difference initiated before or appealed or remitted to it respecting Daughter Lodges or brethren of the Scotish Craft within the Province or District, and may admonish, or pronounce a sentence of suspension, and, in the case of a Lodge, may suspend its Charter. The procedure in all such subjects of complaint, dispute, or difference shall be re 13 gulated mutatis mutandis by Laws 104 to III inclusive. Law 56: The Grand Lodge shall hear and de termine, through its Grand Committee as here inbefore provided, all subjects of Masonic complaint or irregularity respecting Lodges or Brethren within the jurisdiction, and may proceed to admonish, or fine, or suspend, or expel. Under Law 198, every Daughter Lodge will be entitled to try any member accused of an offence; under Law 128, a Provincial or District Grand Lodge shall hear and determine all subjects of masonic dispute or difference initiated before it respecting the brethren of the Scotish Craft; and Law 56 provides that the Grand Lodge shall hear such complaints and inflict suitable punishments in respect thereof It will be seen that two different expressions are used: the expression " 'offence" is used in Law 198, while the expression "masonic complaint" is used in Law 128. It is, therefore, said that, as in the complaint the appellant is alleged to have committed masonic offences, the proper forum is the District Grand Lodge and not the Daughter Lodge. It is common case that the expressions "offence" and "masonic complaint" have not been defined in the Laws. In its legal significance an offence means an act or omission made punishable by any law for the time being in force. The expression "masonic complaint" is a comprehensive term; it may mean any complaint pertaining to masonic matters. It is not necessary to decide whether the expression "masonic complaint" is wide enough to take in an "offence". But Law 198 expressly confers a jurisdiction on a Daughter Lodge to try a member if he commits an offence; the jurisdiction conferred on it cannot be excluded by law 128, which is a general law. The question therefore is whether the allegations made against the appellant constituted "offences" within the meaning of law 198. 14 The word " 'offence" in the context of that Law can only mean the infringement of the Laws of the Daughter Lodge. As all the Laws have not been placed before us, we are not in a position to hold whether the allegations amounted to "offence" or not in the aforesaid sense. But the complainant, the appellant and the members of the Lodge, including its officebearers, proceeded on the basis that the appellant committed " 'offences". The complaint discloses as many as 12 charges. The appellant answered them seriatim. Indeed, in his answer he specifically stated: "Further if my accuser and others of his mind have thought this alleged "offence" serious enough to be included in this complaint, why did they not take any action in the matter immediately instead of taking it up after sleeping over it for no less than 3 4 years ?" This shows that even the appellant proceeded on the basis that the allegations, if established, would amount to "offences" within the meaning of the said law. In the special meeting of the Lodge it was held that the charges have been established; and on that basis punishment was imposed on the appellant. The appellant did not take any objection either that the allegations did not amount to "offences" within the meaning of law 198 or that the Lodge had no jurisdiction to decide whether he committed the offences. It is, therefore, manifest that all the parties concerned in the matter accepted the position that if the acts alleged to have been committed by tile appellant were established, he would have committed "offences" under the laws. If the allegations against the appellant amounted to ""offences" Law 198 is immediately attracted. If that be so, neither Law 128 nor Law 56, which deal with the jurisdiction of a District Grand Lodge in respect of "masonic complaints", can just the jurisdiction expressly conferred on the 15 Daughter Lodge. We, therefore, hold that the Daughter Lodge had jurisdiction to entertain the complaint filed by the 2nd respondent against the appellant and decide it on merits. The next question is, whether Law 198 has been strictly complied with. Relevant part of Law 198 reads : "On the answer being lodged, or on the expiry of the time for doing so, the matter of the complaint shall be brought before the Lodge for consideration and judgment, either at a special meeting called for that purpose, or at a regular meeting of the Lodge. The meeting at which it is to be considered must be called by circular sent by the Secretary, which shall state the fact that the complaint, and answer, if any, are to be brought before the lodge for consideration and judgment. " As we have already indicated in the narration of facts, notice was issued to the members fixing the date of the special meeting along with the notice issued to the appellant i.e., the notice was issued to the members before the appellant filed his answer in respect of the allegations made against him in the complaint. It is, therefore, contended that the notice of the special meeting issued to the members was not in strict compliance with the said Law. We do not see any contravention of the Law. The Law does not say that notice to the members should be issued only after the answer was lodged by the person against whom a complaint was made. But what it says is that the matter of the complaint shall be brought before the Lodge for consideration after the answer was lodged or on the expiry of the time for doing so. It also does not prescribe that the answer should be communicated to the members, but only indicates that the notice shall state the fact that 16 the complaint and the answer, if any, will be brought before the Lodge for consideration and judgment. To put it in other words, the gist of the relevant part of the law is that in the special meeting convened for the purpose or at a regular meeting of the Lodge, the matter of the complaint shall be brought for consideration and judgment. In the present case it is not disputed that the prescribed notice was given to the members and at the meeting all of them had considered the complaint as well as the answer lodged by the appellant. Therefore, the law in this regard has been strictly complied with. The next contention relates to the following part of Law 198 : "Notice of the meeting shall be sent to the accused brother by registered letter posted to his last known address at least fourteen clear days prior to the day of the meeting and that whether he has lodged a written answer or not, and he shall be entitled to appear at the meeting and any adjournment thereof and state his defence. " It is contended that under the said part of the Law, the accused is entitled to have another 14 days after he filed his answer to enable him to file his case before the Lodge and that in the instant case no such additional period was given to him. That is so. The position, therefore, is that the appellant was given notice of the hearing as required by the law, but he was not given the entire period prescribed thereunder. The question is whether this error in the procedure vitiated the trial. It is obvious that the appellant wag not prejudiced. He never made a complaint of it. Indeed in his answer he made it clear that he would not be present at the inquiry. The Law itself enabled him to apply for further time, but he did not ask for it, as he did not want to appear at the meeting. He did not raise this objection either in the appeal before the District Grand Lodge or in the second appeal before the Grand Lodge of Scotland. Before the said appellate Lodges he took 17 the decision on merits. Indeed, by his answer and subsequent conduct he clearly waived the said requirement of the Law. Can he now be allowed to rely upon a breach of the procedural rule to invalidate the proceeding ? In our view, he cannot do so. There is a distinction between the jurisdiction of a Lodge and the irregular exercise of it in the matter of the taking of procedural steps. A party to a dispute can certainly waive his objections to some defects in procedure. In this case, the appellant could have taken objection for his being given a shorter period of notice than prescribed under the Law for his appearance before the meeting of the Lodge. He did not do so. The appellant has, by his aforesaid conduct, clearly waived his right under the said Law. Having waived it, he is now precluded from relying upon the said defect. We, therefore, hold that it is not open to the appellant to rely upon the said defect for invalidating the proceeding. The lie argument that the members of the Lodge were both the prosecutors and the judges, and therefore the principles of natural justice have been violated has not much force in the context of the present enquiry. We are dealing with a case of a Lodge and not with that of a tribunal or a court. It is true that the earlier resolution, exhibit II 4 , shows that 11 members of the Lodge were not well disposed towards the appellant; but here we are concerned with the complaint filed by the 2nd respondent. Notice of the complaint was given to all the members of the Lodge. It may be that some of them did not like the appellant, and one of them is the complainant himself But 22 members of the Lodge met and unanimously held , after considering the complaint and the answer given by the appellant, that he was guilty. If the appellant had any objection for one or some of the members taking part in the meeting, he could have raised an objection, but he did not do so. The rules 18 governing tribunals and courts cannot mutatis mutandis be applied to such bodies as Lodges. We have to see broadly in the circumstances of each case whether the principles of natural justice have been applied. In the circumstances of this case, particularly when we find that the appellant had not raised any objection, we cannot say that the resolution passed by the Lodge Victoria is bad for violating any principles of natural justice. Lastly an attempt was made to persuade us to resurvey the entire material to ascertain the correctness or otherwise of the decision of the Lodge. As we have pointed out earlier, civil courts have no jurisdiction to decide on the merits of a decision given by a private association like a Lodge. Both the courts below have held that the Daughter Lodge has acted in good faith in the matter of the complaint against the appellant. That is a concurrent finding of fact; and it is the practice of this Court not to interfere ordinarily with concurrent findings of fact. There are no exceptional circumstances for our departing from the said practice. In the result, the appeal fails and is dismissed. No costs.

IN-Abs

There is a Scotish Masonic institution known as Grand Lodge of Scotland. Under this institution there are District Grand Lodges. Under its superintendence there are Daughter Lodges. These institutions arc governed by their own constitutions and laws. Under those laws a member against whom disciplinary action has been taken by a Daughter Lodge can appeal to the District Grand Lodge and there is a right of second appeal to the Grand Lodge of Scotland. The appellant was a member of one of the Daughter Lodges at Belgaum known as Lodge Victoria. The second respondent made a complaint against the appellant alleging that he has committed 12 masonic offences. A notice was issued to the appellant by the Secretary of the Victoria Lodge alleging the commission of these offences and requiring him to reply within 14 days. The appellant submitted his answer in extenso to the various charges. A special meeting of the Lodge was held at which each charge was read, members gave their comments and each charge was put to vote and it was unanimously decided that the appellant was guilty of each charge. By a resolution the appellant was expelled subject to the confirmation of the District Grand Lodge. The decision was communicated to the appellant who therefore filed an appeal to the District Lodge which body after giving him adjournment to appear in person dismissed the appeal at the next meeting at which the appellant absented himself. A further appeal was filed to the Grand Lodge which was also dismissed. Thereafter the appellant filed a suit before the Civil judge, Belgaum for a declaration that the resolution of the 2 Lodge Victoria expelling him was void and that he still continued to be a member of that Lodge. The Civil Judge dismissed the suit. Thereupon an appeal was filed before the High Court of Mysore. The High Court dismissed the appeal. The present appeal is by way of a certificate granted by the High Court. The appellant contended that the Lodge Victoria had no jurisdiction to try Masonic offences since such offences were within the jurisdiction of the District Grand Lodge, Bombay. Secondly, it was contended that the disciplinary proceedings prescribed by law 198 which governs such proceedings were not strictly complied with. It was further contended that the fourteen days to which he was entitled after he filed his answer were not granted to him. Lastly, it was argued that the decision to expel him was wrong on merits. Held, that the source of the power of associations, clubs and Lodges to expel their members is the contract on the basis of which they become members. Bonsor vs Musicians Union, , followed. A member of a Masonic Lodge is bound to abide by the rules of the Lodge; and if the rules provide for expulsion, he shall be expelled only in the manner provided by the rules. Maclean vs The Workers ' Union and Ezra vs Mahendra Nath Banerji, I. L.R. [1946] 2Cal. 88, approved. The Lodge is bound to act strictly according to the rules; whether a particular rule is mandatory or directory falls to be decided in each case, having regard to the well settled rules of construction in that regard. The jurisdiction of the Civil Court is rather limited; it cannot obviously sit as a court of appeal from the decision of such a body, it can set aside the order of such a body if the said body acts without jurisdiction or does not act in good faith or act,, in violation of natural justice. Maclean vs The Workers Union, and L.A.P.0 ' Beilly vs C. C. Gettens, A I.R. , referred to. The rules governing tribunals cannot mutatis mutandis be applied to such bodies as Lodges. One has to see broadly in the circumstances of cacti case whether the principles of natural justice has been applied. In the circumstances of this case, 3 particularly when it is found that the appellant had not raised any objection, it cannot be said that the resolution passed by the Lodge Victoria is bad for violating any principles of natural justice. Maclean vs The Workers Union, , referred to. Law 198 expressly confers a jurisdiction on a Daughter Lodge to try a member if he commits an offence, the jurisdiction conferred on it cannot be excluded by Law 128 which is a general law. The word offence ' in the context of Law 198 can only mean the infringement of laws of the Daughter Lodge. In the present case the rules relating to the disciplinary proceedings have been strictly complied with. With regard to the contention that the additional fourteen days, to which he is entitled to file his case, were not granted to him it is held that there was no prejudice caused to him by this failure and since he never made a complaint of it before any of the two appellate bodies, he has waived the requirement of the rule. From the facts and circumstances of the case, particularly when it is found that the appellant did not raise any objection, it cannot be said that the resolution passed by the Lodge Victoria is bad for violating natural justice. Since Civil Courts have no jurisdiction to decide on the merits of a decision given by a domestic tribunal and since both courts below have found concurrently that the Daughter Lodge has acted in good faith and since no exceptional circumstance has been shown, this Court will not examine the merits of the decision.

iminal Appeal No. 43 of 1952 and Petition No. 173 of 1952. Appeal by Special Leave granted by the Supreme Court on the 11th May, 1951, from the Judgment and Order dated the 11th December, 1950, of the High Court of Judicature at Hyderabad (Manohar Prasad J.) in Criminal Appeal No. 598 of 1950, and Petition under Article 32 of the Constitution. A. A. Peerbhoy (J. B. Dadachanji, with him) for the appellant. V. Rajaram Iyer, Advocate General of Hyderabad (R. Ganapathy Iyer, with him) for the respondent. March 30. The Judgment Of PATANJALI SASTRI C.J., MUKHERJEA, section R. DAS, and BHAGWATI JJ. was delivered by MUKHERJEA J. GHULAM HASAN J delivered a separate but concurring judgment. MUKHERJEA J. The appellant before us, who in the year 1947 was a Revenue Officer in the District of Warangal within the State of Hyderabad, was brought to trial before the Special Judge of Warangal appointed, under Regulation X of 1359F. on charges of murder, attempt to murder, arson, rioting and other offences punishable under various sections of the Hyderabad Penal Code. The offences were alleged to have been committed on or about the 9th of December, 1947, and the First Information Report 664 was lodged, a considerable time afterwards, on 31st January, 1949. On 28th August, 1949, there was an order in terms of section 3 of the Special Tribunal Regulation No. V of 1358 F., which was in force at that time, directing the appellant to be tried by the Special Tribunal (A). The accused being a public officer, the sanction of the Military Governor was necessary to prosecute him and this sanction was given on 20th September, 1949. On 13th December, 1949, a new Regulation, being Regulation No. X of 1359F., was passed by the Hyderabad Government which ended the Special Tribunals created under the previous Regulation on and from 16th December, 1949 ; and consequently upon such termination pro vided for the appointment, power and procedure of Special Judges. Section 4 of the Regulation authorised the Chief Minister to appoint, after consulting the High Court, as many Special Judges as may from time to time be required for the purpose of section 5. Section 5(1) laid down that every Special Judge shall try (a) such offences of which the trial was immediately before the 16th December, 1949, pending before a Special Tribunal deemed to have been dissolved on that date, and are made over to him for trial by the Chief Minister or by a person authorised by the Chief Minister in this behalf; and (b) such offences as are after the commencement of this Regulation made over to him for trial by the Chief Minister or by a person authorised by the Chief Minister in this behalf. On 6th January, 1950, the case against the appellant was made over to Dr. Lakshman Rao, a Special Judge of Warangal, who was appointed under the above Regulation under an order of the Civil Administrator, Warangal, to whom authority under section 5 of the Regulation was delegated by the Chief Minister and on the same date the Special Judge took cognizance of the offences. The trial commenced on and from 11th February, 1950, and altogether 21 witnesses were examined for the prosecution and one for 665 the defence. The Special, Judge, by his judgment dated the 8th of May, 1950, convicted the appellant of all the offences with which he was charged and sentenced him to death under section 243 of the Hyderabad Penal Code (corresponding to section 302 of the Indian Penal Code) and to various terms of imprisonment under sections 248, 368, 282 and 124 of the Code of Hyderabad (which correspond respectively to sections 307, 436,342 and 148 of the Indian Code). Against this judgment the appellant took an appeal to the High Court of Hyderabad and the appeal was first heard by a Division Bench consisting of Shripat Rao and section Ali Khan JJ. On 29th September, 1950, the learned Judges delivered differing judgments, Shripat Rao J. taking the view that the appeal should be dismissed, while the other learned Judge expressed the opinion that the appeal ought to be allowed and the accused acquitted. The case was then referred to Mr. Justice Manohar Prasad, as a third Judge and by his judgment dated the 11th of December, 1960, the learned Judge agreed with the opinion of Shripat Rao J. and dismissed the appeal upholding the conviction and sentences passed by the Special Judge. The appellant then presented an application for leave to appeal to this court. That application was rejected by the High Court of Hyderabad, but special leave to appeal was granted by this court on 11th May, 1951, and it is on the strength of this special leave that the appeal has come before us. The present hearing of the appeal is confined to certain constitutional points which have been raised by the appellant attacking the legality of the entire trial which resulted in his conviction on the ground that the procedure for trial laid down in Regulation X of 1359F. became void after the 26th of January, 1960, by reason of its being in conflict with the equal protection clause embodied in article 14 of the Constitution. These grounds have been set forth in a separate petition filed by the appellant under article 32 of the Constitution and following the procedure adopted in the case of Qasim Razvi [Case No. 276 666 of 1951(1)],we decided to hear arguments on the con stitutional questions as,preliminary points in the appeal itself. Whether the appeal would have to be heard further or not would depend on the decision which we arrive at in the present hearing. The substantial contention put forward by Mr. Peerbhoy, who appeared in support of the appeal, is that as the procedure for trial prescribed by Regulation X of 1359F. deviated to a considerable extent from the normal procedure laid down by the general law and deprived the accused of substantial benefits to which otherwise he would have been entitled, the Regulation became void under article 13(1) of the Constitution on and from the 26th of January, 1950 The conviction and the sentences resulting from the procedure thus adopted must, therefore, be held illegal and inoperative and the judgment of the Special Judge as well as of the High Court should be quashed. The other point raised by the learned counsel is that the making over of the case of the appellant to the Special Judge was illegal as the authority to make over such cases was not properly delegated by the Chief Minister to the Civil Administrator in the manner contemplated by section 5 of the Regulation. As regards the first point, it is to be noted at the out set that the impugned Regulation was a pre Constitution statute. In determining the validity or otherwise of such legislation on the ground of any of its provisions being repugnant to the equal protection clause, two principles would have to be borne in mind, which were enunciated by the majority of this court in the case of Qasim Razvi vs The State of Hyderabad (1), decided on the 19th of January, 1953, where the earlier decision in Lachman Das Kewalram vs The State of Bombay(1) was discussed and explained. Firstly, the Constitution has no retrospective effect and even if the law is in any sense discriminatory, it must be held to be valid for all past transactions and for enforce ment of rights and liabilities accrued before the (1) (2) ; 667 coming into force of the Constitution. Secondly, article 13(1) of the Constitution does not necessarily make the whole statute invalid even after the advent of the Constitution. It invalidates only those provisions which are inconsistent with the fundamental rights guaranteed under Part III of the Constitution. The statute becomes void only to the extent of such inconsistency but otherwise remains valid and operative. As was said in Qasim Razvi 's case(1) the fact that " trial was continued even after 26th January, 1950, under the same Regulation would not neces sarily render the subsequent proceedings invalid. All that the accused could claim is that what remained of the trial must not deviate from the normal standard in material respects, so as to amount to a denial of the equal protection of laws within the meaning of article 14 of the Constitution. For the purpose of determining whether the accused was deprived of such protection, we have to see first of all whether after eliminating the discriminatory provisions in the Regulation, it was still possible to secure to the accused substantially the benefits of a trial under the ordinary law; and if so, whether that was actually done in the particular case. " As has been stated already, the Special Judge took cognizance of this case on the 5th of January, 1950, ' which was prior to the advent of the Constitution. It must be held, therefore, that the Special Judge was lawfully seized of the case, and it is not possible to say that the appointment of a Special Judge was in itself an inequality. in the eye of the law. The trial undoubtedly commenced from the 11th of February, 1950, that is to say, subsequent to the coming into force of the Constitution, and the question that requires consideration is, whether the procedure that was actually followed by the Special Judge acting under the impugned Regulation did give the accused the substance of a normal trial, or, in other words, whether he had been given a fair measure of equality in the matter of procedure ? (1) 668 Mr. Peerbhoy lays stress on two sets of provisions in the impugned Regulation which, according to him, differentiate the procedure prescribed in it from that laid down under the ordinary law. The first set relates to the elimination of the committal proceeding and the substitution of warrant procedure for the sessions procedure in the trial of offences. The other set of provisions consists of those which deny to the accused the rights of revision and transfer and withdraw from him the safeguards relating to confirmation of sentences. The first branch of the contention, in our opinion, is unsustainable having regard to our decision in Qasim Razvi 's case(1). It was pointed out in that case that under the Hyderabad Criminal Procedure Code the committal proceeding,is not an indispensable preliminary to a sessions trial. Under section 267A of the Hyderabad Criminal Procedure Code, the Magistrate is quite competent, either without recording any evidence or after recording only a portion of the evidence, to commit an accused for trial by the sessions court if, in his opinion, there are sufficient grounds for such committal. If the committal proceeding is left out of account as not being compulsory, and its absence did not operate to take away the jurisdiction of the Special Judge to take cognizance of the case before the Constitution, the difference between a warrant procedure prescribed by the impugned Regulation to be followed by the Special Judge after such cognizance was taken and the sessions procedure at that stage applicable under the general law is not at all substantial, and the minor differences would not bring the case within the mischief of article 14 of the Constitution. This question having been already decided in Qasim Razvi 's case(1) it is not open for further arguments in the present one. With regard to the other set of provisions, the contention of Mr. Peerbhoy is based entirely upon the language of section 8 of the Regulation. In our opinion, the interpretation which the learned counsel seeks to put upon the section is not quite correct, (1) 669 and it seems to us that not only the right of an accused to apply for transfer of his case has not been taken away by this section, but the right of revision also has been left unaffected except to a small extent. Section 8 of the Regulation X of 1359 F. is in these terms: "All the provisions of section 7 of the said Regulation shall have effect in relation to sentences passed by a Special Judge as if every reference in the said Regulation to a Special Tribunal included a reference to a Special Judge. " The expression "said Regulation" means and refers to Regulation V of 1358 F. and section 7 of the said Regulation provides inter alia that "there shall save as here in before provided, be no appeal from any order or sentence passed by a Special Tribunal, and no court shall have authority to revise such order or sentence or to transfer any case from Special Tribunal or have any jurisdiction of any kind in respect of any proceeding before a Special Tribunal and no sentence of a Special Tribunal shall be subject to or submitted for confirmation by any authority whatsoever. " It will be noticed that what section 8 of the impugned Regula tion does, is to incorporate, not the whole of section 7 of the previous Regulation, but only such portion of it as relates to sentences passed by a Special Judge. By "sentence" is meant obviously the final or definitive pronouncement of the criminal court which culminates or ends in a sentence as opposed to an "order", interlocutory or otherwise, where no question of infliction ' of any sentence is involved. The scope of section 7 of the earlier Regulation is thus much wider than that of present section 8 and all the limitations of the earlier statute have not been repeated in the present one. The result, therefore, is that revision against any order which has hot ended in a sentence is not interdicted by the present Regulation, nor has the right of applying for transfer, which has no reference to a sentence, been touched at all. These rights are expressly preserved by section 10 of the present 87 670 Regulation, which makes the Code of Criminal 'Procedure applicable in all matters except where the Regulation has provided otherwise. Reading section 8 of the present Regulation with section 7 of the earlier one, it may be held that what has been taken away from an accused is, in the first place, the right of revision against non appealable sentences, and in the second place, the provisions relating to confirmation of sentences. The first one is immaterial for our present purpose, as no question of any non appealable sentence arises in the case before us. The second is undoubtedly a discriminatory feature and naturally Mr. Peerbhoy has laid considerable stress upon it. Section 20 of the Hyderabad Criminal Procedure Code lays down the rule relating to confirmation of sentences in the following manner: Every Sessions Judge may pass any sentence authorised by law, but such sentence shall not be carried into effect until (1) in the case of a sentence of 10 years 'impri sonment or more, the appropriate Bench of the High Court; (2) in the case of life imprisonment, the Government; and (3) in the case of death sentence, H.E.H. the Nizam, shall have assented thereto. Section 302 provides that when a sessions court as passe a sentence of death 'or of life imprisonment or of imprisonment exceeding 10 years, the file of the case shall be forwarded to the High Court and the execution of the sentence stayed until manjuri is given in accordance with section 20. Section 307 further provides that when the High Court has affirmed a death sentence or sentence of life imprisonment, then its opinion together with the file of the case shall be forwarded ' for ratification to the Government within one week and the sentence shall not be carried into effect until after the assent thereon of H.E.H. the Nizam in the case of death sentences and of the Government in the case of 671 sentences of life imprisonment. Mr. Peerbhoy 's complaint is that the sentence imposed upon his client has, in the present case, neither been ' confirmed by the High Court, nor by H.E.H. the Nizam. This, he says, is a discrimination which has vitally prejudiced his client and does afford a ground for setting aside the sentence in its entirety. admits of no dispute that section 8 of Regulation X of 1359F. must be held to be invalid under articles 13(1) and 14 of the Constitution to the I extent that it takes away the provision relating to confirmation of sentences as is contained in the Hyderabad Criminal Procedure Code. This, however, is a severable part of the section and being invalid, the provisions of the Hyderabad Criminal Procedure Code with regard to the confirmation of sentences must be followed. Those provisions, however, do not affect in any way the procedure for trial laid down in the Regulation. All that section 20 of the Hyderabad Criminal Procedure Code lays down is that sentences of particular description should not be executed unless assent of certain authorities to the same is obtained. The proper stage, therefore, when this, section comes into operation. is the stage of the execution of the sentence. The trial or conviction of the accused is not affected in any way by reason of the withdrawal of the provision relating to confirmation of sentences in the Regulation. The withdrawal is certainly inoperative and in spite of such withdrawal the accused can insist on the rights provided 'for under the general law. In the case before us the records show that no reference was made by the Special Judge after he passed the sentence of death upon the appellant in the manner contemplated by section 307 of the Hyderabad Code, which corresponds to section 374 of the Indian Criminal Procedure Code. There was, however, an appeal preferred by the accused and the entire file of the case came up before the High Court in that connection. As said already, the Division Bench, which heard the appeal, was divided in its 672 opinion and consequently no question of confirmation of the death sentence could or did arise before that Bench. The question was, however, specifically raised towards the conclusion of the arguments before the third Judge, to whom it was referred; and it is significant to note that some time before that a Full Bench of the Hyderabad High Court had decided that the provision in the Regulation relating to confirmation of sentences was void and inoperative and consequently in spite of the said provision the sentences were required to be confirmed in accordance with the general law. The question was then raised whether the confirmation was to be made by the third Judge alone or it had to be done by the two Judges who agreed in dismissing the appeal. Mr. Justice Manohar Prasad decided that as the whole case was referred to him, he alone was competent to make the order for confirmation of the death sentence and he did actually confirm it by writing out in his own hand the order passing the sentence of death according to the provision laid down in the Hyderabad Code. Mr. Peerbhoy contends that this confirmation was illegal and altogether invalid as not being made in conformity with the provisions of the Hyderabad Code. We do not want to express any opinion on this point at the present moment. There appears on the face of the record an order for confirmation of the death sentence made by a Judge of the High Court. If this order is not in conformity with the provisions of law, the question may be raised before this court when the appeal comes up for hearing I on its merits. This is, however, not a matter which affects the constitutional question with which only we are concerned at the present stage. Under section 20 of the Hyderabad Code, as mentioned above, a death sentence could not be executed unless the assent of H.E.H. the Nizam was obtained. Mr. Peerbhoy points out that this has not been done in the present case. To that the obvious reply is that consent of H.E.H. the Nizam is necessary only before the sentence is executed, and that stage apparently 673 has, not arrived as yet. The final judgment of the High Court in this case was passed on 11th December, 1950. There was an application for leave to appeal presented by the accused immediately after that date and this application was rejected on 2nd January, 1951. On the 5th of February, 1951, an application for special leave was made to this court and the execution of the death sentence was stayed during this period under orders of the High Court itself. The special leave was granted by this court on 11th May, 1951, and the carrying out of the death sentence has been stayed since then under our orders, pending the disposal of the appeal. The question as to whether any further confirmation by H.E.H. the Nizam is necessary could only arise if and when the death sentence passed by the courts below is upheld by this court. Mr. Peerbhoy points out that since the 1st April, 1951, the Indian Criminal Procedure Code has been introduced in the State of Hyderabad and there is no power in the Nizam now to confirm a sentence of death, although such confirmation was necessary at the time when the sentence was pronounced both by the Special Judge as well as by the High Court on appeal. We do not think that it is at all necessary for us at the present stage to discuss the effect of this change of law. If the assent of the Nizam to the execution of a death sentence is a matter of procedure, it may be argued that the procedural law which obtains at the present moment is the proper law to be applied. On the other hand, if it was a question of substantive right, it may be open to contention that the law which governed the parties at the date when the trial began is still applicable. We are, however, not called upon to express any opinion on this point and we deliberately decline to do so. We also do not express any opinion as to whether the rights which could be exercised by the Nizam under section 20 of the Hyderabad Criminal Procedure Code were appurtenant to his prerogative as a sovereign or were statutory rights exercisable by the person designated in the statute. These matters 674 may be considered when the appeal comes up for final hearing on the merits. Our conclusion is that there has not been any discrimination in matters of procedure in this case which can be said to, have affected f the trial prejudicially against the accused and the accused is not entitled to 'have his conviction and sentence set aside on that ground. The other question raised by the appellant relates to delegation of the authority by the Chief Minister to make over cases for trial by the Special Judge. Mr. Peerbhoy lays 'stress on section 5 (b) of the Regulation which speaks of offences being " made over to the Special Judge for trial by the Chief Minister or by a person authorised by the chief Minister in this behalf ", and it is argued that this section requires that the delegatee is to be mentioned by name. What the Chief Minister has done is that he issued a notification authorising all civil administrators of the districts to exercise within their respective jurisdictions the powers of the Chief Minister under the said section. This, it is argued, is not in compliance with the provisions of the section. We do not think there is any substance in this contention. The delegates can certainly be described by reference to his official designation and the authority may be vested in the holder of a particular office for the time being. This, we think, is quite a proper and convenient way of delegating the powers which are exercisable by the Chief Minister. In our opinion, the constitutional points raised by Mr. Peerbhoy fail. The application under article 32 of the Constitution is thus rejected and the case is directed to be posted in the usual course for being heard on its merits. GHULAM HASAN J. I concur in the order proposed by my learned brother Mr. Justice Mukherjea that the petition under article 32 of the Constitution be dismissed, but I deem it necessary to make a few observations in view of my dissenting judgment in Qasim Razvi 's case(1). The majority judgment delivered by Mr. Justice Mukherjea on the. 19th January, 1953, in (1) [1952] S C R, 710. 675 Qasim Razvi 's case(1) while interpreting the decision in Lachmandas Kewalram Ahuja vs The State of Bombay(1) laid, down the principle that the mere fact that some of the provisions of the impugned Regulation are discriminatory on the face of it, is not sufficient to render the trial and the conviction void under article 14, read with article 13 (1) of the Constitution and that in such cases where the trial is continued after the 26th January, 1950, under the impugned Regulation, it is necessary to see whether the procedure followed after the material date was such as deprived the accused of the equal protection of laws within the meaning of article 14 of the Constitution and that if the accused under such procedure received substantially the benefits of the trial under the ordinary law, the trial and conviction cannot be held as void and illegal. I take it that the majority decision is binding and that the principle enunciated by the majority is no longer open to question. With this preliminary observation I must proceed to express my concurrence generally with the view taken by my learned brother Mr. Justice Mukherjea in the present case. It is to be borne in mind that Regulation V of 1358 F. under which the Tribunal was constituted to try Qasim Razvi 's case was in material respects different from Regulation X of 1359 F. under which the Special Judge tried the petitioner Habeeb Mohammad. I agree with my learned brother in holding that there was no flaw in making over the case of the petitioner for trial to the Special Judge under section 5 (b) of the Regulation. The Special Judge took cognizance of the case before the Constitution came into force, but the entire evidence of the prosecution, unlike Qasim Razvi 's case, was recorded after the 26th of January, 1950. The Regulation in question was challenged before us as being void under article 14 read with article 13(1) of the Constitution on the following grounds: (1) (2) 676 (1) that the Regulation excludes the committal proceedings, (2) that the procedure of the sessions trial is replaced by the warrant procedure, (3) that there is no right of transfer, (4) that there is no revision, (5) that the right of confirmation by the Nizam in case of sentences of death has been negatived. As regards the first two grounds, Mr. Justice Mukherjea, following the view taken in Qasim Razvi 's case(1) has held that under section 267A 'of the Hyderabad Criminal Procedure Code committal proceedings are not compulsory and that there is no substantial difference , between the sessions trial and the warrant procedure which was followed in the petitioner 's case. These two grounds of attack there. fore disappear. So far as grounds Nos. (3) and (4) are concerned, I agree with Mr. Justice Mukherjea in his interpretation of section 8 of the Regulation and hold in concurrence with the view taken by him that the right to apply for transfer has not been taken away and that the right of revision has been denied only in so far as non appealable sentences are concerned. The present is a case of murder and other serious offences which are undoubtedly all appealable. The only discriminatory feature of the Regulation left therefore is that no sentence of a Special Tribunal shall be subject to or submitted for confirmation by any authority whatsoever contained in section 7 (2) of Regulation V of 1358F which is made applicable,under section 8 of Regulation X of 1359 F., in other words, that the right of the Nizam to confirm the death sentence has been taken away. This is un questionably a valuable right available to the accused who is sentenced to death by the Sessions Judge or the High Court as the case may be. We were told by Mr. Peerbhoy, counsel for the petitioner, that no death sentence passed by the ' courts in Hyderabad during the last 50 years or go has ever been carried into effect and that the Nizam has always exercised (1) , 677 this right in favour of commuting the death sentence to.a sentence for life. The denial of this right in the Regulation is discriminatory on the face of it and deprives the petitioner of a valuable right. I concede, however, that this objectionable feature of the Regulation is severable from the other parts. I further agree that the stage for the exercise of that right has not yet arisen, for the appeal of the petitioner is still pending in this court. If the appeal is allowed, or the sentence is reduced, no question of the confirmation of the death sentence by the Nizam will arise. If, however, the appeal is dismissed, it will be open to the petitioner to claim this right. It would not be desirable at this stage to express an opinion whether this right is a substantive right which vests in the petitioner or one relating to a more matter of procedure, as that question will have to be considered and decided when the appropriate stage arrives. I would, therefore, agree in dismissing the petition. Petition dismissed. Agent for the petitioner: Bajinder Narain. Agent for the respondent : G. H. Rajadhyaksha.

IN-Abs

In determining the validity or otherwise of a pre Constitution statute on the ground of any of its provisions being repugnant to the equal protection clause of the Constitution, two principles 86 662 have to be borne in mind. Firstly, the clause bag no retrospective effect and even if the law is in any sense discriminatory, it must be held to be valid for all past transactions and for, enforcement of rights and liabilities accrued before the coming into force of the Constitution. Secondly, article 13 (1) of the Constitution does not necessarily make the whole statute invalid even after the advent of the Constitution. It invalidates only those provisions which are inconsistent with the fundamental rights guaranteed under Part III of the Constitution. Further, the fact that trial was continued even after 26th January, 1950, under the earlier Regulation which is in some respects discriminatory would not necessarily render the subsequent proceedings invalid. All that the accused could claim is that what remains of the trial must not deviate from the normal standard in material respects, so as to amount to a denial of the equal protection of laws within the meaning of article 14 of the Constitution. For the purpose. of determining whether the accused was deprived of such protection, the Court has to see first of all whether after eliminating the discriminatory provisions in the Regulation, it was still possible to secure to the accused substantially the benefits of a trial under the ordinary law; and if so, whether that was actually done in the particular case. On the 5th January, 1950, the case of the accused who was charged with murder, arson, rioting and other offences which was pending before a Special Tribunal was made over to a Special Judge in pursuance of the provisions of the Hyderabad Regulation X of 1359 F., which abolished the Special Tribunal Regulation of 1949. The trial commenced on the 11th February, 1950, after the new Constitution came into force and the accused was convicted and sentenced to death. His appeal was dismissed and the sentence of death was ultimately confirmed by the High Court. It was contended that the entire trial was illegal inasmuch as the Regulation under which the accused was tried contained several provisions which were in conflict with the equal protection clause (article 14) of the Constitution and became void after the 26th January 1950. Held, (1) The provisions in the Regulation eliminating committal proceedings and substituting the warrant procedure for sessions procedure in the trial of offences did not render the trial illegal as the committal proceeding was not an indispensable preliminary to a sessions trial under the Hyderabad Criminal Procedure Code. (2) On a proper interpretation of section 8 of the Regulation the right of an accused to apply for transfer of his case was not taken away and the right of revision was taken away only in respect of non appealable sentences. (3)Section 8 of the Regulation was void in so far as it took away the provisions relating to confirmation of sentences but as this part of the Regulation was severable from the remaining 663 portion of the section the provisions of the Hyderabad Criminal Procedure Code relating to confirmation of sentences could be followed, and those provisions did not in any way affect the procedure for trial laid down in the Regulation. (4)The fact that the Nizam 's consent had not been obtained could not vitiate the trial as such consent is necessary only before execution of the sentence. Held also, that the delegation of the authority of the Chief Minister to make over cases for trial to the Special Judge, by a general notification authorising all civil administrators of the districts to exercise within their respective jurisdictions the powers of the Chief Minister under section 5 (b) was not invalid. Section 5 (b) does not require that the delegatee must be mentioned by name. Qasim Bazvi 's case ([1953] S.C.R. 589) applied.

Appeal No. 356 of 1962. Appeal by special leave from the judgment and order dated December 13, 1960, of the Andhra Pradesh High Court in Writ Petition No. 46 of 196O. A.V. Viswanatha Sastri, B. Parthasarthi and R.vasudev Pillai, for the appellant. D. Narsaraju, Advocate General for the State of Andhra Pradesh, K. R. Choudhri and P. D. Menon, for the respondents. January 22. The judgment of the Court was delivered by HIDAYATULLAH, J. This is an appeal by special leave against the judgment and order of the High Court of Andhra Pradesh dated December 13, 1960, dismissing Writ Petition No. 46 of 1960. The petitioner is the appellant before us. The respondents to this appeal are the Government of Andhra 673 Pradesh and the Chairman of the Tribunal for Disciplinary Proceedings, Andhra Pradesh. The appellant was a servant in the Hyderabad Revenue Service and in 1956 was holding the post of Deputy Secretary to the Government in the Public Works Department. On a report submitted by the C.I.D. the Government of Andhra Pradesh ordered an inquiry under section 4 of the Hyderabad Public Servants (Tribunal of Enquiry) Act, 1950 (Hyderabad Act No. XXIII of 1950) by the Tribunal for Disciplinary Proceedings. The Tribunal enquired into 19 charges and submitted its report on July 11, 1959. The Tribunal found 4 charges proved and in view of the first charge which involved acceptance of a bribe and charge No. 14 which related to tampering with official records, the Tribunal recommended that the appellant be dismissed from service. After due notice to the appellant the Government of Andhra Pradesh ordered the dismissal of the appellant. The appellant thereupon moved a petition under Article 226 of the Constitution requesting that the order passed by Government be quashed. The appellant, inter alia, contended that under the Hyderabad Public Servants (Tribunal of Enquiry) Act, 1950, the Tribunal could only consist of persons who were judicial officers employed as Sessions judges in the territory of India for a period of not less than 3 years. He contended that though the enquiry had properly commenced before Mr. R. Bhaskara Rao, who func tioned as the Disciplinary Proceedings Tribunal up to April 19, 1959, he was succeeded by Mr. M. Sriramamurthy who was not qualified but who heard the arguments and submitted the report He contended that Mr. Sriramamurthy had not held the office of a Sessions judge for three years. The only question, which was considered by the Andhra Pradesh High Court, was whether in the circumstances Mr. Sriramamurthy was disqualified to act as the Tribunal. The High Court held that in view of the provisions of the States Reorganisation Act and 674 the Notification issued by the Government of Andhra Pradesh on November 1, 1956, by which the Tribunal for Disciplinary Proceedings in Andhra Pradesh was named as the authority to function under the Hyderabad Public Servants (Tribunal of Enquiry) Act, 1950, Mr. Sriramamurthy was competent to exercise functions exercisable under the Hyderabad Act. The High Court accordingly dismissed the petition. It is contended by Mr. Vishwanath Sastri that the appointment of Mr. Sriramamurthy was incompetent because he was not qualified to act as the Tribunal of Enquiry under the Hyderabad Act. We are concerned with the Hyderabad Act and the (Act No. XXXVII of 1956). The relevant provisions of the first Act are sections 3 and 4 and they may now be seen. Section 3 of the Hyderabad Public Servants (Tribunal of Enquiry) Act 1950, in so far as it is material, read as follows: "3. (1) A Tribunal consisting of one or more members shall be constituted for the purpose of this Act. (2) Every member of the Tribunal shall be a judicial officer who has been employed as a Sessions judge in the territory of India for a period of not less than three years . . . . " Section 4 read as follows "4. Government may, and in such cases, if, any. as may be prescribed, shall refer to the Tribunal for enquiry and report any case involving an allegation of misconduct or inefficiency or disloyalty on the part of a public servant. " 675 The corresponding provisions in the State of Andhra before the formation of the State of Andhra Pradesh were the. Andhra Civil Services (Disciplinary Tribunal) Rules, 1953, which were made under the proviso to article 309 of the Constitution. Under those Rules which came into force on October 1, 1953, it was provided : "3. (a) The Tribunal shall consist of one judicial officer of the status of District and Sessions judge. " (Proviso omitted) It is admitted that Mr. M. Sriramamurthi held the qualification under this Rule. On November 1, 1956, the State of Andhra Pradesh was formed by the amalgamation, among others, of portions of Hyderabad State with the State of Andhra. The contemplating the existence of diverse laws on the same subject in the integrated units provided for the conflict of laws. Under section 115 which related to services it was provided that every person who immediately before the appointed day was serving in connection with the affairs of an existing State, parts of whose territories were transferred to another State, would from that date provisionally continue to serve in connection with the affairs of the successor State to that existing State unless he was required to serve provisionally in Connection with the affairs of any other successor State. Under this section the appellant automatically began to serve the successor State, namely, the State of Andhra Pradesh. Section 120 gave the power to the State Government to adapt laws. It provided that the Government of the succeeding State could make adaptations and modifications of the law of an existing State whether by way of repeal or amendment, as may be necessary or expedient, and after 676 such adaptations, every such law was to have effect until ;altered, repealed or amended by a competent Legislature or other competent authority. Section 121 gave a special power to Courts, Tribunals and authorities to construe the laws where no provision or insufficient provision has been made for the adaptation of a law to facilitate the application of the law in relation to any State newly formed though without affecting the substance of the matter. Section 122 then provided as follows: "122. The Central Government, as respects any State, and the State Government as respects any new State or any transferred territory. may by notification in the Official Gazette specify the authority, officer or person who, as from the appointed day, shall be competent to exercise such functions exercisable under any law in force on that day as may be mentioned in that notification and such law shall have effect accordingly. " Finally, section 127 read as follows "127. The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law. " It will, therefore, be seen that the applies even if it is inconsistent with anything in the Hyderabad Public Servants (Tribunal of Enquiry) Act, 1950. By reason of section 127 and the power granted by section 122 it was competent to the Government of Andhra Pradesh to name an authority under the Hyderabad Act even though that authority might not have been qualified under the latter Act. The concluding words of section 122 shall be competent to exercise such functions exercisable under any law in force on that day as may be mentioned in that notification and such law 611 shall have effect accordingly" show that on the notification issuing under section 122 the existing law itself is to have effect in a different manner. The argument of Mr. Vishwanath Sastri that before the Hyderabad Act could be departed from, it had to be adapted under section 120 by substituting an authority different from that named in section 3 therefore might have been effective if section 122 had not concluded in the manner indicated above. Section 122 by its very terms makes the Hyderabad Act speak in accordance with a notification issued under section 122. That Act after the notification applies in accordance with the notification and pro tanto is adapted by the Notification. In our opinion adaptation of the Hyderabad Act under section 120 was not a condition precedent to the issuance of the Notification and the Notification having issued the Hyderabad Act applied accordingly and the appointment of Mr. Sriramamurthy was therefore valid. We agree with the High Court in its conclusion. The appeal fails and is dismissed with costs. Appeal dissmissed.

IN-Abs

The appellant was a servant in the Hyderabad Revenue Service and was holding the post of Deputy Secretary to the Government in the Public Works Department. The Government of Andhra Pradesh ordered an enquiry by the Tribunal for Disciplinary proceedings. The Tribunal enquired into the charges and recommended the dismissal of the appellant from service and after due notice to the appellant the Government of Andhra Pradesh ordered his dismissal. The appellant thereupon moved a petition under article 226 of the Constitution for quashing the aforesaid order, which was dismissed by the High Court. In this Court it was urged by the appellant that the appointment of Mr. Sriramamurthy was incompetent as he was 672 not qualified to act as the Tribunal of Enquiry under the Hyderabad Act. Held, that by virtue of section 127 thereof the States Reorgani sation Act applied even if it was inconsistent with anything in the Hyderabad Public Servants Act, 1950. By reason of section 127 and the power granted by section 122 it was competent to the Government of Andhra Pradesh to name an authority under the Hyderabad Act even though that authority might not have been qualified under the latter Act. The concluding words of section 122 shew that on the notification issuing under section 122 the existing law itself was to have effect in a different manner. Section 122 thug made the Hyderabad Act speak in accordance with the notification issued under section 122. That Act after the notification applied in accordance with the notification and was pro tanto adapted by the Notification. The adaptation of the Hyderabad Act under section 120 was not a condition precedent to the issuance of the notification and Notification having issued the Hyderabad Act applied accordingly and the appointment of Mr. Sriramamurthy was therefore valid.

N: Civil Appeal No. 569 of 1961. Appeal by special leave from the order dated September 9, 1960, of the Chief Commissioner, Pondicherry in Appeal No. 94 of 1960. WITH Writ Petition No. 347 of 1960. Petition 'tinder article 32 of the Constitution of India for enforcement of Fundamental Rights. 658 N. C. Chatterjee, R. K. Garg and section C. Agarwala for the Appellant. C. K. Daphtary, Solicitor General of India, B. R. L. Iyengar and R. N. Sachthey, for respondent No. 1 (in C. A. No. 569/61). R. Mahalinga Iyer, for respondent No. 2 (in C.A.569/61). N. C. Chatterjee, R. K. Garg and section C. Agarwala, for the petitioner and the intervener. C. K. Daphtary, Solicitor General of India, B. R. L. Iyengar and R. N. Sachthey, for respondent No. 1 (in W. I,. No. 347/60). R. Thiagarajan, for respondent No. 3 (in W. P. No. 347/60). January 22. The judgment of the Court was delivered by WANCHOO, J. The appeal and the writ petition arise out of the same order of the Chief Commissioner of Pondicherry acting as the appellate authority under the Motor Vehicles Act and will be dealt with together. The petitioner is one of fourteen persons who had applied for a stage carriage permit before the State Transport Authority, Pondicherry. The petitioner 's application was rejected and the permit was granted to Perumal Padayatchi, one of the respondents before us. The State Transport Authority considered various factors one of which was that Perumal Padayatchi was a native of Pondicherry and taking all the factors into account, the permit was granted to Perumal Padayatchi. The petitioner went in appeal before the Appellate Authority, who is the Chief Commissioner of Pondicherry. The Appellate Authority dismissed 659 the appeal and observed that even if it were conceded. that the claim% of the petitioner were more or less equal to those of Perumal Padayatchi, the latter would be entitled to preference on the ground that he is a native of Pondicherry. We may. add that though the petitioner used to live in Pondicherry, he was not a native of Pondicherry. This order rejecting the appeal was passed on September 9, 1960. The appeal has been filed with special leave against this order. 'I he petitioner has also filed the writ petition against this order in which he raises, the same points. The main contention urged on behalf of the petitioner is that the order of the appellate Authority shows that preference was granted to Perumal Padayatchi on the ground that he was a native of Pondicherry (i. e. he was born in Pondicherry), while the petitioner was merely a resident of Pondicherry (i. e. he was born in Pondicherry). The petitioner contends that such grant of preference on the ground of place of birth is hit by article 15 of the Constitution as the petitioner is a citizen of India, and article 15 lays down that "the State shall not discriminate against any citizen on grounds only of religion, race, case, sex, place of birth or any of them". This contention of the petitioner is met on behalf of the respondents in this way. The respondents submit that at the relevant time, Pondicherry was not within the territory of India and the Constitution did not apply to it. Therefore, the petitioner would have no right to apply to this Court for special leave under article 136 of the Constitution; nor would the petitioner have a right to proceed by way of a writ petition under article 32 against an order which was passed by the Appellate Authority in Pondicherry at a time when Pondicherry was not in the territory of India. Reliance in this connection is placed on behalf of the respondents on the decision of this 660 Court in N. Masthan Sahib vs Chief Commissioner, Pondicherry(1) The petitioner also relies on the same decision of this Court. It is conceded on his behalf that in view of that decision it was not open to the petitioner to apply to this Court under article 136 and therefore the appeal may not be maintainable. But it is urged that under article 12 ,,,the State" for the purpose of part III of the Constitution is defined to include " 'the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India". It is therefore contended that even though Pondicherry was not a part of India when the order under challenge was passed, the Appellate Authority which passed the order was a "local or other authority under the control of the Government of India" and therefore was amenable to a writ under article 32 of the Constitution. Further it is urged that whatever may have been the position when Masthan Sahib 's case (1), wag decided, Pondicherry is now within the territory of India since August 1962 and therefore this Court can now issue a writ to the Appellate Authority if the order under challenge, violates article 15 of the Constitution. The respondents however contend that the fact that Pondicherry is now within the territory of India makes no difference in the application of the decision in Masthan Sahib 's case (1). It is submitted that the reasons which led the majority in that case to refuse to issue a writ clearly imply (even if there is no actual decision in express terms on the question now raised) that a judicial or quasi judicial authority cannot be said to be an authority "under the control of the Government of India" within the meaning of article 12, and therefore the. Appellate Authority which was a quasi ,judicial authority was not under the (1) [1962] Supp. 1 S.C.R. 981. 661 control of the Government of India and could not be amenable to a writ under article 32 at the time when the order under challenge was passed. Further as the Constitution is not retrospective in operation the fact that Pondicherry since August 1962 is part of the territory of India would not give this Court jurisdiction to issue a writ now when it could not issue a writ to the Appellate Authority in September, 1960, even reading article 32 along with article 12 of the Constitution. Before we come to consider the questions thus raised in the writ petition, we may state that so far as the appeal is concerned, it is concluded by the decision in Masthan Sahib 's case (1). Article 136 gives power to this Court to 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. Admittedly, Pondicherry was not within the territory of India when the order was passed and therefore article 136 would not apply to such an order. We have already indicated that this position is conceded on behalf of the petitioner. So far therefore as the appeal is concerned it must be dismissed on the authority of Masthan Sahib 's case (1), though in the circumstances we shall pass no order as to costs. Turning now to the writ petition, the main question that falls for consideration is the effect of article 12 and whether on a proper interpretation of that Article, the Appellate Authority could in this case be said to be " 'a local or other authority under the control of the Government of India". It is submitted on behalf of the respondents that this matter is also concluded by the decision of the majority in Masthan Sahib 's case (1), and that the effect of that decision is that a judicial or a quasijudicial authority would not be an authority "under the control of the Government of India". ' On the (1) [1962] Supp. 1 S.C.R. 981. 662 other hand, the petitioner contends that there was no such decision in that case as will appear from the concluding portion of the judgment and therefore the question is open for consideration before us. As both parties rely on that decision we may quote the relevant part thereof. Before we do so we may mention that the decision in that case was in two parts, the first part being delivered on April 28, 1961 and the final part on December 8, 1961, though the report contains only the final part. Relevant part of that decision which appears in the first part delivered on April 28, 1961, is as below : "Learned counsel pointed out that for the purpose of the exercise of this Court 's power under article 32 of the Constitution for the enforcement of the fundamental rights its jurisdiction was not limited to the authorities functioning within the territory of India but that it extended also to the giving of directions and the issuing of orders to authorities functioning even outside the territory of India provided that such authorities were subject to the control of the Government of India. This submission.appears to us well founded and the power of this Court under article 32 of the Constitution is not circumscribed by any territorial limitations it extends not merely over every authority within the territory of India but also those functioning outside, provided that such authorities are under the control of the Government of India". Then after considering articles 142 and 144 of the Constitution and pointing out that in view of the limitations imposed by article 142 on the territory within which alone the orders or directions of this Court could be directly enforced, a question was posted whether a writ in the nature of certiorari or 663 other appropriate order or direction to quash a quasi judicial order passed by an authority outside the territory of India, though such authority is under the control of the Government of India could issue. The majority judgment observed as follows in answer to the question thus posed : "If the order of the authority under the control of the Government of India but functioning outside the territory of India was of an executive or administrative nature, relief could be afforded to a petitioner under article 32 by passing suitable orders against the Government of India directing them to give effect to the decision of this Court by the exercise of their powers of control over the authority outside the territory of India. Such an order could be enforceable by virtue of article 144, as also article 142. But in a case where the order of the outside authority is of a quasi judicial nature, as in the case before us, we consider that resort to such a procedure is not possible and that if the orders or directions of this Court could Dot be directly enforced against the authority in Pondicherry, the order would be ineffective and that the Court will not stultify itself by passing such an order." In the final order, however, at p. 1009 of the Report, the majority observed as follows: "The writ petitions must also fail and be dismissed for the reason that having regard to the nature of the relief sought and the authority against whose orders relief is claimed they too must fail. They are also dismissed. We would add that these dismissals would not preclude the petitioners from approaching this Court, if so desired in the event of Pondicherry becoming part of the territory of India". 664 it is contended on behalf of the petitioner that the majority decision in that case seems to imply that the Appellate Authority was under the control of the Government of India as otherwise it would not have been necessary to put the two questions which were out to the Government of India by the first part of the decision. Further it is contended that the observations in the final part of the judgment that the petitioners in that case were not precluded from approaching this Court, if so desired, in the event of Pondicherry becoming part of the territory of India, also show that it was not held in that decision that judicial or quasi judicial authorities could not be under the control of the Government of India. On the other hand, it is contended on behalf of the respondents that judicial or quasi judicial authorities were not under the control of the Government of India, for if they were a writ would have been issued in that case in the same way as in the case of an executive or administrative authority, i.e. a writ could issue to the Government of India "directing them to give effect to the decision of this Court by the exercise of their powers of control over the authority outside the territory of India". We have carefully considered the observations in the majority decision in this connection and it must be held that that decision is not a direct authority on the question that is now posed before us., for the point was not then specifically raised; and expressly decided, though as we will later point out, the implication of the said decision is against the contention raised by the petitioner. We have therefore to examine the contentions of either party as to the exact scope and effect of the words " 'all local or other authorities within the territory of India or under the control of the Government of India", as if the question is res integra. The first contention on behalf of the petitioner is that the words " 'under the control of the Government 665 of India" in article 12 do not qualify the word "authorities" therein but qualify the word "territory". The petitioner would therefore read the relevant words of article 12 like this : "All local or other authorities within the territory of India or all local or other authorities within the territory under the control of the Government of India". Thus, according to the petitioner, all that is required is that the territory even if it is not the territory of India, should be under the control of the Government of India, and if the territory is under the control of the Government of India all, local or other authorities in such territory would be included in the words "the State". On the other hand, the contention on behalf of the respondents is that the words "under the control of the Government of India" qualify the word "authorities" and not the word "territory" in the relevant part of article 12 and that that part on its true interpretation would read thus : "all local or other authorities within the territory of India or all local or other authorities under the control of the Government of India". Having given our anxious consideration to this matter we are of opinion that the interpretation put on the relevant words on behalf of the respondents is the right one, both gramatically and otherwise. article 12 gives an inclusive definition of the words "the State" and within these words of that Article are included, (i) the Government and Parlia ment of India, (ii) the Government and the legislature of each of the States, and (iii) all local or other authorities. These are the only authorities which are included in the words "the State" in article 12 for the purpose of Part III. Then follow the words which qualify the words "all local or other authorities". These local or other authorities which are included within the words " 'the State" of article 12 are of two kinds, namely, (i) those within the territory of India, and (ii) those under the control of the 666 Government, of India. There are thus two qualifying clauses to "all local or other authorities. " These clauses are : (i)within the territory of India and (ii) under the control of the Government of India. It would in our opinion be gramatically wrong to read the words "under the control of the Government of India" as qualifying the word territory". From the scheme of ' article 12 it is clear that three classes of authorities are meant to be included in the words ',the State", there; and the third class is of two kinds and the qualifying words which follow "all local or other authorities" define the two types of such local or other authorities as already indicated above. Further all local or other authorities within the territory of India include all authorities within the territory of India whether under the control of the Government of India or the Governments of various States and even autonomous authorities which may not be under the control of the Government at all. In contradistinction to this the second qualifying clause refers only to such authorities as are under the control of the Government of India and so the second qualifying clause must govern the word "authorities". ' Therefore, the interpretation put forward on behalf of the respondents seems to us to be correct both gramatically and otherwise. "All local or other authorities" would thus be of two kinds, namely, (i) those within the territory of India, and (ii) those under the control of the Government of India. In the latter case there is no qualification that they should be within the territory of India. It is enough if they are under the control of the Government of India wherever they may be. We are therefore of opinion that no writ could issue to the appellate authority at the time when the order under challenge was passed, unless it could be called "other authority under the control of the Government of India Further,, there can be no doubt that if no writ could issue to the Appellate Authority at the time the order was passed, no writ could issue now after 667 Pondicherry has become part of the territory of India, for that would be giving retrospective operation to the Constitution for this purpose which obviously cannot be done: (see Janardan Reddy vs the State(1)). The next question is whether a judicial or quasijudicial authority outside the territory of India but within the territory under the administration of the Government of India can be said to be under the control of the Government of India. For this purpose we have to find out the meaning of the words "under the control of the Government of India" as used in article 12. It is submitted on behalf of the petitioner that if an authority is appointed by the Government of India, is paid by the Government of India and is liable to disciplinary action by the Government of India, it would be an authority "under the control of the Government of India". It is urged that as the Chief Commissioner, who is the appellate Authority, was appointed by the Government of India, was paid by the Government of India and was under the disciplinary control of the Government of India, he would be an authority under the control of the Government of India and this court would therefore have been entitled to issue a writ against him even when the order was passed and therefore all the more so,, when Pondicherry is now within the territory of India. The contention however that this Court could issue a writ under article 32 against the Appellate Authority even at the time when the order was passed, is clearly negatived by the majority decision in Masthan Sahib 's case (2), for if that could be done, writ would have been issued in that case. The reason why writ was not issued in Masthan Sahib 's case (2), was that the quasi judicial authority was outside the territory of India and this Court held that if the authority were of an executive or administrative nature, a writ could have been issued to the Government of India ""directing them to give effect to the decision of this Court by the exercise of their powers (1) ; (2) [1962] Supp. 1 S.C.R. 981. 668 of control over the authority outside the territory of India". But as the authority in that case 'just like the authority in the present case was a quasi judicial authority resort to such a procedure was not possible and if the orders or directions could not be directly enforced against the authority in Pondicherry, the order would be ineffective. This clearly implies that the quasi judicial authority was not under the control of the Government of India like an executive or administrative authority and therefore it was not possible for this Court to issue a direction to the Government of India to direct a quasi judicial authority to give effect to the decision of this Court "by the exercise of their powers of control over the authority outside the territory of India". It follows from these observations in the majority decision in that case that the control envisaged by the words "under the control of the Government of India" in article 12 is not the control which arises out of mere appointment, payment and the right to take disciplinary action; the control envisaged under article 12 is a control of the functions of the authorities concerned, and the right of the Government of India by virtue of that control to give directions to the authority to function in a particular manner with respect to such functions. Now if the authorities were administrative or executive the control of the Government of India would not only be by virtue of appointment, payment and disciplinary action, but it would also extend to directing the authority to carry out its functions in a particular manner and a purely executive or administrative authority can always be directed by the Government of India under which it is functioning to act in a particular manner with respect to its functions. This, however,cannot be said of a quasi judicial or judicial authority even though the Government of India may have appointed the authority and may be paying it and may have the right to take disciplinary action against it in certain eventualities. It was not open 669 to the Government of India to control the functions of a quasi judicial or judicial authority and direct it to decide a particular matter before it in a particular way. It seems to us therefore that the control envisaged under article 12 is control of the functions of the authorities and it is only when the Government of India can control the function of an authority that it can be said that the authority is under the control of the Government of India. Such control is possible in the case of a purely executive or administrative authority; it is impossible in the case of a quasi judicial or judicial authority, for in the very nature of things, where rule of ' law prevails, it is not open to the Government, be it the Government of India or the Government of a State, to direct a quasi judicial or judicial authority to decide a particular ' matter before it in a particular manner. Therefore, this being the nature of the control which the Government of India must exercise in order that an authority functioning outside the territory of India may be said to be an authority under the control of the Government of India within the meaning of article 12, a quasi judicial or judicial authority cannot be said to be an authority under the control of the Government of India within this meaning. We are therefore of opinion that the Appellate authority being quasi judicial could not be directed by the Government of India to decide a particular matter before it in a particular manner and therefore it cannot be said that it is an authority under the control of the Government of India. As we have already indicated, this follows from the reasoning of the majority in Masthan Sahib 's Case (1), though it was not decided specifically as such in that case. We are therefore of opinion that judicial or quasi .judicial authorities functioning in territories administered by the Government of India but outside the territory of India cannot be said to be authorities under the control of the Government of India within the meaning of article 12, and therefore article 12 would not apply to 670 such authorities functioning outside the territory of India. Consequently it would not be open to this Court to issue a writ under article 32 read with article 12 against a quasi .judicial authority outside the territory of India even though that authority might have been appointed by the Government of India, might be paid by the Government of India or the Government of India might have the power of disciplinary action against it. The Appellate Authority being a quasijudicial authority would thus not be under the control of the Government of India within the meaning of article 12. Therefore it would not have been open to this Court to issue a writ against the order under challenge when it was passed. In consequence it is not open to this Court now that Pondicherry has become part of India to issue a writ to the Appellate Authority with respect to an order passed by it before Pondicherry became part of India, as the Constitution for this purpose is not retrospective. The matter can be looked at in another way. article 15 prohibits the State from discriminating against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. Therefore it is only when the State as defined in article 12 (for there is nothing in the context of article 15 to require otherwise) discriminates, that a citizen can complain of the breach of article 15 and ask for relief from this Court under article 32. We have however held that the Chief Commissioner being a quasi judicial authority was not under the control of the Government of India within the meaning of article 12. Therefore, he could not be the State within that Article. If so, it follows that the discrimination (assuming there was any) was by an authority which was not the State. The protection of article 1.5 is against discrimination by "the State." The petitioner therefore would not be entitled to any protection under article 15 against the Chief Commissioner at the time the impugned order 671 was made. That is another reason why the present petition must fail. We therefore dismiss the appeal and pass no order as to costs in respect thereof. We dismiss the writ petition with costs. Appeal dismissed. Writ petition dismissed.

IN-Abs

The petitioner, a resident of Pondicherry, was an applicant for a stage carriage permit,. before the State Transport authority pondicherry, alongwith 14 other persons. The Permit was granted to one Perumal Padayatchi taking into account the fact that he was a native of Pondicherry along with other facts. The petitioner, whose application for the permit was rejected, went in appeal to the Appellate Authority who dismissed the appeal . The petitioner filed a writ petition under article 32 in this Court and contended that preference on the ground of place of birth is violative of article 15 of the Constitution. On the dates of the orders sought to be impugned, Pondicherry was not yet part of the territory of India, but when the petition was heard it had become part of the territory of India. It was contended on behalf of the respondent that in view of the observations in the decision in N. Masthan Sahib vs Chief Commissioner, [1962] Supp. 1 section C. R. 981, the writ petition was not maintainable. Held, that in article 12 the words "under the control of the Government of India" qualify the word "authorities" and not the word "territory" and article 12 gives an iaclusive definition of the word "State". Held, further, that if no writ could be issued at the time . when the order was passed for the reason that Pondicherry was not part of India at that time, no such writ could be issued in respect of past acts after Pondicherry had become part of India 657 as that would be giving retrospective operation to the Constitution. Janardan Reddy vs The State, ; referred to. Held, also, that judicial or quasi judicial authorities out side the territory of India but under the administration of the Government of India cannot be said to be 'under the control of the Government of India ' as the expression "control" connotes power to issue directions regarding how a thing may be done by a superior authority to an inferior authority, and in the case of a quasi judicial authority no such directions or orders could be issued. It is only in the case of executive action that a superior authority may direct that a particular thing may be done in a particular way by the subordinate authority. In the very nature of things where rule of law prevails it is not open to a Government, be it the Government of India or the Government of a State, to direct a quasi judicial or judicial authority to decide Any particular matters before it in a particular manner. N. Masthan Sahib vs Chief Commissioner, [1962] Supp. 1 section C. R. 981, referred to. Held, also, that the Chief Commissioner who is the Appellate Authority in the case, fell outside the definition of 'State ', he being a quasi judicial authority not under the control of the Government of India and, therefore, article 15 of the Constitution did not apply to him and no protection under article 15 was available against the Chief Commissioner at the time the impugned order was made.

Appeal No. 372 of 1960. Appeal from the judgment and decree dated April 6, 1955, of the former High Court of Travancore Cochin in Appeal Suit No. 721 of 1951. Manual T. Paikedy, Mahalinga Iyer and Ganpat Rai, for the appellant. V. A. Syed Muhummad, for the respondents 1963. January 15. , J. This is an appeal by certificate from the judgment of the Travancore Cochin High Court which allowed the appeal preferred by the respondents from the decree of the District Court 498 of Parur dismissing their suit for declaration of title to and recovery of possession of certain properties and for other consequential reliefs. The relevant facts are as follows The 23 items of property comprised in the schedule to the plaint belonged originally to two persons Ramalinga Iyer ("Iyer" as described by the High Court) and Raman Velayudhan. They sold them on (6 6 1080 (Malayalam Era which roughly corresponds to the year 1905) to Ittivavira the deceased father of the appellant defendant No. 1. Part of the consideration for the sale was paid by Ittiyavira in cash and for the balance, he executed two hypothecation bonds in favour his vendors on the same date. One of the bonds was executed in favour of Raman Velayudhan and the amount secured thereunder was Rs. 308 8 0. In respect of this amount, items of property Nos. 3, 5, 14 and 18 were hypothecated with Raman Velayudhan by Ittiyavira. The other bond was in favour of Ramalinga Iyer and under this bond. Ittiyavira hypothecated with him items Nos. 1, 2, 4, 6 13, 151 7, and 19 23 and also the remaining items, subject to the hypothecation bond in favour of Raman Velavudhan, for securing an amount of Rs.2,191 80 On 3 1.0 1082, Ramalinga Iyer assigned his hypothecation bond in favour of one Sankara Rama Iyer ("Iyen" as described by the High Court). The parties are in dispute concerning this transaction. According to one of them, the deed of assignment exhibit V was a sham document and was not intended to take effect while according to the other, it was a genuine document. It would appear that Ramalinga Iyer had executed a promissory note in favour of one Anantha Iyer ("Iyen" as described by the High Court). After the death of Ramalinga Iyer, Anantha Iyer instituted a suit against his son Sankara Subha Iyer ("lyen" as 499 described by the High Court) for recovery of the amount thereunder and obtained a decree exhibit VI on 13 11 1088. Treating the deed of assignment executed by Ramalinga Iyer in favour of Sankara Rama Iyer as a sham document, Anantha Iyer attached the mortgagee rights of Ramalinga Iyer in the hypothecation bond which had been executed in his favour by Ittiyavira. The rights under this bond were sold in execution and were purchased by Anantha Iyer at court auction. In a subsequent partition in Anantha Iyer 's family, the rights under the hypothecation bond purchased in execution by him were allotted to his share and that of his brother Manicka Iyer ("Iyen" as described by the High Court). Thereafter, these two persons instituted a suit against Ittiyavira being O. section No. 59 of 1093 in the District Court at Parur and obtained a decree for realisation of the amount against Ittiyavira. The decree holders subsequently transferred their decree to one Venkiteswara Iyer ("Iyen" as described by the High Court) which the latter executed and at the court auction held in execution of that decree, he himself purchased the hypothecated properties which are the properties in the suit on 27 4 1099. Exhibit C is the sale certificate which was granted to him by the court. Venkiteswara Iyer eventually obtained possession of the properties on 12 7 1099. It would appear that Raman Velayudhan also assigned the hypothecation bond which was executed in his favour by Ittiyavira in favour of some person who eventually sued on the bond and obtained decree in O. section No. 462 of 1094 in the court of the Munsiff, Moovattupuzha. In execution of that decree, items Nos. 3, 5, 14 and 18 were purchased by one Mathai Ouseph the brother of the second defendant in the suit on 10 11 1096. In pursuance of this decree, Mathai Ouseph obtained delivery of possession of 4 items of property (items 3, 5, 14 and 18) on 19 6 1098 500 and thereafter sold them to defendant No. 2 (wife of appellant) on 5 12 1104. Even before the institution of O. section 59 of 1093 by Anantha Iyer and his brother, Ittiyavira had executed a sale deed in favour of his son the appellant before us whereunder, he conveyed to him all the properties in the suit. The date on which the sale deed was executed was 8 10 1092. It may however, be mentioned that the appellant was not made a party to O. section No. 59 of 1093 filed by Anantha Iyer and his brother and the contention raised by the respondents is that the sale in favour of the appellant is not a genuine transaction and therefore he was not a necessary party to the suit. Ittiyavira died in the year 1107 and on 2 2 1108, Venkiteswara Iyer sold all the suitproperties to the plaintiffs respondents. Thereafter, the respondents instituted proceecdings under section 145 of the Code of Criminal Procedure in the court of the Magistrate, First Class, Perumbavoor claiming that they were in possession of the suit properties, that the appellant was disputing their possession and that there was a likelihood of a breach of peace because of the attempt of the appellant to "obstruct" their possession. In these proceedings, the properties were attached and placed in the possession of the Receiver appointed by the court. Eventually, the court held that the properties were in the possession of the appellant and ordered that his possession be maintained until otherwise ordered by a competent Civil Court. The order of the Magistrate was affirmed by the Travancore High Court and thereafter, the Receiver handed over the possession of the properties to the appellant. Consequent upon this order the respondents instituted a suit out of which this appeal arises. Their contention in the suit is that the alleged sale by Ittiyavira in favour of the appellant is a sham transaction, that therefore he did not obtain any 501 rights, thereunder and that consequently it was not necessary to implied him in O. section No. 59 of 1093. They also alleged that Mathai Ouseoh did not obtain any rights under his auction purchase because the sale and delivery of possession in execution of the decree in O. section No. 462 of 1094 were benami for Ittiyavira. For this reason, it Was contended that defendant No. 2 acquired no rights to items 3, 5, 14 and 18 in the plaint. The appellant disputed the validity of the decree and of the execution proceedings in O. section No. 497 of 1088 and contended that the decree was obtained and the execution proceedings taken out, fraudulently against Ramalinga Iyer 's heirs inasmuch as Ramalinga Iyer had assigned the hypothecation bond in favour of Sankara Rama Iyer on 3 10 1082. The plea of the appellant thus was that Anantha Iyer did not obtain any rights to the hypothecation bond executed by Ittiyavira in favour of Ramalinga Iyer, and consequently, Venkiteswara Iyer obtained no rights under his purchase in execution of the decree in O. section No. 59 of 1093. The entire proceedings were characterised as fraudulent and not binding on Ittiyavira and the suit properties. The allegation that the alleged sale in favour of the appellant was a sham transaction was denied by them as also the other allegations concerning the purchase of items 3, 5, 14 and 18 by Mathai Ouseph. The trial court dismissed the suit. The High Court, however, reversed the decree of the trial court except with respect to items 3, 5, 4 and 18 in the plaint. No cross appeal or cross objections having been filed by the respondents, the appeal before us is confined to the remaining items provided in the plaint schedule. The first point raised by Mr. Paikedy for the appellant is that the decree in O. section No. 59 of 1093 obtained by Anantha Iyer and his brother in the suit 102 on the hypothecation bond executed by Ittiyavira in favour of Ramalinga Iyer was a nullity because the suit was barred by time. Even assuming that the suit was barred by time, it is difficult to appreciate the contention of learned counsel that the decree can be treated as a nullity and ignored in subsequent litigation. If the suit was barred by time and yet, the court decreed it, the court would be committing an illegality and therefore the aggrieved party would be entitled to have the decree set aside by preferring an appeal against it. But it is well settled that a court having jurisdiction over the subject matter of the suit and over the parties thereto, though bound to decide right may decide wrong; and that even though it decided wrong it would not be doing something which it had no jurisdiction to do. It had the jurisdiction over the subject matter and it had the jurisdiction over the party and, therefore, merely because it made an error in deciding a vital issue in the suit, it cannot be said that it has acted beyond its jurisdiction. As has often been said, courts have jurisdiction to decide right or to decide wrong and even though they decide wrong, the decrees rendered by them cannot be treated as nullifies. Learned counsel, however, referred us to the decision of the Privy Council in Maqbul Ahmed vs Onkar Pratap Narain (1), and contended that since the court is bound under the provisions of section 3 of the Limitation Act to ascertain for itself whether the suit before it was within time, it would act without jurisdiction if it fails to do so. Act that the decision relied upon says that section 3 of the Limitation Act is peremptory and that it is the duty of the court to take notice of this provision and give effect to it even though the point of limitation is not referred to in the pleadings. The privy council has not said that where the court fails to perform its duty, it acts without jurisdiction. If it fails to do its duty, it merely makes an error of law and an error of law can be corrected only in the manner laid down in the Civil Procedure Code. If (1)A.I.R. 503 the party aggrieved does not take appropriate steps to have that error corrected, the erroneous decree will hold good and will not be open to challenge on the basis of being a nullity. The next point raised by learned counsel is that the present suit was barred because it was not instituted within three years of the decision of the Magistrate, First Class, Perumbavoor, holding that the appellant was in possession of the suit properties. It is no doubt true that the order in question was passed on 28 12 1111 while the suit was instituted in the District Court, Parur on 4 3 1118 and even if limitation is computed with reference to the (late of the order of the High Court dismissing the revision petition the suit will be said to have been instituted more than three years thereafter. The fact, however, is that the plaint was originally instituted by the responded in the court of the Munsif. Movattupuzha and numbered as original suit No. 1296 of 1114. The appellant contended that the valuation of the suit property made by the respondents was low and therefore the court appointed a Commissioner for ascertaining their true value. The Commissioner reported that the value of the suit properties was Rs. 4,602. The court thereupon passed an order on 21 2 1118 returning the plaint for presentation to the proper court inasmuch as the sum total of the value of the reliefs claimed in the plaint was beyond its pecuniary limits. Shortly thereafter, the plaint was presented by the respondents in the District Court at Parur. If the respondents had filed the suit in the Court of the Munsiff within three years of the date of the final order passed in proceedings under section 145 of the Code of Criminal Procedure but the plaint was returned for presentation to the proper court, they would be entitled under section 14 of the Limitation Act to the deduction of the entire period during which they were prosecuting their suit with due diligence and in good faith in the court of the Munsiff. Had 504 the suit been barred by time when it was instituted in the court of the Munsiff a plea to that effect could have been taken by the appellant; The defendants do not appear to have done so. It, therefore, follows that the suit must have been within time, when it was instituted in the court of the Munsiff. After the plaint was represented in the District Court at Parur, the appellant filed a written statement. In para 12 of the plaint the respondents have stated thus : "The cause of action for this suit has arisen within the jurisdiction of this court from 15th Kanni 1113, the date of the final order in the summary. " The only answer to this plea of the respondents which the appellant has given in the written statement is to be found in para 13 of the written statement which reads thus "The plaintiffs have no manner of right what soever, as alleged in para 10 of the plaint. Even if the plaintiffs had any rights, they have become barred by limitation; and they need not be considered at this juncture. The plaintiffs have no right to contend like this in the present suit, alter the lapse of a long period since the 2nd defendant 's brother took possession of the properties in execution proceedings. The plaintiffs are barred from contending so. " just below the plaint, the respondents have also stated thus: "This suit is first filed in Moovattupuzha Munsiff 's Court as O. section No. 1296/1114. The defendants contended that the plaint properties are of great value and so a Commissioner was appointed during the trial of the suit to ascertain the value of the properties. The value was 505 ascertained to be Rs. 4,602/ chs. 14 and so an order was passed from the Moovattupuzha Munsiff 's Court on 21 2 1118 stating that the plaint should be returned and filed in the proper court having jurisdiction to try the case, since the same cannot be tried in the Munsiff 's Court. According to that order, the plaint was received back on 30 2 1118. The correct valuation is shown and the plaint is filed in this court together with the court fee memos returned. " There is no reference to these averments in the written statement of the appellant. It would thus be clear that the appellant has not raised a sufficiently clear plea of limitation by stating relevant facts and making appropriate averments. It is apparently because of this that the trial court, though it did raise a formal issue of limitation, gave no finding thereon. Nothing would have been simpler for the trial court than to dismiss the suit on the ground of limitation if the plea was seriously raised before it. Had the point been pressed it would not have been required to discuss in detail the various questions of fact pertaining to the merits of the case before it could dismiss the suit. In the plaint, the respondents claimed that the period of limitation for the suit commenced on 15 2 1113 when the High Court dismissed the revision petition preferred by the respondents. The appellant has not stated that under article 47 of the Limitation Act, the period of limitation is to be computed not from the date of the revisional order but. from the date of the original order. Had he done so, we have no doubt that the respondents would at least have placed on record by amending the plaint the date on which the plaint was instituted in the Court of the Munsiff. Thus, had the plaint been instituted in the court of the Munsiff say two months before the expiry of the limitation, the suit would have been within time 506 on 4 3 1118 when the plaint was re presented to the District Court, computing the period of limitation even from the date of the original order. Moreover, the appellants could well have raised the question of limitation in the High Court in support of the decree which had been passed in their favour by the trial court. Had they done so, the High Court would have looked into the records before it for satisfying itself whether the suit was within time or not. The point now raised before us is not one purely of law but a mixed question of fact and law. No specific ground has even been taken in the petition made by the appellant before the High Court for grant of a certificate on the ground that the suit was barred by time. In the circumstances, we decline leave to the appellant to raise the point of limitation before us. The next contention of the learned counsel is that the suit is governed by article 142 of the Limitation Act and as the respondents have not established that they were in possession within 12 years thereof, their suit is barred by time. This plea of the appellant rests upon another contention which is that the delivery of possession to the auction purchaser in O. section No. 59 of 1093 was a sham and fraudulent transaction. The appellant claimed that he was in possession of these properties at the time of delivery of possession and that he actually obstructed the delivery of possession to the auction purchaser. According to him, the Gamin who came to effect delivery of possession did not remove the obstruction and therefore what is recorded in exhibit D, the report pertaining to the delivery of possession, establishes at best the delivery of merely symbolical possession Exhibit D shows on its face that actual possession of the properties was delivered by the Amin to the auction purchaser in pursuance of the execution sale. A presumption as to regularity attaches to the records of the court and such presumption cannot be 507 lightly brushed aside. In addition to the presumption, however, there is the evidence of P. W. 2 Vasu Vasu Elayath who was one of the persons who had attested the report exhibit D. He swears that the Amin came to the property and effected delivery of possession to the auction purchaser. As the, High Court has pointed out, he is a respectable person residing in the neighborhood and that since nothing has been brought out in his cross examination to discredit him, he deserves to be believed. Then there is the evidence of P. W. 3, Meeralava Osakkal Rawther, who was also present at the time of delivery of possession. Exhibit D states that the charges for beating of a drum at the time of delivery or possession were paid to him (P. W. 3) in token whereof lie had put his signature on the exhibit. This witness also swears that actual delivery of possession to the auctionpurchaser was effected as stated in exhibit D. His evidence has also been accepted by the High Court. We see no reason to take a 'different view of the evidence. Learned counsel, however, refers us to Ex, J which is a petition dated 16 7 1009 filed by the appellant in the District Court, Parur in O. section No. 59 of 1093 and says that this was filed only four days after the date of delivery of possession. His contention is that this document would show that the appellant continued to be in possession of the properties. What is stated in that petition however is this : "For the reasons stated in the accompanying affidavit it is prayed that the Court may be pleased, to declare my possession and rights etc. over the properties mentioned in the decree in the above suit and to hold that the said properties are not liable to be sold for the said decree, and to allow this petition with costs. " It would thus be clear that he has only claimed his right to the possession of the properties and not that 508 he had obstructed the delivery of possession of the properties by the Amin to the auction purchaser. No doubt, the District Judge has recorded an order thereon to the effect that since the appellant does not say that he was dispossessed his application is not tenable. It seems to us that in the absence of any averments of the kind we have already indicated, the appellant cannot derive any benefit from his application. It was contended in the High Court and it is contended also before us that the appellant had sent an obstruction petition to the Amin, but he has neither produced a certified copy of that petition nor examined the Amin in proof of what he has said. In the. circumstances, agreeing with the High Court, we hold that there can be no doubt that actual delivery of possession of the suit properties was effected by the Amin to the auction purchaser on 12 7 1099. No doubt, in the proceedings under section 145 of the Criminal Procedure Code, there is a finding to the effect that the appellant was in possession. That, however, means only this, that he was in possession at the date of the preliminary order made in those proceedings. In view of our finding that actual, delivery of possession was effected to the auction purchascr on 12 7 1099, it must be said that the appellants possession on the date of the preliminary order could only have originated in a trespass subsequent to the delivery of possession on 12 7 1099 and probably during the disputes by reason of which the respondents were compelled to take proceedings under section 145 of the Criminal Procedure Code. The present suit cannot therefore be regarded as one by auction purchasers for recovery of property on the strength of an execution sale in their favour but only one for eviction of a person who obtained wrongful possession of property by trespass after delivery of possession had been effected through court. As we have already pointed out, 509 after the application was made by the respondents under section 145 of the Code of Criminal Procedure, the Magistrate before whom it was made ordered attachment of property and placed it in the possession of the Receiver who continued to be in possession till the final decision of those proceedings. The possession of the Receiver during this period would necessarily ensure for the benefit of the successful party. if, therefore. this period is taken into account the respondents ' suit would be well within time. The next point urged by learned counsel is that Anantha Iyer and his brother got no rights by reason of the attachment and sale of the hypothecation bond executed by Ittiyavira in favour of Ramalinga Iyer because long before their purchase, Ramalinga Iyer had assigned that bond to Sankara Rama Iyer. The contention of the respondent is that exhibit V under which the alleged assignment was made is a sham document executed by Ramalinga Iyer in order to screen the hypothecation bond from his creditors and to preserve the amount thereunder for his ownbenefit. It is clear from the evidence including that of the appellant himself that Ramalinga Iyer was deeply in debts at the time of the execution of exhibit V. After the execution of. exhibit V, Ramalinga Iyer who produced that document for registration before the Sub Registrar himself obtained the document back from him. There is no evidence to show that thereafter he handed it over to Sankara Rama Iyer or that the latter had accepted the transaction. The major part of the consideration recited in exhibit V consisted of amounts alleged to be due from Ramalinga Iyer to his Creditors which the assignee was supposed to discharge. The balance of the consideration was not paid at the time of the execution of the said document but was said to have been adjusted against the amounts due from Ramalinga Iyer to the assignee Sankara Rama Iyer. There is no evidence to show that any of the debts recited in 510 the document were actually due from Ramalinga Iyer or that any money had been received by him from Sankara Rama Iyer. The appellant does not even say that he had made enquiries concerning the consideration of this document. It is further to be borne in mind that though the document was executed in the year 1082, right uphill now, neither Sankara Rama Iyer nor any person claiming under him has made any attempt to realise the amounts due under the hypothecation bond. The High Court has pointed out thus : "If the assignment was a genuine transaction and was intended to take effect the assignee would not have foregone the amount under the hypothecation bond, especially when he had to get such a large amount from Ramalinga Iyer and also paid a further consideration as mentioned in exhibit V. That one circumstance, that the assignee has not made any attempt to realise the amount under the hypothecation bond during the 32 years that had elapsed after the assignment and before the institution of the present suit amounts almost to proof positive of the fact that the assignment was not a genuine transaction and was only a sham document executed for the purpose of screening the amount under the hypothecation bond for the benefit of Ramalinga Iyer himself. " We agree with the observations of the High Court and would add that this circumstance as well as the omission of the appellant to examine any person directly connected with the execution proceedings would justify an inference that the transaction evidenced by exhibit V is not a genuine one and that the document itself is sham and bogus. Upon this view, we hold that the sale in execution of the decree obtained by Anantha Iyer conveyed to the auctionpurchaser all the rights of the hypothecation bond 511 executed by Ittiyavira in favour of Ramalinga Iver. The next and the last point urged by learned counsel is that the appellant is not bound by the decree in O. section No. 59 of 1093, because he was Dot made a party thereto. If in fact the assignment of the properties by Ittiyavira in favour of the appellant was a genuine one, the appellant 's contention would have to be upheld. The document on which the appellant relies is exhibit XXIX. According to the respondents, this document is sham and bogus and was executed by Ittiyavira for the purpose of screening the property for his own benefit. The trial court held that the document was a genuine one but the High Court has reversed that finding. At the outset, we have to bear in mind the fact that the alleged sale was by a father in favour of his son and that the son at the date of that transaction was not shown to have had any independent means of his own from which to provide for the consideration for the sale. According to the document, the consideration wasRs. 3,000/ which consisted of Rs. 1,500/ said to have been paid by the appellant to his father from time to time before the transaction, Rs. 1,000/either paid or agreed to be paid by him to his mother in discharge of a debt by his father to her, and Rs. 500/ which had already been paid to his you nger brother in discharge of a debt which the father owed to him. We agree with the High Court that the recitals excite suspicion. There is no proof of these payments except the interested testimony of the appellant himself. In the proceeding& under section 145 of the Criminal Procedure Code, the appellant had stated that he had obtained the necessary funds for obtaining exhibit XXIX from his mother; but in view of a recital in that document that he had to pay Rs 1000/ to his mother, it would appear that he has prevaricated. Then again, the younger brother who is said to have loaned Rs. 500/ to the appellant 's father was only 14 years, of age at the time of 512 execution of that document. It is impossible to believe that a young boy like him could have been in the position to loan Rs. 500/ to his father. It was urged before us by Mr. Paikedy that what the parties really meant was that the appellant was to pay the sums of Rs. 1,000/ and Rs. 500/ respectively to his mother and younger brother so as to discharge his father 's liability to pay them. If there was any substance in this contention, it should have been advanced before the courts below and not raised for the first time before us. Apart from that it would appear that despite the execution of the document, Ittiyavira continued to be the owner of the properties comprised in it. No doubt, the appellant claims to have been in actual possession of the properties and possibly he was, but, as has been pointed out by the High Court, his possession was no more than that of an agent of Ittiyavira. We, therefore, agree with the High Court that exhibit XXIX was a sham and bogus document and that the transaction evidenced by it is not genuine. Having thus failed on all the contentions on merits, learned counsel has sought to urge a new point before, us. The point is that the appeal before the High Court should have been heard not by a Division Bench of merely two judges, but by a Bench of three judges, as provided in section II (1) of the Travancore High Court Act. 1099 (IV of 1099). Learned counsel admits that the appeal was heard not by the Travancore High Court but by the High Court of Travancore Cochin which came into being after the merger of the two States of Travancore and Cochin. He 'admits that the Travancore High Court Act, 1099 was repealed by Ordinance II of 1124 which was reenacted by Act. V of 1125; but he says that section 25 of that Act provided that a Full Bench will hear and decide all appeals from the decrees of the District Courts in which the amount or value of the subject matter is in excess of 513 Rs. 5,000/ . This provision was also repealed before the appeal in question was even preferred. According to him, however, the appellants were entitled to prefer an appeal before a Tribunal which existed when the suit itself was instituted. The rights of parties to a suit in the matter of preferring an appeal are governed by the law as it obtained when the suit was instituted and, therefore, according to him, as under that law in a suit of that kind an appeal lay before a Bench of three judges, it could be heard only by such a Bench and not one consisting of a lesser number of judges. There are two reasons why this argument cannot be accepted. In the first place, the High Court of Travancore was itself abolished as a result of the merger and a new High Court came into being the High Court of Travancore Cochin. The rights of parties to prefer appeals to that High Court were governed initially by 'Ordinance 11 of 1124 and later by Act V of 1125. These provisions came into being subsequent to, the institution of the suit. Therefore, the rights of a person aggrieved by the decision of a suit instituted prior to the coming into force of Act V of 1125 were only those which were conferred by that Act. A litigant has no right to contend that a Tribunal before whom he should have taken an appeal when he instituted the suit, should not be abolished. The Legislature has full power to enact a 'jaw of that kind and it is not contended before us that the repeal of the Travancore High Court Act was un constitutional. It would, therefore, follow that whatever rights may have vested in the party in the matter of filing an appeal were abrogated by competent legislature. New rights were conferred in place of those which were taken away and it is only the new rights which could be availed of. After the new rights were conferred even they were modified in one respect and that was with regard to the hearing of certain kinds of appeals by a Full Bench. The rights 514 to have the appeal heard by a Full Bench by virtue of the provisions of Act V of 1125 had never vested in any of the parties to the present litigation. Therefore, their abrogation by a later law cannot entitle them to make a complaint. There is yet another reason why the argument of the learned counsel cannot be accepted. That reason is that an appeal lay to a High Court and whether it is to be heard by one, two or a larger number of judges is merely a matter of procedure. No party has a vested right to have his appeal heard by a specified number of judges. An appeal lay to the High Court and the appeal in question was in fact heard, and disposed by the High Court and, therefore, no right of the party has been infringed merely because it was heard by two judges and not by three judges. No doubt in certain classes of cases, as for instance, cases which involve an interpretation as to any provision of the Constitution the Constitution provides that the Bench of the Supreme Court hearing the matter must be imposed of judges who will not be less than five in number. But it does nOt follow from this that the legal requirements in this regard cannot be altered by a competent body. We therefore overrule the contention of the learned counsel and hold that the appeal was rightly heard and decided by a Bench of two judges. In the result, we affirm the decree of the High Court and dismiss the appeal with costs. Appeal dismissed.

IN-Abs

One Ittiyavira, the deceased father of the appellant purchased properties and paid part of the consideration for the transaction in cash and for the balance executed two hypothecation bonds in favour of his vendors, Ramalinga Iyer and Raman Vela Yudhan. Ramalinga Iyer assigned his hypothe cation bond in favour of one Sankara Rama Iyer. He had executed a promissory note in favour of one Anantha Iyer who, after his death, instituted a suit against his son Sankara Subha Iyer for recovery of the amount thereunder and obtained a decree. Treating the deed of assignment executed by Ramalinga 496 Iyer in favour of Sankara Rama Iyer as a sham document, Anantha Iyer attached the mortgagee rights of Ramalinga Iyer in the hypothecation bond and eventually purchased them. In a partition in Anantha Iyer 's family, the rights under the hypothecation bond purchased by him were allotted to his share and to that of his brother. These two persons instituted a suit against Ittiyavira being O. section No. 59 of 1093 and obtained a decree for realisation of the amount against him and transferred their decree to one Venkiteswara Iyer who. at the court auction held in execution of that decree, purchased the hypothecated properties which are properties in the suit and eventually obtained possession of the properties on 12. 7: 1099. Before the institution of O. section 59 of 1093 by Anantha Iyer and his brother, Ittiyavira had executed a sale deed of these properties on 8. 10. 1093 in favour of his son, the appellant. The appellant was not. male a party to O. section No. 59 of 1093. Ituyavira died in the 1107 and on 2. 2. 1108, Venkiteswara Iyer sold all the suit properties to the plaintiffsrespondents. Thereafter the respondents instituted proceedings under section 145 of the Code of Criminal Procedure in the Court of Magistrate claiming their possession over the suit properties which was disputed by the appellant. The properties were attached and placed in the possession of the Receiver appointed by the court. Eventually, the court held that the appellant 's possession over the properties be maintained until otherwise ordered by the competent civil court. The High Court of Travancore affirmed the order of the Magistrate and the appellant was handed over the possession of the properties by the Receiver. Consequently, the respondents instituted a suit out of which this appeal arises. The trial court dismissed the suit and that decision was reversed by the High Court. It was contended before this Court that the decree obtained by Anantha Iyer in O. section 59/1093 was a nullity because the suit was barred by time. It was further urged that the appeal before tile High Court should have been heard not by a Division Bench of merely two judge but by a Bench of three judges as provided in section II (1) of the Travancore High Court Act, 1099. Held, that if the suit was barred by time and yet, the court decreed it, the court would be committing an illegality and the aggrieved party would be entitled to have the decree set aside by preferring an appeal against it. As has often been said, courts have Jurisdiction to decide right or to decide wrong and even though they decide wrong the decree rendered by them cannot be treated as nullities, 497 Maqbul Ahmad vs Onkar Pratap Narain Singh, A. 1. R. , held inapplicable. Where the question of limitation was not raised in the High Court, it cannot be allowed to be raised in this Court when the question was one of mixed fact of law. In the instant case the possession of the Receiver during the proceedings under section 145 of the Code of Criminal Procedure would necessarily unure for the benefit of the successful party and if this period is taken into account, the respondent 's suit would be well within time. Held, further that no party has a vested right to have his appeal heard by a specified number of judges and no right of the party has been infringed merely because it was heard by two judges and not by three judges. A litigant has no right to contend that a tribunal before whom he. should have taken an appeal when he instituted the suit, should not be abolished and unless it can be shown that the repeal of the Travancore High Court Act was unconstitutional, whatever right of appeal may have vested in the party stood abrogated by the competent legislature.

Appeal No. 24 of 1962. Appeal by special leave from the award dated November 23, 1960, of. the Central Government Industrial Tribunal, Dhanbad in reference No. 31 of 1960. M. C. Setalvad, Nonicoomar Chakravarty and B. P. Maheshwari, for the appellant. M. K. Ramamurthi, for Dipat Datta Choudhri, for respondents Nos. 1 to 13. January 23. The judgment of the Court was delivered by WANCHOO, J. This is an appeal by special leave against the order of the Central Government Industrial Tribunal, Dhanbad. The brief facts necessary for present purposes are these. A dispute was referred by the Central Government under s, 10 of the Industrial Disputes Act, No. 14 of 1947, (hereinafter referred to as the Act) with reference to the thirteen workmen involved in this appeal in the following terms "Whether the dismissal of the following thirteen workmen of Bhatdee Colliery, swa 711 justified ? If not, to what relief are they entitled and from which date ?" It appears that the thirteen workmen had physically obstructed the surface trammers working in the colliery on different dates, namely October 20, October 27, and November 3,1959 .some of them had also incited the other workmen to join in this act of obstructing the loyal and willing trammers so that they may be prevented from working. This happened during a strike which was begun on October 20, 1959 by the Colliery Mazdoor sangh to which the thirteen workmen in question belonged. In consequence the appellant served charge sheets on the thirteen workmen on November 9, 1959 charging that "they physically obstructed the surface trammers on duty at No. 1 and 2 Inclines from performing their duties and controlling the movement of the tubs by sitting in between tramline track and inciting" on various dates, thus violating regulation 38 (1) (b) of the Coal Mines Regulations. They were asked to explain within 48 hours why disciplinary action should not be taken against them under r. 27 (19) and r. 27 (20) of the Coal Mines Standing Order. The workmen submitted their explanations and an inquiry was held by the Welfare Officer of the appellant. The Welfare Officer found all the thirteen workmen guilty of the charges framed against them and recommended their dismissal. As another reference was pending before this very tribunal in November 1959, the appellant made thirteen applications to the tribunal under section 33 (2) (b) of the Act for approval of the action taken. Though the workmen submitted their replies in those proceedings they did not contest them thereafter, and the tribunal approved of the action taken. Thereafter the present reference was made under S.10 of the Act. The case put forward by the workmen in the present reference was that there was no proper 712 enquiry as the workmen were not given a chance to defend themselves. It was further submitted that the dismissals were nothing but victimisation pure and simple for trade union activities. The tribunal apparently held that the inquiry was proper, though it has not said so in so many words in its award. It may be added that it could hardly do otherwise, for it had already approved of the action taken on applications made under section 33 (2)(b) of the Act. If the inquiry had not been proper,the tribunal would not have approved of the dismissals. But the tribunal held that this was a case of victimisation. It therefore set aside the order of dismissal and ordered the reinstatement of the thirteen workmen within one month of its order becoming operative and ordered that they should be treated as on leave without pay during the period of forced unemployment. It did not grant back wages as the workmen had also contributed to their forced unemployment to some extent. In the present appeal, the appellant contends that there was no evidence to justify the conclusion of the tribunal that the dismissals were an act of unfair labour practice or victimisation. We are of opinion that this contention of the appellant must prevail. The tribunal was. not unaware of the fact that where a domestic inquiry is held properly. the tribunal does not sit in appeal on the findings of the domestic tribunal and it can only interfere with the punishment inflicted as a result of the domestic inquiry where there is want of good faith or basic error or violation of the principles of natural justice, or where the findings are perverse or baseless or the case is one of victimisation or unfair labour practice. We have already indicated that the tribunal did not find that there was any basic error or violation of the principles of natural justice in the holding of the inquiry; nor did it find that the findings of the inquiry 713 officer were perverse or baseless. It could hardly do so in the face of its own approval of the action taken on applications made to it under section 33 (2) (b) of the Act, for if it had found that the inquiry was not proper, it would not have approved of the action taken against the workmen by the appellant when it was approached under section 33 (2) (b). We must therefore proceed on the assumption that the inquiry was held properly and the inquiry officer who held the inquiry was justified on the evidence before him in coming to the conclusion which he did, namely, that the charges had been proved. The tribunal however posed a further question as to victimisation in this way : "But even if assume that these men were guilty of the offence complained of, let me pause and consider if there is victimisation." .It then proceeded to point out that the workmen concerned had put in ten years service or more and their previous record of service was good. They were important office bearers of the union and some of them were also protected workmen. It then referred to previous disputes between the appellant and the union of which these workmen were members and was of the view that the union and its leaders were "eye sore to the appellant. " The tribunal was, however, conscious that merely because certain workmen were protected workmen they were not thereby given complete immunity for anything that they might do even, though it might be misconduct meriting dismissal. But it, pointed out that the misconduct complained in this case entailed fine, suspension or dismissal of the workmen, and the appellant chose dismissal, which was the extreme penalty. It referred to a decision of the Calcutta High Court in National Tobacco Company of India Ltd. vs Fourth Industrial Tribunal (1), where it was held that in a case where the punishment meted out was unconscionable or grossly out of proportion to the nature of the offence that may itself be a ground for holding that the 714 dismissal was an act of victimisation. It seems to have held that the punishment of dismissal in this case was unconscionable or at any rate grossly out of proportion to the nature of the offence and therefore came to the conclusion that this was a case of victimisation. Now there is no doubt that though in a case of proved misconduct, normally the imposition of a penalty may be within the discretion of the management there may be cases where the punishment of dismissal for the misconduct proved may be so unconscionable or so grossly out of proportion to the nature of the offence that the tribunal may be able to draw an inference of victimisation merely from the punishment inflicted. But we are of opinion that the present is not such a case and no inference of victimisation can be made merely from the fact that punishment of dismissal was imposed in this case and not either fine or suspension. It is not in dispute that a strike was going on during those days when the misconduct was committed. It was the case of the appellant that the strike was unsatisfied and illegal La it appears that the Regional Labour Commissioner, Central, Dhanbad, agreed with this view of the appellant. It was during such a strike that the misconduct in question took place and the misconduct was that these ' thirteen workmen physically obstructed other workmen who were willing to work from doing their work by sitting down between the tramlines. This was in our opinion serious misconduct on the part of the ' thirteen workmen and if it is found as it has been found proved punishment of dismissal would be perfectly justified. It cannot therefore be said looking at the nature of the offence that the punishment inflicted in this case was grossly out of, proportion or was unconscionable, and the tribunal was not justified in coming to the conclusion that this was a case of victimisation because the appellant decided to dismiss these workmen and was not prepared to let them off with fine or suspension. 715 There is practically no other evidence in support of the finding of the tribunal. It is true that the relations between the appellant and the union to which these workmen belonged were not happy. It is also proved that there was another union in existence in this concern. Perhaps the fact that there were two unions would in itself explain why the relations of the appellant with one of the unions to which these workmen belonged were not happy. But the fact that the relations between an employer and the union were not happy and the workmen concerned. were office bearers or active workers of the union would by itself be no evidence to prove victimisation, for if that were so, it would mean that the office bearers and active workers of a union with which the employer is not on good terms would have a carte blanche to commit any misconduct and get away with it on the ground that relations between the employer and the union were not happy. We are therefore of opinion that the finding of victimisation in this case is based, merely on conjectures and surmises. We have already considered the main reason given by the tribunal, namely, the nature of the punishment, and have held that that cannot be said to be unconscionable or grossly out of proportion to the nature of the offence. Another reason given by the tribunal in support of the finding of victimisation is also patently wrong. The tribunal says that in reports made to the police certain persons were mentioned as having taken part in the misconduct of October 27, 1959; but in the written statement filed by the appellant two other persons, namely Ratan Gope and Sohan Gope who were not mentioned in the police report, were also mentioned as having taken part in the incident of October 27. The tribunal thereby concluded that Sohan Gope and Ratan Gope were falsely implicated in the incident of October 27. Curiously, however, it went on to say that this might be a mistake 716 but added that it meant dismissal of these people and the finding in this respect was not only wrong but perverse. It does appear 'that by mistake in para. 5 of the appellant 's written statement before the tribunal names of Ratan Gope and Sohan Gope are mentioned as having taken part in the incident of October 27. But the charge sheets which were given to them were only about the incident of October 20. The finding of the domestic inquiry also was with respect to the incident of October 20. So it seems that there was no justification for the tribunal to hold that the finding was perverse, because there was no finding that these two persons had taken part in the incident of October 27. There can be little doubt that there was a mistake in the written statement of the appellant for there was no charge against these two people about the incident of October 27 and no finding about it by the Welfare Officer. The tribunal therefore was patently wrong in using this mistake as evidence of victimisation. We are therefore of opinion that there is no evidence worth the name in the present case to support the tribunal 's finding as to victimisation and consequent want of good faith. In the circumstances the tribunal 's award must be set aside. We therefore allow the appeal. set aside the award of the tribunal and uphold the dismissal of the thirteen workmen concerned. In the circumstances there will be no order as to costs. Appeal allowed.

IN-Abs

The respondents were the employees of the appellant and while a strike was going on in the concern of the appellant they physically obstructed the loyal and willing trammers from working in the colliery and insisted on other workmen to join them in the obstruction. A charge sheet was served on the respondents and they were asked to show cause why disciplinary action should not be taken against them. The respondents submitted their explanation and on an inquiry held by the welfare officer they were found guilty and the welfare officer recommended their dismissal. The appellant filed an application before the Industrial Tribunal under section 33 (2) (b) of the Industrial Disputes Act and the tribunal approved of the dismissal. Thereafter reference was made under section 10 of the Act and the present appeal is by way of special leave against the order of the Industrial Tribunal made in that reference. The Tribunal has held that the enquiry by the management was proper but it further held that the dismissal amounted to victimisation. The main question in the appeal was whether there was victimisation. Hold, where a domestic inquiry is held properly the tribunal cannot sit in appeal on the findings of the domestic tribunal and it can only interfere with the punishment inflicted as a result of the domestic inquiry where there is want of good faith or basic error or the violation of the principles of natural justice or where the findings are perverse or baseless or the case is one of victimisation. 710 Though in a case of proved misconduct normally the imposition of a penalty may be within the discretion of the management there may by cases where the punishment of dismissal for misconduct proved may be unconscionable or so grossly out of proportion to the nature of the offence that the tribunal may be able to draw an inference of victimisation merely from the punishment inflicted. Such was not the case here. National Tobacco Co. of India Ltd. vs Fourth Industrial Tribunal, , referred to.

iminal Appeals Nos. 146 and 147 of 1962. Appeals by special leave from the judgment and order dated February 2, 1962, of the Allahabad High Court in Criminal Appeals Nos. 157 and 158 of 1961 and Criminal Revision No. 384 of 1961. 689 A. section R. Chari, Ravinder Narain, J. B. Daduchanji and 0. C. Mathur, for the appellants. G. C. Mathur and C. P. Lal, for the respondent. January 23. The judgment of the Court was delivered by RAGHUBAR DAYAL, J. Moti Singh and jagdamba Prasad, appellants, together with five other persons, were convicted by the Sessions judge of Unnao of offences under section 148, 302 read with 149 and 307 read with 149 I. P. C. Each of them was sentenced to life imprisonment under section 302 read with section 149 1. On appeal, the High Court acquitted the other five persons of the various offences. The conviction of the 'appellants under section 148 1. P. C., was also set aside, but their conviction for the offences under sections 302 and 307 read with section 149 were altered to conviction for offences under sections 302 and 307 read with section 34 1. On the application of Krishna Kumar, brother of one of the persons who had been murdered, the High Court enhanced the sentence of the appellants for the offence of murder to death. Moti Singh and jagdamba Prasad have preferred these appeals respectively, after obtaining special leave from this Court. It is not necessary to detail the facts of the incident in which several persons lost their lives and for participation in which incident the appellants were convicted, as we are of opinion that the conviction cannot be maintained on the basis of the evidence on record as appreciated by the High Court. All the eye witnesses of the incident deposed in practically identical terms about the progress of the incident in which it was alleged that the members of 690 the accused party fired with guns and pistols both from inside and outside the room on one side of the passage and also from the seori (cattle shed) on the other side of the passage when the victim party passed along the passage. The High Court felt doubtful about the firing of the shots from the cattle shed, and consequently acquitted Sheo Shankar, jagjiwan and Shankar Dayal who were said to be mainly the persons who had fired from that place. The High Court, however, believed the prosecution version of the firing from the room and later from the ' platform. It appears that the, High Court believed this version because the prosecution witnesses stated so and because the statements exhibits Kha 5, Kha 8 and Kha 75 mentioned about the shots being fired from those places. Statement ex. Kha 75 does not say so. It says that firing took place from the front and that these people fired shots with guns. Statements exs. Kha 5 and Kha 8 were made by Ram Shankar and jageshwar, who were examined as Court witnesses 1 and 2 respectively. Ram Shankar and jageshwar have been disbelieved by the Sessions judge and it appears that the High Court did not take any more favourable view of their deposition in Court. It however seems to have relied on their statements exs. Kha 5 and Kha 8 respectively, recorded by a Magistrate at the hospital. In this it was in error. Those statements could have been used only in either corroborating or contradicting the statements of these Witnesses in Court. If those witnesses were not to be believed, their previous statements could not be used as independent evidence in support of the other prosecution evidence. In considering the complicity of individual accused in the firing from the room and later from the chabutra, the High Court said that Raj Kumar, P. W. 1 1 and Chandra Kumar, P. W. 15, were partisan witnesses whose evidence had to be examined 691 with caution, that Shyam Lal, P. W. 12 and Gopi Singh, P. W. 14, were not quite independent witnesses, and that there was nothing particular against Lal Singh, P. W. 17, and Sardar (P. W. 16) who had received gun shot injuries. It further said : "While considering the evidence of the prosecution witnesses we have to bear in mind the rule that the evidence has to be examined with caution". It also considered it necessary to refer to the statements exs. Kha 5 and Kha 8 which, as already stated, could not be used as substantive evidence, and the statement ex. Kha 75 of Gaya Charan, deceased. The High Court fully relied on the alleged dying declaration ex. Kha 75 of Gaya Charan and considered it to be a complete account of the occurrence and the assailants as seen by him. The view of the High Court about this statement of Gaya Charan may be quoted : "The dying declaration exhibit Ka 75 (Kha 75) of Gaya Charan appears to be a complete account of the occurrence and the assailants as seen by him, for he stated : 'Lallan, Chandu, Raj Narain, Sardar, Sri Prakash were going to the bazar. Shots were fired from front, jagdamba, Phunnar, Moti and one man whom I know by face fired gunshots on us '. The statement does not show that Gaya Charan did not see all the assailants who fired gunshots. It is therefore not possible to hold that any accused not mentioned in the dying declaration of Gaya Charan had also fired shots. At the same time we see no reason to hold that the dying declaration of Gaya Charan is not true. jageshwar identified the accused Jagdamba 692 among the assailants. The evidence of the eye witnesses has therefore to be judged in the light of the statements Exs. Kha 5 and Kha 8 of Ram Shankar and jageshwar and the dying declaration exhibit Kha 75 of Gaya Charan. " Now, the evidence relied on by the High Court for the conviction of Jagdamba Prasad consists of the statements of the prosecution witnesses, the statement of jageshwar I, K. Kha 8 and the alleged dying declaration of Gaya Charan exhibit Kha 75. It also took into consideration the fact that he remained absconding till his arrest on September 30, 1960, the incident having taken place on February 9, 1960. The evidence relied on for the conviction of Moti Singh consists of the dying declaration exhibit Kha 75 of Gaya Charan and, presumably, also of the statements of the I prosecution witnesses, as the High Court has not specifically stated so. It has said "We have also no doubt about the participation of the accused Moti in the firing of shots from the east of the galiara. He is named in the dying declaration exhibit Kha. 75, of Gaya Charan. " With regard to the criticism for the accused about the indefiniteness of the description of Moti in the dying declaration of Gaya Charan when there were three persons by the name of Moti in the village, the High Court said : "We have no doubt that he is mentioned in the dying declaration. " How they arrived at that conclusion is not clear from the judgment. The three persons with the name of Moti belonged to different castes. The case. of Moti is not mentioned in the dying declaration 693 of Gaya Charan. It is therefore not possible to state with any confidence that Gaya Charan must have referred to Moti Singh, 'the appellant, by the name Moti. in acquitting Sheo Darshan Singh, the High Court said that though there were strong circumstances against him, he was not mentioned in the dying declaration of Gaya Charan and that therefore his presence among the assailants became doubtful. In acquitting Avadh Behari it again said that his name was not mentioned in the dying declaration of Gaya Charan. Again, in fixing the number of persons who had taken part in the firing from the room and the platform, the High Court relied on Exhibit Kha 75, the alleged dying declaration of Gaya Charan as the deciding factor. It said "The number of assailants mentioned in the dying declaration exhibit Kha. 75 is only four. , It is doubtful if the assailants were more than four in number. No offence under section 148 was therefore committed and section 149 I.P.C. is not applicable. " It is clear from the above that the High Court mainly relied on the alleged dying declaration of Gaya Charan for determining that Moti Singh and jagdamba Prasad, appellants, 'fired from the room and the platform and that if their names had not been mentioned in this statement of Gaya Charan, they too would have got the benefit of doubt just as Sheo Darshan Singh and Avadh Behari have got. There is no other factor for making a distinction between the cases of these two appellants and those two accused as all the prosecution witnesses had named all the accused as assailants of the victim 694 party. It follows that if this alleged dying declaration of Gaya Charan be inadmissible in evidence as urged for. the appellants, the appeals have to be allowed and the conviction of the appellants set aside. The incident took place on February 9, 1960. Gaya Charan 's injuries were examined by Dr. Bhatnagar the same day. He found two gun shot wounds of entry 1/4 x 1/4" up to the depth of abdomen and considered those injuries to be caused by gun shot and to be dangerous to life. Gaya Charan left the hospital. He was either discharged on the injuries healding up or he left the hospital before they healed up. There is nothing on record to show in what circumstances he left the hospital. He died on March 1. 1960. Sub Inspector Puttu Lal, P.W. 24, has deposed that it was known on March 1, 1960 that Gaya Charan had died in Kanpur and that when he reached the Bhairon Ghat he learnt that the dead body of Gaya Charan had been burnt a couple of hours before. There is no evidence on record as to what caused Gaya Charan 's death. In this state of evidence the finding of the Sessions judge that Gaya Charan must have died on account of the injuries received in the incident cannot be held to be a good finding. What he says in this connection is: "Gaya Charan had a gunshot wound of entry on the left hypochondrium region and one gunshot wound of entry on the right lumbar region. Both the injuries were dangerous to life, according to the Doctor. Gaya Charan must have died of these injuries and the mere fact, that no post mortem could be conducted on his dead body before his cremation, does not show that we cannot rely on his dying declaration. " The mere fact that the two gun shot injuries 695 were dangerous to life is not sufficient for holding that Gaya Charan 's death which took place about three weeks after the incident must have been on account of those injuries. In this connection our attention was drawn to the fact that Ram Shankar who was also injured in that incident had received one gun shot wound I ' x 1/4" up to the depth of his abdomen above the right end of upper border of Syihphysis Pubes, and that injury was 'also considered by the Doctor to be dangerous to life, but fortunately Ram Shankar did not succumb to the injury. The High Court did not refer to this question as it appears the admissibility of the alleged dying declaration of Gaya Charan was not raised before it. That however does not mean that ' we cannot look into the finding of fact about Gava Charan having died on account of the injuries received in the incident. It is necessary for proving the charge of murder of Gaya Charan that he had died on account of the injuries received, and any finding to that effect, in the absence, of evidence can be looked into by this Court even though the Courts below have confirmed that finding. We find that there is no evidence to support that finding and hold that Gaya Charan is not proved to have died due to the injuries received in the incident. The effect of this finding is that the alleged dying declaration of Gaya Charan,, exhibit Kha 75, cannot be admissible in evidence. Clause (d) of section 32 of the evidence Act makes a statement of a person who has died relevant only when that statement is made by a person as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person 's death comes into question. When Gaya Charan is not proved to have died as a result of the injuries received in the incident, his statement 696 cannot be said to be the statement as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death. This is obvious and is not disputed for the respondent State. The result then is that the statement of Gaya Charan exhibit Kha 75 is inadmissible in evidence. It was the mainstay of the judgement of the High Court upholding the finding of the Sessions.judge that Moti Singh and jagdamba Prasad, appellants,were among the persons who had fired from the room and the platform. When this evidence is to be ignored as inadmissible, the remaining evidence on the record according to the view of the High Court, was insufficient to establish beyond reasonable doubt that these two persons were among the assailants. The appellants deserve the benefit of that doubt. They would have got it if the High Court had not erroneously relied on the statement exhibit Kha 75. We therefore hold that Moti Singh and jagdamba Prasad have not been proved to have taken art in that incident on February 9, 1960, which part to the deaths of Lallan and Matrumal and the causing of hurt to several other persons. We accordingly allow the appeals, set a de the order of the High Court and acquit Moti Singh and jagdamba Prasad of the offences they were convicted of. We direct that they be released forthwith, if not required to be detained under any other process of law. Appeal allowed.

IN-Abs

Seven persons including the appellants were convicted for murder. Relying upon the dying declaration 'of one G, the High Court acquitted five of the accused but convicted the appellants. G had been injured during the occurrence and had been taken to the hospital where his dying declaration was recorded. He left the hospital and died 20 days later. Before any postmortem examination could be held, his body was cremated. The appellants contended that the dying declaration was inadmissible and that they were entitled to an acquittal. Held, that the dying declaration was inadmissible in evidence. There was no evidence on the record as to what caused the death of G. The mere fact that G had received two gun shot injuries during the occurrence which in the opinion of the doctor were dangerous to life was not sufficient for holding that G must have died on account of these injuries. Under section 32 (1) of the Evidence Act the Statement of a person who has died is relevant only when it relates to the cause of his death or to any of the circumstances of the transaction which resulted in his death. When it was not established that G had died as a result of the injuries received at the incident, his statement did not relate to the cause of his death or to the circumstances of the transaction which resulted in his death and did not fall within section 32 (1).

minal Appeal No. 201 of 1962. Appeal by special leave from the judgment and order dated February 20, 1962, of the Bombay High Court in Criminal Appeal No. 1405 of 1961. C. L. Sareen, for the appellant. H. B. Khanna and R. H. Dhebar, for the respondent. January 23. The judgment of the Court was delivered by SUBBA RAO, J. This appeal by special leave is directed against the judgment of a division Bench of the 'Bombay High Court setting aside the order of acquittal made by the Additional Sessions judge, Kolaba, and convicting the appellant under section 302, read with section 34, of the Indian Penal Code and sentencing him to imprisonment for life. The case of the prosecution may be briefly stated. In the year 1959, two persons by name Ramachandra Budhya and Govind Dhaya were murdered by some people. In all II accused, including one Deoram Maruti Patil, were brought to 680 trial; and out of them 8 accused, including the said Deoram Maruti Patil, were acquitted. During that trial Deoram Maruti Patil 's uncle, by name Vishwanath, actively helped Deoram Maruti Patil in the conduct of his defence. Accused 1 and 2 in the present case are the sons of Govind Dhaya and accused 3 and 4 are the nephews of Ramachandra Budhya. They bore a grudge against Vishwanath for helping Deoram Maruti Patil and bringing about his acquittal. On August 19, 1960, Vishwanath and one Mahadeo Pandu Patil left their village at about 8.30 p.m. in order to go to Pezari en route to Alibag. When they were walking along a bund, accused I to 4 came from behind, armed with long sticks and the stick carried by accused 1 had a blade attached to it. They belaboured the deceased resulting in his death. The four accused had to stand their trial for the murder of Vishwanath before the Court of the Additional Sessions judge, Kolaba. The charge against them was that they, in view of their common grudge against the deceased, combined together and did away with the deceased. The said four persons were charged under section 302, read with section 34, of the Indian Penal Code for committing the murder of the deceased in furtherance of their common intention. All of them were also charged separately for the substantive offence under section 302 of the Indian Penal Code. All the accused pleaded not guilty to the charge. While accused 1, 3 and 4 pleaded alibi, accused 2 raised a plea of private defence. The prosecution examined eye witnesses, who deposed that the four accused overtook the deceased when he was going to village Pezari and felled him down by giving him lathi blows. None of the witnesses spoke to the presence of any other person, named or unnamed, who took part in the assault of the deceased. The learned Additional Sessions judge found that the prosecution witnesses were not speaking 681 the truth and that the version given by accused 2 was the probable one. In the result he acquitted all the accused. The State preferred an appeal to the High Court against the said order of acquittal under section 302, read with section 34, of the Indian Penal Code ; but no appeal was preferred against the order of acquittal under section 302 of the Indian Penal Code. The judgment of the High Court discloses that the learned judges were inclined to believe the evidence of the witnesses, other than Kashinath and Shridar. But they dismissed the appeal against accused 1, 3 and 4 on the ground that the appeal was against an order of acquittal. But in regard to accused 2, they held that he was one of the participants in the assault and there was no basis for his plea of private defence. Having come to that conclusion, the learned judges convicted accused 2 under section 302, read with section 34, of the Indian Penal Code. As regards the persons who participated in the assault along with accused 2, it would be appropriate to quote the words of the High Court itself : "Some of the other accused were undoubtedly concerned with the incident along with accused No. 2. Since it is possible that the story as given by the prosecution witnesses, and parti cularly by Mahadeo, was exaggerated, it is not safe to hold that each one of the other accused was also a participant in the offence. In view of the possibility that one or more of the other accused, i.e., accused Nos. 1, 3 and 4, might not have participated in the offence, we do not propose to interfere with the acquittal of these accused. But we are satisfied that accused No. 2 along with one or more of the other accused committed this offence and that accused No. 2 was, therefore, clearly guilty under section 302 read with section 34 I. P. Code". To put it in other words, they, acquitted accused 1, 3 and 4 on the ground that it was doubtful whether 682 any one of them participated in the commission of the offence and convicted accused 2 on the ground that one or more of them might have participated in the offence. Accused 2 has filed the present appeal against the judgment of the High Court. The argument of teamed counsel for the appellant may be put thus : The learned Additional Sessions judge acquitted the accused under section 302 of the Indian Penal Code and also under section 302, read with section 34, of the said Code. The appeal in the High Court was confined only to the acquittal of the accused under section 302, read with section 34, of the Indian Penal Code. The charge as well as the evidence was only directed against the four named accused as the participants in the common intention to commit the murder of the deceased. The High Court having acquitted accused 1, 3 and 4. inconsistently convicted accused 2 for having committed the murder of the deceased jointly with the three accused who had been acquitted. To put it differently, the argument is that when three of the four named accused, who were charged under section 302, read with section 34, of the Indian Penal Code, were acquitted, the court could not convict only one of the accused on the basis of constructive liability. Learned counsel for the respondent counters this argument by stating that though the charge as well as the evidence was directed against the 4 named accused, a court could come to the conclusion that 3 of the 4 named accused are not identified but more than one had taken part in the commission of the offence and that in the present case on a fair reading of the entire judgment we should hold that the High Court found that though accused 1, 3 and 4 were not identified, 3 unidentified persons must have taken part in the murder. Section 34 of the Indian Penal Code reads : "When a criminal act is done by several per sons, in furtherance of the common intention 683 of all, each of such persons is liable for that act in the same manner as if it were done by him alone. " It is well settled that common intention within the meaning of the section implied a pre arranged plan and the criminal act was done pursuant to the prearranged plan. The said plan may also develop on the spot during the course of the commission of the offence; but the crucial circumstance is that the said plan must precede the act constituting the offence. If that be so, before a court can convict a person under section 302, read with section 34, of the Indian Penal Code, it should come to a definite conclusion that .the said person, had a prior concert with one or more other persons, named or unnamed, for committing the said offence. A few illustrations will bring out the impact of section 34 on different situations. (1) A, B, C and D are charged under section 302, read with s.34, of the Indian Penal Code, for committing the murder of E. The evidence is directed to establish that the said four persons have taken part in the murder. (2) A, B, C and D and unnamed others are charged under the said sections. But evidence is adduced to prove that the said persons, along with others, named or unnamed, participated jointly in the commission of that offence. (3) A, B, C and D are charged under the said sections. But the evidence is directed to prove , hat A, B, C and D, along with 3 others, have jointly committed the offence. As regards the third illustration, a Court is certainly entitled to come to the conclusion that one of the, named accused is guilty of murder under section 302, read with section 34, of the Indian Penal Code, though the 684 other three named accused are acquitted, if it accepts the evidence that the said accused acted in concert along with persons, named or unnamed, other than those acquitted, in the commission of the offence. In the second illustration, the Court can come to the same conclusion and convict one of the named accused if it is satisfied that no prejudice has been caused to the accused by the defect in the charge. But in the first illustration the Court certainly can convict two or more of the named accused if it accepts the evidence that they acted conjointly in committing the offence. But what is the position if the Court acquits 3 of the 4 accused either because it rejects the prosecution evidence or because it gives the benefit of doubt to the said accused ? Can it hold, in the absence of a charge as well as evidence ', that though the three accused are acquitted, some other unidentified persons acted conjointly along with one of the named persons ? If the Court could do so, it would be making out a new case for. the prosecution : it would be deciding contrary to the evidence adduced in the case. A Court cannot obviously make out a case for the prosecution which is not disclosed either in the charge or in regard to which there is no basis in the evidence. There must be some foundation in the evidence that persons other than those named have taken part in the commission of the offence and if there is such a basis the case will be covered by the third illustration. In support of the contention that a Court, even in the first illustration, can acquit 3 of the 4 accused named in the charge on the ground that their identity has not been established, and convict one of them on the ground that more than one took part in the commission of the offence, reliance is placed upon the decision of this Court in Mohan Singh vs State of Punjab (1). There, the appellants, along with three others, were charged with having committed offence under section 302, read with section 149, as well as section 323, read (1) [1962] Supp. 3 S.C.R. 848. 858. 685 with section 149, of the Indian Penal Code. The Sessions judge acquitted two of them, with the result 3 of them were convicted. One of the accused was convicted under section 302 and section 147 and two of the accused were convicted under section 302, read with section 149 and section 147, of the Indian Penal Code. The High Court confirmed their convictions. On appeal by special leave to this Court, two of the accused convicted under section 302, read with sections 149 and 147, of the Indian Penal Code, contended, inter alia, that as two of the five accused were acquitted, their conviction under section 302, read with sections 149 and 147, was bad in law, This Court held on the evidence that the said two accused had done the act pursuant to a pre arranged plan and therefore they could be convicted under section 302, read with section 34, of the Indian Penal Code. But in the course of the judgment different situations that might arise in the context of the question now raised were noticed. Adverting to one of the situations similar to that now before us, this Court observed : "Cases may also arise where in the charge, the prosecution names five or more persons and alleges that they constituted an unlawful assembly. In such cases, if both the charge and the evidence are confined to the persons named in the charge and out of the persons so named two or more are acquitted leaving before the court less than five persons to be tried, then section 149 cannot be invoked. Even in such cases, it is possible that though the charge names five or more persons as composing an unlawful assembly, evidence may nevertheless show that the unlawful assembly consisted of some other persons as well who were not identified and so not named. In such cases, either the trial court or even the High Court in appeal may be able to come to the conclusion that the acquittal of some of the persons named in the charge and tried will not necessarily 686 displace the charge under section 149 because along with the two or three persons convicted were others who composed the unlawful assembly but who have not been identified and so have not been named. In such cases, the acquittal of one or more persons named in the charge does not affect the validity of the charge under section 149 because on the evidence the court of facts is able to reach the conclusion that the persons composing the unlawful assembly nevertheless were five or more than five. It is true that in the last category of cases, the court will have to be very careful in reaching the said conclusion. But there is no legal bar which prevents the court from reaching such a conclusion. " It will be seen from the. said observations that this Court was visualizing a case where there was evidence on the record from which the court can come to such a conclusion. It may be that the charge discloses only named persons; it may also be that the prosecution witnesses named only the said accused; but there may be other evidence, such as that given by the court witnesses, defence witnesses or circumstantial pieces of evidence, which may disclose the existence of named or unnamed persons, other than those charged or deposed to by the prosecution witnesses, and the court, on the ' basis of the said evidence, may come to the conclusion that others, named or unnamed, acted conjointly along with one of the accused charged. But such a conclu sion is really based on evidence. The observations of this Court really apply to a case covered by the third illustration given by us. But the present case falls outside the said three illustrations. The High Court gave conflicting findings. While it acquitted accused 1, 3 and 4 under section 302, read with section 34 of the Indian Penal 687 Code, it convicted accused 2 under section 302, read with section 34, of the said Code, for having committed the offence jointly with the acquitted persons. That is a legally impossible position. When accused were acquitted either on the ground that the evidence was not acceptable or by giving benefit of doubt to them, the result in law would be the same : it would mean that they did not take part in the offence. The effect of the acquittal of accused 1, 3 and 4 is that they did not conjointly act with accused 2 in committing the murder. If they did not act conjointly with accused 2, accused 2 could not have acted conjointly with them. Realizing this mutually destructive findings of the High Court, learned counsel for the State attempted to sustain the findings of the High Court by persuading us to hold that if the said finding was read in the context of the whole judgment, it would be clear that the learned judges meant to hold that persons other than the acquitted accused conjointly acted with the convicted accused. We have gone through the entire judgement carefully with the learned counsel. But the observations of the learned judges ;is regards the " 'other participants" in the Grime must in the context refer only to the " 'one or other of the said three acquitted accused participated in the offence committed by accused 2. There is not a single observation in the judgment to indicate that persons other than the said accused participated in the offence, nor is there any evidence in that regard. We, therefore, hold that the judgment of the High Court cannot stand. We are satisfied that on the findings arrived at by the High Court, the conviction of accused 2 is clearly wrong. In the result, we allow the appeal, set aside the conviction of the appellant and direct him to be set at liberty. Appeal allowed.

IN-Abs

The four accused persons stood their trial before the Additional Sessions judge for the murder of one Vishwanath. The charge against them was that they in view of their common grudge a against the deceased, combined together and did away with the deceased. They were charged under section 302 read with section 34 of the Indian Penal code and were also separately charged under section 302 of the Penal Code. All pleaded not guilty to the charge and accused 1, 3 and 4 pleaded alibi, while accused 2 raised a plea of private defence. The learned Additional Sessions judge acquitted all the accused on the ground that the prosecution witnesses were not speaking the truth and the version given by accused 2 was the probable one. The State preferred an appeal to the High Court against the order of acquittal under section 302, read with section 34, but not against the acquittal under section 302 of the Penal Code. The High Court acquitted accused 1, 3 and 4 on the ground that it was doubtful whether any one of them participated in the commission of the offence and convicted accused 2 on the ground that one or more of them might have participated in the offence. Accused 2, the appellant, therefore, filed this appeal and contended that when three of the four named accused, who were charged under section 302, read with section 34, were acquitted, the court could not convict only one of the accused on the basis of constrictive liability. Held that before a court could convict a person under section 302, read with section 34, it should come to a definite conclusion that the said person had a prior concert with one or more other persons, named or unnamed, for committing the said offence. Held, further, that when accused were acquitted either on the ground that the evidence was not acceptable or by giving 679 benefit of doubt to them, the result in law would be the same it would mean that they did not take part in the offence. The effect of the acquittal of accused 1, 3 and 4 is that they did not conjointly act with accused 2 in committing the murder. If they did not act conjointly with the appellant, he could not have acted conjointly with them. The judgment of the High Court does not indicate that persons other than the said accused participated in the offence, nor is there any evidence in that regard, therefore, the conviction of the appellant must be set aside. Mohan Singh vs State of Punjab, [1962] Supp. 3 section C. R. 848, held inapplicable.

Appeal No. 315 of 1962. Appeal by special leave from the judgment and order dated November 16,1960 of the Andhra Pradesh High Court in A.S. No. 397 of 1957. A. Ranganadham Chetty, A. Vedavalli and A. V. Rangam, for the appellant. D.Narasaraju, Advocate General for the State of Andhra Pradesh, T.V.R. Tatachari and P.D, Xenon, for the respondent. January 25. The judgment of the Court was delivered by GAJENDRAGADKAR, J. The short question which arises in this appeal is whether the suit instituted by the appellant, Firm of Illury Subbayya Chetty & Sons, in the court of the Subordinate judge at Kurnool, seeking to recover Rs. 8,349/ from the respondent, the State of Andhra Pradesh, on the ground that the said amount had been illegally recovered from it under the Madras General Sales Tax Act, 1939 (Mad. IX of 1939) (hereinafter called the Act) for the years 1952 54 is competent or not ; and this question has to be determined in the light of the scope and effect of section 18 A of the Act. 756 The appellant is a firm of merchants carrying on commission agency and other business at Kurnool and as such, it purchases and sells ground nuts and other goods on behalf of principles for commission. For the year 1952 53 the Sales tax authorities included in the appellant 's taxable turnover an amount of Rs. 3,45,488/12/10 representing groundnut sales and collected the tax on the total turnover from it in September, 1953 when the amount of the said tax was determined and duly adjusted. The said turnover of Rs. 3,45,488/12/10 in fact represented sales of groundnuts and not purchases and tax was recovered from the appellant on the said amount illegally inasmuch as it is only on purchase of groundnuts that the tax is leviable. As a result of this illegal levy, the ' appellant had to pay Rs. 5.398/4/3 for the said year. Similarly, for the subsequent year 1953 1954 the appellant had to pay an illegal tax of Rs. 1,159/11/,9. In its plaint, the appellant claimed to recover this amount together with interest @ 12% per annum and that is how the claim was valued at Rs. 8,349/ . This claim was resisted by the respondent on two grounds. It was urged that the suit was incomepetent having regard to the provisions of section 18 A of the Act; and on the merits it was alleged that the transactions in regard to groundnuts on which s lestax was levied and recovered from the appellant were transactions of purchase and not of sale. In this connection, the respondent referred to the fact that the appellant itself had included the transaction in question in the return submitted by it in form A and that it was making payments tentatively every month to be adjusted after the final assessment was made at the end of the year. Accordingly, the final adjustment was made in September and the total amount due from the appellant duly recovered. Thus, the appellant having voluntarily made the return and paid the taxes, it was not open to him to 757 contend that the transactions in regard to groundnuts were not taxable under the Act. Besides, the appellant had not preferred an appeal either to the Deputy Commissioner of Commercial taxes or to the Sales Tax Appellate Tribunal ; and so, it had not availed itself of remedies provided by the Act. On these pleadings, the trial Court framed three principal issues. The first issue was whether the suit was barred by section 18 A of the Act; the second was whether there had been excess collection of sales tax for the two years in question and if so, how much ? And the third issue was whether the appellant was estopped from questioning the validity of the assessment ? According to the trial court, the respondent had failed to prove its pleas against the apppellant 's claim and so, it recorded findings in favour of the appellant in all the three issues. In the result, a decree followed in favour of the appellant for the recovery of Rs. 6,558/ with interest 6% per annum from November 12, 1955 till the date of payment. This decree was challenged by the respondent by preferring an appeal before the High Court of Andhra Pradesh. It appeared that the decision of the said High Court in the case of State of Andhra Pradesh vs Shri Krishna Cocoanut Co. (1), was in favour of the view taken by the trial Court ; but the respondent urged before the High Court that the said decision was erroneous in law and require reconsideration. That is why the respondent 's appeal was placed before a Full Bench of the High Court. The Pull Bench has upheld the contentions raised by the respondent. It has held that in view of the provisions of section 18 A of the Act, the suit is incompetent. Alternatively, it has found that on the merits, the claim made by the appellant was not justified. The result of these findings was that the respondent 's appeal was allowed and the appellant 's suit was dismissed (1) (1960) 1 Andhra W.R.279. 758 with costs. The appellant had filed cross objections claiming additional interest on the decretal amount, but since its suit was held to be incompetent by the High Court, its cross objections failed and were dismissed with costs. it is against this decree that the appellant has come to this Court by special leave. Mr. Ranganathan Chetty for the appellant contends that the High Court was in error in coming to the conclusion that the appellant 's suit was incompetent because he argues that the High Court has misjudged.the effect of the provisions of section 18 A In dealing With the question wether civil courts jurisdiction to entertain suit is barred or not it is necessary to bear in mind the fact that there is a general presumption that there must be a remedy in the ordinary civil courts to a citizen claiming that an amount has been recovered from him illegally and that such a remedy can be held to be barred only on very clear and unmistakable indications to the contrary. The exclusion of the jurisdiction of Civil Courts to entertain civil causes will not be assumed unless the relevant statute contains an express provision to that effect, or leads to a necessary and inevitable implication of that nature .The mere fact that a special statute provides for certain remedies may not by itself necessarily exclude the jurisdiction of the , civil courts to deal with a case brought before it in respect of some of the matters covered by the said statute. It is, therefore,necessary to enquire whether s.18 Aexpressly or by necessary implication excludes the jurisdiction of the civil court to entertain a suit like the present. Section 18 A provides that no suit or other Proceeding shall, except as expressly provided in this Act. be instituted in any Court to set aside or modify any assessment made under this Act. It is common ground that there is no express provision made in the Act under which the present 759 suit can be said to have been filed, and so, it falls under the prohibition contained in this section. The prohibition is express and unambiguous and there can be no doubt on a fair construction of the section that a suit cannot be entertained by a civil court if, by instituting the suit, the plaintiff wants to set a side or modify any assessment made under this Act. There is therefore, no difficulty in holding that this section excludes the jurisdiction of the civil courts in respect of the suits covered by it. It is, however, urged by Mr. Chetty that if an order ',of assessment has been made illegally by the appropriate authority purporting to exercise its powers under the Act, such an assessment cannot be said to be an assessment made under this Act. He contends that the words used are "any assessment made under this Act" and the section does not cover cases of assessment which are purported to have been made under this Act. In support of this argument he has referred us to the provisions of section 17 (1) and section 18 where any act done or purporting to be done under this Act is referred to. It would, however, be noticed that having regard to the subject matter of the provisions contained in sections 17 (1) and 18 it was obviously necessary to refer not only to acts done, but also to acts purporting to be done under this Act. Section 17 (1) is intended to bar certain proceedings and section 18 is intended to afford an indemnity and that is the reason why the legislature had to adopt the usual formula by referring to acts done or porting to be done. It was wholly unnecessary purl to refer to cases of assessment purporting to have been made under this Act while enacting section 18 A, because all assessments made under this Act would attract the provisions of section 18 A and that is all that the legislature intends section 18 A to cover. The expression " 'any assessment made under this Act" is, in our opinion, wide enough to coverall 760 assessments made by the appropriate authorities under this Act whether the said assessments are correct or not. It is the activity of the assessing officer acting as such officer which is intended to be protected and as soon as it is shown that exercising his jurisdiction and authority under this Act, an assessing officer has made an order of assessment that clearly falls within the scope of s.18 A. The fact that the order passed by the assessing authority may in fact be incorrect or wrong does not affect the position that in law, the said order has been passed by an appropriate authority and the assessment made by it must be treated as made under this Act. Whether or not an assessment has been made under this Act will not depend on the correctness or the accuracy of the order passed by the assessing authority. In determining the applicability of s.18 A. the only question to consider is: "Is the assessment sought to be set aside or modified by the suit instituted an assessment made under this Act or not?" It would be extremely anomalous, to hold that it is only an accurate and correct order of assessment which falls under s.18 A. Therefore, it seems to us that the orders of assessment challenged by the appellant in its suit fall under s.18 A. In this connection, it is necessary to emphasise that while providing for a bar to suits in ordinary civil courts in respect of matters covered by s.18 A, the legislature has taken the precaution of safeguarding the 'citizens ' rights by providing for adequate alternative remedies. Section 11 of the Act provides for appeals to such authority as may be prescribed; section 12 confers revisional jurisdiction on the authorities specified by it; s.12 A allows an appeal to the appellate Tribunal; s.12 B provides for a provision by the High Court under the cases specified in it; s.12 C provides for an appeal to the. High Court; and section I 2 D lays down that petitions, applications and appeals to High Court should be heard by a Bench of not 761 less than two judges. The matter can even be brought to this Court by way of a petition under article 130 of the Constitution. It would thus be seen that and dealer who is aggrieved by an order of assessment passed in respect of his transactions, can avail him self of the remedies provided in that behalf by these sections of the Act. It is in the light of these elaborated alternative remedies provided by the Act that the scope and effect of s.18 A must be judged. Thus considered, there can be no doubt that where and order of assessment has been made by an appropriate authority the provisions of this Act, any challenge to its correctness and any attempt either to have it set aside or modified must be made before the appellate or the revisional forum prescribed by the relevant provisions of the Act. A suit instituted for that purpose would be barred under section 18 A. The facts alleged by the appellant in this case are somewhat unusual. The appellant itself made voluntarly returns under the relevant provisions of the Act and included the groundnut transactions as taxable transactions. It was never alleged by the appellant that the said transactions were transactions of sale and as such, not liable to be taxed under the Act. It is true that under s.5A(2) groundnut is made liable to tax under s.3(1) only at the point of the first purchase effected in the State by a dealer who is not exempt from taxation under section 3(3), but at the rate of 2% on his turnover. When the appellant made its voluntary returns and paid the tax in advance to be adjusted at the end of the year from time to time, it treated the groundnut transactions as taxable under s.5A(2). In other words, the appellant itself having conceded the taxable character of the transactions in question, no occasion arose for the taxing authority to consider whether the said transactions could be taxed or not; and even after the impugned orders of assessment were made, the appellant did not choose to file an appeal and urge 762 before the appellate authority that the transactions were sale transactions and as such, were outside the purview of s.5A(2). If the appellant had urged that the said transactions were outside the purview of the Act and the taxing authority in the first instance had rejected that contention, there would be no doubt that the decision of the taxing authority would be final, subject, of course, to the appeals and revisions provided for by the Act. The position of the appellant cannot be any better because it did not raise any such contention in the assessment proceedings under the Act. If the order made by the taxing authority under the relevant provisions of the Act in a case where the taxable character of the transaction is disputed is final and cannot be challenged in a civil court by a separate suit, the position would be just the same where the taxable character of the transaction is not even disputed by the dealer who accepts the order for the purpose of the Act and then institutes a suit to set it aside or to modify it. The question about the exclusion of the jurisdiction of the civil courts to entertain civil actions by virtue of specific provisions contained in special statutes has been judicially considered on several occasions. We may in this connection refer to two decisions of the Privy Council. In Secretary of State vs Mask. & Coy., (1) the Privy Council was dealing with the effect of the provisions contained in section 188 of the Sea Customs Act (VIII of 1878). The relevant portion of the said section provides that every order passed in appeal under this section shall, subject to the power 'of revision conferred by section 191, be final. Dealing with the question about the effect of this provisions the Privy Council observed that it is settled law that the exclusion of the jurisdiction of the civil courts is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied. Lord Thankerton who delivered the opinion of the Board, however, proceeded to add that (1) (1940) 67 I.A. 222,236, 763 "it is also well settled that that even if jurisdiction is so excluded, the civil courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with, or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure. " It is necessary to add that these observations, though made in somewhat wide terms, do not justify the assumption that if a decision has been made by a taxing authority under the provisions of the relevant taxing statute, its validity can be challenged by a suit on the ground that it is incorrect on the merits and as such, it can be claimed that the provisions of the said statute have not been complied with. Non compliance with the provisions of the statute to which reference is made by the Privy Council must, we think, be non compliance with such fundamental provisions of the statute as would make the entire proceedings before the appropriate authority illegal and without jurisdiction. Similarly, if an appropriate authority has acted in violation of the fundamental principles of judicial procedure, that may also tend to make the proceedings illegal and void and this infirmity may affect the validity of the order passed by the authority in question. It is cases of this character where the defect or the infirmity in the order goes to the root of the order and makes it in law invalid and void that these observations may perhaps be invoked in support of the plea that the civil court can exercise its jurisdiction notwithstanding a provision to the contrary contained in the relevant statute. In what cases such a plea would succeed it is unnecessary for us to decide in the present appeal because we have no doubt that the contention of the appellant that on the merits, the decision of the assessing authority was wrong, cannot be the subject matter of a suit because section 18 A clearly bars such a claim in the civil courts. The next decision to which reference may be made was pronounced by the Privy Council in the 764 case of Releigh Investment Coy. Ltd. vs GovernorGeneral in Council (1). In that case the effect of section 67 of the Indian Income tax Act fell to be considered. The said section, inter alia, provides that no suit shall be brought in any civil court to set aside or modify any assessment made under this Act. It would be noticed that the words used in this section are exactly similar to the words used in section 18 A with which we are concerned. In determining the effect of section 67, the Privy Council considered the scheme of the Act by particular reference to the machinery provided by the Act which enables an assessee effectively to raise in courts the question whether a particular provision of the Income tax Act bearing on the assessment made is or is not ultra vires. The presence of such machinery observed the judgment, though by no means conclusive, marches with a construction 'of the section which denies an alternative jurisdiction to enquire into the same subject matter. It is true that the judgment shows that the Privy Council took the view that even the constitutional validity of the taxing provision can be challenged by adopting the procedure prescribed by the Income tax Act; and this assumption presumably proceeded on the basis that if an assessee wants to challenge the vires of the taxing provision on which an assessment is purported to be made against him, it would be open to him to raise that point before the taxing authority and take it for a decision before the High Court under section 66 (1) of the Act. ' It is not necessary for us to consider whether this assum ption is well founded or not. But the presence of the alternative machinery by way of appeals which a particular statute provides to a party aggrieved by the assessment order on the merits, is a relevant consideration and that consideration is satisfied by the Act with which we are concerned in the present appeal. The clause "assessment made under this Ace ' which occurs in section 18 A. also occurs in section 67 with (1)(1947) 74 I.A. 50, 68. 765 which the privy Council was concerned, and in construing the said clause, the Privy Council observed that "the phrase "made under this Act" describes the provenance of the assessment : it does not relate to its accuracy in point of law. The use of the machinery provided by the Act, not the result of that use, is the test " These two Privy Council 's decisions support the conclusion that having regard to the scheme of the Act, section 18 A must be deemed to exclude the jurisdiction of civil courts to entertain claims like the present. In the result, we must hold that the view taken by the High Court is right and so, the appeal fails and is dismissed. There would be no order as to Appeal dismissed.

IN-Abs

The appellant filed a suit against the respondent for a decree for Rs. 8339/ on the ground that the said amount had been illegally recovered from it under the Madras General Sales Tax Act, 1939, for the years 1952 54. The respondent 753 resisted the claim on the ground that the suit was incompetent under section I 8 A of the Act. On the merits, it was contended that the transactions in regard to groundnuts on which sales tax was levied and recovered from the appellant were transactions of purchase and not of sale, and it was urged that the appellant having voluntarily made the return and paid the taxes, it was not open to it to contend that the transactions were not taxable under the Act. Besides it was argued that the appellant had not preferred an appeal either to the Deputy Commissioner of Commercial Taxes or to the Sales Tax Appellate Tribunal against the assessments and bence the suit was not maintainable. The suit was decreed by the trial court but the High Court reversed that decision and dismissed the suit on the ground that in view of the provisions of section 18 A of the Act, the suit was incompetent. Alternatively. it was found on merits that the claim made by the appellant was not justified. The appellant came to this Court by special leave. Held, that section 18 A excludes the jurisdiction of Civil Courts to set aside or modify any assessment made under the Act. There is no express provision in the Act under which the suit can be said to have been filed and it falls under the prohibition contained in this section. The prohibition is express and unambiguous and no suit can be entertained by a Civil Court, if by instituting the suit. the plaintiff wants to set aside or modify any assessment made under the Act. Where an order of assessment has been made by an appropriate authority under the provisions of the Act, any challenge to its correctness and any attempt either to have it set aside or modified must be made before the appellate or revisional forum prescribed by the relevant provisions of the Act. A suit instituted for that purpose is barred under section 18 A. When the appellant made its voluntary returns and paid the tax in advance to be adjusted at the end of the year from time to time, it treated the groundnut transactions as taxable. The appellant having conceded the taxable character of the transactions in question, no occasion arose for the taxing authorities to consider whether the said transactions could be taxed or not. Even after the impugned orders of assessment were made, the appellant did not choose to file an appeal and urge before the appellate authority that. the transactions were sale transactions and as such were outside the purview of section 5A (2). If an order made by a taxing authority under the relevant provisions of the Act in a case where the taxable character of a transaction is disputed, is final and cannot be challenged in a civil court by a separate suit, the position is just 754 the same where the taxable character of the transactions is not even disputed by the dealer who accepts the order for the purposes of the Act and then institutes a suit to set aside or modify it. The expression "any assessment made under this Act" is wide enough to cover all assessments made by the appropriate authorities under this Act whether the said assessments arc correct or not. It is the activity of the assessing officer acting as such officer which is intended to be projected and as soon as it is shown that exercising his jurisdiction and authority under this Act, an assessing officer has made an order of assessment, that clearly falls within the scope of section 18 A. The fact that the order passed by the assessing authority may in fact be incorrect or wrong does not affect the position that in law the said order has been passed by an appropriate authority and the assessment made by it must be treated as made under this Act. Whether or not an assessment has been made under this Act will not depend on the correctness or accuracy of the order passed by the assessing authority. There is a general presumption that there must be a remedy in the ordinary civil courts to a citizen claiming that an amount has been recovered from him illegally and such a remedy could be held to be barred only on very clear and unmistakable indications to the contrary. The exclusion of jurisdiction of civil courts to entertain civil causes will not be assumed unless the relevant statute contains an express provision to the effect or leads to a necessary and inevitable implication of that nature. The mere fact that a special statute provides for certain remedies may not by itself necessarily exclude the jurisdiction of the civil courts to deal with a case brought before it in respect of some of the matters covered by the said statute. There is no justification for the assumption that if a decision has been made by a taxing authority under the provisions of a taxing statute, its validity can be challenged by a suit on the ground that it is incorrect on merits and as such it can be claimed that the provisions of the said statute have not been complied with. Non compliance with the provisions of the statute must be non compliance with such fundamental provisions of the statute as would make the entire proceedings before the appropriate authority illegal and without jurisdiction. If an appropriate authority has acted in violation of the fundamental principles of judicial procedure, that may also tend to make the proceedings illegal and void and that infirmily may affect the validity of the order passed by the authority in question. It is cases of this character where the 755 defect or infirmity in the order goes to the root of the order and makes it in law invalid and void that these observations may perhaps be invoked in support of the plea that the civil court can exercise its jurisdiction notwithstanding a provision to the contrary contained in the relevant statute. Secretary of State vs Mask & Co., (1940) 67 I.A. 222 and Reliegh Investment Co. Ltd. vs Governor General in 'Council, (1947) 74 I.A. 50, relied on. State of Andhra Pradesh vs Sri Krishna Coconut Co. (1960) 1 Andhra W.R. 279, overruled.

Appeal No. 212 of 1961. From the judgment and decree dated December 11, 1957, of the Bombay High Court in First Appeal No. 640 of 1957. G. section pathak, N. D. Karkhanis, B. Datta, J. B. Dadachanji, O. C. Mathur and Ravinder Narain, for the appellant. C.K. Daphtary, Solicitor General of India, N.S. Bindra and R. H. Dhebar for P. D. Menon, for the respondents. February 8. The judgment of the Court was delivered by GAJENDRAGADKAR, J. The short question which this appeal raises for our decision is whether the appellant Shankar Narayan Ranade has established his title to the running water of the river Valdevi which runs through his Inam village Vadner. The said village had been granted to the ancestors of 887 the appellant by the Peswa Government in 1773 A.D. This grant was continued by the British Government when the British Government came in power. The river Valdevi has its origin in the hills of Trimbak and from those hills it flows to Vadner and then to Chehedi where it joins the river Darna and thus loses its individuality. The total length of this river is about 25 miles, while its length within the limits of Vadner village is about 2 miles 82 furlongs. The Darna river after its conjunction with Valdevi proceeds towards Sangvi and there is merged with Godavari river : The appellant is one of the sharers in the Inam village of adner and he brought the present suit No. 12/1950 in the Court of the Civil judge (Senior Division) at Nasik, claiming reliefs against the Union of India and the State of Bombay, respon dents 1 & 2 respectively, on the basis of his title to the running water of the said river. It appears that in 1942, during the period of the 11 Would War, the Military authorities constructed barracks and other residential quarters for the army personnel within and outside the limits of Vadner. They also built a dam across the river Valdevi within the limits of Vadner and dug a well near the bank of the river. This well was fed with water carried by two channels drawn from the river. When the water reached the well, it was pumped from the well and duly stored in four reservoirs where it was filtered and then it was carried by means of pipes to the residential area occupied by the military personnel. The appellant then approached the military authorities and also the Government of Bombay and claimed compensation for the use of the water and the lands by the military authorities. Since his request for adequate compensation was not met, he filed the present suit on March 11, 1950, in a representative character under O. 1 r. 8 C. P. C. 888 In this suit, the appellant speaking for himself and for the other sharers in the Inam village of Vadner alleged that the jagirdars of the village were, full owners of the entire area of that village, including the land, the stream and the water flowing through the stream within the limits of the village. According to the plaint, the acts of diversion of water committed by the military authorities had deprived the appellant and the other Inamdars of their right to utilise that water for their own gains and thus, had caused injury and damage to them. As compensation for this damage, the appellant claimed Rs. 1,11,250/ from the respondents. The appellant further made a claim for Rs. 750/ as compensation for the use of his land by the military authorities. The diversion of water and the use of land continued from 1942 to 1949. Some other incidential reliefs were also claimed by the appellant. Respondent No. 2 contested the appellant 's claim. It urged that the Inamdars were not the grantees of the soil, but were the grantees of the royal share of the revenue only; and it was urged that in any case, they had no ownership over the flowing water of the Valdevi river. Respondent No. 1 adopted the written statement of respondent No. 2 and filed the Purshis in that behalf. According to the respondents, the river Valdevi had become a notified canal by virtue of a notification issued on February 17, 1913 under section 5 of the Bombay Irrigation Act, 1879, and in consequence, the Inamdars had lost their rights, if any, in the waters of the said river and respondent No. 2 had the absolute right of the use of the said water. A plea of limitation was also made by both the respondents. The learned trial judge made findings in favour of the appellant on all the issues. He held that the Inamdars were the grantees of the soil, that the 889 river Valdevi and its flowing water belonged to them, that the notification on which reliance was placed by the respondents was invalid, that the acts of the military authorities were unauthorised and that the appellant was consequently entitled to the compensation for the use, by the military authorities, of the water of the river and his lands and also for the loss of his income from the river bed. According to the trial Court, the appellant was entitled to this compensation only for two years before the date of the suit and the rest of his claim was barred by time. Accordingly, it passed a decree in favour of the appellant for an amount of Rs. 26,788/1/as compensation for the use of water up to December 31, 1949, directed that the compensation for the use of water for the period subsequent to January 1, 1950 should be ascertained in execution. proceedings, and awarded compensation @ Rs. 100/ per annum for the use of the land, and Rs. 50/ per annum for the loss of income from the river bed during the period that the act of the military authorities continued. This decree was challenged both by the appellant and the respondents by cross appeals Nos. 634/1954 and 640/1953 respectively. 'The appellant claimed a larger amount of compensation, whereas, according to the respondents, no compensation was payable in respect of the alleged diversion of the running water of the river Valdevi. It appears that before the High Court, the respondents did not dispute the finding of the trial Court that the Inamdars were the grantees of the soil and conceded that the rights of the Inamdars such as they were to the waters of the river Valdevi had not been extinguished by the notification issued under the Bombay Irrigation Act. It was, however, urged that the Valdevi river being a notified canal, the military authorities could have used its water by making appropriate applications under 890 sections 17 and 27 of the said Irrigation Act; but since there was no evidence to show that any such applications had been made, the said point did not survive. The main argument urged by the respondents in their appeal was that the appellant was not the owner of the running water of the stream and so, he had no right to claim any compensation for the alleged diversion of the said water by the military Authorities. The High Court has substantially accepted this contention. It has held that as owners of the lands in the village situated on both banks of the river the Inamdars were entitled to the use of the water of the river as riparian owners and what belonged to them was water which they took out from the river and appropriated to their use; they were, however, not entitled to claim title over the flowing water of the river and so, the diversion of the flowing water of the river cannot sustain their claim for compensation. The decree passed by the trial Court in respect of compensation for the wrongful use of the lands was not challenged by the respondents. In the result, the High Court modified the decree passed by the trial Court by setting aside that part of it which related to, the compensation for the use of the water of the Valdevi river by the military authorities and confirmed the rest of the directions issued by the decree. It is against this decree that the appellant has come to this Court with a certificate issued by the High Court ; and the main point which has been urged before us by Mr. Pathak on behalf of the appellant is that the high Court was in error in rejecting the appellant 's claim that the Inamdars of the village were the owners of the running water of the river Valdevi during its course within the limits of the Inam village of Vadner. In support of the appellant 's case, Mr. Pathak has urged that in construing the Sanad on which the appellant 's title is founded, it would be necessary to 891 bear in mind two important considerations. The first consideration is that the flowing water of a river constitutes property which can belong to a citizen either by grant or otherwise and assistance is sought for this argument from the provisions of section 37 of the Bombay Land Revenue; Code (Act V of 187(9). Section 37 (1) provides, inter alia, that all public roads, lanes and paths which are not the property of individuals, belong to the Crown, and amongst the items of property specified in this clause are included rivers, streams, nallas, lakes, tanks and all canals and watercourses, and all standing and flowing water The argument is that this sub section Postulates that the items of property specified by it can belong to private individuals, and it provides that if they are not shown to belong to private individuals, they would vest in the State. Therefore, in construing the Sanad, We ought to remember that the river and its flowing water constitute property which can be granted by the Ruler to a citizen. The other consideration on which Mr. Pathak has relied is that tinder the provisions of section 8 of the Transfer of Property Act, it should be assumed that unless a different intention is expressly or necessarily implied, a transfer of property passes forthwith to the transferee all the interest which the transferor is then capable of passing in the property, and in the legal incidents thereof. Mr. Pathak contends that assuming that prior to the grant, the Peshwa Government as the ruling power of the day was the owner of the river and its flowing water,, when the said Government made a grant to the appellant 's predecessors, the principle enunciated by section 8 of the Transfer of Property Act should be applied and the grant should be construed to include all rights, title and interest of the grantor, unless there is a contrary provision either expressly made, or implied by necessary implications. 892 Bearing those two considerations in mind, let us consider the terms of the Sanad itself. The Sanad is drawn in terms which are consistent with the pattern prevailing in that behalf in those days and contains the usual familiar recitals. The relevant portion of the Sanad reads as follows : " 'Seeing the respectable Erahsins, performing Snan Sandhya (bath and prayer) leading ascetic life, devoted to the performance of their duties as laid down in Shrities and Smrities, the Government has constructed houses there and given to (them). Thinking that if the same are given to them, it would be beneficial to the Swami and to the Kingdom of Swami, the village of mouje Vadner, Pargana aforesaid in (a) (b) Swarajya as well as Moglai Dutarfa (on both sides) has been given to them as Nutan (New) (c) (d) Inam together with Sardeshmukhi, Inam Tizai, (e) (f) (g) Kulbab Kulkanu, Hali Patti, and Pestr Patti excluding (the rights of) Hakkadar and Inamdar and together with water, trees, grass, wood stones and hidden treasures, for maintenance of their families." The Sanad then defines the shares in the current revenue of the said village amongst the respective shares. In the concluding portion, it makes certain other provisions with which we are not concerned in the present appeal. This Sanad was executed in 1773 A. D. During the British rule, this Sanad was confirmed in 1858 A. D. It is common ground that the material terms which have been construed for the purpose of determining the title of the appellant are contained in the earlier sanad. It would be noticed that the Sanad refers to the rights in water, trees, grass, wood, stones and hidden 893 treasures. It is well settled that the word "water (jal)" refers to water in tanks or wells and does not refer to the flowing water of the river. Indeed, if a grant of the river including its flowing water is intended to be made, the Sanad would have definitely used the word " 'river (nadi)", because it is wellknown that when rivers, drains or culverts are intended to be gifted, the Sanads usually use the words "nadi and nalla". Therefore, on a plain construction of the relevant words used in the Sanad, there can be no doubt that what is conveyed to the grantee by the Sanad is stationary or static water in the ponds or wells and not the flowing water of the river. The specific reference to water meaning water of the well or the pond serves two purposes ; it defines the kind of water which is conveyed, and by necessary implication, excludes the grant of flowing water of the river. Sanads containing words like these have frequently been considered by the Bombay High Court in the past and it has been consistently held that the word "water" means only water in the ponds or wells and does not refer to the flowing water of the river, vide Annapurnabai Gopal vs Government of Bombay (1). Therefore, the two considerations on which Mr. Pathak strongly relied in support of his construction of the Sanad do not really assist him. The language of the Sanad precisely defines the nature of the water that is conveyed and in doing so, by necessary implication, excludes the flowing water of the river. Mr. Pathak, however, suggests that it is not disputed by the respondents that the Sanad in question grants title to the soil of the village and is not confined to the royal share of the revenue only ; and he, argues that the grant of the soil necessarily means the grant of the bed of the river while it flows within the limits of the Inam village. If the bed of the river has been granted to the appellant 's predecessors by the Sanad, why does it not follow that the water flowing (1) , 894 on the said bed during the said limits belongs to the appellant ? The title to the running water of the river must, Mr. Pathak says, go with the title to the bed of the river. There are two difficulties in accepting this contention. The first difficulty is that the use of the word "water (jal)" in the Sanad, as we have already held, excludes the running water of the river. Besides, it is by no means clear that the title to the flowing water of the river necessarily goes with the title to the bed of the river. As was observed by Lord Selborne in Lyon vs Fish mongers ' Company. " 'The title to the soil constituting the bed of a river does not carry with it only exclusive right of property in the running water of the stream, which can only be appropriated by severance, and which may be lawfully so appropriated by every one having a right of access to it. Therefore, the argument that the grant of the soil of the village including the bed of the river must necessarily include the grant of the title to the flowing water of the river can not be accepted. In this connection, it is necessary to remember that the river Valdevi flows through the village only for the distance of 2 miles & 2 furlongs. It is not a case where the whole of the stream of the river from its origin to its merging in another river runs entirely through this village. If a river takes its origin within the limits of an Inam village and its course is terminated within the limits of the same village, that would be another matter. In the present case, if the appellant 's right to the following water of the river is conceded, it would mean that the Inamdars would be able to divert the water completely and destroy the rights of the other riparian owners whose lands are situated outside the village. They may be able to pollute the water or do anything with it to the prejudice of the said riparian owners. Such rights cannot be claimed by the appellant unless the Sanad in his favour makes the grant 895 of,the running water in terms. As we have already seen, the Sanad not only does not make any such grant, but by necessary implication also excludes the running water from the purview of the grant. Mr. Pathak then attempted to argue that the diversion of the water of the river Valdevi during the relevant period affected the appellant 's right as the riparian owner and that, according to him, would furnish him with a cause of action for claiming damages against the respondents. In this connection, Mr. Pathak invited our attention to the observations of Parke, B. in Embrey vs Owen. (1). "Flowing water," said Parke, B., "is public juris in this sense only that all may reasonably use it who have a right of access to it, and that none can have any property in the water itself, except in the particular portion which he may choose to abstract from the stream and take into his possession, and that during the time of his possession only. The right to have a stream of water flow in its natural state, without diminution or alteration, is an incident to the property in the land through which it passes ; but this is not an absolute and exclusive right to the flow of all the water, but only subject to the right of other riparian proprietors to the reasonable enjoyment of it; and consequently it is only for an unreasonable and unauthorised use of this common benefit that any action will lie." In this connection, Mr. Pathak has also referred us to the decision of the Privy Council in the Secretary of State for India vs Subbararayudu (1). In that case, the Privy Council has elaborately considered the nature and extent of the rights which a riparian owner can claim. "A riparian owner observed Viscount Dunedin, "is a person who owns land abutting on a stream and who as such has a certain right to take water from the stream. In ordinary cases, the fact that his land abuts on the stream makes him the proprietor of the bed of the (1)(1851) 6 E,.c. 353 : ; (2) (1931) L,R. 59 I.A. 56, 63 64, 896 stream usque ad medium filum. But he may not be. He may be ousted by an actual grant to the person on the other side, or he may be and often is ousted by the Crown when the stream is tidal and navigable, the solum of the bed belongs to the Crown. " It was also observed that "the right of a riparian owner to take water is first of all, for domestic use, and then for other uses connected with the land, of which irrigation of the lands which form the property is one. This right is a natural right and not in the strict sense of the word an easement, though in many cases it has been called an easement. " We do not, however, think that it is possible for us to allow Mr. Pathak to raise this alternative argument before us, because it is clear that the reliefs claimed by the appellant were based only on one ground and that was, the title to the flowing water of the river. In paragraph 8 of the plaint the appellant has specifically stated that he was claiming the amount of compensation for the use of water belonging to the plaintiff and in paragraph 3 it has been clearly averred that the running water of the river belongs to the appellant and so, by the unauthorised acts of the military authorities, the appellant and the Inamdars were not able to let out their bed of the stream for the plantation of water melons etc., and were thus put to loss. In other words, the plaint has made no allegation even alternatively that the appellant and the other Inamdars of the 'village had certain rights in the flowing water of the river as riparian owners and the illegal acts of the military authorities had affected the said rights and thereby caused damage to them. In fact, as the High Court has pointed out, there is no evidence on the record which would sustain the appellant 's claim that the acts of the military authorities had prejudicially affected the appellant 's rights as a riparian owner to the use of the water, and that means, on the record 897 there is nothing to show that any damage had been caused to the Inamdars of the village as a result of the diversion of the water caused by the military authorities. Therefore, we are satisfied that the appellant cannot now make an alternative case on the ground of his rights as a riparian owner. The result is, the appeal fails and is dismissed with costs, two sets; one hearing fee. Appeal dismissed.

IN-Abs

The appellant was one of the sharers in the Inam village of vadner and brought a suit against respondents claiming relief on the basis of his title to the running water of river valdevi. During World War 11, the military authorities constructed residential quarters within and outside the limits of vadner. They built a dam across the river within the limits of vadner and dug a well near the bank of the river which was fed by the river water and the water was carried to the residential areas. The diversion of water and the use of land continued from 1942 to 1959, which deprived the appellant and the other Inamdars of their right to utilise that water for their own gain and of others ; this had caused injury and damage to them, for which, the appellant claimed compensation from the respondents. According to the respondents, by virtue of a notification under section 5 of the Bombay Irrigation Act, 1879, the river had become a notified canal and consequently the Inamdars had lost their rights, if any, in the waters of the said river. They also took a plea of limitation. The trial court decreed the suit and held that the appellant was entitled to the compensation only for two years before the date of the suit and the rest of his claim was barred by time. The decree was challenged both by the 886 appellant and the respondents by cross appeals in the High Court. The High Court dismissed the appeal with modifications. Then followed an appeal to this court on certificate. Held, that the use of the word "water " in the sanad, pro perly construed, excludes the running water of the river and it could not be said that title to the flowing water of the river went with the title to the bed of the river. If the sanad made no grant of the running water in terms, the appellant could not claim the same as the riparian owner. Anapurnabai Gopal vs Government of Bombay (1931) 47 Bom. L. R. 839 and Lyen vs Fish Mongers ' Company [1876] 1 App. Cas. 662, referred to. Held, further, that the appellant could not be allowed to make an alternative case on the ground of his rights as a riparian owner as there was neither any allegation in the plaint nor any evidence on the record to that effect.

Appeal No. 697 of 1962. Appeal by special leave from the judgment and order dated March 21, 1962, of the Madras High Court in Writ Appeal No. 154 of 1960. B. Sen, Ravinder Narain, O. C. Mathur and J.B. Dadachanji, for the appellant. A. V. Visvanatha Sastri, and R. Gopalakrishnan, for respondent 1. A. Ranganadham Chetty and A. V. Rangam, for respondent Nos. 2 and 3. 1963. February 6. The judgment of the Court was delivered by 811 SUBBA RAO J. This appeal by special leave is directed against the judgment of a division Bench of the High Court of judicature for Madras confirming that a single judge of that Court allowing. the petition filed by the respondent under article 226 of the constitution and quashing the order made by the State Transport Appellate Tribunal granting a stage carriage permit to the appellant for the route Tanjore Mannargudi via Vaduvoor. The facts relevant to the question raised may be briefly stated. The Regional Transport Authority, Tanjore, called for applications in respect of the issuing of a stage carriage permit for the route Tanjore Mannargudi via Vaduvoor. 11 persons applied for the permit. The Regional Transport Authority, adopting the marking system prescribed in ' G.O. Ms. No. 1298 (Home) dated April 28,1956, awarded marks to different applicants : the appellant of the highest number of Marks, viz., 7, and the first respondent got only 4 1/4 marks, with the result the appellant was preferred to the respondent and a permit was issued to him. It is not necessary to notice the marks secured by the other applicants before the Regional Transport Authority, for they are not before us. Total of the said marks secured by each of the said two parties was arrived at by gadding the marks given under the following heads: Viable Work Resi Experi Special To Unit shop dence ence circums tal tances. 1 2 3 4 5 K.M.S 4 1 1 1/2 1/4 7 S.R.V.S. 1 1 1 1 1/4 4 It would be seen from the said table of marks that if the 4 marks secured by the appellant under the 812 first column "Viable Unit" were excluded from his total, he would have got only a total of 3 marks under the remaining heads and the first respondent would have got a total of 41 marks under the said heads. Under the said G.O., as interpreted by this Court, the marks under the first column, i.e., those given under the head "Viable Unit", would be counted only if other things were equal; that is to say, if the total number of marks obtained by the said two applicants under Cols.2 to 5 were equal. It is, therefore, obvious that on the marks given the Regional Transport Authority went wrong in issuing, a permit in favour of the appellant, as he should not have taken into consideration the 4 marks given under the 1st Column since the total marks secured by him under Cols. 2 to 5 were less than those secured by the first respondent. Aggrieved by the said order, the first respondent preferred an appeal to the State Transport Appellate Tribunal, hereinafter called the Appellate Tribunal. The said Appellate Tribunal recast the marks in respect of the said two .parties in the following manner: Viable Work Resi Experi Special To Unit shop dence ence circums tal tances 1 2 3 4 5 K.M.S. 4 2 1 3/4 1/4 8 S.R.V.S. 2 1 1 4 It would be seen from the marks given by the Appellate Tribunal that the total of the marks secured by the appellant under Cols. 2 to 5 is equal to that secured by the first respondent under the said columns, each of them securing 4 marks. It was contended before the Appellate Tribunal that the first respondent was entitled to some mark under the column "Residence or place of business" on the ground 813 that it had the places of business at Tanjore and Mannargudi and that the Regional Transport Authority had given one mark to the first respondent under the said column ; but the Appellate Tribunal rejected that contention on the ground that the first respondent had a branch office at Kumbakonam and, therefore, the office at Tanjore or Mannargudi could not be treated as a branch office. Aggrieved by that order, the first respondent filed a petition before the High Court under article 226 of the Constitution for setting aside that order. Ramachandra lyer, J., who heard the said application allowed it. The main reason given by the learned judge for allowing the petition was that the Appellate Tribunal omitted to give any mark in respect of residential qualification, which amounted to refusal to take into consi deration the admitted fact, namely, the existence of a workshop at Mannargudi and therefore, it amounted to a breach of section 47 (1) (a) and (c) of the Motor Vehicles Act. The same idea was expressed by the learned judge in a different way thus: It. . in regard to residential qualification, it (the Appellate Tribunal) declined to consider whether the office workshop at Mannargudi are sufficient to entitle the petitioner to any marks under head for the mere reason that it was a branch of a branch office." He held that the said refusal was an error apparent on the face of the record; and he accordingly quashed the order and at the same time indicated that the result 'was that the State Transport Appellate Tribunal would have to dispose of the appeal afresh. The Letters Patent appeal filed by the appellant was heard by a division Bench consisting of Anantanarayanan and Venkatadri, jj. The learned judges dismissed the appeal and the reason of their decision is found in the following remarks "In essence, the judgment really proceeds on the basis that with regard to the claim of the 814 respondent to some valuation under Col. 3, arising from the existence of an alleged branch office at Mannargudi there has been no judicial disposal of the claim. " They also observed "The Tribunal is, of course, at liberty to adopt its own criteria for the valuation under Col. 2, provided they are consistently applied, and based upon some principle." In dismissing the appeal the learned judges concluded ". . we desire to make it clear that we are not in any way fettering the discretion of the State Transport Appellate Tribunal to arrive at its own conclusion on the claims of the two parties irrespective of any observations that might have been incidentally made by this Court on those claims. " The appellant has preferred the present appeal by special leave against the said order. It will be seen from the aforesaid narration of facts that the High Court issued the writ as it was satisfied that there was a clear error apparent on the face of the record, namely, that the Appellate Tribunal refused to take into consideration the existence of the branch office at Mannargudi for awarding marks under the head "residence" on the ground that there was another office of the first respondent at Kumbakonam. While it gave marks to the appe llant for his residence, it refused to give marks to the first respondent for its office on the aforesaid ground. Mr. Sen, learned counsel for the appellant, raised before us the following points (1) The. Court has no jurisdiction to issue a writ of certiorari under 816 article 226 of the Constitution to quash an order of a Tribunal on the ground that there is an apparent error of fact on the face or the record, however gross it may be, and that, in the instant case, if there was an error, it was only one of fact; (2) this Court has held that directions given under section 43 of the Motor Vehicles Act are only administrative in character and that an order made by a Tribunal in breach thereof does not confer a right on a party affected and, therefore, the Appellate Tribunal 's order made in derogation of the said directions could not be a subject matter of a writ. The argument of Mr. Viswanatha Sastri, learned counsel for the first respondent, may be summarized thus : The petitioner (appellant herein) has a fundamental right to carry on business in transport. The Motor Vehicles Act is a law imposing reasonable restrictions in public interest on such right. The Appellate Tribunal can decide, on the material placed before it, whether public interest would be better served if the permit was given to the appellant or the first respondent within the meaning of section 47 of the said Act. The Government, in exercise its powers under section 43 of the said Act, gave administrative directions embodying some principles for enabling the Tribunal to come to a conclusion on the said point. The Tribunal had jurisdiction to decide the said question on the basis of the principles so laid down or dehors them. In either view, it only decides the said question. The first respondent raised before the Tribunal that public interest would be better served if a permit was issued to it as it had a well equipped branch office at Mannargudi. The said question was relevant. in an inquiry under section 47 of the said Act, whether the Tribunal followed the instructions given by the Government or ignored them. In coming to a conclusion on the said 816 question, the Tribunal made a clear error of law inasmuch as it held that in the case of the first respondent, as it had a branch at Kumbakonam, its other branch at Mannargudi should be ignored. This, the learned counsel contends, is an error apparent on the face of the record. He further contends that the scope of an inquiry under article 226 'is wide and that it enables the court to issue an appropriate direction even in a case of an error of fact apparent on the face of the record. It is not necessary to express our opinion on the wider question in regard to the scope and amplitude of article 226 of the Constitution, namely, whether the jurisdiction of the High Court under the said Article to quash the orders of Administrative tribunals is confined only to circumstances under which the High Court of England can issue a writ of certiorari or is much Wider than the said power, for this appeal can satisfactorily and effectively be disposed of within the narrow limits of the ambit of the English Court 's jurisdiction to issue a writ of certiorari as understood by this Court. If it was necessary to tackle the larger question, we would have referred the matter to a Bench of 5 judges as it involved a substantial question of law as to the interpretation of the Constitution; and under article 145 thereof such a question can be heard only by a Bench of at least 5 judges. In the circumstances a reference to the decisions of this Court cited at the Bar, which are alleged to have expressed conflicting views thereon, is not called for. We shall therefore, confine ourselves to the narrow question. Adverting to the scope of a writ of certiorari in common law, this Court, in Hari Vishnu Kamath vs Syed Ahmed Ishaque(1) laid down the following propositions: (1) Certiorari will be issued for correcting errors of jurisdiction, as when an inferior (1) ; ,1121, 1123. 817 Court or Tribunal acts without jurisdiction or in excess of it, or fails to exercise it. (2) Certiorari will also be issued when the Court or Tribunal acts illegally in the exer cise of its undoubted jurisdiction, as when it decides without giving an opportunity to the parties to be heard, or violates the principles of natural justice. (3) The Court issuing a writ of certiorari acts in exercise of a supervisory and not appellate jurisdiction. One consequence of this is that the Court will not review findings of fact reached by the inferior Court or Tribunal, even if they be erroneous. (4) An error in the decision or determination itself may also be amenable to a writ of certiorari but it must be a manifest error apparent on the face of the proceedings e.g., when it is based on clear ignorance or disregard of the provisions of law. This view was followed in Nagendra Nath Bora, vs The Commissioner Hills Division and Appeals, Assam (1), Satyanarayan vs Mallikarjun (2) Shri Ambica Mills Co. vs section B. Bhutt (3) and in Provincial Transport Services vs State Industrial Court, Nagpur (4 ). But the more difficult question is, what is the precise meaning of the expression " 'manifest error Apparent on the face of the proceedings ?" Venkatarama Ayyar, J., attempted to define the said expression in Hari Vishnu Kamath 's Case (5) thus "Mr. Pathak for the first respondent contended on the strength of certain observations of Chagla, C. J., in Botuk K. Vyas vs Surat Municipality (1), that no error could be said to be apparent on the face of the record if it was (1) ; (2) [1960] 1 S.C.R. 8140 (3) (4) [1963] 3 S.C.R. 650. (5) ; ,1121, 1123 (6) A.I.R. 1953 Bom. 133. 818 not self evident, and if it required an examination or argument to establish it. This test might afford a satisfactory basis for decision in the majority of cases. But there must be cases in which even this test might break down, because judicial opinions also differ, and an error that might be considered by one judge as self evident might not be so considered by another. The fact is that what is an error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each case. " It would be seen from the said remarks that the learned judge could not lay down an objective test, for the concept necessarily involves a subjective element. Sinha,J., as he then was speaking for the Court in Nagendra Nath Bora 's Case (1), attempted to elucidate the point further and proceeded to observe at p. 1269 70 thus : " 'It is clear from an examination of the authorities of this Court as also of the courts in England, that one of the grounds on which the jurisdiction of the High Court on certiorari may be invoked is an error of law apparent on the face of the record and every error either of law or fact, which can be corrected by a superior court, in exercise of its statutory powers as a court of appeal or revision. " This decision assumes that the scope of a. writ in the nature of certiorari or an order or direction to set aside the order of an inferior tribunal under article 226 of the Constitution is the same as that of a common law writ of certiorari in England we do not express any opinion on this in this case. This decision practically accepts the opinion expressed (1) ; 819 by this Court in Hari Vishnu Kamath 's Case (1). The only addition it introduces is the anti thesis it made between " 'error of law and error of fact" and "error of law apparent on the face of the record. " But the question still remains in each case whether an error is one of law or of fact and that falls to be decided on the facts of each case. Das Gupta, J., makes yet another attempt to define the expression when he says in Satyanarayan vs Mallikarjun (2), at p. 141 thus : "An error which has to be established by a long drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of record. As the above discussion of the rival contentions show the alleged error in the present case is far from self evident and if it can be established, it has. to be established, by lengthy and complicated arguments. " The learned judge here lays down the complex nature of the arguments as a test of apparent error of law. This test also may break, for what is complex to one judicial mind may be clear and obvious to another : it depends upon the equipment of a particular judge. In the ultimate analysis the said concept is comprised of many imponderables : it is not capable of precise definition, as no objective criterion can be laid down, the apparent nature of the error, to a large extent, being dependent upon the subjective element. So too, in some cases the boundary between error of law and error of fact is rather thin. A tribunal may hold that 500 multiplied by 10,000 is 5 lakhs (instead of 50 lakhs); another tribunal may hold that a particular claim is barred by limitation by calculating the period of time from 1956 instead of 1961 ; and a third tribunal may make an obvious error deciding a mixed question of fact and law. The question whether the said errors are errors of (1) ; ,1121, 1123. (2) [1960] 1 S.C.R. 890. 820 law or fact cannot be posited on a priori reasoning., but falls to be decided in each case. We do not,, therefore, propose to define with any precision the concept of "error of law apparent on the face of the record"; but it should be left, as it has always been done, to be decided in each case. The only question therefore, is whether the State Transport Appellate Tribunal committed an error of law apparent on the face of the record. A look at the provisions of section 47 and section 43 of the , as amended by the Madras Legislature, will facilitate the appreciation of the problem. Under section 47, a Regional Transport Authority in considering an application for a stage carriage permit is enjoined to have regard, inter alia, to the interests of the public generally. Section 43 A, introduced by the Madras Legislature by the Motor Vehicles (Madras Amendment) Act, 1948, says that the State Government may issue such orders and directions of a general character as it may consider necessary in respect of any matter relevant to road transport to the State Transport Authority or to a Regional Transport Authority and such Transport Authority shall give effect to all such orders and directions. It has been held by this Court in M/s. Raman & Raman Ltd. vs The State of Madras (1), that section 43A conferred a power on the State Government to issue administrative directions, and that any direction issued thereunder was not a law regulating rights of parties. It was also pointed out that the order made and the directions issued under section 43 A of the Act cannot obviously add to, or subtract from, the consideration prescribed under section 47 thereof on the basis of which the tribunal is empowered to issue or refuse to issue a permit, as the case may be. It is, therefore clear that any direction given under section 43A for the purpose of considering conflicting claims for a permit by applicants can only be to enable the Regional Transport (1) [1959] Supp. 2 S.C.R. 227. 821 Authority to discharge its duties, under section 47 of the Act more satisfactorily, efficiently and impartially. To put it differently,the directions so given cannot enlarge or restrict the jurisdiction of the said tribunal or authority but only afford a reasonable guide for exercising the said jurisdiction. Concretely stated, an applicant in advancing his claim for a permit may place before the Authority an important circumstance in his favour, namely, that he has a branch office on the route in respect whereof he seeks for a permit. He may contend that he has an office on the route, and that the interests of the public will be better served, as the necessary amenities or help to meet any even tuality in the course of a trip will be within his easy reach. The Government also under section 43A may issue instructions to the Regional Transport Authority that the existence of an office of a particular applicant on the route would be in the interests of the public and, therefore, the said applicant should be given a preferential treatment if other things are equal. The issue of such an instruction only emphasizes a relevant fact which an authority has to take into consideration even if such an instruction was not given. But if the Authority under a manifest error of law ignores the said relevant consideration, it not only disobeys the administrative directions given by the Government, but also transgresses the provisions of section 47 of the Act. The disobedience of the instructions which are administrative in nature may not afford a cause of action to an aggrieved party, but the transgression of the statutory law certainly does. What is the position in the present. case ? The Government issued G. O. No. 1298 (Home), dated April 28, 1956, introducing a marking system for assessing the merits of applicants for stage carriage permits. Column 3 reads thus "Location of residence or place of business of the applicant on the route or at the terminal : 822 This qualification not only is in favour of local enterprise but also secures that the owner will pay prompt and frequent attention to the service entrusted to him. One mark may be assigned to this qualification. " Under this instruction the location of the residence or the place of business is considered to be in the interests of the public, for whose benefit the service is entrusted to a permit holder. The first respondent contended before the Regional Transport Authority that he had branch offices at Tanjore and mannargudi and therefore that fact should be taken into consideration and a mark should be given to him thereunder. The Regional Transport Authority gave one mark to the appellant and also one mark to the first respondent under that column. But the Appellate Tribunal refused to give any mark under that column to the first respondent for the following reasons : "On behalf of the other appellants and the Respondent it is contended that appellant No. 1 (1st respondent before the Supreme Court) is a Private Ltd. Company having its registered office at Madras, that their offices at Kumba konam is only a branch office, that the offices, if any at Tanjore or at Mannargudi cannot be treated as branch offices, and that, as such they are not entitled to any mark in column 3 of the mark list. This contention is a valid one." In regard to the Tanjore office the said appellate Tribunal has given an additional reason by holding on the facts that it was not an office at all. We can, therefore, ignore the Tanjore office for the purpose of this appeal. So far as the mannargudi office is concerned, the decision of the Appellate Tribunal was based upon an obvious error. It took the view that if a company bad a branch office at 823 one particular place, it could not have in law any other branch office though it had one in fact. Whatever conflict there may be, on which we do not express any opinion, in a tax law or the company law, in the context of the marking system and the evaluation of an amenity in the interest of the public, it is obviously an untenable proposition to hold that even if a company has a well equipped office on a route in respect of which a permit is applied for, it shall be ignored if the company has some other branch somewhere unconnected with that route. That was what the Appellate Tribunal held and in our view it is an error apparent on the face of the record. On that erroneous view, the Appellate Tribunal did Dot decide the relevant question raised, namely, whether the respondent has any such office at mannargudi. Both Ramachandra Iyer, J., at the first insta nce, and Anantanarayanan and Venkatadri, jj., in 'appeal, rightly pointed out this error. As this is an error apparent on the face of the record, they quashed the order of the Appellate Tribunal and left the question open for decision by it. In our view, the conclusion arrived at by the High Court is correct. It remains only to notice the decisions on which strong reliance is placed by learned counsel for the appellant in support of his contention. In M/s. Raman and Raman Ltd. vs The State of Madras (1), the relevant facts were : the appellant and the 4th respondent therein, along with others, were applicants for a stage carriage permit. The Regional Transport Authority granted the permit to the appellant on the basis of instructions issued by the State Government under section 43A of the ; on appeal, the Central Road Traffic Board set aside that order on the footing of fresh instructions issued by the Government; and a division Bench of the Madras High Court dismissed the writ petition filed by the appellant. It was, (1) [1959] Supp. 2 S.C.R. 227. 824 inter alia, contended before this Court that the ins tructions given under section 43A being law regulating rights of parties, the appellate authority could not ignore that law and set aside the order of the Regional Transport Authority on. the basis of subsequent instructions. The contention was rejected on the ground that instructions under section 43A were not law, but were only administrative directions and that the fact that the appellate tribunal ignored them would not affect its jurisdiction if it had come to a decision having regard to the considerations laid down in section 47 of the Act. The question before the tribunal was whether a small unit or a large one would be viable or would be in the interest of the public. There was scope, for taking different views on the question, and the appellate tribunal, contrary to the earlier directions, came to the conclusion that smaller units would be more in the interest of the public than larger ones. This judgment, therefore, is an authority only for the position that a tribunal in issuing or refusing to issue a permit to an applicant would be acting within its jurisdiction notwithstanding the fact that it ignored the administrative directions given by the Government under section 43A of the Act, provided it had come to a decision on the relevant considerations laid down in section 47 of the Act. In Abdulla Rowther vs The State Transport Appellate Tribunal, Madras (1), the Regional Transport Authority issued a permit each to the appellant therein and to one Gopalan Nair. On appeal, the Appellate Tribunal set aside that order and gave the permits to respondents, 3 and 4. Both the Regional Transport Authority and the Appellate Tribunal considered the applications on the basis of G.O. No. 1298 issued by the Government of Madras on April, 28, 1956. The Regional Transport Authority gave 4 marks each to the appellant and Gopalan Nair under Col. 1, which dealt with the building (1) A.I.R. 1959 S.C. 896. 825 strength to viable units, and refused, to give any marks to respondents 3 and 4 under the said column on the ground that they were fleet owners; with the result that the appellant and Gopalan Nair secured more marks than respondents 3 and 4 and were, therefore, given the permits. But the Appellate Tribunal held that the appellant and Gopalan Nair were not entitled to claim the benefit of the marks under Col. 1, as they had secured less marks than respondents 3 and 4 under Cols. 3 to 5, for they held, on a fair obstruction of the said G.O., that it was only when the marks obtained by applicants under Cols. 2 to 5 were equal, recourse could be had to 'Col. 1. On that basis, the Appellate Tribunal quashed the order of the Regional Transport Authority and gave the permits to respondents 3 and 4. The appellant challenged the said order by an application under article 226 of the Constitution for a writ of certiorari in the High Court of Madras. Rajagopalan, J., dismissed the application on two grounds, namely, (1) that the construction of the G.O. was not shown to be wrong and (2) that even if the G. O. was misconstrued, it would not justify the issue of a writ of certiorari, as the said G. O. embodied only administrative directions. The Letters Patent Appeal filed against the said order was dismissed. The appeal filed to this Court was also dismissed. This Court followed the decision in M/s. Raman and Raman Ltd. vs The State of Madras (1), and held that the instructions given under section 43 A of the were only administrative directions and that, therefore, even if the rule as to the assignment of marks was infringed, it was not an error of law at all. This decision only follows the earlier decision and lays down that instructions given under section 43A of the are only administrative directions and that a wrong construction of the said instructions would not enable the party affected to apply for a writ of certiorari. The instructions laid down a method of evaluation (1)[1959] Supp. 2 S.C.R. 227. 826 of the respective claims vis a vis 'the considerations laid down in section 47 of the Act. The Regional Transport Authority and the Appellate Tribunal have borne in mind the said considerations, in deciding upon the rival claims, though they may have wrongly interpreted one of the instructions. It may be pointed out that in that case the interpretation put upon the instructions was a correct one, though this Court proceeded on the assumption also that they might have been wrongly interpreted. But the decision cannot obviously be an authority for the position that on a wrong interpretation of the administrative directions or dehors the said directions, a tribunal can ignore the relevant considerations laid down in section 47 of the. Act or on the basis of an error of law apparent on the record wrongly refuse to decide on any of such considerations. To the same effect is the decision of this Court in Ayyaswami Gounder vs M/s. Soudambigai Motor Service (1). There, the Regional Transport Authority followed the marking system as laid down by the Government of Madras and gave to the appellant (therein) 5 marks and to the respondent 6 marks. Though the respondent got 6 marks, he was not given the permit, as in the view of the said Authority he was guilty of misconduct. As between the other applicants, the appellant having secured the highest number of marks, he was given a permit. But on appeal the Appellate Tribunal reallotted the marks and under the reallotment the appellant got the highest number of marks; and because of that fact and also for the reason that he was a small operator of two buses, who should be given an opportunity to build up a viable unit as quickly as possible, he was given the permit by the Appellate Tribunal upholding the order of the Regional Transport Authority. One of the question raised there was whether the appellant was entitled to marks under Col. 2 for repair and maintenance, facilities at Dharapuram the (1) Civil Appeal No. 198 of 1962 (decided on 17 9 1962). 827 Appellate Tribunal found that he had such facilities. The appellant filed a writ in the High Court and the learned single judge thought that some mistakes had been committed by the Appellate Tribunal in the allotment of marks and that it acted in contravention of the directions given by the Government under the said G. O., but dismiss the petition on the ground that, as the said instructions are Only executive directions, their contravention did not confer any right on the parties before the tribunal. On Letters Patent Appeal a Division Bench of that Court set aside that order on the ground that the Appellate Tribunal had taken into consi deration the following two irrelevant considerations: (i) the appellant 's claim should suffer because of the punishment for his past misconduct, and (ii) the third respondent being a small operator, he would be entitled to better Consideration than the appellant who was a monopolist. On appeal, this court followed the decision in M/s. Raman and Raman Ltd. vs The State of Madras (1) and Abdullah Rowther vs The State Transport Appellate Tribunal (2) and held that under the said G. O. the Government issued only administrative directions and that the failure of the transport authorities to follow them would not entitle the respondents to a writ. As regards the two reasons given by the High Court, this Court came to the conclusion that they were not irrelevant considerations, but were considerations germane in the matter of issue of permits. In the result this Court allowed the appeal. This decision accepts two propositions, namely, (1) misconstruction or even disregard of the instructions, given by the Government does not confer a right upon an aggrieved party to file a writ, for the said instructions are only administrative directions, and (2) the decision implies that if the Tribunal decides on irrelevant considerations, the Court can issue a writ. But in that case it came to the conclusion that no such irrelevant considerations weighed with the Tribunal. (1) [1959] Supp. 2 S.C.R. 227 (2) A.I.R. 1959 S.C. 896. 828 The last of the cases relied upon is that in Sankara Ayyer vs Narayanaswami Naidu (1). There too. , the Regional Transport Authority and the State Transport Appellate Tribunal considered the applications for the grant of a permit for anew route on the basis of the administrative directions given by the State Government. The regional Transport Authority gave the appellant 3 marks on the basis that he was a small operator, but the Appellate Tribunal came to the conclusion that he was not entitled to any marks as a small operator. A single judge of the High Court set aside the order of the Appellate Tribunal on the ground that it misconstrued the directions contained in the Government Order relating to small operators. But a division Bench of that Court in Letters Patent appeal held, relying upon the earlier decision of this Court, that the said directions were only administrative in nature and that they did not confer any legal rights and in that view allowed the appeal. This Court again following the earlier decisions dismissed the appeal holding that by construing the administrative directions the Tribunal did not take irrelevant consi derations or refused to take relevant considerations in the matter of issue of permits. It is always a controversial question whether the issue of a permit to a small operator or to a big operator would be in the interest of the public and a Tribunal is certainly entitled to take either view. It will be seen from the aforesaid decisions that this Court only laid down that the instructions given under section 43A of the were only administrative directions and that the infringement of those instructions by the Tribunal did not confer any right on a party to apply to a High Court for a writ under article 226 of the Constitution. In all those cases the Tribunal either ignored the instructions or misconstrued them, but nonetheless decided the question of issue of permits on considerations relevant (1) Civil Appeal No. 213 of 1960 (decided on 10 10 1960). 829 under section 47 of the Act. They are not authorities on the question whether a writ of certiorari, would lie, where a Tribunal had on an obviously wrong view of law refused to decide or wrongly decided on a consideration relevant under section 47 of the Act, whether or not it was covered by the instructions given under section 43 A. For if on the basis of such an error of law, it refuses to decide a relevant question, the fact that the Government also issued instructions to the Tribunal to apply some objective standards in deciding such a question does not make the said question anytheless a relevant consideration under section 47 of the Act. That is the position in the present case. As we have already indicated, on the basis of an error manifest on the record, namely, that a company cannot have a branch office on the route in question, if it has another branch elsewhere, it refused to take into consideration a relevant fact, namely, whether the respondent has an office on the said route. The High Court, therefore, was right in quashing the order of the Appellate Tribunal and giving an opportunity to the Tribunal to decide that question on merits. In the result, the appeal fails and is dismissed with costs. Appeal dismissed.

IN-Abs

On applications for permits made to it the Regional Transport Authority, applying the markinig system prescribed by the Government order issued under section 43A of the Motor Vehicles Act, granted the permit to the appellant. On appeal by the first respondent, the State Transport Appellate Tribunal recast the marks but in doing so did not allot any mark to the first respondent under the head of "residence or place of business" and thereby treating the appellant and the first respondent as equal, gave the appellant the further advantage of four marks under the head "viable unit". The first respondent challenged the order of the Appellate Tribunal before the High Court under article 226 on the ground that the Appellate Tribunal had failed to allot him any mark in respect of his admitted residential qualification and had thereby committed a breach of section 47 (1) (a) and (c) of the Motor Vehicles Act. This contention was accepted by the learned single judge of the High Court who quashed the order of the Appellate Tribunal and directed it to proceed according to law. On appeal the Division Bench confirmed the issue of the writ. On appeal by special leave by the appellant it was contended in this Court that the High Court has no jurisdiction to issue a writ of certiorari, as the error, if any, was one of fact and that the directions issued by the Government under section 43A of the Motor Vehicles Act being only administrative in character, order made in breach thereof did not give rise to an error of law which could be the subject matter of a writ. Held, that the question whether or not there was such an error apparent on the face of the record as to enable the High Court to interfere under article 226 of the Constitution was one to be determined in each case and no particular test can or need be laid down as a general rule. 810 Hari Vishnu Kamath vs Syed Ahmad Ishaque, [1955] 1 section C. R. 1104, Nagendra Nath Bora vs Commissioner of Hills Division and Appeals, Assam ; , Satya narayan vs Mallikarjun, [1960] 1 section C. R. 890, Shri Ambica Mills Co. vs section B. Bhatt, ; , Provincial Transport Service vs State Industrial Court [1963] 3 section C. R. 650, Batuk Vyas vs Surat Municipality, A. I. R. 1953 Bom. 133 and M/s. Raman & Raman Ltd. vs The State of Madras, [1959] Supp. 2 section C. R. 227, referred to. Held, further, that though the directions issued under section 43A of the Act were administrative, they were intended to facilitate an objective, judgment of the considerations laid down in section 47 of the Motor Vehicles Act and if applying the directions to a given case result in the breach of section 47, namely, ignoring a relevant consideration, it must give rise to a manifest error of law and furnish a ground for interference under article 226 of the Constitution. M/s. Raman & Baman Ltd. vs State of Madras [1959] Supp. 2 section C. R. 227, Abdulla Rowther vs State Transport Appellate Tribunal, Madras, A. 1. R. , Ayyasswani Gounder vs M/s. Soudambigai Motor Service C. A. No. 198 of 1962 decided on 17 9 62 and Sankara Ayyar vs Marayanaswami Naidu, C. A. No. 213 of 1960 decided on 10 10 60, distinguished.

iminal Appeal No. 73 of 1961. 777 Appeal by special leave from the judgment and order dated November 3, 1960 of the Patna High Court in Criminal Appeal No. 326 of 1958. Jai Gopal Sethi, C.L. Sareen and R. L. Kohli, for the appellants. , S.P. Varma, and R. N. Sachthey, for respondent. January 29. The judgment of the Court was delivered by MUDHOLKAR, J. This is an appeal by special leave from a judgment of the High Court of Patna altering the conviction of the appellants under section 304, Part 11 read with section 149 of the Indian Penal Code into convictions under section 326 read with section 149, I.P.C. but maintaining the sentences and affirming the convictions under section 147 and section 426, I.P.C. as well as the sentences awarded in respect of those offences. The prosecution case was that there was a dispute between Ram Bilas Singh of Shahpore and, his two sons Ram Naresh Singh and Dinesh Singh on the one hand (appellants before us) and Deva Singh (P. W. 2) and his brothers on the other with respect to a Dochara in a village Dihara. On April 22, 1957, at about 9.00 a.m. while Deva Singh, along with his brother Laldeo Singh, the deceased and two other persons Dhunmun Singh (P. W. 4) and Dasain Hajam were sitting in the Dochara the appellant No. 1 Ram Bilas Singh arrived there in a truck with a mob of 40 to 50 persons which included the other two appellants before us, besides four other persons who were acquitted by the trial court. Ram Bilas Singh is said to have fired from the gun which he was carrying which hit Laldeo Singh on the chest as a result of which he fell down, but got up later. 778 Thereupon Ramdeo Singh (acquitted by the trial court) fired from his gun and the shot hit Laldeo Singh on the chest and he fell down again. After that, Ram Bilas Singh Gumasta of Dihara (acquitted by the trial court) fired a second shot ' from his gun hitting Laldeo Singh on the abdomen and killing him instantaneously. The appellant Ram Bilas Singh is further said to have fired two shots at Deva Singh hitting him on his right thigh. Appellants Ram Naresh Singh and Dinesh Singh are said to have assaulted Deva Singh with lathis as a result of which he fell down and thereafter the mob proceeded to dismantle the Dochara by demolishing its mud pillars, as a result of which its thatched roof fell down. Having achieved their object, the mob is said to have left the place, taking away along with them a palang, a bamboo cot, two quilts, one lantern and one garansa. The incident attracted it number of villagers to the spot including jagdish Singh, Bhagwat Singh (since dead) and Ajodhya Singh. After report was lodged of the incident, the police arrived on the spot, held the panchnama (inquest) on the body of Lal Deo Singh and followed the ' usual procedure. A starch was made for the seven accused persons, including the appellants, but it took some time to find them out and arrest them. Eventually, they were placed before a magistrate who committed them for trial for offences under section 148, section 302 read with section 149 and section 426, I.P.C., the appellant Ram Bilas Singh, Ramdeo Singh and Ram Bilas Singh Gumasta of Dihara were specifically charged with offences under section 302, I.P.C. for having committed the murder of Laldeo Singh. Ram Bilas Singh was further charged under section 307 of the Indian Penal Code for attempt to commit the murder of Deva Singh while Ram Naresh Singh and Dinesh Singh (appellants 2 and 3) were further charged with offences under section 323, I.P.C. for assaulting Dhunmun Singh (P. W. 4). The court of 779 Session acquitted both Ram Bilas Singh as well as Ramdeo Singh of the offence under section 302, I. P.C. and also acquitted all the seven accused persons of the offence under section 302 read with section 149, I.P.C. It, however, convicted the three appellants before us under section 304, second part, read with section 149 of the I.P.C. and under sections 147 and 426, I.P.C. but acquitted the appellants 2 and 3 of the offence under section 323, I.P.C. Briefly stated, the defence of the three appellants was that the appellant Ram Bilas Singh was in possession of the dochara, that it was Laldeo Singh and Deva Singh who threatened to dismantle the dochara and, therefore, they marched there on the date of the incident at the head of a mob consisting of 15 or 20 persons carrying with them various weapons. During the incident, Laldeo Singh and Deva Singh are said to have flourished their farsis and gandasas while some other members of their party are said to have used their lathis and spears as a result of which four persons on the side of the appellants received injuries. In the meantime, in self defence, one Ram Lakhan Singh (since deceased) fired a shot from his gun and ran away. This shot is said to have hit Laldeo Singh and also Deva Singh. After being injured in this manner, Laldeo Singh is said to have dropped down dead and then the mob dispersed. The defence of the appellants that they were in possession of the dochara and that Laldeo Singh and Deva Singh were the aggressors has been rejected by both the courts below and Mr. Sethi who appears for the appellants has not even sought to controvert the finding on that point. His contention, however, is that the appellants having been acquitted of the offence under section 302 read with section 149, 1. P. C. and appellant No. 1 having been acquitted of the offences under section 302 and section 307, I.P.C. none of them could 780 be convicted under section 326 read with section 149, I.P.C. Learned counsel points out that the clear case of the prosecution in the charge sheet was against seven named persons i.e., the three appellants before us, Ram Bilas Singh Gumasta of Dihara, Sudarshan Singh son of Ram Bilas Singh Gumasta, Ramdeo Singh and Sakal Singh sons of Raghoo Singh and contends that out of these, four persons having been acquitted, the remaining three persons could not be said to have been members of an unlawful assembly and, therefore, they could neither e convicted under section 147 I.P.C. nor could they be convicted of any other offences with the aid of section 149, I. P.C. All that it was competent for the court to do was to convict each of them for their individual acts and no more. Learned counsel further contends that without setting aside the acquittal of the four alleged associates of the appellants, there could be no finding to the effect that there was an unlawful assembly of which the appellants were members and were, therefore, liable for the acts of other members thereof. Further, it was urged by learned counsel that an accused person cannot be held liable vicariously for the act of an acquitted person and, therefore, even assuming that the fatal injuries were caused to Laldeo Singh by one of the four acquitted persons, it was not open to the High Court to hold any of the appellants liable for that act with the aid of section 149, I.P.C. Learned counsel relied upon a passage in the judgment of Agarwala J., in Harchanda vs Rex which reads thus : "Now in a criminal case the burden of proof is always on the prosecution. It is for the prosecution to establish the responsibility of the accused for the crime alleged. Having regard to the fact that there is no appeal against the acquittal of the other five accused before us, and having regard to the fact that we cannot (1)I.L.R. (1951) 2 All. 62, 73. 781 interfere with the finding of the learned Sessions judge, so far as it concerns those accused, we cannot hold that either Durga Das or Sukhbir was responsible for inflicting the incised wounds: and since it was not the prosecution case that there was some unknown person along with the accused, who was also holding a sharp edged weapon, we cannot ascribe the infliction of the incised wounds to some such unknown person. The result of the prosecution evidence, taken with the findings of the learned Sessions judge, is that the prosecution is unable to explain the infliction of the incised wounds. in my opinion in such a case the accused cannot be held constructively liable for the infliction of those wounds. " There is no doubt that the High Court has observed in its judgment under appeal that Laldeo Singh was killed as a result of one of the shots fired at him by Ram Bilas Singh Gumasta who was acquitted by the court of Session. We may quote the observations made by it in this regard. They are "It seems, as I shall show hereafter, the trial court was greatly prepossessed in favour of Ram Bilas Singh of Dihara, and therefore it ruled out without disbelieving the evidence, the possibility of Laldeo Singh having been killed by the third shot fired by Rambilas Singh of Dihara. It is admitted that the two Rambilas Singh and Ramdeo Singh have each held a licensed gun empty cartridge. .These guns and the which had been found by P W. 21 at the place of occurrence were examined by the Fire Arms Expert The trial court has explained away this very strong piece of evidence of unimpeachable character, supporting the version of the witnesses 782 that Rambilas Singh of Dihara had fired one shot from his gun, on a very flimsy ground. " Then the High Court observed that the evidence of the ballistic expert was disregarded by the Court of Session on flimsy grounds. The point, however, is that the High Court has come to the conclusion that the shot which resulted in the death of Laldeo Singh was fired by an acquitted person. If the view taken by the Allahabad High Court is correct then it would follow that it was not open to the High Court before which the acquittal of Rambilas Singh Gumasta was not challenged., to reassess the evidence with regard to him and hold that it was he who had caused the death of Laldeo Singh. We will deal with the decision of the Allahabad High Court presently, but we must refer to certain decisions of this court to which reference was made during arguments. In Topandas vs The State of Bombay (1), this court has held 'that where four named individuals were charged with having committed an offence of criminal conspiracy under section 120 B, I.P.C. and three out of those four were acquitted of that charge, the fourth accused could not be held guilty of the offence of criminal conspiracy. In support of this view, this court ha , relied upon a passage in Archbald 's Criminal Pleading, Evidence and Practice (33rd edn.p. 201, paragraph 361) which reads thus "Where several prisoners are included in the same indictment, the jury may find one guilty and acquit the others, and vice versa. But if several are indicated for a riot, and the jury acquit all but two, they must acquit those two also, unless it is charged in the indictment and proved, that they committed the riot together with some other person not tried upon that (1) [1955]2 S.C.R. 881. 783 indictment. 2 Hawk c. 47 section 8. And, if upon an indictment for a conspiracy, the jury acquit all the prisoners but one, they must acquit that one also, unless it is charged in the indictment, and proved, that he conspired with some other person not tried upon that indictment. " This court has also quoted with approval a passage from the judgment in R. vs Plummer (1), which is one of the decisions on which the above 'passage is founded. In Bharwad Mepa Dana vs State of Bombay (2), this court had to consider the correctness of the conviction of three persons under section 302 read with section 149 I.P.C. when one other person who had been convicted by the Sessions judge of a similar offence had been acquitted by the High Court. It may be mentioned that originally twelve persons were named in the charge and it was alleged that they had formed an unlawful assembly with the common object of murdering certain persons. Seven of them were acquitted by the Sessions judge and only five were convicted under section 302 read with section 149, I.P.C. The High Court, while acquitting one of the five persons, convicted by the Sessions Judge, held that there were ten to thirteen persons in the unlawful assembly though the identity of all the persons except four had not been established, that all these persons had the common object and the common intention of killing the victims and that the killing was done in prosecution of the common object of the unlawful assembly and in ' furtherance of the common intention of all. Upon these facts, this court held that the appellants before it were rightly convicted under section 302 read with section 149, I.P.C., and that there was nothing in law which prevented the High Court from finding that the unlawful assembly consisted of the four convicted persons and some unidentified persons, who, (1) (2) ; , 181. 784 together numbered more than five. This court further observed : embark on a discussion as to the legal effect of the acquittal of nine of the accused persons, except to state that we may proceed on the footing that the acquittal was good for all purposes and none of those nine persons can now be held to have participated in the crime so that the remaining four persons may I be held guilty under section 149 Indian Penal Code. " It is on the above observations that reliance has been placed by Mr. Sethi. He contends that the High Court was wrong in observing that Laldeo Singh was killed as a result of a shot fired at him by Ram Bilas Singh Gumasta and that he has escaped the charge. of murder as he was acquitted by the Sessions judge. Then, there is the decision of this court in Kartar Singh vs State of Punjab (1), where this court has held that if the trial court can legally find that the actual number of members in the assailants party was more than five, that party will in law constitute an unlawful assembly even though ultimately three of the accused persons are convicted. It has further held that 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 have taken part in the incident is less than five, it cannot be held that they formed an unlawful assembly. Then this court observed "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 (1) ; 399. 785 the accused could have committed mistakes in recognising them." In support of the above conclusion, reliance was placed by this court upon the decision of this court in Dalip Singh vs State of Punjab (1). In Sunder Singh vs State of Punjab (2) , also this court has considered the effect of the acquittal of some persons of the offence under section 302 read with section 149, I.P.C. on the conviction of the remaining persons who numbered less than five. In dealing with this matter it has observed : Cases sometimes arise where persons are charged with being members of an unlawful assembly and other charges are framed against them in respect of offence committed by such an unlawful assembly. In such cases; if the names of persons constituting the unlawful assembly are specifically and clearly recited in the charge and it is not suggested that any other persons known or unknown also were members of the unlawful assembly, it may be that if one or more persons specifically charged, are acquitted, that may introduce a serious infirmity in the charge in respect of the others against whom the prosecution case may be proved. It is in this class of cases, for instance, that the principle laid down in the case of Plummer may have some relevance. If out of the six persons charged under section 149 of the Indian Penal Code along with other offences, two persons are acquitted, the remaining four may not be convicted because the essential requirement of an unlawful assembly might be lacking. " Upon the facts of the case before it, this court held that the principle set out in Plummer 's case (3), (1) ; (2) [1962] Supp. 2 S.C.R. 654. 663. (3) 786 and which has been accepted by this court in Topan Das 's case (1), did not apply to the case before it. This court then proceeded to consider the powers of the court of appeal under section 423 (1) (a) of the Criminal Procedure Code and observed that if in dealing with a case before it, it became necessary for the High Court to deal indirectly or incidentally with the case against the acquitted accused, it could well do so and there is no legal bar to such a course. Upon the view we are taking it is unnecessary to express any opinion as to whether the interpretation placed in this case upon the ambit of the powers under section 423, Cr. P. C. is consistent with the principle in Plummer 's case (2). Finally, there is the decision of this court in Mohan Singh vs The State of Punjab (3), where a similar question arose for consideration. There, this court, after pointing out that where five or more persons are shown to have formed an unlawful assembly, the mere fact that less than that number are actually tried for the offence committed by the assembly and convicted of that offence would not necessarily render their conviction illegal, because other persons may not have been available for trial or may not be properly identified or for some other reason. This court has observed : ". . . In such cases, if both the charge and the evidence are confined to the persons named in the charge and out of the persons so named two or more are acquitted leaving before the court less than five persons to be tried, then section 149 cannot be invoked. Even in such cases. it is possible that though the charge names five or more persons as composing an unlawful assembly, evidence may nevertheless show that the unlawful assembly consisted of some other persons as well who were not identified and so not named. In such cases, either the trial court (1) (2) [1902] 2 K.B. 339. (3) [1962] supp. 3 S.C.R. 848, 858. 787 or even the High Court in appeal may be able to come to the conclusion that the acquittal of some of the persons named in the charge and tried will not necessarily displace the charge under section 149 because along with the two or three persons convicted were others who com posed the unlawful assembly but who have not been identified and so have not been named. In such cases, the acquittal of one or more persons named in the charge does not affect the validity of the charge under section 149 because on the evidence the court of fact is able to reach the conclusion that the persons composing the unlawful assembly nevertheless were five or more than five. " The decisions of this court quoted above thus make it clear that where the prosecution case as set out in the charge and as supported by the evidence is to the effect that the alleged unlawful assembly consists of five or more named persons and no others, and there is no question of any participation by other persons not identified or identifiable it is not open to the court to hold that there was an unlawful assembly unless it comes to the definite conclusion that five or more of the named persons were members thereof. Where, however, the case of the prosecution and the evidence adduced indicates that a number in excess of five persons participated in the incident and some of them could not be identified, it would be open to the court to convict less than five of the offence of being members of the unlawful assembly or convict them of the offence committed by the unlawful assembly with the aid of s; 149, 1. P. C. provided, it comes to the conclusion that five or more persons participated in the incident. Again, it is clear from these decisions that when a person has been acquitted of an offence, his acquittal will be good for all purposes when the incident in connection with which he was implicated comes up for consideration before 788 the High Court in appeal by a person or persons who were tried along with him and convicted of some offence with the aid of section 149, I. P. C. Sunder Singh 's case (1), has carved out an exception to this rule to the effect that the High Court can, under section 423, Cr. P. C. consider incidentally the question whether the acquitted person was a member of the unlawful assembly for the purpose of determining the case of the appellants before it. As already pointed out it is not necessary in this case to say whether such an exception can be recognised consistently with the principle in Plummer 's case (2) which has so far been uniformly accepted by this court. We have had occasion to consider recently in Krishna Govind Patil vs The State of Maharashtra (3), the effect of the acquittal of person . who were tried along with the persons convicted of an offence under section 302 read with section 3 t. One of us (Subba Rao. J.) speaking for the court, has observed "It is well settled that common intention within the meaning of the section implied a pre arranged plan and the criminal act was done pursuant to the pre arranged plan. The said plan may also develop on the spot during the course of the commission of the offence; but the crucial circumstance is that the said plan must precede the act constituting the offence. If that be so, before a court can convict a person under section 302, read with section 34 of the Indian Penal Code, it should come to a definite conclusion that the said person had a prior concert with one or more other persons, named or unnamed, ' for committing the said offence. A few illustrations will bring out the impact of s.34 on different situations. (i) A, B, C and D are charged under section 302, read with section 34 of the Indian Penal Code, (1) [1962] Supp. 2 S.C.R. 654, 663. (2)[1902] 2 K B. 339. (3 [1964] Vol. 1 S.C.R. 678. 789 for committing the murder of E. The evidence is directed to establish that the said four persons have taken part in the murder. (2) A, B, C and D and unnamed others arc charged under the said sections. But evidence is adduced to prove that the said persons, along with others, named or unnamed, participated jointly in the commission of that offence. (3) A, B, C and D are charged under the said sections. But the evidence is directed to prove that A, B, C and D, along with 3 others, have jointly committed the offence. As regards the third illustration a Court is certainly entitled to come to the conclusion that one of the named accused is guilty of murder under section 302, read with section 34 of the Indian Penal Code, though the other three named accused are acquitted, if it accepts the evidence that the said accused acted in concert along with persons, named or unnamed, other than those acquitted, in the commission of the offence. In the second illustration, the Court can come to the same conclusion and convict one of the named accused if it is satisfied that no prejudice has been caused to the accused by the defect in the charge. But in the first illustration the Court certainly can convict two or more of the named accused if it accepts the evidence that they acted conjointly in committing the offence. But what is the position if the Court acquits 3 of the 4 accused either because it rejects the prosecution evidence or because it gives the benefit of doubt to the said accused? Can it hold, in the absence of a charge as well as evidence, that though the three accused are acquitted, some other unidentified persons acted 790 conjointly along with one of the named per sons? If the Court could do so, it would be making out a new case for the prosecution : it would be deciding contrary to the evidence adduced in the case. A Court cannot obviously make out a case for the prosecution which is not disclosed either in the charge or in regard to which there is no basis in the evidence. There must be some foundation in the evidence that persons other than those named have taken part in the commission of the offence and if there is such a basis the case will be covered by the third illustration. " What has been held in this case would apply also to a case where a person is convicted with the aid of section 149, Indian Penal Code instead of section 34. Thus all the decisions of this court to which we have referred make it clear that it is competent to a court to come to the conclusion that there was an unlawful assembly of five or more persons, even if less than that number have been convicted by it if (a) the charge states that apart from the persons named, several other unidentified persons were also members of the unlawful assembly whose common object was to commit an unlawful act and evidence led to prove this is accepted by the court; (b) or that the first information report and the evidence shows such to be the case even though the charge does not state so, (c) or that though the charge and the prosecution wit nesses named only the acquitted and the convicted accused persons there is other evidence which discloses the existence of named or other persons provided, in cases (b) and (c), no prejudice has resulted to the convicted person by reason of the omission to mention in the charge that the other unnamed persons had. also participated in the offence. Now, coming to the Allahabad High Court decision relied upon, it is sufficient to say that the 791 observations made therein which have been quoted earlier appear to be in consonance with the principle in Plummer 's case (1), and thus affords support to the argument of learned counsel. Applying the law as set out above, we must find out whether what the High Court has done in this case is right. In the first place, though it was vaguely stated by some of the witnesses examined in the case that 40 or 50 persons took part in the incident including the 7 persons mentioned in the first information report and the charge sheet, the prosecution case throughout has been that only seven named persons took part in the incident. Even the first information report of Deva Singh (P. W. 2), one of the injured persons, mentions only the seven persons who were placed for trial and no other. There is no suggestion therein that any other persons took part in the incident. The Court of Session, however, without discussing the point and without finding as to how many persons were members thereof, has come to the conclusion that there was an unlawful assembly, the common object of which was to dis mantle the Dochara and assault Laldeo Singh and Deva Singh. The High Court has proceeded more or less on the assumption that there was an unlawful assembly, only some members of which were put up for trial, four of whom were acquitted and three convicted. It was necessary for the High Court to consider whether the statements of some of the witnesses that the unlawful assembly consisted of many more than seven persons are true or whether they should be rejected in view of the fact that the first information report shows that only seven persons who were named therein, committed the offence. It had also to consider the further question of prejudice by reason of the defect in the charge. Upon the law as stated by this court in Mohan Singh 's case (2) and in other cases it would have been competent to the High Court to look into the entire evidence in (1) (2) [1962] Supp. 3 S.C.R. 848, 858. 792 the case, oral and documentary, and consider whether there was an unlawful assembly or not. But it has not done so. Had the High Court, come to a reasoned conclusion that there was an unlawful assembly consisting of more than five persons, including the appellants and some other persons who were unidentified and convicted the appellants under section 147 and, with the aid of section 149, also of some other offence committed by a member or members of the unlawful assembly other than the acquitted persons the matter would have stood on a different footing. But it has not done so. It is clear from its judgment that the High Court was not satis fied by the manner in which the case had been dealt with by the Court of Session; but then, it should not have stopped there. Instead, it should have fully examined the evidence and come to a definite conclusion as to whether there was an unlawful assembly or not hadstated its reasons for coming to such a conclusion. It should then have ascertained the particularacts committed by any member or members of that assembly in furtherance of the common object as also the question whether any of the appellants had participated in the incident. In the light of its findings on these matters the High Court should then have proceeded to consider whether all or any of the appellants could be held liable vicariously for all or any of the acts found to have been committed by the unlawful assembly or any member or members thereof other than those alleged to have been committed by persons whose acquittal has become final. It is a matter of regret that the High Court has failed to determine questions which it was essential for it to determine. We, therefore, set aside that judgment and send back the case to the High Court for deciding it afresh. Appeal allowed. Case remanded.

IN-Abs

The facts alleged by the prosecution were these The first appellant brought with him in a truck to the scene of the occurrence a mob of 40 to 50 persons including the other two appellants and four other persons who were acquitted by the trial court. The first appellant fired a shot from the gun which he was carrying which hit Laldeo Singh on the chest as a result of which he fell down. Thereupon none of the acquitted persons fired from his gun and the shot hit Laldeo Singh again. Thereupon another of the acquitted persons fired a shot at Laldeo Singh which. killed him instantaneously. The first appellant fired two shots at one Deva Singh who was hit on his thigh. The other two appellants assaulted Deva Singh with lathis of the seven persons charged, four were acquitted. The appellants were convicted under section 304 Part II read with section 149 of the Indian Penal Code by the trial court. On appeal the High Court altered their conviction into one under section 326 read with section 149 of the Indian Penal Code but maintained the convictions under section 147 and section 426 of the Indian Penal Code. It was contended before the Supreme Court that as there was no appeal before the High Court against the acquittal of the four acquitted persons who were alleged to have constituted the unlawful assembly along with the appellants there could be no finding that there was an unlawful assembly of which appellants were members and therefore, were liable, for the acts of other members 776 thereof and that an accused person cannot be held liable vicariously for the act of an acquitted person. Held, that even assuming that the fatal in juries were caused to Laldeo Singh by one of the four acquitted persons, it was not open to the High Court to hold any of the appellants liable for that act by resort to section 149 of the Indian Penal Code. Held, further that the legal position deducible from the authorities was (i) that it is competent to a court to come to the conclusion that there was an unlawful assembly of five or more persons, and actually convict less than that number for the offence if (a) the charge states that apart from the persons named, several other unidentified persons were also members of the unlawful assembly whose common object was to commit an unlawful act and the evidence led to prove this is accepted by the court ; (b) or that the first information report and the evidence shows such to be the case even though the charge does not state so ; (c) or that though the charge and the prosecution witnesses named only the acquitted and the convicted accused persons there is other evidence which discloses the existence of named or other persons provided that in cases (b) and (c) no prejudice has resulted to the convicted person by reason of the omission to mention in the charge that the other unnamed persons had also participated in the offence. Harchandra vs Rex. I.L.R. (1951) 2 All. 62, approved. To pandas vs State of Bombay, , R. vs Plummer, , Bharwad Mepa Dana vs State of Bombay, ; , Kartar Singh vs State of Punjab, ; , Dalip Singh vs State of Punjab, ; , Sunder Singh vs State of Punjab [1962] Supp. 2 S.C.R 634, Mohan Singh vs State of Punjab, [1962] Supp. 3 S.C.R. 848, and Krishna Govind Patil vs State of Maharashtra, [1964) Vol. 1 S.C.R. 678, referred to. Held, also that the High Court had failed to determine material questions necessary for property deciding the case, namely that it had not fully examined the evidence to come, to a definite conclusion as to whether there was an unlawful assembly or not consisting of persons other than the acquitted persons and that the High Court had also failed to ascertain the particular act committed by any member or members of that assembly in furtherance of the common object as also whether any of the appellants had participated in, the said incident.

Appeal No. 65 of 1953. Appeal by special leave granted by the Supreme Court on 13th March, 1953, from the Judgment and Order dated the 30th July, 1951,. of the Custodian General of Evacuee Property in No. 31 A/Judi./50. Petition No. 247 of 1952, a petition under Article 32 of the Constitution for enforcement of fundamental rights, and Petition for Special Leave to Appeal No. 106 of 1952 were also beard along with Civil Appeal No. 66 of 1953. 692 K.T. Desai for the appellants and petitioners. C.K. Daphtary, Solicitor General for India (Porus A.Mehta with him) for the respondent in Petition No. 247. 1953. April 10, The Judgment of the Court was delivered by GHULAM HASAN J. In order to understand and appreciate the point arising for consideration in this case, it will be necessary to set out a few preliminary facts : One Aboobaker Abdul Rehman, a resident of Bombay, received on December 16, 1949, from the Additional Custodian, Bombay, a notice under section 7 of Ordinance No. XXVII of 1949 calling upon him to show cause why his interest in certain specific property should not be declared to be evacuee property. A further notice issued on January 11, 1950, required him to show cause why he should not be declared an evacuee and all his properties declared to be evacuee properties. On February 8, 1950, the Additional Custodian decided that Aboobaker was not an evacuee, but at the same time issued a fresh notice to him under section 19, requiring him to show cause why he should not be declared an "intending evacuee" and on the following day, February 9, he declared Aboobaker as an "intending evacuee" upon the same evidence. Aboobaker does, not appear to have contested this order, but one Tek Chand Dolwani, first informant, carried the matter in appeal to the Custodian General, praying that Aboobaker be declared an evacuee and that the Imperial Cinema, one of his properties, be allotted to him. The Ordinance expired on October 18, 1949, and was replaced by Act XXXI of 1950 (The ) which came into operation on April 17, 1950. It is not denied that although the Ordinance was repealed by section 58, the proceedings taken in the exercise of any powers conferred by the Ordinance shall be deemed to have 693 been taken in the exercise of the powers conferred by the Act as if the Act were in force on the day the proceedings were taken. The appeal was heard on May 13, 1950, when the preliminary objections in regard to the maintainability of the appeal were argued and the appeal was adjourned to May 15 for orders. On May 14, Aboobaker died leaving him surviving three son and 9 daughter as his heirs under the Mohammedan law, the sons taking 2/7th share each and the daughter 1/7th. On May 15, the Custodian General pronounced the order which was, however,, dated May 13. By this order he dismissed the preliminary objections and directed that further enquiries should be made and that Aboobaker be examined further on August 19, 1950. The hearing of the appeal was adjourned from time to time and was fixed for final disposal on March 7, 1951. Notice of this hearing was issued to Ebrahim Aboobaker (son) and Hawabai Aboobaker (daughter) who owned between themselves 3/7th share to appear as the heirs and legal representatives of the deceased. The petitioners, who are residents of India their two brothers are said to have migrated to Pakistan filed on February 26, 1951, Miscellaneous Petition No. 15 of 1951, in the Punjab High Court for a writ of prohibition or for directions or order directing the Custodian General to forbear from proceeding with the hearing of the appeal or making any order in the said appeal or from declaring the properties left by the deceased as evacuee properties. The petitioners contended inter alia that after the death of Aboobaker the Custodian General had no jurisdiction to proceed with the appeal. The petition was dismissed on May 24, 1951, the High Court holding that the Custodian General had jurisdiction. Leave to appeal was granted but the High Court did not stay the hearing of the appeal by the Custodian General which was fixed for July 3, 1951, and directed that the Custodian General should not pass final orders until July 23, 1951. On ,July 3, the Custodian General heard the appeal and 90 694 on July 30 which was the date fixed for final orders he declared Aboobaker to be &a evacuee and his properties to be evacuee properties. On August 6, 1951, the petitioners filed a petition (Miscellaneous Petition No. 191 of 1951) under article 226 of the Constitution in the Bombay High Court against the Custodian General and the Custodian, Bombay, for a writ of certiorari for quashing and setting aside the said order and for an order directing the Custodian General and the local Custodian from acting upon the order or from taking possession of the property which was situate in Bombay. The petition was dismissed by Shah J. on October 4, 1951, on the ground that the Bombay High Court had no jurisdiction against the Custodian General and that the petition against the local Custodian was premature. Appeal No. 88 of 1951 was filed on October 5, 1951 against the said order to the Bombay High Court. An interim order was passed whereby the petitioners undertook to keep accounts and not to dispose of the properties while the Custodian General gave an undertaking not to take possession pending the hearing of the appeal. The appeal came up for hearing on November 20, 1951, before the Chief Justice and Gajendragadkar J. but it was allowed to stand over with a view to await the decision of this Court in appeal against the order of the Punjab High Court as they did not wish to pass any order which might conflict with the decision of this court. That appeal was dismissed by this Court on May 26, 1952. See Ebrahim Aboobaker and Another vs Custodian General of Evacuee Property(1). This Court decided only the preliminary point that Tek Chand Dolwani was entitled to prefer an appeal but left the question about the jurisdiction of the Custodian General to declare the properties of Aboobaker as evacuee properties after his death open as that question was not raised before it, the order of the 30th July, 1951, having been passed after the filing of the appeal in the Supreme Court and also because that question (1) ; 695 was pending determination in the appeal before the Bombay High Court. Appeal No. 88 of 1951 was dismissed on 1st/2nd July, 1952, by the Chief Justice and Gajendragadkar J. on the preliminary ground that they had no jurisdiction to quash the order of the Custodian General passed on 30th July,1951. They declined to pass any order against the local Custodian observing that they could not do indirectly what could not be done directly. A petition for leave to appeal was also rejected by the High Court on the 14th July, 1952. Petition No. 105 of 1952 is for special leave to appeal against the order of the Custodian General dated July 30, 1951. Petition No. 106 of 1952 is against the order of the Appellate Bench of the Bombay High Court dated 1st/2nd July, 1952. Petition No. 247 of 1952 is an independent petition under article 32 of the Constitution, challenging the order of the Custodian General dated July 30, 1951, as being in violation of the fundamental rights of the petitioners and being without jurisdiction. Tek Chand Dolwani has filed a caveat against the Petition No. 105 of 1952, while the petition under article 32 has been heard upon notice to the Custodian General. In this petition it is submitted that on a true construction of the relevant provisions of the Ordinance and the , the Custodian General had no jurisdiction to hear the appeal after the death of Aboobaker, or to make any order declaring the properties left by him to be evacuee properties as the appeal abated on his death and the properties vested in specific shares in his heirs under the Mohammedan law. It was urged that as the said properties did not fall within the definition of evacuee property on the 30th July, 1951, or at any time after the death of Aboobaker, the Custodian General had no jurisdiction to declare the properties to be evacuee properties. As a matter of fact, the deceased had no right, title or interest in the said properties after his death; nor were the said properties acquired by his heirs by any mode of transfer 696 from the deceased. The order of the 30th July, 1951, is challenged as being void and inoperative as it violates the fundamental rights of the petitioners under articles 19(1) (f) and 31 (1) of the Constitution. The petitioners pray for the issue of a writ of certiorari against the Custodian General calling for the records of the case relating to the above order and after looking into the same and going into the question of the legality thereof quash and set aside the same. They also ask for a writ of prohibition or mandamus or directions or an order or a writ directing the Custodian General, his servants and agents to for bear from acting upon or enforcing the order dated the 30th July, 1951, or from taking any steps or proceedings in enforcement of the same. We heard the petitioners and the Solicitor General on the petition under article 32 and reserved orders till we had beard Dolwani who was the caveator in the application for special leave to Appeal. Dolwani,was served with a notice personally and through his agent but neither put in appearance. We granted the application for leave to appeal against the order of the Custodian General and directed the appeal to be posted for hearing along with the application under article 32. Dolwani again did not appear and we ' proceed, therefore, to dispose of the appeal and the petition by a common judgment. The crucial question which arises for consideration before us is whether a person can be declared an evacuee after his death and whether the properties which upon his death vest in his heirs under the Mohammedan law can be declared evacuee properties. Before we proceed to determine that question we must notice the objection raised by the Solicitor General about the maintainability of the petition under article 32 of the Constitution. He contends that there is no question of any infraction of fundamental right in the present case as the petitioners have not been deprived of any property without the authority of law. The Custodian General, it is said, undoubtedly purported to act under an express statutory enactment. He might have misapplied or 697 misappreciated the law or committed an error in the assumption or exercise of jurisdiction, but that would not bring the case within the purview of article 31 (1 read with article 19(1) (f) of the Constitution. The point is debatable and we do not desire to express any opinion upon this point as we propose to examine the validity of the order of the Custodian General dated July 30, 1951, in the appeal (Civil Appeal No. 65 of 1953) which arose out of Petition No. 105 of 1952 for special leave and not on the petition under article 32. Section 2 (d) and (f) define "evacuee" and " 'evacuee property" respectively as follows: (d) "Evacuee " means any person (i) who, on account of the setting up of the Dominions of India and Pakistan or on account of civil disturbances or the fear of such disturbances, leaves or has ' on or after the 1st day of March, 1947, left, any place in a State for any place outside the territories now forming part of India,or (ii) who is resident in any place now forming part of Pakistan and who for that reason is unable to occupy, supervise or manage in person his property in any part of the territories to which this Act extends, or whose property in any part of the said territories has ceased to be occupied, supervised or managed by any person or is being. occupied, supervised or managed by an unauthorised person, or (iii) who has, after the 14th day of August, 1947, obtained, otherwise than by way of purchase or exchange, any right to, interest in or benefit from any property which is treated as evacuee or abandoned property under any law for the time being in force in Pakistan ; (f) " Evacuee property " means any property in which an evacuee has any right or interest (whether personally or as a, trustee or as a beneficiary or in any other capacity), and includes any property (1) which has been obtained by any person from an evacuee after the 14th day of August, 1947, by 698 any mode of transfer, unless such transfer has been confirmed by the Custodian. The use of the present tense "leaves" or "has left" in the definition of evacuee and " has " in the definition of evacuee property is relied upon in support of the contention that the object of the legislature in enacting these provisions was to confine their operation to a living person only. This line of argument may not per se be of any compelling force but it receives support from the rest of the provisions of the Act to which reference will be made hereafter. It may, however, be pointed out here that clause (f) (1) will not apply to the case of the petitioners for they do not claim the property from the evacuee after the 14th day of August, 1947, by any mode of transfer but by right of succession under the Mohammedan law. Succession to property implies devolution by operation of law and cannot appropriately be described as mode of transfer, as contended for by the Solicitor General, which obviously contemplates a transfer inter vivos. Section 7 refers to the notification of the evacuee property. It lays down that "where the Custodian a of opinion that any property is evacuee property within the meaning of this Act, he may, after causing notice there of to be given in such manner as may be prescribed to the persons interested, and after holding such inquiry into ' the matter as the circumstances f the case permit, pass an order declaring any such property to be evacuee property. " Rule 6, which is framed in exercise of the powers conferred by section 56 of the Act, lays down the manner of inquiry under section 7 and is as follows:" `` (1) Where the Custodian is satisfied from information in his possession or otherwise that any property or an interest therein is prima facie evacuee property, he shall cause a notice to be served, in Form No. 1, on the person claiming title to such property or interest and on any other person or persons whom he considers to be interested in the property. 699 (2) The notice shall,as far as practicable,mention the grounds on which the property is sought to be declared evacuee property and shall specify the provision of the Act under which the person claiming any title to, or interest in, such property is alleged to be an evacuee. (3) The notice shall be served personally, but if that is not practicable the service may be effected in any manner provided in rule 28. (This rule refers to a mode of substituted service). (4) Where a notice has been duty served, and the party called upon to show cause why the, property should not be declared an evacuee property, fails to appear on the date fixed for hearing, the Custodian may proceed to hear the matter ex parte and pass such order on the material before him as he deems fit. (5) Where such party appears and contests the notice he shall forthwith file a written statement verified in the same manner as a pleading under the Code of Civil Procedure, 1908, stating the reasons why he should not be deemed to be an evacuee and why the property or his interest therein should not be declared as evacuee property. Any person or persons claiming to be interested in the enquiry or in the property being declared as evacuee property, may file a reply to such written statement. The Custodian shall then, either on the same day or on any subsequent day to which the hearing may be adjourned, proceed to hear the evidence, if any, which the party appearing to show cause may produce and also evidence which the party claiming to be interested as mentioned above may adduce. (6) After the whole evidence has been duly recorded in a summary manner, the Custodian shall proceed to pronounce his order. The order shall state the points for determination, and the findings thereon with brief reasons. " Form No. 1 in Appendix A to the rules is as follows; . 700 "WHEREAS there is credible information in possession of the Custodian that you are an evacuee under clause (iii) of section 2(d) of the on account of the grounds mentioned below: AND WHEREAS it is desirable to hear you in person ; Now, therefore, you are hereby called upon to show cause (with all material evidence on which you wish to rely) why orders should not be passed declaring you an evacuee and all your property as evacuee property under the provisions of the said Act. Deputy Custodian. " Assistant The next important section is section 8 the relevant portion of which is as follows: "(1) Any property declared to be evacuee property under section 7 shall be deemed to have vested in the Custodian for the State, (a) in the case of the property of an evacuee as defined in sub clause (i) of clause (d) of section 2, from the date on which he leaves or left any place in a State for any place outside the territories now forming part of India; ' ' If we substitute in section 8 the definition of evacuee property given in section 2, the meaning of section 8 will become clearer. Any property declared to be : (i) property in which an evacuee has any right or interest, (ii) property which has been obtained by any person from an evacuee after the 14th of August, 1947, by any, mode of transfer unless that transfer has been confirmed by the Custodian under section 7, shall be deemed to have vested in the Custodian for the State : (a) in the case of the property of an evacuee as defined in sub clause (i) of clause (d) of section 2, 701 from the date on which he leaves or left any place in a State for any place outside the territories now forming part of India. " The language of the rule read with the Form given above, the notice issued to the person claiming interest in the property which, according to the information in the possession of the Custodian, is prima facie evacuee property, the manner of its service and the mode of inquiry, lead to the unmistakable conclusion that the object of section 7 was to take proceedings against a living person and to that extent the use of the present tense in the definition of "evacuee" and "evacuee property" lends corroboration to the contention raised that the proceedings are intended to be applicable to living persons only. The property which is declared to vest under (i) must be one in which an evacuee has any right or interest but the deceased has no right or interest after his death as his property vests in his heirs. Nor does (ii) apply as petitioners have not obtained the property from an evacuee by any mode of transfer. It is obvious that property must be declared to be evacuee property under section 7 before it can vest under section 8. There is no doubt that when the property does so vest the vesting takes effect retrospectively, but where the man dies before any such declaration is made, the doctrine of relation back cannot be invoked so as to affect the vesting of such property in the legal heirs by operation of law. To take a simple illustration, if a person leaves India after the 1st of March, 1947, the date given in section 2(d), and dies in Pakistan before any notice is issued to him under section 7 and before any inquiry is held in pursuance thereof, it is obvious that the heirs, who have succeeded to his property, cannot be deprived of it by conducting an inquiry into the status of the deceased and investigating his right or interest in property which has already devolved on legal heirs. Section 8 in such a case will not come into play and there can be no vesting of the property retros pectively before such property is declared as evacuee 91 702 property within the meaning of section 2(f) of the Act. Reading sections 7 and 8 together it appears that the Custodian gets dominion over the property only after the declaration is made. The declaration follows upon the inquiry made under section 7, but until the proceeding is taken under section 7, there can be no vesting of the property and consequently no right in the Custodian 'to take possession of it. Now if the alleged evacuee dies before the declaration, has the Custodian any right to take possession of the property? If he cannot take possession of the property of a living person before the declaration, by the same token he cannot take possession after the death of the alleged evacuee when the property had passed into the hands of the heirs, The enquiry under section 7 is a condition precedent to the making of a declaration under section 8 and the right of the Custodian to exercise dominion over the property does not arise until the declaration is made. There is no reason therefore why the heirs should be deprived of their property before the Custodian obtains dominion. The matter may be looked at from another point of view. Section 141 of the Civil Procedure Code which makes the procedure of the Court in regard to suits applicable in all proceedings in any Court of civil jurisdiction does not apply, as the Custodian is not a Court, though the proceedings held by him are of a quasi judicial nature. , Section 45 of the Act applies the provisions of the Code only in respect of enforcing the attendance of any person and examining him on oath and compelling the discovery and production of documents. The provisions of the Code relating to substitution are, therefore, inapplicable and there is no other provision in the Act for the heirs to be substituted in place of the deceased so as to continue proceedings against them. If the proceedings cannot be continued against the heirs upon the death of the alleged evacuee, it is logical to hold that they cannot be 703 initiated against them. We hold, therefore, that the proceedings must lapse upon the death of such person. There is no provision in the Act that after a man is de ad, his property can be declared evacuee property. If such a provision had been made, then the vesting contemplated in section 8 of the Act would have by its statutory force displaced the vesting of the property under the Mohammedan law in the heirs after death. It is a well recognised proposition of law that the estate of a deceased Mohammedan devolves on his heirs in specific shares at the moment of his death, and the devolution is neither suspended by reason of debts due from the deceased, nor is the distribution of the shares inherited postponed till the payment of the debts. It is also well understood that property vests in the heirs under the Mohammedan law, unlike the Indian Succession Act, without the intervention of an administrator. Section 40 of the Act imposes a restriction upon the right of an evacuee to transfer property after the 14th August, 1947. This section prohibits transfers inter vivos but cannot affect devolution by operation of law such as, on death According to this section where the property of a person is notified or declared to be an evacuee property, he cannot transfer that property after the 14th of August, 1947, so as to confer any right on the transferee unless it is confirmed by the Custodian. This shows that a transfer between the 1st of March and the 14th of August, 1947, is immune from the disability of being treated as evacuee property notwithstanding the fact that the transferor migrated after the 1st of March. If he made a bonafide transfer of his entire property before the 14th of August,,1947, then the property does not acquire the character of evacuee property and such a transfer does not require. confirmation by the Custodian, although all transfers after that date are held suspect. If the transfer between the two crucial dates is held valid, then on a parity of reasoning the death of the transferor before the declaration after the 14th of August should lead to the same result. 704 It was contended before us that the Act aims at fixing the nature of the property from a particular date and that the proceedings taken are against the property and not against the person. This argument is fallacious. There can be no property, evacuee or otherwise, unless there is a person who owns that property. It is the property of the owner which is declared to be evacuee property by reason of the fact that he is subject to disability on certain grounds. The definition of evacuee property in the Act begins by Baying "property in which an evacuee has any right or interest in any capacity". The Act also shows that the property cannot be notified as evacuee property unless and until the. person claiming interest in it has been given notice. Reference may also be made to section 43 as indicating that the declaration under section 8 was intended to be made during the lifetime of the alleged evacuee. This section lays down "where in pursuance of the provisions of this Act any property has vested in the Custodian neither the death of the evacuee at any time thereafter nor the fact that the evacuee who had a right or interest in that property had ceased to be an evacuee at any material time shall affect the vesting or render invalid anything done in consequence thereof." The section shows that where the property has vested in the Custodian, then the death of the evacuee or his ceasing to be an evacuee afterwards shall not affect the vesting or render invalid anything done in consequence thereof. The section seems to suggest that the vesting must take place in the lifetime of the alleged evacuee, otherwise there was no point in providing that the vesting will not be affected by the death of the evacuee or the evacuee ceasing to be so. The Solicitor General contended that section 43 embodies the principle "once an evacuee always an evacuee",, This conclusion is hardly justified on the terms of section 43 as explained above and it finds no support from the other provisions of the Act. The object and the scheme of the Act leave little doubt 705 that the Act was intended, as its title shows, to provide for the administration of evacuee property and it is common ground that this property has ultimately. to be used for compensating the refugees who had lost their, property in Pakistan. The Act contains elaborate provisions as to how the administration is to be carried out. Section 9 enables the Custodian to take possession of the evacuee property vested in him under section 8 and section 10 which defines the powers of the Custodian generally enables him to take such measures as he considers necessary or expedient for the purposes of administering, preserving and managing any evacuee property. These are mentioned in detail in sub section (2) of section 10, clause (j), which authorises the Custodian to institute, defend or continue any legal proceedings in any civil or revenue Court on behalf of the evacuee. , Section 15 imposes an obligation on him to maintain a separate account of the property of each evacuee. Section 16 empowers the Custodian to restore the evacuee property upon application to the evacuee or any person claiming to be his heir provided he produces a certificate from the Central Government that the evacuee property may be restored to him. Upon restoration the Custodian shall stand absolved of all responsibilities in respect of the property so restored, but such restoration shall not prejudice the rights, if any, in respect of the property which any other person may be entitled to enforce against the person to whom the property has been so restored. By section 62 of the Act it is open to the Central Government by notification in the Official Gazette, to exempt any person or class of persons or any property or class of property from the operation of all or any of the provisions of this Act. In pursuance of this section the Central Government issued Notification No. S.R.O. 260, dated the 3rd July, 1960, which was published in the Gazette of India, Part II, section 3, 706 dated the 15th July, 1950, page 254, in which broadly three categories of persons were exempted: (a) Any person who on or after the 1st day of March, 1947, migrated from India to Pakistan but had returned to India before the 18th day of July, 1948, and had settled therein ; (b) Any person who has left or leaves for Pakistan on a temporary visit taking with himself a "No objection to return" certificate, and has returned, or returns, to India under a valid permit issued under the Influx from Pakistan (Control) Act, 1949, for permanent return to India; and (c) Any person who has come from Pakistan to India before the 18th day of October, 1949, under 'a valid permit issued under the Influx from Pakistan (Control) Act, 1949, for permanent resettlement in India. These provisions far from suggesting that the person declared an evacuee suffers a civil death and remains an evacuee for all time show on the other hand that the person may cease to be an evacuee under certain circumstances that he is reinstated to his original position and his property restored to him subject to certain conditions and without prejudice to the rights if any in respect of the property which any other person may be entitled to enforce against him. These provisions also establish that the fact of a property being evacuee property is not a permanent attribute of such property and that it may cease to be so under given conditions. The property does not suffer from any inherent infirmity but becomes evacuee property because of the disability attaching to the owner. Once that disability ceases, the property is rid of that disability and becomes liable to be restored to the owner. Mr. Desai counsel for the petitioner referred in the course of the arguments to section 93 of the Presidency Towns Insolvency Act and section 17 ' of the Provincial Insolvency Act. According to the former "if a debtor by or against whom an insolvency petition has been presented dies, the proceedings in the 707 matter shall, unless the Court otherwise orders, be continued as if he were alive". By the latter section "if a debtor by or against whom an insolvency petition has been presented dies, 'the proceedings in the matter shall, unless the Court otherwise orders, be continued so far as may be necessary for the realisation and distribution of the property of the debtor". Though there is slight difference in the language of these two sections, the principle underlying the insolvency law seems to be that the death of the insolvent during the pendency of the application for insolvency does not cause the proceedings to abate but that they must be continued so that his property could be administered for the benefit of the creditors. There is no such provision in, the Act before us. It follows therefore that if the intention of the legislature had been to treat the person proceeded against under section 7 as alive for purposes of the proceedings even after his death, such a provision would have been incorporated into the Act. After giving our best consideration to the case we are of opinion that the order of the 30th July, 1951, passed by the Custodian General declaring Aboobaker Abdul Rehman deceased as an evacuee and the property left by him as evacuee property cannot stand and must be set aside. We accordingly allow Appeal No. 65 of 1953, arising out of Petition No. 105 of 1952 and hold that the Custodian General had no jurisdiction to pass the order of the 30th July, 1951, and set it aside. We make no order as to costs. Petition No. 106 of 1952 is not pressed and no order need be passed in respect thereto. In view of our order in Appeal No. 65 of 1953, no orders are called for in Petition No. 247 of 1952. Appeal allowed. Agent for the appellants and petitioners : Rajinder Narain. Agent for the respondent in Petioion No. 247: G. H. Rajadhyaksha.

IN-Abs

Where a Mohammedan against whom proceedings are commenced under the , for declaring him an evacuee and his properties evacuee properties dies during the pendency of the proceedings he cannot be declared an evacuee after his death, and his properties which on his death vest in his heirs under the Mohammedan law cannot be declared evacuee properties.

Appeal No. 676 of 1962. Appeal by special leave from the judgment and decree dated September 5, 1961, of the Andhra Pradesh High Court at Hyderabad in Special Appeal No. 3 of 1961. K. Bhimsankaram, A. Ranganadham Chetty,A. Vadavalli, E. Udayarathnam and A. V. Rangam, for the appellant. 37 A. V. Viswanatha Sastri and P. Thiagarajan, for respondent No. 1. K. R. Chaudhri, V. C. Prashar and Amarsingh Chaturvedi for respondent No. 2. 1963. February 12. J. This is an appeal against a judgment and order of the High Court of Andhra Pradesh confirming. an order of the Election Tribunal, Hyderabad by which the Tribunal dismissed an election petition filed by the present appellant. By that petition this appellant sought a declaration that the election of three persons, the present respondent, Seetharam Reddy, one Anandam and M. Ataur Rahman be declared void and that he, the petitioner, be declared as duly elected to the Legislative Council of the Andhra Pradesh from Telangana Graduates Constituency. In this appeal we are no longer concerned with the question of validity of elections of Mr. Anandam or Mr. M. Ataur Rahman but only with that of the respondent Seetharam Reddy. The appellant challenges the decision of the High Court mainly on the ground that in reaching its conclusion on 'the vital question of the age of Seetharam Reddy on the date of election the High Court took into consideration evidence which was not legally available for such consideration. Though a large number of objections were raised in the petition to contest the validity of Seetharam Reddy 's election, only four of them were ultimately pressed before the Election Tribunal, viz., (1) That Seetharam Reddy was disqualified to be chosen to fill a seat in the Legislative Council under article 173 (b) of the Constitution his age being 38 below 30 years on the relevant date; (2) That the election was vitiated by undue influence exercised on the voters by some Ministers of the State of Andhra Pradesh ; (3) That the secrecy of the ballot was not maintained, and (4) That the election was void on account of improper deletion of names of voters in the final list. All these objections were rejected by the Election Tribunal which accordingly dismissed the petition. On appeal, the High Court confirmed the findings of the Election Tribunal on all these points and dismissed the appeal. Faced with the position that the correctness of these findings which are all findings of facts is not open to challenge before this Court in this appeal by special leave, the appellant has raised the contention that the High Court 's decision on the question of age of Seetharam Reddy was vitiated by the error of law in that additional evidence was admitted and considered by the High Court without complying with the provisions of law. It appears that a considerable amount of oral and documentary evidence was adduced before the Tribunal on this question of Seetharam Reddy 's age. While the petitioner tried to establish that Seetharam Reddy was born. in October 1931, Seetharam Reddy tried to establish that he was born sometime in 1928. The Tribunal rejected as unworthy of credit the oral testimony adduced by either side. It also rejected most of the documentary evidence, including R 5 and R 6, R 11 and R 12. R 5 is a birth register; R 6 is an entry therein, R 11 is a certificate purporting to be issued by the Head Master of the Muslim High School, Kurnool, in respect of the age of the respondent Seetharam Reddy while R 12 is an application said to have been made at the time of his admission to this school. The 39 Tribunal 's finding was that Seetharam Reddy did not study in the Kurnool Muslim High School. The Tribunal also rejected the documentary evidence produced on behalf of the petitioner seeking to show that the respondent Seetharam Reddy was born on October 10, 1931. Ultimately, however, the Tribunal decided the issue as regards the age against the petitioner on the basis of certain documents in con nection with the proceedings before the judicial Committee of the Privy Council which showed that the respondent Seetharam Reddy was a major by the year 1356 Fasli. It appears that in that year an appeal was pending in the judicial Committee of the Privy Council which had arisen out of a suit regarding the adoption of Seetharam Reddy by one Tuisamma, and the party who contested the alleged adoption filed a petition to declare him (Seetbaram Reddy) as a major. Exhibit R 10 is that petition. After notice was served a power (wakalatnama) was filed by Seetharam Reddy as a major in the appeal. In this wakalatnama (exhibit R 3) Seetharam Reddy 's age was given as 19 years. Exhibit R 13 was the notice issued to Seetharam Reddy in those proceed ings. The Tribunal was of opinion that the genuineness of these documents, Exhibits R 3, R 10 and R 13, could not be q questioned and it was clear that the respondent was treated as a major in the proceedings before the judicial Committee from and after 1356 Fasli. That showed, according to the Tribunal, that he was not less than 30 years of age on the date of election or nomination. The High Court also came to the same conclusion on this issue as regards Seetharam Reddy 's age. In coming to this conclusion it has relied not only on the wakalatnama exhibit R 3 mentioned above but also on four other documents, viz., Exs. R 5 and R 6, which the Tribunal rejected as unreliable and 40 Exs. R 19 and R 20 which were not tendered in evidence before the Tribunal but came before the High Court as additional evidence. The appellant contends that the High Court acted without jurisdiction in admitting additional evidence. We are clearly of opinion that even if it was found that the High Court erred in taking the additional evidence that would not be a case of lack of jurisdiction but would be an error in the exercise of jurisdiction. As was pointed out however by this Court in Arjan Singh vs Kartar Singh (1). "The discretion to receive and admit additional evidence is not an arbitrary one, but is a judicial one circumscribed by the limitations specified in Order XLI, rule 27, of the Code of Civil procedure. " The question whether in the present case the High Court exercised the discretion judicially has therefore to be examined by us. Section 107 of the Code of Civil Procedure ' empowers the appellate court "to take additional evidence or to require such evidence to be taken," "subject to such conditions and limitations as may be prescribed. " Rule 27 of Or. 41 of the Code of Civil Procedure prescribes the conditions and limitations in the matter. The Rule first lays down that the parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the appellate court. It then proceeds to lay down two classes of cases where the appellate court may allow additional evidence to be produced. One class is where the Court appealed from has refused to admit evidence which ought to have been admitted. The other class is where the appellate court requires such additional evidence for itself either to enable it to pronounce judgment or for any other substantial cause. The second class of the rule requires that when additional evidence is allowed to be produced by an appellate court the Court shall record the reason for its admission. (1) ; 41 The additional evidence that was produced in this case had not been tendered in evidence before the Election Tribunal and so this case does not fall within the first class mentioned above. Obviously, therefore, the High Court allowed the. production of this evidence on its own requirement. It is contended before us on behalf of the appellant that the learned judges made the order mechanically without applying their minds to the requirements of Or. 41 r. 27 of the Code of Civil Procedure. Support for this contention is sought from the fact that the High Court did not record its reasons for the admission of the additional evidence as required by the second clause of the rule. The importance of this provision for recording of the reasons for admission of additional evidence has been emphasized in several cases (Vide., Sreemanchunder vs Gopalchunder (1) Manmohan Das vs Mutsammat Ramdei (2)) . It is very much to be desired that the courts of appeal should not overlook the provisions of cl. (2) of the Rule and should record their reasons for admitting additional evidence. We are not prepared, however, to accept the contention of the appellant that the omission to record the reason vitiates the admission of the evidence. Clearly, the object of the provision is to keep a clear record of what weighed with the appellate court in allowing the additional evidence to be produced whether this was done on the ground (i) that the court appealed from had refused to admit evidence which ought to have been admitted, or (ii) it allowed it because it required it to enable it to pronounce judgment in the appeal or (iii) it allowed this for any other substantial cause. Where a further appeal lies from the decision of the appellate court such recording of the reasons is necessary and useful also to the court of further appeal for deciding whether the discretion under the (1) [1866] 11 M.1.A. 28 (2) 42 rule has been judicially exercised by the court below. The omission to record the reason must therefore be treated as a serious defect. Even so, we are unable to persuade ourselves that this provision is mandatory. For, it does not seem reasonable to think that the legislature intended that even though in the circumstances of a particular case it could be definitely ascertained from the record why the appellate court allowed additional evidence and it is clear that the power was properly exercised within the limitation imposed by the first clause of the Rule all that should be set at naught merely because the provision in the second clause was not complied with. It may be mentioned that as early as 1885 when considering a similar provision in the corresponding section of the Code of 1882, viz., section 586, the High Court of Calcutta held that this provision for recording reasons is merely directory and not imperative vide Gopal Singh vs Jhakri Rai(1). We are aware of no case in which the correctness of this view has been doubted. It is worth noticing that when the 1908 Code was framed and Or. 41 r. 27 took the. place of the old section 568, the legislature was content to leave the provision as it was and did not think it necessary to say anything to make the requirement of recording reasons imperative. It is true that the word " 'shall" is used in R. 27 (2); but that by itself does not make it mandatory. We are therefore of opinion that the omission of the High Court to record reasons for allowing additional evidence does not vitiate such admission. Nor are we prepared to agree with the learned Counsel that this omission justifies the conclusion that the High Court acted mechanically in the matter, without applying its mind to the requirements of the Rule. The record before us shows that the hearing of the appeal before the High Court commenced on July 18, 1961 and after the (1) Cal. 43 appellant 's Counsel had concluded his arguments the respondent 's Counsel started addressing the Court. He continued his arguments on the next date, i.e., July 19. On the next date, i.e., July 20, 1961 an application was made on behalf of the respondent, Seetharam Reddy, praying that two registers of admission and withdrawals of the Government Muslim High School, Kurnool, be received and admitted as additional evidence in the appeal. (It may be stated that the petition itself bears the date, July 18, but the supporting affidavit bears the date 20 July). It was stated on affidavit that both these registers had been summoned along with the other documents by the appellant, Venkataramiah, and were actually produced before the Election Tribunal by the Head Master and further that these had been transmitted to the High Court along with the records of the case. It was stated that these documents had "an important bearing" upon the case and were "required to be looked into" to arrive at a just and correct conclusion in regard to Issue No. 1. On the following date i. e., of July 21, the appellant Venkataramiah put in his counter affidavit objecting to the respondent 's prayer and in para, 6 of this counter affidavit we find the following statement : "In the circumstances it is submitted that the provisions of Or. 41 Rule 27 C. P. C., are not complied with. It was not offered as evidence before the Tribunal. Admittedly it was available at the time of the trial and it is not the case of the petitioner that notwithstanding exercise of due diligence. , was not within his knowledge or could not be produced by him at the time when the decision was pronounced by the Tribunal. It is not in the interest ofjustice nor it is necessary to enable this Court to pronounce judgment to admit them as additional evidence. On the other 44 hand, the admission of the registers as evidence would enable the party to go behind his case stated by him in his counter affidavit before the Election Tribunal and set up altogether an inconsistent case. Hence the said Admission Registers are neither relevant nor material. " The High Court passed the order for the taking of additional evidence on the same date. How the High Court considered the matter is best shown by a passage from the judgment pronounced by the Court in the appeal. After pointing out that the Tribunal "was not prepared to place any reliance on Exhibits R 11 and R 12 and was of the opinion that the 1st respondent did not study in Government Mohammadan High School, Kurnool, and that Exhibit R 12 was concocted, if it was to be argued that it relates to the present 1st respondent," the judgment proceeds thus : "During the course of the arguments before us, it was noticed that two admission registers relating to the High School for the relevant period were in fact summoned for by the learned Counsel for the petitioner and were produced be fore the Tribunal. For some reason, which is not clear to us, these registers were not proved and marked as exhibits. These registers were sent to the High Court for hearing of the above appeal and they were placed before us. We are told that the 1st respondent also applied that these registers may be summoned for from the High School. But when he has realised that the petitioner himself has summoned for them, it was not necessary for the 1st respondent to summon for them again. Whatever it be, these registers were before the Tribunal and are before us. But as neither party could rely upon them without their being proved and exhibited, the 1st respondent filed C.M.P. No. 7115/61 under Or. 41 r.27 and section 151 C.P.C. to receive them as 45 evidence and mark the registers, as exhibits. By our order dated 21 7 1961 we permitted the 1st respondent in the appeal to prove these documents before the Election Tribunal. We also directed that the appellant is at liberty to cross examine the persons, who might be summoned to prove these documents. We also directed the Tribunal to record the evidence adduced in proof of these two registers and submit the same to the High Court for consideration in the above appeal. The Tribunal accordingly re. called R.W.8, the Head Master, Government Muslim High School, Kurnool, and also examined R.W.10, the Head Master of the same school for the years 1936 to 1945. The Register of Admissions and Withdrawals relating to the School from 7 7 1919 to 15 1 1938 is marked as exhibit R 19 and the register from 30 6 1926 to 14 2 1949 is marked as Exhibit R 20. The entries in the two registers relating to the 1st respondent are Exhibits R 21 and R 24. " In view of what the High Court has stated in this passage it is not possible to say that the High Court made the order for admission of additional evidence without applying its mind. It seems clear that the High Court thought, on a consideration of the evidence, in the light of the arguments that had been addressed already before it that it would assist them to arrive at the truth on the question of Seetharam Reddy 's age if the entries in the admission registers of the School were made available. It was vehemently urged by the learned Counsel for the appellant that there was such a volume of evidence before the High Court that it could not be seriously suggested that the Court required any additional evidence "to enable it to pronounce judgment". The requirement, it has to be remembered, was the requirement of the High Court, and it will not be right for us to examine the evidence to find out whether we would have 46 required such additional evidence to enable ""us" to pronounce judgment. Apart from this, it is well to remember that the appellate court has the power to allow additional evidence not only if it requires such evidence "to enable it to pronounce judgment" but also for " 'any other substantial cause. " There may well be cases where even though the court finds that it is able to pronounce judgment on the state of the record as it is, and so, it cannot strictly say that it requires additional evidence " 'to enable it to pronounce judgment," it still considers that in the interest of justice something which remains obscure should be filled up so that it can pronounce its judgment in a more satisfactory manner. Such a case will be one for allowing additional evidence "for any other substantial cause" under R 27(1) (b) of the Code. It is easy to see that such requirement of the 'Court to enable it to pronounce judgement or for any other substantial cause is not likely to arise ordinarily unless some inherent lacuna or defect become apparent on an examination of the evidence. That is why in Parsotim 's case (1), the Privy Council while discussing whether additional evidence can be admitted observed: "It may be required to enable the Court to pronounce judgment, or for any other substantial cause, but in either case it must be the Court that requires it. This is the plain grammatical reading of the sub clause. The legitimate occasion for the exercise of this discretion is not whenever before the appeal is heard a party applies to adduce fresh evidence, but "when on examining the evidence as it stands,. some inherent lacuna or defect becomes apparent. " As the Privy Council proceeded to point out: "It may well be that the defect may be pointed out by a party, or that a party, may (1) (1931) L.R. 58 I.A. 254. 47 move the Court to supply the defect, but the requirement must be the requirement of the Court upon its appreciation of the evidence as it stands. " We are satisfied that in the present case the High Court allowed additional evidence to be admitted as it required such evidence either to enable it to pronounce judgment or for any other substantial cause within the meaning of Rule 27(1)(b) of Or. 41 of the Code. The contention that the decision of the High Court on the question of the respondent 's age was vitiated by reason of it being based on inadmissible evidence, must therefore fail. Another difficulty in the appellant 's way may also be mentioned. As has been said above, the appellant did file before the High Court a petition objecting to the reception of additional evidence. We find it stated however in the High Court 's order refusing the application for a certificate under Art . 133 (1)(c) of the Constitution that no objection that the requirements of Or. 41 r. 27. C.P.C., were not satisfied, was raised either at the time when the court directed the Tribunal to record the statements or at the time of the hearing of the appeal. This order was passed by the learned Chief justice and Mr. justice Chandrasekhara Sastry, who had made the order allowing admission of additional evidence and also heard the appeal. We are bound to hold therefore that though the appellant did make an application objecting to the admission of additional evidence he did not press that application. On the principle laid down in Jagarnath Pershad vs Hanumam Pershad (1), that when additional evidence was taken with the assent of both sides or without objection at the time it was taken, it is not open to a party to complain of it later on, the appellant cannot now be heard to say that the (1) (1909) L.R. 36 I.A. 221. 48 additional evidence was taken in this case in breach of the provisions of law. There is nothing therefore that would justify us in interfering with the findings of facts on which the High Court based its decision. The appeal is accordingly dismissed with costs. Appeal dismissed.

IN-Abs

The appellant challenged the validity of election of respondent on the grounds that he was below 30 years on the relevant date, that his election was vitiated by undue influence exercised on the voters by some Ministers of the State, that the secrecy of ballot was not maintained and that the election was void on account of improper deletion of names of voters from the final list. All the objections were rejected by the Election Tribunal which dismissed the election petition. On appeal, the High Court confirmed the findings of the Election Tribunal and dismissed the appeal. The appellant came to this Court by special leave. The appellant challenged the decision of the High Court mainly on the ground that in reaching its conclusion on the question of age of the respondent on the date of election, the High Court took into consideration evidence which was not legally available for consideration and that the additional evidence was admitted without complying with the provisions of law. Held, that the High Court allowed additional evidence to be admitted as it required that evidence either to enable it to pronounce judgment or for any other substantial cause within the meaning of R. 2 7 (1) (b) of 0. 41 of the Code of Civil Procedure. It could not be said that the High Court made the order for admission of additional evidence without applying its mind. The appellate court has power to allow additional evidence not only if it requires such evidence "to enable it to 36 pronounce judgment" but also for "any other substantial cause. " There may be cases where even though the court finds that it is able to pronounce judgment on the state of the record as it is and so it cannot strictly say that it requires additional evidence "to enable it to pronounce judgment," it still considers that in the interest of justice something which remains obscure should be filled up so that it can pronounce its judgment in a more satisfactory manner. Such a case will be one for allowing additional evidence "for any other substantial cause. " Held, also, that the omission of the High Court to record the reasons for allowing additional evidence does not vitiate such admission. The provision is not mandatory although where a further appeal lies from the decision of the appellate Court, the recording of the reasons may be necessary and useful to the Court of further appeal for deciding whether the discretion had been judicially exercised by the Court below or not and the omission to record the reasons must be treated as a serious defect. When additional evidence was taken with the assent of both sides or without objection at the time it was taken, it is not open to a party to complain of it later on. As the appellant did not press his application against the admission of additional evidence, the objection must be over ruled. Arjan Singh vs Kartar Singh. [1951) section C. R. 258, Sreemanchunder vs Gopalchunder, (1866) 11 M. 1. A. 28 Manmohan Dag vs Musammat Ramdie Gopal Singh vs Jhakri Rai, (1885) 1. L. R. , Parsotim vs Lal Mohar, (1931) L. R. 58 I.A. 254 and Jagamath Prasad vs Hanuman Pershad (1909) L. R. 36 I.A. 221, referred to.

94 of 1955. Petition under article 32 of the Constitution of India for the enforcement of Fundamental Rights. 643 Bishan Narain, Rameshwarnath, section N. Andley and P. L. Vohra, for the petitioner. H. N. Sanyal, Additional Solicitor General of India, N. section Bindra and P. D. Menon, for the col respondents. August 20. The Judgment of the Court was delivered by HIDAYATULLAH, J. This is a petition under article 32 of the Constitution challenging the imposition of Excise Duty on the petitioner by virtue of item No. 17 "Footwear" of the First Schedule to the (1 of 1944) with effect from February 28, 1954, and the calculation of the duty advaloram by including in the price, charges for freight, packing and distribution. The petitioner, the British India corporation Ltd. is a public limited company which was formed to take over other companies and to amalgamate them. Among the companies which the petitioner took over were Cooper Allan & Company Ltd., and the North West Tannery Company Ltd., b )that Kanpur. These two Companies manufature shoes and other leather goods and operate as a single unit manufacturing the well known brand of "F L E X" shoes. As a result of the financial proposals of the Central Government for the financial year 1952 55, a bill (No. 9 of 1954) was introduced in parliament on February 27,1954. Under el. 8 of the Bill foot wear were proposed to be taxed at 10% advaloram if produced in any factory as defined in the factories Act, 1948 (63 of 1948). When the Finance Act, 1954 (17 of 1954) was enacted, the Central Excises and Salt Act, 1954, was amended by the inclusion of item 17 in the Schedule, though in a slightly different form. The item as finally enacted read as follows: 644 "17. FOOTWEAR, produced in any factory including the precints thereof whereon fifty or more workers are working or were working on any day, of the preceding twelve months, and in any part of which manufacturing process is being carried on with the aid of power or is ordinarily so carried on, the total equivalent of such power exceeding two horse power. "Footwear" includes all varieties of footwear,whether known boots shoes, sandals, chappals, or by any other name." {Ten percent "advalorem"} Under the provisions of the , (XVIof 1931), the duty was leviable from February 28, 1954, by virtue of a declaration in the Bill to that effect. On the preceding day the Superintendent of Central Excise., Kanpur, deputed an Inspector of his department to obtain from the petitioner a declaration of all stock of footwear and requested that the Inspector be permitted to verify the stocks with a view to levying the Excise Duty on and from February 28, 1954. As a ' result of the position of Excise Duty on footwear the petitioner was required to pay during the remaining ten months of 1954 a sum of RE;. 9,47,630/ as Excise Duty. The petitioner produces in the two units above named, footwear for sale to the public and for supplies to the Government for the use of the Army and the Police. The petitioner contends that though the Excise Duty paid by it was capable of being passed on to the consumer, it could not include it in the price at which shoes were sold to the public because of heavy competition by those free from such duty , though it did include the Excise Duty in the price of the footwear supplied to Government. Thus Rs. 2 lacs odd were passed on to Government but Rs. 7 lacs odd were born 645 by the Company itself. The petitioner contended before the Collector of Central Excise, Allahabad, that the calculation of the duty advalorem should not be, based on price including freight, packing and distribution charges paid to it, by its distributors in the outlying parts of India. This contention of the petitioner was not accepted by the Collector. The petitioner then took an appeal to the Central Board of Revenue but before the appeal could be disposed of, the petitioner filed this petition under Art, 32 of the Constitution praying for writ or writs to quash the order of the Collector of Central Excise, Allahabad, and writ or writs to prohibit Union Government. The Central Board of Revenue and the Collector and Superintendent of Central Excise from enforcing the provisions of item 17 against petitioner and collecting the Excise Duty therein levied. According to the petitioner, a distinction has been made in Item 17 above quoted between manufacturers of footwear employing more than 50 workers .or carrying on the manufacturing process with the aid of power exceeding 2 H.P. and other manufacturers. According to the petitioner this amounts to discrimination because there is no reasonable basis for differentiating between manufacturers on the basis of number of workers or the employment of power above 2 H.P. The petitioner contends that the essentials of the manufacture of footwear are the same whether one employs 50 or more workers or less. The larger number of workers is merely needed because the out turn has to be greater but the number does not change the nature of the operations or the method of production. Similarly, the need for than 2 H.P. arises if a larger number of mechanical units have to be worked and there is no essential difference between a large manufacturer 646 and a small manufacturer by reason of the employment of more power or less. It is, therefore, contended that the imposition of Excise Duty on bigger manufacturers creates a discrimination in the trade which is neither just nor discernible and amounts to a violation of article 14 of the Constitution. The levy of the Excise Duty in such circumstances is said to be both illegal and unconstitutional. As a corrolary to this it is contended that the petitioner, which was already carrying on its business at a loss in view of the competition, is now further handicapped by having to bear a heavy Excise Duty which it cannot pass on to the consumer due to competition by those not paying the duty and is likely to go out of its business and that the levy of the Excise Duty in these circumstances amounts to a breach also of Art . 19 (1) (f) and (g) and 31 of the Constitution. It is further contended that the duty advalorem ought to be calculated on the ex factory price and not on the price charged to the distributors which includes within itself the cost of packing and charges for freight and distribution commission. It is contended that this is an error apparent on the face of the order of the Collector of Excise and the order deserves to be quashed by the issue of ' writ of certiorari or other appropriate writ. Lastly, it is contended that the Finance Act, 1954 received the assent of the president on April 27, 1954, and must be deemed to have become law ,from that date. The collection of Excise Duty from March, 1954, before the Finance Bill became law, is said to be illegal. We shall deal only brie fly with these arguments as most of them have by now been considered and decided in other cases of this Court. 647 The contention that this duty does not amount to a duty of excise because it cannot be passed on by the petitioner to the consumer was not raised before us. It was mentioned in the petition. An Excise Duty is a duty on production and though according to the economists, it is an indirect tax capable of being passed on to the consumer as part of the price yet the mere passing on of the duty is not its essential Even if borne. by the producer characteristic. or manufacturer it does not cease to be a duty of excise. The nature of such a duty was explained in the very first case of the Federal Court and subsequently in others of the Federal Court, the Privy Council and this Court, but this ground continues to be taken and we are surprised that it was raised again. The contentions that the duty could not be collected before the passing of the Finance Act, 1954, has been the subject of an elaborate discussion in the recently decided case of this Court, M/s. Chotabhai Jethabhai Patel and Co. vs Union of India (1). It is conceded that in view of the above decision the point is no longer open. It is also conceded that the question whether in calculating the duty advalorem, the Collector of Excise was justified in including in the price the cost of packing, charges for freight and commission for distribution, or not, is a matter for the decision of the authorities constituted under the Act subject to such appeals and revisions as might lie but not a matter for consideration directly under article 32 of the constitution, in view of the recent decision of this Court in Smt. Ujjam Bai vs State of U.P. (Civil Misc. Petition No. 79 of 1959) decided on April 10, 1962. It may be pointed out that the present petition was filed at a time when the appeal before the (1) (1962) Supp. 2 S.C.R. 1. 648 Board of Revenue was pending and there was a further right of revision to the Central Government. This leaves over for consideration true challenge under article 14, 19 and 31 of the constitution. The argument under each of these Articles is based on precisely the same facts viewed from different angles. It is. contended that there is a discrimination between big manufacturers of footwear and small manufacturers which is not based on any differential. This discrimination, it is said, leads to the imposition of a heavy tax on the big manufacturers with a corresponding exemption in favour of the small manufacturers giving rise to a competition sufficient to put the big manufacturers out of the market. The tax being illegal the levy amounts to a confiscation of the property of the petitioner. It will thus be seen that the imposition of the duty is first challenged article 14 as a discrimination, next it is challenged under Article 19 as a deprivation of the right to acquire, hold and dispose of property or to carry on a business or trade and lastly the collection 'of duty is characterised as a confiscation of property without the authority of law under article 31. The argument suffers from a fundamental fallacy in that it assumes that there can be no classification of manufacturers on the basis of the number of workers or the employment of power above a particular horse power. Manufacturers who employ 50 or more workers can be said to form a well defined class. Manufacturers whose manufacturing process is being carried on with the aid of power exceeding 2 H.P. are also a well defined class. Legislation of this type depending upon the number of workers or the extent of power employed, is frequently to be found. The most obvious example is the Factories Act which defines a factory with reference to the employment of a certain number of 649 workers or the employment of power. The contention that size makes no difference is not valid. It is well known that the bigger manufacturers are able to effect economics in their manufacturing process and their out turn being both large and rapid they are able to undersell am all manufacturers. If this were not so mass production would lose all its advantages. No doubt the manufacturers are now required to bear burdens which previously did not exist, like bonus, expenses on labour welfare etc. but still the manufacturers, provided the business is well ran, can by mass production offer the same commodity at a competitive price as against small ' manufacturers and bear the burden as well. Therefore, in imposing the Excise Duty, there was a definite desire to make an exemption in favour of the small manufacturer who is unable to pay the duty as easily, if at all, as the big manufacturer. Such a classification in the interests of co operative societies, cottage industries and small manufacturers has often to be made to give an Impetus to them and save them from annihilation in competition with large industry. It has never been successfully assailed on the ground of discrimination. Recently, this Court in the Orient Weaving Mills (P) Ltd. vs The Union of India(1) considered a similar argument in relation to an exemption granted to societies working a few looms on co operative basis as against big companies working hundreds of looms. exemption was held to be constitutional and the classification of co operative societies was held to be reasonable. A similar consideration applies in the present case, where the exemption operates in respect of very small manufacturers employing not more than 50 workers and carrying on their manufacturing process with power not in excess of 2 H.P. This affords a protection to small concerns who, if they were made to pay the duty, would have to go out of business. (1) (1962) Supp. 3 S.C.R. 481. 650 In our judgment the Schedule which is characterised as discriminative is based upon a reasonable classification and is validly enacted. If the law is held to be valid the attack under articles 19 and 31 must also fail. In view of what we have said above the petition must fail. It will be dismissed with costs. Petition dismissed.

IN-Abs

Under item No.17 of the Schedule to the , excise duty was levied on footwear produced in any factory employing 50 or more workmen and using power exceeding 2 H.P. The petitioner contended that the imposition of duty on larger manufacturers only was dis criminatory and there was no reasonable basis for differentiating between manufacturers on the basis of number of workers or the employment of power above 2 H.P. and that the im. position of the heavy duty gave rise to a competition sufficient to put the big manufacturers out of business. Held, that item 17 of the Schedule is based upon a reasonable classification and is validly enacted. Manufacturers who employed 50 or more workers form a well defined class, so also manufacturers who. use power exceeding 2 H.P. In imposing the excise duty there is a definite desire to make an exemption in favoui of the small manufacturer who is unable to pay the duty as easily, if at all, as the big manufacturer, Such a classification in the interests of co operative societies cottage industries and small 'manufacturers has often the made to give an impetus to them and save them from annihilation in competition with large industry. Orient Weaving Mills (P) Ltd. vs Union of India, (1962) Supp. 3 S.C.R . 481 referred to.

Appeals Nos. 223 & 224 of 1961. Appeals from the judgment and decree dated April 25, 1956. of the Punjab High Court in Civil Regular Second Appeals Nos. 158 and 159 of 1949 respectively. N. section Bindra and K. L. Mehta, for the appellants. Gurbachan Singh, Harbans Singh and M. L. Kapur, for the respondents (in C. A. No. 224/61). February 12. The judgment of the court was delivered by SHAH J. These appeal arise out of two suits relating to certian agricultural lands situate in village Umri Ana, tehsil Zira District Ferozepore in the Punjab. The dispute relates to the right to inherit the estate of one Hamam Singh who was the last male holder. The disputing parties are descended from Sahib Singh ' as disclosed by the following genealogy 21 Sahib Singh | | | | Hamir Singh Wazir Singh | Attar Singh | | | | Chuhar Singh Ghuda Singh Kahan Singh | | | | Mangal Singh | | | Daughter | | | | | Mst. Bishno Ramji Singh Dasau | Tehl Singh Arjan Singh (married) | ndha | (Defdt.2) (Defdt.1) Singh | Singh | again) | | Narain Singh | | (Pltff.) | | | | | Bakhshish Ajaib Mukhtar | Singh Singh Singh | (Pltff.) (Pltff.) (Pltff.) | | | | | Roor Singh Bhola Singh | | Harman Singh | | | | | | Mst. Tejo Mst. Gejo (Died without issue) (died without issue) 22 Harnam Singh grandson of Kahan Singh died leaving him surviving two daughters Mst. Tejo and Mst. Gejo and no male lineal descendant. The property of Harnam Singh devolved upon his two daughters in equal shares. On the death of Mst. Tejo without issue the entire estate was entered in the name of Mst. Gejo by the revenue authorities. Gejo also died in 1942 without leaving any issue surviving her. By order dated September 6, 1945 the Assistant Collector directed that the entire estate be entered in the name of Narain Singh s/o Dasaundha Singh and Bakshish Singh, Ajaib Singh and Mukhtar Singh sons of Ramji Singh who will hereinafter be referred to collectively as 'the plaintiffs. ' In appeal to the Collector of Ferozepore the order of the Assistant Collector was set aside and the estate was directed to be entered in the names of Tehl Singh and Arjan Singh sons of Mangal Singh who will hereinafter be referred to collecti vely as 'the defendants. ' The Commissioner of the Division confirmed the order of the Collector. The plaintiffs who are the descendants of Ghuda Singh then instituted suit No. 9/1947 in the Court of the Subordinate judge, Zira for a decree for possession of the estate of Harnam Singh, barring a small area of 8 Kanals and 11 MarlasKhasra No. 325 which was in their possession. The defendants who are the descendants of Wazir Singh in their turn commenced an action (Suit No. 13/1947) for possession of Khasra No. 325 against the plaintiffs. Each side claimed title to the estate of Harnam Singh according to the customary law applicable to the Jats residing in tehsil Zira, District Ferozepore. It was the case of the plaintiffs that notwithstanding the adoption of Ghuda Singh by his maternal uncle Bhan Singh, Ghuda Singh 's descendants were not excluded from inheritance to the estate of a member in the natural family of Ghuda Singh It was submitted by the plaintiffs 23 that the family of the plaintiffs and Harnam Singh was governed by Zamindara Riwaj i am (general custom obtaining amongst the Zamindars) by virtue of which a son adopted in another family and his descendants do not lose their right to inherit in their natural family, because by the adoption according to the custom of the community the adopted son does not completely sever his connections with his natural family. The defendants, on the other hand, claimed that in the District of Ferozepore every adoption in a Hindu family is 'formal ' and according to the Riwaj i am of the District an adopted son is excluded from the right to inherit in his natural family. Consequently Ghuda Singh, who was adopted by Bhan Singh, could not inherit the estate of Hamir Singh, his adoption operating as a complete severance from the natural family. The sole dispute between the parties was, therefore, as to the customary law applicable to the rights of a son adopted in a jat family residing in tehsil Zira, District Ferozepore. The two suits were consolidated for trial. The Subordinate judge held that all ceremonies relating to adoption were performed and Ghuda Singh ceased to be a member of the family of his natural father according to the custom prevailing in the District and the plaintiffs who were the descendants of Ghuda Singh could not inherit the estate of Hamir Singh. In so holding he relied upon the manual of Riwaji i am of Ferozepore District prepared in 1914, which, in his view, recorded that when any adoption in the District takes effect the adopted on adoption son stand transplanted to the family of the adopter. In appeal the District Court, Ferozepore held that in the case of Jats of Ferozepore District by special custom prevailing in the District, the adopted son bad the right to inherit collaterally in the family of his adoptive father only and could not inherit collaterally in his natural father 's family. In second appeal the High Court of Punjab set aside the decree passed 24 by the District Court. In the view of the High Court the record disclosed no evidence that the adoption of Ghuda Singh made by his maternal uncle Bhan Singh was formal and in the absence of any such evidence it must be presumed that the adoption was a customary appointment of an heir and not a formal adoption under the Hindu Law and that there was overwhelming authority in favour of the proposition that by reason of a customary adoption the adopted son and his descendants were not excluded from the right to inherit to collaterals in the natural family. The High Court accordingly held that the plaintiffs, as grandsons in the male line of Ghuda Singh, were entitled to inherit the estate of Hamir Singh. With certificate of fitness granted by the High Court, these two appeals are preferred by the defendants. It is common ground that Ghuda Singh was adopted some time before 1856 by Bhan Singh, his maternal uncle. The dispute between the parties has to be resolved by applying the customary law applicable to the parties, because section 5 of the which governs the parties provides that : "In questions regarding succession, special property of females, betrothal and marriage, divorce, dower, adoption, guardianship, minority, bastardy, family relations, wills, legacies, gifts, partition, or any religious usage or insti tution, the rule of decision shall be (a) 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 25 (b) The Muhammadan Law in cases where the parties are Muhammadans, and the Hindu Law, in cases 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 above referred to. " In Daya Ram vs Sohel Singh (1), Rober son, J., (at P. 410) in dealing with the true effect of section 5 observed : "In all cases it appears to me under this Act, it lies upon the person asserting that he is ruled 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. The Legislature did not show itself enamoured of custom rather than law, nor does it show any tendency to extend the "Principles ' of custom to any matter to which a rule of custom is not clearly proved to apply. It is not the spirit of customary law, nor any theory of custom or deductions from other customs which is to be a rule of decisions, but only 'any custom applicable to the parties concerned which is not. . and it "therefore ' appears to me clear that when either party to a suit sets up 'custom ' as a rule of decision, it lies upon him to prove the custom which he seeks to apply; if he fails to do so clause (b) of section 5 of the applies, and the rule of decision must be the personal law of the parties subject to the other provisions of the clause. " This view was affirmed by the judicial Committee (1) (1906) P.R. No. 110 (F.B.). 26 of the Privy Council in Abdul Hussein Khan vs Bibi Sona Dero (1). In Vaishno Ditti vs Rameshri (2), the ,Judicial Committee observed : "x x x x their Lordships are of opinion that in putting custom in the forefront, as the rule of succession, whilst leaving the particular custom to be established, as it nece ssarily must be, the Legislature intended to recognize the fact that in this part of India inheritance and the other matters mentioned in the section are largely regulated by a variety of customs which depart from the ordinary rules of Hindu and Mohamedan law." The pleadings also disclose an unanimity that the rights of the parties have to be adjudged in the light of the customary law applicable and not by the rules of Hindu Law. The relevant general custom which is applicable in the matter of adoption is to be found in Rattigan 's Digest of Civil law for the Punjab, 13. p. 572 Article 48 "An heir appointed in the manner above described ordinarily does not thereby lose his right to succeed to property in his natural family, as against collaterals, but does not succeed in the presence of his natural brothers. " Article 49 : "Nor, on the other hand, does the heir acquire a right to succeed to the collateral relatives of the person who appoints him, where no formal adoption has taken place, inasmuch as the relationship established between him and the appointer is a purely personal one. " This adoption, according to Rattigan is irrevocable and an adopted son cannot relinquish his status. (1) (1917) L.R. 45. I.A. 10. 2) (1928) LR, 55 I.A. 107, 421. 27 Article 52 sets out the rights of the adopted son. It states : "The appointed heir succeeds to all the rights and interests held or enjoyed by the appointer and, semble, would succeed equally with a natural son subsequently born. " There is a long course of decisions in the High Court of Lahore and the High Court of Punjab in which it has been held that the relationship between the appointed heir and the appointer which is called adoption is purely a personal one and resembles the Kritrima form of adoption of Hindu Law: Mela Singh vs Gurdas (1), Sir Shadi Lal, C.J. observed in dealing with the effect of a customary adoption in the Punjab : "The tie of kinship with the natural family is not dissolved and the fiction of blood relationship with the members of the new family has no application to the appointed heir. The relationship established between the appointer and the appointee, is a purely personal one and does not extend beyond the contracting parties on either side." Similarly in Jagat Singh vs Ishar Singh (2), it was held that the reservation as to the adopted son not succeeding in the presence of his brothers refers only to his succession to his natural father but does not apply to cases of collateral succession in his natural family A similar view was expressed in Kanshi Ram V. Situ (3), and Rahmat vs Ziledar (4). In the last mentioned case it was stated : "Under the general custom of the province a person who is appointed as an heir to a third person does not thereby lose his right to succeed to the property of his natural father. But (1)(1922)I.L.R.3 Lah.362(F.B.) (2)(1930)1.L.R.II Lah.615. (3) (4) Lab. 28 the appointed heir and his lineal descendants have no right to succeed to the property of the appointed heir 's natural father against the other sons of the natural father and their descendants. The appointed heir can succeed to the property of his natural father when the only other claimant is the collateral heir of the latter. " But it is urged on behalf of the defendants that the general custom applicable to the Punjab as recorded by Rattigan is shown to be superseded by proof of a special custom of the District recorded in the Riwaj i am of Ferozepore District prepared by Mr. Currie at the settlement of 1914, and reliance is placed upon answers to Questions 76 and 77 which deal with the effect of adoption. The Questions and the Answers recorded are : "Question 76 Does an adopted son retain his right to inherit from his natural father ? Can he inherit from his natural father if the natural father dies without other sons ? Answer All agree that the adopted son cannot inherit from his natural father, except as for as regards such share of the property as would come to his adoptive father as a collateral. Sodhis 'however ' say that he can inherit his natural father 's estate if the latter has no male descendants, while the Nipale say the adopted son inherits from both fathers. Question 77 Describe the rights of an adopted son to inherit from his adoptive father. What is the effect of the subsequent birth of legitimate sons to the adoptive father ? Will the adopted son take equal shares with them ? If natural legitimate sons be born subsequently to the adoption where the chundawand system 29 of inheritance prevails, how will the share of the adopted son, whose tribe differs from that of the adoptive father, ' inherit from him ? Does an adopted son retain his own got or take that of his adoptive father ? Answer An adopted son has exactly the same rights of inheritance from his adoptive father as a natural legitimate son. The inheritance would only be by chundawand, if that was the prevalent rule of the family. The Nipals, Rajputs, Arains, Moghals, Sayyads, Gujjars and Muhammadan Jats state that if the adopted son is of a different got he takes the got of his adoptive father ; while if he is of a different tribe, he cannot inherit. As it is, as a rule aged men without hope of sons who adopt, cases of the birth of legitimate sons after adoption has taken place must be rare. " When there is conflict between the general custom stated in Rattigan 's Digest of Customary Law and the Riwaj i am which applies to a particular area it has been held by this Court that the latter prevails. In Jai Kapur vs Sher Singh (1), it was observed "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 in Mt. Subhani vs Nawab [A.I.R. 1941 (1) 979. 30 (P. C.) 21], "that where, as 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. " Therefore when there is a conflict between the record of custom made in Rattigan 's Digest of Customary Law and the local Riwaj i am, prima facie, the latter would prevail to the extent of the inconsistency, and it would be for the person pleading a 'custom or incident thereof different from the custom recorded in the Rewaj i am to prove such custom or incident. Attention must, therefore, be directed to the question whether there is in fact Any inconsistency between ' the custom recorded in Rattigan 's Digest of Customary Law and the relevant entries in the Riwaj i am. The general custom recorded in Rattigan 's Digest is apparently this : a person adopted according to the custom of the community i.e. who is appointed as an heir to ' inherit the property of a person outside the family does not, by virtue of such appointment, lose his right to inherit the property in his natural family except the right to inherit the property of his natural father when there are natural brothers. The natural brothers would take the property to the exclusion of such an adopted son and his descendants. Question 76 in the Riwaj i am primarily refers to the right of an adopted son to retain his right to inherit the property of his natural father and the answer recorded is that the adopted son cannot inherit the property of the natural father, except such property as would devolve upon his adoptive father as a collateral (of the adopted son 's natural father). It is to be noticed that the question was directed to ascertain the right of the adopted son to inherit the estate of his natural father : it did not seek elucidation on the right of the adopted son to inherit the estate of any collaterals of the natural 31 father, and the fact that in the answer it was recorded that to the estate which would devolve upon his adoptive father as a collateral of his natural father he has a right of inheritance, strongly supports the view that the village elders in replying to the question were only concerned with the right of an adopted son to inherit the property of his natural father and were not concerned to dilate upon any right to collateral succession in the natural family. The answer to question 77 also supports this view. When asked to describe the rights of an adopted 'on to inherit the estate of his adoptive father, they replied that the adopted son had exactly the same rights of inheritance from his adoptive father as a natural legitimate son. Mr. Bindra appearing on behalf of the defendants submitted that questions 76 and 77 were in tended to ascertain the custom of the District relating to the rights of the adopted son in his natural family and the family of his adoptive father and the answers must be read in that light. We are unable to accept this suggested interpretation of Questions 76 and 77 and the information elicited thereby. The Riwaj i am appears to have been carefully compiled by officers of standing and experience and it is clear that they made a limited enquiry about the rights of an adopted son to inherit the property of his natural father and of his adoptive father. There is undoubtedly some conflict between the custom recorded in Rattigan 's Digest and the custom in the Riwaj i am. Whereas in Rattigan 's Digest it is recorded that an heir appointed in another family does not succeed to his natural father in the presence of his natural brothers, in the Riwaj i am it is recorded that the adopted son does not directly inherit the estate of his natural father in any event, But we are not concerned with that ' inconsistency in this case. It is sufficient to observe that in article 48 of Rattigan 's Digest, it is 32 recorded that an heir appointed in the manner described (an adopted son) does not thereby lose his right to succeed to property in his natural family : and nothing inconsistent therewith is shown to be recorded in the Riwaj i am of the District. Mr. Bindra contended that in any event there is clear evidence of instances of devolution of property in the family of the parties indicating that a son adopted in another family was totally excluded from inheritance in the natural family. Counsel relied upon Ext. D 5 an extract from the register of mutations relating to certain agricultural lands in village Umri Ana. It appears from that extract that on the death of Hamir Singh the estate was in the first instance entered in the names of his three sons. But Salig Ram, Patwari of the village, made a report on May 28, 1884 that Kahan Singh and Chuhar Singh (two of the sons of Hamir Singh) claimed that Ghuda Singh had never been in possession of the 1/3rd share of the Khata entered in his name and that Ghuda Singh himself had admitted that he had no concern with the Khata in question and that his name should be removed. On that report the Assistant Collector ordered that the lands be entered in the names of Kahan Singh and Chuhar Singh and that the name of Ghuda Singh be removed from the mutation entry and that the Jamabandi papers be altered accordingly. But this instance of exclusion of Ghuda Singh from the right to participate in the estate of his father is consistent with the statement of custom recorded in Rattigan 's Digest. It is expressly recorded in article 48 that an appointed heir does not thereby lose his right to succeed to property in his natural family, as against collaterals, but he does not succeed in the presence of his natural brothers. Kahan Singh and Chuhar Singh were brothers of Ghuda Singh and Ghuda Singh having been adopted could not, according to the custom recorded in 33 Rattigan 's Digest, inherit his fathers estate in the "presence of his brothers. " The other instance relied upon by counsel is about the devolution of the estate of Chuhar Singh on the remarriage of his daughter Bishno. On the death of Chuhar Singh it appears that his property was entered in the name of his daughter Bishno, and when Bishno contracted a Karewa marriage according to the custom prevalent in the community, the estate held by her was entered in the name of Rura Singh and Bhola Singh sons of Kahan Singh. In the register of mutations Ext. R D 1 it is recorded that Ghuda Singh who was the Lambardar appeared before the Tehsildar and identified Mst. Bishno and stated that she had contracted Karewa marriage with jawala Singh and further admitted that Rura Singh and Bhola Singh were entitled to take her property, and pursuant to this statement the Tehsildar directed that mutation regarding succession be sanctioned in favour of Rura Singh and Bhola Singh in equal shares. This instance also, in our judgment, does not support any case of departure from the custom recorded in Rattigan 's Digest. It is clear from the genealogy and the extract of the register of mutations Ext. D 1 that the occasion for making an entry of mutation was the remarriage of Bishno. Mr. Bindra submitted that according to the custom of the community a daughter inheriting property, from her father would on marriage be divested of the property, which would devolve upon the collaterals of her father, and according to that custom when on the remarriage of Bishno the succession opened, Ghuda Singh was on his own admission excluded. This, counsel submitted, was a stronginstance supporting a departure from the custom recorded in Rattigan 's Digest. But if by virtue of the custom prevalent in the community, as asserted by Mr. Bindra, on her marriage Bishno would lose her interest in the property of her father, it is 34 difficult to appreciate how she acquired title or continued contrary to that custom, to remain owner of the property of her father after her first marriage. It is clear that it was not because of her marriage, but on re marriage, that the property was alleged to have devolved upon Rura Singh and Bhola Singh. Why Bishno did not forfeit her right to the property on her marriage and forfeited her right thereto on remarriage has been left in obscurity. The learned judges of the High Court held that the mere circumstance that Ghuda Singh permitted the estate to go to the descendants of Kahan Singh was not by itself sufficient to establish the custom set up by the defendants and uncontested instances were of little value in establishing a custom. They observed that the instance might have received considerable reinforcement if it had been shown that Ghuda Singh or any of his descendants had inherited collaterally in the family of Bhan Singh but except succession of Ghuda Singh to the estate of Bhan Singh which is in accordance with the general custom no proof of collateral succession was established, and the single instance of Chuhar Singh 's estate devolving upon the descendants of Kahan Singh with the consent of Ghuda Singh does not establish any custom contrary to what is stated in Rattigan 's Digest. We are unable to disagree with the view so expressed. On that view of the case, these appeals fail and are dismissed with costs. Appeal dismissed.

IN-Abs

Harnam Singh died leaving behind two daughters. They also died without leaving any issue surviving them. The Revenue authorities ordered that the entire estate of Harnam Singh be entered in the revenue records in the names of the defendants. The plaintiffs filed a suit for possession of the estate of Harnam Singh. Their contention was that notwithstanding the adoption of Ghuda Singh, their predecessor, by his maternal uncle, they as descendants of Ghuda Singh were not excluded from inheritance to the estate of a member in the natural family of Ghuda Singh. It was also contended that the family of the plaintiffs and Harnam Singh was governed by Zamindara Riwaj i am by virtue of which a son adopted in another family and his decendants did not lose their right to inherit in the natural family because by the adoption according to the custom of the community, the adopted son did not completely sever his connection with his natural family. The contention of defendants appellants was that in the District of Ferozeporc, every adoption in a Hindu family was formal and according to the Riwaj i am of the District, an adopted son was excluded from the right to inherit in his natural family. Consequently, Ghuda Singh, who was adopted by Bhan Singh, could not inherit the estate because his adoption operated as complete severance from the natural family. The suit was dismissed by the Subordinate judge and his order was confirmed by the District judge. However, the High Court set aside the order of the District judge and held that the record disclosed no evidence that the adoption of Ghuda Singh was formal and hence it must be presumed that the adoption was a customary appointment of an heir and not a formal adoption under the Hindu Law. It was also held that there was overwhelming authority in favour of the proposition that by reason of a customary adoption, the adopted 20 son and his descendants were not excluded from the right to inherit to collaterals in the natural family. The plaintiffs as grandsons in the male line of Ghuda Singh were entitled to inherit the estate. The appellants came to this Court by a certificate of fitness granted by High Court. Held, that the view of the High Court was correct. A person adopted according to the customs of the community, i.e. who is appointed as a heir to inherit the property of a person outside the family, does not. by virtue of such appointment, lose his right to inherit in his natural family except the right to inherit the property of his natural father when there are natural brothers. The natural brothers would take the property to the exclusion of such an adopted son and his defendants. Daya Ram vs Sohel Singh (1906) P. R. No. 110 (F.B.), Abdul Hussain Khan vs Bibi Sona Dero 1917) L.R. 45 I .A. 10, Vaishno Ditti vs Rameshri (1928) L. R. 55 I. A. 407, Mela Singh vs Gurdas, (1922) 1. L. R. , Jagat Singh vs Ishar Singh Lah. 615, Kanshi Ram vs Situ (1934) I. L. R.16 Lah. 214, Rahmat vs Ziledar (1945) 1. L. R.26 Lah. 504 and Jai Kapur vs Sher Singh, [1960] 3 section C. R.975, referred to.

minal Appeal No. 131 of 1962. Appeal by special leave from the judgment and order dated June 13, 1962, of the Bombay High Court in Criminal Revision Application No. 402 of 1962. R.K. Garg, section C. Agarwala and M. K. Ramamurthi, for the appellant. C. K. Daphtary,Solicitor General of India, N. section Bindra and R. H. Dhebar, for the respondent. February 11. The following judgments were delivered by SHAH,. On April 3, 1961 at about 2 30 A.M., a motor vehicle fell into a ditch by the side of a highway near Edlabad, District Jalgaon, and all the occupants of the vehicle were injured. One Mohmad Yusuf who was in that vehicle died of the injuries. The appellant was tried before the judicial Magistrate, First Class, Bhusawal, 929 for offences of rash and negligent driving when he was under the influence of liquor and thereby causing the death of Mohmad Yusuf and injuries to four other occupants of the motor vehicle and also for offences under the motor Vehicles Act. The Trial Magistrate held that the evidence was not sufficient to prove that the appellant was driving the motor vehicle at the time of the mishap, and acquitted the appellant of the offences under the Motor Vehicles Act and also under the Indian Penal Code. But he held that the evidence established that the appellant had at the material time consumed illicit liquor and had thereby committed an offence punishable under section 66 (b) of the Bombay Prohibition Act. He accordingly convicted theappellant, and sentenced him to suffer rigorous imprisonment for three months and to pay a fine of Rs. 500/ and in default of payment of fine, to suffer rigorous imprisonment for two months. On appeal to the Court of Session, the order of conviction was set aside, and a retrial was directed, because in the view of the Court there had not been a "fair and full" trial. A revision application filed against the order in the High Court of Bombay was summarily dismissed. The appellant has appealed to this Court with special leave against the order of the High Court. The case for the prosecution, in so far as it relates to the charge for the offence under the Bombay Prohibition Act, is briefly this: Early in the morning of April 3, 1961 as a result of motor vehicle Temp. No. 170 B. M. B. falling in a ditch near Edlabad several persons including the appellant were injured. At about 6 a. m., the appellant reached the Civil Hospital, jalgaon. On Dr. Kulkarni, Resident Medical Officer of the Hospital informing him about the death of Mohmad Yusuf, the appellant fainted and he was admitted as an indoor patient in the Hospital. On examination, the 930 appellant was found "smelling of alcohol". Dr. Kulkarni thereupon directed one Dr. Rote to collect a specimen of blood from the body of the appellant, and accordingly some venus blood was collected in a phial. The phial was closed in the presence of Dr. Rote and sealed. But before treatment could be given to the appellant, he was discharged from the Hospital at the request of some persons who accompanied him. The blood specimen remained in the Hospital. Information about the mishap to the motor vehicle was received by the police at Jalgaon at about 8 a. m., on that day and a case was registered against the appellant and four other persons for certain offences under the Indian Penal Code and the Motor Vehicles Act, and on receiving information that all the incumbents of the motor vehicle were at the time of the mishap in a state of intoxication, also under section 66 (b) of the Bombay Prohibition Act XXV of 1949. The Officer in charge of the investigation sent the appellant to the Civil Hospital for medical examination. The condition of the appellant was found by Dr. Kulkarni to be normal. A specimen of the appellant 's blood was again collected at about 11 a. m., and was sent to the Chemical Analyser, for examination and report. On April 12, 1961, the Sub Inspector in charge of the investigation came to learn that a specimen of blood of the appellant had been taken by the Hospital authorities early in the morning of April 3,1961. On demand by the police officer the Medical Officer delivered the phial containing the blood specimen together with a certificate from Dr. Rote that a blood specimen of the appellant was collected by him at 6 a.m., on April 3, 1961. The investigating officer affixed an additional seal on the package and forwarded the same with a special messenger to the Chemical Examiner on April 18, 1961. On examination of the contents of the phial it was found that there was concentration of alcohol to the extent of 0.069 per 931 cent w/v ethyl alcohol. This concentration being in excess of the concentration mentioned in section 66 (2) of the Bombay Prohibition Act, a complaint for the offence under the Bombay Prohibition Act was also lodged against the appellant. At the trial, on behalf of the prosecution among others were examined Dr. Kulkarni, Dr. Rote and the investigating officer. The report of the Chemical Examiner was also tendered in evidence. But the special messenger who carried the sample was not examined; nor was any evidence given about the place where and the condition in which the phial containing the blood specimen was kept in the Hospital. The appellant in his statement to the Court denied that concentration of alcohol detected by the Chemical Examiner from the specimen taken by Dr. Rote exceeded 0.069 per cent w/v. He admitted that on April 3, 1961 he was in the Civil Hospital in the early morning, that when he was told by Dr. Kulkarni about the death of Mohamad Yusuf he "suffered a shock". , that thereafter he went home immediately, and during that time his"mental condition was not good". He further stated : "I fell unconscious. I was semi conscious. During that time my relations and friends gave me certain liquid as a sort of medicine. I felt like that. Then I was carried to the hospital in the same condition. As I regained my consciousness I told doctor that I want to leave the hospital because my friend was dead in hospital and as I did not feel it proper to live in hospital under such circumstances, so I left the hospital. I do not know who gave me medicine when I fell down on the road, after I had left the hospital. This was, when I left the hospital for my home." The defence of the appellant therefore was that when he was informed about the death of Mohamad Yusuf 932 he fainted and some medicinal preparation was administered to him by his friends to revive him and thereafter he was carried to the Civil Hospital. He has not admitted that any specimen of blood from his body was collected, but it appears to be his defence that if excessive concentration of alcohol was traced in the blood it was the result of some medicinal preparation administered to him by his friends. Section 66(1) of the Bombay Prohibition Act, in so far as it is material, provides : "(1) Whoever in contravention of the provisions of this Act, or any rule, regulation, or order made, or of any licence, permit, pass or authorization issued, thereunder (a) x x x (b) consumes, uses, possesses or transports any intoxicant. . . shall, on conviction, be punished "(i) for a first offence, with imprisonment for a term which may extend to six months and with fine which may extend to one thousand rupees :" 'Intoxicant ' is defined in section 2(22) as meaning "any liquor, intoxicating drug, opium or any other substance, which the State Government may, by notification in the Official Gazette, declare to be an intoxicant; and by section 2(24) liquor includes "(a) spirits, denatured spirits, wine, beer, toddy and all liquids consisting of or containing alcohol ; and (b) any other intoxicating substance which the State Government may, by notification in the Official Gazette, declare to be liquor for the purposes of this Act. " The contravention referred to in section 66(b) is the contravention of acts prescribed by s.13. That section prohibits, amongst other acts, 933 consumption and use of liquor. The provisions of section 13 which occur in Chap. III are subject to a general exception contained in section 11, which provides, in so far as it is material, that : "Notwithstanding anything contained in the following provisions of this Chapter, it shall be lawful to import, export, transport, manu facture, bottle, sell, buy, possess, use or consume any intoxicant. in the manner and to the extent provided by the provisions of this Act or any rules, regulations or orders made or in accordance with the terms and conditions of a licence, permit, pass or authorization granted thereunder. " The validity of the provisions of the Act as originally enacted was considered by the Court in The State of Bombay vs F. N. Balsara (1), and it was held inter alia that cl. (b) of section 13, in so far as it affected the consumption or use of medicinal and toilet preparations containing alcohol was invalid. The Legislature of the Bombay State thereafter amended the Act by enacting section 24A which provided a general exception in respect of toilet, medicinal and antiseptic preparations and flavouring extract ', essence or syrup. As a consequence of the amendment made by section 24A the operation of the prohibition contained in section 13 and the other sections was limited in two respects : (1) by section II where the contravention was in pursuance of and in the manner and to the extent provided by the provisions of the Act or any rules or regulations or orders made or in accordance with the terms and conditions of a licence, permit, pass or authorisation granted; and (2) in respect of preparations and materials exempted under section 24A. When, therefore, a person was charged with consuming any intoxicant in contravention of the provisions of the Act or of the rules, regulations or orders made or of (1)[1951] S.C.R. 682. 934 any licence, pass, permit or authorisation under section 66(i)(b), it had to be established that the contravention was not protected either by section 11 or section 24A. It is clear that direct evidence about the consumption of liquor in contravention of the provisions of the Act, when such consumption is prohibited, would not ordinarily be forthcoming. Mere evidence that the person charged with consuming or using an intoxicant was in a state of intoxica tion would not be sufficient to bring home the charge under section 66(1)(b). That is illustrated by the decision of this Court in Behram Khurshed Pesikaka vs The State of Bombay (1). It was held in that case that the effect of the declaration in The state of Bombay vs F. N. Balsara (2), that cl. (b) of section 13 of the Bombay Prohibition Act is void under article 13(1) of the Constitution in so far as it effects the consumption or use of liquid medicinal or toilet preparations containing alcohol is to render a part of section 13(b) of the Bombay Prohibition Act inoperative and ineffec tual and thus unenforceable, and that the bare circumstance that a citizen accused of an offence under section 66(b) of the Bombay Prohibition Act is smelling of alcohol is compatible with his innocence as well as his guilt: the smell of alcohol may be due to the fact that the accused had contravened the enforceable part of section 13(b) of the Bombay Prohibition Act, or it may well be due to the fact that he had taken alcohol which fell under the unenforceable and inoperative part of the section. The onus therefore lies on the prosecution to prove that the alcohol of which he was found smelling came under the category of prohibited alcohol and therefore within the enforceable part of section 13(b). The Legislature of the State of Bombay being faced with this interpretation imposing a serious burden which the prosecution had to undertake in trials for offences of consumption or use of liquor contrary to the provisions of the Act, for due (1) , (2) ; 935 enforcement of the law and to prevent evasion, enacted certain additional provisions by Bombay Act 12 of 1959. By that Act, section 66 was renumbered section 66(1) and sub section (2) was added thereto in the following form "Subject to the provisions of sub section (3), where in any trial of an offence under clause (b) of sub section (1) for the consumption of an intoxicant, it is alleged that the accused person consumed liquor, and it is provided that the concentration of alcohol in the blood of the accused person is not less than 0.05 per cent, weight in volume then the burden of proving that the liquor consumed was a medicinal or toilet preparation, or an antiseptic preparation or solution, or a flavouring extract, essence or syrup, containing alcohol, the consumption of which is not in contravention of the Act or any rules, regulations or orders made thereunder, shall be upon the accused person and the Court shall in the absence of such proof presume the contrary. " By sub section (3) the provisions of sub section (2) are not to apply to consumption of liquor by indoor patients during the period they are being treated in a" hospital, convalescent home, nursinog home, or duspensary, maintained or supported by Government or a local authority, or by charity, or by such other persons in such other institutions, or in such circumstances as may be prescribed. The result of this amendment was to make, except in the cases expressly provided in cl. (3) concentration of alcohol in excess of 0.05 per cent, weight in volume in blood presumptive evidence of ' consumption of liquor in contravention of the provisions of the Act and the burden of proving that the liquor consumed was a medicinal or toilet preparation or an antiseptic preparation or solution, or a 936 flavouring extract, essence or syrup, lay upon the person charged with the offence. The case of the prosecution in this case rested primarily upon the report of the Chemical Examiner certifying that alcohol concentration in the blood of the appellant which was extracted at 6 a. m. on April 3, 1961, was in excess of the percentage prescribed by section 66 (2). The prosecution had, therefore, to establish that the specimen examined by the Chemical Examiner was the specimen of blood collected from the body of the appellant and that the specimen disclosed concentration of alcohol in excess of the permissible limits. It is somewhat unfortunate that the trial Magistrate did not appreciate that the only important piece of evidence on which the prosecution case against the appellant rested was contained in the report of the Chemical Examiner. There is no dispute that the appellant went to the Civil Hospital early in the morning of April 3, 1961. He has admitted that fact in his statement before the Court. Dr. Kulkarni has deposed that on being told about the death of Mohamad Yusuf the appellant fainted and was admitted to the Hospital, and that he found that the appellant was smelling of alcohol. Dr. Kulkarni has stated that no treatment was given to the appellant and there is no suggestion by the appellant that he was given any treatment in the Hospital. Dr. Rote was asked by Dr. Kulkarni to collect a specimen of blood from the body of the appellant, and a blood specimen was accordingly taken and the phial was sealed in his presence by a laboratory servant. Dr. Rote stated in cross examination that no methyl spirit was applied before extracting blood. The certificate of Dr. Rote dated April 13, 1961, that he had collected blood from the body of tile appellant on the morning of April 3, 1961, and that the bottle containing the blood was sealed in his presence corroborates the statement. 937 But there is no evidence on the record about the person in whose custody this phial remained till it was handed over to the Sub Inspector of police on April 13, 1961, when demanded. There is also no evidence about the precautions taken to ensure against tampering with the contents of the phial when it was in the Civil Hospital and later in the custody of the police between April 13, 1961, and April 18, 1961. Even the special messenger with whom the phial was sent to the Chemical Examiner was not examined : and Ext. 43 which was the acknowledgment signed by some person purporting to belong to the establishment of the Chemical Examiner does not bear the official designation of that person, The report of the Chemical Examiner mentions that a sealed phial was received from the police officer by letter No. C/010 of 1961 dated April 18, 1961, but there is no evidence that the seat was the one which was affixed by Dr. Rote on the phial. These undoubtedly were defects in the prosecution evidence which appear to have occurred on account of insufficient appredation of the character of the burden which the prosecution undertakes in proving a case of an offence tinder section 66 (1) (b) relying upon the presumption tinder section 66 (2). It was assumed by the Trial Magistrate that the phial containing blood collected by Dr. Rote was kept in a safe place and could not be tampered with that it was kept in such a place that it was not liable to deteriorate, that thereafter this phial also remained with the police at a place where it could not be tampered with, and that the phial sealed by Dr. Rote was delivered by the special messenger to the establishment of the Chemical Examiner and that the same phial was examined by the Chemical Examiner, and that between April 3, 1961, and April 19, '1961, when the contents of the phial were Subjected to chemical examination, they had not 938 deteriorated. Both the Prosecutor and counsel for the appellant appear to have contributed to the somewhat slipshod trial of the case. Dr. Kulkarni and Dr. Rote were examined as witnesses for the prosecution, but no examination or cross examination of either was directed in respect of these important matters, and even to the investigating officer, no questions seeking to elicit information on these matters were asked. The report of the chemical examination of the blood specimen collected at 11 a. m. on April 3, 1961, was also not tendered in evidence by the prosecution though the same was demanded. The Sessions judge pointed out some of these infirmities. He arrived at the conclusion that as the examination of the blood specimen taken at 6 a. m. on April 3, 1961, was not obtained in the course of investigation at the direction of the investigating officer, who had reasonable grounds for believing that the appellant had consumed an intoxicant, the "presumption under section 129B" could not come to the aid of the prosecution. The learned judge observed and it was conceded at the Bar before him that the prosecution could still establish that the appellant had consumed liquor otherwise than by a certificate obtained in respect of examination of the blood concentration procured ill the manner provided under cls. (1) and (2) of section 129A, but as the trial Magistrate had relied merely upon the presumption under section 66 (2) and had not analysed the evidence in that light, nor had he directed his attention to the question whether the other evidence on the record, a part from the presumption, established such case, the order of the conviction could not be sustained. Observing that there had not been a "fair and full trial" in respect of the offence under the Bombay Prohibition Act, the Sessions judge set aside the order of the trial Magistrate and directed that the case be sent back to the Migistrate and be retried in the 939 light of the observations made by him in the course of the judgment. An order for retrial of a criminal case is made in exceptional cases, and not unless the appellate Court is satisfied that the Court trying the proceeding had no jurisdiction to try it or that the trial was vitiated by serious illegalities or irregularities or on account of misconception of the nature of the proceedings and on that account in substance there had been no real trial or that the Prosecutor or an accused was, for reasons over which he had no control, prevented from leading or tendering evidence material to the charge, and in the interests of justice the appellate Court deems it appropriate, having regard to the circumstances of the case, that the accused should be put on his trial again. An order of re trial wipes out from the record the earlier proceeding, and exposes the person accused to another trial which affords the prosecutor an opportunity to rectify the infirmities disclosed in the earlier trial, and will not ordinarily be countenanced when it is made merely to enable the prosecutor to lead evidence which he could but has not cared to lead either on account of insufficient appreciation of the nature of the case or for other reasons. Harries, C. J.,in Ramanlal Rathi vs The State (1), observed : "If at the end of a criminal prosecution the evidence leaves the Court in doubt as to the guilt of the accused the latter is entitled to a. verdict of not guilty. A retrial may be ordered when the original trial has not been satisfactory for particular reasons, for example, if evidence had been wrongly rejected which should have been admitted, or admitted when it should have been rejected, or the Court had refused to hear certain witness who should have been heard. But retrial cannot be ordered on the ground that, the prosecution did not (1) A.I.R. (1951) Cal. 305. 940 produce the proper evidence and did not know how to prove their case. " In the present case, undoubtedly the trial before the Magistrate suffered from irregularities which we have already set out. The evidence, such as was led, was deficient in important respects; but that could not be a sufficient ground for directing a retrial. If the Sessions judge thought that in the interests of justice and for a just and proper decision of the case it was necessary that additional evidence should be brought on the record he should have, instead of directing a retrial and reopening the entire proceedings resorted to the procedure prescribed by section 428 (i) or the Code of Criminal Procedure. There is no doubt that if the ends of justice require, the appellate Court should exercise its power under the said section. The observations made by the Sessions judge do clearly suggest that in this case he was of the view that "additional evidence was necessary,". The examination or both Dr. Rote and Dr. Kulkarni was perfunctory. What steps were taken by Dr. Rote after he collected the blood specimen and sealed the phial, to whom he entrusted the phial, where it was stored and what steps were taken for preventing interference, deterioration or tampering with the same, are matters which were never investigated. Neither the prosecutor nor counsel for the defence asked any Question in that behalf, and even the trial Magistrate did not take any steps to obtain information in that behalf. The method of storage of the phial when it was in the custody of the police officers and its dealing therewith when it was in the custody of the special messenger have been left in obscurity. But the evidence does disclose that the phial wassealed in the presence of Dr. Rote, and the report ofthe Chemical Examiner also disclosed that he had opened a phial which was sealed and that the sea) was intact, with the device "Medico Legal 941 Bombay". Evidence regarding the_ dealing With the phial since it was scaled and it was submitted for examination of the Chemical Examiner may appear to be formal; but it has still to be led in a criminal case to discharge the burden which lap upon the prosecution. Such evidence would appear to be "necessary" with in the meaning of section 428 (1) of the Code of Criminal Procedure, and may, having regard to the circumstances, be permitted to be led in appeal. The attention of the Magistrate does not appear to have been directed to the question whether the time which elapsed between the collection of blood and its examination had any material bearing on the result of the examination. The Court would normally require some evidence that the concentration of alcohol is not due to deterioration or delay in the examination of the contents of the phial or to exposure to weather conditions, before raising the presumption under section 66 (2). An opportunity to lead this evidence may be given under section 428, not with a view to fill up lacunae in the evidence but to regularise the trial of the accused and to ensure that the case is established against him beyond reasonable doubt, more so when for the purpose of ' convicting the accused reliance is sought to be placed upon a presumption arising from the report of a Chemical Examiner, who is not examined before the Court, and which substantially raises a presumption of guilt. In this connection, the circumstance that the regularity of the process for extraction of blood and the subsequent dealing of the blood phial was not challenged by the appellant in the trial court is material. But counsel for the appellant contends that the report of the Chemical Examiner on which alone substantially the case of the prosecution rests is inadmissible in evidence. He submits that in order to raise a presumption under section 66( 2) of the Act, in a trial of a person charged with committing an 942 offence under section 66 (1) (b), it must be proved that concentration of alcohol in the blood of the accused person is not less than 0.05 per cent weight in volume, and that can only be proved by the report of the Chemical Examiner or the Medical Officer in the manner provided by section 129B in respect of examination of blood collected in the circumstances and under conditions prescribed by section 129 A. Counsel says that the Legislature having enacted a special provision relating to the procedure by which evidence about concentration of alcohol in blood is to be collected, examined and placed before the Court, no other method of establishing concentration of alcoholic content in the blood of a person charged with an offence under section 66 (1) (b) is permissible, and that even though a concession was made before the Court of Session by counsel appearing for the appellant, evidence aliunde the report under section 129B was inadmissible. Starting on this hypothesis, counsel submits that the report of the Chemical Examiner in respect of blood collected not in the manner and in the conditions set out in section 129 A, cls. (1) and (2), cannot be used as evidence for raising a presumption against the appellant, and beyond the bare circumstance that Dr. Kulkarni noticed that the appellant was "smelling of liquor at 6 a. m. on April 3, 1961, there is no evidence on which the appellant could be convicted. it is necessary in considering the validity of this argument to examine the scheme of sections 66 (2), 129A and 129 B, which were added by Act. 12 of 1959. In a trial of an accused person for an offence of consuming liquor under section 66 (1) (b) of the Act, section 66(2) makes proof of concentration of alcohol in the blood of the accused in excess of the prescribed quantity presumptive evidence that he has consumed, in contravention of the provisions of the Act or the rules, regulations or orders made thereunder, liquor 943 which is not excepted from the prohibitions in Ch. III, and the burden lies upon the accused to prove that liquor consumed by him was a medicinal, toilet or antiseptic preparation or a solution or flavouring extract, essence or syrup containing alcohol. Subsection (2) of section 66 provides for raising a presumption upon proof of concentration of alcohol in blood: it does not prescribe the manner or method of proving concentration of alcohol in blood of the person charged with the offence under section 66 (1) (b) exceeding the percentage mentioned in sub section The material part of section 129A is : "(1) Where in the investigation of any offence under this Act, any Prohibition Officer duly empowered in this behalf by the State Government or any Police Officer, has reasonable ground for believing that a person has consumed an intoxicant and that for the purpose of establishing that he has consumed an intoxicant or for the procuring of evidence thereof it is necessary that his body be medi cally examined, or that his blood be collected for being tested for determiningthe percentage of alcohol therein,such Prohibition Officer or Police Officer may produce such person before a registered medical practitioner (authorised by general or special order by the State Government in this behalf) for the purpose of such medical examination or collection of blood, and request such registered medical practitioner or furnish a certificate on his finding whether such person has consumed any intoxicant and to forward the blood collected by him for test to the Chemical Examiner or Assistant Chemical Examiner to Government, or to such other Officer as the State Government may appointing this behalf. 944 (2) The registered medical ' practitioner before whom such person has been produced shall examine such person and collect and forward in the manner prescribed the blood of such person, and furnish to the officer by whom such person has been produced, a certificate in the prescribed form containing the result of his examination. The Chemical Examiner or Assistant Chemical Examiner to Government, or other Officer appointed under sub section (1) shall certify the result of the test of the blood forwarded to him, stating therein the prescribed form, the percentage of alcohol, and such other particulars as may be necessary or relevant. (3) If any person offers resistance to his production before a registered medical practitioner under sub section (1) or on his production before such practitioner to the examination of his body or to the collection of his blood, it shall be lawful to use all means reasonably necessary to secure the production of such person or the examination of his body or the collection of blood necessary for the test. (4) x x x x "(5) Resistance to production before a registered medical practitioner as aforesaid, or to the examination of the body under this section, or to the collection of blood as aforesaid, shall be deemed to be an offence under section 186 of the Indian Penal Code. (6) x x x (7) x x x (8) Nothing in this section shall preclude the fact that the person accused of an offence 945 has consumed in intoxicant from being proved otherwise than in accordance with the provi sions of this section. " The section is intended primarily to provide for compelling a person reasonably believed by an Officer investigating an offence under the Act or by a Prohibition Officer duly empowered, to have consumed liquor, to submit himself to medical examination, and collection of blood. Before a person can be compelled to submit himself to examination, two conditions have to be fulfilled. It must be in` the course of investigation of an offence under the Act; and that a Prohibition Officer duly empowered in that behalf by the State Government, or Police Officer has reasonable ground for believing that a person has consumed liquor, and that for the purpose of establishing that such a person has consumed an intoxicant, or for procuring evidence thereof, it is necessary that his body be medically examined or his blood be collected. It is only when these conditions exist that a person can be sent or produced before a registered medical practitioner for purposes of medical examination or collection of blood. By sub section (5), resistance to production before a registered medical practitioner or to the examination of his body or collection of blood is made unlawful. By sub section (2), the registered medical practitioner is obliged to examine the person produced before him and to collect and forward in the manner prescribed the blood of such person and to furnish to the Officer a certificate in the prescribed form containing the result of his examination. But sub section (8) expressly provides that proof of the fact that a person has consumed an intoxicant may be secured in a manner otherwise than as provided in section 129 A. Therefore, production for examination of a person before a registered medical practitioner during the course of investigation by a competent officer who has reason. able ground for believing that the person has 946 consumed an intoxicant and for establishing that fact examination is necessary, is not the only method by which consumption of an intoxicant may be proved. An investigating officer or a Prohibition officer empowered by the State Government must, ,if he desires to have a person examined, or his blood taken, in the course of investigation for an offence under the Bombay Prohibition Act, take steps which are prescribed in section 129 A and the certificate of the registered medical practitioner and the report of the Chemical Examiner made on the result of the test of the blood forwarded to him are by section 129 B made admissible as evidence in any proceeding under the Act, without examining either the registered medical practitioner or the Chemical Examiner. But if examination of a person or collection of blood from the body of a person is made otherwise than in the conditions set out in section 129 A, the result of the exa mination or of the blood may, if it is relevant to a charge for an offence under the Act, be proved by virtue of cl. (8), and there is nothing in section 129 A or section 129 B which precludes proof of that fact if it tends to establish that the person whose blood was taken or was examined had consumed illicit liquor. Nazir Ahmed vs The King ' Emperor (1), on which strong reliance was placed by counsel for the appellant in support of his plea that section 129 A (1) & (2) and section 129 B prescribe the only method of proving concentration of alcohol in blood; is of little assistance in this case. In that case the judicial Committee held that sections 164 and 364 of the Code of Criminal Procedure prescribed the mode in which confessions are to be recorded by Magistrates when made during investigation and a confession before a Magistrate not recorded in the manner provided was inadmissible. In so holding the judicial Committee relied upon the rule that where power is given to, do a certain thing in a certain way the thing must be done in that way to the exclusion of all other (1) (1936) L.R. 63, I.A. 372. 947 methods of performance or not at all, and that the rule was applicable to a Magistrate who was a ,judicial officer acting under section 164 of the Code of Criminal Procedure. It was therefore held that sections 164 and 364 of the Code of Criminal Procedure conferred powers on Magistrates and delimited them, and these powers could not be enlarged in disregard of the provisions of section 164. The judicial Committee observed : " 'As a matter of good sense, the position of accused persons and the position of the magis tracy are both to be considered. An exami nation of The Code shows how carefully and precisely defined is the procedure regulating what may be asked of, or done in the matter of examination of, accused persons, and as to how the results are to be recorded and what use is to be made of such records. Nor is this surprising in a jurisdiction where it is not permissible for an accused person to give evidence on oath. So with regard to the magistracy; it is for obvious reasons most desirable that magistrates and judges should be in the position of witnesses in so far as it can be avoided. Sometimes it cannot be avoided, as under section 533; but where matter can be made of record and therefore admissible as such there are the strongest reasons of policy for supposing that the Legislature designed that it should be,made available in that form and no other. In their Lordships view, it would be particularly unfortunate if magistrates were asked at all generally to act rather as police officers than as judicial persons; to be by reason of their position freed from the disability that attaches to police officers under section 162 of the Code; and to be at the same time freed, notwit hstanding their position as magistrates, from any obli gation to make records under section 164. In the 948 result they would indeed be regulated to the position of ordinary citizens as witness, 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. Their Lordships are, however, clearly, of opinion that this unfortunate position cannot in future arise because, in their opinion, the effect of the statute is clearly to prescribe the mode in which confessions are to be dealt with by magistrates when made during an investigation, and to render inadmissible any attempt to deal with them in the method proposed in the present case. " The rule in Taylor vs Taylor (1), on which the Judicial Committee relied has, in our judgment, no Application to this case. Section 66 (2), as we have already observed, does not prescribe any particular method of proof of concentration of alcohol in the blood of a person charged with consumption or use of an intoxicant. Section 129 A is enacted primarily with the object of providing when the conditions prescribed are fulfilled, that a person shall submit himself. to be produced before a registered medical practitioner for examination and for collection of blood. Undoubtedly ' section 129 A (1) confers power upon a Police or a Prohibition Officer in the conditions set out to compel a person suspected by him of having consumed ' illicit liquor., to be produced for examination and for collection of blood before a registered medical practitioner. But proof of concentration of alcohol may be obtained in the manner described in section 129A(1) & (2), or otherwise; that is expressly provided by section (8) of section 129A. The power of a Police Officer to secure examination of a person suspected of having consumed an intoxicant in the course of investigation for an offence under the Act is undoubtedly restricted by section 129A. But in the present case the Police Officer investigating the (1) 949 offence had not produced the accused before a medical officer : it was in the course of his examination that Dr. Kulkarni, before any investigation was commenced, came to suspect that the appellant had consumed liquor, and he directed that specimen of blood of the appellant be collected. This step may have been taken for deciding upon the line of treatment, but certainly not for collecting evidence to be used against the appellant in any possible trial for a charge of an offence of consuming liquor contrary to the provisions of the Act. If unlawful consump tion of an intoxicant by a person accused, may be proved otherwise than by a report obtained in the conditions mentioned in section 129A(1) & (2), there would be no reason to suppose that other evidence about excessive concentration of alcohol probative of consumption is inadmissible. Admissibility of evidence about concentration of alcohol in blood does not depend upon the exercise of any power of the police or Prohibition Officer. Considerations which were present in Nazir Ahmad 's case (1), regarding the inappropriateness of Magistrates being placed in the same position as ordinary citizens and being required to transgress statutory provisions relating to the method of recording confessions also do not arise in the present case. Section 129B reads as follows ""Any document purporting to be (a) a certificate under the hand of a registered medical practitioner, or the Chemical Examiner or Assistant Chemical Examiner to Government, under section 129A or of an officer appointed under sub section (1) of that section, or (b) a report under the hand of any registered medical practitioner in any hospital or dispensary maintained by the State Government or a (1) (1936) L.R. 63 I.A. 372. 950 local authority, or any other registered medical practitioner authorised by the State Government in this behalf, in respect of any person examined by him or upon any matter or thing duly submitted to him for examination or analysis and report, may be used as evidence of the facts stated in such certificate, or as the case may be, report, in any proceedings under this Act; but the court may if it thinks fit, and shall, on the application of the prosecution or the accused person, summon and examine any such person as to the subject matter of his certificate or as the case may be, report." Section 129B, cl. (a) makes a certificate by a registered medical practitioner or the Chemical Examiner admissible as evidence of the facts stated therein. Clause (b) of s.129B makes another class of documents admissible as evidence of facts therein. These are reports of certain classes of registered medical practitioners in respect of persons examined by them or upon any matter or thing duly submitted for examination or analysis and report. Therefore cl. (a) of section 129B makes the certificate under section 129A admissible: cl. (b) makes reports of registered medical practioners in respect of persons, matters or things submitted to them admissible. Section 129B is an enactment dealing with a special mode of proof of facts stated in the certificates and reports mentioned therein : it has no other effect or operation. The Sessions judge in more places than One has in the course of his judgment referred to "the presumption under section 126B". The section however deals with proof of facts, and not presumptions : it enacts a rule Of evidence similar to section 510 of the Code of Criminal Procedure. Without proof of the facts stated, the contents of the certificate or report may by section 129B be proved by tendering the document. If the document is tendered, it is admissible as evidence of the 951 contents thereof. The certificate or the report proved in the mariner provided by section 129B raises no presumption about consumption of liquor in contravention Of the provisions of the Act: it is proof by evidence of concentration of alcohol in excess of the prescribed percentage whether it is the manner provided by cl. (a) or cl. (b) of section 129B, or otherwise, that gives rise to a presumption under section 66(2). Section 129A contemplates two classes of certificates certificate of the result of the examination by a registered medical practitioner whether the person sent to him has consumed any intoxicant and the certificate of the Chemical Examiner of the examination of blood collected by a registered medical practitioner and sent to him for examination. These are made admissible by virtue of cl. (a) of section 129B. Clause (b) of section 129B deals with the admissibility of reports in respect of examination of persons or of matters or things submitted to the registered medical practitioners for examination or analysis and report. These are undoubtedly different from the certificates of examinations made under section 129A. The report of a registered medical practitioner under cl. (b) of section 129B may be upon a , 'matter or thing" and so may be in respect of blood specimen submitted to him. On an analysis of sections 129A and 129B, it is clear that the Legislature has provided in the first instance for compelling persons suspected of consuming intoxicants to be produced and to submit themselves for examination and extraction of blood which, under the law as it stood, could not be secured, but thereby the law did not provide for only one method of proving that a person had consumed illicit liquor within the meaning of section 66 (2). The Legislature has made the certificate of the examination under section 129A, sub sections (1) and (2) admissible without formal proof, but by sub section (8) of section 129A, 952 the adoption of any other method of collection of evidence for proving that a person accused has consumed an intoxicant is not precluded and a report of any registered medical practitioner which tends to establish that fact in respect of matters specified in cl. (b) of section 129B is also made admissible. On that view of sections 129A and 129B, there is no warrant for assuming that it was intended thereby to exclude in trials for offences under section 66 (1) (b) of the Act the operation of section 510 of the Code of Criminal Procedure. The Code makes a document purporting to be a report under the hand of a Chemical Examiner and certain other documents upon any matter or thing duly submitted to him for examination or analysis and report admissible in any enquiry, trial or other proceeding under the Code. The terms of section 510 of the Code of Criminal Procedure are general; but on that account it cannot justifiably be assumed that by enacting sections 129A and 129B, the Legislature intended that the certificate of a competent officer in respect of matters not governed thereby shall become inadmissible. It is open to the prosecution to rely in corroboration of a charge of consumption of illicit liquor upon a certificate under cl. (a) of section 129B if it is obtained in the manner prescribed by section 129A, and also to rely upon the report of a registered medical practitioner in respect of any person examined by him or upon any matter or thing duly submitted to him for examination or analysis and report. It is also open to the prosecution to rely upon the report of the Chemical Examiner in cases not covered by section 129A as provided under section 510 of the Code of Criminal Procedure. It was urged that by the enactment of section 129A and section 129B of the Act, section 510 of the Code stood repealed in its application to offences under section 66 (1) of the Bombay Prohibition Act, and reliance in this behalf was placed upon article 254 (2) of the Constitution. It is true that power to legislate on matters 953 relating to Criminal Procedure and evidence falls within the Third List of the Seventh Schedule to the Constitution and the Union Parliament and the State Legislature have concurrent authority in respect of these matters. The expression " 'criminal procedure" in the legislative entry includes investigation of offences, and sections 129A and 129B must be regarded as enacted in exercise of the power conferred by Entries 2 and 12 in the Third List. The Code of Criminal Procedure was a law in force. immediately before the commencement of the Constitution, and by virtue of article 254 (2) legislation by a State Legislature with respect to any of the matters enumerated in the Third List repugnant to an earlier law made by Parliament or an existing law with respect to that matter if it has been reserved for the consideration of the President and has received his assent prevails in the State. Bombay Act No. 12 of 1959 was reserved for the consideration of the President and had received his assent: sections 129A and 129B will prevail in the State of Bombay to the extent of inconsistency with the Code,, but no more. That they so prevail only to the extent of the repugnancy alone and no more is clear from the words of article 254 : Deep Chand vs The, State of Uttar Pradesh (1) and Ch. Tikaramji vs The State Uttar Pradesh (2). It is, difficult to regard section 129B of the Act as so repugnant to section 510 of the Code as to make the latter provision wholly inapplicable to trials for offences under the Bombay Prohibition Act. Section 510 is a general provision dealing with proof of reports of the Chemical Examiner in respect of matters or things duly submitted to him for examination or analysis and report. Section 129B deals with a special class of reports and certificates. In the investigation of an offence under the Bombay Prohibition Act, examination of a person suspected by a Police Officer or Prohibition Officer of having consumed an intoxicant., or of his blood may be carried out only in the manner prescribed by s.129A: (1) [19591 Supp. 2 S.C.R. 8. (2) ; 954 and the evidence to prove the facts disclosed thereby will be the certificate or the examination viva voce of the registered Medical Practitioner, or the Chemical Examiner, for examination in the course of an investigation of an offence under the Act of the person so suspected or of his blood has by the clearest implication of the law to be carried out in the manner laid down or not at all. Report of the Chemical Examiner in respect of blood collected in the course of investigation of an offence under the Bombay Prohibition Act, otherwise than in the manner set out in section 129A cannot therefore be used as evidence in the case. To that extent section 510 of the Code is superseded by section 129B. But the report, of the Chemical Examiner relating to the examination of blood of an accused person collected at a time when no investigation was pending, or at the instance not of a Police Officer or a Prohibition Officer remains admissible under section 510 of the Code. It was urged before the Court of Session that the report of the Chemical Examiner was submitted by that officer not to the Court or to the medical officer but to the police officer and it was by virtue of section 162 of the Code of Criminal Procedure inadmissible, except to the extent permitted within the strict limits prescribed by that section, But section 510 makes provision with regard to proof of documents by production thereof, and the application of section 162 (1) is expressly made subject to what is provided in the Code of Criminal Procedure. Exclusion from evidence of any part of a statement made to a police officer or a record from being used for any purpose at any enquiry or trial in respect of an offence under investigation at the time when such statement was made is "save as hereinafter provided". The word "hereinafter" is, in our judgment not restricted in its operation to section 162 alone but applies to the body of the Code; to hold otherwise would be to introduce a patent inconsistency between section 207 A and section 162 of the Code, 955 for by the former section in committal proceeding, statements recorded under section 162 are to be regarded as evidence. The contention raised that the report made to the police officer by the Chemical Examiner was inadmissible in evidence was rightly rejected. Finally, it was urged that the blood specimen was not submitted in the manner prescribed by rules framed under the Bombay Prohibition Act, and therefore it could not be regarded as, "duly submitted. " The Government of Bombay has, by notification dated April 1, 1959, framed rules under cl. (w) of section 143 of the Bombay Prohibition Act, called the Bombay Prohibition (Medical Examination and Blood Test) Rules. Rule 3 deals with the examination of a person by a registered medical practitioner before whom he is produced under sub section (1) of section 129A. Rule 4 provides for the manner of collection and forwarding of blood specimen and r. 5 deals with certificates of tests of "sample blood". All these rules deal with medical examination of a person who is produced before a registered medical practitioner under sub section (1) of section 129A. To an examination to which section 129A does not apply, the rules would have no application. The law not having prescribed a particular method of submitting specimen of blood collected from an accused person when blood has been collected before any investigation has started, it is unnecessary to consider the argument whether the expression "duly submitted" used in section 510 of the Code of Criminal Procedure means merely in the manner prescribed by rules in that behalf or as pointed out by the learned Sessions judge, submitted after taking adequate precautions for ensuring its safety and for securing against tampering. In the present case, the blood specimen was collected by Dr. Rote and thereafter it was handed over to the police officer on demand by him and ultimately submitted to the Chemical Examiner for his examination, it would '. in our judgment, be regarded as "duly submitted. " 956 We are unable to accept the contention of counsel for the appellant that the appellant should, on the view taken by the Sessions judge. be acquitted, but for reasons already stated, we are also unable to agree with the learned judge that the appellant should be retried before the trial Court. We accordingly set aside the order passed by the Trial Magistrate and direct that the Sessions judge do hear the appeal and dispose of it according to law, after giving an opportunity to the prosecution to lead evidence on the matters which are indicated in the course of this judgment, the additional evidence may be taken by the Sessions judge himself or may be ordered to be recorded in the Trial Court. The accused shall be examined under section 342 of the case of Criminal Procedure and be given an opportunity to lead evidence in rebuttal, if he so desires. The Sessions judge may require the presence of the Chemical Examiner for examination before him or before the Magistrate, if he thinks that examination viva voce of the Chemical Examiner is necessary to do complete justice in the case. Subject to the above modification, the appeal is dismissed. DAS GUPTA, J. I think this appeal should be allowed. The appellant was convicted under section 66 (1) (b) of the Bombay Prohibition Act, 1949 on the charge of having consumed an intoxicant against the provisions of the Prohibition Act and was sentenced to pay a fine of Rs. 500/ or in default to suffer rigorious imprisonment for two months. On appeal, the Sessions judge, jalgaon, being of opinion that the evidence already on the record was not sufficient to establish the guilt of the accused, set aside the conviction and sentence passed against him. He, however, ordered the case to be sent back to the learned judicial Magistrate, Bhusawal, for 957 re trial so that the prosecution might have an opportunity of adducing evidence to connect the report of the chemical examination which was produced at the trial with the blood of the accused person which was taken at 6 a. m. on April 3, 1961, a few hours after the alleged consumption of the intoxicant. It is obvious that the only purpose that such additional evidence was expected to serve was that the prosecution would get the benefit of section 66 (2) of the Bombay Prohibition Act. The Revision petition filed by the accused against this order was rejected by the High Court of Bombay. Against that order of rejection, this appeal has been preferred after obtaining special leave from this Court. The main contention urged in support of the appeal is that as the blood that was taken at 6 a. m. was not taken in accordance with the provisions of section 129 A of the Prohibition Act, no evidence as regards the contents of that blood As admissible in law for the purpose of section 66 (2) of the Prohibition Act. It is necessary to consider this contention carefully as it is not disputed that the prosecution must fail unless it can get the benefit of section 66 (2) of the Prohibition Act. To understand, the nature of the right conferred on the prosecution by section 66 (2) it will be helpful to maintain briefly a few other sections of the Act. Section 13 of the Act prohibits among other things the consumption of an intoxicant. Section 2 (22) defines intoxicant to mean "any liquor, intoxicating drug, opium or any other substance. , which the State Government may by notification in the official gazette declare to be an intoxicant." ",Liquor" is defined ins. 2 (24) to include (a) spirits of wine (denatured spirits), wine, beer, toddy and all liquids consisting of or containing alcohol; and (b) any other intoxicating substance which the State Government may by notification in the official gazette, declare to 958 be liquor for the purpose of this Act. It is important to mention also section 24 A of the Act, the relevant portion of which for our present purpose runs thus : "Nothing in this Chapter shall be deemed to apply to: (1) Any toilet preparation containing alcohol which is unfit for us as intoxicant liquor; (2) Any medicinal preparation containing alcohol which is unfit for use as an intoxicating liquor; (3) Any antiseptic preparation or solution containing alcohol which is unfit for use as intoxicating liquor; (4) Any flavouring extract, essence or syrup containing alcohol which is unfit for use as intoxicating liquor. " As section 13 is in Chapter III the position in law is that the prohibition in section 13 against consumption of liquor does not apply to any of the substances mentioned in section 24 A. It is necessary to mention also that it has been held by this Court in State of Bombay (now Gujarat) vs Narandas Mangilal Aggarual (1), that the burden of proving that the substances in respect of which the prohibition in section 13 or any other section of the Chapter is alleged by the prosecution to have been contravened, does not fall within any of the four classes mentioned in section 24 A, is on the prosecution. It is clear therefore that a prosecution for an offence under section 66(1) (b) cannot succeed by the mere proof of the fact that the accused consumed liquor. It is also to be proved that the liquor does not fall (1) [1962] Supp. 1 S.C.R. 15. 959 within any of the substances mentioned in section 24(A). In other words, before a person can be convicted under section 66(1)(b) of the Prohibition Act for consumption of an intoxicant the prosecution has to prove two things. It has first to prove that the accused consumed an intoxicant, and secondly, it has to prove that intoxicant was not either a toilet preparation or a medicinal preparation or an anti septic preparation or solution containing alcohol or a flavouring extract, essence or syrup containing alcohol, which while containing alcohol was not unfit for use ,as intoxicating liquor. Section 66(2) of the Act comes to the aid of the prosecution in proving both these things by providing that if after alleging that the accused consumed liquor the prosecution proves that " 'the concentration of alcohol in the blood of the accused person is not less than 0.05 per cent weight in volume " then the burden of disproving the ingredients of the offence as mentioned above will be shifted to the accused. The result of this is that where the prosecution proves such concentration of alcohol in the blood of the accused person the accuse will be liable to conviction until and unless the accused proves either that he did not consume any intoxicant or that the substance he consumed was a medicinal or toilet preparation or any antiseptic preparation or solution containing alcohol or any flavouring extract, essence or syrup containing alcohol, "which is unfit for use as intoxicating liquor. " If there had been no special provision in the Act as to how this concentration of alcohol in the blood of the accused person could be proved by the prosecution, it would undoubtedly be open to the prosecution, to obtain the blood of the accused person in any manner not prohibited by law, have it examined by an expert and produce the evidence of the expert before the Court either by examining the expert himself or if the law permits by producing his 960 report even without such examination. A special provision has however been made by the legislature as regards the mode in which the prosecution can bring before the Court the evidence as regards the concentration of alcohol in the blood of the accused person. This provision appears in section 129A of the Act. That section runs thus : Section 129A. (1) Where in the investigation of any offence under this Act, any Prohibition Officer duly, empowered in this behalf by the State Government or any Police Officer, has reason. able ground for believing that a person has consumed an intoxicant and that for the purpose of establishing that he has consumed an intoxicant or for the procuring of evidence thereof it is necessary that his body be medically examined, or that his blood be collected for being tested for determining the percentage of alcohol therein, such Prohibition Officer or Police Officer may produce such person before a registered medical practitioner (authorised by general or special order by the State Government in this behalf ) for the purpose of such medical examination or collection of blood, and request such registered medical practitioner to furnish a certificate on his finding whether such person has consumed any intoxicant and to forward the blood collected by him for test to the Chemical Examiner or Assistant Chemical Examiner to Government, or to such other officer, as the State Government may appoint in this behalf. (2) The registered medical practitioner be. fore whom such person has been produced shall examine such person and collect and forward in the manner prescribed, the blood of such person, and furnish to the officer by whom such person 961 and collect and forward in the manner prescribed, the blood of such person, and furnish to the officer by whom such person has been produced, a certificate in the prescribed form containing the result of his examination. The Chemical Examiner or Assistant Chemical Examiner, to Government, or other officer appointed under sub section (1) shall certify the result of the test of the blood forwarded to him, stating therein, in the prescribed form, the percentage of alcohol, and such other particulars as may be necessary or relevant. (3) If any person offers resistance to his production before a registered medical practi tioner under sub section (1) or on his production before such medical practitioner to the examination of his body or to the collection of his blood, it shall be lawful to use all means reasonably necessary to secure the production of such person or the examination of his body or the collection of blood necessary for the test. (4) If the person produced is a female, such examination shall be carried out by, and the blood shall be collected by or under the supervision of a female registered medical practitioner authorised by general or special order, by the State Government in this behalf, and any examination of the body, or collection of blood, of such female shall be carried out or made with strict regard to decency. (5) Resistance to production before a registered medical practitioner as aforesaid or to the examination of the body under this section, or to the collection of blood as aforesaid, shall be deemed to be an offence under section 186 of the Indian Penal Code. (6) Any expenditure incurred for the purpose of enforcing the provision of this section including any fees payable to a 962 registered medical practitioner or the officer appointed under sub section (1), be defrayed out of the money provided by the State Legislature. (7) If any Prohibition Officer or Police Officer vexatiously and unreasonably proceeds under sub section (1), he shall, on conviction, be punished with fine which may extend to five hundred rupees. (8) Nothing in this section shall preclude the fact that the person accused of an offence has consumed an intoxicant from being proved otherwise than in accordance with the provisions of this section". On behalf of the appellant, it is contended that no evidence as regards the concentration of alcohol in the blood can be given by the prosecution unless the blood has been collected and forwarded and thereafter examined in accordance with the procedure laid down in section 129 A. In my opinion, this contention should succeed. It has to be noticed, in the first place, that the very detailed provisions made in this section section 129 A were made by the same amending Act which created this special right in favour of the prosecution by enacting section 66 (2). It does not, in my opinion. stand to reason to say that even when making such detailed procedure the legislature contemplated that those in charge of the prosecution might choose not to follow the procedure at all. It has to be noticed that the production of an accused person before a medical officer is provided for in the first sub section for two different purposes. One is for the examination of his body for procuring evidence of consumption of an intoxicant 963 by him and the other is the collection of his blood for being tested for determining the percentage of alcohol therein. When the accused has been produced the medical practitioner will examine the accused and himself give a certificate whether the person has consumed an intoxicant. He will also take the person 's blood if so requested but he is given no authority to examine the blood himself. The definite provision as regards the examination of the blood is that after the blood has been collected by the registered medical practitioner he will forward the same either to the Chemical Examiner or the Assistant Chemical Examiner to Government or any other officer as the State Government may appoint. It is the duty of the officer be he the Chemical Examiner or the Assistant Chemical Examiner or any other officer appointed for the purpose to whom the blood has been forwarded, to test the blood and to give a certificate stating the percentage of alcohol in the blood and such other particulars as may be necessary or relevant. Provision is also made in the third sub section for "use of all means" that may be necessary to secure the production of such person or the examination of his body or the collection of his blood, if he offers resistance. The fourth sub section makes special provision as regards how the medical examination shall be carried out and the blood shall be collected where the person is a female. The fifth sub section provides that resistance to production before a medical practitioner or to the examination of the body or to the collection of blood shall be deemed to be an offence. The sixth sub section provides as to how the expenditure shall be met. The seventh sub section makes the Prohibition Officer or Police Officer liable to penalty if he has proceeded vexatiously and unreasonably under sub section (1). The eighth sub section which is the last in the section and deserves special consideration will be separately dealt with. 964 One of the well recognised principles of interpretation of statutes is that when a law creates a new right and at the same time prescribes a mode in which that right may be exercised, it will, in the absence of anything indicating a contrary intention, be ordinarily reasonable to hold that the right cannot be exercised in any other mode. In the present case, far from there being any indication to the contrary, all the indications are, in may opinion, in favour of the view that the prescribed mode in section 129A was intended by the legislature to be the only mode in which the right given to the prosecution by section 66 (2) can be exercised. What was the reason behind the legislature 's intention to prescribe such a detailed procedure in section 129A for the ascertainment of the alcoholic content of the blood of a person accused of an offence in connection with the consumption of an intoxicant ? Why did it make such a careful demarcation of functions between the registered medical practitioner before whom a person is first produced by entrusting to him only the duty of examining the body of the person and if so requested of collecting his blood "for being tested for determining the percentage of alcohol ", and the Chemical Examiner or the Assistant Chemical Examiner or any other officer appointed by the State Government in this behalf by entrusting to them only the duty of testing the blood? It appears reasonable to think that the real reason behind all this detailed provision was the legislature 's anxiety to ensure that the very special right created by section 66 (2) in favour of the prosecution for the proof of alcoholic content of the blood shifting the onus on the accused should not be availed of in a manner that might leave loopholes for either errors or unfair practices. This motive is also clear from the provision made in the seventh sub section that " if any Prohibition Officer or Police Officer, vexatiously and unreasonably proceeds under sub section (1), he shall, on conviction, be punished with fine which may extend to five hundred 965 rupees. " All these steps taken by the legislature for prescribing a special procedure would be set at naught if it was left open to the Prohibition Officer or Police Officer to arrange for the taking of blood and testing thereof in any other manner. Thus, to say that it is open to the Prohibition Officer or the Police Officer to have the blood taken and also tested by the registered medical practitioner himself for using his finding as evidence to prove alcoholic concentration in the blood for the purpose of section 66 (2) would be to fly in the face of the clear indication in section 129A that it is not for the registered medical practitioner before whom a person is produced to test the blood, that it is for him only to collect the blood and then forward it to the Chemical Examiner or the Assistant Chemical Examiner or such other officer as the State. Government may appoint in this behalf to test the blood for the alcoholic content. To say that the legislature did not intend the procedure as prescribed ins. 129A to be the only procedure for the ascertainment of alcoholic content in a person 's blood for the purpose of getting the benefit of section 66 (2) of the Act is really to hold that even though the legislature did definitely say that the registered medical practitioner should only collect the blood and forward it to the other functionary named in the section whose duty would be to test it, the legislature was quite content that this direction need not be complied with. With great respect for the learned brethren who take the contrary view, I am of opinion, that it is wholly arbitrary to attribute to a legislature an intention that it did not mean what it said. Even if there had been any scope for doubt on the question whether the legislature intended to prescribe the procedure to be the only procedure available to enable the prosecution to get the aid of section 66 (2), that doubt is, in my opinion, completely set at rest by the 8th sub section of section 129A. This 966 sub section, as already set out, says that "nothing in this section shall preclude the fact that the person accused of an offence has consumed an intoxicant from being proved otherwise than in accordance with the provisions of this section. " It is important to note at once that the legislature did not in this sub section say "that nothing in this section shall preclude the fact of the alcoholic content of the blood of the person from being proved otherwise than in accordance with the provisions of this section," This omission cannot but be held to be deliberate. The operative portion of the section deals, as has already been pointed out earlier ' with two distinct matters one as regards the medical examination of a person 's body for the purpose of establishing that he has consumed an intoxicant and the other as regards the testing of his blood for determining the percentage of alcohol therein. As regards the first of these purposes the 8th sub section makes a clear provision that the section shall not have the effect of excluding any other mode of proof In other words, the fact that a person has consumed an intoxicant may be proved by evidence other than what is made available under the provisions of this section. As regards the other purpose, viz., the determination of the percentage of alcohol in the blood no such saving clause is enacted. In my opinion, this is an eminent case for the application of the principle expressio unius exclusio alterius and that the expression of the legislature 's intention that the provisions of the section shall not preclude the fact of consumption of an intoxicant being proved by other modes justifies a conclusion that the legislature 's intention was that the section shall preclude the fact that the person had a particular percentage of alcohol in his blood from being proved otherwise than in accordance with the provisions of the section. 967 It appears clear to me, on a consideration of section 66 (2) together with section 129A that having conferred on the prosecution the benefit in section 66 (2) that if the alcoholic percentage of an accused person 's blood is proved to be not less than 0.05 the accused would be presumed to be guilty of an offence under section 66 (1) unless he proves to the contrary, the legislature at the same time intended that this fact can be proved only by evidence obtained in the manner provided by the same amending Act in the new section 129A. It is for this reason that while leaving it open to the prosecution to prove the consumption of an intoxicant by an accused person "otherwise than in accordance with the provisions of (section 129A)" it did not leave it open to the prosecution to prove the fact of percentage of alcohol in the blood also "otherwise than in accordance with the provisions of this section. " In coming to this conclusion I have not overlooked the fact that section 129B in providing for certain reports and certificates being used as evidence even without the examination of the person who prepared the report or gave the certificate, has mentioned in cl. (b) a report by a registered medical practitioner "upon any matter or thing duly submitted to him for examination or analysis and report", outside section 129A. It was pointed out that this very fact shows that the legislature contemplated the examination by a registered medical practitioner of "any matter or thing", even apart from section 129A. The argument is that this can only refer to the examination of blood for ascertaining its alcoholic content. I am unable to agree that the only "matter" or " 'thing" that can be submitted to a registered medical practitioner for examination or analysis must be the blood of an accused person and the examination can only be for ascertaining the alcoholic percentage. It is worth noticing that nothing is said in this clause as to how the , 'submission" of the "thing" 968 has to be proved. One can understand the submission of things like, say, some vomit by an accused person being seized by an investigating officer and submitting it to a registered ' medical practitioner for examination or analysis and himself coming to prove the fact of such submission. Where, however, as suggested, the blood of a person is being submitted to a registered medical practitioner it will be unreasonable to think that anybody except a qualified medical practitioner could have collected the blood. There is no provision in this clause that his report in the matter will be available as evidence of the fact stated therein. Or the construction suggested by the respondent that "thing" in cl. (b) of section 129B can only mean blood of the accused person, we shall have the curious position that while the registered medical practitioner who examined the blood need not come into the witness box to prove that fact and the result of his examination, the other medical practitioner who actually collected the blood will have to come into the witness box to prove that fact and his certificate or report will not be evidence of facts stated therein. I can see. no compelling reason for accepting a construction which will have such curious consequences. A question somewhat similar to the one now before us fell to be decided by the Privy Council in Nazir Ahmad vs The King Emperor (1). That question arose in connection with the procedure laid down in the Code of Criminal Procedure for the record of confessions by magistrates. While section 164 of the Code lays down a detailed procedure for recording by magistrates of any confession made in the course of an investigation of a case or at any time afterwards before the commencement of the enquiry or trial, section 364 lays down the procedure that should be followed by a magistrate or by any court other than a High Court established by a Royal Charter (1) (1936) L.R.63 I.A. 372. 969 when any accused is examined. The appellant, (Nazir Ahmad was convicted mainly, if not entirely, on the strength of a confession said to have been made by him to a magistrate of which evidence was given by the magistrate but which was not recorded by the magistrate in the manner required by section 164 and section 364 of the Code. The High Court held that this evidence was admissible. In support of that view it was urged before the Privy Council that the evidence was admissible just because it has nothing to do with section 164 or with any record and that by virtue of sections 17, 21 and 24 of the Evidence Act the statement was admissible just as much as it would be if deposed by a person other than a magistrate. This argument was repelled by the Privy Council in these words : "On the matter of construction sections 164 and 364 must be looked at and construed together, and it would be an unnatural construction to hold that any other procedure was permitted than that which is laid down with such minute particularity in the sections themselves. " Later on their Lordships proceeded 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. Any magistrate of any rank could depose to a confession made by an accused so long as it was not induced by a threat or promise, without affirmatively satisfying himself that it was made voluntarily and without showing or reading to the accused any version of what he was supposed to have said, or asking for the confession to be vouched by any magistrate. The range of magisterial confessions would be so enlarged by this process that the provisions of section 164 would almost 970 inevitably be widely disregarded in the same manner as they were disregarded in tile present case. " It appears to me that these considerations which weighed with the Privy Council in rejecting the argument that evidence of confession not recorded in accordance with the procedure laid down in the Code of Criminal Procedure could still be admissible, apply with equal force to our present problem. If evidence as ' regards alcoholic content of the blood is allowed to be given even where the procedure laid down in section 129A has not been followed the salutary provisions of that section would "almost inevitably be widely disregarded". That the legislature did not intend this is clear, as I have already pointed out above, from what it laid down in the 8th sub section of section 129A. For all these reasons, I have come to the conclusion that as admittedly the procedure laid down in section 129A was not followed for testing of the blood that was taken at 6 a.m., the prosecution cannot get the benefit of section 66(2) of the Prohibition Act. There is no justification, therefore, for the order made by the Sessions judge, sending the case back to the Magistrate for re trial in order to give the prosecution an opportunity of adducing evidence as regards the examination of the blood taken at 6 a.m. on April 3, 1961. I would therefore allow the appeal, set aside the order of the High Court and also the order of the Sessions judge directing re trial and order that the appellant be acquitted. By COURT. In accordance with the opinion of the majority the Appeal is dismissed subject to the modifications mentioned in the judgment. Appeal dismissed.

IN-Abs

On account of injuries received in a motor accident the appellant was taken to the hospital at 6 A. M. on April 3, 1961. As he was found smelling of alcohol, a specimen of his blood was taken and collected in a phial. Subsequently, when investigation started this phial was taken by the In vestigation Officer on April 13 and sent to the Chemical Examiner on April 18. On examination, it was found to have a concentration of alcohol in excess of that mentioned in section 66 (2) of Bombay Prohibition Act. The trial Court convicted the appellant relying upon the presumption arising on the report of the Chemical Examiner. On appeal, the Sessions judge found that no evidence had been produced regarding the safe custody of the phial from April 3 to April 18, regard ing its storage at a place where it was not liable to deteriorate and regarding its delivery to the Chemical Examiner, and ordered a retrial. This order was upheld by the High Court. The appellant contended (i) that the report of the Chemical Examiner was not admissible in evidence at the trial of the appellant for an offence under the Bombay Prohibition Act as the blood had not been collected in the manner prescribed by section 129 A, and (ii) that the order for a fresh trial was illegal. Held, (per Sinha, C. J., Gajendragadkar, Wanchoo and Shah jj., Das Gupta, J. contra) that the report of the Chemical Examiner was admissible in evidence. Section 129A was intended primarily for compelling a person to submit himself for medical examination and for collection of blood; this power could be exercised only in the course of investigation of an offence under the Act and only when a 927 Prohibition Officer or a Police Officer had reasonable ground for believing that a person bad consumed liquor. If the examination of blood is made otherwise than in accordance with section 129 A the result may still be proved by virtue of subs. (8) to section 129 A and there is nothing in section 129A or section 129B which precludes proof of that fact if it tends to establish that the person had consumed illicit liquor. By enacting sections 129 A and 129B the law provided one method of collection of evidence in respect of an offence under section 66 (2) but it did not thereby exclude other methods. Bombay Act No. 12 of 1959 which introduced sections 129 A and 129 B and which had been reserved for the consideration of the President and had received his assent prevailed, in the State of Bombay, over section 510 of the Code of Criminal Procedure to the extent of inconsistency between the two. Accordingly, the report of a Chemical Examiner in respect of blood collected in the course of investigation of an offence under the Act otherwise than in the manner set out in section 129A cannot be used in evidence, but a report in respect of blood collected at a time when no investigation was pending or at the instance of a Police Officer or a Prohibition Officer, is admissible under section 510 of the Code. Nazir Ahmad vs The King Emperor, (1936) L. R. 63 I.A. 372, Taylor vs Taylor, , Deep Chand vs State of Uttar Pradesh, [1959] Supp. 2 S.C. R. 8 and Ch. Tikaramji vs State of Uttar Pradesh, ; , referred to. Held, further, that the order for retrial was bad and that the Sessions judge should himself take additional evidence in respect of the safe custody etc. of the phial of blood. An order for retrial of a criminal case is made only in exceptional cases as it "pose. , the accused to another trial affording the prosecution an opportunity to rectify infirmities disclosed at the earlier trial. An order for retrial is not made unless the appellate court is satisfied that the trial court had no jurisdiction to try the case, or that the trial was vitiated by serious illegalities or irregularities or on account of the misconception of the nature of the proceedings there has been no real trial or that any of the parties had, for reasons over which it had,, no control, been prevented from producing material evidence. Since the Sessions judge was of the view that "additional evidence was necessary" he should have proceeded under s.428 (1) of the Code. Ramanlal Rathi vs State, A.I.R. (1931) Cal. 305, referred to. 928 Per Das Gupta, J. The report of the Chemical Examiner in respect of blood taken not in accordance with the provisions of section 129A was not admissible. In view of sub section (8) of section 129A the fact that a person has consumed an intoxicant may be proved by evidence other than that made available under section 129A; but for the determination of the percentage of alcohol in the blood no other procedure except that provided by section 129 A was permisible. Section 66 (2), which provided for the drawing of a presumption in favour of the prosecution if the percentage of alcohol found in the blood of an accused exceeded that mentioned in the section, was introduced in the Act by the very Amending Act which introduced section 129 A. It was reasonable to infer that the legislature intended the presumption under section 66 (2) to be drawn only in cases where tile procedure prescribed by section 129A had been followed. Nazir Ahmad vs The King Emperor, (1936) L. R. 63 I. A. 372 relied on.

Appeal No. 208 of 1969. August 19, 1960, of the Third Industrial Tribunal, West Bengal, in Case No. VIII 119 of 1958. A. V. Viswanatha Sastri, section K. Bose and Sardar Bahadur, for the appellant. D. N. Mukherjee, for respondent No. 1. Janardan Sharma and B. P. Maheshwari, for respondent No. 2. 1962. August 21. The following Judgment of the Court was delivered by MUDHOLKAR, J. The substantial question which. falls for decision in this appeal by special leave.against an award made by the Third Industrial Tribunal, West Bengal, centres round the 662 question of production bonus. The appellant company runs a steel mill at Belur. There are various departments in the mill which have been grouped under three headings: direct productive departments, indirect productive departments and nonproductive departments. In the last mentioned group come the general office, accounts department, establishment department, time office. stores, shipping department, drawing and design department, laboratory, progress and planning department, civil construction department, watch and ward department, medical department , and welfare department. The first group consists of the following five departments : 1. Steel foundry 2. Electric Furnaces 3. Rolling Mills 4. Bolt and nuts shop and 5. Machine shops. The second group consists the following departments : 1. Refractory attached to the electric furnaces 2. Mill General, attached to the rolling Mills 3. Roll turning, attached to the rolling Mills 4. Yard Mazdoors, attached to the rolling mills and 5.Civil maintenance department, electric maintenance department and mechanical 'Maintenance department. It is common ground that each productive department has an individual target for the purpose 663 of payment of production bonus over and above the wages. The existing targets were fixed (a) in 1948, in electric furnaces and rolling mills;(b) in December, 1956, in the steel foundry and(c) in January, 1959, in the bolt and nut workshop. According to the appellant the targets were revised from time to time in consultation and with the concurrence of the representatives of the workmen of the department concerned as and when occasion arose for doing so in consequence of the adoption of better methods of production, now techniques, addition of plant and machinery etc. The workmen in three indirect productive departments, namely, refractory attached to the electric furnace, 'mill general ' attached to the rolling mills and roll turning attached to the rolling, mills are paid production bonus at the rate of 75% of the average rate of production bonus earned by the respective direct productive department to which these three indirect productive departments are attached. The Yard Mazdoors attached to the rolling mills are paid on the basis of an arbitration award which is subsisting between the workmen and the company. In civil maintenance, electric maintenance and mechanical maintenance departments, the workmen are paid production bonus at the rate of 75% of the average rate calculated on the basis of production bonus paid to the workmen in the productive, departments taken together. In the steel foundry department, the target was 20 pounds per man per day until the end of 1956. Towards the end of 1956 the Appellant had direct negotiations with the workers ' representatives of the department, and in view of the additions to the 664 plant and machinery and provision for additional facilities and working space and improvement in the technique of production 'Which raised considerably the production capacity of the said department, it was agreed to raise the target upto 25 pounds per man per day, The value of machinery and plant added to this department alone would be about Rs. 2 lakhs. About Rs. 4.5 lakhs worth of electric cranes were also subsequently installed. They are working for this department and the electric furnace department. Since December, 1956 there have been further additions of machinery etc, to the extent of about Rs. 3 lakhs in this department alone. According to the appellant the workmen all along worked without protest against the targets in force from time to time. But nine months after the revised targets came into operation the second respondent, which is one of the two unions to which the workmen of the company belong, protested against the raising of targets in the steel foundry department form 20 to 25 pounds. According to the appellant company, different schemes for payment of incentive bonus have been adopted in the different departments because incentive bonus is directly linked up with production targets. These targets, according to the appellant, have been fixed by direct negotiations with the workman 's representatives in the respective departments as for instance the increase of the targets in the steel foundry from 20 pounds to 25 pounds per head per day at the end of the year 1956. The respondent No, 1 which is the other union did not make any protest in this matter and indeed even in the proceedings before the Tribunal it did not join hands with the second respondent. The Government of West Bengal, having come to the conclusion that an industrial dispute had arisen between the appellant and its workmen 665 with respect to the payment of incentive bonus, referred it for adjudication to the Third Industrial Tribunal under section 10 of the . Both the unions filed their written statements before the Tribunal. Subsequently disputes on the same question with three associate companies were also referred for adjudication to the same Tribunal. We are, however, not concerned with the disputes other than the one in which the appellant, the National Iron & Steel Co. Ltd., is concerned. The substance of the claims made on behalf of the workmen by the respondent No. 2 may be briefly summarised thus: The incentive bonus scheme at present in force should be revised so as to cover those categories of workmen who are at present out of it and to remove all anomalies in the existing scheme as well as to remove such differences as are found to exist. It is further claimed that the present targets of production should be refixed and brought to the 1948 level. The first respondent did not attack the targets on the standard of performance or production existing in the different departments of National Iron & Steel Co. Ltd. The main thing it wants is that the scheme of incentive bonus should be extended to all productive departments at the same rate without making any distinction between alleged direct productive workmen and alleged indirect productive workmen. It wants that workmen in the indirect productive departments should be paid incentive bonus at the same rate at which workmen of the productive department to which the particular indirect productive department is attached are paid. It also wants that a workman employed in the maintenance department, civil maintenance department 666 and siding maintenance department of the appellant should be paid one half of the total rate arrived at by adding the rates at which all the productive departments of the appellant as also the workmen of the associate companies are paid, As regards the workmen employed in the non productive departments it wants them to be paid bonus at one fourth of the total rate arrived at by adding the rates at which the workmen in the productive departments are paid. It wants also that four employees in the shipping department should be paid at the rate at which the workmen of the rolling mills department are paid and the three chemists in the laboratory should be paid the same rate as workmen in electric furance department. Finally it wants incentive bonus to be assessed on the basis of basic wages and dearness allowance earned by the workmen and also on the basis of the total earnings including the earnings for the days described as non productive days. We may mention here that the appellant has denied that there were any anomalies in respect of the incentive schemes in the various departments. The stand that it takes is that the introduction of such schemes being entirely the function of the management the company is under no legal or moral obligation to extend it to all categories of workmen. The claim of the respondent No. 1 for the revision of targets and removal of anomalies and differences in the existing bonuses is thus said to be wholly unfounded. The appellant has further justified the classifications of departments into direct productive, indirect productive and nonproductive on the ground that. it is in conformity with the existing practice in the industry. The employees in the productive departments are paid incentive bonus at the full rate which is normally payable for them for the 667 work they do and that there is no practice of employing direct productive workers in the indirect productive departments and that the workmen employed in the maintenance department are paid at 75% of the average bonus. Production bonus, according to it, is paid to such workmen as are directly engaged in production work and maintenance and that non productive workmen are not covered by the existing scheme. It also disputes the claim made by the first respondent on behalf of four clerks in the shipping department and the three chemists in the laboratory. After the statements were filed by all the parties it was urged on behalf of the appellant that issues should be framed. But the Tribunal did not accede to the request. Ultimately, by an order made by it, the Tribunal said that it would adjudicate only on those points which were raised in subparagraphs "1, 2(b) and (c) of paragraph 18 of the written statement filed by the NISCO Karmachari Sanghs (respondent No. 1) and also on the points raised in the prayer portion in paragraph 25 of the written statement of Belur Iron & Steel, Workers ' Union (respondent No. 2)". The Tribunal first considered the question of the revision of tragets. According to it the target in the steel foundry department which was raised in December, 1956 from 20 lbs. to 25 lbs. should be reduced to 23 lbs. In regard to the electric furnace department, rolling mills, bolt and nut shop and machine shop the Tribunal held that the target should be 50% of the productive capacity or efficiency of the workmen of the department. It negatived the claim of the workmen for removal of the alleged anomalies in the existing bonus scheme. With regard to the workmen 's claim for the exten 668 sion of the scheme to the clerical and watch andward staff the Tribunal held as follows: "This incentive production bonus shall be paid to workmen of the non productive departments at '.he rate of 12 1/2% of the total rate to be arrived at, by adding the rates at which all the productive departments may be paid. This rate is allowed in consideration of the fact that the workmen of the non productive departments are not directly connected with production but only remotely. The calculation of this bonus will be made with reference to basic pay only excluding D.A." The Taibunal further held that this would also apply to the four workmen in the shipping department and three chemists in the laboratory. In so far as the workmen employed in the indirect productive department were concerned the Tribunal held that there was no case for making any change because the present rate of 75% of the bonus paid to the workmen of the productive departments was fair and reasonable. 'The Tribunal rejected the claim of the workmen that rates of production bonus to all categories of workmen whether employed in direct productive or indirect productive departments have to be uniform. One of the points urged on behalf of the appellant before the Tribunal and taken in the statement of the case is that the introduction of incentive bonus, fixation of targets and fixation of production hours is a function of the management and the Tribunal has no right to interfere. It has been held by this Court in Titaghur Paper Mills Co. Ltd. vs Its Workmen (1) that while it is the function of the management whether or not to introduce a scheme of incentive bonus, once such a scheme is (1) [1959] Supp. 2 S.C.R. 1012. 669 introduced the right to claim such bonus become,; a condition of service of workmen and, therefore, the Industrial Tribunal has jurisdiction to vary the scheme enforced by the employer including the rates of bonus. This Court has pointed out in that case that the payment of incentive bonus is payment of further emoluments to the workmen depending not upon extra profits but upon extra production, as an incentive to them to put in more than the standard performance. Where, therefore, the management has introduced a scheme for the grant of such bonus it is open to the Tribunal to vary the terms of the scheme if the circumstances of the case justify its doing so. In view of the decision in that case Mr. Vishwanatha. Sastri fairly conceded that the tribunal had jurisdiction to refix the targets as well as to refix the rates of the incentive bonus provided it found that the targets were too high or the rates wholly incommensurate to the additional performance put in by the workmen. His main grievance on this score, however, was that the Tribunal had no material before it for reducing the targets in the steel foundry department, from 25 lbs. per capita per day to 23 lbs. He further contended that the view of the Tribunal that the targets for the other direct productive departments should be 50% of the capacity of the unit or the efficiency of workmen would lead to startling results. He also drew our attention to an application made by the appellant during the course of the proceedings before the Tribunal for the appointment of assessors for the purpose of giving opinion on various technical matters which have to be borne in mind for the preparation of a scheme for incentive bonus payable to workmen engaged in different departments of the appellant. No order was passed on this application by the Tribunal even though on ' being reminded of its omission to do so the Tribunal promised to make an order later. So here we are faced with a situation where there 670 is no adequate data for judging what would be reasonable and proper targets from the point of view of both the employeres and the employees and what would be the reasonable rates of incentive bonus. The Tribunal would have done well to bear in mind the fact that for the determination of technical matters it is always desirable to have the assistance of persons who are familiar with the subject. No doubt the ultimate decision would rest with Tribunal but since the decision has to be based on proper material it should not, have denied to itself the opportunity of obtaining, the appropriate material. On this one ground alone the award of the Tribunal with respect to the fixation of targets and the rates of incentive bonus in the various departments will have to be quashed. For revising the target of 25 lbs. per day in the steel foundry department the Tribunal had hardly any material before it. It failed to give due importance to the fact that the original target of 20 lbs. was raised to 25 lbs. by the appellant after discussing the matter with the workmen concerned and with their consent. The Tribunal would do well to remember that though it has power to vary an existing scheme and, therefore, also the targets provided therein, it cannot do so lightly. Primarily it is the function of the management to fix and ordinarily even, to revise the targets. No doubt, in exercise of this function the management must consult the workmen concerned. But where all that has been done and the revised targets are the result of agreement between the management and the workmen there must be good reasons for revising the targets. What the Tribunal has done with respect to the targets in the 'other productive department is still more unjustified. As already stated it has fixed the targets in these departments at 50% of the total 671 productive capacity per month in these mills or 50% of the efficiency of the workmen employed. It has directed that incentive bonus should be calculated at the present rate on the quantum of production in excess of those revised targets. On the face of it, it would appear to have fixed the targets at very low levels and the result of doing this would be that half or more than half of the total earnings of a workman would come to him by way of incentive bonus without the production going up. Its scheme, rather than proving as an incentive to production, would virtually be a disincentive. Speaking about premium systems Florence Peterson in her "Survey of Labour Economics revised edition, has observed at p. 329 : "No matter what name they go by, all premium systems have one distinct characteristic, namely, a guaranteed rate with premium payments for production beyond an established standard. The standard may be in terms of units of output or units of time, that is, minutes or hours. The essential distinction in the various incentive systems have to do with (1) the point or level of production at which premiums begin, and (2) the formula used for determining premium rates. In all premium systems the crucial factor is where the 'task ' or standard ' is set. The policy adopted can tend towards either of two directions, namely, a strict standard which is difficult to accomplish, with high premiums for better than standard, or a lenient standard with relatively small permiums. If a very, strict standard is set which can be exceeded 672 only through the best efforts of the most com petent workers, the guaranteed rate tends to become the actual earnings rate for most of the workers. If, on the other hand, a rela tively easy standard is fixed, the major por tion of the total earnings of most employees on the job will consist of premium wages. The second fundamental distinction in incentive plans has to do with the formula for the division of gains when above standard production is attained, regardless of whether or not the established standard is high or low. Increasing the ratio of returns to the worker is obviously done for the purpose of encouraging ever higher production. Plans providing for a decreasing ratio of returns, or a declining wage curve, are based upon the principle that increased output not only is a result of the workers efforts but is also due to improvement in working conditions for which management is responsible, and that management should therefore 'share ' in the gains. " Bearing in mind these observations and the fact that ordinarily the rate of incentive bonus is correlated to the target it would follow that if the target originally fixed by the employee is very high then the existing incentive bonus payable may well be regarded as having been fixed high. Whether that is in fact so or not would, however, be a question to be decided by the Tribunal. In this case the Tribunal without considering this point has directed that incentive bonus should be paid to the workmen in the department concerned at the existing rates even 673 though the targets have been halved. That direction is pot proper. On behalf of the workmen Mr. Sharma alleged that the existing targets are fixed so high that for earning incentive bonus the workmen have to sweet. This contention also needs to be examined by the ,Tribunal. 'Now, since the scheme of incentive bonus already prevails in most of the departments of the company the Tribunal will have the jurisdiction to consider whether the existing scheme is onerous, unrealistic, unreasonable or otherwise. We would, however, reiterate that the scheme should not be interfered with by the Tribunal unless it comes to the definite conclusion that the targets fixed are so high that an average working with ordinary efficiency can earn only the daily wage but nothing more. It would render the task of the Tribunal easy if it tries to elicit the requisite information from assessors as well as from others conversant with t6 operations in each department. Where, after considering the relevant material the Tribunal finds that targets are too high or not reasonably attainable, it will undoubtedly be within its competence to refix them. But while refixing them it should take care to see that the targets are not so low that the major portion of the total earnings of most employees will consist of incentive bonus. Thus in revising the scheme prepared by the management the Tribunal has on the one hand to guard the interest of the workmen and prevent what may fairly be called sweating and on the other it has to see to it that the revised targets do not encourage laziness or reduce production to low or uneconomic level. The Tribunal should further bear in mind that where the targets have been agreed to between the employer and the employees and even though a scheme of incentive bonus has been in operation for some time and the workmen have had experienced of it no complaint has been made by them that the scheme is onerous. This would be a relevant circumstance to be taken 674 into consideration when a demand is made long, after the scheme has been in force for revision of targets. Again it must bear in mind the effect on production ascribable to improved techniques or to the installation of improved machinery. Here the Tribunal has adverted to none of the matters. To put it mildly, the manner in which the Tribunal 'has dealt with the question is wholly unsatisfactory. We do not understimate the difficulty presented by the question of fixing of targets. Perhaps the Tribunal 's s task in this regard would be rendered less difficult if, for instance, it can obtain material from which it could ascertain what the average production in each department was before the introduction of the original scheme and before improved techniques ware introduced and better machinery installed. In the light of the material before it, the Tribunal should consider whether the old production could safely be accepted as the targets. We realise that here it is the appellant 's case that the adoption of better techniques and installation of new machinery has made it possible for the workmen to produce more in the same time. This contention of the appellant needs to be examined. Here again, expert opinion will be valuable. If the Tribunal finds that the increase in production is solely ascribable to the innovations made and the workload of the workmen has not been increased, there would be a case for the upward revision of the old targets correspondingly. A complication will undoubtedly arise where the workload of workmen has increased. When such is that case the Tribunal will have to bear in mind the fact that workmen are after all human beings and not machines, that they are apt to feel tired if they have to work at a a higher tempo than in the past, that performing mechanical operations over, a over a long period produces not only boredom but also a great strain on the 375 muscular powers of workmen with the result that it produces more fatigu, physical as well as psycho. logical. In such a case the revised target must, therefore, be reasonably below the level at which results of these kinds are apt to ensue. What we have said is not exhaustive of the factors to be borne in mind and it would be open to the Tribunal to bear in mind such other factors as would be relevant in this connection. The next question which has to be considered is the extension of the scheme for payment of incentive bonus to the clerical and watch and ward staff. In Burn & Co., Ltd. vs Their workmen (1) this Court hold that from the point of view of economics the clerical and subordinate staff in an industry, like its manual workers, contribute towards its production and there man, therefore, be no reason for excluding them wholly from the benefits of a scheme of incentive bonus. It was urged before, this Court on the authority of decision in Titaghur Paper Mills case (2) that the introduction of incentive bonus is the function of the management and the Tribunal should not impose a scheme for payment of such bonus on the management. Dealing with this contention this Court observed "In the present case, however, the incentive bonus scheme has already been introduced by the company for the major part of its workmen and all that is now asked for is that the benefit of the scheme should be extended to the remainder of the workmen." Mr. Viswanatha Sastri has not challenged the correctness of the view taken by this Court in Bum & CO 'S Case. His main grievance with regard to the direction in the award extending incentive bonus scheme to clerical and watch and (1) , 426. (2) (1959) SUPP. 2 S.C.R. 1012, 676 ward departments is that if implemented it would entitle these workmen to get in effect 100% bonus or perhaps even more. There are, as already stated, five productive department% and five indirect productive departments. Now, if we, take 100 as the rate in each productive department the rate for the five indirect productive departments would be 75 and the total for all the departments would come to 875 and 12 1/2% of that would come to nearly 110 It is possible, as Mr. Sharma suggests that this is not what the Tribunal intended to do and that what it intended was to take the average rate for all the productive and indirect productive departments and give 12 of the average rate as bonus to the workmen of the nonproductive departments. It may be that that was the intention of the Tribunal but the way in which it has expressed itself leads to the absurd result that the workmen employed in the non productive departments will actually get more incentive bonus than workmen emyloyed in the productive departments : Before, however, coming to the conclusion that the scheme of incentive bonus should be extended to these workmen the Tribunal would do well to ascertain whether a case has been made out by them for grant of incentive bonus. Indeed one of the grounds which persuaded this Court in Burn & Co 's case (1) to extend the scheme of incentive bonus to the clerical staff was that there was increase in their work in consequence of rise in production. The Tribunal would do well to ascertain whether in view of the increased production there has been a rise in the workload, if we may use that expression, with regard to nonproductive workmen. If it finds that the workload has increased they could be held entitled to incentive bonus. (1) ; , 426. 677 We may further point out that in Burn & co 's case (1) the Tribunal did not proceed to lay down the rate of incentive bonus to the clerical and subordinate staff but merely directed the company to extend the scheme to them and lay down the rates and conditions for those classes of workmen to be entitled to get the incentive bonus. This Court has impliedly approved this direction. Indeed, bearing in mind the principle that initially the whole question of incentive bonus involving the fixation of targets, prescribing rates an( lavingly down other conditions is the function of the management, we have no doubt that the course taken by the Tribunal in Burn & CO 's Case (1) was the proper one. One more question remains to be considered and that is the contenation of Mr. Viswanatha Sastri that no question arises for payment of incentive bonus to piece rate workmen. His argument is that if a piece rate workman produces more he earns more and, 'therefore, there is nothing more that he is entitled to. We do not agree. Even with regard to piece rate workmen there is a norm and if a piece rate workman produces anything beyond that norm he should be entitled to be pail for the excess at a higher rate. That is what is being done in England and other industrialised countries like the United States and there appears to be no reason why it should not be required to be done in our country. What the enhanced rate should be would necessarily be a matter to be determined with the assistance of assessors as well as of the company and the workmen. We would, however, admininister a caution. The result of prescribing a higher rate for production above the norm should not lead to a glaring disparity between the total actual earnings of an average piece rate workman and of a time rate workman working over the same period of time. For, a wide disparity may lead to (1) ; ,426. 678 discontent, which is something which must be avoided in the interest of the industry as well as the workmen. For the reasons stated above we quash the award in so far as it relates to the fixation of targets in the various departments of the appellant, fixation of rate of incentive bonus for time rate workmen as well as piece rate workmen and extension of the scheme to non productive departments and remand the dispute to the Tribunal for adjudication after appointing assessors, considering all relevant material placed before it by the parties to the dispute and make a fresh award in the light of our observations. The rest of the award is affirmed. There will be no order as to costs in this appeal.

IN-Abs

The appellant runs a steel mill and there are various departments in the mill which are grouped under three headings. By agreement between the management and the workmen different production targets and different incentive bonus schemes for different departments have been in force for some time. The respondent No. 2 on behalf of the work men claimed that incentive bonus scheme at present in force should be revised so as to cover those categories of workmen who are at present out of it. It was further claimed that the present targets of production should be refixed and brought to the 1948 level. On the failure of the parties to come to a settlement the Government referred the matter to the Industrial Tribunal for adjudication. The Tribunal by its award directed the revision of production targets in certain departments. With regard to the claim for extension of the scheme to the clerical and Watch and Ward Staff and the workmen in the shopping depart ment the Tribunal awarded the extension at certain specified rates. The claim for revision of the rates of bonus in the indirect productive department was rejected. The Tribunal also rejected the claim of the workmen that the rates of production bonus to all catagoriesd of workmen should be made uniform. The appellants thereupon appealed to this Court by way of special leave. The main question raised in the appeal was whether the Tribunal had jurisdiction to refix the production targets as well as the rates of incentive bonus. A further question raised was whether piece rate workmen are entitled to incentive bonus. The appellants made a grievance of the fact that their request to appoint assessors for giving opinion on technical matters was rejected by the Tribunal. They also alleged that the Tribunal had no adequate data before it to determine the proper production targets. 661 Held, that the Tribunal ought to have borne in mind the fact that for the determination of technical matters it is always desirable to have the assistance of persons who are familiar with the subject and it should not deny to itself the opportunity of obtaining the appropriate material. While it is the function of the management whether or not to introduce a scheme of incentive bonus, once such a scheme is introduced the Industrial Tribunal has jurisdiction to vary the scheme including the rates of bonus. But the scheme should not be interfered with lightly. The Tribunal is entitled to consider whether the scheme is erroneous, unrealistic or unreasonable. Where after consideration of relevant materials the Tribunal finds the targets are too high it can refix them. But it should also see that the targets fixed are not too low. Held, also, that piece rate workmen are entitled to be paid at a higher rate for the excess they have produced beyond a norm. But in fixing the higher rate care should be taken to avoid glaring disparity between the total earnings of an average piece rate worker and of a time rate workman working over the same period.

Appeals Nos. 207 to 209 of 1961. Appeals from the judgment and decree dated August 23, 1957, of the Bombay High Court at Nagpur in First Appeals Nos. 105 to 107 of 1952 from Original Decree. section T. Desai, J. B. Dadachanji, O. C. Mathur and Ravinder Narain, for the appellants. C. K. Daphtary, Solicitor General of India, N. section Bindra and R. H. Dhebar for P. D. Menon, for the respondent No. 1 Girish Chandra for sardar Bahadur, for respondents Nos. 3 and 8. 1963. February 11. The judgment of the Court was delivered by DAS GUPTA, J. The appellant is a building contractor. He constructed buildings for the Bai 982 Gangabai Memorial Hospital, Gondia, Kunwar Tilaksingh Civil Hospital, Gondia, and also for the Twynam Hospital, Tumsar, all within the district of Bhandara in Madhya Pradesh, in execution of three separate contracts in respect of the three hospitals which were concluded between him and Deputy Commissioner of Bhandara. Though he received part payment in respect of each of these contracts he claims not to have received full payment of what was due to him. On April 1, 1948 he brought the three suits out of which these three appeals have arisen for obtaining payments which he claims was due to him. His averments in all the three plaints are similar, except that in respect of one of the suits, viz., the one in respect of the construction work done for the Bai Gangabai Memorial Hospital, he has also claimed the price of some furniture said to have been supplied by him at the request of the Deputy Commissioner. The common case of the plaintiff in these three suits was that the Deputy Commissioner entered into these contracts ""as repre sentative of the Provincial Government" after having obtained previous sanction of that Government. It was further his case that the Deputy Commissioner, Bhandara, as the administration head of the hospitals entered into these contracts and as such was liable to pay the amounts due on the contracts. The plaint also averred that the Gondia Municipal Committee, Gondia, in the suit in respect of Bai Gangabai Memorial Hospital and the Dispensary Funds Committee in the other two suits were liable to satisfy plaintiff 's claim inasmuch as they had taken the benefit of the work done under the contract which was not intended to be done gratuitously. On these averments the plaintiff impleaded the Provincial Government of the Province of Central Provinces and Berar as the first defendant, and the Deputy Commissioner of the Bhandara District, as the second defendant, in all the three suits. The Gondia Municipal Committee was impleaded as the third defendant in 983 Suit No. 3 B of 1948, i. e., the suits in respect of Bai Gangabai Memorial Hospital. The Dispensary Funds Committee was impleaded as the third defendant in the other two suits. In both, the members of the Dispensary Funds Committee were also impleaded by name as defendants. Mr. G. K. Tiwari, who as Deputy Commissioner, Bhandara, signed the argument was impleaded in his personal capacity in all the three suits (Defendant No. 4 in Suit No. 3 B, Defendant No. 9 in Suit No. 2 B and defendant No. 14 in Suit No. 1 B). The State of Madhya Pradesh was later substituted for the Provincial Government of the Province of Central Provinces and Berar as the first defendant in all the three suits. It was admitted in the plaint that the construction could not be completed within the time mentioned in the contracts but it was pleaded that the time was not the essence of the contract and further, that the delay was due to the Deputy Commissioner 's failure to supply the necessary materials in time and inclemency of weather and also that time was extended by the Deputy Commissioner. In all the three suits the plaintiff made his claim at a higher rate than the contract rate on the plea that, the Deputy Commissioner had sanctioned these higher rates. For the purpose of the present appeals in which we are concerned solely with a question of law it is unnecessary to mention the various other averments in the plaint. It is necessary to mention however that in Suit No.3 B the plantiff asked for a decree of Rs. 21,281/ with costs and interest from the date of suit against defendants 1 to 3 and in the alternative, against defendant No. 4, i. e., Mr. G. K. Tiwari. In suit No. 1 B, the plaintiff claimed a decree for Rs. 12,000/ with full costs and future interest from the date of suit against defendants 1 to 3 and/or defendant No. 14, i. e., Mr. G. K. Tiwari. In Suit 984 No. 2 B, the plaintiff asked for a decree for Rs. 32,208/ with costs and future interest against defendants 1 to 3 and/or defendant No. 9, i. e., Mr. G. K. Tiwari. The main contention of the State of Madhya Pradesh in resisting the suits was that the agreement for the construction of the buildings was not made on behalf of the State Government and also that the hospital was not government hospital and therefore it had no liability. The same contentions were raised by the Deputy Commissioner, Bhandara and Mr. Tiwari, personally. All of them further contended that even on merits the plaintiff was not entitled to any relief, for, though time was essence of the contract the work was not finished within the time agreed upon. They also resisted the plantiff 's claim to increased rates on the ground that the previous sanction of the Deputy Commissioner had not been obtained. Another contention raised in all the suits was that the plaintiff 's claim was barred by time. The other defendants also contested the suits on grounds which it is unnecessary for the purpose of the present appeals to set out. The Trial judge held that the agreements in question were made for and on behalf of the State and further, that the constructions had "beyond doubt benefited the State" and so the State was liable. The learned judge also rejected the various objections raised by the defendants to the plaintiff 's claim on merits except that he disallowed part of the plaintiff 's claim and gave the plaintiff a decree for part of his claim against the State of Madhya Pradesh in all the three suits. He also held that none of the other defendants were liable and dismissed the suits as against them. Against the Trial Court 's decision in these suits the State of Madhya Pradesh preferred appeals to 985 the High Court of judicature at Nagpur. During the pendency of these appeals the State of Madhya Pradesh was substituted by the State of Bombay. In all these appeals the plaintiff Pannalal was impleaded as the first respondent; and all the other defendants were also impleaded as respondents. Disagreeing with the Trial Court the High Court held that the contract entered into by the Deputy Commissioner was not binding on the State Government; that the Deputy Commissioner signed the contract at his own discretion; and further, the contracts not having been entered into in the form as required under section 175(3) of the Government of India Act, 1935, were not enforceable against the State Government. The High Court also held that the Government could not be held to have ratified the action of the contracts entered into by the Deputy Commissioner. The High Court also rejected the argument that the Government having received the benefit of the works must pay for them, on their finding that the hospitals were not government hospitals and Government "can in no sense be regarded as having benefited by anything done with respect to them". On these findings the High Court set aside the decree passed by the Trial Court against the State Government and allowed the appeals with costs. It appears that a prayer was made on behalf of the plaintiff respondent that the High Court should pass decrees against the Deputy Commissioner, Bhandara, under Or. 41, r. 33 of the Code of Civil Procedure. That prayer was rejected by the High Court in these words : "Shri Phadke then prayed that under Order 41 rule 33 of the Code of Civil Procedure we should pass decrees against the Deputy Commissioner, Bhandara, who was indubitably, a party to the contracts. Though the provisions of Order 41, 986 rule 33 are wide enough to permit this we do not see any reason why we should exercise our power when it was open to the respondent No. 1 to prefer a cross objection against the dismissal of his suits against those defendants, as well as against some other defendants. " The High Court also rejected the Counsel 's prayer to grant him leave to file a cross objection at that stage. In the result, all the three suits were dismissed by the High Court in their entirety. The High Court however granted a certificate under article 133(1)(c) of the Constitution. On the basis of that certificate these three appeals have been preferred by the plaintiff. Two grounds were urged in support of the appeals. The first was that the High Court was wrong in holding that the State Government was not liable. The second ground urged was that, in any case, the High Court ought to have granted relief to the plaintiff against such of the other defendants as it thought fit under the provisions of Order 41, rule 33 of the Code of Civil Procedure. There is, in our opinion, no substance in the appellant 's contention that the State Government was liable. On the materials on the record, it appears clear to us that the Deputy Commissioner did not act on behalf of the State Government in signing the contracts. Nor can it be said that the State Government derived benefit from the work done by the plaintiff. In our opinion, the High Court was right in its conclusion that the State Government was not liable in respect of any of these contracts and rightly dismissed the suits as against the defendant No. 1. This position was not seriously disputed before us. There is however much force in. the appellant 's contention that the High Court ought to have exercised its jurisdiction under Or. 41, r. 33 of the Code 987 of Civil Procedure in favour of the plaintiff. The operative portion of that rule, which was for the first time introduced in the Civil Procedure Code in 1908, is in these words : "33. The appellate court shall have power to pass any decree and make any order which ought to have been passed or made, and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection. " A proviso was added to this by Act 9 of 1922 which, however, does not concern us. It is necessary however to set out the illustration to the rule which runs thus : "A claims a sum of money as due to him from X or Y, and in a suit against both obtains a decree against X. X appeals and A and Y are respondents. The appellate court decides in favour of X. It has power to pass a decree against Y." Even a bare reading of Order 41, rule 33 is sufficient to convince any one that the wide wording was intended to empower the appellate court to make whatever order it thinks fit, not only as between the appellant and the respondent but also as between a respondent and a respondent. It empowers the appellate court not only to give or refuse relief to the appellant by allowing or dismissing the appeal but also to give such other relief to any of the respondent as "the case may require." In the present case, if there was DO impediment in law the High Court could 988 therefore, though allowing the appeal of the State by dismissing the plaintiff 's suits against it, give the plaintiff a decree against any or all the other defendants who were parties to the appeal as respondents. While the very words of the section make this position abundantly clear the illustration puts the position beyond argument. The High Court appears to have been in no doubt about its power to give the plaintiff relief by decreeing the suits against one or more of the other defendants. But say the learned judges, "we do not think it proper to do so as the plaintiff could have asked for this relief by filing a cross objection under Or. 41, r. 22, C. P. C., but has not done so. " The logic behind this seems to be that the cross objection under Or. 41, r. 22 could be filed only within the time as indicated therein and if a respondent who could have filed a cross objection did not do so, is given relief under Or. 41, r. 33, Or. 41, r. 22 is likely to become a dead letter. The whole argument is based on the assumption that the plaintiff could, by filing a cross objection under Or. 41, r. 22, Civil Procedure Code,, have challenged the Trial Court 's decree in so far as it dismissed the suits against the defendants other than the State. , We are not, at present advised, prepared to agree that if a party who could have filed a cross objection under Or. 41, r. 22 of the Code of Civil procedure has not done so, the appeal Court can under no circumstances give him relief under the provisions of Or. 41, r. 33 of the Code. It is, however, not necessary for us to discuss the question further as, in our opinion, the assumption made by the High Court that the plaintiff could have filed a cross objection is not justified. Whether or not a respondent can seek relief against any other respondent by a cross objection 989 under Or. 41, r. 22. Civil Procedure Code, was a vexed question in Indian courts for a long time. The present Order 41, r. 22 has taken the place of the former section 561 of the Code of 1882. Indeed, the provision as regards raising an objection by a respondent without a separate appeal appears even in the Code of 1859 as section 348. 'The same provision in a little more detailed form was enacted in the Code of 1877 as section 561. It was reproduced in the Code of 1882 also as section 561 with slight amendments in these words : "Any respondent though he may not have appealed against any part of the decree, may upon the hearing not only support the decree on any of the grounds decided against him in the court below, but take any objection to the decree which he could have taken by the way of appeal, provided he has filed a notice of such objection Dot less than seven days before the date fixed for the hearing of the appeal. Such objection shall be in the form of a memo randum., and the provisions of section 541, so far as they relate to the form and contents of the memorandum of appeal shall apply thereto. Unless the respondent files with objection a written acknowledgement from the appellant or his pleader of having received a copy thereof, the Appellate Court shall cause such a copy to be served, as soon as may be after the filing of the objection, on the appellant or his pleader, at the expense of the respondent. " The question whether a respondent could by way of cross objection seek relief against another respondent under these provisions was first raised before the courts almost a century ago. Both the Calcutta and the Bombay High Courts held in a number of cases that ordinarily it was not open to a respondent 990 to seek relief as against a co respondent byway of objection, though in exceptional cases this could be done. (Vide Burroda Soundree Dossee vs Nobo Gopal Mullick (1), Maharaja Tarucknath Roy vs Tuboornnissa Chowdhrain (2), Ganesh Pandurang Agte vs Gangadhar Ramkrishna (3) , Anwar Jan Bibi vs Azmut Ali(4). These decisions it is proper to mention were given under the Code of 1859 where section 348 provided that "Upon hearing of the appeal, the respondent may take any objection to the decision of the lower court which he might have taken if he had preferred a separate appeal from such decision. " After this section was replaced by section 561 in the Code of 1877 and the Code of 1882 the question whether a respondent can file an objection against another respondent came up before the courts several times and the decision remained the same. The Patna and the Allahabad High Courts also took the view that as a general rule the right of a respondent to urge cross objections should be limited to asking relief against the appellant only and it is only where the appeal opens up questions which cannot be disposed of properly except by opening up matters as between correspondents that relief against respondents can also be sought by way of objections. The Madras High Court took a different view in Timmayya vs Lakshmanan (5), and held that the words of the section were wide enough to cover all objections to any part of the decree and it was open to a respondent seek relief under this section even against another respondent, and this view was reiterated by that Court even after the Code of 1908 made an important change in the provision by using the word "cross objection" in place of "objection". Ultimately however in 1950 a Full Bench of the Madras High Court in Venkateshwarlu vs Rammama (1), considered the question again and decided overruling all previous decisions that on a proper construction of the language, Or. 41, r. 22 confers only a restricted (1) (2) (3) (1869) 6 Bom. H.C. Rep. 244. (4) (5) (6) L R. 991 right on the respondent to prefer objection to the decree without filing a separate appeal; that such objection should, as a general rule, be primarily against the appellant, though in exceptional cases it may incidentally be also directed against the other respondents. The Lahore High Court which had earlier followed the former view of the Madras High Court also decided in Jan Mohamed vs P. N. Razden (1), to adopt the other view held by the High Courts of Allahabad, Bombay, Calcutta and Patna. The Nagpur High Court has also adopted the same view. (Vide Chandiprasad vs Jugul Kishore) (2). In our opinion, the view that has now been accepted by all the High Courts that Order 41, r. 22 permits as a general rule, a respondent to prefer an objection directed only against the appellant and it is only in exceptional cases, such as where the relief sought against the appellant in such an objection is intermixed with the relief granted to the other respondents, so that the relief against the appellant cannot be granted without the question being re opened between the objecting respondent and other respon dents, that an objection under Or. 41, r. 22 can be directed against the other respondents, is correct. Whatever may have been the position under the old section 561, the use of the word " 'cross objection" in Or. 41 r. 22 expresses unmistakably the intention of the legislature that the objection has to be directed against the appellant. As Rajammannar C. J., said in Venkataswrlu vs Ramamma (3). "The legislature by describing the objection which could be taken by the respondent as a "cross objection" must have deliberately adopted the view of the other High Courts. One cannot treat an objection by a respondent in which the appellant has no interest as a cross objection. The appeal is by the appellant against a respondent, the cross objection must be an objection by a respondent against the appellant". We think, with respect, that these observations put (1) A.I.R. 1944 Lah. (2) A.I.R. 1948 Nag. (3) I.L.R. 992 the matter clearly and correctly. That the legislature also wanted to give effect to the views held by the different High Courts that in exceptional cases as mentioned above an objection can be preferred by a respondent against a correspondent is indicated by the substitution of the word "appellant" in the third paragraph by the words "the party who may be affected by such objection. " On the facts of the present case, we have come to the conclusion that it was not open to the plaintiff appellant before the High Court to file any cross objection directed against the other defendants who were correspondents. The High Court was therefore wrong in refusing to consider what relief, if any, could be granted to the plaintiff under the provisions of Or. 41, r. 33, Civil Procedure Code. Learned Counsel who appeared for the Gondia Municipality in Civil Appeal No. 209 of 1961, relied on the decision of the Privy Council in Anath Nath vs Dwarka Nath (1), for his contention that rule 33 could not be rightly used in the present case. In that case the plaintiff challenged a revenue sale as wholly void for want of jurisdiction and bad for irregularities and further contended that the respondent had been guilty of fraud or improper conduct to the prejudice of his co owners in the estate. The Trial Court rejected the plaintiff 's case that the sale was void for want of jurisdiction and bad for irregularities but accepted the other contention and gave the plaintiff a decree. On appeal, the High Court held that no fraud or improper conduct towards co owners in respect of the revenue sale had been proved against respondent No. 1. The High Court refused to grant any relief to the plaintiff on the other ground which had been rejected by the Trial Court in the view that it was no longer open to the plaintiff who had not filed any cross objections to the decree of the Trial Court to maintain that the revenue (1) A.I.R. 1939 P.C. 86. 993 sale should be set aside for want of jurisdiction or irregularity. In accepting this view of the High Court the Privy Council observed : "In their Lordships view the case came clearly within the condition imposed by the concluding words of sub r. (1) of R. 22, " 'provided he has filed such objections in the Appellate Court, etc., etc". It was contended however that the language of R. 33 of the same Order was wide enough to cover the case. Even if their Lordships assume that the High Court was not wholly without power to entertain this ground of appeal an assumption to which they do not commit themselves they are clearly of opinion that Rule 33 could not rightly be used in the present case so as to abrogate the important condition which prevents an independent appeal from being in effect brought without any notice of the grounds of appeal being given to the parties who succeeded in the courts below. " This decision is of no assistance to the respondents. For the question which we have considered here, viz., how fir it is open to a respondent to seek relief against a co respondent by way of cross objection did not fall for consideration by the Privy Council. The Privy Council based its decision on the view that it was open to the respondent before the High Court to file a cross objection under Or. 41, r. 22 against the appellant and had not to consider the question now before us. We think it proper also to point out that the decision of the Privy Council in Anath Nath 's case (1), should not be considered as an authority for the proposition that the failure to file a cross objection where such objection could be filed under the law invariably and necessarily excludes the application of Or. 41, r. 33. There their Lordships assumed, without deciding, that the (1) A.I.R. 1939 P. C. 86, 994 High Court was not wholly without power to entertain the other ground of appeal but in the special circumstances of the case they thought that it would not have been right to give relief under the provisions of Rule 33 to the appellant. As the High Court has refused to exercise its powers under Or. 41, r. 33 of the Code of Civil Procedure on an incorrect view of the law the matter has to go back to the High Court. We maintain the High Court 's order in so far as it dismisses the suits against the State of Bombay but set aside the order in so far as it dismisses the suits against the other defendants and send the case back to the High Court in order that it may decide, on an examination of the merits of the case, whether relief should be granted to the plaintiff under the provisions of Or. 41, r. 33, Civil Procedure Code. Costs incurred in this Court will abide the final result in the appeals before the High Court at Bombay. Appeals allowed in part. Case remanded.

IN-Abs

The appellant brought three suits claiming full payment with interest in respect of three hospitals constructed by him in execution of three separate contracts between him and the Deputy Commissioner. The trial Judge decreed the suits for part of his claim against the State of Madhya Pradesh and held that other defendants were not liable, and accordingly dismissed the suits against them. On appeals preferred by the State of Madhya Pradesh, the High Court set aside the decree against the State Government ' and allowed the, appeals with costs. The plaintiff at that stage prayed for leave of the High Court to file a cross objection and also for decrees to be passed against the Deputy Commissioner under O. 41, r. 33 of the Code Of Civil Procedure, which was rejected and all the suits were dismissed. It was urged that (1) the State Government was liable in respect of all of these contracts and (2) the High Court ought to have granted relief against such of the other defendants as it thought fit under O. 41, r. 33 of the Code of Civil Procedure. Held, that the State Government was not liable in respect of any of these contracts. Held, further, that the wide wording of O. 41, r. 33 empowers the appellate court to make whatever order it thinks fit, not only as between the appellant and the respondent but also as between a respondent and a respondent. It could not be said that if a party who could have filed a cross objection under O. 41, r. 22 did not do so, the appeal court could under no circumstances give him relief under the provision of O. 41, r. 33. Order 41, r. 22 permits as a general rule, a respondent to prefer an objection directed only against the appellant and 981 it is only in exceptional cases that an objection under O. 41, r. 22 can be directed against the other respondents. On the facts of these cases the High Court refused to exercise its powers under O. 41, r. 33 on an incorrect view of the law and so the appeal must be remanded to the High Court for decision what relief should be granted to plaintiff under O. 41 r. 33. Burroda Soundree Dasee v, Nobo Gopal Mullick, , Maharaja Tarucknath Boy vs Tuboorunissa Chowdhrain, , Ganesh Pandurang Agte vs Gangadhar Ramakrishna, (1869) 6 Bom. H.C.Rep. 2244, AnwarJan Bibee vs Azmut Ali, , Tirmnama vs Lakshmanan, Venkateswarulu vs Rammama, I.L.R. , Jan Mohamed vs P. N. Razden, A.I.R. and Ghandiprasad vs Jugul Kishore, A.I.R. , referred to. Anath Nath vs Dwarka Nath, A.I.R. (1939) P. C. 86, held inapplicable.

Appeal No. 832 of 1962. Appeal by special leave from the judgment and decree dated January 22, 1962, of the Assam High Court in Gauhati, in Civil Rule No. 369 of 1961. M. C. Setalvad and Naunit Lal, for 'the appellant. N. C. Chatterjee and D. N. Mukherjee, for the respondent, 4 1963. February 12. The judgment of the Court was delivered by GAJENDRAGADKAR J. This appeal by special leave raises a short question about the scope and effect of the provisions contained in Article 311 (2) of the Constitution. The said question arises in this way. The respondent Bimal Kumar Pandit was serving appellant No. 1, the State of Assam, as an Extra Assistant Commissioner, Shillong. On December 11, 1959, the second appellant, the Chief Secretary to the Government of Assam, served on the respondent a charge sheet containing eleven specific charges and called upon him to show cause why he should not be dismissed from service or otherwise punished under Rule 55 of the Civil Services (Classification, Control & Appeal) Rules read with article 311 of the Constitution. The said notice further informed the respondent that the Governor of Assam had been pleased to authorise the Commissioner of Plains Division, Assam, to conduct the. enquiry and to report to appellant No. 2. On January 13, 1960 the respondent submitted an elaborate explanation in respect of all the charges. The Commissioner of Plains Division, Assam, then proceeded to hold an enquiry and after considering the evidence adduced before him, he made the report on April 12, 1960. In this report the Enquiry officer found that out of the 11 charges drawn up against the respondent, 6 had not been proved and of the remaining 5 charges, two had been fully established they were charges (7) and (10) ; and the other three charges Nos. (1), (2) and (4) had been partially established. The report made these findings and proceeded to add that the lapses proved did not cast any serious doubt on the honesty and integrity of the delinquent officer, although the evidence led in respect of charges (1) and (2) proved his inexperience and that led under charges (2) and (4) showed his irresponsibility. The report further stated that in the circumstances, the 5 two charges which deserved consideration for purposes of punishment were charges (7) and (10); aid it ended with the recommendation that in view of the limited scope of the charges proved and of the age and experience of the delinquent officer, the with. holding of three increments from his pay would meet the ends of justice in this case. After this report was received, appellant No. 2 served a second notice on the respondent on June 1, 1960. This notice referred to the disciplinary proceedings held against the respondent and added that the respondent was thereby required under clause (2) of article 311 of the Constitution to submit his explanation if any, why the penalty of removal from service should not be imposed upon him. The notice further stated that a copy of the report of the Enquiring officer in the disciplinary proceedings drawn up against the respondent was enclosed. The respondent was told that he had to submit his explanation through the Commissioner of Plains Division, Assam, on or before June 18, 1960. On receiving this notice, the respondent submitted his explanation on June 21, 1960 in respect of the charges which had been held proved by the Enquiring officer. After considering the explanation thus submitted by the respondent, the Governor of Assam was pleased to reduce in rank the respondent who was on probation in the Assam Civil Service, Class I to the Assam Civil Service Class Il, perma nently, with effect from the date he takes over as such. The Governor of Assam further ordered that the respondent will be on probation in the said Class 11 Service for two years, subject to termination, if his work and conduct were not found satisfactory. The respondent was to draw his pay in the minimum of the scale of pay of A. C. section, Class 11 and his seniority in the cadre would be determined with 6 effect from the date of his joining. This Order was made on July 8, 1961. The respondent then challenged the validity of this order by a writ petition in the High Court of .Judicature at Assam on August, 24, 1961. One of tile points urged by him was that he had not been given a reasonable opportunity of showing cause against the action which was ultimately taken against him under article 311 (2); and he urged that the contravention of article 311 (2) rendered the impugned order invalid. He urged other contentions also, but those have been rejected by the High Court, while his main point under article 3.11 (2) has been upheld. In the result, the High Court has allowed the writ petition and issued a mandamus directing the appellants not to give effect to the order dated 8th July, 1961. It is against this order that the appellants have come to this Court by special leave. We have already referred to the second notice served on the respondent under article 311 (2). The respondent 's contention which has been accepted by the High Court is that in the said notice, appellant No. 1 has not clearly indicated that it accepted the findings of the Enquiring officer; and since such a statement is not made in the notice, the respondent could not have known on what ground appellant No.1 provisionally decided to impose upon the respondent the penalty of removal from service. The High Court has held that the notice issued under article 311 (2) must show that the dismissing authority has applied its mind to the findings of the Enquiring officer and has accepted the said findings against the delinquent officer. In other words the notice should expressly state the conclusions of the dismissing authority, because unless these conclusions are communicated to the delinquent officer, he would not be able to make an adequate or effective representation. According to the High Court, in recording such conclusions, the dismissing authority must 7 also indicate the reasons on which it had come to those conclusions against the delinquent officer and since the impugned notice did not contain a specific averment that the dismissing authority had accepted the findings of the enquiring officer and otherwise gave no grounds or reasons for the action proposed to be taken against the respondent, it contravened the requirements of article 311 (2) and so, it must be held to be void. Mr. Setalvad for the appellants contends that in coming to this conclusion, the High Court has misinterpreted the scope and effect of article 311 (2). Article 311 (1) provides, inter alia, that no person covered by the said sub article shall be dismissed or removed by an authority subordinate to that by which he was appointed. We are not concerned with this sub Article in the present appeal. Article 311 (2) provides that no such person as specified in article 311 (1), shall be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. It is now well settled that a public officer against whom disciplinary proceedings are intended to be taken is entitled to have two opportunities before disciplinary action is finally taken against him. An enquiry must be held and it must be conducted according to the rules prescribed in that behalf and consistently with the requirements of natural justice. At this enquiry, the public officer concerned would be entitled to test the evidence adduced against him by cross examination, where necessary, and to lead his own evidence. In other words, at this first stage of the proceedings he is entitled to have an opportunity to defend himself. When the enquiry is over and the enquiring officer submits his report, the dismissing authority has to consider the report and decide whether it agrees with the conclusions of the report or not. If the findings, in the report are against the 8 public officer and the dismissing authority agrees with the said findings, a stage is reached for giving another opportunity to the public officer to show will disciplinary action should not be taken against him. In issuing the second notice, the dismissing authority naturally has to come to a tentative or provisional conclusion about the guilt of the public officer as well as about tile punishment which would meet the requirement. , of justice in his case, and it is only after reaching conclusions in both these matters provisionally that the dismissing authority issues the second notice. There is no doubt that in response to this notice; the public officer is entitled to show cause not only against the action proposed to be taken against him, but also against the validity or the correctness of the findings recorded by the enquiring officer and provisionally accepted by the dismissing authority. In other words, the second opportunity enables the public officer to cover the whole ground and to plead that no case had been made out against him for taking any disciplinary action and then to urge that if he fails in substantiating his innocence, the action proposed to be taken against him is either unduly severe or not called for. This position is not in dispute. The High Court seems to have taken the view that in order that the public officer may have a reasonable opportunity, tile dismissing authority must indicate its conclusions on the findings recorded by the enquiring officer and must specify reasons in supports of them. According to this view, the fact that the copy of the report made by the enquiring officer was sent to the delinquent officer along with the notice indicating the nature of the action proposed to be taken against him, does not help to meet the requirement of ' article 311 (2). The argument is that unless this course is adopted, it would not be clear that the dismissing authority had applied its mind and had provisionally come to some conclusions 9 both in regard to the guilt of 'the public officer and the punishment which his misconduct deserved. It may be conceded that it is desirable that the dismissing authority should indicate in the second notice its concurrence with the conclusions of the enquiring officer before it issues the said notice under article 311 (2). But the question which calls for our decision is if the dismissing authority does not expressly say that it has accepted the findings of the enquiring officer against the delinquent officer, does that introduce such an infirmity in the proceedings as to make the final order invalid ? We are not prepared to answer this question in the affirmative. It seems to us that it would be plain to the delinquent officer that the issuance of the notice indicating the provisional conclusions of the dismissing authority as to the punishment that should be imposed on him, obviously and clearly implies that the findings recorded against him by the enquiring officer have been accepted by the dismissing authority; otherwise there would be no sense and no purpose in issuing the notice under article 311 (2). Besides, we may add that in the present case, the affidavit made by appellant No. 2 clearly shows that before the impugned notice was served on the respondent, the Government had accepted the findings of the enquiring officer which means that the Government agreed with the enquiring officer in regard to both sets of findings recorded by him. Therefore, we do not think that the failure to state expressly that the dismissing authority has accepted the findings recorded in the report against the delinquent officer, justifies the conclusion that the notice given in that behalf does not afford a reasonable opportunity to the delinquent officer under article 311 (2). On receiving the notice in the present case, it 'must have been obvious to the respondent that, the findings recorded against him by the enquiring officer had been accepted by the appellants and so, we think it would not be reasonable to accept the 10 view that in the present case, he had no reasonable opportunity as required by article 311 (2). We ought, however, to add that if the dismissing authority differs from the findings recorded in the enquiry report, it is necessary that its provisional conclusions in that behalf should be specified in the second notice. It may be that the report makes findings in favour of the delinquent officer, but the dismissing authority disagrees with the said findings and proceeds to issue the notice under article 311 (2). ID such a case, it would obviously be necessary that the dismissing authority should expressly state that it differs from the findings recorded in the enquiry report and then indicate the nature of the action proposed to be taken against the delinquent officer. Without such an express statement in the notice, it would be impossible to issue the notice at all. There may also may be cases in which the enquiry report may make findings in favour of the delinquent officer on some issues and against him on some other issues. That is precisely what has happened in the present case. It ' the dismissing authority accepts all the said findings in their entirety, it is another matter : but if the dismissing authority accepts the findings recorded against the delinquent officer and differs from some or all of those recorded in his favour and proceeds to specify the nature of the action proposed to be taken on its own conclusions, it would be necessary that the said conclusions should be briefly indicated in the notice. In this category of cases, the action proposed to be taken would be based not only on the findings recorded against the delinquent officer in the enquiry report, but also on the view of the dismissing authority that the other charges not held proved by the enquiring officer are, according to the dismissing authority, proved. In order to give the delinquent officer a reasonable opportunity to show cause under article 311 (2), it is essential that the conclusions 11 provisionally reached by the dismissing authority must, in such cases, be specified in the notice. But where the dismissing authority purports to proceed to issue the notice against the delinquent officer after accepting the enquiry report in its entirety it cannot be said that it is essential that the dismissing authority must say that it has so accepted the report. As we have already indicated, it is desirable that even in such cases a statement to that effect should be made. But we do not think that the words used in article 311 (2) justify the View that the failure to make such a statement amounts to contravention of article 311 (2). In dealing with this point, We must bear in mind the fact that a copy of the enquiry report had been enclosed with the notice, and so, reading the notice in a common sense manner, the respondent would not have found any difficulty in realising that the action proposed to be taken against him proceeded on the basis that the appellants had accepted the conclusions of the enquiring officer in their entirety. It has, however, been urged by Mr. Chatterjee for the respondent that in the present case, the appellants must have proceeded to issue the notice against the respondent after coming to the conclusion that, some of the findings recorded in the enquiry report in favour of the respondent were not correct. His argument is that the enquiry report had suggested that the withholding of three increments would meet the ends of justice in the present case, nevertheless the notice issued by the appellants indicated that the action proposed to be taken was the respondent 's removal from service. It is true that the ultimate action taken against him was not as severe; he has, been merely demoted to Class II Service. But it is suggested that the severity of the punishment proposed to be inflicted on the Respondent rather suggests that the appellants felt that some of the other charges which the enquiring officer had not 12 held proved appeared to be proved to the appellants. This argument is no doubt ingenious; but in the circumstances of this case, we do not think it can be accepted. As this Court has held in A. N. D 'Silva vs Union of India (1), in the absence of rules or any statutory provisions to the contrary, the enquiry officer is not required to specify the punishment which may be imposed on the delinquent officer. His task is merely to hold an enquiry into the charges and make his report setting forth his conclusions and findings in respect of the said charges. Sometimes the enquiring officers do indicate the nature of the action that may be taken against the delinquent officer, but that ordinarily is outside the scope of the enquiry. That being so, not much significance can be attached to the recommendation made by the enquiring officer in the present case. Besides, it is absolutely clear that under the relevant rules, the punishment proposed to be imposed on the respondent was justified even on the findings recorded against him by the enquiring officer, and so, it would be idle to contend that unless the appellants had differed from the conclusions of the enquiring officer in respect of the charges which he held not proved, they could not have legitimately thought of imposing the said punishment on him. Therefore, in our )pinion, the argument that the action proposed to be taken itself shows that the appellants did not accept the findings recorded by the enquiring officer favour of the respondent must be rejected. We will now refer to some of the decisions on which Mr, Chatterjee relied. In the case of The High Commissioner of India vs I. M. Lal ( 2 ) , the Federal Court had to consider the scope and effect of he provisions of section 240(3) of the Constitution Act of 1935. 'This provision is substantially similar to the provisions contained in article 311(2) of the Constitution. According to the majority view of the Federal Court in that case, all that section 240(3) requited 'was (1) [1962] Supp. 1 section C. R. 968. (2) 136. 13 not only notification of the action proposed but of the grounds on which the authority was proposing that the action should be taken, and that the person concerned must then be given reasonable time to make his representations against the proposed action and the grounds on which it was proposed to be taken. Mr. Chatterjee contends that this decision shows that the notice served on the delinquent officer must set forth the grounds on which the particular action was proposed to be taken. He emphasises the fact that in the judgment it has been specifically stated that grounds should be stated on which the action is proposed to be taken, and shows that the dismissing authority must its reasons in support or the said Section. In our opinion, this argument is not justified, because the context in which the said observations were made by the Federal Court clearly shows that the grounds to the judgment refers are the findings or conclusions reached by the enquiring officer. In fact, in tile subsequent passage, it has been expressly observed that. the requirement of section 240(3) involves "in. all cases where there is an enquiry and as a result, thereof some authority definitely proposes dismissal or reduction in rank, that the person concerned shall be told in full, or adequately summarised form the results of that enquiry, and the findings of the enquiring officer and be given an opportunity of showing cause with that information why lie should not suffer the proposed dismissal or reduction in rank. " It would be noticed that this statement clearly shows that what the Federal Court held was that the dismissing authority must convey to the delinquent officer the findings of the enquiring officer either fully, or adequately summarised, and state the nature of the action proposed to be taken against him. In other words, the officer concerned ought to know what findings have been recorded against him and should be given a chance to challenge those findings and to question the propriety 14 of the action proposed to be taken against him. In this context, therefore, the grounds which, according to the judgment, have to be stated in the notice do not indicate grounds or reasons which would show. why the dismissing authority accepts the enquiring officer 's report, but the grounds, reasons, or findings which have been recorded by the enquiring officer are required to be stated. Therefore, we do not think that Mr. Chatterjee is justified in contending that the decision of the Federal Court in 1. M. Lal 's case supports the view taken by the High Court in the present proceedings. It is true that in the case of Khem Chand vs The Union of India (1), this Court has held that : "Reasonable opportunity envisaged by article 311 (2) includes, internal, an opportunity to make his representation as to why the proposed punishment should not be inflicted on him, which he can only do if the competent authority, after the enquiry is over and after applying his mind to the gravity or otherwise of the charges proved against the Government servant, tentatively proposes to inflict one of the three punishments and communicates the same to the Government servant. " There is no doubt that after the report is received, the appropriate authority must apply its mind to the report and must provisionally decide whether the findings recorded in the report should be accepted or not. It is only if the findings recorded in the report against the Government servant are accepted by the appropriate authority that it has to provisionally decide what action should be taken against him But this does not mean that in every case, the appropriate authority is under a constitutional obligation to state in the notice that it has accepted the adverse findings recorded by the enquiring officer before it indicates the nature of the action proposed to be taken against the delinquent officer. Therefore, we do not think that the decision of (1) ; , 1097, 15 this Court in Khem Chand 's case supports Mr. Chatterjee 's contention. On the other hand, the decision of this Court in The State of Orissa vs Govindadas Panda (1), shows that a similar order issued by the Orissa Government was upheld by this Court. In that case, the notice issued under article 311 (2) did not expressly state that the State Government had accepted the findings recorded by the enquiring officer against the Government servant in question. In fact even the nature of the punishment which was proposed to be inflicted on him was not specifically and clearly indicted. The Orissa High Court had struck down the order of dismissal on the ground that the notice was defective and so, the provisions of article :II 1 (2) had been contravened. This Court in reversing the concision of the Orissa High Court, observed that "in the context, it Must have been obvious to the respondent that the punishment proposed was removal from service and the respondent was called upon to show cause against that punishment. On a reasonable reading of the notice, the only conclusion at which one can arrive is that the appellant (the State) accepted the recommendation of the Administrative Tribunal and asked the respondent to show cause against the proposed punishment, namely, that of removal from service. " It may be added incidentally that the punishment which had been suggested by the Tribunal was removal from service, as distinguished from dismissal, and this Court held that the impugned notice must be deemed to have referred to that punishment as the action proposed to be taken against the Government servant. Therefore, this decision, in substance, is against the contention raised by Mr. Chatterjee There are, however, some decisions which seem to lend support to Mr. Chatterjee 's argument and it is, therefore, necessary to examine them. In the (1) Civil Appeal NO, 412/1958 decided on 10th Dec., 1958, 16 case of The State o Andhra vs T. Ramayya Suri the Andhra Pradesh High Court has held that "under article 311 (2) the authority concerned should necessarily in its order requiring the civil servant to show cause give not only the punishment proposed to lie inflicted but also the reasons for coming to that conclusion. " If this observation is intended to lay down a general rule that in every case the appropriate authority must state its own grounds or reasons for proposing to take any specific action against the delinquent government servant, we must hold that the said view is not justified by the requirements of article 311 (2). We ought, however, to add that in the case with which the Andhra Pradesh High Court was dealing, it appeared that the Government did not agree with the Tribunal in regard to its finding on the third charge and so, its conclusion on the said charge which was different from that of the Tribunal, weighed in its mind in proposing to take the specified action against the Government servant. In such a case, it would be legitimate to hold that the public servant did not know what was weighing in the mind of the Government and so, did not get an adequate opportunity to challenge the view which the Government was inclined to take in respect of the third charge framed against him. On these facts, we think, the High Court was justified in taking the view that the Government should have indicated in the notice its conclusion on the third charge. That, however, does riot mean that in the notice, the Government ought to state its grounds or reasons in support of its conclusion. It is the finding or the conclusion which is weighing in the mind of the Government that must, in such a case, be communicated to the public servant. In Bimal Charan Mitra vs State of Orissa (2), the Orissa High Court has held that "the service of the copy of the findings of the punishing authority on the public servant is mandatory and the service (1) A. I. R. , (2) A. I. R. 1957 Orissa. 184, 17 of the report of the enquiring officer who is not the punishing authority, when there is no indication at all in the notice that the authority competent to punish agrees with those findings, cannot constitute substantial compliance with the requirements of article 31 1 (2). " This decision seems to suggest that in issuing the notice under article 311. (2), the appropriate authority must, besides serving the copy of the enquiring officer 's report on the government servant, supply the said officer the findings of the punishing authority and this requirement is treated as a mandatory requirement under article 311(2). In our opinion, this view is erroneous. The same comment falls to be made 'about another decision of the said High Court in Krishan Gopal Mukherjee vs The State (1). The last decision to which reference must be made is the decision of the Bombay High Court in the State of Bombay vs Gajanan Mahadev Badley (2) . In this case, Chief justice Chagla has observed that under article 311 (2) it is not sufficient that the State should call upon the servant to show cause against the quantum of punishment intended to be inflicted upon him; the State must also call upon the servant to show cause against the decision arrived at by a departmental enquiry if that decision constitutes the ground on which the Government proposes to take, action against the servant. This view is clearly right. But then in support of this conclusion, the learned Chief justice has observed that the public servant must have an opportunity to show cause not only against the punishment but also against the grounds on which the State proposes to punish him; and Mr. Chatterjee relies upon this sentence to support his argument that the grounds on which the State proposes to act must be communicated to the public servant. In our opinion, this statement must be read along with the conclusion of the High Court (1) A.I.R. 1960 Orissa 37. (2) A.I.R. 1954 Bom. 351. 18 and so read, it would clearly show that what the C. J. intended to lay down was that the findings recorded in the enquiry report which constitutes the ground on which the Government proposes to take action must be communicated to the public servant. Therefore, this decision does not support Mr. Chatterjee 's argument that the notice issued under article 311(2) must expressly state that the appropriate authority accepts the findings of the enquiry officer and must give reasons in support of the action proposed to be taken against him. In the result, we hold that the High Court was in error in coming to the conclusion that the order of demotion 'Passed against the respondent in the present case was invalid on the ground that the respondent had not been given a reasonable opportunity of showing cause against the said action under article 311(2). The appeal accordingly succeeds, the order passed by the High Court is set aside and the writ petition filed by the respondent is dismissed. There will be no order as to costs. Appeal allowed.

IN-Abs

The respondent was An Extra Assistant Commissioner. He was charge sheeted and lie submitted an elaborate explanation in respect of all the charges. The enquiry was held by the Commissioner and a report submitted by him. After giving his findings, the Commissioner added that the lapses proved did not cast any serious doubt on the honesty arid integrity of the respondent and hence the withholding of three increments from his pay would meet the ends of justice. The appellant served a second notice on the respondent and the latter was asked to submit his explanation wiry penalty of removal from service should not be imposed upon him. The respondent submitted an explanation and the Governor of Assam, after considering the explanation, ordered his demotion. That order was challenged by the respondent by a writ petition filed in the High Court. The writ petition was allowed by the High Court and a writ of mandamus was issued directing the appellant not to give effect to the order of demotion. The High Court held that the second notice did not clearly indicate that the Government had accepted the findings of Enquiry officer and as such a statement was not made in the notice, the respondent could not have known on what grounds the Government had provisionally decided to 2 impose upon him the penalty of removal from service. It was also held that the notice must show that the dismissing authority had applied its mind to the findings of the Enquiry officer and had accepted the said findings against the respondent. The notice should expressly state the conclusions of the dismissing authority because unless those conclusions were communicated to the respondent, he was not in a position to make an adequate or effective representation, the dismissing authority must also indicate the reasons on which it bad come to those conclusions. As the impugned notice did not contain a specific averment that the dismissing authority had accepted the findings of the Enquiry officer and otherwise gave no grounds or reasons for the action proposed to be taken against the respondent, it contravened the provisions of article 311 (2). The appellant came to this Court by special leave. Held, that the High Court was in error in coming to the conclusion that the order of demotion passed against the respondent was invalid on the ground that the respondent had not been given a reasonable opportunity of showing cause against the action to be taken against him under article 311 (2) of the Constitution. A public officer against whom disciplinary proceedings are intended to be taken is entitled to have two opportunities. Ali enquiry must be held and it must be conducted according to the rules prescribed in that behalf and consistently with tile requirements of natural justice. When the Enquiry Officer submits his report, the dismissing authority has to consider the report and decide whether it agrees with the conclusions of the report or not. If the findings in the report are against the public officer and the dismissing authority agrees with them, another notice has to be given. In issuing the second notice, the dismissing authority has to come to a tentative or provisional conclusion about the guilt of the public officer as well as about the punishment which would meet the ends of justice. in response to this notice, the public officer is entitled to show cause not only against the action proposed to be taken against him but also against the validity or correctness of the findings recorded by tile Enquiry officer and provisionally accepted by the dismissing authority. If the dismissing authority differs from the findings recorded in the enquiry report, it is necessary that its provisional conclusions should be specified in the second notice. If the dismissing authority accepts the findings against the delinquent officer and differs from some or all of those recorded in his favour and proceeds to specify the nature of the action 3 proposed to be taken on its own conclusions, it is necessary that the said conclusions should be briefly indicated in the notice. Where the dismissing authority purports to issue the notice against the delinquent officer after accepting the enquiry report in its entirety, it cannot be said that it is essential that the dismissing authority must say that it has so accepted the report. However, it is desirable that even in such cases a statement to that effect should be made, but failure to make such statement does not contravene the provisions of article 311 (2). As regards the functions of the Enquiry officer unless there is any rule or statutory provision to the contrary, he is not required to specify the punishment which may be imposed on the delinquent officer. His task is merely to hold an enquiry into the charges and make his report stating forth his con clusions and findings in respect of the said charges. Sometimes, the Enquiry officers do indicate the nature of the action that may be taken against the delinquent officer, that ordinarily is outside the scope of the enquiry. A.N. D 'Silva vs Union of India, [1962] Supp. 1 section C. R. 968, High Commissioner of India vs I. M. Lal, , Khem Chand vs Union of India, ; , The State of Orissa vs Govindadas Pahda, C. A. No. 412/58, dt. 10 12 1958, State of Andhra vs T. Ramayya Suri, A. 1. R. 1957 Andhra 370, Bimal Charan Mitra vs State of Orissa A. 1. R. 1957 Orissa 184, Krishan Gopal Mukherjee vs The State, A. 1. R. 1960 Orissa 37 and State of Bombay vs Gajnan Mahadev Baldev, A. 1. R. , referred to.

minal Appeal No. 143 of 1961. Appeal by special leave from the judgment and order dated May 22, 1961, of the Punjab High Court, Chandigarh in Criminal Revision No. 1448 of 1960. section K. Kapur, for the appellants. Harnam Singh Chadha and Harbans Singh, for the respondent. February 13. The judgment of the Court was delivered by SUBBA RAO J. This appeal by special leave raises the question of true construction of section 488(8) of the Code of Criminal Procedure. Jagir Kaur, the first wife of jaswant Singh, was married to him in 1.930. Tile said jaswant Singh 76 was employed in the police force in Africa. The Maklawa ceremony took place about 7 years after the marriage, when the respondent was away In Africa. Thereafter, the first appellant was taken to her mother in law 's house, and after living there for a few years she returned to her parental house. 5 or 6 years thereafter, jaswant Singh came to India on 5 months ' leave and the couple lived in jaswant Singh 's or his mother 's house at Hans Kalan it is not clear to whom the house belongs for a period of 5 months and thereafter jaswant Singh left for Africa. Before going to Africa, jaswant Singh married another wife and took her with him to Africa. After 5 or 6 years, he came back to India on leave and took the first appellant also to Africa. There she gave birth to a daughter the second appellant. As disputes arose between them, he sent her back to India, promising to send her money for her maintenance but did not (lo so. In the year 1960, he came back to India. It is also in evidence that he had purchased property in Ludhiana District for Rs. 25,000/ . When he was admittedly in India, the first appellant filed a petition under section 488 of the Code of Criminal Procedure in the Court of the First Class Magistrate, Ludhiana, within whose jurisdiction the respondent was staying at that time. The petition was filed by the first appellant on behalf of herself and also as lawful guardian of the second appellant, who was a minor, claiming maintenance at Rs. 200/ per month for both of them on the ground that the respondent deserted them and did not maintain them. The respondent filed a counter affidavit denying the allegations and pleading that the said court had no on the ground that he never resided within its district nor did he last reside with the first appellant in any place within its.jurisdiction. The learned Magistrate held that the petitioner appellant was the wife of the respondent and that the Court had jurisdiction to entertain the petition as the 77 husband and wife last resided together in the District of Ludhiana. On the merits, he held that the first wife and her daughter were entitled to maintenance and awarded for the wife maintenance at the rate of Rs. 100/ per month and for the daughter at the rate of Rs. 50/ per month. The respondent preferred a revision against that order to the Additional Sessions judge, Ludhiana, and the learned Addi tional Sessions judge, agreed with the learned Magistrate both on the question of jurisdiction and also on the right to maintenance and dismissed the revision. The husband preferred a revision to the High Court of Punjab against that order. The High Court disagreed with both the lower Courts on the question of jurisdiction. It held that the husband 's permanent home was Africa and his two visits to Ludhiana for temporary periods did not make him one who resided in that district or who last resided with his wife therein. On that view, it set aside the order of the learned Additional Sessions judge and dismissed the petition. Hence the present appeal. Mr. Kapur, learned counsel for the appellants, contended that the respondent had last resided with his wife in his house in village Hans Kalan in the District of Ludhiana and was also in the said District at the time the application under section 488 of the Code of Criminal Procedure was filed by the first appellant and, therefore, the learned Magistrate had territorial jurisdiction to entertain the application. In any view, he argued, the respondent submitted to the jurisdiction of the Magistrate and, therefore, he could no longer question the validity of his order on the ground of want of jurisdiction. On the other hand, the learned counsel for the respondent sought to sustain the order of the High Court for the reasons mentioned therein. At the outset we must say that the first appellant did not raise the plea of submission 78 either in the pleadings or in any of the three Courts below. The question is a mixed question of fact and law. This Court will not ordinarily allow such questions to be raised for the first time before it and we do not see in this case any exceptional circumstances to depart from that practice. We cannot therefore, permit the first appellant to raise this belated plea. The only question in the appeal is whether the Magistrate of Ludhiana had jurisdiction to entertain the petition filed under section 488 of the Code of Criminal Procedure. The question turns upon the interpretation of the relevant provisions of section 488(8) of the Court, which demarcates the jurisdictional limits of a Court to entertain a petition under the said section. Section 488 (8) of the Code reads : "Proceedings under this section may be taken against any person in any district where he resides or is, or where he last resided with his wife, or, as the case may be, the mother of the illegitimate child.". The crucial words of the sub section are, "resides", "is" and "where lie last resided with his wife". Under the Code of 1882 the Magistrate of the District where the husband or father, as the case may be, resided only had ' jurisdiction. Now the jurisdiction is wider. It gives three alternative forums. This, in our view, has been designedly done by the Legislature to enable a discarded wife or a helpless child to get the much needed and urgent relief in one or other of the three forums convenient to them. The proceedings under this section are in the nature of civil proceedings. the remedy is a summary one and the person seeking that remedy, as we have pointed out, is ordinarily a helpless person. So, the words should be liberally construed ' without doing any violence to the language. 79 The first word is "resides". A wife can file a petition against her husband for maintenance in a Court in the District where he resides. The said word has been subject to conflicting judicial opinion. In the Oxford Dictionary it is defined as : "dwell permanently or for a considerable time; to have one 's settled or usual abode ; to live in or at a particular lace". The said meaning, therefore, takes in both a permanent dwelling as well as a temporary living in a place. It is, therefore, capable of different meanings, including domicile in the strictest and the most technical sense and a temporary residence. Whichever meaning is given to it, one thing is obvious and it is that it does not include a causal stay in, or a flying visit to, a particular place. In short, the meaning of the word would, in the ultimate analysis, depend upon the context and the purpose of a particular statute. In this case the context and purpose of the present statute certainly do not compel the importation of the concept of domicile in its technical sense. The purpose of the statute would be better served if the word "resides" was understood to include temporary residence. The juxtaposition of the words "is" and " 'last resided" in the sub Section also throws light on the meaning of the word "resides". The word " 'is", as we shall explain later, confers jurisdiction on a Court on the basis of a causal visit and the expression "last resided", about which also we have something to say, indicates that the Legislature could not have intended to use the word "resides" in the technical sense of domicile. The word "resides" cannot be given a meaning different from the word "resided" in the expression " 'last resided" and, therefore, the wider meaning fits in the setting in which the word "resides" appears. A few of the decisions cited at the Bar may be useful in this context. In Santpoornam vs N. Sundaregan (1), it was held that the word "resides" implied something more than (1) , 80 a brief visit. but not such continuity as to amount to a domicile. In Khairunissa vs Bashir Ahmed (1), on a consideration of the relevant authorities it wits pointed out that a casual or a flying visit to a place was excluded from the scope of the word "resides". A full Bench of the Allahabad High Court, in Flowers vs Flowers (2), expressed the view that a mere casual residence in a place for a temporary purpose with no intention of remaining was not. covered by the word "resides". In Balakrishna vs Sakuntala Bai (3) it was held that the expression "reside" implied something more than "stay" and implied some intention to remain at a place and not merely to pay it a casual visit. In Charan Das vs Surasti Bai (2), it was held that the sole test on the question of residence was whether a party had animus manendi, or an intention to stay for an indefinite period, at one place; and if he had such an intention, then alone could he be said to "reside" there. The decisions on the subject are legion and it would be futile to survey the entire field. Generally stated no decision goes so far as to hold that "resides" in the sub section means only domicile in the technical sense of that word. There is also a broad unanimity that it means something more than a flying visit to or a casual stay in a particular place. They agree that there shall be animus manendi or an intention to stay for a period, the length of the period depending upon the circumstances of each case. Having regard to the object sought to be achieved, the meaning implicit in the words used, and the construction placed by decided cases thereon, we would define the word "resides" thus : a person resides in a place if he through choice makes it his abode permanently or even temporarily ; whether a person has chosen to make a particular place his abode depends upon the facts of each case. Some illustra tions may make our meaning clear : (i) A, living in (1) Bom. (2) All. (3) A.I.R. 1942 Mad. (4) A.I.R. 1940 Lah. 449, 81 a village, goes to a nearby town B to attend a marriage or to make purchases and stays there in a hotel for a day or two. (2) A, a tourist, goes from place to place during his peregrinations and stays for a few days in each of the places he visits, A, a resident of a village, who is suffering from a chronic disease, goes along with his wife to a town for medical treatment, takes a house and lives there for about 6 months. (4) A, a permanent resident of a town, goes to a city for higher education, takes a house and lives there, alone or with his wife, to complete his studies. In the first two cases, A makes only a flying visit and he has no intention to live either permanently or temporarily in the places he visits. It cannot, therefore, be said that he "resides" in the places he visits. In the last two illustrations, though A has a permanent house elsewhere, he has a clear intention or animus manendi to make the places where he has gone for medical relief in one and studies in the other, his temporary abode or residence. In the last two cases it can be said that though he is not a domicile of those places, he "resides" in those places. The cognate expression "last resided" takes colour from the word " 'resides" used earlier in the sub section. The same meaning should be given to the word " resides" and the word " 'resided", that is to say, if the word "resides" includes temporary residence, the expression "last resided" means the place where the person had his last temporary residence. But it is said that even on that assumption, the expression can only denote the last residence of the person with his wife in any part of the world and that it is not confined to his last residence in any part of India. If the words "where he last resided with his wife" are construed in vacuum, the construction suggested by the learned counsel for the respondent may be correct; but by giving such a wide meaning to the said expression we would be giving extra territorial operation to the 82 Code of Criminal Procedure. Section 2 (1) of th Code extends the operation of the Code to the whole of India except the States of Jammu & Kashmir; that is to say, the provisions of the Code, including section 488 (8) thereof, have operation only throughout the territory of India, except the States of Jammu & Kashmir. If so, when sub section (8) of section 488 of the Code, prescribing the limits of Jurisdiction, speaks of the last residence of a person with his wife, it can only mean his last residence with his wife in the territories of India. It cannot obviously mean his residing with her in a foreign country, for an Act cannot confer jurisdiction on a foreign court. It would, therefore, be a legitimate construction of the said expression if we held that the district where be last resided with his wife must be a district in India. In In re Drucker (No. 2) Basden, Ex Parte the words "or in any other place out of England," in sub section (6) of section 27 of the Bankruptcy Act, 1883, fell to be construed. The words were wide enough to enable a Court in England to order that any person who, if in England, would be liable to be brought before it under the section, shall be examined in any place out of England, including a place not within the jurisdiction of the British Crown. The Court held that the words must be read with some limitation and the jurisdiction conferred by that section does not extend to places abroad which are not within the jurisdiction of the British Crown. Wright, J., rejecting the wider construction sought to be placed on the said words, observed at p. 211 : "It seems to me that that restriction in prima facie necessary. It is impossible to suppose that the Legislature intended to empower the Court to order the examination of persons in (1) 83 foreign countries ; for instance, in France or Germany." In Halsbury 's Laws of England, Vol. 36, 3rd edn., at p. 429, it is stated : ". . the presumption is said to be that Parliament is concerned with all conduct taking place within the territory or territories for which it is legislating in the particular instance, and with no other conduct. In other words, the extent of a statute, and the limits of its application, are prima facie the same. " It may be mentioned that the said observations are made in the context of Parliament making a law in respect of a part of the territory under its legislative jurisdiction. If it has no power at all to make a law in respect of any foreign territory, the operation of the law made by it cannot obviously extend to a country over which it has no legislative control. It is, therefore, clear that section 488(8) of the Code, when it speaks of a district where a person last resided with his wife, can only mean "where he last resided with his wife in any district in India other than Jammu & Kashmir. " The third expression is the word "is". It is inserted between the words "resides" and "last resided". The word, therefore, cannot be given the same meaning as the word "resides" or the expression "last resided" bears. The meaning of the word is apparent if the relevant part of the subsection is read. It reads : "Proceedings under this section may be taken against any person in any district where he. . is. . ." The verb "is" ' connotes in the context the presence or the existence of the person in the district when the proceedings are taken. It is much wider than the word "resides": it is not limited by the animus manendi 84 of the person or the duration or the nature of his stay. What matters is his physical presence at a particular point of time. This meaning accords with the object of the chapter wherein the concerned section appears. It is intended to reach a person, Who deserts a wife or child leaving her or it or both of them helpless in any particular district and goes to a distant place or even to a foreign country, but returns to that district or a neighbouring one on a casual or a flying visit. The wife can take advantage of his visit and file a petition in the district where he is during his stay. So too, if the husband who deserts his wife, has no permanent residence, but is always on the move, the wife can catch him at a convenient place and file a petition under section 488 of the Code. She may accidentally meet him in a place where he happens to come by coincidence and take action against him before lie leaves the said place. This is a salutary provision intended to provide for such abnormal cases. Many illustrations can be visualized where the utility of that provision can easily be demonstrated. To summarize : Chapter XXXVI of the Code of Criminal Procedure providing for maintenance of wives and children intends to serve a social purpose. Section 488 prescribes alternative forums to enable a deserted wife or a helpless child, legitimate or illegitimate, to get urgent relief. Proceedings under the section can be taken against the husband or the father, as the case may be, in a place where he resides, permanently or temporarily, or where he last resided in any district in India or where he happens to be at the time the proceedings are initiated. Let us now apply the said principles to the instant case. To recapitulate the relevant facts : the respondent was born in India in Ludhiana District; he was married to the first appellant in the year 1930; he migrated to Africa and took up a job there 85 as a police officer; he came back to India in or about 1943 and lived with the first appellant in a house at Hans Kalan for about 5 months and thereafter he left again for Africa; 5 or 6 years thereafter, he again came to India on leave and took her to Africa where she gave birth to a daughter; the appellant was sent back to India and she was staying in Ludhiana District with the child; the respondent 's mother is staying in the aforesaid village in the same district and it is also not disputed that the respondent has purchased property worth Rs. 25,000/ in Ludhiana District in the name of his minor children by his second wife; when the petition was filed he was admittedly in the district of Ludhiana indeed, notice was served on him in that district, he filed a counter affidavit, obtained exemption from personal appearance at the time of hearing and thereafter left for Africa. It is not necessary in this case to express our opinion on the question whether on the said facts the respondent "resides" in India; but we have no doubt that he "last resided" in India,. We have held that temporary residence with animus manendi will amount to residence within the meaning of the provisions of the sub section. When the respondent came to India and lived with his wife in his or in his mother 's house in village Hans Kalan, he had a clear intention to temporarily reside with his wife in that place. He did not go to that place as a casual visitor in the course of his peregrinations. He came there with the definite purpose of living with his wife in his native place and he lived there for about 6 months with her. The second visit appears to be only a flying visit to take her to Africa. In the circumstances we must hold that he last resided with her in a place within the jurisdiction of the First Class Magistrate, Ludhiana. That apart, it is admitted that he was in a place within the jurisdiction of the said Magistrate on the date when the appellant filed her application for maintenance against him. Thee said Magistrate had jurisdiction 86 to entertain the petition, as the said proceedings can be taken against any person in any district where he "is". We, therefore , hold that the First Class Magistrate, Ludhiana, had jurisdiction to entertain the petition under section 488 (8) of the Code. The next question relates to the quantum of maintenance to be awarded to the appellants. The Magistrate, on a consideration of the entire evidence, having regard to the salary of the respondent, and the value of the property he purchased awarded maintenance to the wife at the rate of Rs. 100/ per month for herself and at the rate of Rs. 50/ per month for the maintenance of her minor child. The Additional Sessions judge, on a reconsideration of the evidence, accepted the finding of the learned Magistrate and confirmed the quantum of maintenance awarded by him. The finding is a concurrent finding of fact the correctness whereof cannot ordinarily be questioned in a revision petition in the High Court. that is why the only question argued before the High Court was that of jurisdiction. As we have held that the view accepted by the High Court was wrong, we set aside the order of the High Court and restore that of the Magistrate First Class, Ludhiana. In the result the appeal is allowed. Appeal allowed.

IN-Abs

The respondent who was born in the Ludhiana District was married to the first appellant. He took up a job in Africa and after staving there for some time he came to India and stayed with his wife for 5 months, He then went to Africa and after staying there for 5 or 6 years came to India and took the appellant with him to Africa and a daughter was born to them there. The appellant was sent back with the child and she was staying in the District of Ludhiana with the child. It is admitted that the respondent had bought property worth Rs. 25,000/ in that District and that the petition for maintenance was filed by the appellant and the notice was served on him while the respondent was in that District. The respondent filed a counter affidavit, obtained exemption from personal appearance it the time of hearing of that petition and thereafter left for Africa. 74 The 1st Class Magistrate Ludhiana held that he had jurisdiction to entertain the petition filed by the appellant under section 488 of the Code of Criminal Procedure, 1898, as the appellant and the respondent had last resided in the District Ludhiana. He awarded for the wife 's maintenance at the rate of Rs. 100/ per month and for the daughter at the rate of Rs. 50/ per month. A revision petition filed by the respondent before the Additional Sessions judge was rejected. But the High Court holding that the 1st Class Magistrate had no jurisdiction to entertain the petition allowed the revision petition filed by the respondent. The present appeal is by way of special leave granted by this Court. The main contention on behalf of the appellants before this Court was that the respondent having last resided with his wife in the District of Ludhiana and he having been there at the time when the petition tinder section 488 was presented the Magistrate had jurisdiction to entertain the petition. It was further contended that the respondent having submitted to the jurisdiction of the Magistrate could not question his jurisdiction. Held, that Ch. XXVI of the Code of Criminal Procedure providing for maintenance of wife and children intends to serve a social purpose. Section 488 prescribes alternative forums to enable a deserted wife or a helpless child, legitimate or illegitimate to get urgent relief. Proceedings under the section can be taken against the husband or the father as the case may be, in a place where he resides permanently or temporarily, or where lie last resided in any District in India or where he happens to be at the time the proceedings are initiated. The expression "resides" implied something more than a brief visit but not such continuity as to amount to domicile. Sampoornam vs N. Sandaram, , referred to. A casual or flying visit to a place for a temporary purpose was not covered by the word residence. Khairunnissa vs Baskir Ahmad, Bom. 781, Flowers vs Flowers, (1910) 1. R. 32 All. 203 and Balakrishna vs Sakuntala Rai, A. 1. R. , referred to. The sole test on the question of residence was whether a party had animus manendi or an intention to stay for an in definite period at the place. 75 Charan Das vs Surasti Bai, A. 1. R. referred to. The appellant not having raised the plea of submission to jurisdiction either in the pleadings or in any of the courts below will not in the absence of special circumstances be allowed to raise it before this Court. Where a legislature has no power to make laws in respect of any territory the operation of the law made by it cannot extend to that territory. The facts and circumstances of the case show that the respondent last resided with his wife in a place within the jurisdiction of the First Class Magistrate, Ludhiana, and that he was in a place within the jurisdiction of the Magistrate on the date when the appellant filed her application for maintenance against him. In re Druker (No. 2) Basden, Ex Parte, referred to.

Appeal No. 289 of 1961. Appeal by special leave from the judgment and order dated February 6, 1959, of the Bombay High Court in Special Civil Appeal No. 2647 of 1958. M. C. Setalvad, C. K. Daphtary Solicitor General of India, section B. Jathar and R. H. Dhebar, for the appellants. section G. Patwardhan and A. C. Ratnaparkhi, for respondent No. 1. 50 1963. February 13. The judgment of the Court was delivered by SHAH J. With special leave, the Collector of South Satara has appeared against the order of the High Court of judicature at Bombay directing him to assess compensation payable to the respondent under section 9 (1) of the Bombay Pargana and kulkarni Watans (Abolition) Act, 1950. Laxman Mahadev Deshpande hereinafter called 'the respondent ' was the holder of Paragana Watan land bearing Survey Nos. 503/2. and 504/1 in Mouza Aitwade, Taluka Valve, District South Satara. Performance of service in respect of the Watan had been commuted under an arrangement made in or about 1864 under a commutation settlement popularly known as "Gordon Settlement" whereby the holder was, on agreeing to pay a fixed sum, relieved of the obligation to perform service as a Village Officer. The Legislature of the State of Bombay enacted an Act called the Bombay Paragana and Kulkarni Watans (Abolition) Act LX of 1950, which abolished all Paragana and Kulkarni Watans. The respondent applied to the Collector of South Satara for an order under section 9 of the Act awarding Rs. 10,479 2 8 as compensation for extinction of his right in the watan land, and of his "right to enjoy part of the land revenue. " By his order dated April 29, 1957, the Collector rejected the application, and the order of the Collector was affirmed by the Bombay Revenue Tribunal in appeal under section 9 (4) of the Act. But in petition under article 227 of the Constitution the High Court of Bombay set aside the order of the Collector and directed that officer to assess and pay compensation to the respondent under section 9 (1) of the Abolition Act. The land was granted to an ancestor of the respondent as remuneration for performance of Paragana service some time in the sixteenth century 51 by the Ruler of Satara, and that grant was confirmed by the British Government. The original grant and the confirmation sanad have not been produced, but it is common ground between the parties that the grant was of the soil and not merely of the royal share of revenue. In adjudging the claim made by the respondent for compensation under section 9 of the Bombay Paragana and Kulkarni Watans (Abolition) Act it is necessary in the first instance to ascertain the true character of the rights of a watandar in the land granted as remuneration for performance of service and the effect of the commutation settlement, in the light of the material provisions of the Bombay Hereditary ices Act, III of 1874, commonly known as the Watan Act. By section 4 of the Watan Act `Watan property ' is defined as meaning " 'moveable or immovable property held, acquired, or assigned for providing remuneration for the performance of the duty appertaining to an hereditary ice x X" 'Hereditary ice ' is defined as meaning "every ice held hereditarily for the performance of duties connected with the administration or collection of the public revenue or with the village police, or with the settlement of boundaries, or other matters of civil administration. The expression includes such ice even where the services originally appertaining to it have ceased to be demanded. The watan property, if any, and the hereditary ice and the rights and privileges attached to them together constitute the watan" and the expression `watandar ' means a person having an hereditary interest in a watan : it includes a person holding watan property acquired by him before the introduction of the British Government into the locality of the watan, or legally acquired subsequent to such introduction, and a person holding such property from him by inheritance. Section 15 of the Act provides for commutation of service. By sub section (1) it is provided : "The Collector may, with the consent of the 52 holder of a watan, given in writing, relieve him and his heirs, and successors in perpetuity of their liability to perform service upon such conditions, whether consistent with the provisions of this Act or not, as may be agreed upon by the Collector and such holder." By sub section (2) which was repealed by Act XVI of 1895, it was provided : " 'Any settlement made for this purpose before the date of this Act coming into force by any Collector or other officer acting on behalf of Government with the holder of any watan shall have the same force as if made under this Act. " Clause (3) provides : "Every settlement made or confirmed under this section shall be binding upon both the State Government and the holder of the watan and his heirs and successors. " It is clear that the watan property, if any, the hereditary ice, and the rights and privileges attached thereto, together constitute a watan and a hereditary ice does not lose its character merely because the service originally appertaining to the ice has ceased to be demanded. Commutation of service does not therefore, in the absence of an express agreement to that effect alter the tenure of the land held as watan. By agreement, the State, for consideration, may agree to relieve the holder of the ice and his successors of the duty to perform the service for performance of which the grant was made, but the ice and the grant continue, subject to the terms of the settlement under section 15 of the Bombay Hereditary ices Act, 1874. In Appaji Bapuji vs Keshav Shamrav (1), the nature of the tenure of land held originally as (1) Bow. 53 watan.land, after commutation of service, fell to be determined before the Bombay High Court, Sargent C. J., observed at p. 23 : "What is termed a Gordon Settlement was an arrangement entered into in 1864 by a Committee, of which Mr. Gordon, as Collector, was chairman, acting on behalf of Government with the vatandars in the Southern Maratha Country, by which the Government relieved certain vatandars in perpetuity from liability to perform the services attached to their ices in consideration of a 'judi ' or quit rent charged upon the vatan lands. x x x x x x the reports of Mr. Gordon 's Committee on the Satara and Poona Districts and their correspondence with Government can, we think, leave no doubt that the settlements made by that committee, unless it was otherwise specially provided by any particular settlement, were not intended by either party to these settlements, to convert the vatan lands into the private property of the vatandars with the necessary incident of alienability, but to leave them attached to the hereditary ices, which although freed from the performance of service remained intact, as shown by the definition of hereditary ice in the declaratory Act III of 1874. " But the Commutation settlement does not confer an indefeasible title to the grantee, for the right affirmed by the settlement under section 15 (3) of the Watan Act is liable to be determined by lapse, confiscation or resumption (section 22 of the Watan Act). The State having created the watan, is entitled to put an end to the watan i. e. to cancel the watan and to resume the grant : Bachharam Datta Patil vs Vishwanath Pundalik Patil (1). Therefore if there be mere commutation of service, the watan ice ordinarily (1) ; 54 survives without liability to perform service, and on that account the character of watan property still remains attached to the grant. But the State Government may abolish the ice and release the property from its character as watan property. It is in the light of these features of the watan and the property granted for remuneration of the Watandar that the relevant provisions of the Bombay Paragana and Kulkarni Watans (Abolition) Act, have to be considered in adjudging the right to receive compensation claimed by the respondent on abolition of his watan. By section 3 of the Abolition Act, it is provided that : "With effect from and on the appointed day, notwithstanding anything contained in any law, usage, settlement, grant, sanad or order (1) all Paragana and Kulkarni watans shall be deemed to have been abolished ; (2) all rights to hold ice and any liability to render service appertaining to the said watans are hereby extinguished; (3) subject to the provisions of section 4, all watan land is hereby resumed and shall be deemed to be subject to the payment of land revenue under the provisions of the Code and the rules made thereunder as if it were an unalienated land : Provided that such resumption shall not affect the validity of any alienation of such watan land made in accordance with the provisions of 55 section 5 of the Watan Act or the rights of an alience thereof or any person claiming under or through him; (4) all incidents appertaining to the said watans are hereby extinguished. " The material part of section 4 provides that : "A watan land resumed under the provisions of this Act shall x x x x be regranted to the holder of the watan to which it appertained, on payment of the occupancy price equal to twelve times of the amount of the full assessment of such land x x x x x x and the holder shall be deemed to be an occupant within the meaning of the Code in respect of such land x x x; all the provisions of the Code and rules "relating to unalienated land shall, subject to the provisions of this Act, apply to the said land:" By section 6 right to compensation in lieu of cash allowance or land revenue is granted. It provides : "6. Notwithstanding anything contained in any law, usage, settlement, grant, sanad or order, (1) a sum equal to seven times the amount of the cash allowance due to a holder on the appointed day of a watan in respect of which a commutation settlement has been effected, shall be paid to such holder; (2) in the case of any land or village, in respect of which the watan property consists of the whole or a part of the land revenue of such land or village, a sum equal to ten times the 56 amount of such land revenue shall be paid to the holder x x x x x X." Section 9 provides for assessment and payment of compensation for the abolition, extinction or modification by virtue of section 3 of rights in property not provided for in the Act. Sub section (1) provides : "If any person is aggrieved by the provisions of this Act as abolishing, extinguishing or modifying any of his rights to or interest in property and if compensation for such abolition, extinguishment or modification has not been pro vided for in the provisions of this Act such person may apply to the Collector for compensation. " Sub section (2) prescribes the procedure of an application for compensation and sub section (3) precludes the grant of compensation to any person on the ground that any watan land which was wholly or partially exempt from the payment of land revenue has been under the provisions of the Act subjected to the payment of full assessment. It appears clear from the scheme of section 6 that if the remuneration of the Watandar is merely cash allowance, or part or whole of the land revenue of the land, compensation at the rate prescribed is payable to the holder on abolition of the watan. If the remuneration consists not of cash allowance or remission of land revenue, but of the land itself by the combined operation of sections 3(3) and 4 the holder of the watan land is entitled to be regranted occupancy rights as in unalienated land. Section 9 deals with the rights of persons to receive compensation for abolition, extinguishment or modification of the right or interest in watan property by virtue of the provisions of the Act, in cases where no other provision is made in that behalf in the Act. There is 57 no serious dispute raised about this being the true position in law. But two questions remain in controversy between the parties : (1) Whether the right to or interest in property of a watandar is abolished, extinguished or modified by the provisions of the Bombay Paragana and Kulkarni Watans (Abolition) Act; and (2) Whether provision for compensation for the abolition, extinguishment or modification or the right or interest in the watan land of the holder is made by any provision in the Act, so as to exclude the operation of section 9(1) of the Act. The first question presents little difficulty in its solution. Section 3 in terms provides for abolition of the watan, extinction of the ice and modification of the right in which the land is held. The abolition, extinction and modification arise by the operation of section 3 of the Act, ' and not from the exercise of the executive power of confiscation or resumption, by the State. Undoubtedly the power of resumption of a watan may be exercised under section 22 of the watan Act and such a resumption may destroy the right of the holder both to the ice and the watan land, and in the absence of any provision in that behalf no right to compensation may arise. But where the abolition of the watan is not by executive action, but by legislative decree, its consequences must be sought in the statute which effectuates that abolition. On the second question the respondent affirms the contention which appealed to the High Court that where the grant to a watandar is of the soil and 58 not merely of cash allowance or of remission of land revenue as remuneration for performance of the duties of his ice, compensation has to be awarded under section 9, for Act LX of 1950 makes no provision for payment of compensation to the watandar for abolition of his ice and rights in the land held by him. The correctness of this view is challenged by the appellant. It must be remembered that the power which the State Government always possessed by the clearest implication of section 22 of the Bombay Hereditary ices Act, 1874, of resumption is statutorily enforced by section 3 in respect of the Paragana and Kulkarni Watans. The State Government having the power to abolish a watan ice, and to resume land granted as remuneration for performance of the duties attached to the ice was not obliged to compensate the wandar for extinction of his rights. But the Legislature has, as a matter of grace, presumably because of settlements between the holders and the Government under the Gordon Settlement, provided by section 6 that cash compensation be awarded for loss of the right to cash allowance or remission of land revenue and has by section 4 Conferred upon the holder of the watan land, for loss of his right, a right to regrant of the land as occupant and free from the obligation imposed by its original tenure as watan land. Provision is also made by section 9 for awarding compensation to persons whose right or interest in property is abolished, extinguished or modified by virtue of the section, and no other provision for compensation for such extinction, abolition or modification is made by the Act. The right to cash compensation under section 9 depends upon the existence of two conditions : the abolition, extinction or modification of rights in property by virtue of the provisions of the Act; and the absence of any other provision in the Act for compensation in that behalf. If, therefore, section 4 which provides for conferment of occupancy rights in land, be regarded as a provision for compensation for abolition, extinction or modification of the 59 right to hold it as watan land, the residuary enactment in section 9 will not on the plain terms be attracted. By the operation of section 3 all Paraganas and Kulkarni watans falling within the Act are abolished, the right to hold ice is extinguished, and the land granted as remuneration for performance of service is resumed. The holder of the land is thereafter liable to pay land revenue, and is entitled, on payment of the occupancy price at the prescribed rate, to be regranted occupancy rights as if it is unalienated land. The right so conferred is, though not a right to cash compensation, a valuable right of occupancy in the land. By the resumption of watan land and regrant thereof in occupancy right, all the restrictions placed upon the holder of watan land are by the provisions of the Watan Act, and the terms of the grant, statutorily abolished. But the right of occupancy granted by section 4 adequately compensates the holder for loss of the precarious interest of a watandar, because the land regranted after abolition of the watan, is held subject only to the restrictions imposed by sub section (2) of section 4, and is freed from the incidents of watan tenure, such as restriction on alienation beyond the life time of the holder, devolution according to the special rule of succession, and the liability to confiscation or resumption. In our judgment, compensation contemplated to be awarded, not as a matter of right but as of grace, is not merely money compensation; it includes grant of occupancy rights which compensates for the loss of ice and the interest of a watandar in the land. By section 4 the Legislature has granted for the loss suffered by the watandar on abolition of the watan and the rights in watan land, a right of occupancy in the land which may properly be regarded as compensating him for the abolition of his rights. Provision for levy of what is substantially a nominal occupancy price will not detract from that character. After the commutation settlement, the holder being relieved of the obligation to perform service, the ice of wandar survives in name only, but the land 60 granted as walan remains subject to the restrictions imposed by the Watan Act. by the regrant of the land in occupancy right, on abolition or extinction of the watan, the holder is not in truth prejudicially affected. Loss of watan rights in land, and the watan ice is compensated by the regrant of occupancy rights in the land. It would, therefore, be reasonable to infer that the Legislature contemplated the grant of compensation under sub section (2) of section 9 for abolition, extinction or modification of rights other than the rights of the watandar to land or to cash allowance or remission of land revenue. The appeal is therefore allowed and the order passed by the High Court set aside. We are informed at the Bar that the respondent has not claimed right of occupancy in the land which was previously held by him as watan land be granted to him. Whether he will be entitled thereto in view of his failure to make a claim to a regrant is a matter on which we express no opinion. Having regard to the circumstances, we direct that there will be no order as to costs throughout. Appeal allowed.

IN-Abs

On abolition of his watan, the respondent applied to the Collector claiming compensation under section 9 of the Bombay Paragana and Kulkarni Watans (Abolition) Act, 1950, for extinction of his right in the watan land, and of his "right to enjoy part of the land revenue. " The Collector rejected the application and in appeal the order was affirmed by the Revenue Tribunal. The High Court in a petition under article 227 of the Constitution set aside the order of the Collector and directed him to assess and pay compensation to the respondent under section 9 (1) of the Act. Held, that the watan property if any the hereditary ice, and the rights and privileges attached thereto, together 49 constitute a watan, and a hereditary ice does not lose its character merely because the service originally appertaining to the ice has ceased to be demanded. Commutation of service does not in the absence of an express agreement to that effect alter the tenure of the land held as watan. By agreement, the State may relieve the holder of the ice and his successors of the duty to perform the service for which the grant was made,but the ice and the grant continue, subject to the terms of the settlement under section 15 of the Bombay Hereditary Offices Act, 1874. Appaji Bapuji vs Keshav Shamrav, (1890) 1. L. R. and Bachharam Datta Patil vs Viswanath Pundalik Patil, ; , referred to. Held, further, that after the commutation settlement, the holder being relieved of the obligation to perform service, the ice of watandar survives in name only but the land granted as watan remains subject to the restrictions imposed by the Watan Act. By the regrant of the land in occupancy right, on abolition or extinction of the watan, the holder is not in truth prejudicially affected. Loss of watan rights in land, and the watan ice is compensated by the regrant of occupancy rights in the land. Grant of compensation was contemplated under sub section (2) of section 9 of the Bombay Paragana and Kulkarni Watans (Abolition) Act for abolition, extinction or modification of rights other than the rights of a watandar, to land or cash allowance or remission of land revenue.

Appeal No. 359 of 1962. Appeal by special leave from the Award dated April 3, 1961 of the Seventh Industrial Tribunal, West Bengal, in Case No. VIII 303 of 1960. B.Sen, S.C. Mazumdar, D. N. Mukherjee for B. N. Ghosh, for the appellant. Janardhan Sharma, for the respondents. February 22. The judgment of the Court was delivered by HIDAYATULLAH J. By this appeal filed with the special leave of this Court, by the Meenglas Tea 167 Estate against its Workmen the Company seeks to challenge an award dated April 3 , 1961, pronounced by the Seventh Industrial Tribunal, West Bengal. The order of reference was made by the Government of West Bengal as far back as October 29, 1957, in respect of the dismissal of 44 workmen. The issue which was referred was as follows: "Whether the dismissal of the workmen mentioned in the attached list is justified ? What relief by way of reinstatement and/or compensation are they entitled to?" From November 5, 1957, to August 17, 1960, this reference remained pending before the First Labour Court. It was then transferred to the Seventh Industrial Tribunal and the letter made the impugned award on April 3, 1961. By the time the award was made two of the workmen (Nos. 12 and 37) had died and four had been reemployed (Nos. 31, 33, 34 and 35). One of the workmen (No. 22) was not found to be a workman at all. The Tribunal held that the orders of dis missal of fourteen workmen were justified though retrospective effect could not be given to the orders. The Company was ordered to re instate the remaining workmen and to pay them compensation in some cases (but not all) amounting to three months ' wages. In the present appeal the Company seeks to challenge the award regarding 13 of those workmen who have, been ordered to 'be reinstated. of these workmen the cases of three fall to be considered separately and those of the remaining ten can be considered together. We shall now give the facts from which the reference arose. The appellant Meenglas Tea Estate in Jalpaiguri District of West Bengal is owned by Dun can Brothers Ltd. The workers belong to the Zilla Chabagan Workers ' Union, Malbazar, District 168 jalpaiguri. On January 18, 1956, there was an ugly incident in which a group of workmen assaulted the Manager, Mr. Marshall and his two Assistant Managers Mr. Nichols and Mr. Dhawan. This happened one morning in a section of the tea gardens where about two hundred workmen had surrounded Mr. Nichols and were making a violent demonstration. First Mr. Dhawan and soon after Mr. Marshall arrived on the scene and the workmen surrounded them also. In the assault that followed these three officers were wounded Mr.Marshall seriously. A criminal cage was started against some of the rioters but we are not concerned with it. The Company also started proceedings against some workmen. It first issued a notice of suspension which was to take effect from February 6, 1956, and then served charge sheets on a large number of workmen charging them with participation in . the riot. The Work men replied denying their complicity. The Company then held enquiries and ordered the dismissal of a number of workmen with effect from January 18, 1956. A sample order of dismissal is exhibited as annexure F in the case. In the enquiry before the Tribunal the Union admitted the incident though it said that it was caused by provocation on the part of the Management. The Union, however, denied that any of the workmen who were charged was concerned in the affray pointing out that none of these workmen was prosecuted by the police. The enquiry was held by Mr., Marshall and Mr. Nichols and the record of the proceedings is marked Exhibits 17 and 18 series. That record was produced before us by the appellant for our perusal. It was admitted before us that there was no further record of evidence for the Company as none was recorded. Exhibit 17 and 18 series are the answers of the workmen to the charges against . them and such replies as they gave to questions put to them in cross examination, 169 The Tribunal held that the enquiry was vitiated because it was not held in accordance with the principles of natural justice. It is contended that this conclusion was erroneous. But we have no doubt about its correctness. The enquiry consisted of putting questions to each workman in turn. No witness was examined in support of the charge before the workman was, questioned. It is an elementary principle that a person who is required to answer a charge must know not only the accusation but also the testimony by which the accusation is supported. He must be given a fair chance to hear the evidence in support of the charge and to put such relevant questions by way of cross examination as he desires. Then he must be given a chance to rebut the evidence led against him. This is the barest requirement of an enquiry of this character and this requirements must be substantially fulfilled before the result of the enquiry can be accepted. A departure from this requirement in effect throws the burden upon the person charged to repel the charge without first making it out against him. In the present case neither was any witness examined nor was any statement made by any witness tendered in evidence. The enquiry, such as it was, was made by Mr. Marshall or Mr. Nichols who were not only in the positionof judges but also of prosecutors and witnesses. There Was DO opportunity to the persons charged to cross examine them and indeed they drew upon their own knowledge of the incident and instead cross examined the persons charged. This was such a travesty of the principles of natural ,justice that the Tribunal was justified in rejecting the findings and asking the Company to prove the allegation against each workman de novo before it. In the enquiry which the Tribunal held the Company examined five witnesses including Mr. Marshall, Mr. Nichols and Mr. Dhawan, who were the eye witnesses. In view of the fact that the 170 enquiry was being made into an incident which took place four and a half years ago the Tribunal in assessing the evidence held that it would not accept that any workman was incriminated unless at least two witnesses deposed against him. Some of the workmen got the benefit of this approach and it is now contended that the Tribunal was in error in insisting upon corroboration before accepting the evidence of a single witness. Reference in this connection is made to section 134 of the Indian Evidence Act (1 of 1872) which lays down that no particular number of witnesses shall in any case be required for the proof of any fact. It is not a question of an error in applying the Evidence Act. It is rather a question of proceeding with caution in a case where admittedly many persons were involved and the incident itself took place a very long time ago. The Tribunal acted with caution and did not act upon uncorroborated testimony. It is possible, that the evidence against some of the persons to whom the benefit has gone, might be cogent enough for acceptance, but the question is not one of believing a single witness in respect of any particular workman but of treating all workmen alike and following a method which was likely to eliminate reasonably chances of faulty observation or incorrect recollection. On the whole, it cannot be said that the Tribunal adopted an approach which made it impossible for the company to prove its case. It followed a standard which in the circumstances was prudent. We do not think that for this reason an interference is called for. Since no other point was argued the appeal of the Company in respect of the ten workmen, who were alleged to be concerned in the occurrence of January 18, 1956, must be dismissed. This brings us to the consideration of the three special cases. They concern Dasarath Barick (No. 25), Lea Bichu (No. 26) and Nester Munda (No. 27). Dasarath Barick was said to have threatened the 171 loyal workers and to have prevented them from work on March 15, 1956. Lea Bichu was said to have forced the chowkidar to hand over the keys of the gate to him on the same day and to have locked the gate with a view to hampering the movement of workmen. The Tribunal held that the enquiry in both the cases was not a proper enquiry and the conclusion was not acceptable. Here, again no witness was examined in the enquiry to prove the two occurrences and even before the Tribunal there was no evidence against them except the uncorroborated testimony of Mr. Mar shall. No worker was examined to prove that he was threatened by Dasarath Barick or to show that it was Lea Bichu who had taken the keys from the chowkidar and locked the gate. In view of these circumstances the Tribunal was justified in not accepting the findings which proceeded almost on no evidence. We agree with the Tribunal that no case was made out before the Tribunal for the dismissal of Dasarath Barick and Lea Bichu. The last case is of Nester Munda who is the Secretary of the Union., ' It was alleged against him that on, January 16, 1956, he had abused Mr. Nichols and had demonstrated at the head of a hostile group of workmen. Here, again, no proper enquiry was held and the conclusion reached at the enquiry by the Company was not acceptable. The Tribunal, therefore, enquired into the case for itself. Mr. Nichols and Mr. Dhawan gave evidence which the Tribunal was not prepared to accept. It pointed out that their testimony conflicted on vital points. Since the Tribunal had the opportunity of hearing and seeing Mr. Nichols and Mr. Dhawan we should be slow to reach a conclusion different from that of the Tribunal. In addition, in such cases, it is not the practice of this Court to enter into evidence with a view to finding facts for itself. Following this well settled practice we see no reason 172 to interfere with the conclusion of the Tribunal. The result is that the appeal fails and is dismissed with costs.

IN-Abs

In January, 1956, there was an incident in which a group of workmen assaulted the Manager and two Assistant Managers of tile appellant company. All the three officers Were Wound ed. Some workmen were suspended, and charge sheets were served on them, charging them with participation in the riot. After an inquiry the workmen were dismissed. The inquiry was held by the Manager and one of the Assistant Managers,During the inquiry, no witness was examined and no statement made by any witness was tendered in evidence. (1) , 166 The dispute was first referred to the Labour Court and then to the Industrial Tribunal, West Bengal. The Tribunal set aside the inquiry held by the appellant company and asked the company to prove the allegations against each workman de novo before it. The company examined five witnesses. The Tribunal held that orders for dismissal of 15 workmen were justified but it ordered the remaining workmen to be reinstated. The company came to this Court by special leave. Held, that the view of the Tribunal was correct that the inquiry made by the company was not in accordance with the principles of natural justice. The inquiry consisted of putting questions to each workman in turn. No witness was examined in support of the charge before the workman was questioned. It is an elementary principle that a person who is required to answer a charge must not only know the accusation but also the testimony by which the accusation is supported. He must be given a clear chance to hear the evidence in support of the charge and to put such relevant questions by way of cross examination as he desires. He must also be given a chance to rebut the evidence led against him. As regards two workmen, this Court held that the Tribunal was justified in not accepting the findings which proceeded almost on no evidence. As regards one workman, this Court held that as the Tribunal had the opportunity of hearing and seeing the two Assistant Managers, this Court would be slow to reach a conclusion different from that of the Tribunal. Moreover, in such cases, it is not the practice of this Court to enter into evidence with a view to finding facts for itself.

iminal Appeals Nos. 26 and 27 of 1952. Appeals under Article 134 (1) (c) of the Constitution of India from the Order dated 4th February, 1952, of the Calcutta High Court (CHAKRAVARTTI and SINHA JJ.) in Criminal Revision Nos. 102 and 103 of 1952. S.C. Das Gupta and A.K. Dutt for the appellants. B. Sen for the respondent. Arun Kumar Datta for the complainant. 1953, April 10.The Judgment of the Court was delivered by MAHAJAN J. 838 MAHAJAN J. These two appeals arise in the following circumstances: One Mokshadamoyee Dassi, mother of Dhirendra Nath Bera, died some time in the evening of the 3rd September, 1949. At the moment of her death Dhirendra Nath was not present at the house. On his return at, about 8 30 p.m. he along with some other persons took the dead body to the cremation ground. It appears that Nurul Huda, the appellant in Criminal Appeal No. 27 of, 1952, had lodged information at the police station to the effect that Dhirendra Nath had beaten and throttled his mother to death. When the funeral pyre was in flames, Nurul Ruda along with the appellants in Criminal Appeal No. 26 of 1952 and accompanied by the sub inspector of police arrived at the cremation ground. The appellants pointed out the dead body and told the sub inspector that the complainant had killed his mother by throttling her and that there were marks of injury on the body which they could show to the sub Inspector if he caused the body to be brought down from the pyre. At their suggestion the fire was extinguished and the dead body was taken down from the pyre in spite of the protests from the complainant. On an examination of the dead body it was found that there were no marks of injury on. it and the appellants were unable to point out any such marks. The body was however sent for postmortem examination which was held on 5th September, 1949, but no injury was found on the person of the deceased. The sub inspector after investigation reached the conclusion that a false complaint had been made against Dhirendra Nath. On the 24th September, 1949, Dhirendra Nath filed a petition of complaint in the Court of the Sub Divisional Officer of Uluberia in the district of Howrali against the appellants in both the cases and one Sanwaral Huq. It was alleged in the complaint that the information given by Nurul Huda to the police was false, that Nurul Huda and the other appellants had made imputations mala fide out of enmity against him with the intention of harming his reputation and that to wound his religious feelings they had trespassed on 839 the cremation ground and caused the dead body to be taken out by making false imputations. The appellants were tried before Shri R. Ray Choudhury, Magistrate 1st class, Uluberia, on charges under sections 297 and 500, Indian Penal Code. The charges fraimed against them were in these terms : "(1) That you on or about the 17th day of Bhadra, 1356 B.S. at Panshila, P. section Shyampur, with the intention of wounding the religious feelings of P. W. 1, Dhirendra Nath Bera, the complainant, committed trespass upon the cremation ground where the funeral rites of the mother of the complainant were being performed and thereby committed an offence punishable under section 297, Indian Penal Code, and within my cognizance; (2) That you oil or about the 17th day of Bhadra, 1356 B. section at Panshila, P. section Shyampur, defamed P. W. 1, Dhirendra Nath Bera, the complainant, by making imputation to the effect that he had killed his mother intending to harm, or knowing or having reason to believe that such imputation would harm the reputation of the complainant and thereby committed an offence punishable under section 500, Indian Penal Code, and within my cognizance. " None of these charges relates to the falsity of the report made to the police or contains facts or allegations which disclose an offence under section 182, Indian Penal Code. The charge under section 297, Indian Penal Code, was a distinct one and concerned an act of the accused committed after the giving of the report. The charge under section 500 related to defamatory and libellous allegations contained in the report itself. It was contended on behalf of the defence that Nurul Huda had lodged information with the police tinder a bona fide belief created in his mind on the statement of one Asiram Bibi and that none of the accused persons had entered the cremation ground as alleged by the complainant, 840 The magistrate held the charges proved against all the appellants and convicted each of them under sections 7 and 500, Indian Penal Code. Each of the appellants was awarded three months ' rigorous imprisonment on the charge under section 297 and each of them was sentenced to a fine of Rs. 100 on the charge under section 500. The appellants went up in appeal to the Sessions Judge of Howrah who by his order dated 31st July, 1,950, set aside the convictions and sentences and acquitted them. He held that on the facts stated in the complaint the only offence that could be said to have been committed by the appellants was one under section 182 or section 21 1, Indian Penal Code, and that a court was not competent to take cognizance of those offences except on a complaint by a proper authority under the provisions of section 195, Criminal Procedure Code. Against the acquittal order an application in revision was preferred to the High Court. This petition came up for hearing before a Bench of the High Court (K. C. Das Gupta and P. N. Mookerjee JJ.). The learned judges reached the conclusion that on the facts alleged in the petition of complaint distinct offences under sections 182, 297 and 500, Indian Penal Code, had been disclosed. They however referred for the decision of the Full Bench the following question: "If the facts alleged in a petition of complaint, or in an information received by the magistrate, on which a magistrate can ordinarily take cognizance of an offence under section 190, Criminal Procedure Code, disclose an offence of which cognizance cannot be taken by the magistrate because of the special provisions of section 195, or 196, or 196 A, or 197, or 199, Criminal Procedure Code, is the magistrate also debarred because of this from taking cognizance of other offences disclosed by the facts alleged, which are not in any way affected by the provisions of section 195, or 1.96, or 196 A or 197 or 199, Criminal Procedure Code. " The Full Bench answered the question referred in the negative. In respect of the conviction under 841 section 297, Indian Penal Code, the learned Judges said that there as nothing in sections 195 to 199, Criminal Procedure Code, which could in any way bar the prosecution of the appellants under that section, as it could in no way be said that it arose out of the facts which would constitute an offence under section 182, or section 211, Indian Penal Code. On the other hand, it arose from an entirely different set of facts, namely, the trespass by the opposite parties in the burial ground and the removal of the corpse from the lighted funeral pyre. With regard to the offence under section 500, it was observed that though the prosecution for defamation was based on the false information given to a public officer, that circumstance, however, was no bar for the prosecution of the appellants under that section. In the result the application in revision was allowed, the order of acquittal was set aside and the sessions judge was directed to re hear the appeal on the merits. After remand the appeal was heard on the merits and was dismissed. The convictions and sentences passed by the magistrate were confirmed. Against the order of the sessions judge the appellants went up in revision to the High Court but these applications were summarily dismissed. The appellants thereupon applied to the High Court for a certificate under article 134 (1) (c) of the Constitution for leave to appeal to this Court. In the application the order of the Full Bench dated 22nd June, 1951, was challenged. This application was opposed on behalf of the complainant on the ground that the interim order of the Pull Bench not having, been appealed against could not be challenged at that stage. Thus two substantial questions were argued in the leave application, namely, 1.whether it was open to the accused to question the correctness of the Full Bench decision, it not having been appealed from when it was passed, and, 2.whether the point decided by the Full Bench in itself was of sufficient importance to justify the granting of a certificate under article 134(1)(c). 109 842 As the judgment of the Full Bench did not terminate the proceedings but merely directed the appeal to be reheard, it was held that the petitioners could not appeal from it at that time and it was open to them to raise the point at this stage. The second question was considered of sufficient importance to justify the grant of leave and leave was accordingly granted. The learned counsel for the respondent raised a preliminary objection in order to canvass the first question mentioned above, while the learned counsel for the appellants canvassed the question of the correctness of the decision of the Full Bench on its merits. He contended that the magistrate had no jurisdiction to take cognizance of the complaint under section 500 and section 297, Indian Penal Code, as the facts disclosed constituted an offence under section 182 which offence could not be tried except on a complaint by a public servant. Section 195, Criminal Procedure Code, on which the question raised is grounded, provides, inter alia, that no court shall take cognizance of an offence punishable under sections 172 to 188, Indian Penal Code, except on the complaint in writing of the public servant concerned, or some other public servant to whom he is subordinate. The statute thus requires that without a complaint in writing of the public servant concerned no prosecution for an of fence under section 182 can be taken cognizance of. It does not further provide that if in the course of the commission of that offence other distinct offences are committed, the magistrate is debarred from taking cognizance in respect of those offences as well. The allegations made in a complaint may have a double aspect, that is, on the one hand these may constitute an offence against the authority of the public servant or public justice, and on the other hand, they may also constitute the offence of defamation or some other distinct offence. The section does not per se bar the cognizance by the magistrate of that offence, even if no action is taken by the public servant to whom the false report has been made. It was however argued that if on the same facts an 843 offence of which no cognizance can be taken under the provisions of section 195 is disclosed and the same facts disclose another offence as well which is outside the purview of the section and prosecution for that other offence is taken cognizance of without the requirements of section 195 having been fulfilled, then the provisions of that section would become nugatory and if such a course was permitted those provisions will stand defeated. It was further said that it is not permissible for the prosecution to ignore the provisions of this section by describing the offence as being punishable under some other section of the Penal Code. In our judgment, the contention raised by the learned counsel for the appellants is without any substance so far as the present case is concerned. The charge for the offence under section 297, Indian Penal Code, could in no circumstance, as pointed out by the High Court, be described as falling within the purview of section 195, Criminal Procedure Code. The act of trespass was alleged to have been committed subsequent to the making of the false report and all the ingredients of the offence that have been held to have been established on the evidence concern the conduct of the appellants during the post report period. In these circumstances, no serious contention could be raised that the provisions of section 195 would stand defeated by the magistrate having taken cognizance of the offence under that section. As regards the charge under section 500, Indian Penal Code, it seems fairly clear both on principle and authority that where the allegations made in a false report disclose two distinct offences, one against the public servant and the other against a private individual, that other is not debarred by the provisions of section 195 from seeking redress for the offence committed against him. Section 499, Indian Penal Code, which mentions the ingredients of the offence of defamation gives within defined limits immunity to persons making depositions in court, but it is now well settled that immunity is a qualified one and is not absolute as it is in English law. Under section 198, 844 Criminal Procedure Code, a complaint in respect of an offence under section 499, Indian Penal Code, can only be initiated at the instance of the person defamed, in like manner as cognizance for an offence under section 182 cannot be taken except at the complaint of the public servant concerned. In view of these provisions there does not seem in principle any warrant for the proposition that a complaint under section 499 in such a situation cannot be taken cognizance of unless two persons join in making it, i.e., it can only be considered if both the public servant and the person defamed join in making it, otherwise the person defamed is without any redress. The statute has prescribed distinct procedure for the making of the complaints under these two provisions of the Indian Penal Code and when the prescribed procedure has been followed, the court is bound to take cognizance of the offence complained of The decided cases fully support this view and our attention has not been drawn to any case which has taken a contrary view as regards offences under section 500, Indian Penal Code. In Satish Chandra Chakravarti vs Ram Dayal De (1), five judges of the Calcutta High Court considered this question and held that where the maker of a single statement is guilty of two distinct offences, one under section 21 1, Indian Penal Code, which is an offence against public justice, and the other an offence under section 499, wherein the personal element largely predominates, the offence under the latter section can be taken cognizance of without the sanction of the court concerned, as the Criminal Procedure Code has not provided for sanction of court for taking cognizance of that offence. It was said that the two offences being fundamentally distinct in nature, could be separately taken cognizance of. That they are distinct in character is patent from the fact that the former is made non compoundable, while the latter remains compoundable; in one for the the initiation of the proceedings the legislature requires the sanction of the court under section 195, (1) 845 Criminal Procedure Code, while in the other, Cognizance can be taken of the offence on the complaint of the person defamed. It could not be denied that the accused could be tried of charges under sections 182 and 500, Indian Penal Code, separately on the same facts provided the public servant as well as the person defamed made complaints. If that is so, there is no reason why one cannot be tried independently of the other so long as the requirements of each are satisfied. Harries C. J. while delivering the Full Bench decision in question examined all the earlier cases of the Calcutta High Court and observed that where upon the facts the commission of several offences is disclosed some of which require sanction and others do not, it is open to the complainant to proceed in respect of those only which do not require sanction; because to hold otherwise would amount to legislating and adding very materially to the provisions of section is 195 to 199 of the Code of Criminal Procedure. Sections 195 to 199 deal with the requisites for the prosecution of certain specified offences and the provisions of those sections must be limited to prosecutions for the offences actually indicated. If it was the intention of the legislature to make sanctions or complaints in a certain form necessary for the prosecution of all offences disclosed by facts which would give rise to any of the offences specifically indicated in these sections, the legislature could have said so but it did not. Recently this matter was canvassed before a Full Bench of the Madras High Court and it was held that in such cases it was open to the party defamed to take proceedings under section 499, Indian Penal Code, without the court filing a complaint in accordance with the provisions laid down in section 195. There the question was whether the alleged defamer who had given false evidence in a court could be prosecuted under section 499, Indian Penal Code, without a complaint by the court before whom fie gave evidenice and the question was answered in the affirmative after an exhaustive review of the decided cases of the different High Courts in India. It was said that if the offence of 846 giving false evidence in a judicial proceeding and defamation do not belong to the same genus but are distinct and separate in their characteryistics and ingredients, it was difficult to perceive any serious inhibition by the Criminal Procedure Code for initiation and trial of one of these offences independently of anterior resort to fulfillinig the conditions necessary to comnience a prosecution for the other. These observations have apt application to the present case. The ingredients of the offence under section 182 cannot be said to be the ingredients for the offence under section 500. Nor can it be said that the offence relating to giving false information relates to the same group of offences as that of defamation. Though, in our judgment, section 195 does not bar the trial of an accused person for a distinct offence disclosed by the same facts and which is not included within the ambit of that section, it has also to be borne in mind that the provisions of that section cannot be evaded by resorting to devices or camouflages. The test whether there is evasion of the section or not is whether the facts disclose primarily and essentially an offence for which a complaint of the court or of the public servant is required. In other words, the provisions of the section cannot be evaded by the device of charging a person with ail offence to which that section does not apply and then convicting him of an offence to which it does, upon the ground that such latter offence is a minor offence of the same character, or by describing the offence as being one punishable under some other section of the Indian penal Code,, though in truth and substance the offence falls in the category of sections mentioned in section 195, Criminal Procedure Code. Merely by changing the garb or label of an offence which is essentially all offence covered by the provisions of section 195 prosecution for such an offence cannot be taken cognizance of by mis describing it or by putting a wrong label on it. Before concluding, reference nay also be made to the decision of the Federal Court in Hori Ram Singh vs The Crown(1). The appellant in that case was charged (1) 847 with offences under sections 409 and 477 A, Indian Penal Code. The offence under section 477 A could not be taken cognizance of without the previous consent of the Governor under section 270(1) of the Constitution Act, while the consent of the Governor was not required for the institution of the proceedings under section 409, Indian Penal Code. The charge was that the accused dishonestly misappropriated or converted to his own certain medicines entrusted to him in his official capacity as a sub assistant surgeon in the Punjab Provincial Subordinate Medical Service. He was further charged that being a public servant, be wilfully and with intent to defraud omitted to record certain entries in a stock book of medicines belonging to the hospital where he was employed and in his possession. The proceedings under section 477 A were quashed by the Federal Court for want of jurisdiction, the consent of the Governor not having been obtained, but the case was sent back to the sessions judge for hearing oil the merits as regards the charge under section 409, Indian Penal Code, and the order of acquittal passed by the sessions judge under that charge was set aside. Two distinct offences having been committed in the same transaction, one an offence of misappropriation under section 409 and the other an offence under section 477 A which required the sanction of the Governor, the cir cumstance that cognizance could not be taken of the latter offence without such consent was not considered a bar to the trial of the appellant with respect to the offence under section 409. Leave to appeal under article 134 (1) (c) of the Constitution was limited to the question of law referred to the Full Bench in this case, and it was distinctly said in the order disposing of the leave petition that leave would not have been granted had the scope of the appeal been limited to the merits of the case. It was observed that having regard to the findings recorded by the final court of fact, as also the evidence in the case the elements of both the offences had been fully established. The learned counsel for the appellants attempted to argue that on the facts found no 848 offence under section 297 could be said to have been made out. This point, in our opinion, is not open at this stage, it having been hold that all the ingredients of the offence had been established on the record. Even otherwise there is no substance in the contention because the prosecution evidence is sufficient to hold the offence proved against all the appellants. For the reasons given above we hold that there is no substance in these appeals and they are accordingly dismissed. Appeals dismissed. Agent for the complainant: section C. Bannerjee.

IN-Abs

The accused lodged information at a police station that X had beaten and throttled his mother to death and when the funeral pyre was in flames he entered the cremation ground with the police. The dead body was examined and the complaint was found to be false. On the complaint of X, the accused was charged with offences under section 297, Indian Penal Code (trespass to wound religious feelings) and section 500 Indian Penal Code (defamation). It was contended that, as the complaint disclosed offences under sections 182 and 211, Indian Penal Code, the Court could not take cognizance of the case except on a complaint by the proper authority under section 195, Criminal Procedure Code: Held, (i) that the facts which constituted the offence tinder section 297 were distinct from those which constituted an offence under section 182, as the act of trespass was alleged to have been committed after the making of the false report, so section 195 was no bar to the trial of the charge under section 297. (ii)As regards the charge under section 500, where the allegations made in a false report disclose two distinct offences, one against a public servant and the other against a private individual, the latter is not debarred by the provisions of section 195, Criminal Procedure Code, from seeking redress for the offence committed against him. Satish Chandra Chakravarti vs Ram Dayal De ; Hori Ram Singh vs The Crown [1939] F.C.R. 139 referred to. Section 195 cannot however be evaded by the device of charg ing a person with an offence to which that section does not apply and then convicting him of an offence to which it does, on the ground that the latter offence is a minor one of the same character, or by describing the offence as one punishable under some other section of the Indian Penal Code, though in truth and substance the offence falls in the category of sections mentioned in section 195, Criminal Procedure Code.

Appeal No. 687 of 1962. Appeal by special leave from the judgment and decree dated December 1, 1961, of the Punjab High Court at Chandigarh, in Execution Second Appeal No. 586 of 1960. K. L. Mehta, for the appellant. K. L. Gosain, K. K. Jain and P. C. Khanna, for the respondents Nos. 2 to 6. 1963. February 20. The judgment of the Court was delivered by HIDAYATULLAH J. This appeal with the special leave of this Court arises out of execution of a decree for pre emption passed in favour of the appellant Jang Singh. By the order under appeal the High Court has held that jang Singh had not deposited the full amount as directed by the decree within the time allowed to him and his suit for pre emption must therefore be ordered to be dismissed and also the other proceedings arising therefrom as there was no decree of which he could ask execution. The facts of the case are simple. Jang Singh filed a suit for pre emption of the sale of certain lands against Brij Lal the first respondent (the vendor), and Bhola Singh the second respondent (the vendee) in the Court of Sub judge 1st Class, Sirsa. On October 25, 1957, a compromise decree was passed in favour of jang Singh and he was directed to 147 deposit Rs. 5951 less Rs. 1000 already deposited by him by May 1, 1958. The decree also ordered that on his failing to make the deposit punctually his suit would stand dismissed with costs. On January 6, 1958, jang Singh made an application to the Sub judge, Sirsa, for making the deposit of the balance of the amount of the decree. The Clerk of the Court, which was also the executing Court, prepared a challan in duplicate and handed it over with the application to jang Singh so that the amount might be deposited in the Bank. In the challan (and in the order passed on the application, so it is alleged) Rs. 4950 were mentioned instead of Rs. 4951. jang Singh took the challan and the application and made the deposit of the wrong balance the same day and received one copy of the challan as an acknowledgement from the Bank. In May, 1958, he applied for and received an order for possession of the land. It was reported by the Naib Nazir that the entire amount was deposited in Court. Bhola Singh then applied on May 25, 1958, to the Court for payment to him of the amount lying in deposit and it was reported by the Naib Nazir on that application that Jang Singh had not deposited the correct amount and the deposit was short by one rupee. Bhola Singh applied to the Court for dismissal of jang Singh 's suit, and for recall of all the orders made in jang Singh 's favour. The Sub Judge, Sirsa, accepted Bhola Singh 'sapplication observing that in pre emption cases a Court had no power to extend the time fixed by the decree for payment of the price and the preemptor by his failure to deposit the correct amount had incurred the dismissal of the suit under the decree. He ordered also the reversal of the earlier orders passed by him in favour of Jang Singh and directed that possession of the fields be restored to the opposite party. jang Singh appealed against that order. The 148 District judge recorded the evidence of the Execution Clerk, the Revenue Accountant, Treasury ice and jang Singh. He also examined Bhola Singh. the learned District judge held that the record of the case showed that on the day the case was compromised and the decree was passed Jang Singh was not present and did not know the exact decretal amount. The learned District judge assumed that it was the duty of jang Singh to be punctual and to find out the exact amount before he made the deposit. He, however, held that as jang Singh had approached the Court with an application intending to make the deposit to be ordered by the Court, and the Court and its clerk made a mistake by ordering him to deposit an amount which was less by one rupee, jang Singh was excused in as much as the responsibility was shared by the Court. The learned District Judge, therefore, held that this was a case in which jang Singh deserved to be relieved and he came to the conclusion that jang Singh was prevented from depositing the full amount by the act of the Court. He concluded "thus the deposit made was a sufficient compliance with the terms of the decree". The order of the Sub Judge, Sirsa dismissing the suit was set aside. Bhola Singh appealed to the High Court. This appeal was heard by a learned single.judge who was of the opinion that the decree which was passed was not complied with and that under the law the time fixed under the decree for the payment of the decretal amount in pre emption cases could not be extended by the Court. He also held that the finding that the short deposit was due to an act of the Court was unsupported by evidence. He accordingly set aside the decision of the learned District judge and restored that of the Sub judge, Sirsa. The facts of the case almost speak for themselves. A search was made for the application on 149 which the order of the Court directing a deposit of Rs. 4950 was said to be passed. That application remained untraced though the District Judge adjourned the case more than once. It is, however, quite clear that the challan was prepared under the Court 's direction and the duplicate challan prepared by the Court as well as the one presented to the Bank have been produced in this case and they show the lesser amount. This challan is admittedly prepared by the Execution Clerk and it is also an admitted fact that Jang Singh is an illiterate person. The Execution Clerk has deposed to the procedure which is usually followed and he has pointed out that first there is a report by the Ahmed about the amount in deposit and then an order is made by the Court on the application before the challan is prepared. It is, therefore, quite clear that if there was an error the Court and its officers largely contributed to it. It is no doubt true that a litigant must be vigilant and take care but where a litigant goes to Court and asks for the assistance of the Court so that his obligation , under a decree might be fulfilled by him strictly, it is incumbent on the Court, if it does not leave the litigant to his own devices, to ensure that the correct information is furnished. If the Court in supplying the information makes a mistake the responsibility of the litigant, though it does not altogether cease, is at least shared by the Court. If the litigant acts on the faith of that information the Courts cannot hold him responsible for a mistake which it itself caused. There is no higher principle for the guidance of the Court than the one that no act of Courts should harm a litigant and it is the bounden duty of Courts to see that if a person is harmed by a mistake of the Court he should be restored to the position he would have occupied but for that mistake. This is aptly summed up in the maxim: "Actus curiae neminem gravabit". In the present case the Court could have ordered 150 Jang Singh to make the deposit after obtaining a certified copy of the decree thus leaving it to him to find out the correct amount and make the correct deposit. The Court did not do this. The Court,, on the other hand, made an order and through its clerk prepared a challan showing the amount which was required to be deposited. jang Singh carried out the direction in the order and also implicit in the challan, to the letter. There was thus an error committed by the Court which the Court must undo and which cannot be undone by shifting the blame on jang Singh. To dismiss his suit because Jang Singh was also partly negligent does not exonerate the Court from its responsibility for the mistake. Jang Singh was expected to rely upon the Court and its officers and to act according to their directions. That he did so promptly and fully is quite clear. There remains, thus, the wrong belief induced in his mind by the action of the Court that all he had to pay was stated truly in the challan and for this error the Court must take full responsibility and it is this error which the Court must set right before the suit of jang Singh can be ordered to be dismissed. The learned single judge of the High Court considered the case as if it was one of extension of time. He reversed the finding given by the District Judge that the application made by Jang Singh did not mention any amount and the ice reported that only Rs '. 4950 were due. The learned single judge exceeded his jurisdiction there. It is quite clear that once the finding of the District judge is accepted and it proceeds on evidence given by jang Singh and the Execution Clerk the only conclusion that can be reached is that jang Singh relied upon what the Court ordered and the error, if any, was substantially the making of the Court. In these circumstances, following the well accepted principle that the act of Court should harm no one, the District Judge was right in reversing the decision of the Sub. Judge, Sirsa. The District judge was, however, in error in 151 holding that the decree was "sufficiently complied with". That decree could only be fully complied with by making the deposit of Re. 1 which the District judge ought to have ordered. In our opinion the decision of the learned single judge of the High Court must be set aside. The mistake committed by the Court must be set right. The case must go back to that stage when the mistake was committed by the Court and the appellant should be ordered to deposit the additional rupee for payment to Bhola Singh. If he fails to make the deposit within the time specified by us his suit may be dismissed but not before. We may point out however that we are not deciding the question whether a Court after passing a decree for re emption can extend the time originally fixed for deposit of the decretal amount. That question does not arise here. In view of the mistake of the Court which needs to be righted the parties are relegated to the position they occupied on January 6, 1958, when the error was committed by the Court which error is being rectified by us nunc pro tune. The appeal is, therefore, allowed. The appellant is ordered to deposit Re.1 within one month from the date of the receipt of the record in the Court of the Sub judge, Sirsa. In view of the special circumstances of this case there shall be no order about costs throughout. Appeal allowed.

IN-Abs

The appellant filed a suit for pre emption for the sale of certain lands against the first respondent. A compromise decree was passed in favour of the appellant and lie was directed to deposit Rs. 5951/ less Rs. 1000/ already deposited. The suit was to stand dismissed with costs if the deposit was not. made punctually. The appellant made an application to the Subordinate judge for making the deposit of the balance of ' the amount. The clerk of the Court prepared a challan in duplicate and handed it over to the appellant. In the challan Rs. 4950/ were mentioned instead of Rs. 4951.The money was deposited by the appellant. Later on, it was pointed out that the deposit was short by Re. 1. The Subordinate judge accepted the objection and set aside the decree for pre emption passed in favour of the appellant. The order of the Subordinate judge was set aside by the District judge. It was held that the Court and its clerk made a mistake by ordering the appellant to deposit an amount which was less by Re. 1,/ and hence the appellant was excused in as much as the responsibility was shared by the Court. The decision of the District judge was set aside by the High Court and the appellant came to this Court by special leave. Held, that the decision of the District judge was correct and the appellant was ordered to deposit Re. 1/ in the court of the Subordinate Judge. The appellant was an illiterate person and the Court and its officers had largely contributed to the error committed by him. It is true that the litigant must be vigilant and take care, but where a litigant goes to the court and asks for its assistance, so that this obligation under a decree might be fulfilled by him strictly, it is incumbent on the Court, if it does not leave the litigant to his. own devices to ensure that the correct information is furnished ', If the Court in supplying the information makes a mistake, the responsibility of the litigant, though it does not altogether cease, 146 Is at least shared by the Court. If the litigant acts on the faith of that information, the court cannot hold him responsible for a mistake which it itself causes. No act of Court should harm a litigant and it is the bounden duty of Courts to see that if a person is harmed by a mistake of Court, he should be restored to the position lie would have occupied but for that mistake.

Appeals Nos. 652, 653 and 757 of 1962. Appeals from the judgment and order dated january 31, 1962, of the Rajasthan High Court in D. B. Civil Writ Petition No. 90 of 1959. AND VICE VERSA (b) Civil Appeals Nos. 654, 655 and 758 of 1962. Appeals from the judgment and order dated january 31, 1962, of the Rajasthan High Court in D.B. Civil Writ Petition No. 3 10 of 1959. AND VICE VERSA (c) Civil Appeal No. 656 of 1962. 565 Appeal from the judgment and order dated January 31, 1962, of the Rajasthan High Court in D. B. Civil Writ Petition No. 421 of 1960. (d) Writ Petition No. 74 of 1962. Petition under Article 32 of the Constitution of India for the enforcement of fundamental rights. M. C. Setalvad, Attorney General for India G. section Pathak, B. B. Desai, V. A. Seyid Muhammad and B. C. Misra, for the appellant (in C. A. No. 652 of 1962) and respondent No. 1 (in C. As. Nos. 653 and 757 of 1962). C. K. Daphtary, Solicitor General of India, G. C. Kasliwal Advocate General for the State of Rajasthan, M. M. Tewari, section K. Kapur, B. R. L. lyengar, Kan Singh, V. N. Sethi, B. R. C. K. Achar and P. D. Menon, for respondents Nos. 1 and 2 (in C. A. Nos. 652 and 656/62) respondent No. 1 (in C. A. No. 654/62), respondents Nos. 2 and 3 (in C. A. No. 757/62), respondent No. 11 (in C. A.No. 758/62) and appellants (in C. A. Nos. 653, and 655/62). Sarjoo Prasad, section B. L. Saxena and K. K. Jai,&, for respondents Nos. 3 to 5 (in C. A. No. 652/62) respondents Nos. 2 4 (in 'C. A. No. 653 /62), respondents Nos. 2, 3, 5, 6 and 7 (in C. A. No. 654/62), the Board and its members (in C. A. No. 655/62), respondents Nos. 3 12 (in C. A. No. 656/62) and the appellants (in C. A. Nos. 757 and 758 of 1962.) A.V. Viswanatha Sastri Balkrishna Acharya and M. V. Goswami for the appellants (in C. A. No. 654162), respondents Nos. 1 10 (in C. A No. 655 /62 and respondents Nos. 1 10 (in C. A. No. 758/62). P.K. Chakravarty, for the appellant (in C. A. No. 656/62). 566 G.S. Pathak, B. Datta and B. P. Maheshwari, for the petitioner (in W. P. No. 74/62). C.K. Daphtary, Solicitor General of India, G. section Kasliwal, Advocate General for the State of Rajasthan, M. M. Tewari, section K. Kapur, B. R. L. Iyengar, Kan Singh, V. N. Sethi and P. D. Menon, for respondents Nos. 1 and 2 (in W.P. No. 74/62). Sarjoo Prasad, section B. L. Sexena and K. K. Jain, for respondents Nos. 3 12 (in W. P. No. ,74/62). January 21. The judgment of the Court was delivered by GAJENDRAGADKAR, J. This group of seven cross appeals arises from three writ petitions field in the High Court of judicature for Rajasthan, in which the validity of the Nathdwara Temple Act, 1959 (No. XIII of 1959) (hereinafter called the Act) has been challenged. The principal writ petition was Writ Petition No. 90 of 1959 ; it was filed by the present Tilkayat Govindlalji (hereinafter called the Tilkayat) on February 28, 1959. That Petition challenged the validity of the Nathdwara Ordinance, 1959 (No. 11 of 1959) which had been issued on February 6, 1959. Subsequently this Ordinance was repealed by the Act which, after receiving the assent of the President, came into force on March 28, 1959. Thereafter, the Tilkayat was allowed to amend his petition and after its amendment, the petition challenged the vires of the Act the provisions of which are identical with the provisions of its predecessor Ordinance. Along with this petition Writ Petition No. 310 of 1959 was filed on August 17, 1959, by ten petitioners who purported to act on behalf of the followers of the Pushtimargiya Vaishnava Sampradaya. This petition attacked the validity of the Act on behalf of the Denomination of the followers of Vallabha. On November 3, 1960, 567 the third Writ Petition (No. 421 of 1960) was filed on behalf of Goswami Shri Ghanshyamlalji who as a direct descendant of Vallabha, set up an interest in himself in regard to the Nathdwara Temple, and as a person having interest in the said Temple, lie challenged the validity of the Act. These three petitions were heard together by the High Court and have been dealt with by a common judgment. In substance, the. High Court has upheld the validity of the Act, but it has struck down as ultra vires a part of the definition of temple ' in section 2 (viii) , a part of section 16 which refers to the affairs of the temple; section 28, sub sections (2) and (3); section 30 (2)(a); sections 36 and 37. The petitioners as well as the State of Rajasthan felt aggrieved by this decision and that has given rise to the present cross appeals. The Tilkayat has filed Appeal No. 652 of 1962, whereas the State has filed appeals Nos. 653 and 75 7 of 1960. These appeals arise from Writ Petition No. 90 of 1959. The Denomination has filed Appeal No 654 of 1962, whereas the State has filed Appeals Nos. 655 and 758 of 1962. These appeals arise from Writ Petition No. 310 of 1959. Ghanshyamlalji whose Writ Petition No. 421 of 1960 has been dismissed by the High Court on the ground that it raises disputed questions of fact which cannot be tried under article 226 of the Constitution, has preferred Appeal No. 656 of 1962). Since Ghanshyamlalji 's petition has been dismissed in limine on the ground just indicated, it was unnecessary for the State to prefer any cross appeal. Besides these seven appeals, in the present group has been included Writ Petition No. 74 of 1962 filed by the Tilkayat in this Court under article 32. By the said writ petition the Tilkayat has challenged the vires of the Act on some additional grounds. That is how the principal point which arises for our decision in this group is in regard to the Constitutional validity of the Act. At this stage, it is relevant to indicate broadly the contentions raised by the parties before the High 568 Court and the conclusions of the High Court on the points in controversy. The Tilkayat contended that the idol of Shri Shrinathji in the Nathdwara Temple and all the property pertaining to it were his private properties and as such, the State Legislature was not competent to pass the Act. In the alternative, it was urged that even if the Nathdwara Temple is held to be a public temple and the Tilkayat the Mahant or Shebait in charge of it, as such Mahant or Shebait he had a beneficial interest in the office of the high priest as well as the properties of the temple and it is on that footing that the validity of the Act was challenged under article 19 (1) (f) of the Constitution. Incidentally the argument for the Tilkayat was that the idols of Shri Navnit Priyaji and Shri Madan Mohanlalji were his private idols and the property pertaining to them was in any case not the property in which the public could be said to be interested. The Denomination substantially supported the Trilkayat 's case. In addition, it urged that if the temple was held to be a public temple, then the Act would be invalid because it contravened the fundamental rights guaranteed to the denomination under article 25 (1) and article 26 (b) and (c) of the Constitution. Ghanshyamlalji pleaded title in himself and challenged the validity of the Act on the ground that it contravened his rights under article 19 (1) (f). On the other hand, the State of Rajasthan urged that the Nathdwara Temple was a public temple and the Tilkayat was no more and no better than its manager. As such, he had no substantial beneficial interest in the property of the temple. The contention that the Tilkayat 's fundamental rights under article 19 (1) (f) have been contravened by the Act was denied; and the plea of the Denomination that the fundamental rights guaranteed to it under articles 25 (1) and 26 (b) and (c) had been infringed was also disputed. It was urged that the law was prefectly valid and 569 did no more than regulate the administration of the property of the temple as contemplated by Art.26 (c) of the Constitution. The Tilkayat 's claim that the two idols of Navnit Priyaji and Madan Mohanlalji were his private idols was also challenged. Against Ghanshyamlalji 's petition, it was urged that it raised several disputed questions of fact which could not be appropriately tried in proceedings under article 226. The High Court has upheld the plea raised by the State against the competence of Ghanshyamlalji 's petition. We ought to add that the State had contended that the Tilkayat 's case about the character of the temple was also a mixed question of fact and law and so, it could not be properly tried in writ proceedings. The High Court, however ', held that it would be 'inexpedient to adopt a technical attitude in this matter and it allowed the merits of the dispute to be tried before it on the assurance given by the learned counsel appearing for the Tilkayat that the character of the property should be dealt with on the documentary evidence adduced by him. Considering the documentary evidence, the High Court came to the conclusion that the temple is a public temple. It examined the several Firmans and Sanads on which reliance was placed by the Tilkayat and it thought that the said grants supported the plea of the State that the temple was not the private temple of the Tilkayat. It has, however, found that the Tilkayat is a spiritual head of the Denomination as well as the spiritual head of the temple of Shrinathji. He alone is entitled to perform 'Seva ' and the other religious functions of the temple. In its opinion, the two minor idols of Navnit Priyaji and Madan Mohanlalji were the private idols of the Tilkayat and so, that part of the definition which included them within the temple of Shrinathji was struck down as invalid. In this connection, the High Court has very strongly relied on the Firman issued by the Maharana of Udaipur on December 31, 1934, and it 570 has observed that this Firman clearly established the fact that the temple was a public temple, that the Tilkayat was no more than a Custodian, Manager and Trustee of the property belonging to the temple and that the State had the absolute right to supervise that the property dedicated to the shrine was used for legitimate purposes of the shrine. Having found that the Tilkayat was the head of the denomination and the head priest of the temple, the High Court conceded in his favour the right of residence, the right to distribute Prasad and the right to conduct or supervise the worship and the. performance of the Seva in the temple. In the light of these rights the High Court held that the Tilkayat had a beneficial interest in the properties of the temple and as such, was entitled to contend that the said rights were protected under article 19 (1) (f) and could not be contravened by the Legislature. The High Court then examined the relevant provisions of the Act and held that, on the whole, the major operative provisions of the Act did not contravene the fundamental rights of the Tilkayat under article 19 (1) (f); sections 16, section 28, sub sections (2) and (3), section 30 (2) (a), sections 36 & 37, however, did contravene the Tilkayat 's fundamental rights according to the High Court, and so, the said sections and the part of the definition of 'temple ' in section 2 (viii) were struck down by the High Court as ultra vires. The plea that the fundamental rights under Art.25 (1) and article 26 (b) and (c) were contraveneisd didnot appeal to the High Court to be well founded. In the result, the substantial part of the Act hasbeen held to be valid. It appears that before the High Court a plea was raised by the Tilkayat that his rights under articles 14 and 31 (2) had been contravened by the Act. These pleas have been rejected by the High Court and they have been more particularly and specifically urged before us by the Tilkayat in his Writ Petition No. 74 of 1962. That, in brief, is the 571 nature of the findings recorded by the High Court in the three writ petitions filed before it. Before dealing will the merits of the present dispute, it is necessary to set out briefly the historical background of the temple of Shrinathji at Nathdwara and the incidents in relation to the management of its properties which ultimately led to the Act. The temple of Shrinathji at Nathdwara holds a very high place among the Hindu temples in this country and is looked upon with great reverence by the Hindus in general and the Vaishnav followers of Vallabha in particular. As in the case of other ancient revered Hindu temples, so in the case of the Shrinathji temple at Nathdwara, mythology has woven an attractive web about the genesis of its construction at Nathdwara. Part of it may be history and part may be fiction, but the story is handed down from generation to generation of devotees and is believed by all of them to be true. This temple is visited by thousands of Hindu devotees in general and by the followers 'of the Pushtimargiya Vaishnava Sampradaya in particular. The followers of Vallabha who constitute a denomination are popularly known as such. The denomination was founded by Vallabha (1479 1531 A. D.)* He was the son of a Tailanga Brahmin named Lakshmana Bhatt. On one occasion, Lakshmana Bhatt had gone on pilgrimage to Banaras with his wife Elamagara. On the way, she gave birth to a son in 1479 A. D. That son was known as Vallabha. It is ' said that God Gopala Krishna manifested himself to Vallahha on the Govardhana Hill by the name of Devadamana, also known as Shrinathji. Vallabha saw the vision in his dream and he was commanded by God Gopala Krishna to erect a shrine for Him and to propagate amongst his followers the cult of worshiping Him in order to obtain salvation (1). Vallabha then went to the hill and he found the image corresponding to the vision which he had seen in this dream. Soon thereafter, lie got a small *Some scholars think that Vallabha was born in 1473 A:D. vide The Cultural Heritage of India vol. III at p. 347. (1) Bhandarkar on 'Vaishnavism, S 'aivism & Minor Religious systems a 572 temple built at Giriraj and installed the image in the aid temple. It is believed that this happened in 500 A. D. A devotee named Ramdas Chowdhri was entrusted with the task of serving in the temple. Later on, a rich merchant named Pooranmal was asked by Govardhannathji to build a big temple for him. The building of the temple took as many as 10 years and when it was completed, the Image was installed there by Vallabha himself and he engaged Bengali Brahmins as priests in the said temple, (1). In course of time, Vallabha was succeeded by his son Vithalnathji who was both in learning and in saintly character a worthy son of a worthy father. Withalnath bad great organising capacity and his work was actuated by missionary zeal. In the denomination, Vallabha is described as Achilles or Maha Prabhuji and Vithalnath is described as Gosain or Goswamin. It is said that Vithalnath removed the idol of Shrinathji to another temple which had been built by him. It is not known whether any idol was installed in the earlier temple. Vithalnath lived luring the period of Akbar when the political atmosphere in the country in Northern India was actuated by a spirit of tolerance. It appears that Akbar heard about the saintly reputation of Vithalnath and issued a Firman granting land in Mowza of Jatipura to Vithalnathji in order to build buildings, gardens, cowsheds and workshops for the temple of Govardhannathji This Firman was issued in 1593 A.D. Later, Emperor Shahajahan also issued another Firman on October 2, 1633, which shows that some land was being granted by the Emperor for the use and expenses of Thakilrdwara exempt from payment of dues. Goswami Vithalnath had seven sons. The tradition of the denomination believes that besides the idol of Shrinathji Vithalnathji received from his father (1) Bhai Manilal C. Parekh 's 'A Religion of Grace '. 573 seven other idols which were also "Swaroops" (mani festations) of Lord Krishna. Before his death, Vithalnathji entrusted the principal. idol of Shrinathji, to his eldest son Girdharji and the other idols were given over to each one of his other sons. These brothers in turn founded separate shrines at various places which are also held by the members of the denomination in high esteem and reverence. When Aurangzeb came on the throne, the genial atmosphere of tolerance disappeared and the Hindu temples were exposed to risk and danger of Aurangzeb 's intolerant and bigoted activities. Col. Todd in the first volume of his 'Annals of Rajasthan ' at p. 451 says that "when Aurangzeb prescribed Kanaya and rendered his shrines impure throughout Vrij, Rana Raj Singh offered the heads of one hundred thousand Rajpoots for his service, and the God was conducted by the route of Kotah and Rampoora to Mewar. An omen decided the spot of his future residence. As he journeyed to gain the capital of the Sessodias, the chariot wheel sunk deep into the earth and defied extrication; upon which the Sookuni (augur) interpreted the pleasure of the deity that he desired to dwell there. This circumstance occurred at an inconsiderable village called Siarh, in the fife of Dailwara, one of the sixteen nobles of Mewar. Rejoiced at this decided manifestation of favour, the chief hastened to make a perpetual gift of the village and its lands which was speedily confirmed by the patent of the Rana. Nathji (the god) was removed from his car, and in due time a temple was erected for his reception, when the hamlet of Siarh became the town of Nathdwara. This happened about 1671 A. D." This according to the tradition, is the genesis of the construction of the temple at Nathdwara. Since then, the religious reputation of the temple has grown by leaps and bounds and today it can legitimately claim to be one of the few leading religious temples of the Hindus. Several 574 grants were made and thousands of devotees visiting the temple in reverence made offerings to the temple almost everyday throughout the year. No wonder that the temple has now become one of the richest religious institutions in the country. The succession to the Gaddi of the Tilkayat has, from the beginning, been governed by the rule of Primogeniture. This succession received recognition from the rulers of Mewar from time to time: It appears that in 1813 A. D. Tilkayat Govindlalji was adopted by the widow of Tilkayat Damodarji and the ruler of Mewar recognised the said adoption. Later, the relations between the ruler of Mewar and the Tilkayat were strained during the time of Tilkayat Girdharlalji. It seems that the Tilkayat Was not content with the position of a spiritual leader of the denomination but he began to claim special secular rights, and when the Darbar of Udaipur placed the villages belonging to the Natbdwara Temple under at Lachment, a protest was made by the members of the denomination on behalf of the Tilkayat. It was as a result of this strained relationship between the Darbar and the Tilkayat that in 1876 Tilkayat Girdharlal i was deposed and was deported from Nathdwara by the order passed by the Rana of Mewar on May 8, 1876. The reason given for this drastic step was that the Tilkayat disobeyed the orders of the ruling authority and so, could not be allowed to function as such. In place of the deposed Tilkayat, his son Gordhanlalji was appointed as Tilkayat. Girdharlalji then went to Bombay and litigation started between him and his Tilkayat son in respect of extensive properties in Bombay. Girdharlalji claimed the properties as his own whereas his Tilkayat son urged that the fact that Girdharlalji had been deposed by the Rana of Udaipur showed that the properties no longer vested in him. It appears that the Bombay High Court consistently took the view that the order passed by 575 the Rana of Udaipur on May 8, 1876, was an act of a foreign State and did not effect his right to property in Bombay. It was observed that Girdharlalji was regarded as owner of the property, he had not lost his right as such to the said property in consequence of his deposition, and if he was merely a trustee, he had not been removed from his office by any competent Tribunal vide Nanabai vs Shriman Goswami Girdharji (1). Goswami Shri Girdharji Maharaj Shri Govindraiji Maharaj Tilkayat vs Madhowdas Premji and Goswami Shri Govardhanlalji Girdharji Maharaj ( 2 ) and Shriman Goswami Shri 108 Shri Govardhanlalji Girdharlalji vs Goswami Shri Girdharlalji Govindrajji (3). So far as the Nathdwara temple and the properties situated in Mewar were concerned, the Tilkayat Gordhanlalji who had been appointed by the Rana of Udaipur continued to be in possession and management of the same. Unfortunately, in 1933, another occasion arose when the Rana of Udaipur had to take drastic action. After the death of Goverdhanlalji on September 21, 1933, his grand son Damodarlalji became the Tilkayat. His conduct. however, showed that he did not deserve to be a spiritual leader of the denomination and could not be left in charge of the religious affairs of the Shrinathji temple at Nathdwara. That is why on October 10, 1933, he was deposed and his son Govindlalji, the present Tilkayat, was appointed the Tilkayat of the temple. Before adopting this course, the Rana had given ample opportunities to Damodarlalji to improve his conduct, but despite the promises made by him Damodarlalji persisted in the course of behavior which he had adopted and so, the Darbar was left with no other alternative but to depose him That is how the present Tilkayat 's regime began even during the lifetime of his father. (1) (2) , (3) 576 As on the occasion of the deposition of Girdharlalji in 1833, so on the occasion of the deposition of Damodarlalji, litigation followed in respect of Bombay properties. On January 6, 1934, Damodarlalji filed a suit in the Bombay High Court (No. 23 of 1934) against the Tilkayat and other persons representing the denomination, In this suit, he claimed a declaration that he was entitled to and had become the owner of all the properties mentioned in the plaint and that he was the owner of all the rights, presents, offerings, and emoluments arising in and accruing from the ownership of the idols, Shrinathji and Shri Navnit Priyaji as well as his position as the Tilkayat Maharaj in due course of his succession. In the said suit, the idols of Shrinathji and Shri Navnit Priyaji were added as defendants. At that time, the Tilkayat was a minor. Written statements were filed on his behalf and on behalf of the two idols. A counter claim was preferred on behalf of the idols that the properties belonged to them. Subsequently, the suit filed by Damodarlalji was withdrawn; but the counterclaim made by the idols was referred to the sole arbitration and final determination of Sir Chimanlal H. Setalvad, a leading Advocate of the Bombay High Court. On April 10, 1942, the arbitrator made his award and in due course, a decree was passed in terms of the said award on September 8, 1942. This decree provided that all the properties, movable, and immovable, and all offerings and Bhents donated to the idol of Shrinathji or for its worship or benefit belonged to the said idol, whereas properties donated, dedicated or offered to the Tilkayat Maharaj for the time being, or at the Krishna Bhandar Pedhis if donated, dedicated or offered for the worship or benefit of the idol belonged to the said idol. It also provided that the Tilkayat Maharaj for the time being in actual charge at Nathdwara is entitled to hold, use and manage the "Properties of the said idol according to the 577 usage of the Vallabhi Sampradaya. " The said award and the decree which followed in terms of it were naturally confined to the properties in the territories which then comprised British India and, did not include any properties in the territories which then formed part of princely India or Native State as they were then known. Meanwhile, after Damodarlalji was deposed and his son Govindlalji was appointed the Tilkayat, the Rana of Udaipur issued a Firman on December 31, 1934. By this Firman it was laid down that the 'Shrine of Shrinathji had always been and was a religious institution for the followers of the Vaishnavas Sampradayak and all the properties offered at the shrine were the property of the shrine and that the Tilkayat Maharaj was merely a Custodian, Manager and Trustee of the said property for the shrine. It also provided that the Udaipur Darbar had absolute right to supervise that the property dedicated to the shrine is used for legitimate purpose of the shrine. It also made certain other provisions to which we shall have occasion to return later. When he was, appointed the Tilkayat, Govindlalji was a minor and so, the management of the temple and the property remained with the Court of Wards, till April 1, 1948. On that date, the management of the Court of Wards was withdrawn and the charge of the property was handed over to the Tilkayat. It appears that the management of affairs by the Tilkayat was not very happy or successful and the estate faced financial difficulties. In order to meet this difficult situation the Tilkayat appointed a committee of management consisting of 12 members belonging to the denomination some time in 1952. This was followed by another committee of 21 members appointed on June 11, 1953. Whilst this latter committee was in charge of the 578 management, some valuables stored and locked in the room in the premises of the Temple of Shrinathji were removed by the Tilkayat in December, 1957. This news created excitement amongst the members of the public in general and the followers of the denomination in particular, and so, the Rajasthan Government appointed a Commission of Enquiry. In the preamble to the notification by which the Commission of Enquiry was appointed, it was stated that the State of Rajasthan as the successor of the covenanting State of Mewar had a special responsibility to supervise that the endowments and properties dedicated to the shrine are safeguarded and used for the legitimate purposes of the shrine. The Commission of the Enquiry made its report on October 11, 1959. This report passed severe strictures against the conduct of the Tilkayat. At this stage, we ought to add that the dispute between the Tilkayat and the Rajasthan Government as to the ownership of the valuable articles removed from the temple was later referred to the sole arbitration of Mr. Mahajan, the retired Chief justice of this Court. The arbitrator made his award on September 12, 1961, and held that except in regard to the items specified by him in his award, the rest of the property belonged to the Tilkayat; and he found that when the Tilkayat removed the properties, he believed that they were his persona I properties. It was in the background of these events that the State of Rajasthan thought it necessary that a scheme should be drafted for the management of the Temple and this proposal received the approval of the Tilkayat. In order to give effect to this proportion was agreed between the parties that a suit under, section 92, Code of Civil Procedure, should be filed in the Court of the District judge at Udaipur. The paste then thought that the suit would be non contentious and would speedily end in a scheme of maegans ment being drafted with the consent of parties 579 Accordingly, suit No. 1 of 1956 was filed in the District Court at Udaipur, and in accordance with the agreement which he had reached with the authorities, the Tilkayat filed a non contentious written statement. However, before the suit could make any appreciable progress, Ghanshyamlalji and Baba Rajvi, the son of Tilkayat, applied to be made parties to the suit and it became clear that these added parties desired to raise contentions in the suit and that entirely changing the complexion of the litigation. It was then obvious that the litigation would be a long drawn out affair and the object of evolving a satisfactory scheme for the management of the affairs of the temple would not be achieved until the litigation went through a protracted course. It was under these circumstances that the Governor of Rajasthan promulgated an Ordinance called the Nathdwara Ordinance, J959 (No. 11 of 1959) on February 6, 1959. The Tilkayat immediatelyfiled his Writ Petition No. 90 of 1959 challengingthe validity of the said Ordinance. The Ordinance was in due course replaced by Act 13 of 1959 and the Tilkayat was allowed to amend his original writ petition so as to challenge the vires of the Act. Shortly stated, this is the historical background of the present dispute. The first question which calls for our decision is whether the tenets of the Vallabh denomination and its religious practices postulate and require that the worship by the devotees should be performed at the private temple owned and managed by the Tilkayat, and so, the existence of public temples is inconsistent with the said tenets and practices. In support of this argument, the learned Attorney General has placed strong reliance on the observadons made by Dr. Bhandarkar in his work on Vaisnavism, Saivism and Minor Religious Systems, ti 80. In the section dealing with Vallabh and his 580 school, the learned Doctor has incidentally observed that the Gurus of this sect ordinarily called Maharajs are descendants of the seven sons of Vithalesa. Each Guru has a temple of his win, and there are no public places of worship. He has also added that the influence exercised by Vallabh and his successors over their adherents is kept up by the fact that God cannot be worshipped independently in a public place of worship, but in the house and temple of the Guru or the Maharaj which, therefore, has to be regularly visited by the devotees with offerings. These temples are generally described as Havelis and the argument is that the said description also brings out the fact that the temples are private temples owned by the Tilkayat of the day. It is true that the observations made by Dr. Bhandarkar lend support to the contention raised before us by the learned Attorney General on behalf of the Tilkayat, but if ' the discussion contained in Dr. Bhandarkar 's work in the section dealing with Vallabh is considered as a whole, it would be clear that these observations are incidental and cannot be taken to indicate the learned Doctor 's conclusions after a careful examination of all the relevant considerations bearing on the point. Since, however, these observations are in favour of the plea raised by the Tilkayat, it is necessary very briefly to enquire whether there is anything in the tenets or the religious practices of this denomination which justifies the claim made by the learned Attorney General. What then is the nature of the philosophical doctrines of Vallabh? According to Dr. Radha Krishnan (1), Vallabh accepts the authority not only of the Upanishads, the Bhagvad gita and the Brahma Sutras, but also of the Bhagavata Purana. In his works, Anubhasya, Siddhantarahasya and Bhagavata Tikasubodhini, he offers a theistic interpretation of the Vedanta, which differs from those or Sankara and Ramanuja. His view is called Suddhadvaita, or (1) "Indian Philosophy" by Dr. Radha Krishnan, pp. 756 and 758. 581 pure non dualism, and declares that the whole world is real and is subtly Brahman. The individual souls and the inanimate world are in essence one with Brahman. Vallabha looks upon God as the whole and the individual as part. The analogy of sparks of fire is employed by Him to great purpose. The Jiva bound by maya cannot attain salvation except through the grace of God, which is called Pushti. Bhakti is the chief means of salvation, though Jnana is also useful. As regards the fruit of Bhakti, there are diverse opinions, says Dasgupta (1). Vallabha said in his Sevaphala vivrti that as a result of it one may attain a great power of experiencing the nature of God, or may also have the experience of continual contact with God, and also may have a body befitting the service of God. Vallabha, however, is opposed to renunciation after the manner of monastic sanyasa, for this can only bring repentance, as being inefficacious. Thug, it will be seen that though Vallabha in his philosophical theories differs from Sankara and Ramanuja, the ultimate path for salvation which he has emphasised is that of Bhakti and by Bhakti the devotee obtains Pushti (divine grace). That is why the cult of Vallabha is known as Pushtimarg or the path for obtaining divine grace. Dr. Bhandarkar points out that according to Vallabha, Mahapushti, or the highest grace, is that which removes great obstacles and conduces to the attainment of God himself. Thus Pushtibhakti is of four kinds: (1) Pravaha Pushtibhakti, (2) Maryada Pushtibhakti, (3) Pushti Pushtibhakti and (4) Sudha Pushtibhakti. The first is the path of those who while engaged in a worldly life with its me and mine, do acts calculated to bring about the attainment of God ' The second is of those who, withdrawing their minds from worldly enjoyments, devote themselves to God by hearing His praise and listening to discourses about Him. The third is of those who already enjoyed God 's grace and are made competent (1) A history on "Indian Philosophy" by Das Gupta, pp. 355 356. 582 to aquire knowledge useful for adoration and thus come to know all about the ways of God. The fourth is of those who through mere love devote themselves to the singing and praising of God as if it were a haunting passion. Thus, it would be seen that the tenets of the cult emphasised the importance of Bhakti, and the religious practices accordingly centered round this doctrine of Bhakti. The practical modes of worship adopted by the members of this cult bring out the same effect. Lord Krishna as a child is the main object of worship. His worship consists of several acts of performance every day in the prescribed order of ceremonies. These begin with the ringing of the bell in the morning and putting the Lord to bed at night. After the Lord is awakened by the ringing. of the bell, there is a blowing of the conch shell, awakening of the Lord and offering morning refreshments; waving of lamps; bathing; dressing; food; leading the cows out for grazing; the mid day meal; waving of lamps again; the evening service; the evening meal and going to bed. These rituals performed with meticulous care from day to day constitute the prescribed items of Siva which the devotees attend every day in the Vallabh temple. In order to be able to offer Bhakti in a p way, the members of this denomination are initiated into this cult by the performance of two rites; one is Sharana Mantropadesh and the other is Atma Nivedan. The first gives the devotee the status of a Vaishnava and the second confers upon him the status of an Adhikari entitled to pursue the path of service of devotion. At the performance of the first rite, the mantra which is repeated in the ears of the devotee is "Shree Krishna Sharanam Mamah" and on the occasion a "tulsi Kanthi ' is put around the neck of the devotee. At the second initiation, a religious formula is repeated, the effect of which is that the devotee treats himself and all his properties as belonging to Lord Krishna. We have already, 583 referred to the original image which Vallabha installed in the temple built in his time and the seven idols which Vithalnathji gave to his sons. These idols are technically described as "Nidhi Swaroops '. Besides these idols, there are several other idols which are worshipped by Vaishnava devotees after they are sanctified by the Guru. It is thus clear that believing in the paramount importance and efficacy of Bhakti, the followers of Vallabha attend the worship and services of the Nidhi Swaroops or idols from day to day in the belief that such devotional conduct would ultimately lead to their salvation. It is significant that this, denomination does not recognise the existence of Sadhus or Swamis other than the descendants of Vallabha and it emphasises that it is unnecessary to adopt ritualistic practices or to repeat Sanskrit Mantras or in cantations in worshipping the idols. Besides, another significant feature of this cult is that it does not believe in celibacy and does not regard that giving up ' worldly pleasures and the ordinary mode of a house holder 's life are essential for spiritual progress. In fact Vallabha himself lived a house holder 's life and so have all his descendants. This cult does not, therefore, glorify poverty and it teaches its followers that a normal house holder 's life is quite compatible with the practice of Bhakti, provided of course, the devotee goes through the two ceremonies of initiation and lives up to the principles enunciated by Vallabha. The question which we have to decide is whether there 'is anything in the philosophical doctrines or tenets or religious practices which are the special features of the Vallabha school, which prohibits the existence of public temples or worship in them. The main object underlying the requirement that devotees should assemble in the Haveli of the Guru and worship the idol obviously was to encourage collective and congregational prayers. Presumably 584 it was realised 'by Vallabha and his descendants that worship in Hindu public temples is apt to clothe the images worshipped with a formal and rigid character and the element of personality is thereby Obliterated ; and this school believes that in order that Bhakti should be genuine and passionate, in the mind of the devotee there must be present the necessary element of the personality of God. It is true that Vaishnava temples of the Vallabha sect are Generally described as Havelis and though they are grand and majestic inside, the outside appearance s always attempted to resemble that of a privates. This feature can, however, be easily explained if we recall the fact that during the time when vithalnathji with his great missionary zeal spread he doctrine of Vallabha, Hindu temples were constantly faced with the danger of attack from Aurangzeb. In fact, the traditional story about the foundation of the Srinathji temple at Nathdwara itself eloquently brings out the fact that owing to the religious persecution practiced during Aurangzeb 's time, Srinathji himself bad to give up his abode near Mathura and to start on a journey in search of a place for residence in more hospitable and congenial surroundings. Faced with this immediate problem Vithalnathji may have started building the temples in the form of Havelis so that from outside nobody should know that there is a temple within. It may also be true historically that when the first temple was built in the life time of Vallabha it may have been a modest house where the original image was installed and during the early years just a few devotees may have been visiting the said temple. Appropriately enough, it was then called a Haveli. Later, even when the number of devotees increased and the temples built by the Vallabha sect began to collect thousands of visitors, traditional adherence to time honoured words described all subsequent temples also as Havelis however big and majestic 585 they were. Therefore, we are satisfied that neither the tenets nor the religious practices of the Vallabha school necessarily postulate that the followers of the school must worship in a private temple. Some temples of this cult may have been private in the past and some of them may be private even today. Whether or 'not a particular temple is a public temple must necessarily be considered in the light of the relevant facts relating to it. There can be no general rule that a public temple is prohibited in Vallabha School. Therefore, the first argument urged by the learned Attorney General in challenging the finding of the High Court that the Srinathji temple at Nathdwara is a public temple, cannot be accepted. The question as to whether a Hindu temple is private or public has often been considered by judicial decisions. A temple belonging to a family which is a private temple is not 'Unknown to Hindu law. In the case of a private temple it is also not unlikely that the religious reputation of the founder may be of such a high order that the, private temple founded by him may attract devotees in large numbers and the mere fact that A large number of devotees are allowed to worship in the temple would not necessarily make the private temple a public temple. On the other hand, a public temple can be built by subscriptions raised by the public and a deity installed to enable all the members of the public to offer worship. In such a case, the temple would clearly be a public temple. Where evidence in regard to the foundation of the temple is not clearly available, sometimes, judicial decisions rely on certain other facts which are treated as relevant. Is the temple built in such an imposing manner that it may prima facie appear to. be a public temple ? The appearance of the temple of course cannot be a decisive factor; at best it may be a relevant factor. Are the members of the public entitled to an entry 586 in the temple ? Are they entitled to take part in offering service and taking Darshan in the temple ? Are the members of the public entitled to take part in the festivals and ceremonies arranged in the temple ? Are their offerings accepted as a matter of right ? The participation of the members of the public in the Darshan in the temple and in the daily Acts of worship or in the celebrations of festival occasions may be a very important factor to consider in determining the character of the temple. In the present proceedings, no such evidence has been led and it is. therefore, not shown that admission to the temple is controlled or regulated or that there are other factors present which indicate clearly that the temple is a private temple. Therefore, the case for the Tilkayat cannot rest on any such considerations which, if proved., may have helped to establish either that the temple is private or is public. There are, however, certain ancient documents which show that the temple cannot be a private temple. We have already referred to the Firmans issued by Akbar and Shahjahan. These Firmans are strictly not material for the purpose of the present dispute because they have no relation to the temple at Nathdwara. However, as a matter of history, it may be worthwhile to recall that the Firman issued by Akbar on May 31, 1593 A. D. shows that Vithalraj had represented to the Darbar that he had purchased on paying its price land from the owners thereof in the Mowzah of Jatipura, situated in the Paraganah, adjoining Gordhan and had caused to be built thereon buildings, gardens, cowsheds and Karkhanas (workshops) for the temple of Gordhan Nath and that he was residing there. Having received this representation, Akbar issued an order that the above mentioned Mowzah had been given over tax free into the possession of the above mentioned Goswami from descendant to descendant. It would thus be seen that though the grant by which the land 587 in question was exempted from payment of taxes is in the name of the Goswami, there 'can be no doubt that it was so named on the representation made by the Goswami that he had purchased the land and built structures on it for the temple of Gordhan Nath. Thus, in substance, the grant was made to the Goswami who was managing the temple of Gordhan Nath. The grant of Shah Jahan made in 1633 A. D. is to 'the same effect. ' These grants are in reference to the temple built by Vithalrai in Jatipura. We have already seen that the idol of Shrinathji was ' removed from the said temple and brought to Nathdwara in about 1671. The earliest document in regard to Siarh is of the year 1672 A.D. The document has been issued by the Rana of Udaipur and it says that "Be it know that Shrinathji residing at Sihod Let uncultivated land as may desire be cultivated till such time. When Shrinathji goes back to Brij the land of those to whom it belongs will be returned to them. If any one obstructs in any way he will be rebuked. " The next document is of 1680 A. D. It has been issued by Rana of Udaipur and is in similar terms. It says that when Shririathji goes back to Brij from Singhad Brahmins will get the land which is of the Brahmins. 'I hey will get the land as is entered in previous records. So long as Shrinathji stays here, no Brahmin shall cultivate towards the West of Shah Jagivan 's wall up to and across the foot of the hillock. If any one cultivates a fine of Rs. 225/shall be realised collectively. Fortunately, for Nathdwara, the temple which was then built for Shrinathji for a temporary abode has turned out to be Shrinathji 's permanent place of residence. These two documents clearly show that after Shrinathji was installed in what is now known as Nathdwara, the land occupied for the purpose of the temple was given over for that purpose and the actual occupants and cultivators were told that they would get the land back when Shrinathji goes back to Brij. 588 We have already cited the extract from Col. Todd 's 'Annals of Rajasthan ' in which he has Graphically described the traditional belief in regard to the choice of Siarh for the abode of Shrinathji. That extract shows that as soon the chariot wheel of Shrinathji stopped and would not move, the chief hastened to make a perpetual gift of the village and its lands which was speedily confirmed by the patent of the Rana. Nathji was removed from his car and in due course of time a temple was erected for his reception. That is how the hamlet of Siarh became the town of Nathdwara. This assurance given by the chief was confirmed by the two grants to which we have just referred. Thus, there can be no doubt that the original grants were for the purpose of the temple. A deed of dedication executed by Maharana Shri Bhim Singhji in favour of Gusainji in Sambat 1865 also shows that the lands therein described had been dedicated to Shriji and Shri Gusainji and that all the income relating to those lands would be dedicated to the Bhandar of Shriji. A letter written by the Maharana on January 17, 1825, speaks to the same effect. "Our ancestors," says the letter, "kept the Thakurji Maharaj and the Gosainji Maharaj at the village of Shinhad which is near Udaipur and presented that village to the Thakurji. After this, our ancestors became followers of that religion and agreed to obey orders. They all granted lands and villages for the expenses of the God. Besides these certain lands were granted for the grazing of the cows belonging to the Thakurji. " This letter contains certain orders to the officers of the State to respect the rights of the temple and Gosainji. Consistently with this record, we find a declaration made by Tilkayat Gordhanji in 1932 in which he 589 stated that "the money of Shri Thakurji as is the practice now, that it is not spent in our private expenditure the same will be followed", though along with this declaration he added that the proprietary right was 'his own from the time of the ancestors. In conformity with the same, the entry will continue as usual in the accounts of credit and debit as is the continuing mutation. Even though the Tilkayat set up the claim that the temple was private, it is consistently adhered to that the income derived from the properties of the temple is not intended to be and has never been used for the personal requirements of the Tilkayat. It is true that there are other grants which have been produced on the record by the Tilkayat for the purpose of showing that some gifts oil immovable property were made in favour of the Tilkayat. Such grants may either show that the gifts were made to the Tilkayat because he was in the management of the temple, or they may have ' been made to the Tilkayat in his personal character. Grants falling in the former category would constitute the property of the temple, whilst those falling in the latter category would constitute the private property of the Talikayat. These grants, however, would not affect the nature of the initial grants made to the temple soon after Shrinatliji came to Nathdwara. Therefore in our opinion, having regard to the documentary evidence adduced in the present proceedings, it would be unreasonable to contend that the temple was built by the Tilkayat of the day as his private temple and that it still continues to have the character of a private temple. From outside it no doubt has the appearance of a Haveli, but it is common ground that the majestic structure inside is consistent with the dignity of the idol 'and with the character of the temple as a public temple. We have referred to these aspects of the matter because they were elaborately argued before us by 590 the learned Attorney General. But as we will presently point out, the Firman issued by the Udaipur Darbar in 1934 really concludes the controversy between the parties on these points and it shows that the Shrinathji Temple at Nathdwara is undoubtedly a public temple. It is therefore, now necessary to consider this Firman. This Firman consists of four clauses. The first clause declares that according to the law of Udaipur, the shrine. of Shrinathji has always been and is a religious institution for the followers of the Vaishnava Sampradaya and that all the property immovable and movable dedicated, offered or presented to or otherwise coming to the Deity Shrinathji has always been and is the property of the shrine ;and that the Tilkayat Maharaj for the time being is merely a Custodian, Manager and Trustee of the said property for the shrine of Shrinathji and that the Udaipur Darbar has absolute right to supervise that the property dedicated to the shrine is used for legitimate purpose of the shrine. The second clause deals with the question of succession and it provides that the law of Udaipur has always been and is that the succession to the Gaddi of Tilkayat Maharaj is regulated by the law of Primogeniture, and it adds that the Udaipur Darbar has the absolute right to depose any Tilkayat Maharaj for the time being if in its absolute discretion such Maharaj is considered unfit and also for the same reason and in the same way to disqualify any person who would otherwise have succeeded to the Gaddi according to the law of primogeniture. The third clause provides that in case the Tilkayat Maharaj is a minor, the Darbar always had and has absolute ' authority to take any measures for the management of ' the shrine and its properties during such minority. The last clause adds that in accordance with the said law of Udaipur, the Rana had declared Shri Domodarlalji unfit to occupy the Gaddi and had approved of the succession of Goswami Govindlalji to the Gaddi of Tilkayat, 591 Maharaj, and it ends with the statement that the order issued in that behalf on October 10, 1933, was issued under his authority and is lawful and in accordance with the law of Udaipur. In appreciating the 'effect of this Firman, it is first necessary to decide whether the Firman is a law or not. It is matter of common knowledge that at the relevant time the Maharana of Udaipur was an absolute monarch in whom vested all the legislative, judicial and executive powers of the State. In the case of an absolute Ruler like the Maharana of Udaipur, it is difficult to make any distinction between an executive order issued by him or a legislative command issued by 'him. Any order issued by such a Ruler has the force of law and did govern the rights of the parties affected thereby. This position is covered by decisions of this Court and it has not been disputed before us, Vide Madhaorao Phalke vs The State of Madhya Bharat (1). Ammer un Nisa Begam vs Mahboob Begum (2) and Director of Endowments, Government of Hyderabad vs Akram Ali It is true that in dealing with the effect of this Firman, the learned Attorney General sought to raise before us a novel point that under Hindu law even absolute monarch was not competent to make a law affecting religious endowments and their administration. He suggested that he was in a position to rely upon. the opinions of scholars which tended to show that a Hindu monarch was competent only to administer the law as prescribed by Smritis and the oath which he was expected to take at the time of his coronation enjoined him to obey the Smritis and to see that their injunctions were obeyed by his subject. We do not allow the learned Attorney General to develop this point because we hold that this novel point cannot be accepted in view of the well recognised principles of jurisprudence. An (1) (2) A.I.R. 1955 S.C. 352. (3) A.I.R. 1956 S.C. 60. 592 absolute monarch was the fountain head of all legislative, executive and judicial powers and it is of the very essence of sovereignty which vested in him that he could supervise and control the administration of the public charity. In our opinion, there is no doubt whatever that this universal principle in regard to the scope of the powers inherently vesting in sovereignty applies as much to Hindu monarchs as to any other absolute monarch. Therefore, it must be held that the Firman issued by the Maharana of Udaipur in 1934 is a law by which the affairs of the Nathdwara temple and succession to the office of the Tilkayat were governed after its issue. Then the learned ' Attorney General contended that in judging about the effect of this Firman we should not ignore the background of events which necessitated its issue. Damodarlalji had been deposed by Maharana and it was more in anger that the Firman was issued to meet the challenge of the said incident. Damodarlalji had filed certainsuits in the Bombay High Court and it appeared as if a doubt would arise in the minds of the followers and devotees of the temple as to whether the deposition of Damodarlalji was valid or not. It was with a view to meet this specific particular situation that the Firman was issued and so, it need not be treated as a law binding for all times. In our opinion, this argument is clearly misconceived. Whatever may be the genesis of the Firman and whatever may be the nature of the mischief which it was intended to redress, the words used in the Firman are clear and as provisions contained in a statute they must be given full effect. There can be little doubt that after this Firman was issued, it 'would not be open to anyone to contend that the Shrinathii temple was a private temple belonging to the Tilkayat Maharaj of the day. This law declares that it has always been and would always be a public temple. The validity of this law was not then and is not now open to any 593 challenge when it seeks to declare that the temple in question has always been a public temple. We have already seen that the original grants amply bear out the recital in cl. 1 of the Firman about the character of this temple. The fIrman then clearly provides that the TilkayaT Maharaj is merely a Custodian, Manager and Trustee of the said property and that finally determines the nature of the office held by the Tilkayat Maharaj. He can claim no better and no higher rights after the Firman was issued. The said clause also declares that the Darbar has absolute right to see to it that the property is used for legitimate purpose of the shrine. This again is an assertion which is validly made to assert the sovereign 's rights to supervise the administration of public charity. Clause 2 lays down the absolute right of the Darbar to depose the Tilkayat and to disqualify anyone from claiming the succession to the Gaddi. It shows that succession to the Gaddi and continuing in the office of the Tilkayat are wholly dependent on the discretion of the Darbar. The Right of the Darbar to depose the Tilkayat and to recognise a successor or not is described by this clause as absolute. The third and the fourth clauses are consistent with the first two clauses. Reading this Firman as a whole, there can be no doubt that under the law of Udaipur, this temple was held to be a public temple and the Tilkayat was held to be no more than the Custodian, Manager and Trustee of the property belonging to the said temple. It is on the basis of this law that the vires of the Act must inevitably be determined. The learned Attorney General has invited our attention to some decisions in which the temples of this cult were held to be private temples. 'We would now very briefly refer to these decisions before we proceed to deal with the other points raised in the present appeals. In Gossamee Sree Greedhareejee v Rumanlolljee Gossantee, (1), the Privy Council held that when the worship of a Thakoor has been (1)16 1. A. 137. 594 founded under Hindu law, the shebaitship is held to be vested in the heirs of the founder, in default of evidence that he has disposed of it otherwise, or that there has been some usage, course of dealing, or circumstances to show a different mode of devolution. Greedhareejee who as the plaintiff appeared before the Privy Council as the appellant had been deposed by the Rana of Udaipur in 1876. He claimed the rights of shebaitship of a certain. consecrated idol and as incident thereto to the things which had been offered to the idol. This claim was based on the allegation that by the rule of primogeniture he had preferential right and not his opponent Rumanlolijee Gossamee. The High Court of Calcutta by a majority judgment had held that Greedhareejee 's title as a founder had been established and that the bar of limitation pleaded by the respondent applied to the temple and the land on which it was built but not to the image and the movable property connected with it. In the result, Greedhareejee got a decree for so much of his claim as was not barred by lapse of time. This conclusion was confirmed by the Privy Council. It would be noticed that since the dispute was between two rival claimants neither of whom was interested in pleading that the temple was a public temple, that aspect of the matter did not fall to be considered in the said litigation, and so, this decision can be regarded as an au thority only for the proposition which it laid down in regard to the succession of the Shebaitship. The learned Attorney General no doubt invited our attention to the fact that in the course of his judgment, Lord Hobhouse has mentioned that all the male members of the Vallabh 's family are in their lifetime esteemed by their community as partaking of the Divine essence, and as entitled to veneration and worship. This observation, however, can be of little help to the Tilkayat in the present proceedings where we have to deal with the matter on the basis of the Firman to which we have just referred. Besides, we 595 may incidentally add that the Tilkayat 's claims to property rights in the present proceedings based on the allegation that the members 'of the denomination regard all successors of Vallabha with the same respect which they had for Vallabha himself, sounds incongruous with the essential tenets of Vallabha 's philosophy. In Mohan Lalji vs Gordihan Lalji Maharaj the dispute which was taken before the Privy 'Council was in regard to the right claimed by the sons of a daughter to the shebaitship of the temple of Vallabha sect, and in support of the said right the sons of the daughter relied upon the earlier decision of the Privy Council in the case of Gossammee Sree Girdharejee (2) In rejecting the plea made by the said sons, the Privy Council observed that the principle laid down in the earlier case cannot be applied so as to vest the shebaitship in persons who, according to the usages of the worship, cannot perform the rites of the office. In that case it was found that the sons of the daughter who were Bhats and who did not belong to the Gosain Kul were incompetent to perform the " 'diurnal rites for the deity worshipped by the sect" and so, the decision of the High Court which had rejected their claim was confirmed. In this case again neither party was interested in pleading the public character of the temple and so, that point did not arise for decision. The same comment falls to be made about the decision of the Allahabad High Court in Gopal Lalji vs Girdhar Lalji (3). It is true that in that case the plaintiff challenged a gift deed executed by one Goswami of the Vallabha sect in favour of another Goswami and in doing so he at leged that the donor Goswami was a Trustee and not the owner of the property. But in the course of the evidence, it was virtually conceded by him that the property belonged to the donor Goswami, and so, the case was, (1) 40 1. A. 97. (2) 16 I.A. 137. (3) A.I.R 1915 All. 44. 596 decided on that basis. In its judgment, the High Court observed that there can be no doubt that if we must regard the property as "trust property" in the strict sense, dedicated for a charitable or religious purpose in, the hands of duly constituted trustees of the charitable or religious object, one or more of such trustees would have no power to alienate the trust property or delegate their powers and duties contrary to the trust. But the High Court found that the evidence adduced conclusively established that the property in question was private property and so, the challenge to the validity of the gift was repelled. This decision also cannot be of any assistance in deciding the question as to whether the temple with which the present proceedings concerned is a private or a public temple. Besides, as we have already indicated, this question is really concluded by the Firman of 1934 and so, the temple must be held to be a public temple and in consequence the challenge to the validity of the Act on ' the basis that the Act has interfered with the Tilkayat 's rights of ownership over his private property cannot succeed. Let us now examine the material provisions of the Act before dealing with the contentions of the Tilkayat that the said provisions contravene his fundamental rights under article 19 (1) (f) and articles 14 and 31(2) even on the basis that the temple is a public temple. The Act was passed to provide for the better administration and governance of the temple of Shri Shrinathii, at Nathdwara. It consists of 38 sections. Section 2 is a definition section; under section 2(i) "Board" means the Nathdwara Temple Board established and constituted under the Act, and section 2 (ii) defines "Endowment" as meaning all property, movable or immovable belonging to or given or endowed in any name for the maintenance or support of the temple or for the performance of any service or charity connected therewith or for the benefit, convenience or comfort of the pilgrims visiting the temple, and 597 includes (a) the idols installed in the temple. (b) the premises of the temple. (c) all jagirs, muafis and other properties, movable or immovable, wherever situate and all income derived from any source whatsoever and standing in any name, dedicated to the temple or placed for any religious, pious or charitable purposes under the Board or purchased from out of the temple funds and all offerings and bhents made for and received on behalf of the temple. but shall not include any property belonging to the Goswami personally although the same or income thereof might. hitherto have been utilised in part or in whole in the service of the temple. Section 2 (viii) defines "temple" as meaning the temple of Shri Shrinathji at Nathdwara in Udaipur District and includes the temple of Shri Navnitpriyaji and Shri Madan Mohanlalji together with all additions thereto or all alterations thereof which may be made from time to time after the commencement of the Act. Sections 3 and 4 are important provisions of the Act. Section 3 provides that the ownership of the temple and all its endowments including all offerings which have been or may hereafter be made shall vest in the deity of Shri Shrinathji and the Board constituted under the Act shall be entitled to their possession. In other words, all property of the temple vests in the temple and the right to claim possession of it vests in the Board. As a corollary to 598 the provisions of section 3, section 4(1) provides that the admi nistration of the temple and all its endowments shall vest in the Board constituted in the manner hereinafter provided. Sub section (2) lays down that the Board shall be a body corporate by the name of the Nathdwara Temple Board and shall have perpetual succession and a common seal with power to acquire and hold property, both movable and immovable, and may sue or be sued in the said name. The composition of the Board has been prescribed by section 5: it shall consist of a President, the Collector of Udaipur District and nine other members. The proviso to the section is important: it says that the Goswami shall be one of such members if he is not otherwise disqualified to be a member and is willing to serve as such. Section 5 (2) prescribes the disqualifications specified in clauses (a) to (g) unsoundness of mind adjudicated upon by competent Court, conviction involving moral turpitude; adjudication as an insolvent or the status of an undischarged insolvent; minority, the defect of being deaf mute or leprosy; holding an office or being a servant of the temple or being in receipt of any emoluments or perquisites from the temple ; being interested in a subsisting contract entered into with the temple ; and lastly, not professing the Hindu religion or not belonging to the Pushti margiya Vallabhi Sampradaya. There can be no doubt that "or" in clause (g) must mean "and", for the context clearly indicates that way. There is a proviso to section 5 (2) which lays down that the disqualification as to the holding of an office or an employment under the temple shall not apply to the Goswami and the disqualification about the religion will not apply to the Collector ; that is to say, a Collector will be a member of the Board even though he may not be a Hindu and a follower of the denomination. Section 5 (3) provides that the President of the Board shall be appointed by the State Government and shall for all purposes be deemed to be a member. Under section 5 (4) the 599 Collector shall be an ex officio member of the Board. Section 5 (5) provides that all the other members specified in sub cl. (1) shall, be appointed by the State Government so as to secure representation of the Pushti Margiya Vaishnavas from all over India. This clearly contemplates that the other members of the Board should not only be Hindus, but should also belong to the denomination, for it is in that manner alone that their representation can be adequately secured. Section 6 gives liberty to the President or any member to resign his office by giving a notice in writing to the State Government. Under section 7 (1), the State Government is given the power to remove from office the President or any member, other than the ex officio member, including the Goswami on any of the three grounds specified in clauses (a), (b) & (c) ; ground (a) refers to the disqualification specified by section 5 (2), ground (b) refers to the absence of the member for more than four consecutive meetings of the Board without obtaining leave for absence ; and ground (c) refers to the case where a member is guilty of corruption or misconduct in the administration of the endowment Section 7 (2) provides a safeguard to the person against whom action is intended to be taken under sub cl. (1) and it lays down that no person shall be removed unless he has been given a reasonable opportunity of showing cause against his removal. It would be noticed that by operation of section 7 (1), the Goswami is liable to be removed, but that removal would, in a sense, be ineffective because the proviso to section 5 requires that the Goswami has to be a member of the Board so that even though he is removed for causes (b) and (c), he would automatically be deemed to be a member under the proviso to section 5. It would be a different matter if the Goswami is removed by reason of the fact that he is disqualified on any of the grounds described in section 5 (2). 'Such a disqualification may presumably necessitate the appointment of a successor, Goswami in lieu of the disqualified ' 600 one and then it would be the successor Goswami who will be a member of the Board under the proviso to section 5 (1). This position is made clear if we look at section 11 which provides that any person ceasing to be a member shall, unless disqualified under section 5 (2) be eligible for re appointment, whereas other members who are removed under section 7 (1) for causes specified in clauses (b) and (c) may not be eligible for reappointment, the Goswami would be entitled to such re appointment. Section 8 prescribes the term of office at 3 years. Section 9 provides for the filling up of casual vacancies. Section 10 empowers the State Government to dissolve the Board and reconstitute it if it is satisfied that the existing Board is not competent to perform or persistently makes default in performing the duties imposed on it under this Act, or exceeds or abuses its powers; and this power can be exercised after due enquiry. This section further provides that if a Board is dissolved, immediate action should be taken to reconstitute a fresh Board in accordance with the provisions of this Act. Section 10 (2) provides a safeguard to the Board against which action is proposed to be taken under sub section (1) inasmuch as it requires that before the notification of the Board 's dissolution is issued, Government will communicate to the Board the grounds on which it proposes so to do, fix a reasonable time for the Board to show cause and consider its explanation or objections, if any. Section 10 (3) empowers the State Government, as a provisional and interim measure, to appoint a person to perform the functions of the Board until a fresh Board is reconstituted, and under section 10 (4), the State Government is given the power to fix the remunera tion of the person so appointed. Section 12 makes every member of the Board liable for loss, waste or misapplication of any money or property belonging to the temple, provided such loss, waste or misapplication is a direct consequence. of his wailful act or omission, and it allows a suit to be instituted to 601 obtain such compensation. Under section 13, members of the Board as well as the President are entitled to draw travelling and halting allowances as may be prescribed. Section 14 deals with the office and meetings of the Board and section 15 provides that any defect or vacancy in the constitution of the Board will not invalidate the acts of the Board. Section 16 is important. It lays down that subject to the provisions of this Act and of the rules made thereunder, the Board shall manage the properties and affairs of the temple and arrange for the conduct of the daily worship and ceremonies and of festivals in the temple according to the customs and usage of the Pushti Margiya Vallabhi Sampradaya. Section 17 (1) provides that the jewelleries or other valuable moveable property of a non perishable character the administration of which vests in the Board shall not be transferred without the previous sanction of the Board, and if the value of the property to be transferred exceeds ten thousand rupees, the previous approval of the State Government has to be obtained. Section 17 (2) requires the previous sanction of the State Government for leasing the temple property for more than ' five years, or mortgaging selling or otherwise alienating it. Section 18 poses a ban on the borro wing power of the Board. Section 19 (1) provides for the appointment of the Chief. Executive Officer of the temple, and the remaining four subsections of section 19 deal with his terms and conditions of service. Section 20 speaks of the powers and duties of the Chief Executive Officer which relate to the administration of the temple properties. Section 21 provides that the Board may appoint, suspend, remove, dismiss or reduce in rank or in any way punish all officers and servants of the Board other than the Chief Executive Officer, in accordance with rules made by the State Government. Section 22 is very important. It provides that save as otherwise expressly provided in or under this Act, nothing 602 herein contained shall affect any established usage of the temple or the rights, honours, emoluments and perquisites to which any person may, by custom or otherwise, be entitled in the temple. Section 23 deals with the budget, section 24 with accounts and section 25 with the Administration Report. Section 26 confers on the State Government power to call for such information and accounts as may. , in its opinion, be reasonably necessary to, satisfy it that the temple is being properly maintained, and its administration carried on according the provisions of this Act. Under this section, the Board is under an obligation to furnish forthwith such information and accounts as may be called for by the State Government. Under section 27, the State Government may depute any person to inspect any movable or immovable property, records, correspondence, plans, accounts and other documents relating to the temple and endowments, and the Board and its officers and servants shall be bound to afford all facilities to such persons for such inspection. Section 28(1) specifies 'the purposes for which the funds of the temple may be utilised and section 28(2) provides that without prejudice to the purposes referred to in sub section (1), the Board may, with the previous sanction of the State Government, order that the surplus funds of the temple be utilised for the purposes mentioned in clauses (a) to (e). Section 28(3) requires that the order of the Board under sub section (2) shall be published in the prescribed manner. Section 29 deals with the duties of trustee of specific endowment; section 30(1) confers the power on the State Government to make rules for carrying out all or any of the purposes of the Act ; section 30(2) provides that in particular and without prejudice to the Generality of the foregoing power, the State Government shall have power to make rules with reference to matters covered by clauses (a) to (i). Under sub section (3) it is provided that the rules made under this Act" shall be placed before the House of the State 603 Legislature at the session thereof next following. Section 31 provides that the State Government or any person interested may institute a suit in the Court of District judge to obtain a decree for the reliefs mentioned in clauses (a) to (e). These reliefs correspond to the relief which may be obtained in a suit under section 92 Code of Civil Procedure. In consequence, section 31(2) provides that sections 92 and 93 and 0. I r. 8, of the First Schedule to the Code of Civil Procedure shall have no application to any suit claiming any relief in respect of the administration or management of the temple and no suit in respect thereof shall be instituted except as provided by this Act. In other words, a suit which would normally have been filed under sections 92 and 93 and 0. 1, r. 8, of the Code has now to be filed under section 31. Section 32 deals with the resistance or obstruction in obtaining possession and it provides that the order which may be passed by the Magistrate in such matters shall, subject to the result of any suit which may be filed to establish the right to the possession of the property, be final. Section 33 deals with the costs of the suit, etc. Section 34 provides that this Act shall have effect notwithstanding anything to. the contrary contained in any law for the time being in force or in any scheme of management framed before the commencement of this Act or in any decree, order, practice, custom or usage. Section 35 contains a transitional provision and it empowers the State Government to appoint one or more persons to discharge all or any of. the duties of the Board after the Act comes into force and before the first Board is constituted. Under section 36 it is provided that if any difficulty arises in giving effect to any of the provisions of this Act, the State Government may, by order, give such directions and make such provisions as may appear to it to be necessary for the, purpose of removing the difficulty. Section 37 prescribes a bar to suit or proceeding against the. State Government for anything done or purported to be done by 604 it under the provisions of this Act. The last section deals with repeal and savings. The Rajasthan Ordinance No. 2 of 1959 which had preceded this Act has been repealed by this section. That in brief, is the scheme of the Act. Later, we will have occasion to deal with the specific sections which have been challenged before us, but at this stage, it is necessary to consider the broad scheme of the Act in order to be able to appreciate the points raised by the Tilkayat and the denomination in challenging its validity. For the purpose of ascertaining the true scope and effect of the scheme envisaged by the Act it is necessary to concentrate on sections 3, 4, 16, 22 and 34. The scheme of the Act, as its preamble indicates, is to provide for the better administration and governance of the temple of Shri Shrinathji at Nathdwara. It proceeds on the basis that the temple of Shrinathji is a public temple and having regard to the background of the administration of its affairs in the past, the legislature thought that it was necessary to make a more satisfactory provision which will lead to its better administration and governance. In doing so, the legislature has taken precaution to safeguard the performance of religious rites and the observance of religious practices in accordance with traditional usage and custom. When the validity of any legislative enactment is impugned on the ground that its material provisions contravene one. or the other of the fundamental rights guaranteed by the Constitution, it is necessary to bear in mind the primary rule of construction. If the impugned provisions of the Statute are reasonably capable of a construction which does not involve the infringement of any fundamental rights, that construction must be preferred though it may reasonably be possible to adopt another construction which leads to the infringement of the said fundamental rights. If the impugned 605 provisions are reasonably not capable of the construction which would save its validity, that of course is another matter; but if two constructions are reasonably possible, then it is necessary that the Courts should adopt that construction which upholds the validity of the Act rather than the one which affects its validity. Bearing this rule of construction in mind, we must examine the five sections to which we have just referred. Section 3 no doubt provides for the vesting of the temple property and all its endowments including offerings in the deity of Shrinathji, and that clearly is unexceptionable. If the temple is a public temple, under Hindu Law the idol of Shrinathji is a juridical person and so, the 'ownership of the temple and all it , endowments including offerings made before the idol constitute the property of the idol. Having thus stated what is the true legal position about the ownership of the temple and the endowments, section 3 proceeds to add that the Board constituted under this Act shall be entitled to the possession of the said property. If the legislature intended to provide for the better administration of the temple properties, it was absolutely essential to constitute a proper Board to look after the Said administration, and so, all that section 3 does is to enable the Board to take care of the temple properties and in that sense, it provides that the Board shall be entitled to claim possession of the said properties. In the context. this provision does not mean that the Board would be entitled to dispossess persons who are in posses ;ion of the said properties : it only means that the Board will be entitled to protect its possession by taking such steps as in law may be open to it and necessary in that behalf. Section 4 is a mere corollary to section 3 because it provides that the administration of the temple and all its endowments shall vest in the Board. Thus, the result of reading sections 3 and 4 is that the statute declares that the properties of the temple vest in the deity of Shrinathji and provides for the administration of the said 606 properties by appointing a Board and entrusting to the Board the said administration. The true scope and effect of these provisions can be properly appreciated only when they are corelated to sections 16 and 22 section 16 prescribes the duties of the Board; it requires that subject to the provisions of the Act and the rules framed under it, the Board has to manage the properties and affairs of the temple and arrange for the conduct of the daily worship and ceremonies and of festivals in the temple according to the customs and usages of the Pushtimargiya Vallabhi Sampradaya. It would be noticed that two different categories of duties are imposed upon the Board. The first duty is to manage the properties and secular affairs of the temple. This naturally is a very important part of the assignment of the Board. Having thus provided for the discharge of its important function in the matter of administering the properties of the temple, the section adds that it Will be the duty of the Board to arrange for the religious worship, ceremonies and festivals in the temple but this has to be done according to the customs and usages of the denomination. It is thus clear that the duties of the Board in so far as they relate to the worship and other religious ceremonies and festivals, it is the traditional customs and usage which ' is of Paramount importance. In other words, the legislature has taken precaution to safeguard the clue observance of the religious ceremonies, worship and festivals according to the custom and usage of the denomination. Section 22 makes this position still clearer; it provides that save as otherwise expressly provided in or under the Act, nothing herein contained shall affect any established usage of the temple or the rights, honours, emoluments and perquisites to which any person may, by custom or otherwise, be entitled in the temple. The saving provisions of section 22 are very wide; unless there is an express provision to the contrary in the 607 Act, all matters which have been saved by section 22 will be governed by the traditional usage and custom. If only we consider the very wide terms in which the saving clause under section 22 has been drafted, it will be clear that the legislature was anxious to provide for the better administration of the temple properties and not to infringe upon the traditional religious ceremonies, worship and festivals in the temple and the rights, honours, emoluments and the perquisites attached thereto. Section 34 which provides for the over riding effect of the Act must be read along with section 22 and so, when it provides that the Act shall have effect notwithstanding practice, custom or usage, it only means that practice, custom and usage will not avail if there is an express provision to the contrary as prescribed by section 22. Reading these five sections together, it seems to us clear that the Legislature has provided for the appointment of a Board to look after the administration of the property of the temple and manage its secular affairs as well as the religious affairs of the temple, but in regard to these religious affairs consisting of the worship, services, .festivals and other ceremonies, the custom prevailing in the temple consistently with the tenets of Vallabha philosophy are to be respected. The learned Attorney General no doubt attempted to read sections 3 and 4 in a very wide manner and he sought to place a narrow construction on section 22, thereby indicating that even religious ceremonies and rites and festivals would remain within the exclusive jurisdiction of the Board without reference to the traditional custom or usage. We do not think that it would be appropriate to adopt such an approach in construing the relevant provisions of the Act. We have no doubt that when rule are framed under section 30 of the Act, they would be framed bearing in mind these essential features of the material provisions of the Act and will help to carry out the object of the Act in keeping the religious part of the services and wor 608 ship at the temple apart from the secular part of the administration of the temple properties. Broadly .stated, the former will be carried out according to the traditional usage and custom and the latter according to the provisions of the Act. On behalf of the Tilkayat, the main contention which has been raised before us by the learned Attorney General is that his right of property has been infringed under article 19 (1) (f) and Mr. Pathak has added that the relevant provisions infringed the Tilkayat 's rights under article 31 (2) of the Constitution. As we have already indicated, this latter contention is raised in the writ petition filed by the Tilkayat in this Court. Now in deciding the validity of these contentions it is necessary to revert to the Firman issued by the Rana of Udaipur in 1934, because the rights of the Tilkayat have to be judged in the light of the said Firman. We have already noticed that the said Firman clearly declares that the Tilkayat is merely a Custodian, Manager and Trustee of the property of the shrine Shrinathji and that the Udaipur Darbar has the absolute right to supervise that the property dedicated to the shrine is used for legitimate purpose of the shrine. Having regard to the unam biguous and emphatic words used in clause 1 of the Firman and having regard to other drastic provisions contained in its remaining clauses, we are inclined to think that this Firman made the Tilkayat for the time being a Custodian, Manager and Trustee, and nothing more. As a Custodian or Manager, he had the right to manage the properties of the temple, subject, of course, to the overall supervision of the Darbar, the right of the Darbar in that behalf being absolute. He was also a Trustee of the said property and the word " 'trustee" in the context must mean trustee in the technical legal sense. In other words, it is not open to the Tilkayat to claim that he has rights of a Mahant or a Shebait; his rights are now defined and he cannot claim any higher rights after the Firman was issued. There can be no doubt that the right to 609 have the custody of the property such as the Custodian has, or the right to manage the property such as the Manger possesses, or the right to administer the trust property for the benefit of the beneficiary which the Trustee can do, cannot be regarded as a right to property under article 19 (1)(f) and for the same reason, it does not constitute property under article 31(2). If it is held that the Tilkayat was no more than a Custodian, Manager and Trustee properly so called, there can be no doubt that he is not entitled to rely either on article 19(1)(f) or on article 31(2). Therefore, on this construction of clause 1 of the Firman, the short answer to the pleas raised by the Tilkayat under articles 19(1)(f) and 31(2) is that the rights such as he possesses under the said clause cannot attract article 19(1)(f) or article 31(2). It has, however, been strenously urged before us that the words "Custodian, Manager or Trustee" should be liberally construed and the position of the Tilkayat should be taken to be similar to that of a Mahant of a Math or a Shebait of a temple. Under Hindu Law, idols and Maths are both juridical persons and Shebaits and Mahants who manage their properties are recognised to possess certain rights and to claim a certain status. A Shebait by virtue of his office is the person entitled to administer the property attached to the temple of which he is a Shebait. Similarly a Mahant who is a spiritual head of the Math or religious institution is entitled to manage the said property for and on behalf of the Math. The position of the Mahant under Hindu law is not strictly that of a Trustee. As Mr. Ameer Ali delivering the judgment of the Board observed in Vidya Varuthi Thirtha vs Balusami Ayyar (1), "called by whatever name he is only the manager and custodian of the idol or the institution. " When the gift is directly to an idol or a temple, the scisin to complete the gift is necessarily effected by human agency. In almost every case the Mahant is given the right to a (1) (1921) L, R. 48 I.A. 302, 311. 610 part of the usufruct,the mode of enjoyment and the amount of the usufruct depending again on usage and custom. In no case was the property conveyed to or vested in him, nor is he a " 'trustee" in the English sense of the term, though in view of the obligations and duties resting on him, he is answerable as a trustee in the general sense for maladministration. This position has been accepted by this Court in The Commissioner, Hindu Religious Endowements, Madras vs Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt. Speaking for the unanimous Court in that case, Mukherjea J., observed, "Thus in the conception of Mahantship, as in Shebaitship, both the elements of office and property, of duties and personal interest are blended together, and neither can be detached from the other. The personal or beneficial interest of the Mahant in the endowments attached to an institution is manifested in his large powers of disposal and administration and his right to create derivative tenures in respect to endowed properties; and these and other rights of a similar character invest the office of the Mahant with the character of proprietary right which, though anomalous to some extent, is still a genuine legal right. " On this view, this Court held that the right of this character vesting in a Mahant is a right to property under article 19(1) (f) of the Constitution. Relying on this decision, it is urged that the Firman should be construed to make the Tilkayat a Mahant or a Shebait and as such, clothed with rights which amount to a right to property under article 19(1)(f) and which constitute property under article 31(2). Assuming that the construction of clause I of the Firman suggested by the learned Attorney General is possible, let us examine the position on the basis that the Tilkayat can in theory, be regarded as a Mahant of the temple. What then are the rights to which, according to the relevant evidence produced in this case, the Mahant is entitled in respect of the temple? As a Tilkayat, he has a right to reside in (1) ; 611 the temple as such Mahant he has a right to conduct or arrange for and supervise the worship of the idol in the temple and the services rendered therein in accordance with the traditional custom and usage. He has also the right to receive bhents on behalf of the idol and distribute Prasad in accordance with the traditional custom and usage. So far as these rights are concerned, they have not been affected by the Act, and so, no argument can be raised that in affec ting the said rights the Act has contravened either article 19(1)(f) or article 31(2). It is, however, argued that as a Mahant, the Tilkayat had the right to manage the properties of the temple, to lease them out and in case of necessity, to alienate them for the purpose of the temple; and it is suggested that these rights constitute a right to property under article 19(1) (f) and property under article 31(2). The learned Attorney General fairly conceded that there was no evidence to show that the right to alienate had ever been exercised in this case, but he contends that the existence of the right cannot be denied. It is also conceded that the right to manage the properties was subject to the strict and absolute supervision of the Darbar, but it is suggested that even so, it is a right which must be regarded as a right to property. In dealing with this argument, it is necessary to bear in mind that the extent of the rights available to the Tilkayat under clause I of the Firman cannot be said to have become larger by virtue of the fact that the Constitution came into force in 1950. It is only the rights to property which subsisted in the Tilkayat under the said Firman that would be protected by, the Constitution, provided of course, they are rights which attract the provisions of article 19(1)(f) or article 31(2). This branch of the argument urged on behalf of the Tilkayat naturally rests on the decision of this Court ' in. the case of the Commissioner, Hindu Religious Endowments, Madras (1), that right of a Mahant (1) ; 612 does amount to "a genuine legal right" and that the said right must be held to fall under article 19(1)(f) because the word "property" used in the said clause ought to receive a very liberal interpretation. It will be recalled that in the said case, this Court in terms and expressly approved of the decision of Mr. Ameer Ali in Vidya Viruthi Thirtha 's case (1), which exhautively dealt with the position of the Mahant or the Shebait under Hindu law. We have already quoted the relevant observations made in that judgment and it would be relevant to repeat one of those observations in which the Privy Council stated that in almost every case the Mahant is given the right to a part of the usufruct, the mode of enjoyment and the amount of usufruct depending again on usage and custom. It is true that in the passage in Mr. justice Mukherjea 's judgment in the case of the Commissioner, Hindu Religious Endowments, Madras (2), this particular statement has not been cited; but having referred to the rights which the Mahant can claim, the learned judge has added that these and other rights of a similar character invest the office of the Mahant with the character, of proprietary right which, though anomalous to some extent, is still a genuine legal right. It is clear that when this Court held that the rights vesting in the Mahant as a manager of the Math amount to a genuine legal right to property, this Court undoubtedly had in mind the fact that usually, the Mahant or Shebait is entitled to be maintained out of the property of the Math or the temple and that the extent of the right to a part of the usufruct and the mode of employment and the amount of the usufruct always depended on usage and custom of the Math or the temple. It is in the light of these rights, including particularly the right to claim a part of the usufruct for his maintenance that this Court held that the totality of the rights amount to a right to property under article 19 (1) (f). (1) (1921) L.R. 48 I.A. 302, 311. (2) ; 613 That takes us to the question as the nature and extent of the Tilkayat 's rights in regard to the temple property. It is clear that the Tilkayat never used any income from the property of the temple for his personal needs or private purpose. It is true that the learned AttorneyGeneral suggested that this consistent course of conduct spreading over a large number of years was the result of what he described as self abnegation on the part of the Tilkayats from generation to generation and from Tilkayat 's point of view, it can be so regarded because the Tilkayat thought and claimed that the temple and his properties together constituted his private property. But once we reach the conclusion that the temple is a public temple and the properties belonging to it are the properties of the temple over which the Tilkayat has no title or right, we will have to take into account the fact that during the long course of the management of this temple, the Tilkayat has never claimed any proprietary interest to any part of the usufruct of the properties of the temple for his private personal needs, and so, that proprietary interest of which Mr. Ameer Ali spoke in dealing with the position of the Mahant and the Shebait and to which this Court referred in the case of Co mmisioner, Hindu Religious Endowments Madras (1), is lacking in the present case. What the Tilkayat can claim is merely the right to manage the property, to create leases in respect of the properties in a reason. able manner and the theoretical right to alienate the property for the purpose of the temple; and be it noted that these rights could be exercised by the Tilkayat under the absolute and strict supervision of the Darbar of Udaipur. Now, the right to manage the property belonging to the temple, or the right to create a lease of the property on behalf of the temple, or the right to alienate the property for the purpose of the temple under the supervision of the Darbar cannot, in our opinion, be equated with the totality of the powers generally possessed by the Mahant or (1) ; 614 even the Shebait, and so, we are not prepared to hold that having regard to the character and extent of the rights which can be legitimately claimed by the Tilkayat even on the basis that he was a Mahant governed by the terms of the Firman, amount to a right to property under article 19 (1) (f) or constitute property under article 31 (2.). Besides, we may add that even if it was held that these rights constituted a right to hold property their regulation by the relevant provisions of the Act would undoubtedy be protected by article 19 (5). The temple is a public temple and what the legislature has purported to do is to regulate the administration of the properties of the temple by the Board of which the Tilkayat is and has to be a member. Having regard to the large estate owned by the Tilkayat and having regard to the very wide extent of the offerings made to the temple by millions of devotees from day to day; the legislature was clearly justified in providing for proper administration of the properties of the temple. The restrictions imposed by the Act must, therefore, be treated as reasonable and in the interests of the general public. Turning to Mr. Pathak 's argument that the rights constitute property under article 31 (2) and the Act contravenes the said provision because no compensation had been provided for, or no principles have been prescribed in connection therewith, the answer would be the same. The right which the Tilkayat possesses cannot be regarded as property for the purpose of article 31 (2). Besides, even if the said rights are held to be property for the purpose of article 31 (2), there are some obvious answers to the plea which may be briefly indicated. After article 31 (2) was amended by the Constitution (Fourth Amendment) Act, 1955, the position with regard to the scope and effect of the provisions of 615 article 31 (1) and 31 (2) is no longer in doubt. Article 31 (2) deals with the compulsory acquisition or requisition of a citizen 's property and it provides that a citizen 's property can be compulsorily acquired or requisitioned only for a public purpose and by authority of law which provides for compensation 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 it adds that no such law shall be called in question in any court on the ground that the compensation provided by that law is not adequate. article 31 (2A) which is expressed in a negative form really amounts to this that where a law provides for the transfer of the ownership or right to possession of any property to the State or to a corporation owned or controlled by the State, it shall be deemed to provide for the compulsory acquisition or requisition of property. If, on the other hand, the transfer of the ownership or the right to possession of any property is not made to the State or to a corporation owned or controlled by the State, it would not be regarded as compulsory acquisition or requisition of the property, notwithstanding that it does deprive any person of his property. In other words, the power to make a compulsory acquisition or requisition of a citizen 's property provided for by article 31(2) is what the American lawyers described as "eminent domain" all other cases where a citizen is deprived of his property are covered by article 31.(1) and they can broadly be said to rest on the police powers of the State. Deprivation of property falling under the latter category of cases cannot be effected save by authority of law; this Court has held that the expression "save by authority of law" postulates that the law by whose authority such deprivation can be effected must be a valid law in the sense that it must not contravene the other fundamental rights guaranteed by the Constitution. 616 The argument which has been urged before us by Mr. Pathak is that the right to administer the properties of the temple which vested in the Mahant has been compulsorily acquired and transferred to a Board constituted under the Act which Board is controlled by the State. We will assume that the Board in question is controlled by the State; but the ques tion still remains whether the right which is allowed to vest in the Tilkayat has been compulsorily acquired and has been transferred to the Board. In our opinion, what the Act purports to do is to extinguish the secular office vesting in the Tilkayat by which he was managing the properties of the temple. It is well known that a Mahant combines in himself both a religions and a secular office. This latter office has been extinguished by the Act, and so, it cannot be said that the rights vesting in the Tilkayat to administer the properties have been compulsorily acquired. Acquisition of property, in the context, means the extinction of the citizen 's rights in the property and the conferment of the said rights in the .State or the State owned corporation. In the present case, the Act extinguishes the Mahant 's rights and then creates another body for the purpose of administering the properties of the temple. in other words, the office of one functionary is brought to an end and another functionary has come into existence in its place. Such a process cannot be said to constitute the acquisition of the extinguished office or of the rights vesting in (he person holding that office. Besides, there is another way in which this question may perhaps be considered. What the Act purports to do is not to acquire the Tilkayat 's rights but to require him to share those rights with the other members of the Board. We have already seen that the Act postulates that the Mahant for the time being has to be a member of the Board and so, the administration of the properties which was so long carried on by the Mahant alone would here after 617 have to be carried on by the Mahant along with his colleagues in the Board. This again cannot, we think, be regarded as a compulsory acquisition of the Tilkayat 's rights. It is not suggested that the effect of the relevant provisions of the Act is to bring about the requisitioning of the said rights. Therefore, even if it is assumed that the rights claimed by the Tiikayat constitute property under article 31(2), we do not think that the provisions of article 31(2) apply to the Act. But as we have already held, the rights in question do not amount to a right to hold property under article 19(l)(f) or to property under article 31(2). That takes us to the argument that the Act is invalid because it: contravenes article 14. In our opinion, there is no substance in this argument. We have referred to the historical background of the present legislation. At the time when Ordinance No. 11 of 1959 was issued, it had come to the knowledge of the Government of Rajasthan that valuables such as jewelleries, ornaments, gold and silver ware and cash had been removed by the Tilkayat in the month of December 1957, and as the successor of the State of Mewar, the State of Rajasthan had to exercise its right of supervising the due administration of the properties of the temple. There is no doubt that the shrine at Nathdwara holds a unique position amongst the Hindu shrines in the State of Rajasthan and no temple can be regarded as compa rable with it. Besides, the Tilkayat himself had entered into negotiations for the purpose of obtaining a proper scheme for the administration of the temple properties and for that purpose, a suit under section 92 of the Code had in fact been filed. A Commission of Enquiry had to be appointed to investigate into the removal of the valuables. If the temple is a public temple and the legislature thought that it was essential to safeguard the interests of the temple by taking adequate legislative action in that behalf, it is difficult to appreciate how the Tilkayat can seriously 618 contend that in passing the Act, the legislature has been guilty of unconstitutional discrimination. As has been held by this Court in the case of Shri Ram Krishna Dalmia vs Shri Justice section R. Tendolkar (1), that a law may be constitutional even though it relates to a single individual if, on account of some special circumstances or reasons applicable to him and not applicable to others, that single individual may be treated as a class by himself. Therefore, the plea raised under article 14 fails. The next point to consider is in regard to the pleas raised more by the denomination than by the Tilkayat himself under articles 25 and 26 of the Constitution. The attitude adopted by the denomination in its writ petition is not very easy to appreciate. In the writ petition filed on behalf of the denomination, it was urged that the Tilkayat himself is the owner of all the properties of the temple and as such, was entitled to manage them in his discretion and as he liked. This plea clearly supported the Tilkayat 's stand that the temple in question was a private temple belonging to himself and as such, all the temple properties were his private. properties. The denomination was clearly in two minds. It was inclined more to support the Tilkayat 's case than to put up an alternative case that the denomination was interested in the management of these properties. Even so, some allegations have been made in the writ petition filed on behalf of the denomination from which it may perhaps be inferred that it was the alternative case of the denomination that the temple and the properties connected therewith belonged to the denomination according to its usages and tradition, and therefore, the management of the said temple and the properties cannot be transferred to the Board. It is this latter alternative plea which is based on article 25 (1) and article 26(b) of the Constitution. The argument is that the Act contravenes the right guaranteed to the denomination by (1) , 297. 619 article 25(1) freely to practise its religion and that it also contravenes the denomination 's right guaranteed under article 26(b) and (d) to manage its own affairs in matters of religion and to administer its property in accordance with law. For the purpose of dealing with these arguments, we will assume that the denomination has a beneficial interest in the properties of the temple. Articles 25 and 26 constitute the fundamental rights to freedom of religion guaranteed to the citizens of this country. Article 25 (1) protects the citizen 's fundamental right to freedom of conscience and his right freely to profess, practise and propagate religion. The protection given to this right is, however, not absolute. It is subject to public order, morality and health as article 25 (1) its elf denotes. It is also subject to the laws, existing or future, which are specified in article 25 (2). Article 26 guarantees freedom of the denominations or sections thereof to manage their religious affairs and their properties. Article 26 (b) provides that subject to public order, morality and health, every religious denomination or any section thereof shall have the right to manage its own affairs in matters of religion ; and article 26 (d) lays down a similar right to administer the property of the denomination in accordance with law. Article 26 (c) refers to the right of the denomination to own and acquire movable and immovable, property and it is in respect of such property that clause (d) makes the provision which we have just quoted. The scope and effect of these articles has been considered by this Court on several occasions. "The word "religion" used in article 25 (1)," observed Mukherjea, J., speaking for the Court in the case of the Commissioner, Hindu Religious Endowments, Madras (1). "is a matter of faith with individuals and communities and it is not necessarily theistic. It undoubtedly has its basis in a system of beliefs or doctrines which are regarded by. those who profess (1) 620 that religion as conducive to their spiritual well being, but it is not correct to say that religion is nothing else but a doctrine or belief. A religion may not only lay down a code of ethical rules for its followers to accept, it might prescribe rituals and observances, ceremonies and modes of worship which are regarded as integral parts of religion and these forms and observances might extend even to matters of food and dress. " In Shri Venkataramana Devara vs The State of Mysore (1), Venkatarama Aiyar, J., observed " 'that the matter of religion in article 26 (b) include even practices which are regarded by the community as parts of its religion. " It would thus be clear that religious practice to which article 25 (1) refers and affairs in matters of religion to which article 26 (b) refers, include practices which are an integral part of the religion itself and the protection guaranteed by article 25 (1) and article 26 (b) extends to such practices. In deciding the question as to whether a given religious practice is an integral part of the religion or not, the test always would be whether it is regarded as such by the community following the religion or not. This formula may in some cases present difficulties in its operation. Take the case of a practice in relation to food or dress. If in a given proceeding, one section of the community claims that while performing certain rites while dress is an integral part of the religion itself, whereas another section contends that yellow dress and not the white dress is the essential part of the religion, how is the Court going to decide the question ? Similar disputes may arise in regard to food. In cases where conflicting evidence is produced in respect of rival contentions as to competing religious practices the Court may not be able to resolve the dispute by a blind application of the formula that the community decides which (1) ; , 909. 621 practice is an integral part of its religion, because the community may speak with more than one voice and the formula would, therefore, break down. This question will always have to be decided by the Court and in doing so, the Court may have to enquire whether the practice in question is religious in character and if it is, whether it can be regarded as an integral or essential part of the religion, and the finding of the Court on such an issue will always depend upon the evidence adduced before it as to the conscience of the community and the tenets of its religion. It is in the light of this possible complication which may arise in some cases that this Court struck a note of caution in the case of the Durgah Committee, Ajmer vs Syed Hussain Ali (1), and observed that in order that the practices in question should be treated as a part of religion they 'must be regarded by the said religion as its essential and integral part ; otherwise even purely secular practices which are not an essential or an integral part of religion are apt to be clothed with a religious form and may make a claim for being treated as religious practices within the meaning of article 25 (1). In this connection, it cannot be ignored that what is protected under articles 25 (1) and 26 (b) respectively are the religious practices and the right to manage affairs in matters of religion. If the practice in question is purely secular or the affair which is controlled by the statute is essentially and absolutely secular in character, it cannot be urged that article 25 (1) or article 26 (b) has been contravened. The protection is given to the practice of religion and to the denomination 's right to manage its own affairs in matters of religion. Therefore whenever a claim is made on behalf of an individual citizen that the impugned statute contravenes his fundamental right to practise religion or a claim is made on behalf of the denomination that the fundamental right guaranteed to it to manage its own affairs in (1) ; ,411. 622 matters of religion is contravened, it is necessary to consider whether the practice in question is religious or the affairs in respect of which the right of management is alleged to have been contravened are affairs in matters of religion. If the practice is a religious practice or the affairs are the affairs in matters of religion, then, of course, the rights guaranteed by article 25 (1) and article 26 (b) cannot be contravened. It is true that the decision of the question. as to whether a certain practice is a religious practice or not, as well as the question as to whether an affair in question is an affair in matters of religion or not, may present difficulties because sometimes practices, religious and secular, are inextricably mixed up. This is more particularly so in regard to Hindu religion because as is well known, under the provisions of ancient Smritis, all hurman actions from birth to death and most of the individual actions from day to day are regarded as religious in character. As an illustration, we may refer to the fact that the Smritis regard marriage as a sacrament and not a contract. Though the task of disengaging the secular from the religious may Dot be easy, it must nevertheless be attempted in dealing with the claims for protection under articles 25 (1) and 26(b). If the practice which is protected under the former is a religious practice, and if the right which is protected under the latter is the right to manage affairs in matters of religion, it is necessary that in judging about the merits of the claim made in that behalf the Court must be satisfied that the practice is religious and the affair is in regard to a matter of religion. In dealing with this problem under articles 25(1) and 26(b), Latham, C. J., 'section observation in Adelaide Company of Jehovah 's witnesses Incorporated vs The Commonwealth (1), that "what is religion to one is superstition to another", on which Mr. Pathak relies, is of no relevance. If an obviously (1) ; , 123. 623 secular matter is claimed to be matter of religion, or if an obviously secular practice is alleged to be a religious practice, the Court would be justified in rejecting the claim because the protection guaranteed by article 25(1) and article 26(b) cannot be extended to secular practices and affairs in regard to denominational matters which are not matters of religion, and so, a claim made by a citizen that a purely secular matter amounts to a religious practice, or a similar claim made on behalf of the denomination that a purely secular matter is an affair in matters of religion, may have to be rejected on the ground that it is based on irrational considerations and cannot attract the provisions of article 25(1) or article 26(b). This aspect of the matter must be borne in mind in dealing with the true scope and effect of article 25(1) and article 26(b). Let us then enquire what is the right which has been contravened by the relevant provisions of the Act. The only right which according to the denomination, has been contravened is the right of the Tilkayat to manage the property belonging to the temple. It is urged that throughout the history of this temple, its properties have been managed by the Tilkayat and so, such management by the Tilkayat amounts to a religious practice under article 25(1) and constitutes the denomination 's right to manage the affairs of its religion under article 26(b). We have no hestitation in rejecting this argument. The right to manage the properties of the temple is a purely secular matter and it cannot, in our opinion be regarded as a religious practice so as to fall under article 25(1) or as amounting to affairs in matters of religion. It is true that the Tilkayats have been respected by the followers of the denomination and it is also true that the management has remained with the Tilkayats, except on occasions like the minority of the Tilkayat when the Court of Wards stepped in. If the temple had been private and the properties of the temple had belonged to the Tilkayat, it was another matter. 624 But once it is held that the temple is a public temple, it is difficult to accede to the argument that the tenets of the Vallabha cult require as a matter of religion that the properties must be managed by the Tilkayat. In fact, no such tenet has been adduced before us. So long as the denomination believed that the property belonged to the Tilkayat like the temple, there was no occasion to consider whether the management of the property should be in the hands of anybody else. The course of conduct of the denomination and the Tilkayat based on that belief may have spread for many years, but, in our opinion, such a course of conduct cannot be regarded as giving rise to a religious practice under article 25(1). A distinction must always be made between a practice which is religious and a practice in regard to a matter which is purely secular and has no element of religion associated with it. Therefore, we, are satisfied that the claim made by the denomination that the Act impinges on the rights guaranteed to it by article 25(1) and 26(b) must be rejected. That leaves one more point to be considered under article 26(d). It is urged that the right of the denomination to administer its property has virtually been taken away by the Act, and so, it is invalid. It would be noticed that article 26(d) recognises the denomination 's right to administer its property, but it clearly provides that the said right to administer the property must be in accordance with law. Mr. Sastri for the denomination suggested that law in the context is the law prescribed by the religious tenets of the denomination and not a legislative enactment passed by a competent legislature. In our opinion, this argument is wholly untenable. In the context the low means a law passed by a competent legislature and article 26(d) provides that though the denomination has the right to administer its pro perty, it must administer the property in accordance with law. In other words, this clause emphatically 625 brings out the competence of the legislature to make a law in regard to the administration of the property belonging to the denomination. It is true that under the guise of regulating the administration of the property by the denomination, the denomination 's right must not be extinguished or altogether destroyed. That is what this court has held in the case of the Commissioner, Hindu Reli gious Endowments Madras (1) and Ratilal Panachand Gandhi vs The State of Bombay (2). Incidentally, this clause will help to determine the scope and effect of the provisions of article 26(b). Administration of the denomination 's property which is the subject matter of this clause is obviously outside the scope of article 26 (b). Matters relating to the administration of the denomination 's property fall to be governed by article 26(d) and cannot attract the provisions of article 26(b). Article 26 (b) relates to affairs in matters of religion such as the performance of the religious rites or ceremonies, or the observance of religious festivals and the like; it does not refer to the administration of the property at all. Article 26(d) therefore, justifies the enactment of a law to regulate the administration of the denomination 's property and that is precisely what the Act has purported to do in the present case. If the clause " 'affairs in matters of religion" were to include affairs in regard to all matters, whether religious or not the provision under article 26 (d) for legislative regulation of the administration of the denomination 's property would be rendered illusory. It is however, argued that the constitution of the Board in which the administration of the property now vests is not the denomination, and since the administration is now left to the Board, the denomination has been wholly deprived of its right to administer the property. It is remarkable that this plea should be made by the representatives of the (1) ; (2) [1954] S.C.R. 1055. 626 denomination who in their writ petition were prepared to support the Tilkayat in his case that the temple and the properties of the temple were his private property. That apart, we think that the constitution of the Board has been deliberately so prescribed by the legislature as to ensure that the denomination should be adequately and fairly repre sented on the Board. We have already construed section 5 and we have held that section 5 (2) (g) requires that the members of the Board other than the Collector of Udaipur District should not only profess Hindu religion but must also belong to the Pushti Margiya Vallabhi Sampradaya. It is true that these members are nominated by the State Government, but we have not been told how else this could have been effectively arranged in the interests of the temple itself. The number of the devotees visiting the temple runs into lacs ; there is no Organisation which comprehensively represents the devotees as a class there is no register of the devotees and in the very nature of things, it is impossible to keep such a register. Therefore, the very large mass of Vallabh 's followers who constitute the denomination can be represented on the Board of management only by a proper nomination made by the State Government, and so, we are not impressed by the plea that the management by the Board constituted under the Act will not be the management of the denomination. In this connection, we may refer to clause I of the Firman which vested in the Darbar absolute right to supervise the management of the property. As a successor in interest of the Darbar, the state of Rajasthan can be trusted to nominate members on the Board who would fairly represent the denomination. Having regard to all the relevant circumstances of this case; we do not think that the legislature could have adopted any other alternative for the purpose of constituting the Board. Therefore, we must hold that the challenge to the validity of the Act on the 627 ground that it contravenes articles 25 (1), 26 (b) and 26 (d) must be repelled. It still remains to consider the provisions of the Act which have been challenged by the Tilkayat and the denomination as well as those which have been struck down by the High Court and in respect of which the State has preferred appeals. We will take these sections in their serial order. We have considered sections 3, 4, 16, 22 and 34 and have held that these sections are valid because the scheme envisaged by the said sections clearly protects the religious rites, ceremonies and services rendered in the temple and the Tilkayat 's status and powers in respect thereof. The said scheme merely allows the administration of the properties of the temple which is a purely secular matter to be undertaken by the Board, and so, it is not necessary to refer to the said sections again. Section 2 (viii) which defines a temple as including the temple of Shri Navnitpriyaji and Shri Madan Mohanlalji has been struck down by the High Court in regard to the said two subsidiary deities. The High Court has held that the two deities Navnitpriyaji and Madan Mohanlalji are the private deities of the Tilkayat and it was not competent to the legislature to include them within the definition of the temple under section 2 (viii). It was urged before the High. Court that the said two idols had been transferred by the Tilkayat to the public temple and made a part of it, but it has held that there was no gift or trust deed by the Tilkayat divesting himself of all his rights in those two idols and its property and so, the validity of the section could not be sustained on the ground of such transfer. The correctness of this conclusion is challenged by the learned Solicitor General on behalf of the State. In dealing with this question, the conduct of the Tilkayat needs to be examined. On October 15, 1956 a report 628 was made by Mr. Ranawat to the Tilkayat in respect of these two idols. It appears that the grant of some villages in respect of these idols stood in the name of the Tilkayat and after the said villages were resumed by the State, a question arose as to the compensation payable to the owner of the said villages. In that connection, Mr. Ranawat reported to the Tilkayat that it would be to the advantage of the two idols if the said lands along with the idols were treated as a part of the public temple. He cited the precedent of the lands belonging to the Nathdwara Temple in support of his plae. On receiving this report, the Tilkayat was pleased to transfer the ownership of Shri Thakur Navnitpriyaji, Shri Madan Mohanji and Bethaks to the principal temple of Shri Shrinathji. of course, he retained to himself the right and privilege of worship over those temples and Bethaks as in the case of Shrinathji temple. The Tilkayat also expressed his concurrence with the proposal made in this report and signed in token of his agreement. It appears that after orders were issued in accordance with the decision of the Tilkayat, the two temples were treated as part of the bigger temple of Shrinathji. This is evidenced by the resolution which wag passed at the meeting of the Power of Attorney Holders of the Tilkayat on the same day i.e., 15 10 1956. One of the resolutions passed at the said meeting shows that the proposal regarding the temples and Bethaks owned by His Holiness stating therein that His Holiness had been pleased to transfer the ownership thereof to Shrinathji, was considered. That proposal along with the list of temples and Bethaks was produced before the Committee. The Tilkayat was present at the meeting and he confirmed the proposal and put his signature thereon before the Committee. Thereupon, the Committee accepted the proposal with thanks and instructed the Executive Officer to do the needful in that behalf. Thus, the Tilkayat proposed to the Committee of his Power of Attorney 629 Holders that the two idols and their Bethaks should be transferred from his private estate to the principal temple of Shrinathji and that proposal was accepted and thereafter the two idols were treated as part of the principal temple. After this transfer was thus formally completed it appears that the Tilkayat was inclined to change his mind and so, in submitting to the Committee a list of temples and Bethaks transferred by him to the principal temple of Shrinathji, he put a heading to the list which showed that the said transfer had been made for management and administration only and was not intended to be an absolute transfer. This was done on or about November 23, 1956. This conduct on the part of the Tilkayat was naturally disapproved by the Committee and the heading of the list was objected to by it in a letter written on December 31, 1956. To this letter the Tilkayat gave a reply on January 7, 1957, and he sought to explain and justify the wording adopted in the heading of the list. It is thus clear that the heading of the list forwarded by the Tilkayat to the Committee must be ignored because that heading clearly shows a change of mind on the part of the Tilkayat and the question as to whether the two idols form part of the principal temple of Shrinathji must be decided in the light of what transpired on October 15, 1956. judged in that way, there can be no doubt that the Tilkayat solemnly transferred the two idols to the principal temple and in that sense, gave up his ownership over the idols and a formal proposal made in that behalf was accepted by the Committee. In our opinion, the High Court was in error in not giving effect to this transfer on the ground that no gift or trust deed had been duly executed by the Tilkayat in that behalf. A dedication of private property to a charity need not be made by a writing: it can be made orally or even can 630 be inferred from conduct. In the present case, there is much more than conduct in support of the State 's plea that the two idols had been transferred. There is a formal report made by the Manager to the Tilkayat which was accepted by the Tilkayat ; it was followed by a formal proposal made by the Tilkayat to the Committee and the Committee at its meeting formally accepted that proposal and at the meeting when this. proposal was accepted, the Tilkayat was present. Therefore, we must hold that the two idols now form part of the principal temple and have been properly included within the definition of the word "temple" under section 2 (viii). We should accordingly set aside the decision of the High Court and uphold the validity of section 2 (viii). The proviso to section 5 (2) (g) has been attacked by the learned Attorney General. He contends that in making the Collector a statutory member of the Board even though he may not be a Hindu and may not belong to the denomination, the legislature has contravened articles 25 (1) and 26 (b). We have already dealt with the general plea raised under the said two articles. We do not think that the provision that the Collector who is a statutory member of the Board need not satisfy the requirements of section 5 (2) (g), can be said to be invalid. The sole object in making the Collector a member of the Board is to associate the Chief Executive Officer in the District with the administration of the property of the temple. His presence in the Board would naturally help in the proper administration of the temple properties and in that sense, must be treated as valid and proper. This provision is obviously consistent with the State 's right of supervision over the management of the temple properties as specified in the Firman of 1934. Sections 5, 7 and 11 have already been considered by us with particular reference to the possible 631 removal of the Tilkayat under section 7 and its consequences. It may be that in view of the fact that even if the Tilkayat is removed under section 7 (1) (b) and (c) he has to be again nominated to the Board, the legislature may well have exempted the Tilkayat from the operation of section 7 (1) (b) and (c). That, however, cannot be said to make the said provision invalid in law. Sections 10 and 35 have been attacked on the ground that they empower the State Government to leave the administration of the temple property to a non Hindu. It will be noticed that section 10 contemplates that if a Board is dissolved for the reasons specified in it. the Government is required to direct the immediate reconstitution of another Board and that postulates that the interval between the dissolution of one Board and the constitution of a fresh Board would be of a very short duration. If the legislature thought it necessary to provide for the management of the temple properties for such a short period on an ad hoc basis, the provision cannot be seriously challenged. What is true about this provision under section 10, is equally true about the transitional provision in section 35. A part of section 16 has been struck down by the High Court in so far as it refers to the affairs of the temple. This section authorises the Board to manage the properties and affairs of the temple. The High Court thought that the expression " 'affairs of the temple" is too wide and may include religious affairs of the temple; and since in managing these affairs of the temple, the section does not require that the management should be according to the customs and usages of the denomination, it came to the conclusion that the clause "affairs of the temple" is invalid and should, therefore, be struck down. We are not satisfied that this view is correct. In the context the expression ""affairs of the temple" 632 clearly refers to the purely secular affairs in regard to the administration of the temple. Clearly, section 16 cannot be construed in isolation and must be read long with section 22. that is why it has been left to the Board to manage the properties of the temple as well as the purely secular affairs of the temple, and so, this management need not be governed by the custom and usage of the denomination. If the expression "affairs of the temple" is construed in this narrow sense as it is intended to be, then there is no infirmity in the said provisions. We may add that the ex pression "affairs of the temple" has been used in i. 28 (1) of the Madras Hindu Religious and Charitable Endowments Act No. 22 of 1959 in the same sense. Therefore, we would hold that the High Court was in error in striking down the clause "affairs of he temple" occuring in section 16. The next section to consider is section 21. This section gives to the Board complete power of appointment, suspension, removal, dismissal, or imposition of Lily other punishment on the officers and servants of .he temple or the Board, the Chief Executive Officer being exempted from the operation of this section. It has been urged before us that this section might include even the Mukhia and the Assistant Mukhia who are essentially religious officers of the temple concerned with the performance of religious rites and services to the idols; and the argument is that if they are made the servants of the Board and are not subjected to the discipline of the Tilkayat, that would be contrary to article 25 (1) and 26 (b) of the Constitution. In considering this argument, we must have regard to the fact that the Mukhia and the Assistant Mukhia are not only concerned with the religious worship in the temple, but are also required to handle jewellery and ornaments of a very valuable order which are put on the idol and removed from the idol every day, and the safety of the said valuable jewellery is a secular matter within 633 the jurisdiction of the Board. That is why it was necessary that the Board should be given jurisdiction over those officers in so far as they are concerned with the property of a temple. We have no doubt that in working out the Act, the Board will act reasonably and fairly by the Tilkayat and nothing will be done to impair his status or to affect his authority over the servants of the temple in so far as they are concerned with the religious part of the worship in the temple. Since the worship in the temple and the ceremonies and festivals in it are required to be conducted according to the customs and usages of the denomination by section 16, the authority of the Tilkayat in respect of the servants in charge of the said worship and ceremonies and festivals will have to be respected. It is true that soon after the Act was passed and its implementation began, both parties appeared to have adopted unhelpful attitudes. We were referred at length to the correspondence that passed between the Tilkayat and the Committee in respect of some of these matters. We do not think it necessary to consider the merits of that controversy because we are satisfied that once the Act is upheld, it will be implemented by the Board consistently with the true spirit of the Act without offending the dignity and status of the Tilkayat as a religious head in charge of the temple and the affairs in matters of religion connected with the temple. Therefore, we do not think it would be right to strike down any part of section 21 as suggested by the learned Attorney General. The validity of section 27 has been challenged by the learned Attorney General on the ground that it empowers the State Government to depute any person to enter the premises of the temple, though, in a given case, such a per son may not be entitled to make such an entry. Even a non Hindu person may be appointed by the State Government to inspect the properties of the temple and if he insists upon making an entry in the temple, that would contravene the provisions 634 of article 25 (1) and 26 (b) of the Constitution; that is the argument urged in support of the challenge to the validity of section 27. We do not think there is any substance in this argument. All that the section does is to empower the State Government to depute a person to inspect the properties of the temple and its records, correspondence, plans, accounts and other relevant documents. We do not think that the section constitutes any encroachment of the rights protected by article 25 (1) or article 26 (b). If the administration of the properties of the temple has been validly left to the Board constituted under the Act, then the power of inspection is necessarily incidental to the power to administer the properties, and so in giving the power to the State Government to depute a person to inspect the properties of the temple, no effective complaint can be made against the validity of such a power. The fear expressed by the learned Attorney General that a non Hindu may insist upon entering the temple in exercise of the authority conferred on him by the State Government under section 27 is, in our opinion, far fetched and imaginary. We are satisfied that the power of inspection which the State Government may confer upon any person under section 27 is intended to safeguard the proper administration of the properties of the temple and nothing more. Therefore, we do not think that section 27 suffers from any constitutional infirmity. In this connection, we may add that a similar provision contained in the Madras Religious Endowments Act has been upheld by this Court in the case of The Commissioner, Hindu Religious Endowments, Madras (1). That takes us to section 28 (2) and (3). These two sub sections have been struck down by the High Court because it thought, that they were inconsistent with the view expressed by this Court in the case of Ratilal Panachand Gandhi (2). While discussing the validity of these two sub sections, the High Court has observed "that without entering into an elaborate (1) ; (2) [1954] S.C.R.1055, 635 discussion on the point, we may point out that such provision has been held to be invalid by the Supreme Court in the case. of Ratilal Panachand Gandhi" (1). The learned Solicitor General contends and we think, rightly, that the observations on which the High Court has relied support the validity of the two subsections and are inconsistent with the decision of the High Court itself. In the case of Ratilal Panachand Gandhi (1), this Court was dealing with the validity of sections 55 and 56 of the Bombay Public Trusts Act. 1950 (No. 29 of 1930). Section 55 of the said Act purported to lay down the rule of cy pres in relation to the administration of religious and charitable trust; and section 56 dealt with the powers of the courts in relation to the said application of cy pres doctrine. This Court observed that these two sections purported to lay down how the doctrine of cy pres is to be applied in regard to the administration of public trust of a religious or charitable character; and then it proceeded to examine the doctrine of cy pres as it was developed by the Equity Courts in England and as it had been adopted by our Indian Courts since a long time past. 'La the opinion of this Court, the provisions of sections 55 and 56 extended the said doctrine much beyond its recognised limits and further introduced certain principles which ran counter to well established rules of law regarding the administration of charitable trusts. It is significant that what the impugned sections purported to authorise was the diversion of the trust property or funds for purposes which the Charity Commissioner or the court considered expedient or proper although the original objects of the founder could still be carried out and that was an unwarrantable encroachment on the freedom of religious institutions in regard to the management of their religious affairs. In support of this view, the tenets of the Jain religion were referred to and it was observed that apart from the tenets of the Jain religion, it would be a violation of the freedom of religion and of the right which a religious (1) 636 denomination has, to manage its own affairs in matters of religion, to allow any secular authority to divert the trust money for purposes other than those for which the trust was created. On this view, section 55 (3) which contained the offending provision, and the corresponding provision relating to the. powers of the Court occurring in the latter part of section 56 (1) were struck down. In this connection, it is, however, necessary to bear in mind that in dealing with this question, this Court has expressly observed that the doctrine of cy pres can be applied where there is a surplus left after exhausting the purposes specified by the settler. In other words, the decision of this Court in the case of Ratilal Panachand Gandhi (1), cannot be applied to the provisions of section 28 (2) and (3) which deal with the application of the surplus in fact after this decision was pronounced, the relevant provision of the Bombay Act has been amended and the application of the doctrine of cy pres is now confined to the surplus available after the purposes of, the trust have been dealt with. The High Court has not noticed the fact that section 28 (2) and (3) dealt with the application of the surplus funds and that postulates that these two sub sections can be invoked only if and after the main purposes of the public temple have been duly satisfied. Therefore, we hold that the High Court was in error in striking downs. 28 (2) and (3) on the ground that they are inconsistent with the decision of this Court in the case of Ratilal Panachand Gandhi (1). We may add that this position was not seriouly disputed before us by the learned Attormey General. The next section is 30 (2) (a). It confers on the State Government the power to make rules in respect of the qualifications for holding the office of and the allowances payable to the Goswami. This sub section has been struck down by the High Court and the learned Solicitor General does not quarrel with the conclusion of the High Court. He has, however, fairly conceded that though the first part of (1) [1954] S.C.R. 1055. 637 section 30 (2) (a) may be struck down, the latter part need not be struck down. This latter part allows rules to be framed by the State Government in regard to the allowances payable to the Goswami. We think it is but fair that this part should be upheld so that a proper rule can be made by the State Governmernt determining the quantum of allowances which should be paid to the Goswami and the manner in which it should be so paid. We would, therefore strike down the first part of section 30 (2) (a) and uphold the latter part of it which has relation to the allowances payable to the Goswami. The two parts of the said sub section are clearly severable and so, one can be struck down without affecting the other. In regard to section 36, the High Court thought that it gives far too sweeping powers to the Government and so, it has struck it down. Section 36 merely empowers the Government to give such directions as may be necessary to carry out the objects of the Act in case a difficulty arises in giving effect to the provisions of the Act. We may, in this connection, refer to the fact that a similar provision is contained in section 36 of the jagannath Temple Act (Orissa 11 of 1955). The object of section 36 in the Act is merely to remove difficulties in the implementation of the Act. It is in that sense that the section must be narrowly construed and the scope and ambit of the power conferred on the State Government be circumscribed. If the section is so construed, it would not be open to any serious objection. Therefore, we are satisfied that the High Court was in error in striking down this section on the ground that the powers conferred on the State Government are too wide. That take us to section 37 which has been struck down by the High Court on the ground that it can be utilised as a defence to a suit under section 31. We have already noticed that section 31 empowers a person having an interest to institute a suit for obtaining any of the 638 reliefs specified in clauses (a) to (e) of that section. The High Court thought that section 37 may introduce an impediment against a suit brought by a private individual under section 31. We are satisfied that the High Court was in error in taking this view. All that this section purports to do is to provide for a bar to any suits or proceedings against the State Government for any thing done or purported to be done by it under the provisions of the Act. Such provisions are contained in many Acts, like, for instance, Acts in regard to Local Boards and Municipalities. It is true that section 37 does not require that the act done or purported to be done should be done bona fide, but that is presumably because the protection given by section 37 is to the State Government and not to the officers of the State. The effect of the section merely is to save acts done or purported to 'be done by the State under the provisions or the Act; it cannot impinge upon the rights of a citizen to file a suit under section 31 if it is shown that the citizen is interested within the meaning of section 31 (1). We are inclined to hold that the High Court has, with respect, misjudged the true scope and effect of the provisions of section 37 when it struck down the said section as being invalid. We must accordingly reverse the said conclusion of the High Court and uphold the validity of section 37. The result is that the appeals preferred by the Tilkayat, the denomination and Ghanshyamlalji fail and are dismissed. So does the writ petition filed by the Tilkayat fail and the same is dismissed. The appeals preferred by the State substantially succeed and the decision of the High court striking down as ultra vires part of section 2 (viii) in relation to the idols of Navnitpriyaji and Madan Mohanlalji; part of section 16 in so far as it refers to the affairs of the temple; section 28 (2) and (3), section 36 and section 37 is reversed. We however, confirm the decision of the High Court in so far as it has struck down section 30 (2) (a) in regard to 639 the qualifications for holding the office of the Goswami but we reverse its decision in so far as it relates to the latter part of section 30 (2) (a) which deals with the allowances payable to the Goswami. In the circumstances of this case, we direct that parties should bear their own costs throughout. Appeal dismissed.

IN-Abs

The history of the Nathdwara Temple in the District of Udaipur showed that Vallabha, who was the founder of the denomination known as Pushtimargiya Vaishnava Sampradaya, installed the idol of Srinathji in a temple and that later on his descendants built the Nathdwara Temple in 1761. The religious reputation of the temple grew in importance and several grants were made and thousands of devotees visiting the temple made offering to the temple. The succession to the Gaddi of the Tilkayat received recognition from the Rulers of Mewar, but on several occasions the Rulers interfered whenever it was found that the affairs of the temple were not managed properly. In 1934 a Firman was issued by the Udaipur Darbar, by which, inter alia, it was declared that according to the law of Udaipur all the property dedicated or presented to or otherwise coming to the Deity Shrinathji was property of the shrine, that the Tilkayat Maharaj for the time being was merely a custodian, Manager and Trustee of the said property and that the Udaipur Darbar had absolute right to supervise that the 562 property dedicated to the shrine was used for the legitimate purposes of the shrine. The management of the affairs ' by the appellant Tilkayat was not successful and it became necessary that a scheme should be framed for the management of the Temple. On February 6, 1939, the Governor of Rajasthan promulgated an Ordinance, which was in due course replaced by the Nathdwara Temple Act, 1939. The appellant challenged the validity of the Act on the grounds, inter alia, that the idol of Shrinathji in the Nathdwara Temple and all the property pertaining to it were his private properties and, as such, the State Legislature was not competent to pass the Act, that even if the Nathdwara Temple was held to be a public temple, he as Mahoney or Shebait had a beneficial interest in the office of the high priest as well as the properties of the temple and that on that footing, his rights under articles 14, 19 (1) (f) and 31 (2) of the Constitution of India had been contravened by the Act. it was also urged that the provisions of the Act infringed the fundamental rights guaranteed to the Denomination under article 55 (1) and 26 (b) and (c) of the Constitution. The question was also raised as to Whether the tenets of the Vallablia denomination and its religious practices required that the worship by the devotees should be performed at the private temple and so the existence of public temples was inconsistent with the said tenets and practices. Held, (1) that neither that tenets nor the religious prac tices of the ' Vallablia school necessarily postulate that the followers of the school must worship in a private temple. (2)that in view of the documentary evidence in the case it could not be held that the temple was built by the Tilkayat of the day as his private temple or that it still continues to have the character of a private temple; that though from the outside it had the of a Haveli, the majestic structure inside was consistent with the dignity of the idol and with the character of the temple as a public temple. (3)that ail absolute monarch was the fountain head of all legislative, executive and judicial powers, that it was of the very essence of sovereignty which vested in him that he could supervise arid control the administration of public charity, and that this principle applied as much to Hindu monarchs as to ,my other absolute monarch. Any order issued by such a Ruler would have the force of law and govern the rights of the parties affected there by and that, accordingly, the Firman issued by the Maharana of Udaipur in 1934 was a law by which the affairs of the Nathdwara Temple were governed after its issue, 563 Madhaorao Phalke vs The State of Madhya Bharat, [1961] 1 section C. R. 957, relied on. (4)that under the law of Udaipur the Nathdwara Temple was a public temple and that the Tilkayat was no more than the Custodian, Manager and Trustee of the property belonging to the temple. (5)that having regard to the terms of the Firman of 1934 the right claimed by the Tilkayat could not amount to a right to property under article 19 (1) (f) or constitute property under article 31 (2) of the Constitution,; that even if it were held that this right constituted a right to hold property, the restrictions imposed by the Act must be considered as reasonable and in the interests of the public under article 19 (5). Vidya Varuthi Thirtha vs Balusami Ayyar, (1921) L. R. 48 1. A. 302 and the Commissioner Hindu Reliqious Endowment,Madras vs Sri Lakshmindra Tirtha Swamiar of Sri Shirur Mutt; , , considered. (6) that the Act was not invalid on the ground of discrimination under article 14. Shri Ram Krishna Dalmia vs Shri Justice section R. Tendolkar, ; , relied on. (7)that the right to manage the properties of a temple was a purely secular matter and could not be regarded as a religious practice under article 25 (1) or as amounting to affairs in matters of religion under article 26 (b). Consequently, the Act in so fit, as it provided for the management of the properties of the Nathdwara Temple tinder the provisions of the Act, did not contravene articles 25 (1) and 26 (b). The Durgah Committee, Ajmer vs Syed Hussain Ali, [1962] 1 section C. R. 333, referred to. (8)that the expression "Law" in article 26 (d) meant a law passed by a competent legislature and under that Article the legislature was competent to make a law in regard to the ad. ministration of the property belonging to the denomination and that the provisions of the Act providing for the constitution of a Board to administer the property were valid. Ratilal Panachand Candhi vs The State of Bombay, , referred to. 564 (9)that the scheme envisaged by sections 3, 4, 16, 22 and 34 of the Act merely allowed the administration of the Properties Of the temple which was a purely secular matter to be undertaken by the Board and that the sections were valid. (10)that under section 5 (2) (g) it was necessary that the members of the Board other than the Collector of Udaipur District should not only profess Hindu religion but must also belong to the Pushti Margiya Vallabhi Sampradaya; and that the proviso to section 5 (2) (g) which enabled a Collector to be a statutory member of the Board even though he may not be a Hindu and may not belong to the denomination, did not contravene articles 25 (1) and 26 (b). (11) that the expression "affairs of the temple" in section 16 referred only the purely secular affairs in regard to the administration of the temple and that the section was valid. (12)that section 30 (2) (a) in so far as it conferred on the State Government power to make rules in respect of the qualifications for holding the office of the Goswami, was invalid. (13)that sections 5, 7, 10, 11, 21, 27. 28, 35, 36 and 37 were valid.

Appeal No. 301 of 1961. Appeal from the judgment and order dated March 10, 1960, of the Allahabad High Court (Lucknow Bench) in Special Appeal No. 40 of 1959. K. section Hajela, and C. P. Lal, for the appellant. K. L. Gosain and Naunit Lal, for the respondent. March 4. The short point of law which arises in this appeal relates to the construction of Rule 4 (2) of the Uttar Pradesh Disciplinary Proceedings (Administrative Tribunal) Rules, 1947 (hereinafter called the Rules). That question arises in this way. The respondent Jogendra Singh was appointed a Naib Tehsildar under the appellant, the State of U. P. in the year 1937. On August 4, 1952, he was suspended as complaints had been received against him and an enquiry into the said complaints was contemplated. Accordingly, charges were framed against him and his case was referred for investigation to the Administrative Tribunal appointed under the Rules. The Tribunal held an enquiry and exonerated the respondent from the charges framed against him, in August 1953. While the proceedings before the Tribunal were pending, additional complaints were received by the 199 appellant against the respondent 's conduct, and they were communicated by the appellant to the Tribunal with an intimation that the appellant proposed to send those further charges against the respondent for enquiry. The Tribunal did not wait for receipt of the said additional charges because it was asked by the government to proceed with the charge already with it and concluded its enquiry. That is why on October 28, 1955, the respondent was again suspended and charges framed on the additional complaints received against him were delivered to him on October 29, 1956. On November 12, 1956, the respondent submitted his explanation and pleaded that in case the appellant wanted to pursue the enquiry against him, it might be entrusted to the Administrative Tribunal in accordance with the Rules. On June 28, 1958, the Deputy Secretary, Board of Revenue, U. P., informed the respondent that in accordance with the orders passed by the appellant his case had been entrusted to the Commissioner, Gorakhpur Division, with directions to take disciplinary proceedings against him, and his request that the charges against him, should be entrusted for investigation to the Administrative Tribunal had been rejected. Thereupon, the respondent filed a writ petition in the High Court of judicature at Allahabad on July 14, 1958, and prayed that a writ, or a direction or an appropriate order should be passed against the appellant quashing the proceedings intended to be taken against him before the enquiring officer appointed by the appellant under Rule 55 of the Civil Services (classification, Control and Appeal) Rules. The learned single judge who heard the writ petition held that the respondent being a gazetted officer, the appellant was bound to grant his request that the enquiry against him should be 200 held by the Administrative Tribunal appointed Under the Rules. That is why the writ petition was allowed and the order directing the enquiry to be held by the appointed authority under Rule 55 of the said Civil Services Rules was quashed. This order was challenged by the appellant by an appeal under the Letters Patent before a Division Bench of the said High Court. The Division Bench agreed with the view taken by the learned single judge and dismissed the appeal. The appellant then applied for and obtained a certificate from the said High Court and it is with the said certificate that it has come to this Court. Mr. Hajela for the appellant contends that the conclusion reached by the Courts below is not supported on a fair and reasonable construction of Rule 4 (2) of the Rules. The appellant 's case is that in the State of U. P. it is competent to the Governor to direct that disciplinary proceedings against the officers specified in Rule 4 of the Rules should be tried before /an Administrative officer, but there is no obligation on the Governor in that behalf. The Governor may, if he so decides direct that the said enquiry may be held under Rule 55 of the Civil Services Rules and conducted by an appropriate authority appointed in that behalf. Whether the enquiry should be held by the Administrative Tribunal, or by an appropriate authority, is a matter entirely within the discretion of the Governor. On the other hand, the High Court has held that so far as cases of gazetted government servants arc concerned, they are covered by Rule 4 (2) of the Rules and on a fair construction of the said Rule, it is clear that if @ gazetted government servant requests that the enquiry against him should be held by the Administrative Tribunal, the Governor is bound to grant his request. So, the narrow point which arises 201 for our decision is which of the two views can be said to represent correctly the effect of Rule 4 (2) of the Rules. Rule 4 reads as follows: "4. (1) The Governor may refer to the tribunal cases relating to an individual government servant or class of government servants or government servants in a particular area only in respect of matters involving : (a) corruption; (b) failure to discharge duties properly . (c) irremediable general inefficiency in a public servant of more than ten years ' standing; and (d) personal immorality. (2) The Governor may, in respect of a gazetted government servant on his own request, refer his case to the Tribunal in respect of matters referred to in sub rule (1). " It would be noticed that Rule 4 (1) confers discretion on the Governor to refer to the Tribunal cases failing under clauses (a) to (d) in respect of servants specified by the first part of sub rule (1). In regard to these cases, the government servant concerned cannot claim that the enquiry against him should not be held by a Tribunal and the matter falls to be decided solely in the discretion of the Governor. It is also clear that amongst the classes of servants to whom sub rule (1) applies, gazetted government servants are included, so that if Rule 4 (1) had stood by itself, even gazetted government servants would have no right to claim that the enquiry against them should not be held by a Tribunal. 202 It is in the light of this provision that rule 4 (2) has to be considered. Rule 4 (2) deals with the class of gazetted government servants and gives them the right to make a request to the Governor that their cases should be ' referred to the Tribunal in respect of matters specified in clauses (a) to (d) of sub rule (1). The question for our decision is whether like the word " may" in rule 4 (1) which confers the discretion on the Governor, the word ",may" in subrule (2) confers discretion on him, or does the word ,(may" in sub rule (2) really mean "shall" or " 'must" ? There is no doubt that the word " 'may" generally does not mean "must" or "shall". But it is well settled that the word "may" is capable of meaning "must" or " 'shall" in the light of the context. It is also clear that where a discretion is conferred upon a public authority coupled with an obligation, the word "may" which denotes discretion should be construed to mean a command. Sometimes, the legislature uses the word "may" out of deference to the high status of the authority on whom the power and the obligation are intended to be conferred and imposed. In the present case, it is the context which is decisive. The whole purpose of rule 4 (2) would be frustrated if the word "may" in the said rule receives the same construction as in sub rule (1). It is because in regard to gazetted government servants the discretion had already been given to the Governor to refer their cases to the tribunal that the rule making authority wanted to make a special provision in respect of them as distinguished from other government servants falling under rule 4 (1) and rule 4 (2) has been prescribed, otherwise rule 4 (2) would be wholly redundant. In other words, the plain and unambiguous object of enacting rule 4 (2) is to provide an option to the gazetted government servants to request the Governor that their cases should be tried by a Tribunal and 203 not otherwise. The rule making authority presumably thought that having regard to the status of the gazetted government servants, it would be legitimate to give such an opinion to them. Therefore, we feel no difficulty in accepting the view taken by the High Court that rule 4(2) imposes an obligation on the Governor to grant a request made by the gazetted government servant that ' his case should be referred to the Tribunal under the Rules. Such a request was admittedly made by the respondent and has not been granted. Therefore, we are satisfied that the High Court was right in quashing the proceedings proposed to be taken by the appellant against the respondent otherwise than by referring his case to the Tribunal under the Rules. The appeal accordingly fails and is dismissed with costs. Appeal dismissed.

IN-Abs

The respondent was appointed a Naib Tehsildar under the appellant, in the year 1937. On August 4, 1952, he was suspended on complaints received against him and his case was referred for investigation to the Administrative Tribunal appointed under the Rules. While the proceedings were pending, additional complaints were received by the appellant against his conduct and they were communicated to the Tribunal with an intimation that the appellant proposed to send those further charges against the respondent for enquiry. The Tribunal did not wait for receipt of the said additional charges and on enquiry exonerated him from the charges framed against him, in August, 1952. On October 28, 1956, the respondent was again suspended and the charges framed on the additional complaints were delivered to him. The respondent submitted his explanation and pleaded that the enquiry might be entrusted to the Administrative Tribunal in accordance with the Rules; but his request was rejected and the case was entrusted to the Commissioner with directions to take disciplinary proceeding , against him. The High Court allowed the writ petition of the respondent and the order directing the enquiry to be held by the appointed authority under r. 55 of the said Civil Services Rules was quashed. The question for decision in this Court was, whether like the word "may" in r. 4 (1) which confers the discretion on the Governor, the word "may" in sub r. (2) confers discretion on him, or does the word "may" in sub r.(2) really mean "shall" or "must". Held, that the whole purpose of r. 4 (2) would be frustrated if the word ,may" in the said rule receives the same construction as in sub r. The plain and unambiguous object of enacting rule 4 (2) is to provide an option to the 198 . Gazetted Government servants to request the Governor that their cases should be tried by a Tribunal and not otherwise. Thus r. 4 (2) imposes an obligation on the Governor to grant a request made by the Gazetted Government Servant and such a request not having been granted in the present case, the appeal must fail.

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

IN-Abs

The plaintiff, Ramanathan Chettiar, obtained a decree in O. section No. 45 of 1943 for the recovery of an amount due on promissory note against one Venkatachalam Chettiar and assigned the decree in favour of the appellant in C. A. 105 of 1961. The execution application filed by him proved infructuous because the first defendant was adjudicated an insolvent on February 27, 1945. On September 9, 1946 a composition of the debts due from the insolvent and his son, the second defendant, was arrived at. To the deed of composition the second defendant was also a party though he was not adjudicated an insolvent. Under that deed the creditors, including the four appellants in this case, agreed to take 40% of the dues. Under the composition arrangement, the entire property of the defendants, both in India and in Burma was to vest in four trustees, one of whom was the insolvent that is, the first defendant to the suit. Two of the trustees were the present appellant in C A. No. 104 of 1961 and the fourth trustee was an outsider. The deed provided for the payment of the reduced amount by the trustees to different creditors from the income of the properties or by sale or mortgage of those properties within tour years from April 14, 1947. Tile deed further provided for the extension of this time limit "according to exigencies and necessity it the discretion of the first two trustees" i. e., the first defendant and the appellant Chidambaram Chettiar. The composition contemplated the realisation of the dues of the creditors front the income or sale or mortgage of the Barma property, in the first instance. The composition scheme was accepted by the insolvency court and the adjudication of the first defendant as insolvent was annulled by the court on December 19, 1946. Out of the Burma assets very little was realised within the period of four years prescribed in the composition deed and the trustees did not extend the time. 242 The appellants, therefore, sought execution of their decrees against the Indian assets. The last execution application in O. section No. 46 of 1943 was dismissed on September 19, 1946, and no petition was filed thereafter till 'June 13, 1952. Similarly in the other three appeals execution applications were filed more than three years after the dismissal of the previous applications. In each of the execution applications, relief was claimed only against the second defendant. The Subordinate Judge, before whom the execution applications were filed, held that the adjustment precluded each of the appellants from executing his decree for a period of four years from April 14, 1947 and, therefore, the execution applications were within time. The High Court disagreed with the Subordinate Judge and holding that the execution petitions were barred by time allowed the appeals. The main contention of the appellants in this Court was that the principle underlying section 15 (1) of the Limitation Act applied to the present case and at any rate the letter written by the second defendant to the trustees operated as an acknowledgment of liability under section 19 of the Limitation Act. Held, that section 15 (1) of the Limitation Act is restricted in its application to a case where the execution of a decree has been stayed by an injunction or an order. The Limitation Act is a piece of adjective or procedural law and not of substantive law. Rules of Procedure cannot be extended by analogy or reference to proceedings to which they do not expressly apply or could be said to apply by necessary implication. Suspension of Limitation in circumstances of the kind obtaining in these appeals is neither explicit nor implicit in section 15 upon which reliance is placed by the appellants. Govind Naik Gurunathnaik vs Basawannawa Parutappa, 1. L.R. , Pulin Chandra Sen vs Amin Mia Muzaffar Ahmad, A. I.R.1933 Cal. 508, Lakhan Chunder Sen vs Madhusudan Sen, (1907) 1. L. R. , Nrityamoni Dassi vs Lakhan Chandra Sen, ( 1916) 1. L. R. , Badruddin Khan vs Mahyar Khan, I. L. R. 1939 All. 103 and Managing Committee Sunder Singh Malha Singh Rajput High School, Indore vs Sunder Sigh Malha Singh Sanatan Dharma Rajput High School Trust, I. L. R. , distinguished. Held, further, that in the present appeals two different sets of persons, the defendants and the Trustees were liable and their respective liablities were distinct. To refer to a liablility resting on some one else was not to acknowledge one 's own liability within the meaning of the word in section 19. The defendant No. 2 had not even indirectly referred to the 243 decree much less to the liability arising under any of them. In the circumstances it must be held that the letter dated April 19, 1949, did not extend the period of limitation. Khan Bahadur Shapoor Freedom Mazda vs Durga Prosad Ckamaria , held inapplicable

Appeal No. 45 of 1961. Appeal from the judgment and decree dated April 16, 1959, of the Punjab High Court at Chandigarh in Regular First Appeal No. 30 of 1952. section P. Verma, for the appellants. B. P. Maheshwari, for respondent. March 7. The Judgment of the Court was delivered by SUBBA RAO J. This appeal raises the question whether a suit would lie in a civil Court claiming refund of the terminal tax collected by a municipality under the provisions of the Punjab Municipal Act, 1911 (Punjab Act III of 1911), hereinafter called the Act. The appellant is alleged to be a firm registered under the Indian Partnership Act. It carries on 276 business within the limits of the Ludhiana Municipality. It imported Sambhar salt into the octroi limits of the Ludhiana Municipality. The Municipal Committee, Ludhiana, imposed terminal tax on the said salt and the appellant paid a sum of Rs. 5,893/7/0 towards the said tax between October 24, 1947 and December 8, 1947. Under the Punjab Government Notification No. 26463, dated July 21, 1932, terminal tax was payable under item 68 of the Schedule attached to the said Notification at the rate of 3 pies per maund in respect of salt common, and under item 69 at the rate of As./10/ per maund in respect of salt of all kinds other than common salt. The Municipal Committee, Ludhiana, collected terminal tax on the Sambhar salt at the higher rate under item 69 of the Schedule on the ground that it did not fall under item 68 of the Schedule. The appellant filed a suit against the respondent in the Civil Court, Ludhiana, claiming refund of the said amount with interest. The respondent, inter alia, contended that Sambhar salt was not common salt and the Civil Court had no jurisdiction to entertain the suit. The Senior Subordinate judge, Ludhiana, held that Sambhar salt was common salt within the meaning of item 68 of the Schedule, that the imposition of tax on it by the respondent under item 69 of the Schedule was illegal and that, therefore, the Court had jurisdiction to entertain the suit. On appeal, the High Court of Punjab proceeded on the assumption that Sambhar salt was salt common, but held that, even so, the Civil Court had no jurisdiction to entertain the suit as the Act provided for a remedy by way of appeal against the wrong orders of the authorities thereunder. It further held that, in any view, the suit was premature as the appellant should have pursued his remedies under the Act before coming to the Civil Court. In the result, the decree of the Subordinate judge was set aside and the suit was dismissed. The 277 present appeal has been preferred by the appellant by way of certificate issued by the High Court. Mr. Varma, learned counsel for the appellant, contends that the respondent has no power to impose terminal tax on salt common under item 69 of the Schedule to the said Notification and therefore the tax having been imposed contrary to the provisions of the Act, the Civil Court has jurisdiction to entertain the suit. On the other hand, Mr. Maheshwari, learned counsel for the respondent, argues that the respondent has power to impose terminal tax on common salt under the provisions of the Act, that the imposition of tax under a wrong entry could be rectified only in the manner prescribed by the Act and that the Civil Court has no jurisdiction to entertain a suit for the refund of tax collected when a specific remedy is available under the Act. It would be convenient at the outset to notice the relevant provisions of the Act. Under section 61 (2) the Municipal Committee has power to impose, with the previous sanction of the State Government, any tax which the State Legislature has power to impose in the State, subject to any general or special orders which the State Government may make in that behalf. The State Government issued the Notification No. 26463 dated July 24, 1932 to come into force from November 1, 1932 empowering the Municipal Committee to impose terminal tax at the rates shown in Col. 3 of the Schedule attached thereto upon the articles mentioned in Col. 2 thereof which are imported into or exported out of the municipal limits by rail or by road. The relevant items are items 68 and 69. Item 63 is "salt common" and the rate prescribed is 3 pies per maund; and item 69 is "salt of all kinds other than common salt" and the rate fixed is As. /10/ per maund. Section 78 provides for a penalty if any person brings any article liable to the 278 payment of terminal tax into the prescribed limits without paying the said tax. Section 84 gives a right of appeal. against any levy or refusal to refund any tax collected under the Act to the Deputy Com missioner or such other officer as may be empowered by the State Government in that behalf ; under sub section (2) thereof, if on hearing of an appeal under the section. , any question as to the liability to, or the principle of assessment of a tax arises, on which the officer hearing the appeal entertains reasonable doubt, he may,. either of his own motion or on the application of any person interested, state the case and refer the same for the opinion of the High Court; and after the High Court gives its opinion on the question referred to it, the appellate authority shall proceed to dispose of the appeal in conformity with the decisions of the High Court. Under section 86, the liability of any person to be taxed cannot be questioned in any manner or by any authority other than that provided in the Act; under sub section (2) thereof, no refund of any tax shall be claimed by any person otherwise than in accordance with the provisions of the Act and rules thereunder. It will be seen from the aforesaid provisions that the power to impose a terminal tax and the liability to pay the same is conferred or imposed on the municipal com mittee and the assessee respectively by the provisions of the Act. The Act also gives a remedy to an aggrieved party to challenge the correctness of the leavy or to seek refund of the same. Not only an appeal has been provided for against the order of municipal committee levying the tax or refusing to refund the same, but the appellate authority is empowered to get an authoritative opinion of the High Court on any question as to the liability or on the principle of assessment; and on receiving such opinion, the said authority is bound to dispose of the appeal in the light of the said opinion. It is said that the reference provided to the High Court is in the discretion of the appellate authority and he can 279 with impunity refuse to do so, even if any difficult question is involved in the appeal. The question is not whether a particular officer abuses his power but whether a remedy is available under the Act or not. It cannot be assumed that an officer, though he entertains reasonable doubt on the question as to liability or on the principle of assessment, he will deliberately and maliciously refuse to do his duty : if he does, other remedies may be available. The Act also in specific terms debars any authority other than that prescribed under the Act from deciding the question of liability of any person to tax or his right to get refund of a tax paid. In short, the Act contains a self contained code conferring a right, impossing a ability and prescribing a remedy for an aggrieved party. In such a situation, the question arised whether a Civil Court can entertain a suit for a refund of the tax wrongfully collected from an assessee; and if so, what are the limits of its jurisdiction ? We shall now proceed to consider the relevant principles governing the said question. Willes, J., in Wolverhamton New Waterworks Co. vs Hawkesford (1), describes as follows the three classes of cases in which a liability may be established founded upon a statute : "One is, where there was a liability existing at common law, and that liability is affirmed by a statute which gives a special and peculiar form of remedy different from the remedy which existed at common law : there, unless the statute contains words which expressly or by necessary implication exclude the common law remedy the party suing has his election to pursue either that or the statutory remedy. The second class of case is, where the statute gives the right to sue merely, but provides no particular from of remedy : there, the party (1) ; , 356. 280 can only proceed by action at common law. But there is a third class, viz., where a liability not. existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it. . The remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class. " It is clear from the said passage that in a case where the liability is created by a statute, a party aggrieved must pursue the special remedy provided by it and he cannot pursue his remedy in a Civil Court. This principle was approved by the Judical Committee in Secretary of State vs Mask and Co. (1). The High Courts in India also accepted the principle and applied it to different situations : see Bhaishankar Nanabhai vs The Municipal Corporation of Bombay (2); Zamindar of Ettayapuram vs Sankarappa (3). But there is also an equally well settled principle governing the scope of the Civil Court 's jurisdiction in a case where a statute created a liability and provided a remedy. Lord Macnaghten in East Fremantle Corporation vs Annois (4), states the principles thus : "The law has been settled for last hundred years. If persons in the position of the appellants, acting in the execution of a public trust and for the public benefit, do an act which they are authorised by law to do, and do it in a proper manner, though the act so done works a special injury to a particular individual, the individual injured cannot maintain an action. In a word, the only question is, 'Has the power been exceeded? ' Abuse is only one form of excess." In Gaekwar Sarkar of Baroda vs Gandhi Kachrabhai(5) the defendants by the negligent construction of railway made in exercise of their powers under the (1) (1940) L.R. 67 I.A 222. (3) Mad. (5) Bom. (2) Bom. (4) 281 Railways Act had caused the plaintiff 's land to be flooded in the rainy season and consequently damaged. The Railways Act provided that a suit shall not lie to recover Compensation for damage caused by the exercise of the powers thereby conferred, but that the amount of such compensation shall be determined in accordance with the Land Acquisition Act, 1870. In spite of this bar the plaintiff brought a suit for damages for injury alleged to have been caused to his field. It was argued that though the statutory authority of the Act, of 1890 might have been abused or exceeded, the of the aggrieved party was only to proceed under the Land Acquisition Act and not by a civil suit. Rejecting that plea the judicial Committee observed: "It would be simply a waste of time to deal seriously with such contentions as these. It has been determined over and over again that if a person or a body of persons having statutory authority for the construction of works. exceeds or abuses the powers conferred by the Legislature, the remedy of a person injured in consequence is by action or suit, and not by a proceedings for compensation under the statute which has been so transgressed." Indian Courts, in the context of Municipal Acts had occasion to apply both the principles. In Municipal Board, Benaras vs Krishna & Co. (1), it was held that no suit for a refund of an octroi charge, which has been assessed and levied by a municipality, lies in a Civil Court on the ground that the goods were not in fact assessable to octroi duty or that the amount of assessment was excessive. There, the assessment was made in accordance with the provisions laid down in the Municipalities Act and the rules made thereunder. In Municipal Committee, Montgomery vs Sant Singh (2), a Full Bench of the Lahore High Court had to consider the question (1) All. 916 (2) A.1.R. 1940 Lah. (F.B.)377, 380, 282 whether a suit would lie in a Civil Court for an injunction restraining a Municipal Committe from realizing the tax demanded from a person on the ground that he was not the owner of the lorries the subject matter of tax, and consequently the demand made on him was illegal and ultra vires of the Municipal Committee. Din Mohammad J., speaking for the Court, elaborately considered the case law on the subject and expressed his conclusion in the following words : "Any special piece of legislation may provide special remedies arising therefrom and may debar a subject from having recourse to any other remedies, but that bar will be confined to matters covered by the legislation and not to any extraneous matter. A corporation is the creature of a statute and is as much bound to act according to law as the constituents thereof, namely, the individuals ruled by the corporation and if the corporation does an act in disregard of its charter and intends to burden any individual with the consequences of its illegal act, an appeal by that individual to the general law of the land can in no cir cumstances be denied. " This is a case where it may be said that the Municipal Committee acted not under the Act but outside the Act in as much as the tax on vehicles was payable by the owners only but not by those who did not own them. Another Full Bench of the Lahore High Court, in Administrator, Lahore vs Abdul Majid (1), had to deal with the jurisdiction of a Civil Court to entertain a suit for an injunction restraining a municipal committee from interfering with the construction of the plaintiff 's proposed building on the ground that its order refusing sanction under section 193 (2) of the Punjab Municipal Act was an abuse of its power. Mahajan J., delivering (1) A. 1. R. 283 the judgment on behalf of the Full Bench observed at p. 84 : "The provisions of section 225 which make the decision of the Commissioner final can only mean this that that decision is final only so far as the proceedings under the Act are concerned. But when an order is made which is outside that Act, then the provisions of section 225 can have no application to such an order which itself is outside the Act. . . . . . . In short the Bench laid down that in two kinds of cases section 225 was no bar to the jurisdiction of a civil court in examining the order of the municipal committee passed under section 193 (2), Punjab Municipal Act. The first case is where a committee acts ultra vires and the second case is where it acts arbitrarily or capriciously. In other words, where it abuses its statutory powers. " The learned judge concluded thus, at p. 85 "The remedies given to the subject by a statute are for relief against the exercise of power conferred by a statute but those remedies are not contemplated for usurpation of power under cover of the provisions of the statute. The civil Courts are the proper tribunals in those kinds of cases and their jurisdiction cannot be held barred by reason of statutory remedies provided for grievances arising in exercise of statutory powers. To cases of this kind the rule that where a statute creates a right and provides at the same time a remedy, that remedy and no other is available, has no application. Further citation is unnecessary. The law on the subject may be briefly stated thus : 284 Under section 9 of the Code of Civil Procedure the Court shall have jurisdiction to try all suits of civil nature excepting suits of which cognizance is either expressly or impliedly barred. A statute, therefore, expressly or by necessary implication, can bar the jurisdiction of civil Courts in respect of a particular matter. The mere conferment of special jurisdiction on a tribunal in respect of the said matter does not in itself exclude the jurisdiction of civil courts. The statute may specifically provide for ousting the jurisdiction of civil Courts ; even if there was no such specific exclusion, if it creates a liability not existing before and gives a special and Particular remedy for the aggrieved party, the remedy provided by it must be followed. The same principle would apply if the statute had provided for the particular forum in which the said remedy could be had. Even in such cases, the Civil Court 's jurisdiction is not completely ousted. A suit in a civil Court will always lie to question the order of a tribunal created by a statute, even if its order is, expressly or by necessary implication, made final, if the said tribunal abuses its power or does not act under the Act but in violation of its provisions. Let us now apply the said principles to the facts of the present case. The liability to pay terminal tax is created by the Act and remedy is given to a party aggrieved in the enforcement of that liability. As has been already indicated, against the order of the municipal committee levying terminal tax an appeal lies to the Deputy Commis sioner and a reference to the High Court. Applying one of the principles stated supra, the party aggrieved can only pursue the remedy provided by the Act and he cannnot file a suit in a civil Court in that regard. Provisions of sections 84 and 86 of the Act exclude the jurisdiction of the civil Court in respect of the tax levied or the assessment made under the Act. 285 But the learned counsel for the Appellants contends that the impugned levy was not made under the Act but in derogation of the provisions thereof. There is no force in this contention. Section 61 (2) of the Act specifically empowers the Municipal Committee to levy any tax other than those specified therein with the previous sanction of the State Government. The levy of terminal tax was sanctioned by the Punjab Government by Notification No. 26463 dated July 21, 1932, at the rates shown in column 3 of the Schedule to the said Notification. Under the said Notification, read with section 61 of the Act, the Municipal Committee is empowered to levy terminal tax on salt whether it is common salt or not. The Committee has, therefore, ample power under the Act and the Notification issued by the State Government to impose the said tax. The only dispute was as regards the rate of tax payable in respect of the salt brought by the appellant into the limits of the Municipal Committee. The rate depended upon the character of the salt. The ascertainment of the said fact is a necessary step for fixing the rate and it is not possible to say that in ascertaining the said fact the authorities concerned travelled outside the provisions of the Act. The learned counsel contends that if a municipal committee levies terminal tax on an article not liable to tax under the Act, a suit would lie and, therefore, the same legal position should apply even to a case where the municipal committee levies the tax in respect of an article under an entry not applicable to if. We do not see any analogy between these two illustrations : in the former, the municipal committee does not act under the Act, but in the latter it only commits a mistake or an error in fixing the rate of tax payable in respect of a particular commodity ; one is outside the Act and the other is under the Act ; one raises the question of jurisdiction and the other raises an objection to a Matter of detail. We, therefore, hold that in the 286 present case the mistake, if any, committed in imposing the terminal tax can only be corrected in the manner prescribed by the Act. The appellants have misconceived their remedy in filing the suit in the civil Court. 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

The appellant is a firm carrying on business within the octroi limits of Ludhiana Municipality. On the Sambhar salt imported by it into the limits of the Municipality terminal tax was imposed and the appellant made payment of the said tax. Under item 68 of the Schedule to the relevant Government Notification the Municipality is entitled to impose a certain rate of tax on common salt and under item 69 it is entitled to impose a higher rate of tax in respect of salt of all kinds other than common salt. In the present case the higher rate was imposed. The appellant filed a suit against the respondent in the civil court, Ludhina, for the refund of the amount paid by him. 274 The Civil Court held that Sambhar salt was common salt within the meaning of item 68, that the imposition of tax on it by the respondent under item 69 was illegal and that there fore the court had jurisdiction to entertain the suit. On appeal the High Court proceeded on the assumption that Sambhar salt was common salt but held that, even so, the Civil Court had no jurisdiction to entertain the suit as the Act provided a remedy by way of appeal against the wrong orders of the authorities thereunder. The present appeal is by way of certificate granted by the High Court. On behalf of the appellant it was contended that the respondent had no power to impose terminal tax on common salt under item 69 of the Schedule and therefore the tax having been imposed contrary to the provisions of the Act, the Civil Court has jurisdiction to entertain the suit. The contention on behalf of the respondent was that the respondent has power to impose terminal tax on common salt under the provisions of the Act, that the imposition of tax under a wrong entry could be rectified only in the manner prescribed by the Act and that the Civil Court has no jurisdiction to entertain the suit for the refund of the tax collected when a specific remedy is available under the Act. Held, that a statute can expressly or by necessary implica tion bar the jurisdiction of Civil Courts in respect of a particular matter. The mere confirment of special jurisdiction on a tribunal in respect of the said matter does not in itself exclude the jurisdiction of civil Courts. The statute may specifically provide for vesting the jurisdiction of civil Courts, even if there was no such specific exclusion, if it creates a liability not existing before and gives a special and particular remedy for the aggrieved party, the remedy provided by it must be followed. The same principle would apply if the statute had provided for the particular forum in which the same remedy could be had. Even in such cases the civil Court 's jurisdiction is not completely ousted. A suit in a civil Court will always lie to question the order of a tribunal created by a statute, even if its order is, expressly or by necessary implication, made final, if the said tribunal abuses its power or does no act under the Act but in violation of its provision. Wolverhamton New Watterworks Co. vs Hawkesford, (1859) 6 C. B. (N. section) 336, Secretary of State vs Mast & Co., (1940) L. R. 67 1. A. 222, Bhaishankar Nanabhai vs Municipal Corporation of Bombay. (1907) 1. L. R. , Zamindar of Ettayapuram vs Sankarappa, 1904) 1. L. R. East Fremantle Corporation V., Annois, [1902] A. C. "21 275 Gaekwar Sarkar of Baroda vs Gandhi Kachrabhai, (1903) I.L.R. , Municipal Board, Banares vs Krishna & Co., All. 916, Municipal Committee, Montgomery vs Sant Singh, A. I. R. 1940 Lah. (F. B.) 377 and Ad ministrator, Lahore vs Abdul Majid, A. I. R. In the present case the liability to pay terminal tax is created by the Act and a remedy is given to a party aggrieved in the enforcement of the liability. The party aggrieved can only pursue the remedy provided by the Act and he cannot file a suit in a civil court in that regard. Provisions of sections 84 and 86 of the Act exclude the jurisdiction of the Civil Court in respect of the tax levied or the assessment under the Act. In a case where the Municipal Committee has undoubted power to levy tax under a particular entry in respect of an article but it levies tax under a wrong entry not applicable to that article the said committee only commits a mistake or an error in fixing the rate (of tax payable) in respect of the said article and no question 'of jurisdiction but only a question of detail is involved. Such a mistake can be corrected only in the manner prescribed by the Act.

iminal Appeals Nos. 67, 136 and 172 of 1959 and 82 and 83 of 1962. Appeals by special leave from the judgment and order dated November 3, 1958 in Criminal Appeals Nos. 196, 256 and 363 of 1958. B. B. Tawakley and section C. Mazumdar, for the appellant (in Cr. A. No. 67159). section C. Mazumdar, for the appellant (in Cr. A. No. 136/59). T. section Venakataraman, for the appellant (in Cr. A. No. 172/59). 381 N. N. Keshwani, for the appellant (in Cr. A. No. 82/62). C. B. Agarwala, K. L. Misra, Advocate General, U. P. Mangala Prasad Baghari, Shanti Sarup Khanduja, Malik Arjun Das and Ganpat Rai, for the appellant (in Cr. A. No. 83/62). N. section Bindra, D. R. Prem and R. H. Dhebar, for the respondent in all the Appeals. March 18. The judgment of the Court was delivered by SUBBA RAO J. These appeals by special leave arise out of two judgments of the High Court of Bombay, one that of Vyas and Kotval JJ., dated March 31, 1958, and the other that of Shah and Shelat JJ., dated November 3, 1958, in what, for convenience of reference,, may be described as the Empire Conspiracy Case. At the outset it would be convenient to state briefly the case of the prosecution. One Lala Shankarlal, a political leader and Vice President of the Forward Bloc and a highly competent commercial magnate, and his nominees held the controlling block of shares of the Tropical Insurance Company Limited, hereinafter called the "Tropical", and he was the Chairman and Managing Director of the said company. He had also controlling voice in another company called the Delhi Swadeshi Cooperative Stores Ltd. The said Delhi Stores held a large number of shares of the Tropical. In or about the middle of 1948, Sardar Sardul Singh Caveeshar, who was controlling the People 's Insurance Co. Ltd. and other concerns in Lahore, and Kaul, a practising barrister, came to Delhi. During that year the former was the President of the Forward Bloc and Shankarlal was its Vice President. Shankerlal, 382 Caveeshar and Kaul conceived the idea of purchasing the controlling block of 63,000 shares of the Jupiter Insurance Company Ltd., hereinafter referred to as the " 'Jupiter", a prosperous company, in the name of the Tropical from the Khaitan Group which was holding the said Jupiter shares. But the financial position of the Tropical did not permit the said purchase and so they thought of a fraudulent device of purchasing the said Jupiter shares out of the funds of the Jupiter itself. Under an agreement entered into with the Khaitan Group, the out of the 63,000 shares of the Jupiter was fixed at Rs. 33,39,000/ , and the purchasers agreed to pay Rs. 5,00,000/ in advance as " 'black money" and the balance of Rs. 28,39,000/ , representing the actual price on paper, within January 20, 1949, i. e., after the purchasers got control of the Jupiter. After the purchase, Shankarlal Group took charge of the Jupiter as its Directors after following the necessary formalities, sold the securities of the Jupiter for the required amount,and paid the balance of the purchase money to the Khaitan Group within the prescribed time. In order to cover up this fraud various manipulations were made in the relevant account books of the Jupiter. There would be an audit before the end of the year and there was every likelihood of detection of their fraud. It, therefore, became necessary for them to evolve a scheme which would bring in money to cover the said fraud perpetuated by the Directors of the. Jupiter in the acquisition of its 63,000 controlling shares. For that purpose, Shankarlal and his group conceived the idea of purchasing the controlling interest in another insurance company so that the funds of that company might be utilized to cover up the Jupiter fraud. With that object, in or about September 1949, Shankarlal and 9 of his friends entered into a conspiracy to lift the funds of the Empire of India Life Assurance Company Ltd., hereinafter referred to as the "Empire", to cover up the Jupiter 383 fraud. This they intended to do by purchasing the controlling shares of the Empire, by some of them becoming its Directors and Secretary, and by utilizing the funds of the Empire to cover up the defalcations made in the Jupiter. The following were the members of the conspiracy : (1) Shankarlal, (2) Kaul, (3) Metha, (4) Jhaveri and (5) Doshi all Directors of the Jupiter and (6) Guha, the Secretary of the Jupiter, (7) Ramsharan, the Secretary of the Tropical, (8) Caveeshar, the Managing Director of the People 's Insurance Co., (9) Damodar Swarup, a political worker who was later on appointed as the Managing Director of the Empire. (10) Subhedar, another political worker, (11) Sayana, a businessman of Bombay, and (12) Bhagwan Swarup, the nephew of Shankarlal and a retired Assistant Commissioner of Income tax of the Patiala State. After forming the conspiracy, the controlling shares of the Empire were purchased in the name of Damodar Swarup for an approximate sum of Rs. 43,00,000/ . For that purpose securities of the Jupiter of the value of Rs. 48,75,000/ were withdrawn by the Directors of the Jupiter without a re solution of the Board of Directors to that effect and endorsed in the name of Damodar Swarup again without any resolution of the Board of Directors to that effect. Damodar Swarup deposited the said securities in the Punjab National Bank Ltd., and opened a Cash credit account in the said Bank in his own name. He also executed two promissory notes to the said Bank for a sum of Rs. 10,00,000/ and Rs. 43,00,000/ respectively. Having opened the said account, Damodar Swarup drew from the said account by means of cheques a sum of Rs. 43,00,000/ and paid the same towards the purchase of the said Empire shares. Out of the said shares of the Empire, qualifying shares of twenty were transferred in each of the names of Damodar Swarup, Subhedar and Sayana, and by necessary resolutions Damodar Swarup became the Managing 384 Director and Chairman of the Empire and the other two, its Directors, and Bhagwan Swarup was appointed its Secretary. The conspirators having thus taken control of the Empire through some of them, lifted large amounts of the Empire to the tune of Rs. 62,49,700/ by bogus sale and loans, and with the said amount they not only recouped the amounts paid out of the Jupiter for the purchase of its controlling shares and also the large amounts paid for the purchase of the controlling shares of the Empire. After the conspiracy was discovered, in due course the following ten of the said conspirators, i. e., all the conspirators excluding Shankarlal and another, who died pending the investigation, were brought to trial before the Court of the Sessions judge for Greater Bombay under section 120 B of the Indian Penal Code and also each one of them separately under section 409, read with section 109, of the said Code : (1) Kaul,(2) Metha, (3) Jhaveri, (4) Guha, (5) Ramsbaran,(6) Caveeshar, (7) Damodar Swarup, (8) Subhedar, (9) Sayana, and (10) Bhagwan Swarup. The gravemen of the charge against them was that they, along with Shankarlal and Doshi, both of them deceased, entered into a criminal conspiracy at Bombay and elsewhere between or about the period from September 20, 1950 to December 31, 1950 to commit or cause to be committed criminal breach of trust in respect of Government securities or proceeds thereof or the funds of the Empire of India Life Assurance Co. Ltd., Bombay, by acquiring its management and control and dominion over the said property in the way of business as Directors, Agents or Attorneys of the said Company. The details of the other charges need not be given as the accused were acquitted in respect thereof. Learned Sessions judge made an elaborate enquiry, considered the innumerable documents filed and the oral evidence adduced in the case and came to the conclusion that Accused 1, 2, 4, 5, 6 and 10 385 were guilty of the offence under section 120 B, read with section 409 of the Indian Penal Code and sentenced them to various term of imprisonment. Accused 6, i. e., Caveeshar, was sentenced to suffer rigorous imprisonment for 5 years, and accused 10, i. e., Bhagwan Swarup, to rigorous imprisonment for a period of 5 ears and also to pay a fine of Rs. 2,000/ and in default to suffer rigorous imprisonment for a further period of six months. He acquitted accused 3, 7, 8 and 9. The State preferred an appeal to the High Court against that part of the '. judgment of the learned Sessions judge acquitting some of the accused; and the convicted accused filed appeals against their convictions. The appeal filed by Caveeshar, Accused 6, was dismissed in limine by the High Court. The appeals filed by 'the other convicted accused against their convictions were dismissed and the appeal by the State against the acquittal of some of the accused was allowed by the High Court. Accused 7 was sentenced to 5 years ' rigorous imprisonment, accused 8 to 3 years ' rigorous imprisonment and accused 9 to 3 years rigorous imprisonment. Accused 6, 7, 8, 9 and 10 have, by special leave, preferred these appeals against their convictions and sentences. We are not concerned with the other accused as some of them died and others did not choose to file appeals. At the outset it may be stated that none of the learned counsel appearing for the accused questioned the factum of conspiracy; nor did they canvass the correctness of the findings of the Courts below that the funds of the Empire were utilized to cover up the fraud committed in the Jupiter, but on behalf of each of the appellants a serious attempt was made to exculpate him from the offence. But, as the defalcations made in the finances of the Jupiter and the 386 mode adopted to lift the funds of the Empire and transfer them to the coffers of the Jupiter will have some impact on the question of the culpability of the appellants, we shall briefly notice the modus operandi of the scheme of conspiracy and the financial adjustments made pursuant thereto. We have already referred to the fact that Shankarlal Group purchased the controlling shares of the Jupiter from Khaitan Group and that as a consideration for the said purchase the former agreed to pay the latter Rs. 5,00,000/ as "black money" and pay the balance of about Rs. 28,39,000/ on or before January ' IO, 1949. After Shankarlal Group became the Directors of the Jupiter, they paid the said amount from and out of the funds of the Jupiter. To cover up that fraud, on January 11, 1949, the Directors passed a resolution granting a loan of Rs. 25,15,000/ to Accused 6, on the basis of an application made by him, on equitable mortgage of his properties in Delhi : (see exhibit Z 22). They passed another resolution sanctioning the purchase of plots of the Delhi Stores, a concern of Shankarlal, for a sum of Rs. 2,60,000/ . It is in evidence that Accused 6 had no property in Delhi and that the said plots were not owned by the Delhi Stores. The said loan and the sale price of the plots covered by the said resolutions were really intended for drawing the money of the Jupiter for paying the Khaitan Group before January 20,194 9. But some shareholders got scent of the alleged fraud and issued notices; and the Directors were also afraid of detection of their fraud by the auditors during their inspection at the close of the year 1949. It, therefore, became necessary to show in the accounts of the Jupiter that the loan alleged to have been advanced to Accused 6 was paid off. For this purpose the Directors brought into existence the following four transanctions : (1) a loan of Rs. 5,00,000/ advanced to Raghavji on November 5, 1949; (2) a loan of 387 Rs. 5,30,000/ to Misri Devi on December 12, 1949; (3) a fresh loan of Rs. 5,30,000/ to Caveeshar, Accused 6 on November 5, 1949; and (4) a transactions of purchase of 54,000 shares of the Tropical for Rs. 14,00,000/ on May 25, 1949 and December 20, 1949. These four ficticious transa ction were brought about to show the discharge of the loan advanced to Caveeshar, Accused 6. Further manipulations were made in the accounts showing that parts of the loans due from Raghavji, Misri Devi and Caveeshar and also the price of the Tropical shares were paid by Caveeshar. These paper entries did not satisfy the auditors and they insisted upon further scrutiny. It is the case of the prosecution that Shankarlal and his co conspirators following their usual pattern conceived the idea of getting the controlling interest of the Empire, which had a reserve of Rs. 9 crores. Jupiter securities worth about Rs. 45,00,000/ were endorsed in favour of Accused 7, who in his turn endorsed them in favour of the Punjab National Bank Ltd., for the purpose of opening a cash credit account therein. On October 5, 1950, under exhibit Z 9, the controlling shares of the Empire were purchased from Ramsharan Group and the consideration therefor was paid from and out of the money raised on the Jupiter securities. The Directors of the Jupiter had to make good to the Company not only the amounts paid out of the jupiter funds to purchase the controlling shares of the Jupiter, in regard to which various manipulations were made in the Jupiter accounts, but also about Rs. 45,00,000/worth of securities transferred in the name of Damodar Swarup. Having purchased the controlling shares of the Empire, Shankarlal and his colleagues got their nominees. , namely, Accused 7, 8 and 9 as Directors and Accused 10 as the Secre tary of the Empire. On November 27, 1950, a resolution of the Directors of the Empire sanctioned the purchase of Rs. 20,00,000/ worth of Government 388 Securities alleged to belong to the Jupiter. Though the securities were not delivered, two bearer cheques dated October 26, 1950 and October 27, 1950 for Rs. 15,00,000/ and Rs. 5,00,000/ respectively were made out and cashed and the said moneys were utilized to cancel the loan alleged to have been advanced to Raghavji and for the purchase of the Tropical shares for Rs. 1,4,00,000/ . But the conspirators had still to make good the securities transferred in favour of Accused 7 and other amounts. The Directors again sanctioned 12 loans, the first six on November 27, 1950 totalling Rs. 28,20,000/ and the other six on December 18, 1950 totalling Rs. 42,80,000/ admittedly to fictitious loanees. 12 bearer cheques for an aggregate of Rs. 71,00,000/ were issued by Accused 10 between December 19 and 23, 1950. This amount was utilized for getting 5 drafts for different amounts in favour of Accused 1 and 2, the Directors of the Jupiter, Accused 4, its Secretary, and Accused 5, the Secretary of the Tropical (see exhibit Z 230). The said drafts were sent to Bombay and one of the said drafts was utilized for paying off the loan of Misri Devi and the other Drafts for Rs. 57,00,000/ were paid into the Jupiter account in the Punjab National Bank Ltd., Bombay. This amount was utilized to cover up the loss incurred by the Jupiter by reason of its securities worth about Rs. 45,00,000/ assigned in favour of Accused 7 and also by reason of the securities worth Rs. 20,00,000/ alleged to have been sold to the Empire on November 27, 1950. It is, therefore, manifest, and indeed it is not disputed before us now, that Shankarlal and his co conspirators, whoever they may be, had conspired together and lifted large amounts of the Empire and put them into the Jupiter coffers to cover up the loss caused to it by their fraud. Therefore in these appeals we proceed on the basis that there was a conspiracy as aforesaid and the only question for consideration is whether all or some of the appellants were parties to it. 389 Before dealing with the individual cases, as some argument was made in regard to the nature of the evidence that should be adduced to sustain the case of conspiracy, it will be convenient to make at this stage some observations thereon. Section 120 A of the Indian Penal Code defines the offence of criminal conspiracy thus "When two or more persons agree to do, or cause to be done an illegal act, or an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy. " The essence of conspiracy is, therefore, that there should be an agreement between persons to do one or other of the acts described in the section. The said agreement may be proved by direct evidence or may be inferred from acts and conduct of the parties. There is no difference between the mode of proof of the offence of conspiracy and that of any other offence : it can be established by direct evidence or by circumstantial evidence. But section 10 of the Evidence Act introduces the doctrine of agency and if the conditions laid down therein are satisfied, the acts done by one are admissible against the co conspirators. The said section reads : "Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to be so conspiring as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it." This section, as the opening words indicate, will come into play only when the Court is satisfied that 390 there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, that is to say, there should be a prima facie evidence that a person was a party to the conspiracy before his acts can be used against his co conspirators. Once such a reasonable ground exists, anything said, done or written by one of the conspirators in reference to the common intention, after the said intention was entertained, is relevant against the others, not only for the purpose of proving the existence of the conspiracy but also for proving that the other person was a party to it. The evidentiary value of the said acts is limited by two circumstances, namely, that the acts shall be in reference to their common intention and in respect of a period after such intention was entertained by any one of them. The expression " 'in reference to their common intention" is very comprehensive and it appears to have been designedly used to give it a wider scope than the words "in furtherance of" in the English law ; with the result, anything said, done or written by a coconspirator, after the conspiracy was formed, will be evidence against the other before he entered the field of conspiracy or after he left it. Another important limitation implicit in the language is indicated by the expressed scope of its relevancy. Anything so said, done or written is a relevant fact only "as against each of the persons believed to be so conspiring as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it. It can only be used for the purpose of proving the existence of the conspiracy or that the other person was a party to it. It cannot be used in favour of the other party or for the purpose of showing that such a person was not a party to the conspiracy. In short, the section can be analysed as follows : (1) There shall be a prima facie evidence affording a reasonable ground for a Court to believe that two or more persons are 391 members of a conspiracy ; (2) if the said condition is fulfilled, anything said, done or written by any one of them in reference to their common intention will be evidence against the other; (3) anything said, done or written by him should have been said, done or written by him after the intention was formed by any one of them ; (4) it would also be relevant for the said purpose against another who entered the conspiracy whether it was said, done or written before he entered the conspiracy or after he left it ; and (5) it can only be used against a co conspirator and not in his favour; With this background let us now take the evidence against each of the appellants and the contentions raised for or against him. But it must be stated that it is not possible to separate each of the accused in the matter of consideration of the evidence, for in a case of conspiracy necessarily there will be common evidence covering the acts of all the accused. We may, therefore, in dealing with some of the accused, consider also the evidence that will be germane against the other accused. We shall first take the case of Accused 6, Caveeshar, who is the appellant in Criminal Appeal No. 82 of 1962. So far as this appellant is concerned the learned Sessions judge found that he was a member of the conspiracy and the High Court confirmed that finding. It is the Practice,, of this Court not to interfere with concurrent findings of fact even in regular appeals and particularly so in appeals under article 136 of the Constitution. We would, therefore, approach the appeal of this accused from that perspective. Learned counsel for this appellant argued before us that the said accused was convicted by the Sessions judge for being a member of the conspiracy in the Jupiter case in respect of his acts pertaining 392 to that conspiracy and therefore he could not be convicted over again in the present case on the basis of the facts on which the earlier conviction was founded; in other words, it is said that he was convicted in the present trial for the same offence in respect of which he had already been convicted in the Jupiter case and such a conviction would infringe his fundamental right under article 20 (2) of the Constitution, and in support of this contention reference was made to certain decisions of the Supreme Court of the United States of America. The said Article reads : "No person shall be prosecuted and punished for the same offence more than once." The previous case in which this accused was convicted was in regard to a conspiracy to commit criminal breach of trust in respect of the funds of the Jupiter and that case was finally disposed of by this Court in Sardul Singh Caveeshar vs State of Bombay (1). Therein it was found that Caveeshar was a party to the conspiracy and also a party to the fraudulent transactions entered into by the Jupiter in his favour. The present case relates to a different conspiracy altogether. The conspiracy in question was to lift the funds of the Empire, though its object was to cover up the fraud committed in respect of the Jupiter. Therefore. , it may be that the defalcations made in Jupiter may afford a motive for the new conspiracy, but the two offences are distinct ones. Some accused may be common to both of them some of the facts proved to establish the Jupiter conspiracy may also have to be proved to support the motive for the second conspiracy. The question is whether that in itself would be sufficient to make the two conspiracies the one and the same offence. Learned counsel suggests that the question raised involves the interpretation of a provision of the Constitution and therefore the appeal of this accused (1) [1958] section C. R. 161. 393 will have to be referred to a Bench consisting of not less than 5 judges. Under article 145 (3) of the Constitution only a case involving a substantial question of law as to the interpretation of the Constitution shall be heard by a Bench comprising not less than 5 Judges. This Court held in State of Jammu & Kashmir vs Thakur Ganga Singh (1), that a substantial question of interpretation of a provision of the Constitution cannot arise when the law on the subject has been finally and effectively decided by this Court. Two decisions of this Court have construed the provisions of article 20 (2) of the Constitution in the context of the expression "same offence." In Leo Roy Frey vs The Superintendent, District Jail, Amritsar (2), proceedings were taken against certain persons in the first instance before the customs authorities under section 167 (8) of the Sea Customs Act and heavy personal penalties were imposed on them. thereafter, they were charged for an offence under section 120 B of the Indian Penal Code. This Court held that an offence under section 120 B is not the same offence as that under the Sea Customs Act. Das C. J., speaking for the Court, observed : "The offence of a conspiracy to commit a crime is a different offence from the crime that is the object of the conspiracy because the conspiracy precedes the commission of the crime and is complete before the crime is attempted or completed, equally the crime attempted or completed does not require the element of conspiracy as one of its ingredients. They are,therefore, quite separate offences." This Court again considered the scope of the words " 'same offence" in The State of Bombay vs ,section L. Apte (3). There the respondents were both convicted and sentenced by the Magistrate under section 409 of the Indian Penal Code and section 105 of the Insurance Act. Dealing with the argument that the (1) [1960] 2 S.C.R.346. (2) ; , 827, (3)[1961] 3.S.C.R.,107,114. 394 allegations of fact were the same, Rajagopala Ayyangar J., rejecting the contention, observed on behalf of the Court : "To operate as a bar the second prosecution and the consequential punishment thereunder, must be for `the e same offence '. The crucial requirement, therefore, for attracting the Article is that the offences arc the same i. e., they should be identical. If, however, the two offences are distinct, then notwithstanding that the allegations of fact in the two complaints might be substantially similar, the benefit of the ban cannot be invoked. It is, therefore, necessary to analyse and compare not the allegations in the two complaints but the ingredients of the two offences and see whether their identity is made out." This decision lays down that the test to ascertain whether two offences are the same is not the identity of the allegations but the identity of the ingredients of the offences. In view of the said decisions of this Court, the American decisions cited at the Bar do not call for consideration. As the question raised has already been decided by this Court, what remains is only the application of the principle laid down to the facts of the present case. cannot, therefore, hold that the question raised involves a substantial question of law as to the interpretation of the Constitution within the meaning of article 145 (3) of the Constitution. In the present case, applying the test laid down by this Court, the two conspiracies are not the same offence : the Jupiter conspiracy came to an ' end when its funds were misappropriated. The Empire conspiracy was hatched subsequently, though its 'Object had an intimate connection with the Jupiter in that the fraud of the Empire was concei. ved and executed to cover up the fraud of the 395 Jupiter. The two conspiracies are distinct offences. It cannot even be said that some of the ingredients of both the conspiracies are the same. The facts constituting the Jupiter conspiracy are not the ingredients of the offence of the Empire conspiracy,, but only afford a motive for the latter offence. Motive is not an ingredient of an offence. The proof of motive helps a Court in coming to a correct conclusion when there is no direct evidence. Where there is direct evidence for implicating an accused in an offence, the absence of proof of motive is not material. The ingredients of both the offences are totally different and they do not form the same offence within the meaning of article 20 (2) of the Constitution and, therefore, that Article has no relevance to the present case. The next question is whether this appellant was a party to the Empire conspiracy. He was a close associate of Shankarlal in the political field, he being the President of the Forward Bloc and Shankarlal being its Vice President. That is how they were drawn together. There is also evidence that out of the 63,000 shares of the Jupiter that were purchased in August, 1949 by Shankarlal Group, 4475 shares were allotted to this appellant. It is, therefore, clear that Accused 6 though ex facie he was neither a Director nor an office bearer in the Jupiter, had heavy stakes in it. We have already noticed that after the purchase of the said shares from and out of the Jupiter funds, a bogus loan in the name of Accused 6 for a sum of Rs. 25,15,000/ was shown in the Jupiter accounts and later on it was substituted by other manipulations. [His Lordship then proceeded to consider the evidence.] x x x x x x x x Both the Courts on the basis of the aforesaid evidence came to the conclusion that Accused 6 was 396 a member of the conspiracy and we cannot say that there is no evidence on which the Courts could have come to the conclusion to which they did. there are no permissible grounds for upsetting this finding under article 136 of the Constitution. As regards the sentence passed against this accused, the Sessions Judge sentenced him to undergo rigorous imprisonment for a period of 5 years, whereas he sentenced Accused 7, 8 and 9 to undergo rigorous imprisonment for a period of 3 years only. We do not see any justification for this distinction between the said accused in the matter of punishment. Accused6 had already been convicted and sentenced in the Jupiter case; and on the evidence it does not appear that he had taken a major part in the Empire conspiracy, though he was certainly in it. In the circumstances, we think that a sentence of 3 years ' rigorous imprisonment would equally suffice in his case. We, therefore, modify the sentence passed on him and sentence him to undergo rigorous imprisonment for 3 years. Subject to the aforesaid modification, the appeal preferred by Caveeshar, Accused 6, is dismissed. We shall now proceed to consider the appeal preferred by Damodar Swarup, Accused 7 i. e., Criminal Appeal No. 83 of 1962. Accused 7 was the Managing Director and Chairman of the Empire during the period of the conspiracy. On October 17, 1950 he was elected the Chairman of the Board of Directors of the Empire and appointed as Managing Director on a salary of Rs. 2,000/per month for a period of one year. He was removed from the post of Managing Director at the meeting of the Board of Directors held on March 12, 1951. The misappropriation of the funds of the Empire, which is the subject matter of the conspiracy, were committed during the period of his Managing Directorship i. e., between 397 September 20 and December 31, 1950. The prosecution case is that Accused 7 was a party to the conspiracy, whereas the defence version is that he was a benamidar for Shankarlal, that he took part in the proceedings of the Board of Directors bona fide, believing that there was nothing wrong, that the resolutions were implemented by Accused 10 under the directions of Shankarlal and that the moment he had a suspicion that there was some fraud, he took immediate and effective steps not only to prevent the rot but also to investigate and find out the real culprits. The question is which version is true. It would be useful to have a correct appreciation of the evidence to know the antecedents of Accused 7. [His Lordship then proceeded to consider the evidence.] x x x x x x Learned counsel for Accused 7 contends that the following two important circumstances in this case established that Accused 7 was a victim of circumstances and that he was innocent : (1) Two prominent publicmen of this country with whom the accused worked gave evidence that he was a man of integrity; and (2) the accused took active steps to unravel the fraud and to bring to book every guilty person; if he was a conspirator, the argument proceeds, it was incon ceivable that he would have taken such steps, for it would have certainly recoiled on him. We shall consider these two aspects now. [His Lordship then proceeded to consider the evidence.] x x x x The question is what is the evidentiary value of good character of an accused in a criminal case. The relevant provisions are section 53 and the Explanation to section 55 of the evidence Act. They read : Section 53. In criminal proceedings the fact 398 that the person accused is of a good character is relevant. Explaination to 8. In sections 52, 53, 54 and 55, the word "character" includes both reputation and disposition; but except as provided in section 54, evidence may be given only of general reputation and general disposition, and not of particular acts by which reputation, or disposition were shown. It is clear from the said provisions that the evidence of general reputation and general disposition is relevant in a criminal proceeding. Under the Indian Evidence Act, unlike in England, evidence can be given both of general character and general disposition. Disposition means the inherent qualities of a person; reputation means the general credit of the person amongst the public. There is a real distinc tion between reputation and disposition. A man may be reputed to be a good man, but in reality he may have a bad disposition. The value of evidence as regards disposition of a person depends not only upon the witness 's perspicacity but also on his opportunities to observe the person as well as the said person 's cleverness to hide his real traits. But a disposition of a man may be made up of many traits, some good and some bad, and only evidence in regard to a particular trait with which the witness is familiar would be of some use. Wigmore puts the proposition in the following manner : "Whether, when admitted, it should be given weight except in a doubtful case, or whether it may suffice of itself to create a doubt, is a mere question of the weight of evidence, with which the rules of admissibility have no concerned But, in any case, the character evidence is a very weak evidence : it cannot outweigh the positive 399 evidence in regard to the guilt of a person. It may be useful in doubtful cases to tilt the balance in favour of the accused or it may also afford a background for appreciating his reactions in a given situation. It must give place to acceptable positive evidence. The opinion expressed by the witnesses does credit to the accused, but, in our view, in the face of the positive evidence we have already considered, it cannot turn the scale in his favour. Learned counsel strongly relied upon the subsequent conduct of Accused 7 in support of his innocence. [His Lordship then proceeded to consider the evidence relating to subsequent Conduct and Considered as follows] x x x x x x x x We, therefore, hold that Accuscd 7 was a party to the conspiracy and that the High Court has rightly convicted him under section 120 B of the Indian Penal Code. As regards the sentence passed on Accused 7, having regard to the evidence in this case, we think that this accused must be given a comparatively less punishment than his co conspirators, for, though he took part in the conspiracy, at any rate from the end of December, 1950, for one reason or other, he took necessary proceedings to bring to light the fraud. We, therefore, think that it would meet the ends of justice if the accused was sentenced to rigorous imprisonment for a period of two years. We accordingly modify the sentence passed on him by the High Court and, subject to the aforesaid modification, we dismiss the appeal preferred by him. Next we come to Criminal Appeal No. 136 of 1959 preferred by Subhedar, Accused 8. The defence of this accused is that he acted throughout in good faith and under the guidance of Accused 7, the Managing Director of the Empire, and that he did not know that any fraud was perpetrated in the Empire. Before joining the Empire he was an 400 insurance agent and, therefore, it cannot be said that he was a stranger to the insurance business and he may be assumed to know how it would be conducted. On October 16, 1950 twenty qualifying shares of the Empire from among the shares purchased in the name of Accused 7 were transferred in his favour and thereafter at the meeting held on that day he was co opted as a Director. He is also, therefore, one of the persons brought in by Shankarlal and made a Director for his own purpose. [His Lordship then proceeded to consider the evidence] x x x x x x We have no doubt that the aforesaid circumstances lead to only one reasonable conclusion that this accused became a Director of the Empire as a member of the conspiracy and helped to put through all the transactions necessary to transfer funds from one Company to the other. He was rightly convicted by the High Court. We do not see any reason to interfere with the sentence passed against him. In the result Criminal Appeal No. 136 of 1959 is dismissed. Criminal Appeal No. 172 of 1959 is preferred by Sayana, Accused 9. He was a building contractor before he was appointed a Director of the Empire. His defence is also that he bona fide acted without knowledge of the conspiracy or the fraud. He was also one of the Directors inducted into the Company by the transfer of qualifying shares from and out of the shares purchased in the name of Accused 7. He was co opted as a Director on October 17, 1950 under exhibit Z 206C. Though he was not present at the meeting of November 27, 1950, he was present at the meeting of December 18, 1950 and, therefore, with the knowledge that six loans amounting to Rs. 28,80,000/ were advanced without scrutiny of the securities, he was a party in sanctioning another six loans totalling to Rs. 42,80,000/ . He as also a party to the resolution of January 30, 1951 401 sanctioning a bogus loan to the chief of Bagarian. He was a party to the resolution dated February 9, 1951 when the said loan was confirmed and to the resolution authorizing Accused 9 to operate singly the accounts of the Company. Evidence considered [omitted] x x x x It is, therefore, clear that he was a creature of Shankarlal, that he was a party to the diversion of the funds of the Empire to the Jupiter and that when Accused 7, for his own reasons, was taking steps to stop the rot, he, along with Accused 8, obstructed him from doing so and wholly supported Accused 10. The only reasonable hypothesis on the evidence is that he was a party to the conspiracy. It is said by learned counsel appearing for this accused that his subsequent conduct would not indicate any obstructive attitude on his part but would indicate only his desire to maintain the status quo till the matters improved. This is a lame explanation, for he, along with the other Directors, opposed every attempt of the scrutiny of the Company 's affairs and this can only be because they were conscious of their part in the fraud. In this context another argument of learned counsel for Accused 8 and 9 may be noticed. It is said that the High Court treated the Directors as trustees and proceeded to approach the case from that standpoint inferring criminality from their inaction. Even assuming that they were not trustees in the technical sense of the term, they certainly stood in a fiduciary relationship with the shareholders. The High Court 's finding is not based upon any technical relationship between the parties, but on the facts found. On the facts, including those relating to the conduct of the accused, the High Court drew a reasonable inference of guilt of the accused. There is sufficient evidence on which the High Court 402 could have reasonably convicted Accused 8 and 9 and in the circumstances, we do not see any case had been made out in an appeal under article 136 of the Constitution to merit our interference. In the result Criminal Appeal No. 172 of 1959 is dismissed. Finally we come to Criminal Appeal No. 67 of 1959 preferred by Bhagwan Swarup, Accused 10. The defence of this accused is that he acted throughout on the directions of Accused 7, 8 and 9, and that as Secretary of the Company, he was bound to follow their directions. This accused is the nephew of Shankarlal. He is an M. A., LL. B. He held the office of Assistant Commissioner of Income tax in Patiala State. He is the person who carried out the resolutions of the Board of Directors of the Empire through intricate channels to enable the large amounts misappropriated to reach the Jupiter Company. It is suggested that he was not well disposed of towards Shankarlal and therefore he could not have any knowledge of Shankarlal 's fraudulent motives behind the purchase of the controlling shares of the Empire. If Shankarlal did not like him lie would not have put him in the key position in the Empire. Indeed, the will of Shankarlal shows that this accused got the best legacy under it. He was the connecting thread passing through the web of conspiracy from beginning to end. Evidence Considered [omitted] x x x x x x x x Learned counsel appearing for this accused Could only argue that the accused was a subordinate of the Directors and that he had followed only loyally the directions given by the Managing Director without any knowledge of the conspiracy. This argument is an oversimplification of the part taken by Accused 10 in this huge fraud. Both the Courts below have 403 held, on the aforesaid circumstances and other evidence; that Accused 10 was an active participant in the conspiracy. In our view, there is ample material to justify it. In the result Criminal Appeal No. 67 of 1959 is dismissed. Cr. A. No. 82 of 1962 dismissed. Sentence modified. A. No. 83 of 1962 dismissed. Sentence modified. A. No. 136 of 1959 dismissed. Cr. A. No. 172 of 1959 dismissed. Cr. A. No. 67 of 1959 dismissed.

IN-Abs

Double Jeopardy Applicability of rule Law finally and authoritatively decided by Supreme Court as to interpretation of the constitution If a substantial question of law Constitution of India, Arta. 20 (2), 145 (3). After the discovery of the conspiracy, ten conspirators including the appellants were put to trial before the Sessions judge under section 120 B of the Indian Penal Code and also each one of them separately under section 409 read with section 109 of the said Code. The charge was that they, alongwith one Shankar Lal and Doshi, both of them deceased entered into a criminal conspiracy at Bombay and elsewhere between or about the period from September 20, 1950 to December 31, 1950, to commit or cause to be committed criminal breach of trust in respect of Government securities or proceeds thereof or the funds of the Empire of India Life Assurance Co. Ltd., Bombay, acquiring its management and control and dominion over the said property in the way of business as Directors, Agents or attorneys of the said company. The learned Sessions Judge convicted six accused persons under section 120 B, read with section 409 of the Indian Penal Code and sentenced them to various terms of imprisonment. The rest four accused persons were acquitted. Against the acquittal State preferred an appeal to the High Court and the convicted accused persons also filed appeals against their convictions. Government appeal was allowed and the appeals of the convicted accused persons were dismissed by the High Court. These appeals by special leave have been preferred only by five accused persons against their conviction and sentences. In these appeals, the Court pro ceeded on the basis as it was manifest and indeed not disputed 379 that there was a conspiracy and the only question for con sideration was whether all or some of the appellants were parties to it. Held, that the essence of conspiracy is that there should be an agreement between persons to do one or other of the acts described in the section. The said agreement may be proved by direct evidence or may be inferred from acts and conduct of the parties. But section 10 of the Evidence Act intro. duces the doctrine of agency and if the conditions laid down therein are satisfied, the acts done by one are admissible against the co conspirators. The section can be analysed as follows : (1) There shall be a prima facie evidence affording a reasonable ground for a court to believe that two or more persons are members of a conspiracy; (2) if the said condition is fulfilled, anything said, done or written by any one of them in reference to their common intention will be evidence against the other; (3) anything said, done or written by him after the intention was formed by any one of them; (4) if it would also be relevant for the said purpose against another who entered the conspiracy whether it was said, done or written before he entered the conspiracy or after he left it; and (5) it can only be used against a co conspirator and not in his favour. Held, that so far as the appellant in criminal appeal No. 82/62 is concerned, applying the test laid down by this Court, the two conspiracies are not the same offence. The ingredients of both the offences are totally different and they do not form the same offence within the meaning of article 20 (2) of the Constitution and, therefore, that Article has no relevance to the present case. Further, there are no permissible grounds for upsetting the concurrent findings of both the courts below that the appellant was a member of the conspiracy. Leo Boy Prey vs The Superintendent, District Jail, Amritsar, ; and The State of Bombay vs section L. Apte, ; , relied on. Sardul Singh Caveeshar vs State of Bombay, [1958] S.C.R. 161, referred to. As the question raised regarding interpretation of article 20 (2) of the constitution has already been decided by this Court, it cannot be held that the question raised involves a substantial question of law as to the interpretation of the Constitution within the meaning of article 145 (3) of the Constitution. State of Jammu & Kashmir vs Thakur Ganga Singh, [1960] 2 section C. R. 346 relied on. 380 Held, that from the relevant provisions of section 53 and the Explanation to section 55 of the Evidence Act. , it is clear that the evidence of general reputation and general disposition is relevant in a criminal proceeding. Under the Indian Evidence Act, unlike in England, evidence can be given both of general character and general disposition. Disposition means the inherent qualities of a person; reputation means the general credit of the person amongst the public. There is a real distinction between reputation and disposition. A man may be reputed to be a good man, but in reality be may have a bad disposition. The value of evidence as regards disposition of a person depends not only upon the witness 's perspicacity but also on his opportunities to observe the person as well as the said person 's cleverness to hide his real traits. But a disposition of a man may be made up of many traits, some good and some bad, and only evidence in regard to a particular trait with which the witness is familiar would be of some use. But, in any case, the character evidence is a very week evidence; it cannot out weight the positive evidence in regard to the guilt of a person. It may be useful in doubtful cases to tilt the balance in favour of the accused or it may also afford a background for appreciating his reactions in a given situation. It must give place to acceptable positive evidence. The opinion expressed by the witnesses does credit to the accused, but, in the face of the positive evidence it cannot turn the scale in his favour.

Appeals Nos. 220, 423 and 424 of 1962. Appeals from the judgment and order dated January 12, 1960 and August 19, 1960 of the Andhra Pradesh High Court, in Writ Appeals Nos. 120 and 57 of 1960. S.K. Bose and B. P. Maheshwari, for the appellant(in C. A. No. 220 of 1962). M.C. Setalvad, section K. Bose and Sardar Bahadar, for the appellants (in C. As. 423 & 424 of 1962). K. R. Chaudhuri and P. D. Menon, for respondent No, 1 (in all the appeals). 450 1963. March 20. The judgment of the Court was delivered by WANCHOO J. These three appeals on certificates raise the same question and will be dealt with together. It will be enough to refer to the facts of one appeal only i.e., No. 220, to understand the point arising for decision, the facts in the other appeals being similar. Briefly the facts in appeal No. 220 are that an order referring certain disputes between the appellant and its workmen was made to the Industrial Tribunal, Andhra Pradesh on June 6, 1956. The tribunal sent its award to Government in September, 1957. Under section 17 of the Industrial Disputes Act, No. XIV of 1947 (hereinafter referred to as the Act), the award has to be published by the appropriate government within a period of thirty days from the date of its receipt by the government in such manner as the government thinks fit. Before, however, the Government could publish the award under section 17, the parties to the dispute which had been referred for adjudication came to a settlement and on October 1, 1957, a letter was written to Government signed jointly on behalf of the employer and the employees intimating that the dispute, which had been pending before the tribunal, had been settled and a request was made to Government not to publish the award. The Government, however, expressed its inability to withhold the publication of the award, the view taken by the Government being that section 17 of the Act was mandatory and the Government was bound to publish the award. Thereupon the appellants filed writ petitions before the High Court under article 226 of the Constitution praying that the Government may be directed not to publish the award sent to it by the industrial tribunal. The High Court held that section 17 was mandatory and it was not open to Government to withhold 451 publication of an award sent to it by an industrial tribunal. Therefore it was not open to the High Court to direct the Government not to publish the award when the law enjoined upon it to publish it. The writ petitions were thereforedismissed. There were then application for certificats which were granted and that is how the matter has come up before us. The main contention on behalf of the appellants before us is that section 17 of the Act when it provides for the publication of an award is directory and not mandatory. In the alternative, it is contended that even if section 17 is mandatory some via media has to be found in view of the conflict that would arise between an award published under section 17 (1) and a settlement which is binding under section 18(1),and therefore where there is a settlement which is binding tinder section 18(1 ) it would be open to the Government not to publish the award in these special circumstance. We are of opinion that the first contention on behalf of the appellants, namely, that the publication of the award under section 17 (1) is directory cannot be accepted. Section 17 (1) lays down that every award shall within a period of thirty) days from the date of its receipt by the appropriate government be published in such manner as the appropriate government think fit. The use of the word "shall" is a pointer to section 17(1 ) being mandatory, though undoubtedly in certain circumstances the word "shall" used in a statute may be equal to the word "may". In the presentcase however it seems to us that when the word "shall" was used in section 17(1) the intention was to give a mandate to Government to Publish the award within the time fixed therein. This is enforced by the fact that sub section (2) of section 17 provides that "the award published under Sub section (1) shall be final and shall not be called in question by any 452 court in any manner whatsover". Obviously when the legislature intended the award on publication to be final, it could not have intended that the Government concerned had the power to withhold publication of the award. Further section 17A shows that whatever power the Government has in the matter of an award is specifically provided in that section, which allows the Government in certain circumstances to declare that the award shall riot become enforceable on the expiry of thirty days from the date of its publication, which under section 17 A is the date of the enforceability of the award. Section 17 A also envisages that the award must be published though the Government may declare in certain con tingencies that it may not be enforceable. Subsection (2) of section 17A also gives power to Government to make an order rejecting or modifying the award within ninety days from the date of its publication. It is clear therefore reading section 17 and section 17A together that the intention behind section 17 (1) is that a duty is cast on Government to publish the award within thirty days of its receipt and the provision for its publication is mandatory and not merely directory. This however does not end the matter, particularly after the amendment of the Act by Central Act XXXVI of 1956 by which section 18 (1) was introduced in the Act. Section 18 (1) provides that a settlement arrived at by agreement between the employer and workmen otherwise than in the course of conciliation proceeding shall be binding on the parties to the agreement. 'Settlement" is defined in section 2 (p) as meaning a settlement arrived at in the course 'or conciliation proceeding and includes a written agreement between the employer and workmen arrived at otherwise than in the course of conciliation proceeding where such agreement has been signed by the parties thereto in such manner as may be prescribed and a copy thereof has been sent to the appropriate Government and the conciliation 453 officer. When such an agreement has been arrived at, though not in the course of conciliation proceedings, it becomes a settlement and section 18 (1) lays down that such a settlement shall be binding on the parties thereto. Further section 18 (3) provides that an award which has become enforceable shall be binding on all parties to the industrial dispute and others. Section 19 (1) provides that a settlement comes into operation on such date as is agreed upon by the parties to the dispute, and if no date is agreed upon, on the date on which the memorandum of settlement is signed by the parties to the dispute. In the present case the settlement that was arrived at between the parties to the dispute was signed on October 1, 1957, and as it had not fixed any date for its coming into force, it became operative from October 1, 1957 itself and was binding on the parties to the agreement who were also before the industrial tribunal and would be bound by the award after its publication. The contention on behalf of the appellant in the alternative is this. It is said that the main purpose of the Act is to maintain peace between the parties in an industrial concern. Where therefore parties to an industrial dispute have reached a settlement which is binding under section 18 (1), the dispute between them really comes to an end. In such a case it is urged that the settlement arrived at between the parties should be respected and industrial peace should not be allowed to be disturbed by the publication of the award which might be different from the settlement. There is no doubt that a settlement of the dispute between the parties themselves is to be preferred, where it can be arrived at, to industrial adjudication, as the settlement is likely to lead to more lasting peace than an award, as it is arrived at by the free will of the parties and is a pointer to there being goodwill between them. Even though this may be so, we have still to reconcile the mandatory 454 character of the provision Contained in section 17 (1) for the publication of the award to the equally mandatory character of the binding nature of the settlement arrived at between the parties as provided in section Is (1). Ordinarily there should be Do difficulty about the matter, for if a settlement has been arrived at between the parties while the dispute is pending before the tribunal, the parties would file the settlement before the tribunal and the tribunal would make the award in accordance with the settlement. In the State of Bihar vs D. N. Ganguly (1), dealing with an argument urged before this Court that where a settlment has been arrived at between the parties, village an industrial dispute is pending before a tribunal, the only remedy for giving effect to such a settlement would be to cancel the reference, this Court observed that though the Act did not contain any provision specifically authorising the industrial tribunal to record a compromise and pass an award in its terms corresponding to the provisions of O. XXIII, r. 3 of ' the Code of Civil Procedure, it would be very unreasonable to assume that the industrial tribunal would insist upon dealing with the dispute on the merits even after it is informed that the dispute has been amicably settled between the parties, and there can be no doubt that if a dispute before a tribunal is ambicably settled, the tribunal would immediately agree to make an award in terms of the settlement between the parties. In that case this Court dealt with what would happen if a settlement was arrived at while the matter was pending before the tribunal. The difficulty arises in the present case because the proceedings before the tribunal had come to an end, and the tribunal had sent its award to Government before the settlement was arrived at on October 1, 1957. There is no provision in the Act dealing with such a situation ' just as there was no provision in the Act dealing with the situation which arose where the parties came (1) ; 455 to an agreement while the dispute was pending before the tribunal. This Court held in Ganguly 's case (1), that in such a situation the settlement or compromise would have to be filed before the tribunal and the tribunal would make an award thereupon in accordance with the settlement. Difficulty, however, arises when the matter has gone beyond the purview of the tribunal as in the present case. That difficulty in our opinion has to be resolved in order to avoid possible conflict between section 18 (1 ) which makes the settlement arrived at between the parties otherwise than in the course of conciliation proceeding binding on the parties and the terms of an award which are binding under section 18 (3) on publication and which may not be the same as the terms of the settlement binding under section 18 (1). The only way in our view to resolve the possible conflict which would arise between a settlement which is binding under section 18 (1) and an award which may become binding under section 18 (3) on publication is to withhold the publication of the award once the Government has been informed jointly by the parties that a settlement binding under section 18 (1) has been arrived at. It is true that section 17 (1) is mandatory and ordinarily the Government has to publish an award sent to it by the tribunal ; but where a situation like the one in the present cases arises which may lead to a conflict between a settlement under section 18 (1) and an award binding under section IS (3) on publication, the only solution is to withhold the award from publication. This would not in our opinion in any way affect the mandatory nature of the provision in section 17 (1), for the Government would ordinarily have to publish the award but for the special situation arising in such cases. The matter may be looked at in another way The reference to the tribunal is for the purpose of resolving the dispute that may have arisen between employers and their workmen. Where a settlement (1) ; 456 is arrived at between the parties to a dispute before the tribunal after the award has been submitted to Government butbefore its publication, there is in fact no dispute left to be resolved by the publication of the award. In such a case, the award sent to Government mayvery well be considered to have become infructuous and so the Government should refrain from publishing Such an award because no dispute ramains to be resolved by it. It is however urged that the view we have taken may create a difficulty inasmuch as it is possible for one party or the other to represent to the Government that the settlement has been arrived at as a result of fraud, misrepresentation or undue influence or that it is not binding as the workmen 's representative had bartered away their interests for personal considerations. This difficulty, if it is a diffi culty, will always be there even in a case where a settlement has been arrived at ordinarily between the parties and is binding under section 18 (1), even though no dispute has been referred in that connection to a tribunal. Ordinarily, however, such difficulty should not arise at all, if we read sections 2 (p), 18 (1) and 19 (1) of the Act together. Section 2 (p) lays down what a settlement is and it includes "a written agreement between the employer and workmen arrived at otherwise than in the course of conciliation proceeding where such agreement has been signed by the parties thereto in such manner as may be prescribed and a copy thereof has been sent to the appropriate govern ment and the conciliation officer". Therefore the settlement has to be signed in the manner prescribed by the rules and a copy of it has to be sent to the Government and the conciliation officer. This should ordinarily ensure that the agreement has been arrived at without any of those defects to which we have referred above, if it is in accordance with the rules. Then section 18 (1) provides that such a settlement would be binding between the parties and vs 19 (1) provides 457 that it shall come into force on the date it was signed or on the date on which it says that it shall come into force. Therefore as soon ' as an agreement is signed in the prescribed manner and a copy of it is sent to the Government and the conciliation officer it becomes binding at once on the parties to it and comes into operation on the date it is signed or on the date which might be mentioned in it for its coming into operation. In such a case there is no scope for any inquiry by Government as to the bona fide character of the settlement which becomes binding and comes into operation once it is signed in the manner provided in the rules and a copy is sent to the Government and the conciliation officer. The settlement having thus become binding and in many cases having already come into operation, there is no scope for any inquiry by the Government as to the bona fides of the settlement. In such a case in view of the possibility of conflict between the settlement in view of its binding nature under section 18 (1) and an award which might become binding on publication under section 18 (3), the proper course for the Government is to withhold the award from publication to avoid this conflict. If any dispute of the nature referred to above arises as to a. settlement, that would be another industrial dispute, which the Government may refer for adjudication and if on such an adjudication the settlement is found not to be binding under section 18 (1) of the Act it will always be open to the Government then to publish the award which it had withheld, though we do not think that such instances are likely to be anything but extremely rare. We are therefore of opinion that though section 17 (1) is mandatory and the Government is bound to publish the award received by it from an industrial tribunal, the situation arising in a case like the present is of an exceptional nature and requires reconciliation between section 18 (1) and section t8 (3), and in such a situation the only way to reconcile the two provisions is to withhold the publication of the award, as a binding 458 settlement has already come into force in order to avoid possible conflict between a binding settlement under section 18 (1) and a binding award under section 18 (3). In such a situation we are of opinion that the Government ought not to publish the award under section 17 (1) and in cases where government is going to publish it, it can be directed not to publish the award in view of the binding settlement arrived at between the parties under section 18 (1) with respect to the very matters which were the subject matter of adjudication under the award. We therefore allow the appeals and direct the Government not to publish the awards sent to it by the industrial tribunal in these cases in view of the binding nature of the settlements arrived at between the parties under section 18 (1) of the Act. In the circumstances we order the parties to bear their own costs. Appeals allowed.

IN-Abs

The facts of the three appeals are similar and the questions of law involved are identical. Industrial disputes having arisen between the appellants and their workmen the disputes were referred for adjudication. After the Tribunal forwarded their Awards to the Government the parties in each dispute came to settlement. Thereafter letters were sent to the Government requesting them to withhold the publication of the Awards. The Government replied that under section 17 of the Act it was mandatory for the Government to publish the Awards and they could not withhold publication. Thereupon writ petitions were filed before the High Court under article 226 of the Constitution praying that the Government might be directed to withhold the publication. The High Court held that since the provisions of section 17 of the Act were mandatory it was not open to the High Court to issue writs as prayed for and rejected, the petitions. The present appeals are by way of certificate granted by the High Court. The main contentions in the appeals were that the provisions of section 17 were not mandatory but were only directory and in the alternative that even if they were mandatory some via media had to be found in view of the conflict that would arise between an award published under section 17 (1) and a settlement which was binding under section 18 (1) and therefore where there was a settlement which was binding under section 18 (1) it would be open to the Government not to publish the award. It was con. tended on behalf of the respondent that if the argument of the appellants was accepted it would create a difficult situation in as much as it would be possible for one party or the other to represent to the Government that the settlement had been arrived at 449 as a result of fraud, misrepresentation or undue influence and corruption etc. Held, that it is clear on a reading of section 17 and section 17A together that the intention behind section 17 (1) is that a duty is cast on Government to publish the award within thirty days of its receipt and the provision for its publication is mandatory and not merely directory. When an agreement at has been arrived at between the parties, though not in the course course of conciliation proceedings, it becomes a settlement as per the definition under section 2 (p) and section 18 (1) lays down that such a Settlement shall be binding on all the parties to it. If a situation like the one in the present case arises which may lead to a conflict between a settlement under section 18 (1) and an award binding under section 18 (3) on publication, the only solution is to withhold the award from publication. This would not in any way affect the mandatory nature of the provisions in section 17 (1) for the Government would ordinarily have to publish the award but for the special situation arising in such cases. If any dispute arises as to the binding nature of the settlement on grounds of fraud or misrepresentation etc. that would be another industrial dispute, which the Government may refer for adjudication and if such a settlement is found not to be binding under section 18 (1) of the Act it will always be open to the Government to publish the Award which it had withheld. State of Bihar vs D. N. Ganguly, ; , referred to.

Appeal No. 637 of 1962. Appeal by special leave from the award dated April 29, 1961 of the State Industrial Court at Nagpur in Industrial Reference No. 13 of 1959. M. C, Setalvad, Vallbhdas Mehta and Sardar Bahadur, for the appellant. S.A. Sohni, Swarup Khanduja Lalit Kumar adn Ganpat Rai, for the respondents. March 25. The judgment of the Court was delivered by DAS GUPTA J. This appeal by,special leave is against an award of the Industrial Court at Nagpur tinder section 38 (a) of the Central Provinces and Berar Industrial Disputes Settlement Act, 1947 dated April 29, 1961. By an earlier award dated December 4, 1959, the Industrial Court ordered the payment of gratuity to the employees of the appellant Company on certain rates. The award was to come into force from December 4, 1959. OD an application by the Company under article 227 of the Constitution, the Nagpur High Court set aside the industrial Court 's order and remanded the matter for reconsideration of the question after examining the financial condition of the Company. After remand the Industrial Court took evidence of both parties as regards the financial condition of the Company and came to the conclusion that the Company was in a very sound financial position and could easily bear the burden of payment of gratuity to the extent of Rs. 50,000/ or even more. Accordinglyv, the Industrial Court made a fresh award directing the payment of gratuity to the Company 's employees at the rate of 1 month 's average wage the average wage to be calculated for the period December 1, 1 958 to November 30, 1959 to every 515 employee who had to his credit uninterrupted continuous service of not less than five years on termination of his service, except by dismissal on account of misconduct. The award was directed to come into force from April 29,1961. The Appellant Company was a licensce for supplying electric energy to the public within the area approximating to the Municipal limits of Akola. The license expired on December 6, 1959. Prior,to this the State Electricity Board had by a notice dated November 27, 1957, intimated its intention to exercise its option to purchase the undertaking on the expiry of the license. It was after this notice had been served and it was known that the Company would be closing its business on December 6, 1959, that the claim for gratuity in respect of which the Industrial Court has made its award, was first made. Indeed, the very application for referring this and other disputes for arbitration contained the frank statement that it was in view of the impending closure of business that the claim for gratuity was being made. It is interesting to notice that the earlier award by tile Industrial Court was made only two days before the Company 's license expired and the business was taken over by the Bombay Electricity Board. The award now under appeal was made more than a year after the Company had closed its business. The main contention urged before us in support of the appeal is that the Tribunal was not justified in imposing on the Company a gratuity scheme at a time when it had already ceased to carry on its business. It is argued that gratuity schemes are planned on a long term basis, the ruling principle being to make the employer to pay retiral benefits to such of its employees as, retire from year to year. The framing of a gratuity scheme when an industry is on the verge of closure or after it has closed is, it 516 is urged, wholly unjustified. In our opinion, tkere is considerable force in this contention. It has been laid down by this Court that the statutory provision for payment of retrenchment compensation is no bar to the framing of a gratuity scheme. Thec question was fully considered by this Court in Indian Hume Pipe Co. vs Its Workmen (1), where this Court pointed out that while gratuity is intended to help workmen after retirement to whatever cause the retirement may be due to, retrenchment compensation is intended to give relief for the sudden and unexpected termination of employment by givinog partial protection to the retrenched person and his family to enable them to tide over the hard period of unemployment. It has also been held by this Court in the Bharatkhand Textile Mfg. Co. Ltd, vs Textile labour Asson. (2), that the existence of a Provident Fund Scheme is also no bar to the provision of further retiral benefit by way of gratuitv scheme. Learned Counsel for the respondent seems to think that these cases somehow supported his contention that the fact that an industry is going to close or has actually closed is no bar to a framing of gratuity scheme for its employees. We are unable to see however anything in these decisions of this Court to assist such a plea. In neither of these cases nor in any other case that we know of had this Court to consider the question of a gratuity scheme in an industry which 'is going to close in the near future or has already been closed. Indeed, we know of no case in which an Industrial Tribunal has ever framed a gratuity scheme for an industry which was not expected to carry on or has ceased to carry on its business. In all the cases that have come before Industrial Tribunal or this Court gratuity schemes asked for or allowed have been in industries which were expected to carry on fora (1) (2) ; , 517 fairly long time. One of the important factors which requires consideration in deciding on the propriety of a scheme of gratuity is the ability of the industry to bear the additional financial burden and in deciding this question it has been repeatedly pointed out, the burden from year to year has to be considered after taking into account the average number of retirements likely to take place in a year. Thus in the Bharatkhand Textile Mfg. case (1), this Court in discussing the considerations that arise in such matters, said: ". . there can be no doubt that before framing a Scheme for gratuity industrial adjudication has to take into account several relevant facts; the financial condition of the employer, his profit making capacity, the profits earned by him the past, the extent of his reserves and the chances of his replenishing them as well as the claims for capital invested by him, these and other material considerations may have to be borne in mind in determining the terms of the gratuity scheme . . it appears also to be well recognised that though the grant of a claim for gratuity must depend upon the capacity of the employer to stand the burden on a long term basis it would not be permissible to place undue emphasis either on the temporary prosperity or the temporary adversity of the emyloyer. In evolving a long term scheme a long term view has to be taken of the employer 's financial condition and it is on such a basis alone that the question as to whether a scheme should be framed or not must be decided. " These observations emphasise the position that gratuity schemes are always made in the expectation of the industry continuing to function for a long time to come. (1) ; 518 It has to be noticed that the provision for gratuity scheme is not based on any statutory enactment, but has been evolved by industrial adjudication as a step to achieve social justice. In doing so, industrial adjudication has proceeded on the basis that only a small percentage of the workmen retire in any particular year and so the provision for paying gratuity to retiring workmen would ordinarily be not an unreasonable burden for the employer to be asked to bear. The position is materially altered however when the industry is expected to close in the immediate future, or has actually closed. In such a case the entire body of workmen will "retiring" at one and the same time so that in substance, though not in name, the provision of gratuity would be equivalent to the grant of retrenchment compensa tion, in addition to what is provided for in the statute. We can find no justification for this in the principles of social justice. We have therefore come to the conclusion that the Industrial Court acted wrongly in directing any gratuity to be paid by the Company to its employees. We accordingly allow the appeal, and set aside the award made by the Industrial Court. There will be no order as to costs. Appeal allowed.

IN-Abs

The appellant company was a licensee for supplying elec. tricity. The State Electricity Board had by a notice intimated its intention to purchase the appellant 's undertaking on the expiry of its license. Two days prior to the expiry of the licence the Industrial Court at Nagpur framed a scheme for payment of gratuity to the employees of the appellant company with effect from the date of the order. On application by the appellant company under article 227 of the Constitution the High Court of Nagpur set aside the Industrial Court 's order and remanded the matter for the reconsideration. After remand the Industrial Court came to the conclusion that the appellant company was in a position to pay gratuity and made a fresh award framing a scheme for payment of gratuity to its employees at the rate of 1 month 's average wage. This award was made more than a year after the company had closed its business. The present appeal is by way of special leave granted by this Court. The main contention in the appeal was that the Tribunal was not justified in imposing on the company a gratuity scheme at a time when it had already ceased to carry on its business. Held that the gratuity schemes are always made in the expectation of the industry continuing to function for a long time to come and hence the Industrial Court acted wrongly in framing any gratuity scheme for payment of gratuity by the company to its employees, Indian Hume Pipe Co. vs Its Workmen, and Bharatkhand Textile Mfg., Co., Ltd. vs Textile Labour Association, ; , distinguished.

Appeals Nos. 34 to 36 of 1962. Appeals from the judgment and order dated March 25, 1958, of the Madras High Court in Case Referred No. 12 of 1954. K. N. Rajagopal Sastri and R. N. Sachthey, for the appellant. R. Gopalakrishnan, for the respondent. March 26. The judgment of the Court was delivered by HIDAYATULLAH J. The High Court of Madras in a Reference under s.66 (1) of the Indian Income Tax Act, answered in the negative the following question: "Whether there was material for the Appellate Tribunal to hold that the income arising to Mrs. C.M. Kothari and Mrs. D. C. Kothari from the property arose indirectly out of the 533 assests transferred indirectly by their husbands so as to attract the provisions of s.16 (3)(a)(iii). " In our opinion, these appeals by the Commissioner of Income tax. , Madras, must be allowed. Messrs Kothari and Sons is a firm of stock brokers. In 1947, the firm consisted of C.M. Kothari and his two sons, D. C. Kothari and H. C. Kothari Their respective shares were 6 : 5 : 5. On October 7, 1947, the firm entered into an agreement for the purchase of a house in Sterling Road, Madras, for Rs.90,000, and the same day paid an advance of s.5,000. This sum was debited in the books of the firm to the accountsof the three partners as follows: C. M. Kothari Rs.1,800 D. C. Kothari Rs.1,600 H. C. Kothari Rs.1,600 Total. Rs.5,000 The transaction was completed on October 24, 1947. The sale deed, however, was taken in the names of Mrs. C.M. Kothari Mrs. D.C. Kothari and H.C. Kothari. The balance of the consideration was paid to the vendors by the firm. Each of the two ladies paid to the firm a cheque of Rs.28,333 5 4. Mrs. C.M. Kothari further paid a cheque of Rs. 1,800, and Mrs. D.C. Kothari paid another cheque of Rs. 1600 Thus the two ladies paid one third share of Rs.85,000 and the amounts which were respectively paid by their husbands as part of the earnest money. H.C. Kothari was debited with a further sum of Rs.28,333.5 4. In this way, Mrs. C. M. Kothari pad Rs.200 more than the other two, because her husband had previously paid Rs.200 more than his sons. The share of the three vendees was however, Shown to be one third each. 534 The ladies issued the cheques on their accounts into which were paid by the firm, certain amounts by cheques. Into Mrs. C.M. Kothari 's account was paid an amount of Rs.27,000 which was debited on October 24, 1947 to D.C. Kothari. It was stated to be a birthday gift by him to his mother. On November 13, 1947, another amount of Rs. 3,000 was paid into Mrs. C. M. Kothari 's account which was debited to the account of D. C. Kothari as a gift by him to his mother for Dewali. Similarly, on November 13, 1947 Mrs. D. C. Kothari 's account with the bank was credited with a sum of Rs.30,000 by a cheque issued by the firm. This was debited to the account of C, M. Kothari and was shown as a gift by him to his daughter in law. In this way both the ladies received from the firm Rs. 30,000 which was the exact one third share of the consideration of Rs.90,000, but the amount was not paid by their respective husbands, but by the son in one case, and the father in law,, in the other. In the assessment years 1948 49, 1950 51 and 1951 1952, the Income Tax Officer assessed the incomefrom the one third share of the house received by Mrs. C.M.Kothari as the income of her husband. Similarlyin the four assessment years 1948 49 to 1951 52, the income of Mrs. D. C. Kothari from this house was assessed as the income of her husband. This was on the ground that because of the interchange of the money in the family, either the purchases were made by the donors benami in the names of the donees, or alternatively, from assets transferred indirectly by the husband to the wife in each case. The Income Tax Officer pointed out that the birthday of Mrs. C. M. Kothari had taken place earlier in the year and there was no occasion to give a birthday present to her several months later and on a date coinciding with the purchase of this property. The Income Tax Officer also found that in the past, the father in law bad never given 535 such a big present to his daughter in law on Dewali and this time there was no special circumstance to justify it. The appeals of the assessee to the appellate Assistant Commissioner failed as also those filed before the Tribunal. The Tribunal, however, did not hold that the transaction was benami, but confirmed the other finding that the two ladies bad acquired their share in the house out of assets of the husbands indirectly transferred to them. The Tribunal, how ever, stated a case for the opinion of the High Court, and the High Court answered the question in the negative. As the question whether the two transactions were benami does not fall to be considered, the only question that survives is whether this case is covered Sy s.16 (3) (a) (iii). This section reads as follows: "16(3). In computing the total income of any individual for the purpose of assessment, there shall be included (a)So much of the income of a wife. of such individual as arises directly or indirectly (iii)From assets transferred directly or indirectly to the wife by the husband otherwise than for adequate consideration or in connection with an agreement to live apart;" The section takes into account not only transference of assets made directly but also made indirectly. It is impossible to state here what sorts are covered by the word indirectly ', because such transfers may, be made in different ways. It is argued that the first requisite of the section is that the assets must be those of the husband and 536 that is not the case here. It is true that the section says that the assets must be those of the husband, but it does not mean that the same assets should reach the wife. It may be that the assets in the course of being transferred, may be changed deliberately into assets of a like value of another person, as has happened in the present case. A chain of transfers, if not comprehended by the word "Indirectly ' would easily defeat the object of the law which is to tax the income of the wife in the hands of the husband, if the income of the wife arises to her from assets transferred by the husband. The present case is an admirable instance of how indirect transfers can be made by substituting the assets of another person who has benefited to the same or nearly the same extent from assests transferred to him by the husband. It is next contended that even if chain transactions be included, then, unless there is consideration for the transfer by the husband, each transfer must be regarded as independent, and in the present case, the Department has not proved that the transfers by the son to the mother and by the father in law to his daughter in law were made as consideration for each other. We do not agree. It is not necessary that there should be consideration in the technical sense. If the two transfers are inter connected and are parts of the same transaction in such a way that it can be said that the circuitous method has been adopted as a device to evade implications of this section, the case will fall within the section. In this case, the device is palpable and the two transfers are so intimately connected that they cannot but be regarded as parts of single transaction. It has not been successfully explained why the father in law made such a big, gift to his daughter in law on the occasion of Diwali and why the son made a belated gift, equally big, to his mother on the occasion of her birthday which took place several months before. These two gifts match each other as regards the amount, The 537 High Court overlooked the clear implication of these fact as also the Implication of the fact that though the three purchasers were to get one third share each, Mrs. C. M. Kothari paid Rs. 200 more than the other two and that each of the ladies re paid the share of earnest money borne by their respective husbands. An intimate connection between the two transactions, which were primafacie separate, is thus clearly established and they attract the words of the section, namely, "transferred directly or indirectly to the wife". In our opinion, the High Court was in error in ignoring these pertinent matters. The High Court also overlooked the fact that the purchase of the house at first was intended to be in the names of three partners of the firm. No evidence was tendered why there was a sudden change. It is difficult to see why the ladies were named as the vendees if they did not have sufficient funds of their own. They could only buy the property if some one gave them the money. It is reasonable to infer from the facts that before the respective husbands paid the amounts, they looked up the law and found that the income of the property would still be regarded as their own income if they transferred any assets to their wives. They hit upon the expedient that the son should transfer the assets to his mother, and the father in law, to the daughterin law, obviously failing to appreciate that the word "indirectly ' is meant to cover such tricks. The appeals must, therefore, succeed. The answer of the High Court is vacated, and the question, answered in the affirmative. The respondent shall bear the costs of these appeals as also the costs in the High Court. One hearing fee.

IN-Abs

Messrs Kotbari and Sons is a firm of stock brokers. The firm consisted of Shri C. M. Kothari and his two sons, Shri D. C. Kothari and Shri H. C. Kothari. The firm entered into an agreement for the purchase of a house and the earnest money was paid by it. Later on, the house was bought in the name of Mrs. C. M. Kothari, Mrs. D. C. Kothari and Shri H. C. Kotliari. The house was bought for Rs. 90,000/ and both Mrs. C. M Kothari and Mrs. D. C. Kothari received Rs. 30,000 each from the firm. In the case of Mrs. C. M. Kothari, she got that amount in the form of birthday gift and Diwali gift from her son, D. C. Kothari. Mrs. D. C. Kothari also received Rs. 30,000 from the firm as a gift from Shri C. M. Kothari, her father in law. The Income tax Officer assessed the income of Mrs. C. M. Kothari and Mrs. 1). C. Kotliari from the said house as the income of their husbands. The appeals of the assessees were dismissed by the Appellate Assistant Commissioner and the Tribunal. The Tribunal confirmed the finding of the Income Tax Officer that the two ladies had acquired their shares in the house out of the assets of their husbands indirectly transferred to them. However, the Tribunal did not hold that the transaction was benami. The Tribunal referred the case to the High Court for opinion whether the income arising to Mrs. C. M. Kotbari and Mrs. D. C. Kothari from the property arose out of the assets transferred indirectly by their husbands so as to attract the provisions of section 16 (3) (a) (iii) of the Income tax Act, 1922.The High Court answered the reference in the negative. The Commissioner of Income tax, Madras, came to this Court in appeal. 532 Held that the answer given by the High Court must be set aside and the reference made by the Tribunal must be answered in the affirmative. The object of law is to tax the income of the wife in the hands of the husband if the income of the wife arises to her from assets transferred to her by her husband. In the present case, the son transferred the assets to his mother and the father in law transferred his assets to his daughter in law. The term "indirectly" is intended to cover such tricks. If two transfers are inter connected and are parts of the same transaction in such a way that it can be said that a circuitous method has been adopted as a device to evade the implications of section 16 (3) (a) (iii), the case will fall within this section. In the present case, the device is palpable and the two transferrers are so intimately connected that they cannot but be regarded as a part of a single transaction. It was not successfully explained why the father in law made a big gift to his daughter in law and the son made an equally big gift to his mother.

Appeal No. 486 of 1962. Appeal by special leave from the judgment and decree dated September 24, 1959, of the Patna High Court in Miscellaneous judicial Case No. 318 of 1957. A.V. Viswanatha Sastri and P. K. Chatterjee, for the appellants. K. N. Rajagopal Sastri and R. N. Sachthey, for the respondent. March 27. The judgment of the Court was delivered by HIDAYATULLAH J. This is an assessee 's appeal by special leave of this Court against an order of the High Court of Patna, answering in favour of the Department the question "whether in the circumstances of the case the amount of Rs. 51,000 being the value of high denomination notes encashed by the assessee, has been validly taxed as profits from some undisclosed business". The original assessee, Rai Bahadur H. P. Banerjee, is dead. His son, who was substituted in his place, also died during the pendency of the proceedings in the High Court. The present appeal has been filed by the widow of the son and other legal representatives. Banerjee was the owner of several collieries in the Jharia Coal fields in the State of Bihar and 555 was also a contractor for raising coal. This matter relates to the assessment year 1946 47. For that year, Banerjee was assessed on an income of Rs. 1,28,738. The assessment was then re opened under section 34 of the Indian Income Tax Act, and was enhanced, but subsequently on appeal, it was reduced to a sum a little below the original assessment. The present assessment was made on a second re opening of the case under section 34 in the following circumstances. On January 22, 1946, Banerjee encashed high denomination notes of the value of Rs. 51,000/ . In his application under the Ordinance which demonetized high denomination notes, Banerjee gave the reason for the possession of the notes as follows: "I am engaged in business as colliery proprie tor, contractor under Messrs. Kilburn & Co. in the name and style of H.P. Banerjee & Son and also under the State Rly. Bokaro, Swang, Hazaribagh district in the name of Jharia Dhanbad Coal & Mica Mining Co. . . For conducting the business and payment to labour, I have to pay every week between 30/40 thousand as I did not get payment for work done every week. I had to keep large sum of money to meet emergency. . . . It is neither profit nor part of profit it is very floating capital for purpose of conducing business. It is not an excess of profit". He stated that he had accounts with (1) Imperial Bank of India, (2) Nath Bank Ltd., jharia, and (3) Central Bank of India Ltd., Bhowanipore Branch, but added that he did not remember exactly from which Bank the notes came into his possession, as his transanctions were frequent. The notice which was issued to him under section 34 of the Income Tax Act, was not questioned on any of the grounds which are usual in such cases. Banerjee 's explanation 556 was not accepted. The Income Tax Officer pointed out that although his business was large and the withdrawals from the various banks were large and frequent, he had not maintained a central account showing withdrawals from the banks and remittances made to his various businesses, and that none of the books maintained by the assessee and produced by him, contained a bank account. The Income Tax Officer found a discrepancy of nearly Rs. 50,000 in the statements filed by the assessee. He, accordingly, treated the high denomination notes as profits from some undisclosed source and assessed them as assessable income. Banerjee appealed to the Appellate Assistant Commissioner and further to the Tribunal. Both the authorities upheld the order of the Income Tax Officer. The assessee demanded a case which was refused, but the High Court directed a statement of the case on the question already quoted. The High Court decided the question against the assessee, and hence this appeal. The connection of the appellants is that since the Department had issued a notice under section 34 of the Income Tax Act, it was incumbent on the department to establish that the amount in question was income which had escaped assessment. The appellants also contend that even if the assessee was required to prove the source of the high denomination notes, he had sufficiently proved it by showing that he had large amounts on hand, which were held for convenience in high denomination notes. The appellants thus submit that the burden, if any, upon the assessee was discharged in the case, and the evidence being unrebutted, the additional assessment could not be made. The appellant rely upon Kanpur Steel Co., Ltd. vs C. 1. T. (1) where, according to the appellants, the Allahabad High Court explained the nature of burden of proof in the way contended for by the appellants. They (1) 557 claim that the Allahabad case applies to the facts here and point out that the said ruling was considered and approved by this Court in Lalchand Bhagat Ambica, Ram vs Commissioner of Income Tax, Bihar and Orissa (1). Other cases have been cited on behalf of the department. The cases involving the encashment of high denomination notes are quite numerous. In some of them the explanation tendered by the tax payer has been accepted and in some it has been rejected. The manner in which evidence brought on behalf of the tax payer should be viewed, has of course, depended on the facts of each case. In these cases in which the assessee proved that he had on the relevant date a large sum of money sufficient to cover the number of notes encashed, this Court and the High Courts, in the absence of something which showed that the explanation was inherently improbable, accepted the explanation that the assessee held the amount or a part of it in high denomination notes. In other words, in such cases, the assessee was held prima facie to have discharged the burden which was upon him. Where the assessee was unable to prove that in his normal business or otherwise, he was possessed of so much cash, it was held that the assessee started under a cloud and must dispel that cloud to the reasonable satisfaction of the assessing authorities, and that if he did not, then, the Department was free to reject his explanation and to hold that the amount represented income from some undisclosed source. The case which is strongly relied upon by the assessee is Kanpur Steel Co., Ltd. vs C. I. T.(2). In that case, 32 notes of Rs. 1,000 were encashed. It was claimed that they were part of the cash balance of the company which amounted to Rs. 34,000 odd. The Income Tax Officer examined the entries regarding sales preceding the encashment of the notes and (1) (2) 568 found that those sales brought in sums under Rs. 1,000 and could not have resulted in the accumulation of so many high denomination notes. The Tribunal then came to the conclusion that Rs. 7,000 only could have been held in high denomination notes. On a reference, the Allahabad High Court held that the burden lay upon the Department to prove that Rs. 32,000 was suppressed income and there was no burden on the assessee to show whence he got the notes, because until demonetization, there was no idea that possession of high denomination notes would have to be explained. The High Court also found that the explanation was fairly satisfactory, because big notes might have been received even in small transactions and change taken, and that the High Court could not make a conjecture how many notes could or could not have accumulated. It is contended before us that the burden in such cases lies as stated by the Allahabad High Court. On the other hand, in Manindranath Das vs Commissioner of Income Tax, Bihar & Orissa (1), the tax payer had encashed Notes of the value of Rs. 28,600, which he contended were his accumulated savings. His explanation was accepted in respect of Rs. 15,000, because 15 notes could be traced to a bank, but was rejected in respect of the balance. The Patna High Court pointed out that if an assessee received an amount in the year of account, it was for him to show that the amount so received did not bear the character of income, and the tax payer in the case had failed to prove this fact in respect of the remaining notes. The Patna case finds support in A. Govindaraju Mudaliar vs Commissioner of Income Tax Hyderabad; (2), where it is laid down by this Court that if an assessee fails to prove satisfactorily the source and nature of an amount received by him during the accounting year, the Income Tax Officer is entitled to draw the inference that the (1) (2) [1958] 94 I.T.R .8.70 559 receipts are of an assessable nature. In that case, the explanation of the assessee in respect of the amounts shown as credits for him in the account books of a firm of which he was a partner, was rejected as un true. It was held that it was open to the Income Tax Officer and the Appellate Tribunal to hold that the amounts represented the concealed income of the assessee. From the last two cases, it is plain that if there is receipt of an amount in the accounting year, it is incumbent in the first instance upon the assessee to show that it does not bear the character of income. If be fails to do this, the Income Tax Officer may hold that it represents income of the assessee either from the sources he has disclosed or from some undisclosed source. In applying this principle to the cases of encashment of high denomination notes, there is some difficulty when the assessee has books of account which are accepted and in which there is a cash balance sufficient to cover the amount of high denomination notes. Each case must depend upon its own peculiar facts. A few illustrative cases may be noticed, because they show some differences in the approach to the problem. In Chunilal Ticamchand Coal Co., Ltd., vs Commissioner of Income Tax, Bihar and Orissa (1), high denomination notes of the value of Rs. 68,000 were encashed. Evidence showed that the assessee was in the habit of keeping large sums which he kept intact for emergencies and meeting the current needs from withdrawals from the banks. This explanation was supported by receipts and disbursement in the books of account. The explanation was rejected as to a part because the accounts did not mention the high denomination notes and further because such notes were hardly needed to pay wages to labourers. The Tribunal, however, held that the explanation might be true as to a part (1) 560 and accepted it in respect of Rs. 35,000, rejecting it in respect of Rs 33,000. The Patna High Court held that the explanation which was held to be reasonable as to a part must be good for the whole, because there was no material on which it could be held that the balance constituted income from some undisclosed source to distinguish the case about the part rejected from the part accepted. In Mehta Parikh & Co. vs Commsioner of Income Tax, Bombay, (1) high denomination notes of the value of Rs.61,000 were encashed. The explanation was that they were part of the cash balance on hand. The accounts disclosed that in order to sustain the explanation, it would have to be presumed that the entire balance on January 1, 1946, was held in 18 notes of Rs. 1,000 each and that all receipts up to. ' January 18,1946, when the notes were encashed, were also in High denomination notes. The affidavits of persons who stated that they had paid amounts in Rs.1,000 notes were not accepted. The Tribunal accepted the explanation as to Rs.31,000 only. This Court held that if the account books were accepted and the deponents were not crossexamined on their affidavits, the rejection of the explanation as to a part proceeded only on surmise and the finding that Rs.30,000 were income from some undisclosed source was based on no evidence. It may be pointed out that Venkatarama Ayyar J., in that case, chose to rest his decision on the second ground only, treating the decision as involving an error of law. But in Sovachand Baid vs Commissioner of Income Tax, (2) high denomination notes of the value of Rs.2,28,000 were encashed. The assessee stated that he had inherited that amount from his father in 1942, and produced account books from 1926 to 1942. He did not produce earlier account books. The Tribunal found that the books were such as could be written at any time and did not contain full dealings even between 1926 and (1) (2) , 561 1942, and there were no entries showing that any amount as such was received from business. The Tribunal, however, held that Rs.1,28,000 only was income from some undisclosed source. The assessee 's appeal in this Court was dismissed, because the rejection of the account books was held to be reasonable in the circumstances of the case. This Court observed that the partial rejection of the explanation by the Tribunal must be treated as a concession rather than a reasoned conclusion. We now come to Lalchand Bhagat 's case which is strongly relied upon, particulary, as it has cited the Allahabad case, so it is said, with omplete approval. It is therefore, necessary to examine it closely to see if there is such an approval. In that case, 291 high denomination notes of the value of Rs.2,91,000 were encashed. The assessee was maintaining for a long time past two accounts: one was known as "Almirah Account", and other, "Rokar Account". On the date the notes were encashed there was a balance of Rs.2,81,397 in the almirah account and Rs.29,284 in the rokar account. These two amounts between them were sufficient to cover the encashed notes. The explanation was that for the purposes of the business which was distributed in many branches, a large amount of ready cash was always kept at the head office, so that any emergency might be met. The business of the assessee was admittedly extensive and the almirah account had also existed for several years. Except in the previous year in which the high denomination notes were encashed, even the numbers of the high denomination notes used to be shown in the almirah account. The explanation was rejected on the ground that those were the days of emergency and the assessee, as a grain dealer, could have secretly made money by smuggling grain, and that he had once been prosecuted, though acquitted. It was also said that the area where he did his business was 562 notorious for smuggling and also that he had speculated in the year and might easily have made profits, though he had returned a loss from speculation. Emphasis was also laid upon the fact that in the year of account, the numbers of the high denomination notes were written subsequently. The Tribunal accepted the two books of account as genuine and also that there was a balance of Rs.3,10,681 with the assessee. Before the Tribunal it was explained that in the year of account the numbers of the high denomination notes were inserted in the almirah account out of nervousness owing to the demonetization of the notes. The Tribunal accepted the explanation with regard to Rs. 1,50,000 and rejected it with regard to Rs.1,41,000. No reasons were given for distinguishing the good part of the explanation from the bad. This Court examined the reasons and held that except for the insertion of the numbers of notes in the book, none of the other reasons had any probative value and that they were mere conjectures and surmises. This court pointed out that if the explanation for the interpolations was good for the acceptance of the explanation as to Rs.1,50,000, it must be held to be good also for the balance, because there was nothing to distinguish between the two parts. This Court, therefore, pointed out that the main question about Rs.1,41,000 was whether there was any material to justify a different conclusion in respect of that amount and pointed to the following facts. The assessee had established the need for keeping a large sum on hand and had proved the almirah account as a genuine account. The almirah account contained the numbers of the high denomination notes in the years previous to the year relative to the assessment. In that year, the numbers were inserted subsequently and this was the only substantial point against the assessee. This Court also pointed out that there were statements of banks and accounts 563 of the branches and of beparis, showing that large amounts were received by the assessee, which made up the amount in the almirah account. Between February 6, 1945 and January 11, 1946, when the notes were encashed, sum,, above Rs. 1,000 received by the assessee aggregated to as much as rupees five lakhs. As the almirah account was not questioned by the Tribunal at all, and out of that amount, more than half was held to be in the shape of high denomination notes, this Court posed the following question: "Was there any material on record which would legitimately lead the Tribunal to come to the conclusion that the nature of the source from which the appellant derived the remaining 141 high denomination notes of Rs. 1000 remained unexplained". The Court, therefore, concluded "If the entries in the books of account in regard to the balance in the Rokar and the balance in the Almirah were held to be genuine logically enough there was no escape from the conclusion that the appellant had offered reasonable explanation as to the source of the 291 high denomination notes of Rs. 1000 each which it had encashed on January 19, 1946". The case of assessee was thus accepted in toto. This Court did not hold that the assessee need not prove anything. As we have said earlier, the burden of proof must depend on the facts of the case. One such fact may be the existence of a large floating cash balance on hand, and taken with other facts, may be sufficient to show that the high denomination notes constituted the whole or part of that balance. In the Allahabad case, such a balance was proved and was accepted as to a part by the 564 Tribunal. The High Court held that the explanation was good for the whole of the amount of the notes. No doubt, this Court, in referring to that case, summarised the reasons, but it pointed out that it was not open to the Tribunal to make a guess as to the number of high denomination notes which could be accepted, and cited the Allahabad case and some others in that connection. It seems to us that the correct approach to questions of this kind is this. If I here is an entry in the account books of the assessee which shows the receipt of a sum or conversion of high denomination notes tendered for conversion by the assessee himself, it is necessary for the assessee to establish, if asked, what the source of that money is and to prove that it does not bear the nature of income. The Department is not at this stage required to prove anything. It can ask the assessee to bring any books of account or other documents or evidence pertinent to the explanation if one is furnished, and examine the evidence and the explanation. If the explanation shows that the receipt was not of an income nature, the Department cannot act unreasonably and reject that explanation to hold that it was income. If, however, the explanation is unconvincing and one which deserves to be rejected, the Department can reject it and draw the inference that the amount represents income either from the sources already disclosed by the assessee or from some undisclosed source. The Department does not then proceed on no evidence, because the fact that there was receipt of money, is itself evidence against the assessee. There is thus prima facie evidence against the assessee which he fails to rebut, and being unrebutted, that evidence can be used against him by holding that it was a receipt of an income nature. The very words "an undisclosed source" show that the disclosure must come from the assessee and not form the Department. In cases of high denomination notes, 565 where the business and the state of accounts and dealings of the assessee justify a reasonable inference that he might have for convenience kept the whole or a part of a particular sum in high denomination notes, the assessee prima facie discharges his initial burden when he proves the balance and that it might reasonably have been kept in high denomination notes. Before the Department rejects such evidence, it must either show an inherent weakness in the explanation or rebut it by putting to the assessee some information or evidence which it has in its possession. The Department cannot by merely rejecting unreasonably a good explanation, convert good proof into no proof. It is within the range of these principles that such cases have to be decided. We do not think that the Allahabad view puts no burden upon the assessee and throws the entire burden on the Department. The case itself does not bear this out. If it does, then, it is not the right view. In the present case, the assessee claimed that the high denomination notes were a part of the cash balance at the head office. The Income Tax Officer found that at first the cash on hand was said to be Rs. 1,62,022, but on scrutiny, it was found to be wrong. Indeed, the assessee himself corrected it before the Appellate Assistant Commissioner and stated there that the balance was Rs. 1,21,875. Ordinarily, this would have prima facie proved that the assessee might have kept a portion of this balance in high denomination notes. But the assessee failed to prove this balance, as books of the assessee did not contain entries in respect of banks. Though cash used to be received from banks and sent to the various places where works were carried on and vice versa, no central account of such transfers was disclosed. There was also no account of personal expenses of the assessee and he had failed to prove why such large sums were kept on hand in one place when at each of the places where work was carried 566 on, there were banks with which he had accounts. The Appellate Assistant Commissioner also went into the question and found that on the same day when the high denomination notes were encashed, a sum of Rs. 45,000 was drawn by cheque. The next remittance immediately afterwards was of Rs. 16,000 to Bokaro, but Rs. 17,000 were withdrawn a few days before to meet this expense. A withdrawal of Rs. 8,000 was made a day later and Rs. 20,000 were withdrawn ten days later to finance the business. It appears that the money on hand (Rs. 45,000) was not touched at all, but on January 30, 1946, a further sum of Rs. 6,000 was withdrawn and not utilized, which made up the sum of Rs. 51,000 for which the high denomination notes were encashed. On these facts, the Tribunal came to the conclusion that the high denomination notes represented not the cash balance but some other money which remained unexplained, and the Tribunal treatted it as income from some undisclosed source. The High Court held on the above facts and circumstances that there were materials to show that Rs. 51,000 did not form part of the cash balance, and the source of money not having been satisfactorily proved, the Department was justified in holding it to be assessable income of the assessee from some undisclosed source. In this conclusion, the High Court was justified, regard being had to the principles we have explained above. The argument that as this was a case under section 34 of the Income Tax Act, it cast a special burden on the Department to show that this income had escaped earlier, need not detain us. No doubt, proceedings under section 34 can only be commenced under the conditions prescribed in the section, but when the proceedings are validly commenced, there is no difference between an ordinary assessment and an additional assessment under section 34, and the same rule 567 as to burden of proof governs the additional assessment. In our opinion, this appeal has no substance; it fails and is dismissed with costs. Appeal dismissed.

IN-Abs

The assessee had encashed 51 high denomination notes of Rs. 1,000/ each in january, 1946. The assessee 's explanation in his application for encashment of the notes was that he was a colliery proprietor and contractor, that for conducting the business and for payment to labour which came to about Rs.30,0001 to 40,000/ every week he had to keep large sums of money to meet emergency and that the sum of Rs. 50,000/realised by encashment of the notes was neither profit nor part of profit but was floating capital for the purpose of,conducting business. The Income tax Officer did not accept this explanation and treated this amount as profit from some undisclosed 553 source and assessed it as assessable income. The assessee contended that the burden lay on the department to establish that the amount in question was income liable to tax and that the department had failed to establish this. Held that the department was justified in holding that Rs. 51,000/ was assessable income of the assessee from some undisclosed source. It was not correct that the assessce was not required to prove anything and that the burden was entirely upon the department to prove that the amount received from the encashment of high denomination notes was income. The correct position is as follows. If there is an entry in the account books of the assessee which shows the receipt of a sum or conversion of the notes by the assessee himself, it is necessary for the asscssee to establish, if asked, what the source of that money was and to prove that it did not bear the nature of income. The department is not at this stage required to prove anything. If tile business, the state of accounts and dealing of the assewsee show that be might have, for convenience, kept the whole or part of a particular sum in high denomination notes, the assessee prima facie discharges his initial burden. If the assessee does this the department cannot act unreasonably and reject that explanation to hold that it was income. If the explanation is unconvincing, the department can reject it and draw the inference that the amount represents income either from the source already disclosed by the assessee or from some undisclosed source. Before the department rejects such evidence it must either show an inherent weakness in the explanation or rebut it by putting to the assessee some information or evidence which it has in its possession. The fact that there was receipt of money or conversion of notes is itself prima facie evidence against the assessee on which the department can Proceed in absence of good explanation. In the present case though cash used to be received from Banks and sent to the various places where works were carried on by the asscssee and vice versa, no central account of such transfers was disclosed. There was also no account of personal expenses of the assessee and he failed to prove why such large sums were kept at hand in one place when at each of the places where work was carried on, there were Banks with which he had accounts. Further though this large sum was kept on hand, further cheques were drawn to meet current needs and this amount remained untouched. Kanpur Steel Co. Ltd. vs C. I. T. , Lalchand Bhagat Ambica Ram vs Commissioner of Income tax, Bihar and Orissa, ; Mahindranath vs Commissioner of Income tax, Bihar and Orissa, [1955] 554 27 , A. Govindarajulu Mudaliar vs Commissioner of Income tax, Hyderabad, [1958] 34 , Chunilal Ticamchand Coal Co. Ltd. vs Commissioner` of Income tax, Bihar and Orissa,[1955] , Mehta Parikh & Co. vs Commissioner of Income tax, Bombay [1956] 30 and Soyachand Baid vs Commissioner of Income tax, [1958] 34 1. T. R. 650, referred to.

Appeal No. 59 of 1950. Appeal from a Judgment of the High Court of Judicature at Calcutta (Harries C.J. and Chatterjea J.) dated 9th September, 1949, in a reference under section 66 (2) of the Indian Income tax Act, 1922. (Reference No. 8 of 1949). M.C. Setalvad, Attorney General for India (G. N. Joshi, with him) for the appellant. section Mitra (B. Banerjee, with him) for the respondents. December 21. The Judgment of the Court was deliv ered by KANIA C.J. This is an appeal from the judgment of the High Court at Calcutta (Harries C.J. and Chatterjea J.) pronounced on a reference made to it by the Income tax Tribunal under section 66 (2) of the Indian Income tax Act. The relevant facts are these. The respondents are a private limited company which was brought into existence to float various companies including cotton mills. In November, 1932, the Basanti Cotton Mills Ltd. was incorporated and the respondents were appointed their managing agents. Their remuneration was fixed at a month ly allowance of Rs. 500 and a commission of 3 per cent. on all gross sales of goods manufactured by the Mills Company. The fixed monthly allowance was liable to be increased in the event of the capital of the company being increased. The details are immaterial. It ap pears that certain hundis were drawn by one of the direc tors of the respondent company, acting in the capacity of the managing agents of the Mill Company, in the name of the Mill Company and the same were negotiated to others. The Nath Bank Ltd. claimed payment of these hundis. The Mill Company repudiated its liability as it appeared from the books of the Mill Company that they had not the use of the sum of Rs. 1 80,000 claimed by the Nath Bank Ltd. under the hundis. The Nath Bank Ltd. instituted four suits 1011 against the Mill Company, in two of which the respondent company were party defendants. The Mill Company was advised to settle the suits and the respondent company entered into an agreement with the Mill Company, the material part of the terms of which runs as follows : "Memorandum of Agreement made between the Calcutta Agency Limited of the one part and Basanti Cotton Mills Ltd. of the other part. WHEREAS the Nath Bank Limited demanded from the Mills the payment of the sum of Rs. 1,80,000 and interest thereon AND WHEREAS the said Mills repudiated their liability in respect thereof as it appeared from the books of the said Mills that the said Mills did not have the use of the said sum of Rs. 1,80000 or any part thereof AND WHEREAS the said Nath Bank Ltd. thereupon instituted four suits in High Court being suit Nos. 1683, 1720, 1735 and 1757 of 1939 for the said aggregate sum of Rs. 1,80,000 and the interest thereon AND WHEREAS the said Mills have been advised to settle the said suits amicably AND WHEREAS the Calcutta Agency Limited by its Directors, S.N. Mitter or S.C. Mitter, having been and being still the Managing Agents of the said Mills have undertaken to reimburse the said Mills in respect of the decrees to be made in the said four suits in the manner hereinafter appearing NOW THESE PRESENTS WITNESS AND IT IS HEREBY AGREED AND DECLARED (i) That out of the commission of 3% payable by the said Mills to the said Agency under Regulation 131 of the Arti cles of Association of the Company, the Company shall have paramount lien on and deduct and set off a moiety thereof against any payment which the said Mills may make in respect of the decrees or any of them and/or costs of the said suits. (ii) The said moiety shall be one half of the commis sion so payable less such sum as the Directors of the Mills may from time to time allow to be deducted. " Under the said agreement, the respondent company paid to the Mill Company Rs. 22,500made up of 1012 Rs. 18,107 as principal and Rs. 4,393 as interest in the accounting year. The assessee company claimed this before the Income tax Appellate Tribunal as a deduction permitted under section 10 (2) (xv) of the Indian Income tax Act. The relevant part of that section runs as follows : "10. (1) "The tax shall be payable by an assessee under the head 'Profits and gains of business, profession or vocation ' in respect of the profits or gains of any busi ness, profession or vocation carried on by him ' (2) Such profits or gains shall be computed after making the following allowances, namely : (xv) any expenditure (not being in the nature of capital expenditure or personal expenses of the assessee) laid out or expended wholly and exclusively for the purpose of such business, profession or vocation. In the statement of the case submitted by the Tribunal after reciting the fact of the incorporation of the company and the terms of the compromise mentioned above, the argu ments urged on behalf of the assessee company have been recapitulated. The first argument was that under the first proviso to section 7 of the Indian Income tax Act, this payment was liable to be exempted. The Tribunal rejected that argument. On the reference, the High Court also reject ed the same and it was not presented before us. The next argument of the respondents was that in respect of Rs. 22,500 it was entitled to exemption under section 10(2) (xv) of the Income tax Act on the ground that the payment was an expenditure which was not in the nature of a capital expend iture or personal expenses of the applicant company but was an expenditure laid out wholly and exclusively for the purpose of its business. They urged that if the applicant company did not agree to pay this amount, Basanti Cotton Mills Ltd. could have brought a suit against the company to realise this amount due on the hundis which would 1013 have exposed the applicant company to the public and in order to save themselves from the scandal and maintain the managing agency they agreed to 'the deduction of of certain amounts from the managing agency commission due to it and thereby brought it within the principles of the decision of Mitchell vs B.W. Noble Ltd.(1) The Tribunal found as facts: (1) 'I?hat the applicant company agreed to pay off the decretal amount from the remuneration which they are enti tled to get from the Basanti Cotton Mills. (2) The decree was passed against the applicant company evidently for certain misfeasance committed by its directors and the applicant company agreed to pay it off from its remunera tion. (3) The books of account of Basanti Cotton Mills Ltd. would show that they were paying the applicant company in full its remuneration and the books of the applicant company also show that it was entitled to its remuneration in full. (4) In the circumstances the Tribunal held that the expendi ture was not laid out wholly and exclusively for the purpose of carrying on the business. (5) Besides, the Tribunal was of the opinion that in this case it was not a revenue ex penditure at all. As the payment had to be made towards liquidation of the decretal amount the Tribunal held, in the circumstances of this case, that it was a capital payment. On behalf of the respondent it was argued in the further alternative that the Privy Council decision in Raja Bijoy Singh Dudhuria 's case(2) would cover the present case. That contention was rejected by the Tribunal. This statement of the case prepared by the Incometax Tribunal and submitted to the High Court for its opinion was perused by the parties and they had no suggestions to make in respect of the same. The statement of the case was thus settled with the knowledge and approval of the parties. When the matter came before the High Court, Mr. Mitra, who argued the case for the present respondents, as shown by the judgment of the High Court, urged as follows: " If the applicant company had not agreed to pay the amount mentioned ; 1014 in the aforesaid agreement, then the Basanti Cotton Mills Ltd. would have sued the company for the realisation of the amounts due on the hundis and it seems that there would have been no defence to the action. This would have subjected the applicant company to the danger of public exposure and in order to save itself from the scandal and in order to main tain the managing agency, the applicant company agreed to deduct certain amounts from the managing agency commission and therefore such expenditure came within section 10(2)(xv) of the Act." The High Court thereafter noticed several cases including Mitchell 's case(1) and towards the close of the judgment delivered by Chatterjea J. observed as follows: "In this case it is clear that the agreement was entered into with a view to avoid the publicity of an action against the managing agents and consequent exposure and scandal andin order to maintain the managing agency so that the company could carry on its business as before. The payment in question did not bring in any new assets into existence nor in my opinion can it properly be said that it brought into existence an advantage for the enduring benefit of the company 's trade. The Appellate Tribunal observed that the decree was evidently passed against the appellant compa ny forcertain misfeasance by its directors and the appellant company agreed to pay it off from its remuneration . The object of the agreement was to enable the company to remove a defect in carrying on the business of the company and to earn profits in its business. Therefore this case is covered by the judgment of the Court of Appeal in Mitchell ' scase(1) . "Applying this line of reasoning the High Court differed from the conclusion of the Tribunal and allowed the deduction to the respondent company under sec tion 10(2) (xv) of the Income tax Act, as claimed by the respondents. The Commissioner of Income tax, West Bengal, has come in appeal to us. Now it is clear that this being a claim for exemption of an amount, contended to be an expenditure falling under section 10(2)(xv), the burden of proving the (1) ; 1015 necessary facts in that connection was on the assessee, it being common ground that the commission was due and had become payable and was therefore the business income of the assessee company liable to be taxed in the assessment year. The jurisdiction of the High Court in the matter of income tax references is an advisory jurisdiction and under the Act the decision of the Tribunal on facts is final, unless it can be successfully assailed on the ground that there was no evidence for the conclusions on facts recorded by the Tribu nal. It is therefore the duty of the High Court to start by looking at the facts found by the Tribunal and answer the questions of law on that footing. Any departure from this rule of law will convert the High Court into a fact finding authority, which it is not under the advisory jurisdiction. The statement of the case under the rules framed under the Income tax Act is prepared with the knowledge of the parties concerned and they have a full opportunity to apply for any addition or deletion from that statement of the case. If they approved of that statement that is the agreed statement of facts by the parties on which the High Court has to pronounce its judgment. In the present case the parties perused the statement of case and as disclosed by the note made at the end of it had no suggestions to make in respect thereof. It is therefore clear that it was the duty of the High Court to start with that statement of the case as the final statement of facts. Surprisingly, we find that the High Court, in its judgment, has taken the argument of Mr. Mitra as if they were facts and have based their conclusion solely on that argument. Nowhere in the statement of the case prepared by the Tribunal and filed in the High Court, the Tribunal had come to the conclusion that the payment was made by the assessee company to avoid any danger of public exposure or to save itself from scandal or in order to maintain the managing agency of the appellant company. The whole conclusion of the High Court is based on this unwar ranted assumption of facts which are taken only from the argument of counsel for the present respondents before 1016 the High Court. The danger of failing to recognise that the jurisdiction of the High Court in these matters is only advisory and the conclusions of the Tribunal on facts are the conclusions on which the High Court is to exercise such advisory jurisdiction is illustrated by this case. It seems that unfortunately counsel for the respondents caught hold of Mitchell 's case(1) and basing his argument on the circum stances under which a payment could be described as a busi ness expenditure falling within the terms of section 10 (2) (xv), argued that the facts in the present case were the same. Instead of first ascertaining what were the facts found by the Tribunal in the present case, the process was reversed and the procedure adopted was to take Mitchell 's case(1) as the law and argue that the facts in the present case covered the situation. 1n our opinion this is an entirely wrong approach and should not have been permitted by the High Court. The High Court fell into a grave error in omitting first to ascertain what were the facts found in the case stated by the Tribunal. The High Court overlooked that in Mitchell 's case(1) the whole discussion started with a quotation from the case stated by the Commissioners as the facts of the case. A scrutiny of the record in the present case shows that before the Income tax Officer the assessees claimed only a deduction of the interest of Rs. 5,582 as a permissible deduction under section 10 (2) (iii) of the Income tax Act. That claim was rejected by the Income tax Officer. When the matter went to the Assistant Income tax Commissioner it was argued that the Income tax Officer was in error in not allowing the deduction of interest and was also wrong in not allowing the entire sum of Rs. 22,500 as a deduction on the ground that portion of the income (viz., Rs. 22,500) should be treated as not earned or deemed to be earned by the assessees at all, having regard to the decision of the Privy Council in Raja Bijoy Singh Dudhuria 's case(2) The first paragraph of the order of the Appellate Assistant Commis sioner contains the following 1017 statement : " In disallowing this (interest) c]aim the Income tax Officer was following the decision of my prede cessor in his order dated the 18th March 1942 in Appeal No. 1 C 11 of 1941 42. My predecessor observed: "Nothing is in evidence to show that the managing agency company had sur plus money and such money was invested or that there was any need to borrow. Thus the need to borrow is not established. There is no doubt that money was borrowed but unless it can to proved that the borrowing is for the purpose of the business and the loan was used in the business, the interest cannot be allowed under section 10(2)(iii). " The second objection raised before the Appellate Assist ant Commissioner was in these terms : " That the Income tax Officer should have allowed the said sum of Rs. 22,500 as allowable expenditure being allocation of a sum out of the revenue receipt before it became income in the hands of the assessee. " The wording of the objection and the argument noticed in the order of the Appellate Assistant Commissioner show that the contention was that this sum should be treated as not having become the income of the assessee at all because it was deducted at the source by the Mill company. Reliance was placed for this contention on Raja Bijoy Singh Dudhuria 's case(1). The contention was rejected. At the third stage, when the assessee urged his contentions before the Income Tax Appellate Tribunal, he thought of urging as an argument that this was a permissible deduction under section 10 (2)(xv) because of the principles laid down in Mitchell 's case(2). No evidence, it appears, was led before the Income Tax Tribunal, nor has the Tribunal recorded any findings of fact on which the principles laid down in Mitch ell 's case(2) could be applied. The Tribunal 's conclusions of facts were only as summarized in the earlier part of the judgment. It is therefore clear that the necessary facts required to be established before the principles laid down in MiZchell 's case( '2) could be applied, have not been found as facts in the present case at any stage of the proceedings and the High Court was in error (1) (2) ; 130 1018 in applying the principles of Mitchell 's case(1) on the assumption of facts which were not proved. The High Court was carried away, it seems, by the argument of the coun sel and through error accepted the argument as facts. Indeed, if it had noticed the contention urged before the Income tax Officer it would have seen at once that the argument was in a measure conflicting with that contention which was based on the footing of Rs. 1,80,000 being a loan to the assessee on which it had to pay interest, which was sought to be deducted under section 10 (2) (iii) of the Income tax Act. In our opinion, therefore, this appeal should be allowed on the simple ground that the facts neces sary to be established by the respondents to support their claim for exemption under section 10(2)(xv)of the Indian Income tax Act have not been established at any stage of the proceedings and therefore they are not entitled to the deduction claimed. The appeal is therefore allowed with costs here and before the High Court.

IN-Abs

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

iminal Appeal No. 92 of 1952. Appeal under articles 132(1) and 134(1) (c) of the Constitution of India from the Judgment and Order dated the 29th August, 1952, of the High Court of Judicature At Madras (Rajamannar C.J. and Venkatarama Ayyar J.) in Criminal Appeal No. 129 of 1952 arising out of the order dated the 25th February, 1952, of the Court of the VII Presidency Magistrate, Egmore, Madras, in C. T. No. 1358 of the Calendar for 1950. B. Somayya (C. B. Pattabhi Baman, with him) for theappellant. V. K. T. Chari, Advocate General of Madras (V. V. Rahavan and Alladi Kuppuswami with him) for the respondent. M. C. Setalvad, Attorney General for India (G. N. Joshi and P. A. Mehta, with him) for the Union of India. B. K. P. Sinha for the State of Bihar. section M. Sikri, Advocate General of Punjab (M. L, Sethi, with him) for the State of Punjab. 679 A. R. Somanatha Iyer, Advocate General of Mysore (R. Ganapathy lyer, with him) for the State of, Mysore. K. B. Asthana for the State of Uttar Pradesh. T. N. Subramanya Iyer, Advocate General of Travancore Cochin (M. B. Krishna Pillai and Balakrishna Iyer, with him) for the State of Travancore Cochin. V. N. Sethi for the State of Madhya Pradesh. Hajarnavis for Husain Kasam Dada (India) Ltd. (Intervener No. 8). March 30. The Judgment of the Court was delivered by MUKHERJEA J. This appeal, which has come before us on a certificate granted by the Madras High Court under articles 134(1) (e) and 132(1) of the Constitution, is directed against an appellate judgment of a Division Bench of the High Court of Madras, passed in Criminal Appeal No. 129 of 1952, by which the learned Judges affirmed an order of the Seventh Presidency Magistrate, Madras, dated February 25, 1952, convicting the appellant of an offence punishable under section 15 of the Madras General Sales Tax Act and sentencing him to pay a fine of Rs. 1,000; in default to suffer imprisonment for a period of 3 months. The appellant is a partner of a firm of merchants called Indo Malayan Trading Company" which has its head office in the city of Madras and carries on the business of selling and purchasing groundnut oil, sago and kirana articles. For the period April 1, 1947, to December 31, 1947 the company was assessed to sales tax under the Madras Act IX of 1939 for an amount of Rs. 37,771 annas odd on a total turnover of Rs. 37,75,257 and for failure to pay the same were instituted against him under the provision of section 15 of the Act which resulted in his conviction as mentioned above. The course of business, which is usually followed by the company 680 and which was actually followed during the period for which assessment is made, is as follows: The company receives orders in its Madras office from ' Calcutta merchants for supply of certain articles. These articles are purchased in the local markets and they are despatched to Calcutta by rail or steamer. The railway receipts and bills of lading are taken in the name of the vendor company and so also are the insurance policies, and they are sent to the company 's bankers in Calcutta who deliver the same to the consignees on payment of prices and other charges. The sole point that requires consideration is, whether in these circumstances the sale transactions were liable to be taxed under the General Sales Tax Act of Madras? Before the High Court both the parties seem to have accepted the position that if on the facts stated above, which were not disputed by either side, the sales could be hold to have taken place within the Province of Madras, the tax could legitimately be levied on them but not otherwise. The parties differed, however? as regards the test to. be applied, in determining whether the sales did take place within the Province of Madras or not. On behalf of the appellant the contention raised was that the place of sale in regard to all the transactions was Calcutta, as the property in the goods sold admittedly passed to the purchasers in that city. The contention of the respondent State on the other hand was that the true test for determining the locality of the sale was not where the property in the goods sold passed, but where the actual transaction was put through. As the company had its head office in the city of Madras, its accounts were maintained there and the goods were delivered to the common carrier in that city, the sale, according to the respondent, must be deemed to have taken place in Madras even though the property in the goods sold passed outside the province. The High Court accepted this contention of the respondent State. In the opinion of the learned 681 Judges, the word "sale" has both a legal and a popular meaning. In the legal sense, it imports passing of property in the goods and it is in this sense that the word is used in the Sale of Goods Act. 'In the popular sense, however, it signifies the transaction itself which results in the passing of property. As the object of the Legislature in the Sales Tax Act is to impose a tax on the occasion of the sale, it is immaterial that the sale has been completed outside the province. The place where the property passes is, it is said, a matter of no concern to the taxing author ity and in such context the popular meaning of the word is more appropriate and should be adopted. The further contention raised on behalf of the appellant, that if this view was accepted, the sales tax would have to be regarded as being extra territorial, in its operation and as such ultra vires the Provincial Legislature, was repelled by the High Court on the authority of the well known decision of the Judicial Committee in Wallace Brothers etc., & Company vs Commissioner of Income tax, Bombay(1). It is the propriety of this decision that has been challenged before us and the contentions raised by Mr. Somayya, who appeared in support of the appeal, are of a two fold character : The learned counsel has argued in the first place that the Provincial Legislature functioning under the Government of India Act, 1935, was constitutionally incompetent to enact a legislation of this character which according to the interpretation put upon it by the High Court is capable of operating on sale transactions concluded outside the province. The other contention is that on a proper construction of the relevant provisions of the Madras Sales Tax Act the High Court ought to have held that they do not authorise the imposition of sale tax in respect of a transaction of sale where property in the goods sold passes outside the province. The first contention appears to us to be unsustainable. Section 100 (3) of the Government of India (1) (1948] F.C.R. I (P.C.). , upon which Mr. Somayya relied and which corresponds to article246(3) of the Constitution runs as follows : ``Subject to the two preceding sub sections, the Provincial Legislature has and the Federal Legislature has not, power to make laws for a province or any part thereof with respect to any of the matters enumerated in List II in the Second Schedule. " The entry in the Provincial List that is relevant for our purpose is Entry No. 48 and that speaks of " taxes on the sale of goods and on advertisements. " The entry does not suggest that a legislation imposing tax on sale of goods can be made only in respect of sales taking place within the boundaries of the province ; and all that section 100(3) provides is that a law could be passed by a Provincial Legislature for purposes of the province itself. It admits of no dispute that a Provincial Legislature could not pass a taxation statute which would be binding on any other part of India outside the limits of the province, but it would be quite competent to enact a legislation imposing taxes on transactions concluded outside the province, provided that there was sufficient and a real territorial nexus between such transactions and the taxing province. This principle, which is based upon the decision of the Judicial Committee in Wallace Brothers etc. & Company vs Commissioner of Income tax, Bombay(1) has been held by this court to be applicable to sale tax legislation, in its recent decision in the Bombay Sales Tax Act case (2) and its propriety is beyond question. As a matter of fact, the legislative practice in regard to sale tax laws adopted by the Provincial Legislatures prior to the coming into force of the Constitution has been to authorise imposition of taxes on sales and purchases which were related in some manner with the taxing province by reason of some of the ingredients of the transaction having taken place within the province or by (1) [1948] F.C.R. I (P.C.). (2) The State of Bombay d Another vs United Motors (India) Ltd. & Others Civil Appeal NO. 204 Of 1952. 683 reason of the production or location of goods within it at the time when the transaction took place. If in the Madras Sales Tax Act the basis adopted for taxation is the location of the place of business or of the goods sold, within the Province of Madras, undoubtedly it would be a valid piece of legislation to which no objection on constitutional grounds could be taken. The controversy, therefore, narrows down to the short point as to what exactly has been adopted as the basis of the levy of sale tax by the Madras Legislature. This leads us to the question of interpretation of the statute which is involved in the second point raised by Mr. Somayya. It is a settled rule of construction that to ascertain the legislative intent, all the constituent parts of a statute are to be taken together and each word, phrase or sentence is to be considered in the light of the general purpose and object of the Act itself. The title of the Madras Sales Tax Act describes it to be an Act, the object of which is to provide for the levy of a general tax on the sale of goods in the Province of Madras and the very same words are repeated in the preamble which follows. The title and preamble, whatever their value might be as aids to the construction of a statute, undoubtedly throw light on the intent and design of the Legislature and indicate the scope and purpose of the legislation itself. The title and preamble of the Madras Sales Tax Act clearly show that its object is to impose taxes on sales that take place within the province, though these words do not necessarily mean that the property in the goods sold must pass within the province. The expression "sale of goods " is a composite expression consisting of various ingredients or elements. Thus, there are the elements of a bargain or contract of sale, the payment or promise of payment of price, the delivery of goods and the actual passing of title, and each one of them is essential to a transaction of sale though the sale is not completed or concluded unless the purchaser becomes the owner of the property. The question is what element or elements have been accepted 684 by the Madras Legislature as constituting a sale in the province upon which it is the object of the statute to levy tax. Section 2(h) gives the definition 'of "sale" and it is defined as meaning, every, transfer of the property in goods by one person to another in the course of trade or business for cash or for deferred payment or other valuable consideration, but does not include a mortgage, hypothecation, charge or pledge. " Unmistakably the stress is laid in this definition on the element of transfer of property in a sale and no other. The language gives no indication of the popular meaning of sale in which according to the High Court, the word was used. It is to be noticed that there was no provision by way of explanation of this definition, in operation, at the material time to indicate in what cases a sale would be regarded as taking place within the Province of Madras, although the property in the goods sold did pass outside the boundaries of the province. Such explanations were added by the Madras Act XXV of 1947 and one of these explanations, namely explanation 2, provides as follows : " Notwithstanding anything to the contrary in the Indian , the sale or purchase of any goods shall be deemed, for the purposes of this Act, to have taken place in this Province, wherever the contract of sale or purchase might have been made (a) if the goods were actually in this Province, at the time when the contract of sale or purchase in respect thereof was made, or (b) in case the contract was for the sale or purchase of future goods by description, then, if the goods are actually produced in this Province at any time after the contract of sale or purchase in respect thereof was made. " It would be clear from this that these transactions were not considered by the Legislature to constitute sales within the Province of Madras under the definition itself, but by resort to a legal fiction they were 685 declared to be so, notwithstanding any provision in the to the contrary which it was assumed, would otherwise be applicable,. The explanation further shows that in defining "sale" in section 2(h), the Legislature had in mind a sale in the Province of Madras and as these words occur in the title and preamble of the Act it was not deemed necessary to repeat them in the definition or the charging sections. Section 3 is the charging section in the Act and it provides for the levy of a tax on the total turnover of a dealer for a particular year. A "turnover" is defined to be the aggregate amount for which goods are either bought or sold. The charging section purports to levy a tax on the sale of goods and the tax is on the sale of goods in the Province of Madras as defined in section 2(h) of the Act read in the light of its title and preamble. In our opinion, the mere fact that the contract for sale was entered into within the Province of Madras does not make the transaction, which was completed admittedly within another province, where the property in the goods passed, a sale within the Province of Madras according to the provisions of the Madras Sales Tax Act and no tax could be levied upon such a transaction under the provisions of the Act. A contract of sale becomes a sale under the only when the property in the goods is transferred to the buyer under the terms of the contract itself. The presence of the goods within the province at the time of the contract would undoubtedly make the sale, if subsequently completed, a sale within the province by reason of the explanation added by Act XXV of 1947 ; but as this explanation was not in operation during the relevant period with which we are concerned, the assessment of sale tax, in our opinion, on the transactions during this period is illegal and not warranted by the provisions of the Act. It is worthwhile to mention in this connection that except for the period in question no tax was attempted to be levied on similar transactions of the appellant by the taxing authorities in any of the 89 686 previous years,though the Act came into operation as early as the year 1939. It is not disputed also that the company is paying sale tax on its transactions with the Calcutta merchants since the explanation added by Act XXV of 1947 came into force. 'In our opinion, the appeal should be allowed and the conviction and sentence passed by the courts below should be set aside. The fine and sale tax, if actually paid, should be refunded to the appellant. Appeal allowed. Agent for the respondent (the State of Madras), the Union of India, and the States of Punjab, Mysore, Madhya Pradesh and Travancore Cochin (Interveners): G. H. Rajadhyaksha. Agent for the State of Bihar: B. C. Prasad. Agent for the State of U. P. C. P. Lal. Agent for Intervener No. 8: Bajinder Narain.

IN-Abs

Under the Madras Sales Tax Act, 1939, as it stood before it was amended by the Madras Act XXV of 1947,the mere fact that the contract of sale was entered into within the Province of 88 678 Madras did not make a transaction which was completed in another province where the property in the goods passed, a sale within the Province of Madras and no tax could be legally levied upon such a transaction under the provisions of the Act. Though a Provincial Legislature could not pass a taxation statute which would be binding on any other part of India it was quite competent for a province to enact a legislation imposing taxes on transactions concluded outside the province provided there was a sufficient and real territorial nexus between such transactions and the taxing province. The title and preamble, whatever their value might be as aids to the construction of a statute, undoubtedly throw light on the intention and design of the Legislature and indicate the scope and purpose of the legislation itself. It is a settled rule of construction that to ascertain the legislative intent all the constituent parts of a statute are to be taken together and each word phrase or sentence is to be considered in the light of the general purpose and object of the statute. Judgment of the Madras High court reversed.

vil Appeal No. 164 of 1961. Appeal from the judgment and decree dated December 17, 1957, of the former Bombay High Court (Now Gujarat), in Civil First Appeals Nos. 14 and 24 of 1956 from Original Decree. B.R.L. Iyengar, Atiqur Rehman, J.L. Doshi and K.L. Hathi, for the appellant. Purshottam Tricumdas, J.B. Dadachanji, O.C. Mathur and Ravinder Narain, for the respondent. March 29. The Judgment, of the Court was delivered by SHAH J. The appellant instituted Suit No. 250 of 1950 in the Court of the Civil judge (Senior Division), Junagadh for a decree for Rs. 72693/11/alleging that the appellant had a personal account with the respondent in respect of drafts, cheques, hundis and cash, and at the foot of that account Rs. 58,000/ as principal amount and Rs. 5,793/12/as interest remained due and payable by the respondent, that beside the amount due on the said 688 personal account an amount of Rs. 8,899/15/3 was due to him in respect of a transaction of sale of 1300 bags of groundnut sent by him between January 16 to January 28, 1950, and the price of gunny bags and groundnut oil cakes delivered to the respondent. The appellant further alleged that forward contracts were prohibited with effect from November 19, 1949 by the Saurashtra Groundnut and Groundnut Products (forward Contracts Prohibition) order, and that the said contracts being illegal the appellant was not subject to any liability arising from adjustments of credits and debits or differences in rates relating to forward contracts and the respondent was not entitled nor authorised to make credit and debit entries in the appellant 's account and that nothing was due by him in respect thereof. The respondent by his written statement contendedthat in the appellant 's personal account an amountof Rs. 1,58,000/ stood initially credited but at the foot of that account only a sum of Rs. 18,000/ was due and this sum was credited in the current account of the appellant in the name of Hemraj Keshavji Oil Mills and Ginning Factory and therefore nothing was due in the personal account, that the transaction effected by the appellant through the commission agency of the respondent in groundnut seed for December January (Samvat 2006) Settlement did not contravene the order dated November 19, 1949, of the United States of Saurashtra and that the respondent has not committed any breach of the order, that all the transactions for the December January Settlement were in ready goods of specific quality and that there was a condition relating to giving and taking of delivery on fixed dates and the same were all effected at the direction of the appellant and that the appellant was legally responsible for all payments made in respect of those transactions by the respondents as the appellant 's pucca adatia. He then contended that in Samvat year 2006 the appellant had sold 689 9000 bags of groundnut through the agency of the respondent and had purchased 2300 bags through him, that the appellant thereafter gave delivery of only 2000 bags of groundnut and did not deliver the balance and on that account there resulted a loss of Rs. 9,221/7/9 which the appellant was bound to reimburse. The respondent admitted that the appellanthad sent 1300 bags of groundnut but these bags were delivered towards the sale of 2000 bags of December .January settlement and the price thereof and of the balance of 700 bags was credited in the account of the appellant, and that the appellant was not entitled to a decree for any amount except the amount found due at the foot of the account. The trial Court decreed the claim by awarding Rs. 30,589/3/ and interest. Against the decree of the Trial Court the respondent as well as the appellant appealed to the High Court of the Saurashtra. The appeals were transferred for trail under the States Reorganization Act to the High Court of judicature of Bombay at Rajkot. The High Court allowed the appeal of the respondent and dismissed the appeal of the appellant. The appellant has with certificate issued by the High Court, appealed to this Court against the decree passed by the High Court. The appeal raises a dispute about the liability of the appellant for transactions in groundnut seed effected through the agency of the respondent after November 19, 1949, for December 1949, and January 1950, settlement. The appellant says that these were forward transactions in groundnut and were prohibited under the Saurashtra Groundnut and Groundnut Products (Forward Contract Prohibition) Order, 1949, and that these transactions gave rise to no liability which the appellant is obliged to discharge. The respondent says that the transactions were ready delivery contracts which were not 690 prohibited by law and in respect of the losses suffered thereunder the appellant was bound to indemnify the respondent and that the losses suffered in those transactions were duly debited in the personal account of the appellant. There is no dispute before us about the correctness of the entries in the personal account of the respondent. If the respondent 's case is held proved that the transactions were ready delivery transactions, and not prohibited by the Saurashtra order the decree passed by the High Court must be maintained. The Saurashtra Groundnut and Groundnut Products (Forward Contract Prohibition) Order, 1949, was issued on November 19, 1949, and was extended to the whole of the United States of Saurashtra. By cl. 2 (a) 'contract ' was defined as meaning "a contract made or to be performed in whole or in part in the United States of Saurashtra relating to the sale or purchase of groundnut whole, groundnut seeds, or groundnut oil." By cl. 3 forward contracts in groundnut and groundnut products were prohibited. The clause provided " 'No person shall henceforth enter into any forward contract in groundnut whole, or groundnut seeds, or groundnut oil except under and in accordance with the permission granted by Government." By cl. 4 all outstanding forward contracts on the date of the publication of the order are to be closed immediately and at such rates and in such manner as may be fixed by the Association concerned under their respective bye laws or other regulations that may be applicable to such contracts. The Trial Court held that out of the transactions which took place on or after November 19, 1949, only one transaction which was for delivery on January 25, 1950, was not hit by the order. The remaining transactions, according to the Trial Court must be regarded as wagering transactions i. e. transactions in which it was intended by the parties that delivery of the goods contracted for could not 691 be demanded without breach of the understanding. The Court did not consider whether the transactions were invalid as being in violation of the prohibition contained in the order. The High Court held that according to the rules of the Association, by which the contracts were governed, delivery of the goods contracted for was invariably to be given at the godown of the purchaser and therefore delivery orders, railway receipts or bills of lading were not contemplated by the parties and the contracts being for specific quality or type of groundnut for specific delivery and for specific price in respect of ready delivery goods the transactions were not hit by the order. By cl. 3 of the order all forward contracts in groundnut and groundnut products except those in accordance with the permission granted by the Government were prohibited. It is not the case of the respondent that permission was obtained from the Government in respect of those transactions, but he contends that the transactions were not "forward contracts" and therefore not within the prohibition of the order. The definition of the expression 'forward contract ' is somewhat obscure and the precise significance of the expression "against which contracts are not transferable to third parties" is difficult to guage. A forward contract is in the first instance defined as meaning "a contract for delivery of groundnut whole, or groundnut seeds or groundnut oil at some future date. " The contracts in dispute in the present case were indisputably contracts for delivery of groundnut at "some future date. " But the definition expressly excludes certain contracts from its operation even if they are contracts for future delivery viz. contracts for specific qualities or types for specific delivery at specific price, delivery orders, railway receipts or bills of lading, against which contracts are not transferable to third parties. Why the draftsman should in prescribing the condition of 692 non transferability of a contract against delivery orders, railway receipts or bills of ladnng, should have referred to "contracts" is difficult to appreciate. The contracts in dispute were effected according to the rules and regulations of the Veraval Merchants Association. A sample form of the contracts between the parties may be set out : "This Sauda is to be treated as subject to the rules and regulations of the Association. No. 143 Ready Delivery Veraval, Dt. 21 11 49 Sheth Thaker Hemraj Keshavji at Malia. Please accept Jay Gopal from Shab Haridas Jethabhai. We have this day transacted the Sauda as under, on your behalf and as per your order. Having made a note of it and having signed the slip below the counterpart, return it imme diately. It is left to our choice whether on the deposit being exhausted to let the Sauda remain outstanding or not. Sold Groundnut seeds small new crop. ready December january Bags 100, one hundred bags at Rs. 31 6.3 rupees thirty one annas six and pies three Standard filling 177 (1bs.) 2. Sold Groundnut seeds small new crop, ready December January Dated 25th Bags 500, five hundred bags at Rs. 31 11 6 rupees thirty one annas eleven and pies six Standard filling 177 (lbs.) 3. Sold Groundnut seeds small new crop, ready December January Bags 100 one 693 hundred bags at Rs. 31 6 6 rupees thirty one, annas six and pies six Standard filling 177 (lbs.) Sd. Chhaganlal for Shah Haridas jethabhai 1st Shukla Margashirsh, St. 2006, Monday. " At the foot of the contract is the acknowledg ment as under : "Shah Haridas jethabhai, at Veraval. We have received your Sauda nondh Chitti No. 143 and have noted accordingly. 2nd Shukla Margashirsh, St. 2006,Dt. 21 11 49 Sd. Kalidas Bhagwanji for Sheth Hemraj Keshavji. " The contract is described as a ready delivery contract and is made subject to the rules and regulations of the Association. The price of the goods and the quality of the goods are specified and delivery at a specific price is also stipulated. There is nothing in the contract indicating whether it was transferable to third parties. But the appellant submits that where the contract is silent as to whether it is transferable against delivery orders, railway receipts or bills of lading, it must be deemed capable of being transferred to third parties and so for the purpose of the order, be deemed to be a forward contract. The 694 argument in substance is that a contract for delivery of groundnut at a future date even for specific quality and for specific delivery at a specific price would not be excluded from the definition of forward contract, unless it is expressly recited in the contract that it is not transferable to third parties against delivery orders, railway receipts or bills of lading. This, it is urged, is so because it was the object of the order to prohibit speculation in groundnut and groundnut products, and to achieve that purpose it sought to prohibit forward transactions which were transferable to third parties. By insisting upon completion of the contract between 'the parties thereto, it is urged it was intended to prevent speculation in essential commodities. Reliance in this behalf was sought to be placed upon several decisions of the Bombay, Madras and Andhra Pradesh High Courts dealing with the interpretation of clauses similar to the definition of forward contract in the Saurashtra order, in which it was held that exclusion from the prohibition against forward contracts can be regarded as effective only if the stipulation about non transferability is expressly mentioned in the contract, and silence of the contract imported transferability even in respect of contracts for specific quality for specific delivery at specific price. The earliest decision of this clause was a decision of a single judge of the Bombay High Court in Firm Hansraj vs Vasanji (1). In that case the contract was for spot delivery i.e. where no delivery order or railway receipt or bill of lading would ordinarily be issued. But the learned judge held that such a contract in the absence of an express stipulation prohibiting transfer would not fall within the Notification granting exclusion from the prohibition of forward contracts, because the condition regarding non transferability would not be fulfilled. It was observed by Mr. justice M. V. Desai : "The only classes of cases of forward contracts which were exempted were those which contained in them the guarantee against speculation by reason of a provision (1) (1948) 4 D.L.R, Bom. 695 that the Delivery Orders, Railway Receipts, or Bills of Lading (which were contemplated by the contracts and would be issued) should not be transferable to third parties. . . . and he recorded his conclusion as follows : " 'In my opinion, if Delivery Orders were con. templated under these contracts, they were illegal, as the Delivery Orders were not made non transferable. If Delivery Orders, Railway Receipts or Bills of Lading were not contemplated under the contracts, then the exemption (which deals with cases where Delivery Orders, Railway Receipts or Bills of Lading are issued) has no application. " This decision was approved in Uma Satyanarayanamurty vs Kothamasu Sitaramayya & Co. (1), where in considering whether a disputed contract was a ,forward contract ' within the meaning of the Vegetable Oils and Oilcakes (Forward Con tract Prohibition) Order, 1944, Rajamannar, C. J., held that the intention underlying the notification being to grant exemption only to cases of forward contracts in respect of which there could be some guarantee that they would not be subject to speculation, exclusion from the prohibition imposed by the notification may be established only if one of the terms of the contract is that the delivery order or railway receipt or bill of lading relating thereto is not transferable. It is not enough that such documents are not contemplated, because it cannot be said that they are prohibited. This view was followed in Bodhu Seetharamaswami vs Bhagavathi Oil Company (2), Hussain Kasam Dada vs Vijayanagaram Commercial Association (3) and Vaddadi Venkataswami vs Hanura Noor Muhammad Beegum (4). The phraseology of the notifications and the definitions of forward contract were not in terms identical, in each of these cases; but these cases lay down that before a contract (1) (3) (2) 1. L R. A.I.R. (1956) Andhra 9. 696 for delivery of a commodity at a future date could be regarded as excluded from the definition of forward contract, even if the contract was for a specific price or specific quality, it must be stipulated that the contracts were not transferable to third parties by expressly prohibiting the transfer of delivery orders, railway receipts or bills of lading. We are unable to hold that a contract for delivery of goods at a future date would fall within the exception in the definition of forward contract if other conditions are fulfilled only if there is an express stipulation recorded in the contract prohibiting the transfer of delivery orders, railway receipts or bills of lading against the contract thereof. The order issued by the Saurashtra Government excluded from the definition of forward contract all contracts for specific qualities or types of groundnut whole or groundnut seeds or groundnut oil and for specific delivery at a specific price, delivery orders, railway receipts or bills of lading against which contracts, were not transferable to third parties. But the Legislature did not impose the condition that the contracts for delivery of goods at some future date must recite that the contracts were not to be transferable, and there is no indication of such an implication. Nor is the object of the order sufficient to justify an overriding reason for implying that condition. In a recent case Khardah Company Ltd. vs Raymon it Company (India) Private Ltd. (1), this Court had to adjudicate upon the validity of a forward contract relating to jute. By cl. (2) of section 17 of the Forward Contracts Regulations Act 74 of 1952 forward contracts in contravention of the provisions of sub section (1) of section 17 were declared illegal, but the Notification did not apply to non transferable specific delivery contracts for the sale or purchase of any goods. In a dispute relating to non delivery of jute, which was one of the commodities to which the Act was made applicable, (1) ; 697 the Bengal Chamber of Commerce made an award. In a petition to set aside the award it was urged that in the absence of a specific clause prohibiting transfer in the contract itself, the plea that the contract is not transferable is not open to the party supporting the contract and that evidence aliunde is not admissible to establish the condition, and in Support of that argument Seetharamaswani vs Bhagwathi Oil Co. (1), Hanumanthah vs U. Thimmaiah (2) and Hussain Kasam Dada vs Vijananagaram Commercial Association (3) were cited. Venkatarama Aiyar, J, observed in dealing with this contention: "x x x that when a contract has been reduced to writing, we must look only to that writing for ascertaining the terms of the agreement between the parties, but it does not follow from this that it is only what is set out expressly and in so many words in the document that can constitute a term of the contract between the parties. If on a reading of the document as a whole, it can fairly be deduced from the words actually used therein that the parties had agreed on a particular term, there is nothing in law which prevents them from setting up that term. The terms of a contract can be express or implied from what has been expressed. x x x x on the question whether there was an agreement between the parties that the contract was to be nontransferrable, the absence of a specific clause forbidding transfer is not conclusive. What has to be seen is whether it could be held on a reasonable interpretation of the contract, aided by such considerations as can legitimately be taken into account that the agree. ment of the parties was that it was not to be transferred. When once a conclusion is reached that such was the understanding of the parties, (1) (1) A.I.R. (1954) Mad. (3)A.I.R. 698 there is nothing in law which prevents effect from being given to it. " In our view this principle applies to the interpretation of the Saurashtra Groundnut and Groundnut Products (Forward Contract Prohibition) Order, 1949. From the absence of a clause expressly prohibiting transfer of the contract against delivery orders, railway receipts or bills of lading it cannot be inferred that the contract is transferable. The question whether an impugned contract is transferable must depend upon the language of the contract interpreted in the light of surrounding circumstances, and silence of the contract cannot be regarded as an indication of transferability much less would it justify an inference that it is transferable. We must then consider having regard to the surrounding circumstances if such a term can be implied. The contracts are made subject to the rules and regulations of the Veraval Merchants ' Association. These rules are designated " 'Rules and Regulations of groundnuts ready delivery". Rule 5 provides that the buyer has to supply empty bags to the seller and he has to supply a Bardan Chitti within 48 hours from the receipt of the letter of the seller to the buyer asking for empty bags. In the event of failure to supply a Bardan Chitti within 48 hours a penalty of Rs. 2/ per 100 bags is to be paid to the seller for every 24 hours. Rule 6 deals with delivery. The seller has to give delivery at the godown of the buyer and the seller is to unload the carts at his own cost. The buyer has, on presentation of the receipt of the commodity at his godown to pay 90% of the invoice price, and 10% may be retained against defects or shortage discovered in weighment (Rule7). Weighment has to be made at the godown of the buyer, at the earliest moment according, to the convenience of the seller and the buyer, after the commodity has reached the buyer 's godown. A sample has to be preserved, if 699 the seller so chooses, at the buyer 's place. At the con venience of both the buyer and the seller and at the earliest opportunity the sample should be analyzed at the buyer 's place but after weighment of the commodity, cleaning of sample should not take more than 6 days and if a person makes any delay he would be liable to pay a penalty of /8/ eight annas for every 24 hours per every lot of 100 bags. Rule 9 deals with shortages and provides for reimbusement of loss to the buyer. Rule 10 deals with payment of price. On taking delivery of the commodity, the person receiving the commodity, having obtained a kutcha receipt,, is to make 90% payment to the person giving delivery immediately . If the person giving delivery of a commodity so desires, the person 'taking delivery has to furnish surety for the value of commodity and acceptable to the Association. After weighment and shortages are settled and on receiving the invoice, the buyer must pay in full the balance of 10% within 96 hours. The buyer paying after 96 hours must pay interest at the rate of /12/ twelve annas per centum per mensem. Rule II provides for "survey of disputes" arising between the members at the time of delivery of " 'weighed commodity. " The application may be made both by the buyer and the seller. Rule 15 provides for steps to be taken if the seller or the buyer be "unable to meet amount" found due at the settlement regarding the commodity. The Managing Committee, after hearing the seller and buyer, may grant extension of time on receipt of an application to the Association from such buyer or seller, or the Association may determine and fix a reasonable rate after considering the rates as well as circumstances in the local as well as other centres of Saurashtra between seller and the buyer and that the transactions between the buyer and the seller have to be settled at the rate so fixed. The transactions for purchase and sale are to be carried through between two members of the 700 Association and under the rules and regulations of the Association. Delivery has to be given at the warehouse of the purchaser and detailed rules about sampling, surveying, payment of price etc., are made. Prima facie, these rules apply to the persons named as the seller and the buyer in the transactions of sale and purchase. But Mr. Ayyanger appearing on behalf of the appellant contended that the expression ,buyer ' would include a purchaser from the buyer because under the general law of contracts the benefit of a contract to purchase goods can be assigned and therefore the rights of the buyer would be enforceable by the transferee of the buyer. But the scheme of the rules indicates that the entire transaction has to be carried through between the parties to the transaction and not between the seller and a transferee of the rights of the buyer. In carrying out the transactions under the rules, diverse obligations are imposed upon the buyers, and it is settled law that without the consent of the seller, the burden of a contract cannot be assigned. The rules provide, as we have already pointed out, that the empty bags are to be supplied by the buyer. Such an obligation cannot be transferred by the buyer. Again diverse rules provide liability for payment of penalty. If a buyer connot transfer the Obligations under a contract which is made subject to the rules and regulations of the Association, ail the obligations prescribed by the rules being made part of the contract, a very curious result would ensue in that whereas an assignee of the buyer would be entitled to demand delivery at his own godown at the rate fixed, for his default the buyer would remain liable for the diverse obligations including liability to pay penalty for default of his assignee under the rules. Again the seller by Rule 6 has to deliver the goods at the warehouse of the buyer, and if the benefit of the contract is transferable, it would imply an obligation to deliver at the warehouse of the buyer 's assignee, wherever the warehouse of the assignee may be. The 701 warehouse of the assignee of the buyer may be in Veraval or at any other place, but the seller having entered into a contract at a rate which would include normal expenses for delivery at the buyer 's godown maybe required to undertake an intolerable burden of meeting all the charges for transporting the goods to the warehouse of the buyer 's assignee wherever such godown may be situate. Such an obligation could never have been under contemplation of the rule making body. Mr. Ayyanger contended that the assignee of the buyer contemplated by the rules would of necessity have to be a member of the Association and therefore resident in Veraval. But the rules to which our attention has been invited do not, if the buyer is to include the assignee of the benefit of the contract, seem to impose any such restriction. If the general law relating to assignment of benefit under a contract is to be superimposed upon the rules, notwithstanding the scheme which prima facie contemplates performance between the parties, there is no reason why any such reservation should be made. It was alternatively urged by Mr. Ayyangar that the rules of the Association use two expressions buyer ' and 'Persons ' and wherever the expression Person ' is used it would include an assignee of the buyer. This argument, in our judgment, is without force. The rules have not been drawn up with any precision, and there is nothing to indicate that by using the expression 'person ' a larger category was intended. for instance in rule 5, the obligation to supply empty bags is imposed upon the 'buyer ' and the penalty for failing to carry out that obligation is imposed upon the 'person. ' Similarly in rule 10 when delivery is taken by the 'buyer ' the 'person ' receiving the commodity has to make payment of 90% of the price to the person giving delivery. There arc a large number of other rules which deal with the rights of the "buyers ' and the obligations 702 simultaneously imposed upon persons which in the context may mean only the buyers. The use of the expression "Person ' does not, in our judgment, indicate that he was to be any one other than the buyer or his representative. On a careful review of the rules we are of the view that under the rules and regulations of the Veraval Merchants ' Association pursuant to which the contracts are made, the contracts were not transferable. The contracts were undoubtedly for delivery of groundnut at a future date, but they were contracts for specific quality for specific price, and for specific delivery under the rules of the Association under which they were made. The contracts were, for reasons already mentioned, also not transferable to third parties, and could not be regarded as forward contracts within the meaning of the order. It is unnecessary therefore to consider whether the respondent who claimed to have acted as Pucca Adatia and therefore as Commission Agent was entitled to claim reimbursement for any amount alleged to have been paid by him on behalf of the appellant for losses suffered in the transactions in dispute. We are therefore of the view that the High Court was right in modifying the decree passed by the Trial Court and in dismissing the appellant 's suit. The appeal is dismissed with costs. Appeal dismissed.

IN-Abs

The appellant entered into contracts with the respondent (for sale of groundnuts) which were described as ready delivery contracts and were subject to the rules and regulations. of the Veraval Merchants Association. The contracts specified the price and quality of the goods and stipulated delivery at a specific price. But there was nothing in the contracts indicating whether they were transferable to third parties. The respondent claimed certain amounts of money in respect of these transactions but the appellant resisted the claim on the ground that the contracts, being forward contracts, were prohibited by the Saurashtra Groundnut and Groundnut Products (Forward Contracts Prohibition) Order, 1949, and were illegal, The appellant contended that the contracts for the delivery of groundnuts at a future date, even though they were for specific quality and for specific delivery at a specific price, must be deemed to be forward contracts unless it was expressly recited that they were not transferable to third parties. Held that the contracts were not forward contracts and were not hit by the Prohibition Order. A contract for delivery of goods at a future date, even though for a specific price and specific quality, can be excluded from the definition of forward contracts only if the contract is non transferable. But from the mere absence of an express stipulation as to non transferability in the contract, it cannot be deemed to be transferable and outside the exception. It is not required either by the Order or by the object of the Order that the condition regarding non transferability should be mentioned in the contract itself before the contract can be excluded from the definition of forward contract. Absence of a specific stipulation in this regard is not conclusive. It has to be seen whether upon the 687 language of the contract interpreted in the light of surrounding circumstances it can be field that there was an agreement between the parties that the contract was not transferable. The rules and regulations of the Association to which the contracts in dispute were subject clearly showed that the contracts were not transferable. Khardah Company Ltd. vs Raymon & Co. (India) Private Ltd., ; , applied. Firm Hansraj vs Vasanji (1948) 4 D.L.R. Bom. 7, Uma Satyanarayanamurty vs Kothamasu Sitaramayya & Co. Boddu Seetharamaswami vs Bhagavathi Oil Company, I.L.R. , Hussain Kasam Dada vs Vijayanagaram Commercial Association, and Vaddadi Venkataswami vs Hanura Noor Muhammad Beegum, A.I.R. (1956) Andhra 9, referred to.

Petition No. 1398 of 1962. Appeal against the order of the Deputy Registrar dated March 28, 1962 in Civil Appeals Nos. 41 to 49 of 1962. A.Ranganadham Chetty, B.D. Dhawan, S.K. Mehta and K.L. Mehta, for the petitioner. C. K. Daphtary, Attorney Generalfor India, R. Ganapathy Iyer and R. N. Sachthey, for the respondents. April 5. The Order of the court was delivered by SARKAR J. This is an appeal against the order of the Deputy Registrar directing the present case to be registered as nine appeals and requiring the appellant to pay nine sets of court fees. The Deputy Registrar had relied on two cases of this Court, namely, Lajwanti Sial 's case (Petition for Special Leave No. 673 of 1959) and Kishinchand Chellaram 's case (Civil Appeals No. 462 to 465 of 1960). We do not think that these precedents cover the present case. In Lajwanti 's Case there were a number of applications under section 66 (2) of the Income tax Act for reference of the same question. There were in tact a number of separate references but they were 887 dealt with by one judgment from which the appeal to this Court arose. That was really a case of five appeals for the common judgment must be taken to have been delivered in each of the different reference cases. Kishinchand Chellaram '8 case is also not helpful because there four applications by four different assessees had been made for reference of three identical questions arising in each assessment case under section 66 (1) of the Income tax Act. Though it appears that there was one order of reference to the High Court and the High Court treated the case as a single case of reference, it could be said that there were in fact a number of references. The present case however originated out of one petition under article 226 of the Constitution challenging the validity of various assessment orders. Obviously here, there was only one proceeding. It could not be said that there were as many proceedings as there were assessment orders for the petitioner had by a single petition callenged them all together. When an appeal is taken to this Court from the judgment of the High Court in such a petition, it is impossible to contend that there are more appeals than one. Therefore, the appellant before us is liable only to pay one set of court fee and other charges as in a single appeal. Action may be taken accordingly by the office, if necessary, by refunding the excess charges made.

IN-Abs

This appeal was against the order of the Deputy Registrar directing the present case to be registered as nine appeals and requiring the appellant to pay nine sets of court fees. The case originated out of one petition under article 226 of the Constition challenging the validity of various assessment orders. The High Court passed one order on the petition and one appeal was filed in this Court. 886 Held that the appellant should pay only one set of court fee and other charges as in a single appeal. It could not be said that there were as many proceedings as there were assessment orders as the appellant had by a single petition challenged them all together. Lajwanti Sial 's case, Petition for special leave No. 673 of 1959 and Kishinchand Chellaram 's case, C.A. Nos. 462 to 465 of 1960, referred to.

Appeal No. 324 of 1962. Appeal from the judgment and decree dated August 8, 1960 of the Kerala High Court, in O. P. No. 97 of 1953. G.B. Pai, J. B. Dadachanji, O. C. mathur and Ravinder Narain, for the appellant. S.V. Gupte, Additional Solicitor General of India, R. Ganapathy lyer, P. D. Menon and R. H. Dhebar, for the respondent. April 9. The judgment of the Court was delivered by GAjENDRAGADKAR J. The short question which arises in this appeal is whether the factory run by the appellant, the Associated Industries (P) Ltd., Qulion, falls within section 1 (3) of the employees ' Provident Funds Act, 1952 (No. 19 of 1952) (hereinafter called 'the Act '). The appellant is a Company which runs a tile factory and an engineering works at Quilon. The tile factory began its career in July, 1943, and the engineering works in 907 September, 1950. It is common ground that these two industries are separate and distinct and that they are carried on by the same Company and on the same premises. It is also common ground that a licence issued under the , has been issued to the appellant for the entire premises and it is under this licence that the said premises arc allowed to be used as one factory under the said Act and the rules framed thereunder. It appears that the respondent, the Regional Provident Fund Commissioner, Vanchiyoor, Trivandrum, intimated to the appellant on March 10, 1953, that the Act as well as the scheme framed under it were applicable to the appellant 's factory, and so, the appellant was called upon to deposit in the SubOffice of the Imperial Bank of India the contribu tions and administrative charges as required by section 6 of the Act. The same requisition was repeated on March 25, 1953 and April 24, 1953. The appellant disputed the correctness of the view taken by the respondent that the appellant 's factory fell under the purview of the Act, and so, it refused to comply with the respondent 's requisition. Thereupon, the respondent wrote to the appellant on June 16, 1953 informing it that appropriate action would be taken to compel the appellant to make the necessary deposit and submit returns as required by the Act in case it failed to comply with the notices issued in that behalf. At this stage, the appellant moved the High Court of Kerala by a writ petition (O. P. No. 97/1953) in which it claimed a writ of certiorari quashing the notices issued by the respondent against it, and restraining the respondent from proceeding further in the matter and for other incidental reliefs. The main contention raised by the appellant before the High Court was that the appellant 's factory was not an establishment to which section 1 (3) of the Act applied. The High Court 908 has rejected this contention. Then it was urged before the High Court on behalf of the appellant that the effect of the notices served on the appellant by the respondent was retrospective in character and it was urged that the said notices were illegal. This argument was also rejected by the High Court. 'I he appellant further contended before the High Court that since for the relevant period the employees had not made their contributions, it would be inequitable to enforce the notices against the appellant. The High Court noticed the fact that it had been conceded by the respondent that he did not propose to collect the employees ' share of the contribution to the fund for the relevant period from the appellant, and it held that the concession so made was proper and fair and so, there was no substance in the grievance made by the appellant that giving effect to the notices served on it by the respondent would be inequitable and unjust. On these findings, the writ petition filed by the appellant was dismissed with costs, It is against this order that the appellant has come to this Court with a certificate granted by the High Court. The principal point which is sought to be raised by Mr. Pai on behalf of the appellant in this appeal is concluded by a recent decision of this Court in The Regional Provident Fund Commissioner, Bombay vs (1) Shree Krishna Metal Manufacturing Co., Bhandra, and (2) Oudh Sugar Mills Ltd. (1). It would be noticed that the relevant sections which fell to be construed in dealing with the appellant 's contention are section 1 (3), section 2 (g) and (i) and section 6 of the Act. Section 1 (3) (a) provides, inter alia, that subject to the provisions contained in section 16, the Act applies to every establishment which is a factory engaged in any industry specified in Schedule I and in, which 50 or more persons are employed; the numerical requirement of 50 has been reduced to 20 by an Amending Act of 1960. Section (2) (g) (1) A.1,R. 909 defines a 'factory ' as meaning any premises, including the precincts thereof, in any part of which a manufacturing process is being carried on or is ordinarily so carried on, whether with the aid of power or without the aid of power; and section 2 (i) defines an 'industry ' as meaning any industry specified in Schedule I, and includes any other industry added to the Schedule by notification under section 4. Section 6 prescribes for the levy of contributions and deals with other matters which may be provided for in Schemes; and in accordance with the provisions of this section, the Employees ' Provident Fund Scheme of 1952 has been framed. In the case of the Regional Provident Fund Commissioner, Bombay, (1) this Court has held that section 1 (3) (a) does not lend itself to the construction that it is confined to factories exclusively engaged in any industry specified in Schedule I. It was observed in that connection that when the legislature has described factories as factories engaged in any industry, it did not intend that the said factories should be exclusively engaged in the industry specified in Sch. I. Consistently with this view, this Court further observed that the word 'factory ' used in section 1 (3) (a) has a comprehensive meaning and it includes premises in which any manufacturing process is being carried on as described in the definition, and so the factory engaged in any industry specified in Sch. I does not necessarily mean a factory exclusively engaged in the particular industry specified in the said Schedule. in construing the scope of section 1 (3) (a) this Court held that composite factories came within its purview and that the fact that a factory is engaged in industrial activities some of which fall under the Schedule and some do not, will take the factory out of the purview of section 1 (3) (a) having dealt with this aspect of the matter, this Court proceeded to consider the question as to (1) A I. R. 910 whether numerical requirement of the employment of 50 persons, as the section then stood, applied to the factory or to the industry, and it held that the said test applied not to the industry but to the factory. Thus, the conclusion was that in order that a factory should fall under section 1 (3) (a), it must be shown that it is engaged in any such industry as is specified in Sch. I and the number of its employees should not be less than 50. This decision makes it clear that section 1 (3) (a) is not confined only to factories which are exclusively engaged in industrial work to which Sch. I applies,but it also takes in composite factories which run industries some of which fall under Sch. I and some do not. In order to make the position clear let us state the true legal position in respect of the scope of the application of section 1 (3) (a) in categorical terms. If the factory carries on one industry which falls under Sch. I and satisfies the requirement as to the number of employees prescribed by the section, it clearly falls under section 1 (3) (a). If the factory carries on more than one industry all of which fell under Sch. 1 and its numerical strengh satisfies the test prescribed in that behalf, it is an establishment under section 1 (3) (a). If a factory runs more industries than one, one of which is the primary and the dominant industry and the others are its feeders and can be regarded as subsidiary, minor, or incidental industries in that sense, then the character of the dominant and primary industry will determine the question as to whether the factory is an establishment under section 1 (3) (a) or not. If the dominant and primary industry falls under Sch. I, the fact that the subsidiary industries do not fall under Sch. I will not help to exclude the application of section 1 (3) (a). If the dominant and primary industry does not fall under Sch. 1, but one or more subsidiary, incidental, minor and feeding industries fall under Sch. I, then section 1 (3) (a) will not apply. If the factory runs more 911 industries than one all of which are independent of each other and constitute separate and distinct industries, section 1 (3) (a) will apply to the factory even if one or more. , but not all, of the industries run by the factory fall under Sch. The question about the subsidiary, minor, or feeding industries can legitimately arise only where it is shown that the factory is really started for the purpose of running one primary industry and has undertaken other subsidiary industries only for the purpose of subserving and feeding the purposes and objects of the primary industry ; in such a case, these minor industries merely serve as departments of the primary industry; otherwise if the industries run by a factory are independent, or are not so integrated as to be treated as part of the same industry, the question about the principal and the dominant character of one industry as against the minor or subsidiary character of another industry does not fall to be considered. It is in the light of this position that we may revert to the actual decision in The Regional Provident Fund Commissioner, Bombay (1). In that case, this Court was dealing with the cases of Shree Krishna Metal Manufacturing Co., and Oudh Sugar Mills Ltd. The Metal Company carried on four different kinds of activities and it was held that its industrial activity which fell under Sch. I was neither minor, nor subsidiary, nor incidental to the other activities. In other words, the industry which the company ran and which fell under Sch. I was independent of the other industries conducted by the Company, and so, it was held that the question about one industry being subsidiary, minor, or incidental did not arise. In the result, the Company 's factory was found to fall under section 1 (3) (a). On the other hand, the case of the Oudh Sugar Mills stood on a different basis. The primary activity (1) A. I. R. 912 of the mills was the manufacture of hydrogenated vegetable oil named 'Vanasada ' and its by products, such as soap, oil cakes, etc. It appeared that a department of the Mills manufactured containers and this part of the industrial activity of the Mills fell under Sch. I. Evidence, however, showed that the fabrication of the containers had been undertaken by the Mills only as a feeder activity which was integrally connected with its primary business of producing and marketing vegetable oil, and since the primary business was. outside Sch. 1, the factory as a whole was held to be outside section 1 (3) (a). It is true that since this Court dealt with the two respective cases of the Company and the, Mills in one judgment, the test as to the principal character of the industrial activity of one industry in relation to the character of the minor industry came to be considered ; but the application of the said test became necessary essentially because of the case of the Oudh Sugar Mills. In the case of the Company, however, the several activities were not minor or subsidiary, but were independent , and it was held that the factory of the company fell under section 1 (3) (a). Therefore, in our opinion, there is no scope for the argument in the present case that the engineering industry which the appellant runs is not the primary or dominant industry but the manufacture of tiles is. Mr. Pai attempted to argue that though engineering industry run by the appellant 's factory falls under Sch. I,it employs only 24 workers whereas the tiles industry employs more than 50. He also relied on that fact that the tiles factory was started in 1943 and the engineering works in 1950, and his argument was that judged in the light of the fact that the tiles industry was started first, as well as considered by the application of the test of the strength of the employees working in the two industries,tiles industry should be treated to be the main, dominant and primary industry of the factory, and so, the factory, as a 913 whole, should be held to be outside section 1 (3) (a). In our opinion, this argument is plainly untenable. If the tiles industry and the engineering industry are independent of each other, then no question arises as to which is principal and which is subsidiary. As soon as it is shown that the factory is carrying on two industries independent of each other one of which falls under Sch. I, it becomes a composite factory to which section 1 (3) (a) applies. When section 1 (3) (a) requires that the factory should be engaged in any industry specified in Sch. I, considerations as to whether the industrial activity is major or minor can arise only where some activities are dominant and others are of the nature of feeding activities, but not otherwise. Where the industrial activities are independent and the factory is running separate industries within the same premises and as part of the same establishment and under same licence, it is difficult to accept the argument that in dealing with such a factory, enquiry would be relevant as to which of the industries is dominant and primary, and which is not. Therefore, in our opinion, the High Court was plainly right in rejecting the appellant 's case that its factory did not attract the provisions of section 1 (3) (a) of the Act. Mr. Pai wanted to contend that if the appellant 's factory is treated as falling under section 1 (3) (a), complications may arise by reason of the fact that the rate of contribution initially prescribed by section 6 has been amended in 1962 by the Amending Act No. 48 of 1962. Section 6 of the unamended Act provides, inter alia, that the contribution to be paid by the employer to the fund shall be 6 1/4% of the basic wages, dearness allowance and retaining allowance, if any, for the time being payable to each of the employees, and the employees ' contribution shall be equal to the contribution payable by the employer in respect of him. This section further provided that the employee was competent to 914 make a higher contribution not exceeding 8 and one third per cent of his emoluments specified in the said section. By the amendment made in 1962, this rate has been enhanced to 8% in respect of any establishment or class of establishments which the Central Government, after making such enquiry as it deems fit, may by notification in the official Gazette specify. We were told that in regard to the engineering industry. , this amended sub section has been extended by a notification, and Mr. Pai 's apprehension is that if the factory of the appellant is held to be an establishment to which section 1 (3) (a) applies on the ground that it is a composite factory Which runs several industries one of which falls under Sch. I, it is likely that the increased rate may be made applicable to the factory as a whole. We ought to add that Mr. Pai conceded that subsequent to the decision of the appellant 's writ petition in the High Court, the tiles industry has also been included in Sch. I. but the revised rate has been made applicable to it. Mr. Pai contends that if the factory is treated as falling under section 1 (3) (1), a distinction should be made in the different industries run by the factory for the purpose of calculating the contribution of the employer to the Provident Fund. We do not propose to deal with this contention in the present appeal. That is a matter which may well have to be decided by the respondent, and it is not open to Mr. Pai to request this Court to decide such a hypothetical question in the present proceedings. The result is,, the appeal fails and is dismissed with costs. Appeal dismissed.

IN-Abs

The appellant runs a tile factory and an engineering works at Quilon. These two industries are indepedent of each other, but they arc carried on by the same company and on the same premises. The tile factory was started in 1943 and the engineering works in 1950. The engineering industry was included in Schedule I of the Act and it employed only 24 workers, whereas the tile industry employed more than 50. The license issued to the appellant under the , was for the entire premises. The appellant moved a writ petition in the High Court in which he alleged that its factory did not attract the provisions of section 1 (3) (a) of the Employees ' Provident Funds Act 1952. The 'writ petition was dismissed with costs. It is against this order that the appellant has come to this Court. Held (i) that a factory is an "establishment" within the meaning of section 1 (3) (a) of the Act if it satisfies the requirements of the section, namely, (1) that its one or all industries fall under Schedule I of the Act, (2) that it satisfies the numerical strength as prescribed under the section. (ii)that the character of the dominant or primary industry will determine the question of the application of section I (3) (a) if a factory carries on both the dominant and subsidiary industries. (iii)That if the factory runs more industries than one an of 'which are independent of each other, section I (3) (a) will 906 apply to the factory even if one or more, but not all, of the industries run by it fall under Shedule I. (iv)that neither the tile industry was dominant nor the engineering industry was subsidiary; rather both the industries were independent of each other. (v)that the factory of the appellant will be deemed to be a composite factory and the provisions of section 1 (3) (a) will be attracted as one of its industries i. e. engineering industry, falls under Schedule I. The Regional Provident Fund Commissioner, Bombay vs Shree Krishna Metal Manufacturing Co. Bhandara [1962] Supp.3 section C. R. 815, approved.

Appeal No. 311 of 1962. Appeal by special leave from the judgment and decree dated February 7,1960 of the Punjab High Court in Regular First Appeal No. 190 of 1953. Shiv Charan Singh and Janardan Sharma, for the appellants. Achhru Ram and Brijbans Kishore, for respondents Nos. 1 to 3. 901 1963. April 9. The judgment of the Court was delivered by SARKAR J. The appellants are the sons of Umed Singh, one of the respondents in this appeal. They filed a suit for a declaratory decree that the sale of certain lands by their father Umed Singh was void against them and the other reversionary heirs. The contesting respondents are the purchasers of the lands from the father. It is not. in dispute that the lands are ancestral and that the parties are jats of Jhajjar Tehsil in Rohtak District. The only question is as to the existence of a custom giving a jat, holding agricultural ancestral lands in Jhajjar Tehsil in District Rohtak in Punjab, free power to transfer them for consideration. The trial Court and the High Court of Punjab in first appeal, held that there was such customary power. Indeed, in view of the large number of decisions in which it has been consistently held that a sale or mortgage of ancestral land by a holder is not liable to be set aside at the instance of his sons or other reversionary heirs, unless the transaction was for immoral purposes, it is impossible to take any other view. We were referred to over a dozen cases and we are sure there are more. The earliest of these was decided in 1913 and the latest in 1956. Excepting in one case to which we shall later refer, nowhere has it been held that the transfer by way of a sale or mortgage of ancestral property by a holder is liable to be set aside at the instance of a son or a reversionary heir unless the transaction had been for immoral purposes. The present is not a case of that kind for though the appellants alleged that the sale was for immoral purposes it has been found that it Was not so. We may refer here to some of these cases : Telu vs Chuni (1), Giani vs Tek Chand (2), (1) (2) Lah. 111, 902 Behari vs Bhola (1), Abdul Rafi Khan vs Lahshmi Chand (2), Ram Datt vs Khushi Ram (3), Pahlad Singh vs Sukhdev Singh (4) Sohan lal vs Rati Ram (5) and Suraj Mal vs Birju (6). Learned counsel for the appellants contended that none of these cases dealt with the custom existing in Jhajjar Tehsil and, therefore, they could not be authorities on which the present case could be decided. We have first to observe that this statement is not correct for the case of Pahlad Singh vs Sukhdev Singh (4), dealt with the custom in Jhajjar Tehsil. That appears from the judgment of the District Judge in that case which is Exh. D. 5 in this case. Furthermore, we notice that many of the cases to which we have earlier referred treated the custom giving the holder unrestricted right to transfer ancestral property for consideration, as existing in the whole district of Rohtak : see for example, Telu vs Chuni (7) and Sheoji vs Fajar Ali Khan (8). It also appears from the Riwaj i am for Rohtak District recorded in Joseph 's Customary Law Manual, vol. XXIII p. 60, compiled at the settlement of 1909 that "the power of alienating for consideration is far wider than in the Punjab proper. " In view of all this we think that the Courts below were not in error in holding that the Jats of Jhajjar Tehsil in Rohtak District had unrestricted power to transfer land for consideration provided of course the transfer was not for immoral purposes. Learned counsel for the appellants then contended that most of the cases on which the respondents relied were cases of sonless holders and even if these cases were rightly decided, those which recognised unrestricted power in the case of a holder having a son were not justified by the Riwaj i am entries and should not be followed. (1)(1933) I.L.R. (2)(1935) I.L.R. 16 La h. 505. (3) A.I.R. (1935) Lah. (4) (5)Regular Second Appeal 136 of 1943 (Unreported) Pb. H.C. (6)Civil Regular Second Appeal No. 693 of 1952 (Unreported) Pb. H.C. (7) (8) 903 We are unable to accept this contention. We find nothing in the Riwaj i am entries which would show that the decisions were not justified. In Joseph 's Manual it is said that "a sonless proprietor has full power to alienate his, property by sale or mortgage even if there is no necessity". It is true that it has also been said there that "whether a proprietor with sons has the same power is a more doubtful case." In spite of this, however, the Courts have since 1913 consistently held that the power of a holder even where he has sons to alienate ancestral property for consideration is unrestricted. It is not now possible nor would it be right to upset the law settled by these decisions on the slender ground of the doubt expressed in Joseph 's Manual. In Tupper 's Statements of Customary law vol. 2, dealing with Rohtak District, it has been said at p. 178 that "it is quite common for people to sell or mortgage their land. In cases of sale, the right of pre emption is observed" : (paragraph 25). This statement makes no distinction between the case of a man with a son and one without a son. We find nothing in the records of custom to which our attention has been drawn to justify the view that the case of the holder of an ancestral property having a son is different in this regard from that of a holder without one. Furthermore, it would be strange if the existence of sons made any difference that the point was not noticed in any of the very large number of cases dealing with the custom. We think that there is a great deal to be said in favour of the contention of Mr. Achhru Ram that the restriction on the power to aliente where it exists is based on the agnatic theory and therefore, no distinction can be made between a sonless holder and a holder having a son: see Gujar vs Sham Das (1). We come now to the only case which takes a different view and on which the appellant naturally laid great stress, namely, Budal vs Kirpa Ram (1) 107 P. R. 1887. (2) 76 P. R. 1914. 904 That was a case of a sonless holder. It was held that among Jats in the Rohtak District there was no unlimited power in holders of ancestral property to alienate it. This case has however not been followed in any of the subsequent decisions and in most cases its authority has been discounted. That we think is enough to prevent us at this distance of time from reviving the view taken in that case. Furthermore, ' as was pointed out, this case does not refer to the earlier authorities, for example, Telu vs Chuni (1). The only authority to which it refers is Tupper 's Customary Manual, but the view expressed there was not accepted as sufficient authority because in the introduction Tupper said (p. 173), that Mr. Purser who gave him the paper from which he prepared his record "did not consider that it can be relied on in doubtful points". This is hardly any reason for there was nothing to show that the customary power was doubtful. It would thus appear that the decision in Budal vs Kripa Ram (2) was not a satisfactory one. In this view of the matter we think that the learned Subordinate judge and the High Court came to the correct conclusion that in Jhaiiar Tehsil a Jat holder had unrestricted power to alienate his ancestral land for a consideration. The appeal is dismissed with costs. (1) (2) 76 P. R. 1914.

IN-Abs

A jat holding ancestral agricultural land in Jhajjar Tehsil of Rohtak district in Punjab has by custom a power to transfer 900 It for consideration. Such transfer is not liable to be set aside at the instance of his son or other reversionary heir unless the sale was for immoral purposes. The courts have consistently recognised such a power in a proprietor having sons in spite of the observation in Joseph 's Customary Law Manual that "whether proprietor with sons has the same power is a more doubtful case", and that power must now be recognised. There is a great deal to be said in favour of the contention that the existence of a son does not affect that power as the restriction on power to alienate where it exists, is based on the agnatic theory. Budal vs Kirpa Ram, 76 P.R. 1914, not followed. Telu vs Chuni, , Giani vs Tek Chand, Lab. III, Behari & Ors, vs Bhola & Ors, Lab. 600, Abdul Rafi Khan vs Lakshmi Chand, Lab. 505, Ram Datt vs Khushi Ram, A.I.R. (1933) Lab. 692, Pahlad Singh vs Sukhdev Singh, A.I.R. (1938) Lab. 524, Sohan Lal vs Rati Ram, Regular Second peal No. 136/43 (unreported) Pb. High Court, Suraj Mal vs Birju, Civil Regular Second Appeal No. 693 of 1952 (unreported), Pb. H.C. Sheoji vs Fajar Ali Khan, and Gujar vs Sham Das, 107 P.R. 1887, referred to.

Appeal No. 165 of 61. Appeal from the judgment and decree dated December 20, 1955, of the former Andhra Pradesh High Court in Appeal Suit No. 716 of 1952. D.Narsaraju, Advocate General for the State of Andhra Pradesh, and T. V. R. Tatachari, for the appellants. K.Bhimsankaram, G. Jagapathi Rao and Satyanarayana, for the respondent No. 1. K. R. Choudhry, for the respondent No. 2. 1963. April 9. The judgment of the Court was delivered by SUBBA RAO J. This appeal by certificate is preferred against the judgment and Decree of the High Court of Andhra confirming those of the Subordinate judge, Bapatla, dismissing the suit filed by the appellants for possession of the plaint schedule properties. The following genealogy will be useful 938 in appreciating the facts and the contentions of the parties : Veeranna (d. 2.2.1906) | : : : : Atchamma Seshamma (1st wife) (2nd wife) : : : : : : : : : : : : Chimpirayya Pitchayya Raghavamma : (d.5 5 1945) (d. 1 9 1905) (Plff. Applt.). : : : : : : : : . . . . : : : : : : Daughter : : : : : : (d.1 11 1905) Venkayya Chen : : chamma (DI, R 1) : : (alleged adopted) : : : : : : : : Subbarao (d.28 7 1949) : : : : : : : : : : : Venkayya Saraswatamma Raghavayya : (d.24 5 1938) : (b.28 10 1910 : (alleged to : d. 1916) : have been adopted Komalamma : by Pitchayya) D 2/R 2 : : . . . . . . . : : : : Peda Punnayya China Punniayya (died unmarried (D 3, R 3) : : . . . . . : : : : 1st wife 2nd wife (died issue Subbamma less) L.R. of D3/R3 : : . . . : : : : Alivelamma Venkayamma 939 It will be seen from the genealogy that Veeranna had two wives and that Chimpirayya and Pitchayya were his sons by the first wife and Peda Punnayya and China Punnayya were his sons by the second wife. Veeranna died in the year 1906 and his second son Pitchayya had predeceased him on 1 9 1905 leaving his widow Raghavamma. It is alleged that sometime before his death, Pitchayya took Venkayya, the son of his brother Chimpirayya in adoption; and it is also alleged that in or about the year 1895, there was a partition of the joint family properties between Veeranna and his four sons, Chimpirayya, Pitchayya, Peda Punnayya and China Punnayya, Veeranna taking only 4 acres of land and the rest of the property being divided between the four sons by metes and bounds. Venkayya died on May 24, 1938, leaving behind a son Subbarao. Chimpirayya died on May 5, 1945 having executed a will dated January 14, 1945 whereunder he gave his properties in equal shares to Subbarao and Kamalamma, the daughter of his pre deceased daughter Saraswatamma; thereunder he also directed Raghavamma, the widow of his brother Pitchayya, to take possession of the entire property belonging to him, to manage the same, to spend the income therefrom at her discretion and to hand over the property to his two grandchildren after they attained majority and if either or both of them died before attaining majority, his or her share or the entire property, as the case may be, would go to Raghavamma. The point to be noticed is that his daughter in law, Chenchamma was excluded from management as well as from inheritance after the death of Chimpirayya. But Raghavamma allowed Chenchamma to manage the entire property and she accordingly came into possession of the entire property after the death of Chimpirayya. Subbarao died on July 28, 1949. Raghavamma filed a suit on October 12, 1950 in the Court of the Subordinate judge, Bapatlal, for possession of the plaint scheduled 940 properties; and to that suit, Chenchamma was made the first defendant; Kamalamma, the second defendant; and China Punnayya, the second son of Veeranna by his second wife, the third defendant. The plaint consisted of A, B, C, D, D 1 and E schedules, which are alleged to be the properties of Chimpirayya. Raghavamma claimed possession of A, B and C Scheduled properties from the 1st defendant, for partition and delivery of half share in the properties covered by plaint schedule D and D 1 which are alleged to belong to her and the 3rd defendant in common and a fourth share in the property covered by plaint schedule E which are alleged to belong to her and the 1st and 3rd defendants in common. As Kamalamma was a minor on the date of the suit, Raghavamma claimed possession of the said properties under the will half in her own right in respect of Subbarao 's share, as he died before attaining majority, and the other half in the right of Kamalamma, as by then she had not attained majority, she was entitled to manage her share till she attained majority. The first defendant denied that Venkayya was given in adoption to Pitchayya or that there was a partition in the family of Veeranna in the manner claimed by the plaintiff. She averred that Chimpirayya died undivided from his grandson Subbarao and, therefore, Subbarao became entitled to all the properties of the joint family by right of survivorship. She did not admit that Chimpirayya executed the will in a sound and disposing frame of mind. She also did not admit the correctness of the Schedules attached to the plaint. The second, defendant filed a statement supporting the plaintiff. The third defendant filed a statement denying the allegations in the plaint and disputing the correctness of the extent of some of the items in the plaint schedules. He also averred that some of the items belonged to him exclusively and that Chimpirayy a had no right to the mm. 941 On the pleadings various issues were raised and the main issues, with which we are now concerned, are issues I and 2, and they are : (1) whether the adoption of Venkayya was true and valid ; and (2) whether Pitchayya and Chimpirayya were divided as alleged by the plaintiff. The learned Subordinate judge, after considering the entire oral and documentary evidence in the case, came to the conclusion that the plaintiff had not established the factum of adop tion of Venkayya by her husband Pitchayya and that she also failed to prove that Chimpirayya and Pitchayya were divided from each other ; and in the result he dismissed the suit with costs. On appeal, a division Bench of the Andhra High Court reviewed the entire evidence over again and affirmed the findings of the learned Subordinate judge on both the issues. Before the learned judges another point was raised, namely, that the recitals in the will disclose a clear and unambiguous declaration of the intention of Chimpirayya to divide, that the said declaration constituted a severance in status enabling him to execute a will. The learned judge rejected that plea on two grounds, namely, (1) that the will did not contain any such declaration ; and (2) that, if it did, the plaintiff should have claimed a division of the entire family property, that is, not only the property claimed by Chimpirayya but also the property alleged to have been given to Pitchayya and that the suit as framed would not be maintainable. In the result the appeal was dismissed with costs. The present appeal has been preferred by the plaintiff by certificate against the said judgment. Learned Advocate General of Andhra Pradesh, appearing for thE appellant, raises before us the following points : (1) The findings of the High Court on adoption as well as on partition were vitiated by the High Court not drawing the relevant presumptions permissible in the case of old 942 transactions, not appreciating the great evidentiary value of public documents, ignoring or at any rate not giving weight to admissions made by parties and witnesses adopting a mechanical instead of an intellectual approach and perspective and above all ignoring the consistent conduct of parties spread over a long period inevitably leading to the conclusion that the adoption and the partition set up by the appellant were true. (2) On the assumption that there was no partition by metes and bounds, the Court should have held on the basis of the entire evidence that there was a division in status between Chimpirayya and Pitchayya, conferring on Chimpirayya the right to bequeath his divided share of the family property. (3) The will itself contains recitals emphasizing the fact that he had all through been a divided member of the family and that on the date of execution of the will he continued to possess that character of a divided member so as to entitle him to execute the will in respect of his share and, therefore, the recitals in the will themselves constitute an unambiguous declaration of his intention to divide and the fact that the said manifestation of intention was not communicated before his death to Subbarao or his guardian Chenchamma could not affect his status as a divided member. And (4) Chenchamma, the guardian of Subbarao, was present at the time of execution of the will and, therefore, even if communication was necessary for bringing about a divided status, it was made in the present case. Mr. Bhimasankaram, learned counsel for the contesting first respondent, raises a preliminary objection to the effect that the certificate given by the High Court was confined only to three questions which did not include the issues relating to adoption or partition and, therefore, the appellant could not question the correctness of those findings in respect of those issues and that the question whether the recitals in the 943 will themselves constituted a partition in status could not be allowed to be raised, as that point was raised only for the first time in the High Court. He further contends that both the Courts below gave concurrent findings of fact on the question of adoption as well as on partition and this Court will not reconsider the evidence as a rule of practice and there are no exceptional circumstances to depart from that salutary practice in this appeal. He further seeks to sustain the findings of the High Court on the evidence adduced in the case. We shall take the preliminary objection first. The material part of the certificate issued by the High Court rears thus: subject matter of the suit in the court of first instance is upwards Rs. 20,000/(Rupees twenty thousand) and the value of the subject matter in dispute on appeal to the Supreme Court of India is also of the value of upwards of Rs. 20,000/ (Rupees twenty thousand) and that the affirming decree appealed from involves the following substantial questions of law : 1. Whether a will executed by a member of a joint Hindu family would of itself be operative to effect a severance between him and the other members of the family by reason of the disposition contained in the will. Whether a will executed by a member of a joint family on the assumption not proved to be well founded or correct that as a result of an anterior partition in the family he, the testator, was solely entitled to the properties disposed of by the will, would be effective to 944 create a severance between the testator and the other members as on the date of the will, and 3. Whether the aforesaid pleas could be raised for the first time on appeal without their having been raised in the pleadings or at any stage of the trial. " The said certificate was granted within the terms of Article 133 (1) of the Constitution. The material part of Article 133 (1) reads : "An appeal shall lie to the Supreme Court from any judgment, decree or final order . . if the High Court certifies (a) that the amount or value of the subject matter of the dispute in the court of first instance and still in dispute on appeal was and is not less than twenty thousand rupees or such other sum as may be specified in that behalf by Parliament ; (b) that the judgment, decree or final order involves directly or indirectly some claim or question respecting property of the like amount of value ; or (c) that the case is a fit one for appeal to the Supreme Court ; and where the judgment, decree or final order appealed from affirms the decision of the court immediately below in any case other than a case referred in sub clause (c), if the High Court further certifies that the appeal involves some substantial question of law." Mr. Bhimasankaram contends that the conditions laid down for issuing a certificate must also govern the scope of the appeal to the Supreme Court, for, otherwise, the argument proceeds, the said conditions would become otiose. He concedes that the Supreme Court can exercise an unrestricted power of reviewing the judgment of the High Court 945 in the case of a certificate hedged in with conditions by resorting to its power under article 136 of the Constitution, but this is not a case where it can do so especially having regard to the fact that the appellant did not seek to invoke that power. Under article 133 of the Constitution the certificate issued by the High Court in the manner prescribed therein is a precondition for the maintainability of an appeal to the Supreme Court. But the terms of the certificate do not circumscribe the scope of the appeal, that is to say, once a proper certificate is granted, the Supreme Court has undoubtedly the power, as a court of appeal, to consider the correctness of the decision appealed against from every standpoint, whether on questions of fact or law. A successful party no doubt can question the maintainability of the appeal on the ground that the certificate was issued by the High Court in contravention of the provisions of article 13 3 of the Constitution, but once the certificate was good, the provisions of article 133 did not confine the scope of the appeal to the certificate. We, therefore, reject this preliminary objection. His next objection is that both the learned Subordinate Judge and, on appeal, the learned judges of the High Court gave concurrent findings of fact on adoption as well as on partition and it is the usual practice of this Court not to interfere with such findings, except in exceptional circumstances and there are no such circumstances in the present case, Article 133 of the Constitution does not in any way limit the scope of an appeal, provided a proper and valid certificate is issued by the High Court thereunder. This Court has undoubtedly the power to review the concurrent findings of fact arrived at by the lower Courts in appropriate cases. But it has 946 been a long standing practice of the Privy Council not to interfere with such findings based upon relevant evidence, except under extraordinary and exceptional circumstances : Vide Rani vs Khagendrar (1); Fatima Bibi vs Ahmed Bakshi(2), Harendra vs Haridasi (3); and Bibhabati vs Ramendra (4); The same practice has been adopted and followed by this Court since its inception : see Nanalal vs Bombay Life , Assurance Co. (5): Firm Srinivas Ram vs Mahabir Prasad (6) Trojan & Co. vs Naganna (7); Rajinder Chand vs Mst. Sukhi (8); Bhikka vs Charan Singh (9); M.M.B. Catholicos vs P. Paulo Avira (10) and Narayan Bhagwantrao Gosavi Balajiwale vs Gopal Vinanyak Gosavi (11). The reason for the practice is stated to be that when facts have been fairly tried by two Courts and the same conclusion has been reached by both, it is not in the public interest that the facts should be again examined by the ultimate court of appeal. Whatever may be the reason for the rule, the practice ha% become fairly crystallized and this Court ordinarily will not interfere with concurrent findings of fact except in exceptional cases, where the findings are such that it "sbocks the conscience of the Court or by disregard to the forms of legal process or some violation of some principles of natural justice or otherwise substantial and grave injustice has been done. " It is not possible nor advisable to define those circumstances. It must necessarily be left to the discretion of this Court having regard to the facts of a particular case. We have beard learned counsel on merits and we do not think it is one of those exceptional cases where we should depart from the salutary practice adopted by this Court. Learned Advocate General contends that the learned Subordinate judge as well as the High Court did not draw the appropriate presumptions arising from the fact that the transactions were old ones, (1) Cal. (2) Cal. (3) (1914) A.I.R. 41 Cal. 972, 988.(4) 147 (5) ; A I R. (7) ; A.I.R. S.C. 286. (9) [1959] Supp 2 S.C.R. 798(10) A.I.R 1959 S.C. 31, (11) ; 947 nor did they give sufficient weight to the entries in the revenue records, the admissions made by the parties and to the conduct of the parties and such other important circumstances and, therefore, their findings are, liable to be questioned in this appeal. This argument in effect and substance means that the Courts below have not given due weight to particular pieces of evidence. There is an essential distinction between burden of proof and onus of proof, burden of proof lies upon the person who has to prove a fact and it never shifts, but the onus of proof shifts. The burden of proof in the present case undoubtedly lies upon the plaintiff to establish the factum of adoption and that of partition. The said circumstances do not alter the incidence of the burden of proof. Such considerations, having regard to the circumstances of a particular case, may shift the onus of proof. Such a shifting of onus is a continuous process in the evaluation of evidence. The criticism levelled against the judgments of the lower Courts, therefore, only pertain to the domain of appreciation of evidence. We shall, therefore. broadly consider the evidence not for the purpose of revaluation, but to see whether the treatment of the case by the Courts below is such that it falls in the category of exceptional cases where this Court, in the interest of justice, should depart from its usual practice. We shall first take the question of adoption. It is well settled that a person who seeks to displace the natural succession to property by alleging an adoption must discharge the burden that lies upon him by proof of the factum of adoption and its validity. Here, the appellant alleges in the plaint that Venkayya: the son of Chimpirayya, was taken in adoption by her husband, Pitchayya. The first defendant, the widow of Venkayya, denies in her written statement that her husband was adopted 948 by Pitchayya. On the said pleadings the following issue was framed : "Whether the adoption of Venkayya is true and valid. " On the pleading the burden of proof has rightly been placed on the plaintiff. The adoption is alleged to have taken place in the year 1905. The circumstances obtaining at that time were as follows : Chimpirayya was about 40 years old; he had only one son, Venkayya, who was aged about 2 years Pitchayya was about 25 years old and, therefore, ordinarily he had every prospect of having children of his own; it is, therefore highly improbable, unless there are special circumstances, that an only son of an elder brother was taken in adoption by his younger brother; though there is no legal prohibition, it is well known that ordinarily an only son is neither given nor taken in adoption '. P.W.I. admits that Addagada family is a prominent and affluent family in the village. But curiously no document of adoption was executed, no invitations were sent to relatives and village officers, and no expenditure incurred in connection with the adoption was entered in the accounts. Unless there were compelling and extraordinary circumstances which necessitated dispensing with all formalities, it is unthinkable that in a village there could have been an adoption made in such an affluent family without pomp and show. P. Ws. 1 and 2 speak to the adoption. P. W. I is the cousin of the appellant and P.W. 2 is appellant herself. P. W. I says that Pitchayya adopted his brother 's son Venkayya and he lived for one month thereafter. The reason for the adoption, according to her, was that he was sick and was afraid that he would die. She graphically describes that Alivelamma, the wife of Chimpirayya, gave her son in adoption to the accompaniment of "mantrams and tantrams", that one Subbayya of Upputur was the prohit who officiated in the ceremony. In the cross examination she says that Pitchayya did not die suddenly of an attack of fever but was suffering from dropsy 949 for about a month and also even earlier; she admits that for important functions like marriage and adoption in their family they would invite the village officers and other important people of the village, but no such officers or important people were invited when Venakayya was taken in adoption. This witness was 60 years old in 1961 and therefore she would have been about 15 years at the time of the alleged adoption. Assuming for a moment that Pitchayya was suffering from dropsy, there is no reason why no important persons were invited for the function. If her evidence were true, Pitchayya took part in the alleged ceremony and it cannot therefore be suggested that he was so ill that all the formalities had to be dispensed with. Indeed, if he was ill and if the adoption was made without inviting the important people, that should have been the very reason why the village officers would have been invited and a document to evidence it executed. P. W. 2 is the appellant Raghavamma. She says that there was a ceremony of adoption officiated by the prohit Subbayya and that her brother in law and his wife gave the boy to her and her husband in adoption. She also deposes that her father and his brothers were present at the adoption. In the cross examination she says that her husband lived for about 3 months after the adoption. She admits that no document was executed and that though there were accounts, no entries relating to the expenses of the adoption were entered therein. While P.W. I says that Pitchayya lived for one month after the adoption, P. W. 2 says that he lived for about 3 months thereafter. Neither in the pleadings nor in the evidence the date of adoption is given. The evidence of P. W. I is vague and appears to be improvised and the evidence of P. W. 2 discloses the improbabilities inherent in such an adoption. They also contradict each other on material circumstances. The Courts below have disbelieved their evidence. 950 The appellant and the first respondent relied upon the conduct of the parties subsequent to the alleged adoption and filed a number of documents to support their respective cases. Documentary evidence considered [omitted]. So far as the documentary evidence goes, the position is as follows: Till 1911 there was no document recording the fact that Venkayya was the adopted son of Pitchayya, and that after 1911 there had been contradictory recitals in the documents. Broadly speaking whenever Venkayya executed a document he described himself as the son of Chimpirayya, and whenever third parties executed documents, he was described as the adopted son of Pitchayya. He filed suits, sometimes as the son of Chimpirayya and sometimes as the adopted son of Pitchayya. His name was entered in the accounts relating to Paruchur, but not in the accounts relating to Upputur; he gave evidence declaring himself as the son of Chimpirayya and also insured his life as such he operated on the accounts of third parties as the son of Chimpirayya; while in the will executed by Chimpirayya, he was described as the adopted son of Pitchayya on the death of Venkayya the appellant herself, who under the will was entitled to continue in possession and management, handed over the entire management to the first respondent indicating thereby that the will was not really intended to take effect. In this state of evidence it is not possible to say that there had been a consistent pattern of conduct from which a Court should draw the inference that the adoption must have taken place. Attempt is made to reconcile these contra. dictory descriptions in the documents by developing different theories. Learned Advocate General suggests that there was no reason why Chimpirayya should have put forward Venkayya falsely as the 951 adopted son of Pitchayya as early as 1911 when he should not have gained any advantage thereby, for without the aid of adoption the entire property of Pitchayya would have come to him by survivorship. Mr. Bhimasankaram surmises that Chimpirayya put forward the adoption without the knowledge of Raghavamma to safeguard his family interests against the possible adoption later on by Raghavamma of a stranger and that subsequently both joined together with a view to put pressure upon the first respondent to marry her son Subbarao to Kamalamma. He also suggests that Chimpirayya began to put forward his son Venkayya as the adopted son of Pitchayya only after the birth of his second son in 1910 and that after the death of that son in 1916, his only interest was to see that his grand son by his son Venkayya was married to his grand daughter by his daughter and that the will was executed only to put pressure upon the first respondent. That the will was executed only for this limited purpose, learned counsel argues, is clearly demonstrated by the fact that Raghavamma, though she was entitled to be put in possession of the entire property, handed over the management of the same to the first respondent after the death of Chimpirayya. The said suggestions made by learned counsel on both sides are only based on surmises. and they cannot be made the basis for a court 's conclusion. In this state of evidence when both the Courts found, on a careful consideration of oral and documentary evidence and the probabilities arising therefrom that the appellant on whom the burden of proof lay to establish that Venkayya was adopted to Pitchayya has failed to discharge it,. we cannot say that the finding was vitiated by such errors that we should review the entire evidence over again and come to a conclusion of our own. We therefore, accept the concurrent finding of fact that there was no adoption. The next question is whether the concurrent finding of fact arrived at by the Courts below on the 952 question of partition calls for our interference. In the plaint neither the details of the partition nor the date of partition are given. In the written statement the first respondent states that Chimpirayya died undivided from his son 's son Subbarao and so Subbarao got the entire property by survivorship. The second issue framed was whether Chimpirayya and Pitchayya were divided as alleged by the plaintiff. The partition is alleged to have taken place in or about the year 1895; but no partition deed was executed to evidence the same. The burden is certainly on the appellant who sets up partition to prove the said fact. P.W. 1, though she says that Veeranna was alive when his sons effected the partition, admits that she was not present at the time of Partition, but only heard about it. P.W. 2, the appellant, deposes that her husband and his brothers effected partition after she went to live with him; she adds that in that partition her father in law took about 4 acres of land described as Bangala Chenu subject to the condition that after his death it should be taken by his four sons, that at the time of partition they drew up partition lists and recited that each should enjoy what was allotted to him and that the lists were written by one Manchella Narasinhayya; she also admits that the lists are in existence, but she has not taken any steps to have them produced in Court. She says that each of the brothers got pattas according to the partition, and that the pattas got for Pitchayya 's share are in his house; yet she does not produce them. She says that she paid kist for the lands allotted to Pitchayya 's share and obtained receipts; but the receipts are not filed. She admits that she has the account books; but they have not been filed in Court. On her own showing there is reliable evidence, such as accounts, pattas, receipts, partition lists and that they are available; but they are not placed before the Court. Her interested evidence cannot obviously be acted upon when all the relevent evidence has been suppressed. 953 Strong reliance is placed upon the alleged admissions made by D.W.8 and D. W. 10. D.W. 8 is the karnam of Paruchur for over 30 years. He says in his evidence that Veeranna took 3 acres and 63 cents. of land with a condition that it should go to his sons in equal shares and the rest of the lands were divided into two shares, one taken by Chimpiryya and Pitchayya and the other by Peda Punnayya and China Punnayya. He explains that some lands, where the soil is partly good and partly bad, were divided into four parts and one good and one bad went to each sharer. This evidence does not contain any admission that there was a partition inter se between the four brothers; indeed it only supports the case that there was a partition between the children of Veeranna by his two wives. The division in four plots in respect of certain lands was only for an equitable distribution of the said lands between the sons of two wives. D.M. 10 in his evidence says that he does not know in what year the partition took place; that it went on for two months; that some of the lands were divided into four plots. His evidence is also consistent with the evidence of D.W. 8. There is no admission by defendants ' witnesses that the division was between the four brothers. The oral evidence therefore, does not support the case of the appellant that there was a division inter se between Chimpirayya and Pitchayya. Now coming to the documentary evidence, as we have already indicated, all the relevant documents admitted to have been in existence have not been placed before the Court and an adverse inference has, therefore, to be drawn against the appellant. Even the documentary evidence filed in the case does not help the appellant. The family property is situate in three villages, Paruchur, Upputur and Podapadu. If there was a partition inter se between the 4 brothers, in the ryotwari settlement 954 effected in 1906 the names of the brothers should have been entered separately in the revenue accounts but the relevant register pertaining to that settlement has not been filed. Even in the later accounts of the year 1918 the name of Venkayya was entered only in respect of some lands in village Paruchur, but no such entries are found in respect of the other villages. Those entries were made on a representation made by Chimpirayya and no one was interested to object to the entries. Even these accounts show that in the earlier register Pitchayya 's name was not entered. Though they have some probative value of possession, they do not show that the said lands shown against Venkayya fell to the share of Pitchayya at the partition in the year 1895. In Benyala Chenu alleged to have been given to Veeranna with a condition that after his death the four sons should take it in equal shares, Venkayya did not get his share as he should if Pitchayya was divided from Chimpirayya and if he was adopted to Pitchayya. P. W. 2 admits that Chimpirayya had two acres in Bengala Chenu and Punnayya had the other two acres. This admission belies the statement that there was a partition inter se among the four brothers, for if the said partition was true, one acre should have fallen to Pitchayya 's branch. P. W. 3 also says that Chimpirayya was in enjoyment of the said two acres. B 52, B 53, B 54, B 55, B 56 and B 57 established that the original mortgage of 1900 executed in favour of Veeranna was later on renewed only by Chimpirayya and Punnayya, that after the alleged partition separate mortgages were executed for portions of the debt in favour of Chimpirayya and Putinayya, that the property which was the subject matter of the mortgages was sold in favour of Chimpirayya and Punnayya, and thereafter, under Exs. B 61, B 62 and B 63, Chimpirayya and Punnayya sold the said land to 955 third parties. These series of documents support the case that there was no partition inter se between Chimpirayya and Pitchayya. So too, another land obtained by Veeranna under an oral sale in 1886 was formally sold by a registered sale in favour of Chimpirayya and Punnayya under exhibit B 60 in 1911. If Pitchayya had a share, Venkayya should have been one of the vendses. B 67 and B 68 are the assessment orders of the year 1933 and Chimpirayya was assessed as representing a Hindu undivided family. At the time of assessment if Venkayya was not a member of the Hindu joint family, there was no other mate member in the family. The assessment could only be explained on the basis that Venkayya and Chimpirayya were members of a Joint Hindu family. Both the Courts, on the basis of the said evidence and other evidence, came to the conclusion that it has not been established that in the partition of 1895 there was a division inter se between Chimpirayya and Pitchayya. Some argument is made on the question of burden of proof in the context of separation in a family. The legal position is now very well settled. This Court in Bhagwati Prasad Sah vs Dulhin Rameshwari Juer (1), stated the law thus : "The general principle undoubtedly is that a .Hindu family is presumed to be joint unless the contrary is proved, but where it is admitted that one of the coparceners did separate himself from the other members of the joint family and had his share in the joint property partitioned off for him, there is no presumption that the rest of the coparceners continued to be joint. There is no presumption on the other side too that because one member of the family separated himself, there has been separation with regard to all. It would be a question of fact to be determined in each case upon the (1) , 607. 956 evidence relating to the intention of the par ties whether there was a separation amongst the other coparceners or that they remained united. The burden would undoubtedly lie on the party who asserts the existence of a particular state of things on the basis of which he claims relief. " Whether there is a partition in a Hindu joint family is, therefore, a question of fact; notwithstanding the fact that one or more of the members of the joint family were separated from the rest, the plaintiff who seeks to get a specified extent of land on the ground that it fell to the share of the testator has to prove that the said extent of land fell to his share; but when evidence has been adduced on both sides, the burden of proof ceases to have any practical importance. On the evidence adduced in this case, both the Courts below found that there was no partition between Chimpirayya and Pitchayya as alleged by the appellant. The finding is one of fact. We have broadly considered the evidence only for the purpose of ascertaining whether the said concurrent finding of fact is supported by evidence or whether it is in any way vitiated by errors of law. We find that there is ample evidence for the finding and it is not vitiated by any error of law. Even so, learned Advocate General contends that we should hold on the evidence that there was a division in status between Chimpirayya and the other member of the joint Hindu family i. e. Subbarao, before Chimpirayya executed the will, or at any rate on the date when he executed it. It is settled law that a member of a joint Hindu family can bring about his separation in status by a definite and unequivocal declaration of his intention to separate himself from the family and enjoy his share in severality. Omitting the will, the 957 earlier documents filed in the case do not disclose any such clear intention. We have already held that there was no partition between Chimpirayya and Pitchayya. The register of changes on which reliance is placed does not indicate any such intention. The statement of Chimpirayya that his younger brother 's son is a sharer in some lands and, therefore, his name should be included in the register, does not ex facie or by necessary implication indicate his unambiguous declaration to get divided in status from him. The conflicting descriptions in various documents introduce ambiguity rather than clarity in the matter of any such declaration of intention. Be it as it may, we cannot therefore hold that there is any such clear and unambiguous declaration of intention made by Chimpirayya to divide himself from Venkayya. Now we shall proceed to deal with the will, exhibit A 2 (a), on which strong reliance is placed by the learned Advocate General in support of his contention that on January 14, 1945, that is, the date when the will was executed, Chimpirayya must be deemed to have been divided in status from his grandson Subbarao. A Will speaks only from the date of death of the testator. A member of an undivided coparcenary has the legal capacity to execute a will; but he cannot validly bequeath his undivided interest the joint family property. If he died an undivided member of the family, his interest survives to the other members of the family and, therefore. the will cannot operate on the interest of the joint family property. But if he was separated from the family before his death, the bequest would take effect. So, the important question that arises is whether the testator in the present case became separated from the joint family before his death. The learned Advocate General raises before us the following contentions in the alternatives : (1) Under 958 the Hindu law a manifested fixed intention as con tradistinguished from an undeclared intention unilaterally expressed by a member to separate himself from the joint family is enough to constitute a division in status and the publication of such a settled intention is only a proof thereof. (2) Even if such an intention is to be manifested to the knowledge of the persons affected, their knowledge dates back to the date of the declaration, that is to say, the said member is deemed to have been separated in status not on the date when the other members have knowledge of it but from the date when he declared his intention. The learned Advocate General develops his argument in the following steps (1) the Will, exhibit A 2 (a), contains an unambiguous intention on the part of Chimpirayya to separate himself from Subbarao, (2) he manifested his declaration of fixed intention to divide by executing the will and that the Will itself was a proof of such an intention; (3) when the Will was executed, the first respondent the guardian of Subba Rao was present and, therefore, she must be deemed to have had knowledge of the said declaration '; (4) even if she had no such knowledge and even if she had knowledge of it only after the death of Chimpirayya, her knowledge dated back to the date when the Will was executed, 'and, therefore, when Chimpirayya died he must be deemed to have died separated from the family with the result that the Will would operate on his separate interest. The main question of law that arises is whether a member of a joint Hindu family becomes separated from the other members of the family by a mere declaration of his unequivocal intention to divide from the family without bringing the same to the knowledge of the other member of the family. In this context a reference to Hindu law texts would be appropriate, for they are the sources from which 959 the Courts evolved the doctrine by a pragmatic approach to the problems that arose from time to time. The evolution of the doctrine can be studied in two parts, namely, (1) the declaration of the intention, and (2) the communication of it to others affected thereby. On the first part the following texts would throw considerable light. They are collated and translated by Viswanatha Sastri J., who has a deep and abiding knowledge of the sources of Hindu Law in Adivalath Katheesumme vs Adiyalath Beechu (1) ; and we accept his translations as correct and indeed learned counsel on both sides proceeded on that basis. Yajnavalkya Ch. 11, 6. 121. "In land, corrody (annuity, etc.), or wealth received from the grandfather, the ownership of the father and the son is only equal. " Vijnaneswara commenting on the said sloka says : ". . . And thus though the mother is having menstrual courses (has not lost the capacity to bear children) and the father has attachment and does not desire a partition, yet by the will (or desire) of the son a partition of the grandfather 's wealth does take place." (Setlur 's Mitaksbara, pp. 646 648.) Saraswati Vilasa, placitum 28 : "From this it is known that without any speech (or explanation) even by means of a determination (or resolution) only, partition is effected, just as an appointed daughter is constituted by mere intention without speech." Viramitrodaya of Mitra Misra : (Ch. 11. pl. 23) "Here too there is no distinction between a partition during the lifetime of the father or after his death and partition at the desire of the sons may take place or even by the desire (or at the will) of a single (coparcener). (1) I.L.R. 960 Vyavahara Mayukha of Nilakantabhatta: (Ch. IV, section iii) "Even in the absence of any common (joint family) property, severance does indeed result by the mere declaration "I am separate from thee" because severance is a particular state(or condition) of the mind and the declaration is merely a manifestation of this mental state or condition). " The Sanskrit expressions "sankalpa" (resolution) in Saraswati Vilas, "ekechchaya (will of a single coparcener) in Viramitrodaya, "budhivisesha" (particular state or condition of the mind) in Vyavahara Mayukha, bring out the idea that the severance of joint status is a matter of individual discretion, The Hindu law texts, therefore support the proposition that severance in status is brought about by unilateral exercise of discretion. Though in the beginning there appeared to be a conflict of views, the later decisions correctly interpreted the Hindu law texts. This aspect has been considered and the law pertaining thereto precisely laid down by the Privy Council in a series of decisions; see Suraj Narain vs Iqbal Narain (1); Girija Bai vs Sadashiv Dhundiraj (2); Kawal Nain vs Budh Singh (3); and Ramalinga Annavi vs Narayana Annavi (4). In Syed Kasam vs Jorawar Singh (5); the judicial Committee, after reviewing its earlier decision laid the settled law on the subject thus : "It is settled law that in the case of a joint Hindu family subject to the law of the Mitaksbara, a severance of estate is effected by an unequivocal declaration on the part of one of the joint holders of his intention to bold his share separately, even though no actual division takes place . . " (1) All. 80 (P.C.) (2) Cal. 1031 (PC.). (3) All. 496 (P.C.) (4) Mod. 489 (P.C.) (5) Cal. 84 (P.C.) 961 So far, therefore, the law is well settled, namely, that a severance in estate is a matter of individual discretion and that to bring about that state there should be an unambiguous declaration to that effect are propositions laid down by the Hindu law texts and sanctioned by authoritative decisions of Courts. But the difficult question is whether the knowledge of such a manifested intention on the part of the other affected members of the family is a necessary condition for constituting a division in status. Hindu law texts do not directly help us much in this regard except that the pregnant expressions used therein suggest a line of thought which was pursued by Courts to evolve concepts to meet the requirements of a changing society. The following statement in Vyavahara Mayukha is helpful in this context : declaration" "I am separate from thee" because severance is a particular state (or condition) of the mind and the declaration is merely a manifestation of this marital state (or condi tion). " One cannot declare or manifest his mental state in a vacuum. To declare is to make known, to assert to others. "Others" must necessarily be those affected by the said declaration. Therefore a member of a joint Hindu family seeking to separate himself from others will have to make known his intention to the other members of the family from whom he seeks to separate. The process of manifestation may vary with circumstances. This idea was expressed by learned judges by adopting different terminology, but they presumably found it as implicit in the concept of declaration. Sadasivalyerj. ,in Soundarajan vs Arunachalam Chetty (1), said that the expression "clearly expressed" used by the Privy Council in Suraj Narain vs Iqbal Narain (2), meant "clearly expressed to the definite knowledge of the other coparceners. " (1) Mad. 159 (P.C.) (2) All. 80 (P.C.) 962 In Girja Bai vs Sadashiv Dhundiraj (1), the Judicial Committee observed that the manifested intention must be "clearly intimated" to the other coparceners. Sir George Lowndes in Balkrishna vs Ram krishna (2), took it as settled law that a separation may be effected by clear and unequivocal declaration on the part of one member of a joint Hindu family to his coparceners of his desire to separate himself from the joint family '. Sir John Wallis in Babu Ramasray Prasad Choudhary vs Radhika Devi (3), again accepted as settled law the proposition that "a member of a joint Hindu family may effect a separation in status by giving a clear and unmistakable intimation by his acts or declaration of a fixed intention to become separate. Sir John Wallis C. T., and Kumaraswami Sastri J. in Kamepalli Avilam vs Mannem Venkataswamy (4), were emphatic when they stated that if a coparcener did not communicate, during his life time, his intention to become divided to the other coparcener or coparceners, the mere declaration of his intention, though expressed or manifested, did not effect a severance in status. These decisions authoritatively laid down the proposition that the knowledge of the members of the family of the manifested intention of one of them to separate from them is a necessary condition for bringing about that member 's severance from the family. But it is said that two decisions of the Madras High Court registered a departure from the said rule. The first of them is the decision of Madhavan Nair J. in Rama Ayyar vs Meenakshi Ammal (5). There, the learned judge held that severance of status related back to the date when the communication was sent. The learned judge deduced this proposition from the accepted principle that the other coparceners had no choice or option in the matter. But the important circumstance in that case was that the testator lived till after the date of the service of the notice. If that was so that decision on the facts was correct. We shall deal with the doctrine (1) Cal. 1031 (P.C.) (2) All. 300 (P.C) (3) (1935) 43 L.W. 172 (P.C.) (4) , (5) (1930) 33 L W. 963 of relating back at a later stage. The second decision is that of a Division Bench of the Madras High Court, consisting of Varadachariar and King, JJ., it) Narayana Rao vs Purushotama Rao (1). There, a testator executed a will disposing of his share in the joint family property in favour of a stranger and died on August 5, 1926. The notice sent by the testator to his son on August 3, 1926 was in fact received by the latter on August 9, 1926. It was contended that division in status was effected only on August 9, 1926, when the son received the notice and as the testator had died on August 5, 1926 and the estate had passed by survivorship to the son on that date the receipt of the notice on August 9, 1926 could not divest the son of the estate so vested in him and the will was therefore, not valid. Varadachariar J., delivering the judgment of the Bench observed thus : "It is true that the authorities lay down generally that the communication of the intention to become divided to other coparceners is necessary, but none of them lays down that the severance in status does not take place till after such communication has been received by the other coparceners." After pointing out the various anomalies that might arise in accepting the contention advanced before them, the learned judge proceeded to state : "It may be that if the law is authoritatively settled, it is not open to us to refuse to give effect to it merely on the ground that it may lead to anomalous consequences but when the law has not been so stated in any decision of authority and such a view is not necessitated or justified by the reason of the rules, we see no reason to interpret the reference to " 'communication" in the various cases as implying that the severance does not arise until notice has (1) I.L.R. , 318, 964 actually been received by the addressee or addressees. " We regret our inability to accept this view. Firstly, be cause, as we have pointed out earlier, the law has been well settled by the decisions of the judicial Committee that the manifested intention should be made known to the other members of the family affected thereby ; secondly, because there would be anomalies on the acceptation of either of the views. Thirdly it is implicit in the doctrine of declaration of an intention that it should be declared to somebody and who can that somebody be except the one that is affected thereby. There is yet another decision of the Madras High Court, which is of Rajamannar C. J. and Venkataramma Ayyar, J. in Indira vs Sivaprasada Rao (1). There, the testator despatched a telegram addressed to his undivided brother on August 4, evening. In the ordinary course it must have been delivered on August 5. The testator died on August 6 morning. Learned counsel appearing for the brother contended that it had not been established that the telegram reached his client before the testator died and, therefore, the will did not operate on the testator 's interest in the joint family property. The learned judges rejected that contention on the basis of the judgment of Varadachariar and King JJ. in Narayana Rao vs Purushothama Rao (2). As a division Bench they were bound by the decision of another Division Bench; but the real basis of the decision is found at p. 256: "In the case before us, the telegram was despatched on the 4th evening and in the ordinary course it must have been delivered on the 5th and the testator died only on the 6th morning." (1) I. L. R. , 2 56. (2) I.L.R. , 318. 965 It appears that in the circumstances of the case the learned judges presumed that the telegram must have reached the testator 's brother before the testator died. The conclusion arrived at by the learned judges would certainly be right on the said facts. But we cannot agree with the view in so far as they agreed with that expressed by Varadachariar and King, JJ. Viswanatha Sastri, J., in Adiyalath Katheesumma vs Adiyalath Beechu (1), elaborately and exhaustively considered the question that is now posed before us. There, a member of a tarwad served a notice of his unambiguous intention to separate from the other members of the family on the Karnavan of the tarwad. The question was whether the communication of his intention to the Karnavan was sufficient. The appeal first came up before Satyanarayana Rao and Panchapagesa Sastri JJ. Satyanarayana Rao J. held that the notice was not sufficient to constitute a severance, as it was not served on all the other members of the tarwad; and Panchapagesa Sastri,J., held that the service on the Karnavan or the manager of the joint family was sufficient as he was representative of the family. As there was difference of view between the two learned judges, the matter was placed before Viswanatha Sastri. J. and the learned judge agreed with Panchapagesa Sastri. But in the course of the judgment, the learned judge went further and held that a unilateral declaration of an intention to become divided on the part of a member of a joint Hindu Family effects severance, in status and therefore the dispatch to, or receipt by, the other members of the family of the communication or notice announcing the intention to divide on the part of one member of the family is not essential or its absence fatal to a severance in status. The conclusions of the learned judge on the question now raised before us are expressed in two places and they are at pp. 543 and 549: (1) I. L. R. ,256. 966 "The only reasonable rule that can be deduced from the texts and the several decisions of the Judicial Committee is that the declaration of an intention to divide on the part of a member of the family should be clear and unequivocal and should be indicated, manifested, or published in such a manner as is appropriate in the circumstance, , of the case. One method, but not the only method, of such manifestation or publication is by delivering a notice containing a declaration of intention to become divided to the other members of the family." At p. 549 it is stated: "There must be some manifestation, indication, intimation or expression of that intention to become divided, , so as to serve as authentic evidence in case of doubt or dispute. What from that manifestation, expression, or inti mation of intention should take would depend upon the circumstances of each case, there being no fixed rule or right formula. The dispatch to or receipt by the other members of the family of a communication or notice announcing the intention to divide on the part of one member of the family is not essential nor its absence fatal to a severance in status. " We agree with the learned judge in so far as he held that there should be an intimation, indication or expression of the intention to become divided and that what from that manifestation should take would depend upon the circumstances of each case. But if the learned judge meant that the said declaration without it being brought to the knowledge of the other members of the family in one way or other constitutes a severance in status, we find it difficult to accept it. In our view, it is implicit in the expression "declaration '. ' that it should be to the 967 knowledge of the person affected thereby. An uncommunicated declaration is no better than a mere formation or harbouring of an intention to separate. It becomes effective as a declaration only after its communication to the person or persons who would be affected thereby. It is, therefore, clear that Hindu Law texts suggested and Courts evolved, by a process of reasoning as well as by a pragmatic approach, that such a declaration to be effective should reach the person or persons affected by one process or other appropriate to a given situation. This view does not finally solve the problem. There is yet another difficulty. Granting that a declaration will be effective only when it is brought to the knowledge of the other members affected, three questions arise, namely, (i) how should the intention be conveyed to the other member or members; (ii) when it should be deemed to have been brought to the notice of the other member or members; and (iii) when it was brought to their notice, would it be the date of the expression of the intention or that of knowledge that would be crucial to fix the date of severance. The questions posed raise difficult problems in a fast changing society. What was adequate in a village polity when the doctrine was conceived and evolved can no longer meet the demands of a modern society. Difficult questions, such as the mode of service and its sufficiency, whether service on a manager would be enough, whether service on the major members or a substantial body of them would suffice, whether notice should go to each one of them, how to give notice to minor members of the family, may arise for consideration. But we need not express our opinion on the said questions, as nothing turns upon them, for in this appeal there are only two members in the joint family and it is not suggested that Subba Rao 968 did not have the knowledge of the terms of the will after the death of Chimpirayya. The third question falls to be decided in this appeal, is this : what is the date from which severance in status is deemed to have taken place ? Is it the date of expression of intention or the date when it is brought to the knowledge of the other members? If it is the latter date, is it the date when one of the members first acquired the said knowledge or the date when the last of them acquired knowledge or the different dates on which each of the members of the family got knowledge of the intention so far as he is concerned ? If the last alternative be accepted, the dividing member will be deemed to have been separated from each of the members on different dates. The acceptance of the said principle would inevitably lead to confusion. If the first alternative be accepted, it would be doing lip service to the doctrine of knowledge, for the member who gets knowledge of the intention first may in no sense of the term be a representative of the family. The second alternative may put off indefinitely the date of severance, as the whereabouts of one of the members may not be known at all or may be known after many years. The Hindu law texts do not provide any solution to meet these contingencies. The decided cases also do not suggest a way out. It is, therefore, open to this Court to evolve a reasonable and equitable solution without doing violence to the principles of Hindu law. The doctrine of relation back has already been recognised by Hindu Law as developed by Courts and applied in that branch of the law pertaining for adoption. There are two ingredients of a declaration of a member 's intention to separate. One is the expression of the intention and the other is bringing that expression to the knowledge of the person or persons affected. When once that knowledge is brought home that depends upon the facts of each case it relates back 969 to the date when the intention is formed and expressed. But between the two dates, the person expressing the intention may lose his interest in the family property; he may withdraw his intention to divide; he may die before his intention to divide is conveyed to the other members of the family: with the result, his interest survives to the other members. A manager of a joint Hindu family may sell away the entire family property for debts binding on the family. There may be similar other instances. If the doctrine of relation back is invoked without any limitation thereon, vested rights so created will be affected and settled titles may be disturbed. Principles of equity require and common sense demands that a limitation which avoids the confusion of titles must be placed on it. What would be more equitable and reasonable than to suggest that the doctrine should not affect vested rights ? By imposing such a limita tion we are not curtailing the scope of any well established Hindu law doctrine, but we are invoking only a principle by analogy subject to a limitation to meet a contingency. Further, the principle of retroactivity, unless a legislative intention is clearly to the contrary, saves vested rights: . As the doctrine of relation back involves retroactivity by parity of reasoning, it cannot affect vested rights. It would follow that, though the date of severance is that of manifestation of the intention to separate, the rights accrued to others in the joint family property between the said manifestation and the knowledge of it by the other members would be saved. Applying the said principles to the present case, it will have to be held that on the death of Chimpirayya his interest devolved on Subbarao and, therefore, his will, even if it could be relied upon for ascertaining his intention to separate from the family, could not convey his interest in the family property, as it has not been established that Subbarao or his 970 guardian had knowledge of the contents of the said will before Chimpirayya died. It is contended that the first respondent, as the guardian of Subbarao, had knowledge of the contents of the Will and, therefore, the Will operates on the interest of Chimpirayya. Reliance is placed upon the evidence of P. W. 11, one Komanduri Singaracharyulu. He deposed that be was present at the time the Will was executed by Chimpiryya and that he signed it as an identifying witness. In the cross examination he said that at the time of the execution of the Will the first defendant respondent was inside the house. This evidence is worthless. The fact that she was inside the house cannot in itself impute to her the knowledge of contents of the Will or even the fact that the Will was registered that day. D. W. 4 is the first respondent herself. She says in her evidence that she did not know whether the Sub Registrar came to register the Will of Chimpirayya, and that she came to know of the Will only after the suit was filed. In that state of evidence it is not possible to hold that the first respondent, as guardian of Subbarao, had knowledge of the contents, of the Will. In this view, it is not necessary to consider the further question whether the Will contained a clear and unambiguous declaration of intention on the part of the testator to divide himself from the members of the joint family. In the result, the appeal fails and is dismissed with costs. Appeal dismissed.

IN-Abs

The appellants and the respondents trace their interest and rights through their geneology to one Veeranna who died in 1906. One of his sons Pitchayya, predeceased him in 1905 and it is alleged that sometime before his death Pitchayya took Venkayya, the son of his brother Chimpirayya, in adoption. It is further alleged that a partition of the joint family properties between Veeranna and his four sons took place. Venkayya died in 1938 having a son Subbarao. Chimpirayya died in 1945 having executed a will whereunder he gave his properties in equal shares to Subbarao and Kamalamma, the daughter of his predeceased daughter. He also directed Raghavamma, the wife of his brother Pitchayya, to take possession of the entire property belonging to him, manage it and to hand over the same to his two grand children when they attained majority. Chimpirayya excluded his daughter in law Chenchamma from management as well as inheritance. But Raghavamma allowed Chenchamma to take possession of the property. Subbarao died in 1949. In 1930, Raghavamma filed a suit for possession of the property impleading Chenchamma as the first defendant, Kamalamma as the second defendant and Punnayya as the third defendant. 934 Chenchamma, the first defendant and the present first respondent, contended that Venkayya was not given in adoption and that there was no partition as alleged by the plaintiff. She averred that Chimpirayya died undivided from his grandson Subbarao and therefore, Subbarao became entitled to all the properties of the joint family by right of survivorship. The trial Judge came to the conclusion that the plaintiff had not established adoption of Venkayya by her husband Pitchayya and that she also failed to prove that Chimpirayya and Pitchayya were divided from each other and in the result dismissed the suit. On appeal, the High. Court upheld the above two findings of the trial judge. A new pica was raised by the appellant before the High Court that the will executed by Chimpirayya contained a clear intention to divide and that this declaration constituted a severance in status enabling him to execute a will. The High Court rejected this contention also and in the result dismissed the appeal. On appeal by certificate, the appellants contended that the findings of the High Court on adoption as well as on partition were vitiated by the High Court not drawing the relevant presumptions permissible in the case of old transactions, not appreciating the great evidentiary value of public documents, ignoring or at any rate nor giving weight to admissions made by parties and witnesses, adopting a mechanical instead of an intellectual approach and perspective and above all ignoring the consistent conduct of parties spread over a long period. inevitably leading to the conclusion that the adoption and the partition set up by the appellant were true. (2) On the assumption that there was no partition by metes and bounds, the court should have held on the basis of the entire evidence that there was a division in status between Chimpiravva and Pitchayya, conferring on Chimpirayya the right to , bequeath his divided share of the family property. (3) The will itself contained recitals emphasizing the fact that he had all through been a divided member of the family and that on the date of execution of the will he continued to possess that character of a divided member so as to entitle him to execute the will in respect of his share and, therefore, the recitals in the will themselves constituted an unambiguous declaration of his intention to divide and the fact that the said manifestation of the intention was not communicated before his death to Subbarao or his guardian Chenchamma could not affect his status as a divided member. (4) Chenchamma, the guardian of Subbarao, was present at the time of execution of the will and, therefore, even if communication was 935 necessary for bringing about a divided status, it was made in the present case. The respondents raised a preliminary objection, that the certificate issued by the High Court did not contain any issue relating to adoption or partition. Hence, this Court should not allow the appellants to raise these questions. Secondly, it was contended that since the question, whether declaration in the will constituted a partition was raised in the High Court for the first time it should not be allowed to be raised. It war. further urged that on the issues of partition and adoption, there were concurrent findings of fact by the trial Court and the High Court and this Court should not interfere. Held that a successful party can question the maintain ability of the appeal on the ground that a certificate was wrongly issued by the High Court in contravention of article 133 of the Constitution, but if the certificate was good, the provisions of that Article did not confine the scope of the appeal to the certificate. This Court has the power to review the concurrent findings of fact arrived at by the lower courts in appropriate cases. But this Court ordinarily will not interfere with concurrent findings of fact except in exceptional cases, where the findings are such as "shocks the conscience of the Court or by disregard to the forms of legal process or some violation of some principles of natural justice or otherwise substantial and grave , injustice has been done ' . It is not possible nor advisable to define those circumstances. It must necessarily be left to the discretion of this Court having regard to the facts of a particular case. The present case is not one of those exceptional cases where a departure from the salutary practice adopted by this Court is justified. Case Law referred to. There is an essential distinction between burden or proof and onus of proof; burden of proof lies upon the person who has to prove a fact and it never shifts but the onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence. The criticism levelled against the judgments of the lower courts, therefore, only pertain to the domain of appreciation of evidence. It is well settled that a person who seeks to displace the natural succession to property by alleging an adoption must discharge the burden that lies upon him by proof of the factum of adoption and its validity. In the present case, the appellant has failed to discharge that burden. 936 The burden is upon that person who sets up partition to prove that fact. The general principle is that a Hindu family is presumed to be joint unless the contrary is proved. The finding whether there was partition or not is a finding of fact. An interference in the concurrent findings of fact on this point by the courts below is not justified. Bhagavati Prasad Shah vs Dulbi Rameshwari Juar, , referred to. It is settled law that a member of a joint Hindu family can bring about his separation in status by a definite and un equivocal and unilateral declaration of his intention to separate himself from the family and enjoy his share in severality. One cannot declare or manifest his mental state in a vaccum. To declare is to make known, to assert to others. Others must necessarily be those affected by the said declaration. Therefore, a member of a joint Hindu family seeking to separate himself from others will have to make known his intention to the other members of the family from whom he seeks to separate. A declaration to be effective should reach the person or persons affected by one process or other appropriate to a given situation. Adujallath Kathusumma vs Adujalath Beechu, I.L.R. 1950 Mad. 502, Suraj Narain vs Iqbal Narain, All.80 (P. C.), Ramalinga Annavi vs Narayanan Annavi, (1922) I. L. R. C.), Sayed Kasam vs Jorawar Singh, Cal. 84 (P. C.), Soundararayanl vs Arunachalam Chetty, Mad. 159 (P.C.), Bal Krishna vs Ram Krishna, C.), Babu Ramasaray Prasad Choudhary vs Radhika Devi, (1935) 43 L. W. 172 (P.C.), Kamepalli Avilamma vs Manmen Venketaswamy, , Rama Ayyar vs Meenakshi Ammal, (1930) 33 L. W. 384, Narayana Rao vs Purshothama Rao, I. L. R. and Indira vs Sivaprasad Rao, I. L. R. , discussed . Once the declaration is expressed and brought to the knowledge of the person affected, it relates back to the date of 937 declaration or the expression of intention to separate. As the doctrine of relation back involves retroactivity, it cannot affect vested rights. It would follow that, though the date of severance is that of manifestation of the intention to separate, the rights accrued to others in the joint family property between the said manifestation and the knowledge of it by the other members would be saved. Applying the above principles to the present case it must be held that on the death of Chimpirayya his interest devolved on Subbarao since it has not been established that Subbarao or his guardian had knowledge of the contents of Chimpirayya 's will before Chimpirayya died.

ivil Appeal No. 626 of 1961. Appeal by special leave from the judgment and order dated November 18, 1959, of the Andhra Pradesh High Court in Writ Petition No. 922 of 1956. T.V.R. Tatachari and P.D. Menon, for the appellants. K. Bhimasankaram and T. Satyanarayana, for the respondent. April 10. The Judgment of the Court was delivered by SHAH J. On March 10, 1955, the Deputy Inspector General of Police, State of Andhra, passed an order dismissing the respondent (who was a sub inspector of police appointed on probation) from service. On appeal to the Inspector General of Police, the order was altered into one of removal from service. The respondent then. moved the High Court of Andhra pradesh by a petition under article 226 of the Constitution for a writ of certiorari or other appropriate 27 writ or direction quashing the proceedings of the Inspector General of Police including his order dated September 24, 1955, and the order of the Deputy Inspector General of Police dated March 10, 1955, and for such other orders as the Court may deem fit. The High Court quashed the two impugned orders. Against the order passed by the High Court, this appeal is preferred with special leave. It is necessary to set out in some detail the facts which gave rise to the departmental proceedings against the respondent resulting in his removal from service. The respondent was at the material time in charge of the police station Kodur, Visakhapatnam District. On February 18, 1954, an offence of house breaking and theft was reported at the police station and was registered on February 19,1954. It was recited in the report of the Village Munsif of Vechalam that one Durgalu who was then absconding was suspected to be the offender. This Durgalu was apprehended by the Village Munsif of Kalogotla on March 5, 1954, and was handed over to the Village Munsif of Vechalam, who in his turn sent Durgalu to Kodur police station with village servants V. Polayya, Vechalapu Simhachalam, Kodamanchali Simhachalam and Koduru Sumudram. It is the case of the State that Durgalu was handed over to the respondent on the night of March 5, 1954, but no written acknowledgment in token of having received Durgalu from the village servants was given by the respondent, nor was any entry posted in the station diary, and Durgalu was thereafter confined in the police station from the night of March 5, 1954, without any order from a Magistrate remanding him to police custody. On March 7, 1954, the ' respondent entrusted charge of the police station to a head constable and left for Kakinada on casual leave for five days. He returned to Kodur on March 12, 1954. After the departure of the respondent, 28 some constables arrested one Reddy Simhachalam and brought him to the police station in the evening of March 7, 1954. It is the case of the State that as a result of torture by police constables Nos. 1199, 363 and 662, Reddy Simhachalam became unconscious. The dead body of Reddy Simhachalam was found floating in a well near the police station on the morning of March 9, 1954, and an enquiry into the circumstances in which the death took place was commenced by the Revenue Divisional Officer, Narsipatnam. In the enquiry, Durgalu made a statement that he had witnessed the torture of Reddy Simhachalam, in the police station, by the three constables. Police constables Nos. 1199, 363 ' and 662 were then charged before the Sub Magistrate, Chodavaram, for offences under sections 304(2) and 201 read with section 114 I.P. Code, for causing the death of Reddy Simhachalam by torturing him and for causing disappearence of the evidence of his death. Before the Sub Magistrate, Durgalu retracted his earlier statement and stated that the statement that he was an eye witness to the torture of Reddy Simhachalam was untrue and that he was induced to make that statement by the police. He deposed that he had escaped from the custody of the village servants before he reached the police station Kodur on March 5, 1954, and that he was re arrested on March 8, 1954. The Sub Magistrate discharged the police constables holding that once Durgalu the only eye witness turned hostile, there was no direct evidence on which even a prima facie case could be made out against them. The record of the case before the Sub Magistrate was called by the Sessions Judge, Visakhapatnam, suo motu. The Sessions Judge held it proved on the evidence that Durgalu was arrested on March 5, 1954 and was taken to the police station Kodur and was wrongfully confined since that date in the police station, and the story of Durgalu before the Sub Magistrate that after he was arrested on March 5, 1954 and was taken to the 29 Kodur village on that very day he had escaped from custody and that he remained in his village Vechalam could not be believed. A departmental enquiry was commenced in May 1954: against the respondent. The charge in the disciplinary proceedings against the respondent after it was amended ran as follows : "Reprehensible conduct in wrongfully confining a K.D, Chandana Durgalu accused in Cr. No.17/54: of Kodur Police Station from the night of 5 3 54: to 7 3 1954: in the Police Station when he went on five days casual leave. ' ' To the charge was appended a "statement of facts" reciting inter aria, that Durgalu was apprehended by the Village Munsif, Kaligotla and was handed over to the Village Munsif, Vechalam, that Durgalu was sent by the latter with the written report with the assistance of village servants, that on the same night the latter handed over Durgalu to the respondent in the police station Kodur at about 12 mid night, with the report of the Village Munsif and demanded acknowledgment but the acknowledgment was refused by the respondent, and that the respondent did not mention these facts in any of the station records and wrongfully confined Durgalu in the police station till March 7, 1954:, when he proceeded on casual leave for five days. This, the "statement of facts" added, constituted grave and reprehensible conduct and hence the charge. The respondent submitted an explanation in which he submitted that Durgalu was not handed over to him on March S, 1954:, as alleged nor at any time before he proceeded on March 7, 1904:, on casual leave. His plea was that when he proceeded on leave he entrusted charge of the police station to the head constable leaving instructions to trace Durgalu and to take action. 30 The Deputy Superintendent of Police held the departmental enquiry and submitted his report on October 27, 1954, setting out the evidence of the witnesses examined on behalf of the State and the respondent, and summing up the conclusion by reciting that the evidence in the case for the State made out a strong case against the respondent, that it was established that Durgalu was arrested on March 5, 1954, and was sent by the Village Munsif to Vechalam who in his turn sent him with the village servants to the police station Kodur, and Durgalu was handed over to the respondent on the night o.f March 5, 1954, that the story of Durgalu that after he was arrested on March 5, 1954, he escaped from the custody of the village servants and was again arrested on March 8, 1954, was false. The report then concluded "All these facts go to show that he was arrested on the 5th without a shadow of doubt, but if the judgment of the learned Court which is based on the retracted statement of Durgalu is considered the 'sacred truth ' the delinquent may have benefit of doubt. " This report was considered by the authority competent to impose punishment and a provisional conclusion that the respondent merited punishment of dismissal for the charges held established by the report was recorded. A copy of the report of the Enquiry Officer was sent to the respondent and he was called upon to submit his representation against the action proposed to be taken in regard to him. The respondent submitted his representation which was considered by the Deputy Inspector General of Police, Northern Range, Waltair. That Officer referred to the evidence of witnesses for the State about the arrest of Durgalu on March 5, 1954, and the handing over of Durgalu to the respondent on the same day. He observed that the evidence of Durgalu 'that after he was arrested on March 5: 1954, he had made good his escape and was again arrested on March 8, 1954, could not be accepted. Holding that the charge 31 against the respondent was serious and had on the evidence been adequately proved, in his view the only punishment which the respondent deserved was of dismissal from the police force. In appeal the Inspector General of Police accepted the evidence of the witnesses who had deposed that they had handed over Durgalu to the respondent on March 5, 1954. In his view the respondent had "betrayed gross dishonesty and lack of character in falsifying the records by omitting to write what he had done and what happened in the police station, thereby .proving himself thoroughly dishonest and untrustworthy," and "showing himself unfit to hold the responsible post of a SubInspector of police," and that "his records as a probationary Sub Inspector of police are generally unsatisfactory. and he has earned a reputation for inefficiency and lack of interest in work for weakness in dealing with his subordinates, which are all attributes that militate against his becoming useful SubInspector of Police. " But taking into consideration his young age and inexperience, the Inspector General of Police reduced the order of dismissal into one for removal from service. In the departmental proceeding a simple question of fact fell to be determined viz. whether Durgalu was arrested on March 5, 1954, and was delivered over by the village servants to the respondent at police station Kodur on the night of March 5, 1954. There is no dispute that Durgalu was arrested on March 5, 1954, and was sent by the Village Munsif, Vechalam with his report to the police station Kodur. The only question in dispute was whether Durgalu was handed over to the respondent on March 5, 1954, as stated by the witnesses for the State. The case of the State was accepted by the Deputy Inspect.or .General of Police who passed the order of dismissal and the Inspector 32 General of Police in appeal. But the High Court declined to accept this view of the evidence. In so doing, with respect it must be observed, the High Court assumed to itself jurisdiction which it did not possess. The High Court was of the view that the conclusion of the departmental authorities was vitiated, because the Enquiry Officer dealt with the evidences of witnesses for the State, and the witnesses for the respondent separately, and the Deputy Inspector General of Police and the Inspector General of Police did not in recording their orders refer to all the evidence led before the Enquiry Officer and they "failed to appreciate the full significance of the rule concerning the onus of proving. The rule meant that everything essential to the establishment of a charge lies on the person, who seeks to establish the charge. It further means that the two sets of evidence in the case must not be examined separately in order to ascertain first whether those for establishing the charge have proved it and then to examine the defence in order to see how far the conclusions are unjustified. The better approach, which has been described as the golden thread in the web of criminal law is to examine the law, the whole evidence in order to ascertain how far the liability of the person proceeded against has been established beyond reasonable doubt". The High Court then observed that ordinarily the conclusions on questions of fact by a body or tribunal in a proceeding under article 226 of the Constitution are accepted by the High Court but that general rule does not apply "whenever an important principle of jurisprudence is discarded in reaching such findings", and since the fundamental rule that a person should be punished only after the entire evidence in the case had been considered and he is found liable beyond reasonable doubt, had not been followed, the conclusions of the departmental authorities were vitiated. The High Court again observed that the orders passed by the departmental authorities were vitiated because of two 33 other matters: (i) that the Enquiry Officer declined to summon and examine two witnesses for the defence even though a request in that behalf was made; and (ii) that there was no charge against the respondent of "falsifying the record by omitting to write what he had done or what happened in the police station", and he had not been given an opportunity of meeting such a charge and therefore the respondent had no fair hearing consistent with the principles of natural justice. There is no warrant for the view expressed by the High Court that in considering whether a public officer is guilty of the misconduct charged against him, the rule followed in criminal trials that an offence is not established unless proved by evidence beyond reasonable doubt to the satisfaction of the Court, must be applied, and if that rule be not applied, the High Court in a petition under Art, 226 of the Constitution is competent to declare the order of the authorities holding a departmental enquiry invalid. The High Court is not constituted in a proceeding under article 226 of the Constitution a Court of appeal over the decision of the authorities holding a departmental enquiry against a public servant: iris concerned to determine whether the enquiry is held by an authority competent in that behalf, and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. Where there is some evidence, which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent Officer is guilty of the charge, it is not the function of the High Court in a petition for a writ under article 226 to review the evidence and to arrive at an independent finding on the evidence. The High Court may undoubtedly interfere where the departmental authorities have held the proceedings against the delinquent in a manner inconsistent with the 34 rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the authorities have disabled themselves from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or by allowing themselves to be influenced by irrelevant considerations or ;where the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion, or on similar grounds. But the departmental authorities are, if the enquiry is otherwise properly held, the sole judges of facts and if there be some legal evidence on which their findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a proceeding for a writ under article 226 of the Constitution. The Enquiry Officer had accepted the evidence of witnesses for the Sate that Durgalu was handed over to the respondent on March 5, 1954, and the observation that the respondent may have the benefit of doubt if the judgment of the Magistrate is considered "sacred truth" appears to have been made in a somewhat sarcastic vein, and does not cast any doubt upon the conclusion recorded by him. The Enquiry Officer appears to have stated that the judgment of the Magistrate holding a criminal trial against a public servant could not always be regarded as binding in a departmental enquiry against that public servant. in so stating, the Enquiry Officer did not commit any error. The first ground on which the High Court interfered with the order of the punishing authorities is therefore wholly unsustainable. The two other grounds on which the High Court also based its conclusion, namely, refusal to summon and examine witnesses for the respondent and holding the respondent guilty of a charge of which he had no 35 notice are equally without substance. It appears that the respondent desired to examine police constables Nos. 178, 506 and 569 to prove that Durgalu was not in the lock up till March 8, 1954. Police constable No. 506 was examined as a witness for the respondent, and the Enquiry Officer has not accepted his evidence. The other two witnesses were neither summoned nor examined, but it appears from the record that on September 20, 1954, the respondent promised to produce the witnesses whom he had cited in his defence. At the hearing dated September 26, 1954, three witnesses were examined by the respondent and the respondent was given another opportunity to secure the presence of the remaining defence witnesses. On September 27, 1954 police constable 506 was examined and it appears that the respondent expressed his desire not to examine any more witnesses. In the proceeding of the Enquiry Officer there is a note that "your defence witnesses have been examined and such documents you required have been produced and exhibited". The respondent subscribed his signature in acknowledgment of the correctness of that recital. He did not raise any objection in the representation made by him before the Deputy Inspector General of Police when notice was issued on him to show cause why he should not be punished. In the memo of appeal to the Inspector General of Police, it was submitted by the respondent that the police witnesses were to be summoned by the Enquiry Officer, and that he did not summon them. It was also submitted that the statement signed by the respondent was only in respect of private witnesses, and not police witnesses. But the endorsement made by the Enquiry Officer is not susceptible of any such interpretation, which refers to all witnesses for the respondent. The record does not show that an application for summoning the police witnesses was made and the Enquiry Officer in breach of the rules declined to summon them. We are in the light of this evidence 36 of the view that the respondent did not, after the examination of police constable No. 506, desire to examine the two police constables Nos. 178 and 569, whom he. originally wanted to examine. It was next urged that the findings recorded were not in respect of the charge which the respondent was called upon to answer. The charge against the respondent was that he had wrongfully confined Durgalu on March 5, 1954, to March 7, 1954, in the police station. In the statement of facts which accompanied the charge sheet it was stated in express terms that the respondent had not recorded in any of the diaries of the police station that Durgalu was handed over to him on March 5, 1954. The charge and the "statement of facts" form part of a single document on the basis of which proceedings were started against the respondent and it would be hypercritical to proceed ' on the view that though the respondent was expressly told in the statement of facts which formed part of the charge sheet, that he had failed to record that Durgalu was handed over to him, that ground of reprehensible conduct ' was not included in the charge, and on that account the enquiry was vitiated. No objection appears to have been raised before the Deputy Inspector General or even the Inspector General of police, that there was infirmity in the charge on that account, and that infirmity had prejudiced the respondent in the enquiry. The respondent had full notice of the charge against him, and he examined witnesses in support of his defence and made several argumentative representations before the Deputy Inspector General, the Inspector General of Police and the Government of Andhra Pradesh. In our Judgment the proceedings before the departmental authorities were regular and were not vitiated on account of any breach of the rules of natural justice. The conclusions of the departmental 37 officers were fully borne out by the evidence before them and the High Court had no jurisdiction to set aside the order either on the ground that the "approach to the evidence was not consistent with the approach in a criminal case," nor on the ground that the High Court would have on that evidence come to a different conclusion. The respondent had also ample opportunity of examining his witnesses after he was informed of the charge against him. The conclusion recorded by the punishing authority was therefore not open to be canvassed, nor was the liability of the respondent to be punished by removal from service open to question before the High Court. The appeal is allowed and the order passed by the High Court is set aside. The petition filed by the respondent is dismissed. There will be no order as to costs. The order as to costs passed by the High Court will stand. Appeal allowed.

IN-Abs

The respondent was a Sub Inspector of Police in charge 01 a police station. One D, suspected of having committed an offence, was apprehended by the village Munsif and was sent to the police station. He was handed over to the respondent. The respondent declined to give a written acknowledgment of having received 1)and made no entries in the station diary regarding him. D was confined in the police station for several days without being produced before a Magistrate. A departmental inquiry was started against him for reprehensible conduct in wrongfully confining D. The defence set up by him was that D had never been handed over to him because he had escaped while on his way to the police station. The Deputy Superintendent of Police, who held the enquiry, found him guilty of the charge. The Deputy Inspector General of Police gave him a show cause notice and after considering his explanation ordered that he be dismissed from service. On appeal, the Inspector General of Police modified the order of dismissal and converted it into one for removal from service. The respondent filed a writ petition before the High Court challenging the validity of the order and the High Court quashed the orders. Held that the High Court had no jurisdiction to interfere with the orders. The High Court was wrong in its view that in a departmental enquiry the rule followed in a criminal trial that an offence is not established unless proved by evidence beyond reasonable doubt to the satisfaction of the court must be applied and that if such a rule was not applied the high court could set aside the order of the departmental authority in exercise of its power .under article 226 of the constitution. The High Court does not sit as a court of appeal over the decision of the authority holding a departmental enquiry: 26 it has only to see whether the enquiry has been held by a competent authority and according to the procedure prescribed and whether the rules of natural justice have been observed. Where there is some evidence which the authority has accepted and which evidence may reasonably support the conclusion that the officer is guilty, it is not the function of the High Court exercising its jurisdiction under article 226 to review the evidence and to arrive at an independent finding on the evidence. If the enquiry has been properly held the question of adequacy or reliability of the evidence cannot be convassed before the High Court. In the present case, the proceedings before the departmental authorities were regular, no rules of natural justice were voilated, the conclusions were borne out by the evidence and the respondent had ample opportunity of examining his witnesses. Therefore, the conclusions of the punishing authority were not open tO be questioned before the High Court.

ivil Appeal No. 350 of 1962. Appeal by special leave from the judgment and decree dated November 30, 1960, of the Patna High Court in Miscellaneous Judicial Case No. 799 of 1958. G. section Pathak and G.G. Mathur, for the appellant. N. D. Karkhanis and R. N. Sachthey, for the respondent. 1963, April 10. The Judgment of the Court ' was delivered by SARKAR J. This case does not seem to us to present any real difficulty. It arises out of a reference to the High Court of Patna of two questions both of which were answered by the High Court against. the assessee, the appellant in this Court. The appellant is. a company manufacturing sugar. It had its factory originally at a place called 19 Sitalpur. That place was found to be disadvantageous for the appellant 's business as sugar cane of good quality was not available in sufficient quantity in the neighbourhood and also as it suffered from ravages of flood. With a view to improve its business the appellant removed its factory from Sitalpur to another place called Garaul and in the process of dismantling the building and machinery, transportation from Sitalpur to Garaul and refitting the machinery at the latter place, it incurred a total expense of Rs. 3,19,766/ in the year of account. In the assessment of its income tax. it claimed a deduction of these expenses as revenue expenses. That claim was rejected. The questions referred concern these expenses. The first question was this: "Whether the expenditure of Rs. 3, 19,766/ incurred by the assessee m dismantling and shifting the factory from Sitalpur and erecting the factory and fitting the machinery at Garaul was expenditure of a capital nature and not revenue expenditure within the meaning of section 10 (2) (xv) of the Income tax Act ?" Considering the matter apart from the authorities, it seems to us impossible that the expenditure could be revenue expenditure. It was clearly not incurred for the purpose of carrying on the concern but it was incurred in setting up the concern with a greater advantage for the trade than it had m its.previous set up. The expenditure was .not. recurred m caring any profit but only for putting its factory, that is, its capital, in better shape so that it might produce larger profits, when work.ed. It really .went towards effecting a permanent improvement in the profit making machinery, that is, in the capital assets. It was, therefore, a capital expenditure and not a revenue expenditure. 20 The case, furthermore, is completely governed by authorities. We think it comes clearly within the well known dictum of Viscount Cave in Atherton vs British Insulated and Helsby Cables Ltd (1). That "when an expenditure is made, not only once and for all, but with a view to bringing into existence an asset or an advantage for the enduring benefit of a trade, I think that there is very good reason (in the absence of special circumstances leading to an opposite conclusion) for treating such an expenditure as properly attributable not to revenue but to capital". The test formulated by Viscount Cave has been accepted by this Court: see Assam Bengal Cement 6 '0. Ltd. vs The Commissioner of Income tax West Bengal (2). Here the expenditure produced an enduring advantage in the shape of transfer to a better factory site, an advantage which enabled the trade to prosper and an advantage that could be expected to last for ever. It was an expense properly attributable to capital under Viscount Cave 'dictum. Mr. Pathak did not question the authority of the test laid down in Atherton 's case (1), but said that that test had no application in the present case as it would not apply unless by the expenditure a material asset or a covenant or right in the nature of capital was acquired. We find neither principle nor authority to support this contention. If an expenditure incurred, say for acquiring an additional plant, is capital expenditure, an expenditure incurred in dismantling and refitting the existing plant at a better site would be equally capital expenditure. They would both be capital expenditure because both were incurred for increasing the capacity of the profit making machine to earn profits and neither was incurred for earning the profits themselves. In principle, therefore, there is no reason to make a distinction .as to the nature of the expense between an expenditure incurred for acquiring material capital (1) 192, (2) , 21 asset or a legal right in the nature of capital and an expenditure incurred for acquiring any other advantage of an enduring nature for the benefit of the trade. It is true that it has been said, as Mr. Pathak pointed out, that the advantage acquired by the expenditure must be analogous to an asset (see Halsbury 's Laws of England, 3rd ed. XX p. 162.) but that only means advantage of the nature of a capital asset, that is to say, "an advantage to the permanent and enduring benefit of the trade". see ibid p. 161. It is obviously not necessary for an advantage to be of such a nature that it must be the acquisition of a material asset or of a chose in action. As to the authorities, they are all against the view for which Mr. Pathak contends. We propose to refer to two of them only. First, there is the case of Granite Supply Association Ltd. vs Kitton (1). The assessee was a company whose business was to buy and sell granite. It found it necessary to shift to a larger yard and in doing so incurred expenses for removal of stones and cranes from the old to the new yard and for re erecting the cranes in the latter yard. It was held that the Company was not entitled to a deduction for these expenses. It was said that the expenses were of the same kind as those which might have been incurred in the buying of new cranes. Lord MacLaren said (p. 17IL "I think that the cost ' of transferring plant from one set of premises to another more commodious set of premises 'is not an expense incurred for the year in which the thing is done, but for the general interests of the business. It is said, no doubt, that this transference does not add to the capital 'value of the plant, but I think that is not the criterion." Lord MacLaren 's observation is completely against the view advocated by Mr. Pathak that to constitute an enduring benefit a material asset or a right must be created. The above case, furthermore, is indistinguishable from the case in hand. Mr. Pathak sought to (1) (1905) 5 T.C.160. 22 distinguish the present case from the Granite Supply Association Ltd. case (1), on the ground that there the business was not running at a loss in the old yard and the expenses were incurred only to enlarge the business and hence were on capital account. We find it difficult to. appreciate this distinction. Whether an expense is on capital account or not would not depend on whether it was incurred for earning larger profits than before nor would an expenditure be on revenue account because it was incurred for turning a losing concern into a profitable one. The other case to which we will refer is Bean vs Doncaster Amalgamated Collieries Ltd.(2). The Colliery Company was required by a statute to incur expenses for remedial works necessary tO obviate loss of efficiency in an existing drainage system due to subsidence caused by the Company 's workings. The Drainage Board formed a general drainage improvement scheme and the Company paid a part of the expenses of the new drainage constructed under the scheme. As a result of the new drainage the Company was enabled to work its seams without incurring the liability under the statute as the new drainage system had been so constructed as to remain unaffected by the Company 's workings. It was contended by the company that the payment for the new drainage was a revenue expenditure as it had not resulted in the acquisition of any capital asset, but this contention was rejected and it was held that the expenditure was on capital account and no deduction for it was allowable. Viscount Simon said (p. 312), that the expenses had been incurred "to secure an enduring advantage within the proper application of Lord Cave 's phrase in Atherton vs British Insulated and Helsby Cables Ltd. , at page 192)". He also quoted (p.312) with approval the observation of Uthwatt J. in the Court of Appeal that, "The result of the transaction (1) (2) , 23 clearly was that the value of the particular coal measures a capital asset remaining unchanged in character was increased both for use and exchange. There was, therefore, as the result of the transaction,brought into existence, not indeed an asset, but an advantage for the enduring benefit of the trade of the Company." Obviously, therefore, there can be an enduring advantage acquired without an addition to or increase in the value of any capital asset. It is no doubt true that the distinction between revenue expenditure and expenditure on capital is very fine and often it is difficult to decide under which class an expenditure properly falls. No such difficulty, however, arises in the present ease. We think, for the reasons earlier mentioned, that the present is a plain ease and we feel no doubt that the expenses for shifting and re erection were incurred on capital account. The first question referred was clearly correctly answered by the High Court. The appellant 's ease is even weaker with regard to the other question which was this: "Whether the assessee was entitled to claim depreciation on the said expenditure of Rs. 3,19,766/ ?" This question was raised presumably on the basis that if in respect of the first question it was held that the expenditure was on capital account, then depreciation should be payable on the amount of the expenditure in the same way as depreciation is allowed on capital. The claim for depreciation was made under section 10 (2) (vi) of the Income tax Act. But as the High Court rightly pointed out, no such depreciation could be claimed because no tangible asset had been acquired by the expenditure which could be said to have depreciated. 24 Mr. Pathak, therefore, put the case of the appellant from a slightly different point of view. He referred us to Part V of the Form of Return given in the Rules framed under the Act. That Part deals with a claim for depreciation. Column 3 of this Part requires a statement to be made for "Capital expenditure during the year for additions, alternations, improvements and extensions". Mr. Pathak contended that this Part showed that depreciation is allowable on capital expenditure for improvements, and that in view of our answer to question No. 1. the appellant would be entitled to depreciation on the expense as capital expenses incurred for improvement. This is an obviously fallacious argument. In order to be entitled to deduction on account of depreciation under this Part of the Form, there has to be an improvement of the capital asset, an increase in its value. All that we have here is an expense incurred for acquiring an advantage for the trade. That may or may not be an improvement in the capital assets. The appellant cannot claim depreciation on the amount spent for acquiring an advantage. Whether it could claim depreciation on improvements effected to capital assets is not a question referred to the Court. The second question, therefore, was also correctly answered in the negative by the High Court. This appeal is dismissed with costs.

IN-Abs

The appellant, a company manufacturing sugar, shifted its factory from the old site to a new site and incurred a total expense of Rs. 3,19,766/ on the dismantling of buildings and machinery, transporting machinery from the original site to the new site and refitting the same there. Held that the appellant was not entitled to a deduction of this expense for income tax purposes as an expense incurred for carrying on the concern or in earning profit, it was an expense incurred m effecting a permanent improvement in the profit making machinery and was, therefore, an expenditure on capital account. The expense was on capital account also because it was made, "not only once for all, but with a view to bringing into existence an asset or an. advantage for the enduring benefit of a trade" within the dictum of Viscount Cave in Atherton vs British Insulated and Helsby Cables Ltd. In order that that dictum may apply it is not necessary that by the expenditure a material asset or a permanent right in the nature of capital should be acquired. There may be an expense incurred on capital account though nothing was thereby added to the capital value of an asset. Atherton vs British Insulated and Helsby Cables Ltd. , Assam Bengal Cement Go. Ltd. vs The Commissioner of Income tax, West Bengal, [1955] 1 S.C.R. 972, Granite Supply Association Ltd. v Kitton, and Bean vs Doncaster Amalgamated Collieries Ltd. , referred to. 18 An expense would not be on revenue account simply because it was incurred to turn a losing concern into a profitable one. Though the expense incurred by the appellant was of a capital nature, it was not entitled to any depreciation on it under s.10 (2) (vi) of the Income tax Act because no tangible asset had been acquired by the expenditure which can be said to have depreciated. Neither was the appellant entitled to depreciation under part V of the Form of Return given in the Rules framed under the Act which dealt with a claim for depreciation and by column 3 required a statement to be made for "capital cxpenditure during the year for additions, alternations, improvements and extensions," for to be so entitled to deductions under this part there has to be an improvement of the capital asset or increase in its value and there is no evidence of any such improvement or increase. Further, no claim for depreciation on improvement to capital asset had been made.

ivil Appeal No. 321 of 1962. Appeal by special leave from the Judgment and order dated August 4, 1959 of the Andhra Pradesh High Court in Referred Case No. 29 of 1957. M. Rajagopalan and K.R. Choudhri, for the appellant. The respondent did not appear. April 10. The Judgment of the Court was delivered by AYYANGAR J. This appeal has been filed by special leave of this Court against the judgment of 4 the High Court of Andhra Pradesh by which the appellant who is an Advocate was held guilty of professional misconduct and had been suspended from practice for five years. The facts relating to the misconduct charged were briefly these: The three respondents before us and one other Kagga Veeraiah were plaintiffs m O.S. 432 of 1951 on the file of District Munsiff, Guntur in which a claim was made for possession of certain lands. The appellant was the Advocate for these plaintiffs. The suit was dismissed by the Trail Court and an appeal was filed therefrom to the Subordinate Judge, Guntur and pending the disposal of the appeal there was a direction by the Court that the crops standing on the suit land be sold and the proceeds deposited into Court. In pursuance of this order a sum of about Rs. 1,600/ was deposited into Court on December 19, 1951. The appeal by the plaintiffs was allowed by the Subordinate Judge. The ' unsuccessful defendants preferred a second appeal to the High Court, but meanwhile the plaintiffs made an application for withdrawing the amount deposited in Court. By virtue of interim orders passed by the Court they were granted liberty, to withdraw the sum pending disposal of the second appeal in the High. Court filed by the defendants on furnishing security of immovable property. The security was furnished and. the withdrawal was ordered. A cheque petition E.A. 250 of 1952 was accordingly filed which was allowed and thereafter a cheque was issued in favour of the Advocate the appellant before us for Rs. 1,452/4/ , this being the sum remaining to the credit of the plaintiffs after deduction of poundage etc. It was admitted that this cheque was cashed by the appellant on April 23, 1953. The appellant did not dispute that. he cashed this cheque on behalf of his clients or that the latter were entitled to be paid this sum and the charge of professional misconduct against the 5 appellant was that the Advocate had not made this payment in spite of demands but that on the other hand he falsely claimed to have paid them this sum. To resume the narrative of the matters leading to these proceedings, the second appeal before the High Court was disposed of in August, 1955 and by the judgment of that Court the appeal was allowed and the plaintiff 's suit dismissed. The plaintiffs had therefore to refund the sum to the defendants in the suit. On February 8, 1956 the plaintiffs made a written demand on the appellant for the sum complaining that the cheque had been cashed by him but that its proceeds had not been paid over. On April 14, 1956 the appellant replied to this notice claiming to have paid over the sum to them on their passing a receipt and stating.that the receipt happened to be in the bundle of case papers which had been returned to them. But even before the receipt of this reply the three respondents before us filed a complaint under sections 12 and 13 of the Legal Practitioners Act alleging the non payment of the money and charging the Advocate with professional misconduct in respect of it, and praying for an enquiry into his conduct. The appellant was an Advocate and hence the complaint was treated as one under section 10 (2) of the . The explanation of the Advocate was called for. and thereafter the District. Judge, Guntur was directed. to hold an inquiry into the allegations of professional misconduct against the appellant and forward his report to the High Court. An elaborate inquiry was thereafter held by the learned District Judge who, after considering the .evidence, submitted a report recording his conclusion that the appellant 's case was not unbelievable" and that on that ground he was entitled to the benefit of doubt. The matter then came up before the High Court for consideration on this report. Some point 6 appears to have been made before the Court that certain material witnesses had not been examined. Agreeing with the submission they directed the District Judge to summon and examine them and this was accordingly done, their evidence was recorded and submitted to the High Court. The matter was thereafter heard by a Bench of 3 Judges and the learned Judges being of the opinion that the charge against the appellant viz., that he did not pay over the amount of 'the cheque to his clients was clearly made out, held him guilty of professional misconduct and imposed the punishment of suspension from practice, as stated earlier. The appellant then applied and obtained leave of this court special leave under article 136 to challenge the correctness of these findings and that is how the matter is before us. Before proceeding further we desire to indicate the nature of the jurisdiction of this Court in such matters and in broad outline the principles which it would observe in dealing with them. The jurisdiction exercised by the High Court in cases of professional misconduct is neither civil nor criminal as these expressions are used in articles 133 and 134 of the Constitution. In one aspect it is a jurisdiction over an officer of the Court and the Advocate owes a duty to the Court apart from his duty to his clients. In another aspect it is a statutory power and we would add a duty vested in the Court under section 10 of the Bar Councils Act to ensure that the highest standards of professional rectitude are maintained, so that the Bar can render its expert service to the public in general and the litigants in particular and thus discharge its main function of co operating with the judiciary in the administrance of justice according to law. This task which is at once delicate and responsible the statute vest in the High Court and therefore the primary responsibility of ensuring it rests with it, 7 This Court is in consequence most reluctant to interfere with the orders of High Courts in this field, save in exceptional cases when any question of principle is involved or where this Court is persuaded that any violation of the principles of natural justice has taken place or that otherwise there has been a miscarriage of justice. Where however none of these factors, are present, it is not the practice of this Court to permit the canvassing of the evidence on the record either for reappraising it or to determine whether it should be accepted or not. The findings of the High Court therefore on questions of fact are not open before us and this Court would only consider whether on the facts found, the charge of professional misconduct is established. Learned Counsel for the appellant urged before us several grounds in support of the appeal but we consider that none of them merits serious attention. It was first submitted that the Bar Council had not been consulted before the case was referred to the learned District Judge for inquiry and report and that this vitiated the legality of the entire proceedings against the appellant. Our attention was drawn to the terms of section 10 (2) of the reading: "10. (2) Upon receipt of a complaint made to it by any Court or by the Bar Council, or by any other person that any such Advocate has been guilty of misconduct, the High Court shall, if it does not summarily reject the complaint, refer the case for inquiry either to the Bar Council, or, after consultation with the Bar Council, to the Court of a District Judge (hereinafter referred to as a District Court) and may of its own motion so refer any case in which it has otherwise reason to believe that any such advocate has been so guilty." and the argument was that the matter could not have been remitted for inquiry to a District Judge 8 unless the. statutory pre condition of consultation. with the Bar Council had taken place. It is not necessary to consider in this case whether this provision for consultation is mandatory or not but we shall assume that it is so. There was however no hint of this objection to the validity of the proceedings up to the stage of the appeal in this Court. The question whether there has or has not been a consultation is one of fact and if this point had been raised in the High Court we would have information as to whether there had been such consultation or not, and if not why there was none. Even when the appellant applied to the High Court for a certificate of fitness under article 133 (1)(c) this objection was not suggested as a ground upon which the validity of the proceedings would be impugned. In these circumstances we are not disposed to entertain this objection which rests wholly upon a question of fact. The fact that in the order of reference of the proceedings under section 10 (2)to the District Judge there is no explicit statement that the Bar Council had previously been consulted is not decisive on the point. There would be a presumption of regularity in respect of official and judicial acts and it would before the party who challenges such regularity to plead and prove his case. It was next contended that the complaint filed by the respondents on the basis of which action was taken against the appellant was not shown to have been signed by them, nor properly verified by them as required by the rules of the High Court. We consider this objection frivolous in the extreme. It was argued by the appellant before the High Court that there was dissimilarity between the several signatures of the three respondents found in the petition sent by them and that to be found in the plaint etc., of O.S. 432 of 1951 and that this was some proof that it was not the respondents who were 9 really responsible for the petition but that someone inimically disposed towards the appellant. The learned Judges of the High Court rejected this submission in these words: "For one thing, we are unable to find any such dissimilarity. Even so, that has not much of a bearing on the question whether the respondent (appellant) had discharged the burden viz., of proving that he had made the payment to the petitioners. This argument would have had some force if the petitioners had not given evidence against the respondent. Further, no such suggestion was put to any of the plaintiffs. " This is on the question of the dissimilarity of the signatures on which rests the argument that the respondents were not the complainants. Coming next to the point about the verification of the complaint the matter stands thus: The three complainants (the respondents before us) originally filed a petition on March ?6, 1956 before the District Judge but this did not bear the attestation of a gazetted officer or other authority as required by the rules. This defect was made good by a fresh petition which they filed before the District Judge on April 16, 1956. After the petition was signed by the three petitioners they added a verification in these terms: "We do hereby state that the facts stated above are true to the best of our knowledge, information and belief," and then they signed again. These three signatures, they made before the District Judge who attested their signatures on the same day and when for . warding this complaint to the High Court on 10 April 18, 1956 the learned District Judge stated these facts and added: "The petitioners appeared before me on April 16, 1956. I got them sign the petition in my presence and I attested the same. " It is thus clear that they made three signatures in token of their signing the petition, the verification and a further affirmation before the District Judge who attested the same. Learned Counsel did not suggest before us that the District Judge was in error about the identity of the parties who appeared before him and affixed the signatures in three places in the complaint before him. It is because of these circumstances that we have stated that this objection was most frivolous. It is only necessary to add that seeing that the High Court is competent to initiate these proceedings suo motu under section 10 (2) the point raised is wholly without substance. The next submission of learned Counsel was that as in substance the charge against the appellant was misappropriation of money belonging to the clients, the learned Judges of the High Court should have left the complainants to their remedy of prosecuting the appellant and should not have proceeded to deal with him under section 10 of the Bar Councils Act. In support of this submission learned Counsel referred us in particular to two decisions of the Calcutta High Court reported in Chandi Charan Mitter, a Pleader, In re (1), and Emperor vs satish Chandra Singha (2). We do not consider that the case before us furnishes an occasion for any exhaustive review of the decisions upon the subject or formulating finally the principles which govern the exercise of the discretion by a Court to which a complaint is made under section 10 of the Bar Councils Act whether it should (1) (1920) I.L.R.47 Cal. C2) Cal, 721. 11 proceed under it or leave the complainant to launch a prosecution against the advocate and await the result of such criminal proceedings. We consider it sufficient to state this. The object of a proceeding in respect of professional misconduct differs totally from the object of a proceeding in a criminal court. Proceedings under the Bar Councils Act and similar statutes arc taken in order to.ensure that the highest standards of professional conduct arc maintained at the bar. These proceedings, though in a sense penal, arc solely designed for the purpose of maintaining discipline and to ensure that a person does not continue in practice who by his conduct has shown that he is unfit so to do. It is not a jurisdiction which is exercised in aid of the Criminal law for the only question for the court to consider is whether the practitioner has so misconducted himself as no longer to be permitted to continue a member of an honourable and responsible profession. The object of Criminal proceedings, on the other hand, is to enforce the law of the land and to secure the punishment of an offender. No doubt, if a criminal prosecution is initiated in respect of the subject matter of the complaint and the charge is held proved the conviction might be a ground for a later proceeding under the Bar Councils Act. No doubt, also, if the practitioner is acquitted or discharged by a criminal court on the merits, the facts would not be reinvestigated for the purpose of rounding a charge of professional misconduct on those very facts. The object of the two proceedings being thus different, it is not any rule of law but merely a matter .of discretion depending on the facts of each case as to whether the Court would straightaway proceed to enquire into the allegation of professional misconduct or leave it to the complainant to prosecute the practitioner and await the result of such a proceeding. It was not suggested by Counsel for the appellant that it was incompetent for or 12 beyond the jurisdiction of the Court, 'to proceed with an enquiry in a case where the misconduct charged against the advocate or practitioner amounted to an offence under the ordinary criminal law. Neither of the cases relied on lay down any such proposition and is not of much assistance to the appellant in the present case. It is sufficient to extract the head note to the report of the decision in Chandi Charan Mitter (x), indicate that it bears no analogy to the case now on hand. The relevant portion of the head note reads: "Where the misconduct alleged has no direct connection with the conduct of the pleader in his practical and immediate relation to the court, ordinarily, there should be a trial and conviction for criminal misconduct before disbarment will be Ordered. " The charge against the practitioner in that case related to a matter which had nothing to do with his relationship to his clients, or the court, and in the circumstances it was held that the direction would be properly exercised if the initiation of professional misconduct proceedings awaited the result of the prosecution. It is obvious that the case before us is far different. Emperor vs Satish Chandra Singha (2), was also a similar case. The charge against the practitioner was of forging court records by interpolating some words in an original plaint. In the case now before us, however, the misconduct charged is intimately connected with and arises out of the duty which the Advocate owed to client. This distinction between misconduct which is intimately connected with the duties which the practitioner owes to his clients and cases where it is not so connected as bearing upon the exercise of the Court 's discretion to proceed or not to proceed straightaway with an inquiry into the advocate 's professional misconduct was emphasised by Lord (1) Cal, 1115, (2) (1927)I.L. R. , 13 Abinger in stephans (1), which dealt with case of professional misconduct against an attorney in England. The learned Judge said: "If the attorney has been guilty of something indictable in itself but not arising out of the cause (in which he is engaged professionally) the Court would not inquire into that with a view to striking him off the roll but would leave the party aggrieved to his remedy by a criminal prosecution. " There is thus a clear distinction between cases where the misconduct is one in relation to the practitioner 's duty to his client and other cases where it is not so. In the former class of cases the court would be exercising its discretion properly if it proceeded to deal with the charge as a piece of professional misconduct without driving the complainant to seek his remedy in a Criminal Court. So far as the facts of the present case are concerned the appellant got his client 's money in his hands in the course of the proceedings of a suit in which he was engaged and the charge against him was that he failed to repay the money. In the circumstances we consider that the High Court was fully justified in proceeding against the appellant under the provision of section 10 of the Bar Councils Act. The next complaint of the learned Counsel was that there was a procedural irregularity in the mode in which the case against the appellant was conducted. This was said to consist in the fact that some evidence on behalf, of the complainants (the respondents before us)was permitted to be led after the appellant had examined himself and it was urged that thereby the complainants had been afforded opportunity of filling up any lacuna in their case. We consider that there is no substance in this objection. No complaint that the appellant was 14 prejudiced by the manner in which the inquiry was conducted in the matter of the order in which the evidence was adduced, was made either before the District Judge who conducted the inquiry or before the High Court when the report of the District Judge was considered. We have ourselves examined the record and find that there is no basis for any suggestion that any ' prejudice had, occurred by reason of the order in which the witnesses were examined. It was then suggested that one of the plaintiffs Kagga Veeraiah had himself admitted in his evidence before the District Judge that he and others had received the proceeds of the cheque which the appellant had cashed and that in the face of this admission the learned Judges of the High Court were clearly wrong in finding that the appellant had failed to pay over the money to his clients. A few facts have to be mentioned to appreciate this contention as well as the answer to it. As stated earlier, there were four plaintiffs in the suit O.S. 432 of 1951 and plaintiffs. 1 to 3 are the complainants now respondents 1 to 3 before us. The fourth plaintiff was one Kagga Veeraiah. It was the case of the appellant that this money , was paid to all the four plaintiffs i.e., was paid to the plaintiffs when all the four of them were present. It was the case of the complainants that Kagga Veeraiah the 4th plaintiff died in 1957. It was m these circumstances that the appellant alleged that Kagga Veeraiah was alive and a man claiming to be Kagga Veeraiah was produced before the District Judge who examined him as court witness No. 7. The man who was examined did depose that the money was paid to the plaintiffs in his presence and, no doubt, if that statement along with the identity of the deponent was accepted the appellant 's defence would have been made out. The case of the complainants, however, was that the man examined as court witness No. 7 was an impersonator. To prove the; death of the 15 real Kagga Veeraiah an extract from the death certificate was produced in court by the complainants. The attention of court witness No. 7 was drawn to the fact that in another proceeding (0. section 732 of 1955) to which Kagga Veeraiah was a party a memo was filed into Court stating that he was dead. The witness 's explanation for this was that as he was not available the memo to that effect was filed. The witness was severely cross examined about his identity and in particular, questioned about the details of the parties and other details regarding the subject matter of O.S. 432 of 1951 and his answers were most unsatisfactory, to say the least. The Learned Judges of the High Court considered all this evidence and recorded two alternative findings :(1) that the person examined as C.W. 7 was not Kagga Veeraiah but was an impersonator seemed to accord with the probabilities, and (2) that even if C.W. 7 be in truth Kagga Veeraiah as he claimed, they would not accept his evidence as there was not 'even a modicum of truth in his deposition ' and they would unhesitatingly reject it. The submission, however, of learned Counsel was that there was before the High Court the thumb impression of this witness to his deposition before the District Judge as C.W. 7 and the thumb impression of the 4th plaintiff in O.S. 432 of 1951 and that on a comparison of these two the court should have accepted the identity of C.W. 7 as Kagga Veeraiah the 4th plaintiff. It is really not necessary to pursue this matter or the details of the evidence relating to it because there is no ground at all for interfering with the appreciation by the learned Judges of the High Court of the credibility of this witness 's deposition apart altogether from the question as to whether Kagga Veeraiah was dead and if he was not, whether C.W. 7 was Kagga Veeraiah. The admissions that this witness made and the ignorance that he displayed about the proceedings in the suit stamped him as a witness of untruth and the learned Judges correctly characterised his evidence 16 as devoid of "even a modicum of truth. " The appellant cannot therefore rely on any admission on the part of this witness as evidence of the plaintiffs having received the sum which was admittedly in his hands. Lastly, it was urged that the order directing the suspension of the appellant for a period of five years was too severe and that we should reduce the period of suspension even on the basis that the charge against the appellant be held to be established. We can only express surprise that Counsel should have made bold to make this submission. The appellant had got into his hands a considerable sum of money belonging to his clients and, on the finding of the High Court, had failed to, pay it back when demanded. Not content with this he had put forward a false defence of payment and had even sought to sustain his defence by suborning witnesses. In the circumstances, even, if the learned Judges of the High Court had struck off the name of the appellant from the roll of advocates we would have considered it a proper punishment having regard to the gravity of the offence. The order now under appeal therefore errs, if at all, on the side of leniency and there is no justification for the request made on behalf of the appellant. The appeal fails and is dismissed.

IN-Abs

The respondents and one other Kagga Veeraiah, were plaintiffs in a suit for possession of certain lands and the appellant was their Advocate. Tim suit was dismissed and an appeal was preferred therefrom to the Subordinate Judge. Pending the disposal of the appeal, the court directed the sale proceeds of the standing crops on the suit land to be deposited into court, and a sum of Rs. 1,600/ was so deposited. The plaintiff 's appeal was allowed and the defendants preferred a second appeal to the High Court. Pending disposal of the second appeal, plaintiff 's application for withdrawing the amount was allowed by the court on furnishing security of immovable property. A cheque petition was filed which was allowed and thereafter a cheque for Rs. 1,452/4/ was issued in favour of the appellant. The appellant an Advocate admitted that he had received and. had cashed the cheque on behalf of his clients who were entitled to be paid this sum. The second appeal was allowed by the High Court and the plaintiff 's suit was dismissed, as a result of which the plaintiffs had to refund the sum of the defendants in the suit. The plaintiffs made a written demand on the appellant for the proceeds of the cheque that had been cashed by him and not paid over to them. The appellant in reply claimed to have paid over the sum to them on their passing a receipt which happened to be in the bundle. of case papers returned to 2 them. The respondents filed a complaint under as. 12 and 13 of the Legal Practitioners Act. The explanation of the Advocate was called for and the District Judge was directed to hold an enquiry and forward his report to the High Court. His report was that the appellant 's case was not unbelievable and he was entitled to the benefit of doubt. The matter was heard by a Bench of three Judges of the High Court, who held him guilty of professional misconduct and suspended him for five years from practice. In this Court the appellant contended, (1) that the Bar Council had not been consulted before the case was referred to the learned District Judge for inquiry and report and this vitiated the legality of the entire proceedings against the appellant. (2) That the complaint filed by the respondents on the basis of which action was taken against the appellant was not shown to have been signed by them, nor properly verified by them as required by the rules of the High Court. (3) That as in substance the charge against the appellant was misappropriation of moneys belonging to the clients, the High Court should have left the complainants to their remedy of prosecuting the appellant and should not have proceeded to deal with him under section 10 of the Bar Councils Act. (4) That there was a procedural irregularity in the mode in which the case against the appellant was conducted. (5) That one of the plaintiffs Kagga Veeraiah had himself admitted in his evidence that he and others had received the proceeds of the cheque which the appellant had cashed and that in the face of this admission the High Court was clearly wrong in finding that the appellant had failed to pay over the money to his clients. Held (1) that the fact that in the order of reference of the proceedings under section 10(2) of the Bar Councils Act, to the District Judge, there is no explicit statement that the Bar Council had previously been consulted, is not decisive on the point. There would be a presumption of regularity in respect of official and judicial acts and it would be for. the party who challenges such regularity to plead and prove his case. Since, this objection was not raised in the High Court, even when the appellant applied for a certificate, this Court will not entertain this objection which rests wholly upon a question of fact. (2) The complaint petition had been signed by the respondents and properly verified and even otherwise since the High Court was competent to initiate these proceedings suo motu under section 10(2) of the Act, the point raised is wholly without substance. (3) There is a clear distinction between cases where the misconduct is one in relation to the practitioner 's duty to 3 his client and other cases where it is not so. In the former Class of cases the court would be exercising its discretion properly if it proceeded to deal with the charge as a piece of professional misconduct without driving the complainant to seek his remedy in a criminal court. 80 far as the facts and circumstances of the present case are concerned, it must be held, that the High Court was fully justified in proceeding against the appellant under the provisions of section 10 of the Bar Councils Act. Chandi Charan Mitter a Pleader, In re. 1115 and Emperor vs satish Chandra Singha, Cal. 721, distinguished. Stephens vs Hills, ; , referred to. (4) No complaint, that the appellant was prejudiced by the manner in which the inquiry was conducted in the matter of the order in which the evidence was adduced, was made either before the District Judge or before the High Court and there is nothing on the record to suggest that any prejudice had occurred to the appellant. (5) The evidence of Kagga Veeraiah was correctly characterised by the High Court as devoid of truth and the appellant, therefore, cannot rely on any admission of this witness as evidence of the plaintiffs having received the sum. Having regard to the gravity of the offence, there is no justification for reducing the period of suspension. The appeal therefore, must be dismissed.

Appeal No. 421 of 1961. Appeal from the judgment and decree dated December 24, 1959 of the Calcutta High Court in Appeal from Original Decree No. 181 of 1956. M. C. Setalvad, section C. Ghose, J. B. Dadachanji, O.C. Mathur and Ravinder Narain, for the appellant. 862 Bishan Narain and P. D, Xenon, for the respondent. April 5. The judgment of the Court was delivered by GAJENDRAGADKAR J. This appeal arises out of a suit filed by the appellant, the New Marine Coal (Bengal) Private Ltd. against the respondent, the Union of India, on the original side of the Calcutta High Court to recover Rs. 20,343/8/ . The appellant 's case was that it had supplied coal to the Bengal Nagpur Railway Administration in the month of. June, 1949, and the amount claimed by it represented the price of the said coal and salestax thereon. The appellant also made an alternative case, because it was apprehended that the respondent may urge that the contract sued on was illegal and invalid since it did not comply with s.175 (3) of the Government of India Act, 1935. Under this alternative claim, the appellant alleged that the coal had been supplied by the appellant not intending so to do gratuitously, and the respondent had enjoyed the benefit thereof, and so, the respondent was bound to make compensation to the appellant in the form of the value of the said Coal under section 70 of the Indian Contract Act. The appellant 's case was that since the said amount had to be paid to it at its Esplanade office in Calcutta, the original side of the Calcutta High Court had jurisdiction to entertain the said suit. Since a part of the cause of action had accrued outside the limits of the original jurisdiction of the Calcutta High Court, the appellant obtained leave to see under cl. 12 of the Letters Patent. In its written statement, the respondent admitted the delivery of the coal to the Bengal Nagpur Railway Administration and did not dispute the appellant 's case that it had forwarded to the 863 respondent bills in regard to the amount alleged to be payable to the appellant for the said supply. The respondent, however, pleaded that the contract on which the suit was based was illegal inasmuch as it had been entered into in contravention of the provisions of section 175 (3) of ' the Government of India Act, 1935; and it was urged that section 70 of the Indian Contract Act had no application. Besides, the respondent alleged that following the usual practice and course of dealings between the parties, an intimation card was issued and sent to the appellant by the respondent requesting the appellant to obtain payment on presentation of a proper receipt and authority against its bills in question. Thereafter, the respondent, on receipt of the said intimation card and a proper receipt executed on behalf of the appellant, paid the amount covered by the said bills by an 'account payee ' cheque on the Reserve Bank of India drawn in favour of the appellant which was delivered to the person purporting to have authority to receive payment on behalf of the appellant. The respondent thus alternatively pleaded satisfaction of the claim, and so, urged that the appellant had no cause of action for the suit. On these pleadings, seven substantive issues were framed by the learned trial judge. Issues I & 2 which were framed in respect of the jurisdiction of the Court were not pressed by the respondent, and so, no findings were recorded on them. On issue No. 3 the learned trial judge found that the contract on which the appellant based his claim was invalid and unenforceable. Issue No. 4 in regard to the alleged payment of the bills was found against the respondent. On issue No. 5, the trial Court held that the respondent was bound to pay to the appellant the amount claimed by way of compensation. Issue No. 6 which was raised by the respon dent under section 80 of the Code of Civil Procedure was not pressed, and therefore, no finding was recorded 864 on it, Issue No. 7 which was framed on the appellant 's allegation that its claim had been admitted by the respondent was answered against the appellant. In the result, the main finding on issue No. 5 decided the fate of the suit and since the said finding was in favour of the appellant, a decree was passed directing the respondent to pay to the appellant Rs. 20,030/81 . This amount, according to the decree, had to carry interest at the rate of 6 Percent per annum. This decree was challenged by the respondent by an appeal before a Division Bench of the said High Court. The appeal was heard by P. B. Mukarji and Bose JJ. Both the learned judges agreed that the respondent 's appeal should be allowed and the appellant 's claim dismissed with costs, but their decision was based on different grounds. Bose J. held that the contract sued on was invalid and that the claim made by the appellant for compensation under section 70 of the Indian Contract Act was not sustainable. He also found that the appellant 's contention that the said contract which was initially invalid had been duly ratified, had not been proved. it is on these grounds that Bose J. came to the conclusion that the appellant 's claim could not be granted. Incidentally, it may be added that Bose J., was not prepared to consider the plea of negligence which was raised by the respondent for the first time in appeal. Mukarji, J., who delivered the principal judgment of the Appeal Court agreed with Bose J. in holding that the contract was invalid and section 70 was inapplicable. He, however, took the view that the said contract had been duly ratified and so, he proceeded to examine the question as to whether the appellant 's claim was justified on the merits. On this part of the case, the learned judge took the view that even if both the appellant and the respondent. dent were held to be innocent, since the respondent Appeal dismissed. 865 had actually parted with the money, the appellant was not entitled to require the respondent to pay over the said money again, because he thought that as held by Ashhurst J. in Lickbarrow vs Mason (1), it was a well recognised principle of law "that whenever one of two innocent per sons must suffer by the acts of a third, he who enables such third person to occasion the loss must sustain it. " In the opinion of the learned judge, the intimation card had been duly sent by post by the respondent to the appellant and the fact that the said intimation card went into unauthorised hands of dishonest persons who used it fraudulently for the purpose of obtaining a cheque for the amount in question from the respondent, showed that the appellant had by his negligence enabled the said fraudulent persons to secure the cheque, and so, it was not open to the appellant to claim the amount from the respondent. It is on these grounds that Mukharji, J., allowed the appeal and dismissed the appellant 's suit with costs. It is against this judgment and degree that the appellant has come to this Court with a certificate granted by the said High Court. In the courts below, elaborate arguments were urged by the a ties on the question as to whether the contract, the subject matter of the Suit, was invalid and if yes, whether a claim for compensation made by the appellant could be sustained under section 70 of the Indian Contract Act. Both these questions are concluded by a recent decision of this Court in the State of We, RI Bengal vs MIS. B. K. Mondal & Sons (2). As a result of this decision, there can be no doubt that the contract on which the suit is based is void and unenforceable, and this part of the decision is against the appellant. It is also clear under this decision that if in pursuance of the said void contract, the appellant has performed his part and the respondent has received the benefit of the performance of the contract by the appellant, (1) 2 T. R. 63, 70. (2) [1962] Supp. 1 S.C.R. 876. 866 section 70 would justify the claim made by the appellant against the respondent. This part of the decision is in favour of the appellant. It is therefore unnecessary to deal with this aspect of the matter at length. Assuming then that the appellant is entitled to claim the amount from the respondent, two questions still remain to be considered. The first question is whether the intimation card on the production of which the respondent always proceeded to ' issue a cheque against the bills received by it from the appellant, was received by the appellant or not, and if this question is answered in the affirmative, the other question which will call for our decision is whether by virtue of the fact that after the intimation card had been duly posted by the respondent to the appellant it fell into dishonest hands and was fraudulently used by some persons, that would create an impediment in the way of the appellant 's claim on the ground that the appellant was negligent and his negligence creates estoppel. Before addressing ourselves to these questions, it would be necessary to set out the material facts as to the dispatch of the intimation card and the fraudulent use which was made of it by persons in whose hands the said card appears to have fallen. It appears that according to the ordinary course of business, on receiving the bills from the appellant, the respondent used to send an intimation card to the appellant and the said card had to be sent back by the appellant with a person having the authority of the appellant to receive the payment and when it was so produced before the respondent, a cheque used to be issued. In the present case, it is common ground that a bill was sent by the appellant to the respondent making a total claim of Rs. 20,343/8/ on August 18, 1949. Thereafter, on October 10, 1949, the respondent sent the intimation card to the appellant addressed at its place of business 135, Canning Street, Calcutta. This card intimated to the appellant 867 that its claim for the amount specified in its bill would be paid on presentation of a proper receipt and authority between 11 A.M. to 3 P.M. on ordinary days and between 11 A.M. to 1 P. M. on Saturdays. Along with the card, a form of the receipt was sent and the appellant was asked to sign it. This intimation card was duly posted. Later, one Mr. B. L, Aggarwal produced the intimation card before the respondent. In doing so he produced an endrosement which purported to show that the appellant had authorised him to receive the payment on its behalf. When the intimation card with the appropriate authority was shown to the respondent, Mr. Aggarwal was asked to pass a receipt and when the receipt was passed in the usual form, an 'account payee ' cheque for the amount in question was given to him. Mr. Aggarwal took the cheque and left the respondent 's office. Meanwhile, it appears that some persons had entered into a conspiracy to make fraudulent use of the intimation card which had gone into their custody. In order to carry out this conspiracy, they purported to form a limited company bearing the same name as that of the appellant. A resolution purported to have been passed by the Directors of this fictitious company on October 17, 1949 authorised the opening of an account in favour of the Company in the United Commercial Bank Ltd., Calcutta. This resolution purported to be signed by the Chairman of the Board of Directors Mr. Abinash Chander Chatterji. Armed with this resolution an, application was made to open an account in the United Commercial Bank Ltd., and while doing so, the Articles of Association purporting to be the Articles of the said fictitious Company were produced and the account was opened with a cheque of Rs. 500/ on October 27, 1949. On October 26, 1919, the cheque received from the 868 respondent was credited in the said account, and as was to be expected, withdrawals from this account, began in quick succession, with the result that by November 1, 1949, only Rs. 68/ were left in this account. That, in brief, is the story of the fraud which has been committed in respect of the cheque issued by the respondent to the appellant for the bill dated August 18, 1949. In the Courts below, the appellant denied that it had received the intimation card from the respondent,and it was alleged on its behalf that in delivering the cheque to the person who presented the said card with the authority purporting to have been issued by the appellant, it cannot be said that the respondent bad given the cheque to any person authorised by the appellant, and so, the appellant was justified in saying that it had not received the payment for its bill. In support of its case, the appellant examined its Director., Mr. Parikh and its officer, Mr. Bhat. The respondent led no oral evidence; it, however, relied on the fact that the intimation card bore the postal mark which showed that it had been posted and it was urged that the said postal mark raised a presumption that the card which had been duly posted in the Post office must have, in ordinary course, reached the addressee. The trial Court noticed the fact that the intimiation card did not bear a corresponding delivery mark as it should have, and it took the view that the onus was on the respondent to show that the said card had in fact been delivered to the appellant. It then considered the oral evidence adduced by the appe llant and having regard to the fact that. no evidence had been led by the respondent, it came to the conclusion that the respondent had failed in showing that the intimation card had been duly delivered to the appellant. Substantially ' it is on the basis of this finding that the decree was passed by the trial Court in favour of the appellant. 869 In appeal, Mukarji, J. took the view, and we think. , rightly, that the posting of the card having been duly proved, a presumption arose that it must have been delivered to the addressee in ordinary course. He also considered the oral evidence given by Mr. Parikh and Mr. Bhat and was not satisfied that it was trustworthy. In particular, the learned judge was inclined to take the view that Mr. Parikh 's statement that his office did not employ any dispatch clerk and did not keep any Chiti note book like the Inward and Outward Register was unbelievably. In the result, he made a finding that the appellant was negligent in receiving, arranging, recording and dealing with letters addressed to it. The position of the evidence in respect of this point is no doubt unsatisfactory. It appears that Mr. Parikh who is the Director of the appellant Company since 1948 is also the Director of K. Wara Ltd. which manages eight collieries like that of the appellant. K. Wara Ltd., has its office at 135, Canning Street. The appellant Company also has one office at the said place. A Post Box in which letters addressed to the appellant and K. Wara Ltd. could be dropped has been kept on the ground floor of the building in which the said offices are situated. The said Post Box is locked and naturally the key is given to one or the other of the Peons to open the said Box and take out the letters and deliver them to Mr. Parikh Mr. Parikh 's evidence shows that his denial that be had received any intimation card could not be accepted at its face value for two reasons; the first was that even if the intimation card had been received by the Peon and had not been delivered by him to Mr. Parikh, Mr. Parikh would not know that the card had been received and though his statement that he did not get the card may be literally true,, it would not be true in the sense that the card had not been delivered to the 870 appellant Company. Besides., Mr. Parikh 's statement that he did not employ any dispatch clerk and kept no inward or outward register is prima facie unbelievable, and so, Mukarji J.was inclined to hold that the intimation card may have been received by the appellant Company. Having made this finding, Mukarji J. proceeded to examine the true legal position in regard to the appellant 's claim, and as we have already observed,he held that since the appellant was guilty of negligence which facilitated the commission of the offence by some strangers,it was precluded from making a claim against the respondent. As we have already seen, Bose, J. has put his decision on the narrow ground that the contract was invalid and section 7o did not help the appellant. That ground, however, cannot now sustain the final conclusion of Bose,J., in view of the recent decision of this Court in the case of M/s. B. K. Mondal & Son 's(1). Therefore, in dealing with the present appeal,we will assume that the finding recorded by Mukarji J., is correct and that the intimation card sent by the respondent to the appellant can be deemed to have been delivered to the appellant. The question which arises for our decision then is:if the intimation card was thereafter taken by somebody else and fraudulently used,does that create an estoppel against the appellant in regard to the claim made by it in the present case ? In dealing with this point, it is necessary to bear in mind that though the evidence given by Mr. Parikh may be unsatisfactory and may.justify the conclusion that despite his denial, the intimation card may have been delivered to Mr. Parikh, it is not the respondent 's case that Mr. Parikh deliberately allowed either one of his employees or somebody else to make fraudulent use of the said intimation card. In other words, we must deal with the point of law raised by the appellant on the basis that Mr. Parikh had no connection whatever with the (1) [1962] Supp. 1 S.C.R. 876. 871 fraud committed on the respondent and that whoever obtained the intimation card from Mr. Parikh 's office and used it for a fraudulent purpose acted on his own without the knowledge or consent of Mr. Parikh. The short question which falls to be considered is if the arrangement for keeping the intimation card in safe custody was not as good and effective as it should have been and somebody managed to pilfer the said card, does it justify the respondent 's case that the appellant was negligent and by virtue of its negligence, it is estopped from making the present claim ? In dealing with this question, it is necessary to remember that the plea of negligence on which estoppel was pleaded by the respondent against the appellant had not been alleged in the written statement. It is remarkable that the pleadings of both the parties completely ignored the fact known to both of them before the present suit was filed that a cheque had been issued by the respondent and had been fraudulently used by some strangers. The appellant in its plaint does not refer to the issue of the cheque and its fradulent use and makes a claim as though the respondent had not honoured the bill submitted to it by the appellant; whereas the respondent in its written statement ignores the fact that the cheque had not been received by the appellant but had been fraudulently obtained and encashed by some other persons. That being the nature of the pleadings filed by the parties in the Trial Court, neither party pleaded any negligence against the other. It is true that both the parties argued the point of negligence against each other in the appellate Court. The appellant urged that the respondent should not have delivered the cheque to the person who presented the bill and the intimation card because a stamped receipt had not been produced by the said person as it should have been; the appellant 's case was that it was usual that 872 a stamped receipt had to be produced alongwith the intimation card by a person duly authorised by the appellant before the cheque was delivered to him and since without a stamped receipt the cheque had been delivered, the respondent was guilty of negligence. This point has been rejected by Mukarji J., but that is another matter. On the other hand, the respondent pleaded that the appellant was negligent inasmuch as the intimation card which had been sent to it and which must be presumed to have been delivered to it fell into the hands of strangers owing to the negligent manner in which it was handled after it was delivered in the Letter Box of the appellant in 135, Canning Street, Calcutta. As we have already noticed, Bose, J., refused to entertain the plea of negligence urged by both the parties, whereas Mukarji J., considered it and made a finding in favour of the respondent and against the appellant. Mr. Setalvad contends that a plea of negligence should have been raised by the respondent in its pleadings and the appellate Court was, therefore, in error in allowing such a plea to be raised for the first time in appeal. In our opinion, there is some force in this contention. Negligence in popular language and in common sense means failure to exercise that care and diligence which the circumstances require. Naturally what amounts to negligence would always depend upon the circumstances and facts in any particular case. The nature of the contract, the circumstances in which the performance of the contract by one party or the other was expected, the degree of diligence, care and attention which, in ordinary course, was expected to be shown by the parties to the contract, the circumstances under which and the reason for which failure to show due diligence occurred are all facts which would be relevant before a judicial finding can be made on the plea 873 of negligence. Since a plea of negligence was not raised by the respondent in the trial Court, the appellant is entitled to contend that it had no opportunity to meet this plea and dealing with it in appeal has, therefore, been unfair to it. Apart. from this aspect of the matter, there is another serious objection which has been taken by Mr. Setalvad against the view which prevailed with Mukarji, J. He argues that when a plea of estoppel on the ground of negligence is raised, negligence to which reference is made in support of such a plea is not the negligence as is understood in popular language or in common sense ; it has a technical denotation. In support of a plea of estoppel on the ground of negligence, it must be shown that the party against whom the plea is raised owed a duty to the party who raises the plea. just as estoppel can be pleaded on the ground of misrepresentation or act or omission, so can estoppel be pleaded on the ground of negligence ; but before such a plea can succeed, negligence must be established in this technical sense . As Halsbury has observed : "before anyone can be estopped by a representation inferred from negligent conduct, there must be a duty to use due care towards the party misled, or towards the general public of which he is one (1). " There is another requirement which has to be proved before a plea of estoppel on the ground of negligence can be upheld and that requirement is that "the negligence on which it is based should not be indirectly or remotely connected with the misleading effect assigned to it but must be the proximate or real cause of that result (2). " Negligence, according to Halsbury, which can sustain a plea of estoppel must be in the transaction itself and it should be so connected with the result to which it led that it is impossible to treat the two separately. This aspect of the matter has not been duly examined by Mukarji J. when he made his finding against the appellant. (1) Halsbury 's Laws of England Vol. 15, page 243. par& 451. (2) Halsbury 's Laws of England Vol. 15 page 245 para 453, 874 Mukarji, J. thought that the principle laid down by Ashhurst, J. in the case of Lackbarrow (1), was a broad and general principle which applied to the facts in the present case. It may be conceded that as it was expressed by Ashhurst, J., in the case of Lickbarrow, the proposition no doubt has been stated in a broad and general manner. Indeed, the same proposition has been affirmed in the same broad and general way by the Privy Council in Commonwealth Trust Ltd. vs Akotey (2). In that case, the respondent who was a grower of cocoa in the Gold Coast Colony, consigned by railway 1050 bags of cocoa to L., to whom he had previously sold cocoa. Before a difference as to the price had been settled L. sold the cocoa to the appellants and handed the consignment notes to their agent, who reconsigned the cocoa to the appellants. The appellants bought in good faith and for the full price. The respondent then sued the appellants for damages for conversion. It was held by the Privy Council that by his conduct the respondent was precluded from setting up his title against the appellants, and so his claim was rejected. In support of the view taken by the Privy Council, reliance was placed on the well known statement of Ashhurst, J., in the case of Lickbarrow) 1), and so, it may be conceded that the broad principle enunciated by Ashhurst,J., received approval from the Privy Council. Subsequently, however, this question has been elaborately examined by the Privy Council in Mercantile Bank of India Ltd. vs Central Bank of India Ltd., (1), and the validity of the broad and general proposition to which we have just referred has been seriously doubted by the Privy Council. Lord Wright who delivered the judgment of the Board, referred to the decision in the case of Lickbarrow (1), and observed " 'that it may well be that there were facts in that case not fully elucidated in the report which would justify the decision; but on the (1) 2 T.R. 63, 70. (2) (3) (1937) L.R. 65 I.A. 75, 86, 875 face of it their Lordships do not think that the case is one which it would be safe to follow. " Then reference was made to the opinion of Lord Sumner in the case of R . E. Jones Ltd. vs Waring & Gillow Ltd., (1) where the principle enunciated by Ashhurst J. was not accepted, because it was held that the principle of estoppel must ultimately depend upon a duty. Lord Lindley similarly in Farquharson Bros. & Co. vs King & Co. (2), pointed out that the dictum of Ashhurst J. was too wide. A similar comment has been made as to the said observation by other judges to which Lord Wright has referred in the course of his judgment. It would thus be seen that in the case of The Mercantile Bank of India Ltd. (3 ) the Privy Council has seriously doubted the correctness of the broad observations made by Ashhurst J, in the case of Lickbarrow (4), and has not followed the decision in the care of Commonwealth Trust Ltd. (5). Therefore, it must be held that the decision of Mukarji J, which proceeded on the basis of the broad and unqualified proposition enunciated by Ashhurst, J., in the case of Lickbarrow cannot be sustained as valid in law. There arc two other decisions to which reference may usefully be made in considering this point. In Arnold vs The Cheque Bank, (6), Lord Coleridge, C.J., in dealing with the question of negligence, observed that "no authority whatever had been cited before them for the contention that negligence in the custody of the draft will disentitle the owner of it to recover it or its proceeds from a person who has wrongfully obtained possession of it. In the case before them, there was nothing in the draft or the endorsement with which the plaintiff had anything to do, calculated in any way to mislead the defendants. It was regularly endorsed and was then enclosed in a letter to the plaintiffs correspondents, to be sent through the post. There could be no negligence in relying on the honesty of their (1) (2) (3) (1937) L.R, 65 I.A. 75, 86. (4) 2 T. If. 63, 70. (5) (6) , 588, 876 servants in the discharge of their ordinary duty, that of conveying letters to the post; nor can there be any duty to the general public to exercise the same care in transmission of the draft as if any or every servant employed were a notorious thief. " These observations illustrate how before invoking a plea of estoppel on the ground of negligence, some duty must be shown to exist between the parties and negligence must be proved in relation to such duty. Similarly, in Baxendale vs Bennett, (1) Bramwell, L.J., had occasion to consider the same point. In that case, the defendant gave H. his blank acceptance on a stamped paper and authorised H. to fill in his name as drawer. H. returned the blank acceptance to the defendant in the same state in which he received it. The defendant put it into a drawer of his writing table at his chambers, which was unlocked, and it was lost or stolen. C. afterwards filled in his own name without the defendant 's authority, and an action was brought on it by the plaintiff as endorsee for value. The court of Appeal held that the defendant was not liable on the bill. Dealing with the question of negligence attributed to the defendant, Bramwell L.J. observed that "the defendant may have been negligent, that is to say, if he had the paper from a third person, as a bailee bound to keep it with ordinary care, he would not have kept it in a drawer unlocked. " But, said the learned judge, this negligence is not the proximate or effective cause of the fraud. A crime was necessary for its completion, and so, it was held that the defendant was not liable on the bill. This decision shows that negligence must be based on a duty owed by one party to the other and must, besides, be shown to have been the proximate or the immediate cause of the loss. It is in the light of this legal position that the question about estoppel raised by the respondent (1)) (1878) 3 Q,. B. D. 525, 530. 877 against the appellant in the Appellate Court may be considered. Can it be said that when the appellant received the intimation card, it owed a duty to the respondent to keep the said card in a locked drawer maintaining the key all the time with its Director? It would not be easy to answer this question in the affirmative; but assuming that the appellant had a kind of duty towards the respondent having regard to the fact that the intimation card was an important document the presentation of which with an endorsement as to authorisation duly made would induce the respondent to issue a cheque to the person presenting it, can the Court say that in trusting its employees to bring letters from the letter box to the Director, the appellant had been negligent ? As we have already observed, in dealing with the present dispute on the basis that the intimation card bad been dropped in the letter box of the appellant, it is possible to hold either that the said card was collected by the Peon and given over to Mr. Parikh, or it was not. In the former case, after Mr. Parikh got the said card, it had been removed from Mr. Parikh 's table by someone, either by one of the employees of Mr. Parikh or some stranger. In the latter case, though, technically, the card had been delivered in the latter box of the appellant, it had not reached Mr. Parikh. In the absence of any collusion between Mr. Parikh and the person who made fraudulent use of the intimation card, can the respondent be heard to say that Mr. Parikh did not show that degree of diligence in receiving the card or in keeping it in safe custody after it was received as he should have ? In our opinion, it would be difficult to answer this question in favour of the respondent. In ordinary course of business, every office that receives large correspondence keeps a letter box outside the premises of the office. The box is locked and the key is invariably given to the Peon to collect the letters after they are delivered by Postal Peons. This course 878 of business proceeds on the assumption which must inevitably be made by all businessmen that the servants entrusted with the task of collecting the letters would act honestly. Similarly, in ordinary course of business, it would be assumed by a businessman that after letters are placed on the table or in a file which is kept at some other place, they would not be pilferred by any of his employees. Under these circumstances, if the intimation card in question was taken away by some fraudulent person, it would be difficult to hold that the appellant can be charged with negligence which, in turn, can be held to be the proximate cause of the loss caused to the respondent. In our opinion, therefore, Mukarji. J. was in error in holding that the respondent could successfully plead estoppel by negligence against the appellant. As we have already observed, the question as to whether the claim made by the appellant against the respondent under section 70 is concluded by the decision of this Court in the case of M/s. B. K. Mondal & Sons (1), in favour of the appellant, and so, it must be held that the Division Bench of the High Court erred in dismissing the appellant 's claim. The result is, the appeal is allowed. , the decree passed by the appellate Court is set aside and that of the trial Court restored with costs throughout. Appeal allowed. [1962] Supp. I. section R. 876 .

IN-Abs

The appellant filed a suit on the Original Side of the Calcutta High Court against the respondent for the recovery of a certain amount representing the price of coal supplied to the respondent. The appellant 's case was that if the contract under which the coal was supplied was illegal by, reason of it being in contravention of section 175 (3) of the Government of India Act, 1935, the respondent was liable to pay compensation under section 70 of the Indian Contract Act, since the Coal was not supplied gratuitously and the respondent had enjoyed the benefit thereof. The respondent 's case was that the contract was illegal and section 70 of the Indian Contract Act was not attracted. It was further alleged that the respondent had issued and sent bills to cover the amount and intimation cards in accordance with the usual practice and ordinary course of dealings. The respondent, it was allowed paid the amount by a cheque to a person authorised by the appellant and on presentation of proper receipts. It was therefore alternatively pleaded that the appellant 's claim having been satisfied, he had no cause of action. It was established in the course of the trial that the appellant had not in fact authorised any person to issue the receipts but a certain person not connected with the appellant 860 firm, without the consent or knowledge of the appellant got hold of the intimation cards and bills addressed to the appellant forged the documents and fraudulently received the cheque from the respondent and appropriated the amount for himself. The respondent had not pleaded in its written statement that it was due to the negligence of the appellant that the third person was able to get hold of the intimation card and perpetrate the fraud. Neither was it proved in the case that the appellant was in fact negligent. The Trial Judge found that the respondent was bound to pay compensation under section 70 of the Indian Contract Act and rejected the alleged payment of the bills and in the result decreed the amount prayed for by the appellant. The respondent thereupon appealed to a Division Bench. Both the judges agreed that the appeal should be allowed. Regarding the invalidity of the agreement and the inapplicability of section 70 of the Contract Act both the Judges agreed in favour of the present respondent. But while one of the Judges was not prepared to consider the plea of negligence which was raised by the present respondent for the first time in the appeal the other judge held that there was negligence on the part of the present appellant. The present appeal was filed on a certificate granted by the High Court. In this Court, apart from the questions of the invalidity of the contract under section 175 (3) of the Government of India Act and the applicability of s: 70 of the Contract Act, it was argued on behalf of the appellant that a plea of negligence should have been raised by the respondent in its pleadings and that the appellate court was in error in allowing such a plea to be raised for the first time in appeal. It Was contended further that in support of the plea of negligence it must be shown that the party against whom the plea is raised owed a duty to the party who raises the plea and that the negligence must not be merely or indirectly connected with the misleading effect but must be the proximate cause of the result. Held that the contract is illegal and void. If in pursuance of the void contract, the appellant has performed his part and the respondent has received the benefit of the performance of the contract by the appellant, section 70 of the Contract Act would justify the claim made by the appellant against the respondent. State of West Bengal v, B. K . Mondal, [1962] Supp 1, section C. R. 876, referred to. 861 Since a plea of negligence was not raised by the respondent in the trial court the appellant is entitled to contend that it had no opportunity to meet this plea and dealing with it in appeal has, therefore, been unfair to it. Before invoking a plea of estoppel on the ground of negligence, some duty must be shown to exist between the parties and negligence must be proved in relation to such duty. The Arnold v, The Cheque Bank, , referred to. The negligence alleged must be proved to be the proximate or the immediate cause of the loss. Bexendale vs Bennett, , referred to. The broad proposition "that whenever one of two innocent persons must suffer by the acts of a third, he who enables such third person to occasion the loss, must sustain it" laid down by Ashhurst, J., in Lickbarrow vs Mason, 2 T. R. 63, on which one of the,Judges of the Division Bench has based his decision cannot be sustained as valid in law. Commonwealth Trust Ltd. vs Akotey, , Mercantile Bank of India Ltd. vs Central Bank of India Ltd. (1937) L. R. 65 I. A. 75, R. E. Jones Ltd. vs Waring & Gillow Ltd., and Farquharson Bros. & Co. vs King & Co., , referred to. The appellant cannot be charged with negligence. which, in turn, can be held to be the proximate cause of the loss caused to the respondent. The appellant is entitled to be compensated under section 70 of the Contract Act.

Appeal No. 445 of 1962. Appeal from the judgment and order dated April 1 1 and 12. 1960, of the Bombay High Court in Income tax Reference No. 52 of 1959. R. J. Kolah and I.N. Shroff, for the appellant. K. N. Rajagopal Sastri, and R.N. Sachthey, for the respondent. April 10. The judgment of the Court was delivered by section K. DAS, J. This is an appeal on a certificate of fitness granted by the High Court of 973 Bombay under section 66 A (2) of the Indian Income tax Act, 1922. The New Jehangir Vakil Mills Co., Ltd. Bhavnagar, appellant before us and called tile assessee, carried on the business of manufacturing and selling textile piecegoods at Bhavnagar in the former Bhavnagar State. The present appeal is concerned with the assessment year 1945 46, the account year being the calendar year 1944. In the said assessment year the Income Tax officer concerned added to the taxable income of the assessee a sum of Rs. 1,86,931/ (which was later reduced to Rs. 1,23,840/ ) as a revenue receipt, representing an amount by which the sale price exceeded the original cost of certain shares and securities purchased and sold by the appellant. It was held that in the relevant account year in which the shares were sold and profits made as also in the preceding years, the assessee was a dealer in shares and securities. In respect of this addition of Rs. 1,23,840/ the assessee raised two contentions. The first contention was that it was not a dealer in shares and securities in the relevant account year or in the years past and that the shares and securities were held by way of investment and the investment surplus was in the nature of a capital receipt. The second contention was that even if the assessee was a dealer in shares and securities in the relevant account year, the Income tax officer committed an error in the matter of the computation of profits in not taking the market value of the shares as at the opening day of that year as the cost thereof. These were the two questions along with a third question which were referred to the High Court under section 66 (2) of the Act. The third question does not now survive, and therefore we set out below the two questions which fall for decision in this appeal: 1. In the event of the surplus aforesaid being held to be income assessable to income tax 974 whether the income should be ascertained by taking the market value of the shares as at the opening day of the year as the cost ? 2. Whether there is any evidence on record to justify the Tribunal 's finding that the assessee company was a dealer in shares not only in the year under consideration but in the years past ? Now, as to the contention whether the assessee was a dealer or not in shares and securities in the calendar year 1944 the position appears to be that the Income tax officer found against the assessee. There was an appeal to the appellate Assistant Commissioner who remanded the case to the Income tax officer on the ground that the materials in the record were not adequate to decide the question. The the remand proceedings the assessee filed before the Income tax officer statements showing the position of transactions relating to shares and securities from 1939 onward. These statements marked as annexure 'C ' form part of the statement of the case. In his remand report dated April 1, 1952 which is also a part of the statement of the case, the Income tax officer examined the purchase and sale of shares in different years by the assessee and came to the conclusion that the assessee was a dealer in shares at least from the year 1942 by reason of the frequency and multiplicity of the transactions which the assessee conducted since that year. It further pointed out that the assessee had sold certain shares out of a block of shares in the year 1943, and after taking out the price of the shares realised in 1943, the remaining amount was shown in the balance sheet as the value of the remaining shares in each block. The value of such shares as shown in the balance sheet for 1943 was not the cost price of the assessee. In some cases it was below 975 cost. As a result of this valuation in the balance sheet, the profits from the sale of shares during 1945,46 would be Rs. 1,23,8401 . If, however, the difference between the sale price and the market value of the shares as on the first day of the account year was taken into account, the results might be different. On the basis of the aforesaid remand report the Appellate Assistant Commissioner examined the records of the transactions and observed : "There are five different transactions of purchase and two transactions of sale in 1942. The tempo of purchases and sales goes up from 1943. There are purchases of fifteen or twen ty different dates in 1943. There is a similar number of transactions in 1944. Many of the shares purchased in 1943 have been disposed of in 1944. Several scrips purchased in 1944 have been sold within the year. The number of transactions is, in my opinion, sufficiently numerous to show that the assessee is a dealer in shares. " There was an appeal then to the Tribunal. The Tribunal came to the conclusion that so far as Government securities were concerned the assessee was obliged to keep its large cash invested in Government securities and, therefore, so far as these securities were concerned, the amount realised by their sale was not a revenue receipt and should not be included in the total income of the assessee. It held, however, that the assessee was a dealer in shares in 1944 and as to the computation of the profits made on the sale of the shares, such profits were correctly computed to be the difference between the original cost price of the shares to the assessee at the time of purchase and the price realised at the time of sale, and the Tribunal significantly added that this computation was correct on the finding that the 976 assessee was a dealer not only in 1944 but from 1942onward. We may here state that for the years prior to the account year 1944, the department had treated the assessee as an investor and not a dealer in shares and had made assessments accordingly for those years. Those assessments have now become final. When the matter went to the High Court on a case stated by the Tribunal, the High Court observed that the crucial year was the year 1943, for if the assessee was a dealer in shares since 1943 and sold some of them in the account year 1944 and made profits thereon, then both the questions referred to the High Court must be answered against the assessee. The High Court re framed the second question by substituting the words "in the year 1943" for the words "in the years past". The High Court further pointed out that in the exercise of its advisory jurisdiction it did riot sit in appeal over the decision of the Tribunal that the assessee was a dealer in shares in the year 1943. It also held that on the materials on record it was open to the Tribunal to come to the conclusion that the assessee was a dealer in shares in 1943 and as to the computation of profits it pointed out that if the assessee was a dealer in 1943 also, then it was not open to the assessee to say that the market value of the shares as on the opening day of the year 1944 should be taken as the cost of the shares. Accordingly, the High Court answered both the questions against the assessee. Learned counsel for the appellant has addressed us at length on both questions. However, it appears to us that by reason of the re framing of the second question, the two questions really merge into one, namely, was the assessee a dealer in shares in 1943 and continued to be such a dealer in 1944 which is the relevant account year ? The question no doubt has two aspects. Firstly, there is the aspect whether there is any evidence to justify the finding that the 977 assessee was a dealer in shares in 1943. ,Secondly, there is the aspect as to how the profits made from the sale of shares in 1944 should be computed in the assessment year 1945 46. It is however manifest that it ' the assessee was a dealer in 1943 also, then the principle laid down by this court in Commissioner of Income tax vs Bai Shirinbai K. Kooka (1), will not apply, for that decision proceeded on the footing that the assessee of that case converted her investment shares into a stock in trade and carried on a trading activity as from April 1, 1946, the relevant account year being the financial year 1946 47. If the assessee in the present case was a dealer in 1943, then nothing happened on the opening day of the relevant account year, namely, January 1, 1944 and there is no reason why the market value of the shares on that date should be taken into consideration in computing the profits. Learned counsel for the assessee has however pressed an argument which may now be stated. He has submitted that he is not arguing that it was not open to the assessing authorities to consider the question whether the assessee was a dealer in shares in 1944 which was the relevant account year. What he contends is that it was not open to the taxing authorities to consider and find that the assessee was a dealer in shares in 1943; because for all years prior to 1944 the department had already assessed the assessee on the footing that it was an investor of shares and not a dealer and those assessments having become final could be re opened only either under section 34 or section 35 of the Act. The argument is that in assessing the assessee for the account year 1944 it was open to the department to treat the assessee as a dealer in 1944 but not for any earlier year which was not the subject of the assessment proceedings Learned counsel states that if he is right in his first contention, then the profits made on the sale of shares in 1944 must be computed in the manner laid down in Commissioner of Income tax vs Bai Shirinbai K. Kooka(1), (1) [1962] Supp, 3 S.C.R. 391. 978 because the assessee will be treated as a dealer for the first time in the relevant account year 1944. The argument appears plaussible at first sight and it may perhaps be conceded that the question of the computation of profits in a case like this is not entirely free from difficulty. However, on a very careful consideration of the argument we have come to the conclusion that it is not worthy of acceptance. As to the first aspect of the question we see no difficulty. The appellate Assistant Commissioner and the Tribunal have referred to various transactions relating to shares shown in the books of the assessee. From those transactions they came to the conclusion that the assessee was a dealer in 1943. The High Court has also summarised the various transactions in which the assessee indulged in the year 1943. Having regard to the frequency and nature of those transactions it was open to the taxing authorities to come to the conclusion that the assessee was a dealer in shares in 1943. We are not prepared to say that the rule of "no evidence" can be applied to the present case. We therefore consider that the High Court correctly answered the question relating to this aspect of the case. Now, as to computation of profits. Though it is true that the question which directly arose before the taxing authorities in the present case was ' whether the assessee was a dealer in 1944, the question of the position of the assessee in 1943 also arose in determining how the profits made in 1944 should be computed. It is not therefore quite correct to say that the position of the assessee in 1943 was completely outside the scope of the assessment proceedings of 1945 46. In determining or computing the profits made by the sale of shares in 1944, the assessing authorities had to go into the question did the assessee start its trading 979 activity on January 1, 1944 or did it start the trading activity at an earlier date ? If the assessee was a dealer when the shares sold in 1944 were originally purchased, then obviously the principle in Commissioner of Income tax vs Bai Shirin Bai K. Kooka (1), will not apply and the profits will be the excess of the sale price over the original cost price. The extent to which a decision given by an Income tax officer for one assessment year affects or binds a decision for another year has been considered by courts several times and speaking generally it may be stated that the doctrine of res judicata or estoppel by record does not apply to such decisions; in some cases it has been held that though the Income tax officer is not bound by the rule of res judicata or estoppel by record, he can re open a question previously decided only if fresh facts come to light or if the earlier decision was rendered without taking into consideration material evidence etc. As to the argument based on sections 34 and 35, it is enough to point out that the assessment relating to the year 1943 is not being reopened. That assessment stands. What is being done is to compute the profits of 1944, which the assessing authorities could do, by finding out when the trading activity in shares began? The question of the profits in 1944 was not and could not be the subject of any assessment proceeding relating to 1943, for such profits arose only on the sale of the shares in 1944. In Broken. Hill Proprietary Company vs Broken Hill Municipal Council (2), the question was one of the capital value of a mine for rating purposes. This question of valuation as between the parties was determined by the High Court of Australia in a previous year. But it was held that the decision did not operate as res judicata. The reason given was : "The decision of the High Court related to a valuation and a liability to a tax in a previous (1) [1962] Supp. 3 S.C.R. 391. (2) 980 year, and no doubt as regards that year the decision could not be disputed. The present case relates to a new question namely, the valuation for a different year and the liability for that year. It is not eadem questio and therefore the principle of res judicata cannot apply. " In another decision reported in the same volume, Hoystead vs Commissioner of Taxation (1), one of the questions was whether certain beneficiaries under a will were joint owners. It was held that though in a previous litigation no express decision had been given whether the beneficiaries were joint owners, it being assumed and admitted that they were, the matter so admitted was so fundamental to the decision then given that it estopped the Commissioner. The latter decision was distinguished in Society of Medical officers of Health vs Hope (2). Both the decisions were again considered by the judicial Committee in Caffoor vs Income Tax Commissioner (3). The decision in Broken Hill Proprietary Company 's case (4), was approved and the principle laid down was that in matters of recurring annual tax a decision on appeal with regard to one year 's assessment is said not to deal with eadem questio as that which arises in respect of an assessment for another year and consequently not to set up an estoppel. As to the decision in Hoystead 's case (1), it was stated : "Their Lordships are of opinion that it is im possible for them to treat Hoystead 's case as constituting a legal authority on the question of estoppels in respect of successive years of tax assessment. So to treat it would bring it into direct conflict with the contemporaneous decision in the Broken Hill case ; and to follow it would involve preferring a decision, in which the particular point was either assumed without (1) (2) (3) (4) , 981 argument or not noticed to a decision, in itself consistent with much other authority, in which the point was explicitly raised and explicitly determined. " In Installment Supply (P) Ltd. vs Union of India (1) this court referred to the decisions just mentioned and said that it was well settled that in matters of taxation there would be no question of res judicata. On the principle stated above, it seems to us that it was open to the taxing authorities to consider the position of the assessee in 1943 for the purposes of determining how the gains made in 1944. should be computed, even though the subject of the assessment proceedings was the computation of the profits made in 1944. The circumstance that in an earlier assessment relating to 1943 the assessee was treated as an investor would not in our opinion estop the assessing authorities from considering, for the purpose of computation of the profits of 1944, as to when the trading activity of the assessee in shares began. The assessing authorities found that it began in 1943. On that finding the profits were correctly computed and the answer given by the High Court to the question of the computation of the profits was correctly given. For these reasons the appeal fails and is dismissed with costs.

IN-Abs

The assessee appellant carried on the business of manu facturing and selling textile piece goods. In the assessment year 1945 46, the Income tax officer added to the taxable income of the assessee a sum of Rs. 1,86,931 which was later on reduced to Rs. 1,23,840 as a revenue receipt, representing an amount by which the sale price exceeded the original cost of certain shares and securities purchased and sold by the appellant. The assessee was held to be a dealer in shares and securities. The contention of the assessee was that it was not a dealer in shares and securities in the relevant account year or in the years past and the shares and securities were held by way of investment and the investment surplus was in the nature of capital receipt. Even if the assessee was a dealer in shares and securities in the relevant account year, the Income tax officer committed an error in the matter of the computation of profits in not taking the market value of the shares as at the opening day of that year as the cost thereof. The Appellate Assistant Commissioner rejected the contentions of the appellant and held that the number of transactions was sufficiently large to show that the assessee was a dealer in shares. The Appellate Tribunal rejected the contentions of the appellant. These assertions were then referred to the High Court and they were decided against the assessec appellant. 972 Held that the assessee was a dealer in shares and securities and the income from their sale was a revenue receipt and not capital receipt. The profits of the assessee were the difference between the original cost price of the shares to the assessee at the time of purchase and the price realized at the time of sale. Held also that in the matter of taxation, there was no question of resjudicata. It was open to the taxing authorities to consider the position of the assessee in 1943 for the purpose of determining how the gains made in 1944 should be computed, even though the subject of the assessment proceedings was the computation of the profits made in 1944. The circumstance that in an earlier assessment relating to 1943, the assessee was treated as an investor would not estop the assessing authorities from considering, for the purpose of computation of the profits of 1944, as to when the trading activity of the assessee in shares began. The assessing authorities found that it began in 1943 and on that finding, the profits were correctly computed. Commissioner of Income tax vs Bai Shirinbai K. Kooka, [1962] Supp. 3 S.C.R. 391, Broken Hill Property Company vs Broken Hill Municipal Council, , Boystead vs Commissioner of Taxation, Society of Medical officer of Health vs Hope, , Caffoor vs Income tax Commissioner, and Installment Supply (P) Ltd. vs Union of India, ; , referred to,

iminal Appeal No.96 of 1952. Appeal by special leave granted by the Supreme Court on the 14th February, 1952) from the Order dated the 17th September, 1951 of the High Court of Judicature at Bombay (Bavdekar and Chainani JJ.) in Criminal Appeal No. 1026 of 1951 arising out of Judgment and Order dated the 28th July, 1951, of the Court of the Third Additional Sessions Judge of Poona in Sessions Case No. 78 of 1951. A. section B. Chari and J. B. Dadachanji for the appellant. C. K. Daphtary, Solicitor General for India, (Porus A. Mehta, with him) for the respondent. March 30. The Judgment of the Court was delivered by MAHAJAN J. The appellant on 28th July, 1951, was convicted on a charge under section 366, Indian Penal Code, for having kidnapped at Poona a minor girl Shilavati in order that she may be forced or seduced to illicit intercourse and was sentenced to undergo rigorous imprisonment for two years after a trial before the third additional Sessions Judge of that place sitting with a jury of live. The jury returned a verdict of guilty by a majority of three to two. The Sessions Judge came to the conclusion that the verdict was not perverse. He therefore accepted it. The appellant preferred an appeal to the High Court 811 but this was summarily dismissed. This appeal is before us by special leave. The prosecution case was that on the 12th December, 1949, the appellant who was a. music teacher went to the house of Shilavati and on the pretext that there was a girl waiting in his house and that he ' wanted to compare the voice of Shilavati with the voice of the girl took her to his house, and with the assistance of one Iqbal Putlabai (accused 2) kidnapped her. Shilavati was traced in Bombay after four months in the house of one Babu Konde. Thereafter she was medically examined and it was found that she was pregnant. To prove the case against the appellant the prosecution examined in all sixteen witnesses. Out of these four were eye witnesses, viz., Prahlad, Jamunabai, Namdeo and Shilavati. Yamunabai, the mother of Shilavati, stated that on 12th December when she returned home in the evening she learnt from her sister in law Jamunabai and others that the appellant had taken Shilavati on the pretext that he wanted to compare her voice with that of one Prabha who was waiting in his house and thereafter Shilavati had not come back, that on getting this information she along with her brothers and sister in law went to the house of the appellant and questioned him as to why Shilavati was not sent back, whereupon the appellant replied that he had sent her by bus. As Shilavati did not return home, she went to the police and lodged a complaint. Ananda, uncle of the girl, deposed to the same effect. Prahlad, brother of Shilavati, a boy of school going age, deposed that he saw Shilavati going with the appellant while he was playing outside the school. Namdeo, who is a bricklayer, stated that on the 12th December while he was returning after completing his work at about 3 30 p. m. he saw Shilavati going with the appellant. On medical examination it was found that Shilavati was a girl of 15 or 16 years of age and that 'she was pregnant. Shilavati was examined as P, W, 10 and she deposed 105 812 that the accused came to her house at about 3 30 p.m. and told her that there was a singing party at Kirkee and that she should accompany him there, that she went with him on the promise that the appellant would send her back before her mother returned home, that while at the appellant 's house she was asked to smell certain scents and she felt giddy and could not speak and when she came to senses in the morning she found herself in Bombay in a hut at Sion. She further said that on enquiry from one Kassam she was told that the appellant had left her there. On the 12th December at about 11 40 p.m. Yamunabai went to Padamji Gate police station and lodged a complaint there. In the complaint it was stated that Shilavati had quarrelled with one Shantabai and had left the house and since then she had not returned. The police were asked to find out her whereabouts. On the 13th she sent a complaint to the Police Inspector, A Division, Poona. Therein she made the allegation that the appellant used to come to her house for coaching Shilavati in harmonium, that she learnt that he had sent a chit to her daughter in her absence and had called her to his house and that on enquiries about Shilavati 's whereabouts he had given evasive answers. The police head constable who was on duty on receipt of this complaint examined Yamunabai. He read out the application to her and recorded her statement which reads thus: " My daughter Shilavati age about 13/14 has left my house at 4 p.m. I made search for my daughter at the house of my paternal aunt, but I could not find her there. M. H. Gyani (appellant) used to come to my house for coaching up my daughter in singing. I do not know whether he has taken away my daughter nor have I seen him taking her away. I have mentioned his name in my application through mistake. My daughter has gone out of my house to some other place. A search should therefore be made for her. . I again state that my daughter left the house 813 after quarrelling with my mother Harnabai. This is given in writing. " In July, 1950, Yamunabai sent an application to the Collector of Poona. In this application she said that she had appointed the appellant as a. music master for her daughter, that on Monday the 12th December, 1949, at about 6 p. m. the appellant and his friend Badsha had induced and kidnapped her to an unknown place. She asserted therein that she was sure that nobody but both M. H. Gyani and Badsha had kidnapped her daughter. In the witness box Yamuna Bai, as already stated, gave a different story and Shilavati herself did not fully support the version of her mother. On the 14th March, 1950, a letter, Exhibit 4 G, was sent by Shilavati to her mother. The relevant part of this letter is in these terms: " Since last so many days, I have left the house and I have not sent any letter to you and you must also be worrying as to where I have gone. I am at Bombay and quite well too. Do not worry about me, I had gone to the river at Bamburda, and there some one forced me and brought me to Bombay and he was prepared to marry with me. He was an ordinary and old fellow. J did not like it and he was going to convert me ' to Mahomedanism. I felt very sorry for this and I was very much sad. He beat me twice or thrice. To whom shall I express my sorrow ? But there was a boy staying, there whom I told all the facts and told him to save me anyhow. He promised to save me. There were two days remaining for my marriage. Till then, he arranged for my stay and also for dinner, and one day before the marriage, previous night he took me out from that place. There were many police complaints against him, and he, at the cost of his life, saved me. I married him in order to return his obligations. Now I am very happy, I am not in need of anything now. He is an ordinary boy. He works in a press, and he is a worker. He is from us and his name is Baburao Konde and next 814 time we will send a photograph of both of us. Do not worry about me. I am very happy. Namaskar to all, elderly persons and ashirwadas to youngsters. Namaskar to grandmother Harnabai. Convey namaskars to Anand mama, Vithal mama, Ram mama, Shankar, Prahlad, Laxman, Hirabai, Jamnabai, Yamunabai, Jaibai, and to master. " Shilavati is admittedly a talented Harijan girl who used to take part in dramatic peformances and used to give public peformances in music and dancing on some remuneration. The letter written by her from Bombay speaks for itself and it was on receipt of this letter and further correspondence to which it is not necessary to refer that the police got clue of her where abouts and were able to restore her to her mother Yamunabai. The statute law in India in certain circumstances permits an appeal against a jury 's verdict and authorizes the appellate court to substitute its own verdict on its own consideration of the evidence. It has conferred on the appellate court extensive powers of overruling or modifying the verdict of a jury in the interests of due administration of justice confident that the appellate judges who have not themselves seen and heard the witnesses, will not exercise lightly the responsible power entrusted to them. Section 423 in sub section (2), Criminal Procedure Code, states as follows: " Nothing herein contained shall authorize the court to alter or reverse the verdict of a jury unless it is of opinion that such verdict is erroneous owing to a misdirection by the judge or to a misunderstanding on the part of the jury of the law as laid down by him. " Section 537 in sub clause (d) provides that no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal on account of any misdirection in any charge to the jury 816 unless such error, omission, irregularity or misdirection has in fact occasioned a failure of justice. Unless therefore it is established in a case that there has been a serious misdirection by the judge in charging. the jury which has occasioned a failure of justice and has misled the jury in giving its verdict the verdict of the jury cannot be set aside. The learned counsel for the appellant contended that the judge in his charge to the jury misdirected it in several important particulars and violated the rules of criminal jurisprudence and of evidence in a number of ways. It was said that he failed to warn the jury that it would be unsafe for it to act on the statement of Shilavati without her statement being corroborated by other evidence,in material particulars. The judge, according to the learned counsel, should have told the jury that though in law it was open to them if in the circumstances of this case they thought fit to do, to act on the uncorroborated testimony of Shilavati but that ordinarily it was not safe to do so without that statement being corroborated in material particulars. This omission on the part. of the judge, it was urged, amounted in law to a grave misdirection and the jury in all likelihood without such a warning arrived at its verdict on the basis of the uncorroborated evidence of the girl. That part of the charge in which reference was made by the judge to Shilavati 's evidence wherein she had said that she was told by Kassam Khan that the appellant had left her there was criticized on the ground that the jury bad been directed to act on inadmissible evidence. Then it was contendad that it was a serious misdirection to direct the jury that it had to solve the jigsaw puzzle that had arisen in the case by using their own ingenuity and by piecing together the various pieces of the puzzle. The last misdirection relied upon concerned the following part of the charge: "After weighing the probabilities of the case, the evidence on record, as prudent men if you come to the conclusion that the story given by the prosecution does not appear to be probable and that the 816 accused must not have committed the offence, then in that case you have to return a verdict of not guilty. " In our judgment, it is not necessary to pronounce on all the points urged by the learned counsel, because we are of the opinion that the judge clearly misdirected the jury when he asked it to solve the problem that had arisen by exercising its ingenuity and by resorting, if necessary, to speculative reasoning. In other words, the judge gave the jury a carte blanche to, come to its conclusion on the basis of its own conjectures, if necessary. Not only that. He told the jury to hold the accused not guilty in case it found it improbable that he must not have committed the offence. These propositions placed before the jury are repugnant to all notions of criminal jurisprudence and they must necessarily have affected its mind in arriving at the conclusion. This is how the charge on this point reads: " So you will find, gentlemen, that there are as many as six versions before this court and therefore you have to consider all these versions and probabilities of the case, to find out whether the improved version now before the court is a correct one. I would like also to bring to your notice the letter written at the instance of Shilavati from Bombay. That letter is Exhibit 4 G. Shilavati in her examination before the court does not admit that this letter was written at her instance. However, she has admitted before the police that this letter was written at her instance, and this was brought out in her cross examination. In this letter she had stated that she had gone on that day to Bamburda river and there she was forcibly kidnapped by some man who was about to marry her. That man was an old man and she did not approve that marriage. Fortunately, this Konde came to her rescue and took her to Bombay and married her. That is her statement. Now, gentlemen, this is a jigsaw puzzle kept before you. In jigsaw puzzles all the pieces are kept before us and we have to use our ingenuity and piece them together. Some 817 links are missing in this case. However, as rightly sub mitted by the learned Assistant Public Prosecutor, in such cases you have to weigh the probabilities of the case and therefore you have to find out from the material before us whether you can solve this jigsaw puzzle. Now these points are before you that there was a quarrel with Shantabai. The chit was alleged to have been sent by accused No. 1, and then the girl went to Bamburda river and there she was kidnapped by somebody. Now, gentlemen, you have to consider whether it is or it is not possible that the girl Shilavati might have received soma chit probably from the accused No. 1. This chit was seen by Shantabai who exposed to Harnabai the grandmother of the girl. The witness Harnabai is an old woman and probably she was put out and ;he might have taken her to task, and she might have even gone to the length of stating that she should go out of the house. Here is a young girl having hot blood, and it is or is it not probable that the girl in desperation had gone to Bamburda, and she mentions the river, and gentlemen, you can find that there is a confluence of the rivers Mula and Mutha; why did she go to the river ? Whether it is probable that she wanted to commit suicide. You will find, gentlemen, that near that confluence there is a mosque and in the evidence it has come out that the girl was found at the hut at Sion with an old Mahommedan named Kassam Khan and his keep. You have to consider whether it is probable that this Kassam Khan and his keep induced the girl to go with them to Bombay and whether Kassam Khan wanted to marry her there. You have to find out whether it is probable that this chivalrous man Konde rescued her from the old man Kassam Khan who was about to marry her and got himself married to the girl. The fact remains that the girl was found with Konde in Bombay ultimately. It is in evidence of the girl herself that she found herself in a hut at Sion and Kassam Khan and his keep were keeping a watch over her. . . . So, gentlemen, you Will have to find out all the probabilities of the case and 818 before us by the prosecution. " Had the charge to the jury stopped with the sentence, "So you will find, gentlemen, that there are as many as six versions before this court and therefore you have to consider all these versions and probabilities of the case, to find out whether the improved version now before the court is a correct one", no exception could possibly have been taken to it. When the learned judge however, proceeded to direct the jury to piece together the various pieces of the jigsaw puzzle by use of their ingenuity he clearly misdirected them inasmuch as he told them that they could in ' solving the problem draw upon their own imagination and exercise their ingenuity in the matter without reference to the evidence that had been placed by the prosecution on the record. Not only that, the learned judge himself indulged in speculation and placed a number of conjectures before the jury for its consideration. The learned judge surmised that the girl might well have gone to the river for committing suicide and asked the jury to consider this surmise as well. It was further surmised that a chit from the accused was received by Shilavati and that Shantabai saw that chit, and disclosed it to Harnabai, the grandmother, who in all likelihood took her to task and told her to get out of the house and thereupon the hot blooded Shilavati went to the river to commit suicide. There is no evidence whatsoever on the record about the actual receipt of that chit, of Shantabai seeing it and exposing this fact to Harnabai and of Harnabai threatening Shilavati. All these considerations mentioned to the jury were the results of the judge 's fertile imagination and were bound to mislead it into the belief that they could indulge in like conjectures and surmises in their effort to solve the puzzle. The direction to the jury that it was to solve the jigsaw puzzle by use of its ingenuity does not find place in an isolated passage of the charge, but runs through it. While winding up the learned judge again reiterated it and Said; 819 "As I have already told you, you have to piece together all the pieces of the jigsaw puzzle and try to., find out what story appears to you to be probable; whether the girl was drugged at all, or whether as stated by her in her letter she went to a river at Bamburda and there she met this Kassam Khan and his keep and along with them she went to Bombay of her own accord. " In the concluding part of the charge the learned judge said: "After weighing the probabilities of the case, evidence on record, as prudent men if you come to the conclusion that the story given by the prosecution does not appear to be probable and that the accused must not have committed the offence, then in that case you have to return a verdict of not guilty. " It is not possible say that these words were likely to give a correct lead to the jury in reaching its conclusion. All that the jury should have been told was that after weighing the probabilities of the case and the evidence on the record, as prudent men they should answer "whether the prosecution had made out the charge against the accused. " We are satisfied that as a result of These misdirections the jury in all likelihood gave a divided verdict of guilty by three to two not on evidence but on the basis of assumptions and conjectures. In this situation, the question for consideration is what procedure should be followed by this court for undoing the mischief that has happened and which would be most conducive to the ends of justice. The simplest course open to us is to order a retrial of the appellant. It is also open to us to remit the case to the High Court with a direction that it should consider the merits of the case in the light of our decision and say whether there has been a failure of justice as a result of these misdirections. Lastly it is open to us to examine the merits of the case and 106 820 decide for ourselves whether there has been a failure of justice in the case and an innocent man has been convicted. It is now well settled that in deciding whether there has been in fact a failure of justice in consequence of a misdirection the court is entitled to take the whole case into consideration. [Vide Abdul Rahim vs Emperor(1)]. The words "in fact" in section 637 (d), Criminal Procedure Code, emphasize the view that the court is entitled to go into the evidence itself in order to determine whether there has been a failure of justice. In the peculiar circumstances of this case we have chosen to adopt the third course, because at this moment of time it is most conducive to the ends of justice. It seems plain to us that on the material on this record no reasonable body of persons could possibly have arrived at the conclusion that the appellant kidnapped Shilavati as alleged by the prosecution. We have taken upon ourselves the responsibility of deciding this case without the valuable opinion of the High Court because we feel satisfied that any other course would cause unnecessary harassment to the appellant. With great respect we are, however constrained to observe that it was not right for the High Court to have dismissed the appeal preferred by the appellant to that court summarily, as it certainly raised some arguable points which required consideration though we have not thought it fit to deal with all of them. In cases which prima facie raise no arguable issue that course is, of course, justified, but this court would appreciate it if in arguable cases the summary rejection order gives some indication of the views of the High Court on the points raised. Without the opinion of the High Court on such points in special leave petitions under article 136 of the Constitution this Court sometimes feels embarrassed if it has to deal with those matters without the benefit of that opinion. (1) A.I.R. 1946 P.C. 821 The, learned Solicitor General contended that this was not a fit case where the court was justified in going behind the verdict of the jury and in deciding the case in accordance with its own view of the evidence. It was argued that the charge to the jury had to be taken as a whole, that though some slight exception might be taken to certain passages in the charge the learned judge had placed the case of both sides fairly before the jury and that not only did the learned judge place fairly the case of both sides before the jury, he indicated his opinion on the evidence strongly against the prosecution and that being so, the accused could not be allowed to say that the charge which was strongly in his favour and against the prosecution was defective in law. It was said that it was open to the jury to accept the statement of the mother of the girl as well as the statement of the girl in spite of the different conflicting versions mentioned in the charge and that the jury having done so, the matter stood concluded. As already observed, charge to the jury cannot be said to be a fair charge if it tells the jury to approach the decision of the matter from a wrong angle, and directs it to reach its decision by exercise of its own ingenuity and by having recourse to conjectures and speculative reasoning. This convention of the learned Solicitor General therefore cannot be seriously considered. That the verdict of the jury was erroneous in that it could not be the verdict of any body of reasonable men in the circumstances of this case is fully established by the facts and circumstances on the record. What Yamunabai deposed in court has been set out in the earlier part of this judgment. Her case now is that when she returned home on the 12th December, 1949, at about 6 30 p.m., she found that Shilavati was not in the house, she made enquiries from Jamna and Hira, she was told that accused 1 came and told them that there was a girl in his house and her voice was to be compared with Shilavati 's voice and took her 822 away on that pretext. Prahlad, P.W. 4, deposed that when his mother returned home at 6 p.m. he told her that Shilavati had been seen by him in the company of accused 1. Jamnabai, P.W. 5, stated that the accused came to the house at 3 p.m. and on the pretext that one girl had come to his house for singing he took Shilavati and that when Yamunabai returned she informed her of what had happened. Ananda, P.W. 6, repeated the same story. This story stands completely demolished by the different complaints that Yamunabai made to the police. There is no satisfactory explanation whatsoever why when she made her first report to the police at 11 40 p.m. she did not tell the police that she had been told by her son, by Jamuna and by Namdev that the girl had been taken away by the appellant and that he had told them that she had been sent back in a bus. Not only this, after she had sent a written complaint on the 13th December to the Police Inspector, Poona, suspecting the appellant of having kidnapped her daughter, she made a statement to the head constable, withdrawing that allegation in most unambiguous terms and stated that the girl had left the house after quarrelling with Harnabai. In the first report to the police she had said that the girl had left after quarrelling with one Shantabai. These statements made by her could not be said to be the result of mere figments of her brain. She must have made them on some basis. They give the lie direct to her present version. When later on she sent an application to the Collector accusing the appellant and Badsha of having kidnapped her daughter she. asserted that they had taken her away to an unknown.place at 6 p. m., though the occurrence in then earlier complaints was alleged to have taken place at about 3 30 p. m. The letter of 14th March, 1960, written at the instance of Shilavati to Yamunabai falsifies all the versions given by her and clearly suggests that the girl left the house of her own accord. In this letter she sent her regards to the appellant. If he had kidnapped, her, that expression of respect would 823 not have found place in that letter at all Another version was mentioned in the evidence as to how the occurrence took place. It was stated that the girl received a chit from the appellant and. on the basis of this chit a quarrel ensued and the girl left the house. On this state of the record it is quite evident that the version now given by Yamunabai to court or by Shilavati after she had come under the influence of her mother cannot be accepted. It seems that the appellant because he was a music master and had been giving lessons to the girl a few months before her disappearance has been convicted on a charge under section 366, Indian Penal Code, ' not on the basis of evidence but on the basis of surmises and, conjectures. The learned Solicitor General referred us to the statement of the bricklayer and of the boy Prahlad. A mere reading of their statements shows that these are not true and have been procured to fill in gaps in the prosecution case. Harnabai was not produced as a witness in the case and the learned judge in his charge to the jury was right when he observed that a number of links were missing in the prosecution case and they could only be filled in on the basis of conjectures. Both Yamunabai and Prahlad studiously avoided stating that the girl took part in dramas or that she danced in public places. They tried to make out that Shilavati was an unsophisticated girl having no knowledge of the world and that she never danced in public places or she never acted in public dramas. There is ample material on the record consisting of her photos in the advertisements as well as in the statements made to the police which establishes that she acted in various dramas for which she was paid at the rate of Rs. 5 for each perfor mance and that she gave, dance performances and she was intending to make singing and dancing as her profession. The very fact that the brother and the mother were at pains to create a false impression on the court by deposing falsely was itself sufficient to show that no reliance could be placed on their 824 testimony. We are therefore firmly of the opinion that there has been a grave failure of justice in this *case and the appellant, an innocent man, has been convicted of a serious offence on a verdict of the jury arrived at in all likelihood on the basis of conjectures and that that verdict was the. consequence of the misdirection given to the jury by the judge. For the reasons given above we allow this appeal, set aside the verdict of the jury, and acquit the appellant of the offence with which he was charged. Appeal allowed.

IN-Abs

In his charge to the jury the Judge told them that the case before them was a jig saw puzzle with some missing links and directed them to use their ingenuity to piece them together by finding out the probabilities and seeing whether they could successfully solve the puzzle. Held, this was misdirection in that it invited the jury to exercise its ingenuity by having resort, if necessary, to speculative reasoning. Where a jury has been misdirected and has based its verdict on assumptions and conjectures the Supreme Court may order a retrial or remit the case to the High Court with a direction that it should consider the merits of the case in the light of the decision of the Supreme Court and say whether there has been 810 failure of justice as a result of the mis direotions, or it may examine the merits of the case and decide for itself whether there has been a failure of justice in the case. In deciding whether there has in fact been a failure of justice in consequence of a mis direction, the Court is entitled to take the whole case into consideration. Abdul Rahman vs Emperor (A.I.R. referred to. Though in cases which prima facie raise no arguable issue the High Court may dismiss an appeal summarily without giving any reasons, it is desirable that in arguable cases the High Court should in its summary rejection order give some indication of the views of the High Court on the points raised.

Appeal No. 226 of 1961. Appeal from the judgment and order dated October 22, 1959, of the Bombay High Court (Nagpur Berch) at Nagpur in Special Civil. Application No. 63 of 1959. A. section Bobde, G. L Sanghi and Ganpat Rai, for the appellant. C. K. Daphtary, Solicitor General of India, Bihan Narain and P. D. Menon, for the respondents. April 16. The Judgment of the Court was delivered by AYYANGAR, J. This appeal comes before us by virtue of a certificate, of fitness granted by the Nagpur Bench of the High Court of Bombay under articles 132(i) and 133(1)(c) of the Constitution. It arises out of a petition filled by the appellant under article 226 of the Constitution before the High Court of Bombay at Nagpur impugning the constitutional validity of certain notifications and directions issued under the Imports and Exports (Control) Act, 1947, and the Export Control Order, 1958, framed thereunder and substantially prayed that the Joint Chief Controller of Imports & Exports, Bombay impleaded as the first respondent should be directed to consider the application of the app ellant for the grant of a licence to enable him to export certain manganese ore which he had won from his mines, without reference to the impugned notifications. This petition was dismissed by the learned Judges of the High Court who, however, granted the appellant is certificate which has enabled him to file this appeal. 76 A few facts are necessary to be stated to appreciate the exact, grievance of the petitioner and the grounds upon which the notifications etc. issued by government are stated to contravene the Constitution and in particular to infringe the freedom granted to the appellant under Part III of the Constitution. The appellant is a lessee of certain manganese mines in two areas of Madhya Pradesh. The leases are stated to have been granted to him in the years 1953 for a period of 20 years each, with an option for renewal if the appellant so desired, under the Mineral Concession Rules 1949, for a like period. It is an admitted fact that the in eternal demand for manganese ore in India is very inconsiderable, so that the ore is extracted mostly for the purpose of being exported out of India. Having regard to the date when the appellant obtained the mining leases, he could not have won any appreciable quantity of the metal during 1953, nor, of course, could he hare exported any quantity of the ore won by him in or prior to the year 1953. It is now necessary to set out the history of the restrictions on the export of manganese ore from 1953 up to the date relevant to the petition to understand the points sought to be made on behalf of the appellant. Prior to 1953, i. e., at a time before the appellant entered the manganese ore business, export of manganese ore was freely licensed, i. e., the commodity was subject to restriction as regards export, nor was any control exercised by government on the allotment of wagons for the movement of manganese ore. As the export of the ore began to expand from that date, the Railways found themselves unable to meet the increased demand for wagons and were forced to regulate the appellant of such wagons. The government also took a hand in regulating the 77 movement of wagous by evolving a system of registration of shippers for whom priority in the allotment of wagons was ensured. It has to be added that this regulation and control over wagon allotment and wagon movement was coordinated with and correlated to certain changes which were effected for regulating the export of the commodity itself. Section 3 of the Imports and Exports (Control) Act, 1947 (to be referred hereafter a,; the Act) enacts : "3. Powers to prohibit or restrict imports and exports (1) The Central Government say, by under published in the Official Gazette,, make provisions for prohibiting, restricting or otherwise Controlling, in all cases or in specified classes of cases, and subject to such exceptions if any, as may be made by or under the order (A) the Import, export, carriage coastwise or shipment as ships stores of goods of any specified description. (b) the bringing into any port or place in India of goods or any specified description intended to be taken out of India without being reserved from the ship or conveyance in which they are being carried. (2) All goods is which any order under sub. section (1) applies shall be, deemed to be goods of which the import or export has been prohibited or restricted under section 19 of the (VIII of 1878) and all the provisions of that Act shall have effect accordingly, except that section 183 thereof shall have effect as if for the word "shall ' there in the word may ' were substituted. 78 (3) Notwithstanding anything contained in the aforesaid Act, the Central Government may, by order published in the Official Gazette, prohibit, restrict or impose conditions on the clearance, whether for home consumption or for shipment abroad of any goods or class of goods imported into India. " Under the powers conferred by this section the Central Government issue the Exports Control Order, 1958 (or shortly the Control Order), cl. 3 of which provided that "no person shall export any goods of the description specified in Sch. I except under and in accordance with a licence granted by the Central Government or by any officer specified in Sch. " Manganese and iron ore were specified in the first schedule. Clause 6 of this order sets out the grounds upon which the Central Govern ment or the Chief Controller of Exports and Imports may refuse to grant a licence or direct a licensing authority not to grant a licence. In view of certain points urged before us it would be convenient to set out this clause in full "6. Refusal of licence. The Central Government or the Chief Controller of Imports and Exports may refuse to grant a license or direct any other licensing authority not to grant a licence (a) if the application for the licence does not confers to any provision of this Order; (b) if such application contains any false, or fraudulent or misleading statement; (e) if the applicant uses in support of the application any document which is false or fabricated or which has been tempered with; (d) if the applicant on any occasion has tempered with an export licence or has 79 exported goods without a licence where it is necessary, or has been a party to any corrupt or fraudulent practice in his commercial dealings; (e) if the application for an export licence is defective and does not conform to the prescribed rules; (f) if the applicant commits a, breach of the Export Trade Control Regulations; (g) if the appellant is not eligible for a licence in accordance with the Export Trade Control Regulations; (h) if the licensing authority decides to canalise exports through special or specialized agencies or channels; (i) if the applicant is a partner in a partnership firm, or a director of a private limited company, which is for the time being subject to any action under clause 8; (j) if the applicant is a partnership firm or a private limited company, any partner or director whereof, as the case may be, is for the time being subject to any action under clause 8. " The first restriction on the export of manganese and iron ore was imposed in June, 1956 when the Ministry of Commerce and Industry issued a public notice on June 26, 1956, setting out their policy as regards export during the half year July to December, 1956. After reciting that the government were convinced that the then existing trading mechanism as regards the export of ores was inadequate to code with the developments which had taken place in the purchasing countries, it went on to add that persons who entered into contracts 80 with foreign buyers bad been unable to fulfil their commitments which had caused inconvenience to foreign buyers and so undermined the latter 's con fidence in the capacity of this country to maintain an assured line of supply. In order, therefore, to overcome the obstacle in the way of augmenting foreign exchange earnings from the expert of these ores, the Government declared that they would, help in reorientating the trading in ores on more rational lines and that for this purpose they proposed to canalise the export of ores in a progressively increasing measure through the State Trading Corporation which would in its turn rely on the mining interests in the country and use the existing trade mechanism to the extent practicable. For these reasons, they announced that a regulation would take place of the expert of these ores during the half year July December, .1956 through three classes of exporters: (1) Established shippers who would be granted export quotas on the average of the quantities exported during the years 1953, 1954 and 1955. (2) Mineowners based on a annual average of the quantity of ore on which royalty was paid during the calender years 1953, 1954 and 1955, and (3) The State Trading Corporation which would be given a quota on an ad hoc basis. It is only necessary to mention that the State Trading Corporation which is a Corporation owned and controlled by the Union Government came into existence by registration under the Indian Companies Act in May, 1956. Rail transport facilities co extensive with the quota granted, were also assured for those to whom quotas were granted. There were clarifications and unsubstantial variations of this Press Note to which, however, it is riot 81 necessary to refer as they are not material to the points now in controversy. It will be noticed that the control thus exercised and the restrictions thus imposed, mineowners who had not entered the field before 1953 were excluded from the grant of any export quota. By a public notice dated September 4, 1956, the Ministry of Commerce, however, announced that the case of these "newcomers" was receiving their attention and that an announcement in that regard would be made in due course. The same policy and the same basis of allocation was continued for the ' next half year January to June 1957. For the period July, 1957 to June, 1958, (the government having now started pursuing the policy of announcing their quotas for a year instead of for six months), a Press Note was issued on June 1, 1957, by which exporters and mineowners were allotted a quota equivalent to 60 per cent of their exports made in 1958 or 1956 to be selected by them. The quota thus released was made available for being allotted to the State Trading Corporation on an ad hoc basis and the Press Note added: "The State Trading Corporation will be allotted in adequate quota to enable them to maximise the exports of manganese ore. The Corporation are being advised to seek the co operation of established trading and mining interest to make this effort a success". Here again, certain unsubstantial modifications were made by further Press Notes but to these we shall not refer. As regards the next period July 1958 to June 1959,the policy decision of the government was indicated by a Public notice issued on May 26, 1958. In the course of this Press statement the Government of India stated that they had been keeping under constant review the working of the 82 policy announced by them under the Press Notes to which we have already referred, and that they bad come to the conclusion that the long term interests of Indian Manganese ore would be better served if the export policy were to discourage fragmentation of quotas and encourage bulk con tracting, movement, and shipment of ores. At the same time, the Government expressed their keenness to maintain continuity in the export arrangements to the extent practicable. Having regard to these factors, they went on to state: "Government have decided that for the period July 1958 to June 1959, the export of manganese ore will be regulated as follows. (i) The established shippers, the mineowner, exporters and ' the state Trading Corporation will be given an allotment of quota for a quantity equal to the quota for 1957 58. (ii) Firms and parties whose individual allotments are small are advised to form Co operative or limited companies. " At the date when the writ petition out of which this appeal arises was filed, the polioy statement of May 26, 1958, was in force and it was the validity of the restriction and control exercised by it that was challenged as unconstitutional in the petition filed by the appellant. The position at that date may be summarised as follows: (1) From and after July 1956 the export of manganese ore had been controlled or restricted. (2) The restriction had taken the form of allotment of quotas for export granted to: (a) established exporters, i.e., comprising the category of these who had exported from 1953 onwards , (b) mine owners who had similarly exported the 83 ore won by them with a similar limitation as to the year when they should have exported, and (c) The State Trading Corporation which was granted an export quota on an ad hoc basis to cover every other quantity which could be exported and for which a foreign market could be found. Traders and mine owners who had not any export performance to their credit in earlier years were excluded from the scheme and though the government were repeatedly stating in their public statements that the case of these persons termed "newcomers" would be considered, this had never been done. The appellant fell within the last category and was not eligible to any export quota and therefore could not export. The result was that the ore won by him had either to be sold (a) in the internal market which, as stated earlier, was a very restricted one, this because the steel producing concerns which were the principal or practically the only consumers of the ore in the country bad their own mines from which the ore required by them was won, and (b) in the absence of an internal market the mined ore had to be sold either to established shippers or to the State Trading Corporation. In regard , to established shippers, their quota of export was being progressively reduced, so that their demand for ore naturally shrank and unremunerative price had therefore to be offered by the "newcomers" to induce them to buy. The only other possible buyer was the State Trading Corporation which was being granted quotas on an ad hoc basis sufficient to enable it to get all the good ore which it might buy for which there might be a foreign buyer. In regard to the State Trading Corporation, there was an allegation made by the appellant, by reference to a circular issued by the Corporation on April 20, 1957, that the terms offered for the purchase of ore were unfair to the sellers because of the excessively large commission it demanded. It should, however, be 84 stated that the State Trading Corporation was not impleaded as a party in the writ petition in the High Court, nor any relief sought on the basis of that allegation. The circumstance was relied on merely to emphasise the hardship caused to the appellant from the exclusion of those who had no expert performance in the years which were fixed as the basic years for the allotment of an export quota to mineowners. The State Trading Corporation being owned and controlled by, the Central Government is an agency or instrument of government for effectuating its commercial policy. If in the performance of its duties as such public authority it acts in any improper or unfair manner it would be subject to the control of the Courts but as no relief based on such a complaint was claimed by the appellant, it is not necessary to pursue the point or examine its merits. The case of the appellant has to be judged on the basis of two admitted features resulting from the policy statements of Government we have set out earlier : (1) That mineowners who were "newcomers", i. e., not having export performance in certain basic years, were excluded from direct participation in the export trade, but these persons had, in view of the practical absence of an internal market for manganese ore to sell their goods to others. who had been granted facility for export. (2) That the category of persons to whom they could sell their ore were two (a) Established shippers, and (b) The State Trading Corporation, and with the nature of this market as already described. The question raised for consideration by the appeal is whether the withholding of the right to engage in export trade from this class of mineowners constitutes an unreasonable restriction on their right to carry on business guaranteed by article 19 (1) (g) of the Constitution. 85 Pausing here we might put aside one matter which is beyond the pale of controversy, and that is that the constitutional validity of section 3 of the Imports & Exports Control Act, 1947, which forms as it were the ultimate root from which the impugned notifications and executive actions spring is conceded. The points urged by learned Counsel for the appellant were two : (1) Clause 6 (b) of Exports Control Order 1958, was beyond the rulemaking power under section 3 of the Imports & Export Control Act, 1947, (2) Even if el. 6 (h) and the "canalising" of exports through "special" or "specialised" agencies or channels be valid, the notifica tions by which the canalisation was effected are outside the contemplation of the 'agency or channel ' under el. 6 (h). Before proceeding further it is necessary to mention that the constitutional validity of el. d (h) of the Export Control Order 1953 was not disputed before us, the controversy in relation to it having been concluded by the decision by this Court in Glass Chatons Importers and Users Association vs Union of India (1). The argument in support of the contention that el. 6 (h) was beyond the terms of section 3 of the Act was briefly this : Section 3 of the Act by its language, its setting and context permits restrictions or controls only in regard to goods which are the subject matter of export and does not permit restrictions being imposed on persons engaged in the export trade. In other words, the Central Government is enabled by a notified order under section 3 of the Act (a) to specify the goods in respect of which the control or restriction is to be exercised, along with (b) a matter which this necessarily involves, 'viz., the quantities that may be exported, (e) the quality of the goods that might pass out of the country and (d) as regards the destination to which they might be exported. But the restrictions could not extend any further. An (1) A.I.R. 1961 IS.C, 1514. 86 order under section 3 cannot make provisions restricting the persons who might participate in export trade, restrict either their number or impose qualifications which they must satisfy before being permitted to export. Besides, even if a notified order might validly prescribe the persons who might participate in the export trade, still it did not authorise an order which would so canalise or channel the persons who might engage in the export trade as practically to create a monopoly in favour of any particular person or group which is what r. 6 (h) has effected. The argument was put in a slightly different form by reference to the provisions of article 19 (6). Article 19 (1) (g), after guaranteeing to all citizens the right to carry on any occupation, trade or business, had gone on to provide in cl. (6) the restrictions which may constitutionally be imposed on the right thus guaranteed, and the clause as it now stands after the first Amendment of the Constitution reads. to quote the material words : "Nothing in sub clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub clause, and, in particular, nothing in the said sub clause shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to, (i) (ii) the carrying on by the State, or by corporation owned or controlled by the State, of any trade, business,. industry or service, whether to the exclusion, complete or partial, of citizens or otherwise". 87 The effect of the policy statements and directions to the licensing authorities issued by virtue of the powers conferred by el. 6 (h) of the Export Control Order 1958 had resulted in the creation of a monopoly or a near monopoly in favour of the State Trading Corporation. It was urged that the creation of such a monopoly could on the language of article 19 (6) (ii) be effected only by the State making a law in relation to the matters there set out. Neither the Export & Import Control Act, 1947 nor even the notified order made there under The Export Control Order, 1958 could be said to be " 'a law relating to the carrying on by the State of any trade, business, industry or service" and therefore the validity of the preferential treatment granted to the State Trading Corporation could not be justified or upheld by reference to the amendment effected to el. (16) by the Constitution (First Amendment) Act, 1961. So much could be accepted. But this, however, leaves for consideration the question whether the provision now impugned could not be sustained as "a reasonable restriction" on the exercise of the rights conferred by sub cl. (g) of article 19 (1) in the interest of the general public i. e., on the opening words of para 1 of cl. But as pointed out already, the constitutional 'validity of el. 6 (h) in so far as it permits the canalising or channelling of the export trade is no longer res integral this having been upheld in the Glass Chatons case (1). In the circumstances, the very narrow question for consideration, is whether the restrictions and control for which provision might be made by section 3 would not include a provision for canalising the trade in any particular commodity. We are clearly of the opinion that the restriction or control in the form of channelling or Canalising the trade is not outside the limitations which might be imposed on (1) ; , 88 export trading by section 3 and that consequently el. 6(h) in its present form is within the rule making power conferred on the Central Government by section 3 of the Act. The argument that the restrictions which could be imposed or the control which might be exercised on exports by orders made under section 3 of the Act, could not extend to restrictions on persons who might be permitted to engage in the export trade has only to be stated. If the quantum of the export in a commodity could be restricted, the control that would effectuate this must necessarily extend to the persons engaged in or desirous of engaging in the export of that commodity and this would a fortiori be so, if the restriction takes the form of a prohibition of exports in a commodity altogether. If therefore the control or restriction could legally extend to the persons who are engaged in the trade; it would appear to follow as a logical step that the restriction might take the form of classifying the persons who might participate in the trade and the conditions subject to which any particular class might be permitted to do so. It would be a matter of policy for the Government to determine, having regard to the nature of the commodity and the circumstances, attending the export trade in it, to lay down the basis for the classification between groups and fix their relative priorities etc. When el. 6(h) permits "canalising" or the "channelling" of exports through selected agencies it does not no more than make provision for the classification into groups etc. which but one of the modes which the "control" under a. 3 of the Act might assume. The next point to be considered is whether the notifications issued by which (1) the export trading in manganese ore is confined to three groups of persons engaged in the trade, viz., (a) established shippers, (b) mine owners, and (e) the State Trading Corporation, the two former being allotted quotas 89 based upon the export effected by them during certain basic years, (2) the progressive reduction in the quota of groups (a) & (b) with a view to enable the available export business to be handled by the State Trading Corporation, and (3) as a necessary result of the above the elimination from the export trade of the class known in the trade as "new comers" was permitted under el. 6(h) of the export Control Order, 1958. It would be seen from the above that there are two grievances of the appellant which are inter related: (1) The first consists in the complaint regarding the quota allowed to the established shippers and mineowners who had an export performance during a basic year. Learned Counsel however, did not put this forward as any serious grievance because persons falling within those already in the trade and the appellant who wants to come into the export trade could not legitimately object to those already in it being allowed facilities or licences for effecting exports. In his petition before the High Court the appellant raised a complaint that the basic years fixed in the policy statement were arbitrary but the fixation of any year must be so, and if the Government fixed as a basic year, a period three years before the announcement of the policy, i.e., took into account performance within a period of three years before that date, we do not see any unreasonableness or arbitrariness about it. (2) It was in regard to the inclusion of the State Trading Corporation among those entitled to export and the increasing quota given to it on an ad hoc basis without reference to any antecedent performance that the main attack was directed and it was this that learned Counsel stated amounted to a monopoly which was not countenanced by the law. It will therefore be sufficient for us to confine attention to the grounds upon which the successive notifications which afforded increasing facilities to the State Trading Corporation for export were challenged. 90 Pausing here it would be convenient if we set out the reasons why according to the respondent the State Trading Corporation was preferred as a principal agency for canalising the export trade in this commodity. The vital necessity of export earnings for sustaining national economy not being a matter of controversy, the question which the government had to consider was how best to ensure the optimum earning from exports of manganese ore. India has no monopoly in the production of this ore and consequently the price of the commodity in the foreign market is dependent on world wide factors. Having regard to the use to which the ore is capable of being put, viz., by steel factories in the production of steel, the foreign buyers, (and in this one factor to be taken into account is that in several foreign countries external trade is conducted through State agencies), are insistent that there shall be a regular supply of ore of uniform quality. There had been complaints in early years, when the trade in the commodity was unrestricted and not under any control, that the quality of the ore supplied was not according to sample, with the result that even the trade of those who took pains to maintain their quality of supplies suffered. It was in these circumstances that government stepped in 1956 by imposing restrictions and by assuring the foreign buyers of a regular supply through the mechanism of the controls exercised in this country. These facts were not disputed. It is with this background that the challenge to the validity of the notification has to be considered and answered. The imposition of any restriction on those entitled to engage in any trade would necessarily mean that those who do not conform to the criteria laid down would be denied the right to participate in that trade; and this would be a fortiori so if the restriction takes the form of 91 canalising of the trade in a commodity, for canalising necessarily implies the exclusion of some groups. If therefore section 3 of the Act permits a rule to be made for canalising export trade in a commodity and such canalising is not unconstitutional, it would necessarily follow that a person cannot have a legally sustainable complaint that he is eliminated from among the groups entitled to participate in the trade. The question whether the canalising has been properly done in the sense that the groups selected are no better than the groups eliminated poses a very different problem, and if that were made out a question of discrimination might conceivably arise. We should, however, hasten to point out that it is not the case of the appellant that the established shippers and the mineowners to whom quotas have been allotted,in addition to the State Trading Corporation have been improperly included in the group of persons entitled to participate in the export trade, and that apart, there is a rational and very proper classification between those who have experience in the trade and the newcomers who do not possess these experience. In other commodities concerned in export or import, new comers i.e., those with no previous experience in the export line but who have experience in other branches of the trade, have been allotted quotas, though this should depend upon the circumstances of each trade. It has not been suggested that previous experience in the export trade would not be a valuable qualification for the grant to a person or group of a quota, and even a preferential quota in the export trade in the commodity with which we are now concerned. It Would thus appear that if the notifications had confined the entire export trade to those with previous experience, no legal objection could have been taken to the notifications on the arguments addressed to us by learned. Counsel for the appellant. In such a state of circumstances the appellant would have been excluded but 92 he could not still complain that he was illegally eliminated because this exclusion was necessary consequence of channelling or canalising of the exports through persons with previous experience in the field. The real grievance of the appellant was that in preference to him and those like him, who win the ore to be exported, the State Trading Corporation which had Do previous experience of the export trade should have been selected as the agency for canalising exports. There is no doubt that if the only test of differentiation was previous experience, the preference of the State Trading Corporation to the appellant and the others of the class to which he belongs, might not be justified, but that is not the sole test by which the matter has to be judged. We have set out earlier the grounds upon which choice of the State Trading Corporation as the agency for effecting the export trade was determined by the government and we consider that for those reasons there was nothing improper in the choice, but that on the other hand the object of the export trade, viz., the earning of foreign exchange to the maximum with benefit of a long range character for exports from this country could be expected to be attained with the State Trading Corporation as the main agency engaged in the trade. We do not therefore consider that there is any substance in the argument of the learned Counsel for the appellant that the choice of the State Trading Corporation and the granting to it if quotas on an ad hoe basis was either beyond the powers conferred upon the licensing authorities under cl. 6(h) of the Export Control Order or was otherwise open to objection. There was one other matter that was urged in this cconnection to which it is necessary to refer. Clause 6(h) enables the licensing authorities to canalise exports 93 "through special or specialised agencies, or channels". It was urged that the State Trading Corporation was neither a special nor specialised agency or channel and that on that ground the choice of the corporation was outside 6 (h). We are wholly unable to accept this argument. Whatever the term "specialised" might mean, the word "special" can not bear the construction that it must be, an expert agency in that line, in the sense that it possesses a type of previous experience which cannot be claimed by others. Without going so far as to say that a special agency or channel might mean merely a designated agency, it would be proper to construe the word as meaning, an agency selected having in view the purpose for which the channeling or canalising has to take place. In other words, an agency would be "special ' if having regard to the purpose for which the canalising takes place it is more likely to achieve that objective than other agencies or achieve it in a larger measure than others. In that sense we have no hesitation in holding that the State Trading, Corporation might be a "special" agency or a channel for the purpose of enabling the country to maintain and foster the continuity of its trade in the commodity by ensuring exports in adequate quantity and of proper quality. In this state of circumstances the elimination of the class to which the appellant belongs, viz., newcomers who had no previous experience of the export trade during the basic year or earlier was the result of enforcing a permitted method of control and a type of restriction which it was legally competent to be imposed under 6 (h). In the case of other commodities, "newcomers" have been granted a quota. That however naturally depended upon the nature of the trade, the nature of the export market and other factors which it is the province of government to take into account. Having stated this legal position, we would hasten to 94 add that it was not the view of the Government that the export trade in manganese ore was such into that that newcomers could never be permitted trade is clear from the several, policy statements themselves in which, from time to, time, they conveyed an assurance that the allotment of quotas to the "newcomers" was under consideration. In the case of a commodity like manganese ore for which there is not much of an internal market the denial of a right to any group or we shall add, to any individual to export would in effect affect him adversely forcing him to sell to others who have been given such a facility. Persons like the app ellant were being fed on hopes of some relief to them and it was a case not merely of hope deferrer making the heart sick, but of dashed hopes that led the appellant to approach. the Court for relief. Though we consider that the appellant has no legal right to the relief that he sought, his grievance is genuine and it would be for the Government to consider how beat the interest of this class should be protected and it is made worth their while to win the ore so as to expand, foster and augment the export trade in this valuable commodity. Reverting to the legal points raised in the appeal, it appears cleat to us that on the premises (1) that section 3 of the Import & Export Control Act, 1947 is a valid piece of legislation, (2) that cl. 6 (h) of the Export Control Order is within the rulemaking power of the Central Government and is constitutional, there is no escape from the conclusion that no legally enforceable right of the appellant has been violated for which he could seek redress; under article 226 of the Constitution. in this view it is unnecessary to consider whether the appellant having prayed primarily for the issue of a writ of mandamus to direct the licensing authorities to consider his application for 95 an export licence for the half year current at the date of the petition ',without reference to the terms of the impugned notifications and policy statement" and that half year having long ago gone by, he could be granted any relief by the High Court on his petition or by this Court on his appeal. It is possible that in such circumstances a person situated like the appellant might be entitled to a declaration as regards the validity of the restrictions imposed which continue to be in force even beyond the half year or year to which the licence relates. It is however unnecessary to pronounce upon this question which does not really arise for consideration in view of the conclusion that we have reached that the restrictions and control to which the trade has been subjected are legal and justified by the Act and the Rules framed there under. The result is that the appeal fails and is dismissed. There will, however, be no order as to costs. SUBBA RAO, J.This appeal by certificate is directed against the judgment of a division Bench of the High Court of Judicature for Bombay, Nagpur Bench, dismissing the application filed by the appellant under article 226 of the Constitution praying for the issue of an appropriate writ 'directing the first respondent to grant an export licence in his favour. The facts giving rise to this appeal may be briefly stated. The appellant is the lessee of manganese mines situated in the State of Madhya Pradesh. He carries on the business of mining and selling the ore raised therefrom. There is practically no internal market for manganese, and most of the manganese produced in India is exported to foreign countries. The internal trade in regard to manganese ore being negligible, it may be ignored 96 for the purpose of this case. Till about the middle of 1956, miners, including the appellant, were free to deal with foreign buyers for exporting their products and to sell them at their sidings to exporters or to carry them to any port by obtaining necessary wagon allotments from the railways. But from May 1956, the Government of India issued various notifications progressively restricting the export quotas available to the shippers and mine owners, culminating in a stage when direct export by mineowners and shippers was stopped and the entirtrade canalized through the State Trading Corporation originally formed by the Government as a private company under the India and subsequently made into a public company, We shall later on consider in detail the particulars. of the said process. On December 1, 1958, the appellant filed an application before the Joint Chief Controller of Imports and Exports, the first respondent herein, for granting to him an export quota and licence for export of manganese ore under cl.(4) of the Exports (Control) Orders, 1958, (hereinafter called the Order), and also for the movement of the ore from the railway sidings to Bombay port. The first respondent, by his reply dated December 17, 1958, refused to comply with the said request on the ground that export of manganese ore outside India was only allowed by established shippers and established mine owners according to the "existing" orders of the Government. Aggrieved by the said order, the appellant filed the said writ petition before the High Court of Bombay, but that was dismissed. Hence the present appeal. The Joint Chief Controller of Imports and Exports is made the first respondent and the Union of India, the second respondent to the appeal. The argument of learned counsel for the appellant may be summarized thus: Under Art.19(1)(g) of the Constitution the appellant had a right to 97 carry on his business of producing and selling man. ganese ore and exporting it to foreign countries either directly or through exporters. The policy statements issued by the Government from time to time, on the basis of which his application was rejected, crippled the trade of the miners like. the appellants, who were newcomers in the field of direct export. Clause (6) of the Order, whereunder the said policy statements were issued and which empowered the Central 'Government of the Chief 'Controller of Imports and Exports to canalize exPorts through special or specialised agencies or channels, is ultra vires inasmuch as section 3 of the Imports and Exports (Control) Act, 1947 (XVIII of 1947), hereinafter called the Act, whereunder the said order was made, does not empower the Central Government to take for itself or confer on others such a power. Even if cl. 6(h) of the Order was valid, the said order empowers only equalizing exports through special or specialized agencies, that is, through experts in the line of export business, and it cannot be relied upon to canalize the business through the State Trading Corporation, which is in no way better than the businessmen in that line and which indeed has not get any experience in the business of export compared to other experienced exporters. In any view, the ultimate effect of the policy statements is to create a monopoly in the export trade in manganese in favour of the State Trading Corporation and other qualified exporters, and later on solely in favour of the said Corporation, without at the same time safeguarding the interests of miners like the appellant by fixing appropriate quotas or otherwise: with the result, they are compelled either not to do the business at all or put themselves at the mercy of others, who ,are in a position to dictate terms and who may or not buy the ore from them. The implementation of the policy to the detriment of miners like the appellant is an unreasonable restriction on their 98 right to carry on their business in mining and selling manganese ore. Learned counsel for the respondents Contended that the petition filed by the appellant under article 226 of the Constitution should be dismissed on the ground that it has become infructuous, as the year for which the licence was asked, namely, 1959, had run out. The learned counsel also sought to support the order made by the first respondent on ground that el. ( 6) of the Order was validly made and that the scheme of implementation of the policy adumberated by the Government was not only sanctioned by el. 6(h) of the Order, but the restriction imposed on the fundamental right of the petitioner was also a reasonable one. The first question is whether el. 6(h) of the Order was ultra vires the Act. The relevant provisions may be noticed. The meterial part of a. 3 of the Act reads: "Powers to prohibit or restrict imports and exports. (1) The Central Government may, by order published in the Official Gazette, make provisions for prohibiting, restricting or otherwise controlling, in all cases of specified classes of oases, and subject to such exceptions if any, as may be made by or under the order: (a) the import, export, carriage coastwise or shipment as ships stores of goods of any specified description. x x x x Clause (6) of the Order reads: "Refusal of licence. The Central Government or the Chief Controller of Imports and 99 Exports may refuse to grant a licence or direct any other licensing authority not to grant a licences : x x x x x x (h) if the licensing authority decided to canalize exports and the distribution thereof through special or specialized agencies or channels. The Order was made in exercise of the powers conferred by ss.3 and 4 A of the Act. It is contended that section 3 does not empower the Central Government to issue an order conferring on itself or another a power to canalize exports through special or specialized agencies or channels. There is no force in this argument. Section 3 of the Act empowers the Central Government to make provisions for prohibibiting, restricting or otherwise controlling in all cases or in specified classes of cases the export of goods. The power conferred is very wide and it is not possible to hold that canalizing exports through special or specialized agencies or channels is not comprehended by the said words. Canalizing exports through specialized agencies or channels is one way of controlling export. It is contended that the incidence of the section is only at the point of exportation and that the said section does not authorize the conferment of a power to regulate internal trade with a view to control exports. This is putting a very narrow construction on the wording of section 3 of the Act. It is true that the Cent ral Government cannot interfere with internal trade under the colour of regulating export, but the power to prohibit, restrict or control exports of goods carries with it, by implication, the power to do all things intimately connected with the regulation of export trade. If the power was confined only to the export point, it would defeat the purpose of the Act. The main object of regulating export trade in to assist the national economy. This 100 object can be achieved only by devising ways and means to promote export and to secure favourable balance of trade. A machinery will have to be evolved to select the goods which the country can spare or may prefer to exchange for more essential foreign goods, to find suitable foreign markets for them and, to take necessary steps to establish a reputation for Indian goods by securing qualitative standards, prompt deliveries and honest dealings, and to prevent avoidable hardships by allotting quotas to businessmen or equitable principles, to fix reasonable rates for their goods and to discharge similar other duties. This cannot be achieved if the control of the Central Government is confined only to the exportation point. The regulation of the export trade may have to commence even at an earlier stage ; in extreme cases even at the stage of production. It is question of fact in each case,whether the control exercised by the Central Government is only to regulate export trade or is a colourable exercise of controlling the internal trade under the guise of regulating export trade. I therefore, hold that the power conferred under a. 3 of the Act cannot be conferred on the authorities concerned under ol. 6(h) of the Order to canalize exports through special or specialized agencies or channels is well within the scope of the power conferred on the Central Government. In this context another arguments of learned counsel for the appellant may conveniently be dispose of. It is said that the special or specialized agencies or channels mean export agencies or channels. The dictionary meaning of the word "special" is "for a particular purpose" and "specialise" is "set apart for a particular purpose. " The said words do not necessarily convey the idea that the agency created for a special purpose should be experts in the line with certain qualifications. While the Government may be expected to select 101 suitable agency well versed in export trade of particular commodities for achieving maximum results, the wording of the clause does not impose any such qualifications. In this view, it is not necessary to express my opinion on the question whether the State 'trading Corporation is in a better position or is a more qualified one than the experienced exporters in the line of export of manganese ore, for the selection of the agency is within the exclusive province of the Government. Even so, it is contended that the scheme, as progressively unfurled by the Government in the shape of policy statements, infringes the fundamental right of the appellant and persons similarly situated under article 10(1)(g) of the Constitution. To apppreciate this argument it is necessary to notice briefly the various policy statements issued by the Central Government to ascertain the impact of the said statements on the business of the appellant. The first statement is found in the Press Note dated June 26, 1956, issued by the Ministry of Commerce and Industry, New Delhi. Before the issue of the Press Note the miners who produced manganese ore could enter into contracts with foreign buyers and export their goods subject to the export control rules. By this Press Note the Government introduced a change in its policy. The following reason are given for changing ' the policy : (1) The existing trading mechanism is quite inadequate to cope with the developments that took place in certain countries in the matter of purchase of ores, and their effect on Indian foreign trade. (2) The pre occupation of Control authorities with the equitable distribution of available wagon space amongst mining and trading interests has made it virtually impossible for the limited resources to be used to the maximum advantage or for economical arrangements to be made for the transportation of ores and for their 102 handling at the ports. (3) The trading interests entered into large contracts and some of them were not able to fulfil them. (4) The mining industry did not have an adequate scope for development on sound lines. For the foregoing reasons, the Government propounded the following new policy : "Government have therefore come to the conclusion that it would be necessary for them to play a more positive role to overcome the obstacles in the way of augmenting foreign exchange earnings from the export of ores. It has Accordingly been decided that Government should help in reorientating the trading in ores on more rational lines and with this object in view they propose to canalise the export of ores in a progressively increasing measure through the State Trading Corporation and will, in fulfilling its responsibility, rely mainly on the mining interests in the country and use the existing trading mechanism to the extent practicable. At the same time, limited opportunities are proposed to be provided to mining and trading interests for direct participation in the export trade within the limits of the board policy that may be laid down by the Government of India in this behalf. " Pursuant to the said policy, the Press Note informed the trading public that it had been decided to regulate the export of iron and manganese ores during the half year July December 1956 through established shippers, mine owners and the State Trading Corporatio n and that export quotas would be granted on the following basis (i) Established Shippers will be given export quotas on the annual average of the quantities actually exported during the three calendar years, 1963, 1954 and 1955. 103 (ii) Mine owners will be given export quotas on the annual average of the quantities ' of ores on which royalty was actually paid (excluding quantities supplied for domestic consumption) during the three calender years, 1953, 1954, 1955. Mine owners whose mining leases had expired on 31st December 1955 and have not been renewed thereafter, will not be eligible. (iii) State Trading Corporation will be given quotas on an ad hoc basis. It was also stated that the quotas would be valid for rail transport facilities only on the section which bad been used by the shipper in the past and that the quota holders would not be permitted .to move on each section more than the quantity moved by them during any of the three years 1953, 1954 1955. Through the subsequent Press Notes is Issued from time to time, the policy stated in the first statement was implemented by gradually eliminating the shippers other than the State Trading Corporation. The High Court has considered all the subsequent Press Notes in detail and has accurately and succinctly summarized the various steps taken by the Government to achieve its object. In the circumstances, it would be unnecessary to consider them again in detail. The High Court narrated the said steps as follows (1) To begin with, the Manganese trade was controlled by a system of licensing of Export Quotas. (2) Press Notes dated July 14, 1956, July 30, 1956, August 6, 1956, September 4, 1956, and June 1, 1957 show that the quotas granted to shippers and mineowners were with one exception progressively reduced for each successive period. 104 (3) Until the fifth statement dated Sep tember 4, 1956 was made, the case of mine owners who had no previous shipment of their credit was not within the contemplation of Government policy. In that statement Go vernment announced that it was considering their case but at no later stage does it appea r that their case was specifically provided for until the State Trading Corporation took over. (4) During the period covered by the 7th statement, the State Trading Corporation was introduced into the picture and freely competed with private interests. During this period small quota holders were advised to form co operatives or companies and were discouraged. (5) Form the date of the 8th statement, viz., March 12, 1959, it is clear that the full freedom of private trading as before was virtually stopped because all orders were to be canalized" through the State Trading Cor poration. The terms and conditions on which "canalization" could take place were onerous and difficult of fulfilment by individual small interests. The State Trading Corporation itself laid down certain terms. (6) There were no restrictions on the activities of the State Trading Corporation and its quota was unlimited. (7) The policy was put into effect with the aid of the licensing authorities appointed under the Imports and Exports (Control) Act and Order; that port authorities and by controlling the allocation of railway wagons. It is clear from the aforesaid summary of the various notifications that the policy deeded in 105 the first statement was gradually implemented first by confining the issue of quotas and licences only to recognized exporters and the State Trading Corporation, and later on virtually conferring a monopoly on the Sate Trading Corporation. it, would also be noticed that though the Government stated in the earlier Press Notes that it was considering the case of mine owners who had no previous shipment to their credit, during the prescribed period no attempt was made to provide for them. The result was that mine owners, who had no previous shipment to their credit, like the petitioner, could not move manganese ore outside their mines for ,export, for they could not sell except to the established shippers and the State Trading Corporation till March 12, 1959, and thereafter only to the said Corporation. In the anxiety of the Government to push up export trade in manganese ores persons who were not in the field of export trade during the prescribed period were totally ignored, with the result that their industry and ,business were crippled. Learned counsel for the respondents contends that the appellant filed the application for licence on December 11, 1958, for the grant of export not only to the State Trading Corporation but also to other established shippers, mineowners and exporters, and that, therefore, the appellant could not have much difficulty in selling the manganese produced by him either to the one or to the other. Apart from the validity of this argument, which we will immediately consider, it is not clear from the petition that the export licence asked for was for a period before the issue of the 8th statement dated March 12, 1959. The previous period would expire on June 1, 1959, and the 8th statement issued on March 12, 1959, provided for the period between July 1959 and 1960, during which period the State Trading Corporation had 'obtained a virtual monopoly in export trade in manganese. It was more likely 106 that the licence and the quota asked for related to the year 1959 60. This should also be clear from the fact that the application was disposed of by the first respondent only by his order dated December 17, 1958. Be it as it may, I shall consider the argument alternatively. The argument based upon the alleged existence of a free market wherein the petitioner could sell his manganese ore to recognized exporters is not only unrealistic but also unfair to the petitioner. What was the market wherein the petitioner could sell his manganese ore for reasonable prices? Admittedly he could not sell in the internal market, for there was practically no such market. None of the reco gnized exporters, either the established shippers or the State Trading Corporation, was bound to purchase any quota from the petitioner or the miners in the position of the petitioner. The recognized exporters were in a position to dictate terms and even to ignore some of the mine owners. In short, an artificial market was created for the mine owners like the appellant wherein they could sell the manganese ore only to established shippers, if they wanted the ore and for a price dictated by them. The so called market was further circumscribed and limited to one purchaser, namely, the State Trading Corporation, after March 1959. The appellant complains that he could not sell his manganese more because of the said restrictions on sale and export. In his petition, the appellant alleged thus "The State Trading Corporation, under the colour of impugned Notices, has been dictating its own price and has been thus in effect demanding every exorpitant commission for the purpose of giving facilities of exporting the petitioner 's ore out of the unlimited quota allowed to it. The respondent No. 1 is thus bent on putting the 107 petitioner in heavy losses by forcing him to sell his ore to the Corporation at lesser price. The petitioner has now at hand 200 tons of manganese ore living at his mines or sidings and valued at about Rs.20,0001/ which is just being wasted as will be clear from the circular dated 20 4 1957 issued by the Cor poration to the various mine owners. If the petitioner is not allowed to export his ore he would be stock piling about 50 tons of ore, per month valued at Us. 10,000/without any outlet or rolling of the capital which he has already invested as also the running cost including the wage bill of about Rs.4000/ per month. If on the other hand the petitioner has to close his mines for want of sale of the ore he will have to pay a compensation running into several thousands of rupees to the workmen under the Industrial laws. Besides, he may be threatened under the Mineral Concession Rules, 1949 for cancellation of his lease for having a stopped working of his areas. The petitioner therefore submits that an impossible situation has been created by the respondent No. 1 by issue of various Notices referred to above. " These facts are not denied. Can this result, which practically destroyed the trade of the petitioner, be described as a reasonable restriction on his fundamental right ? 'Under the colour of canalising exports through specialized agencies or channels, the Government conferred virtually a monopoly on a public corporation, crippling in the process the business of mine owners like the petitioner. Such an unjust position cannot be brushed aside on a simple allegation that they can export through the Corporation. There may be some justification for this, if the Corporation, after March 1959, and, before that, the established exporters were bound 108 to some quota from the mine owners like the appellant. The livelihood of a person cannot be made to depend upon the passing moods of an officer of a State corporation, however well intentioned he may be in the discharge of his duties. The scheme of channelling of exports through an agency or agencies could certainly be dovetailed with that of equitable apportionment of quotas amongst persons producing or doing business in manganese ore without any detriment to the object of promoting export trade Any scheme of can alization of exports through specialized agencies must be governed by definite rules whereunder provision is made giving stability and guarantee of fair treatment in ordinary times as well as in times of emergency. For instance appropriate rules could be framed fixing quotas for each mine owner the expected total quantity of export, having regard to the quality and the quantity of manganese produced. It may also be necessary to appoint an expert body under the said rules not only to advise the State in fixing the quota but also for fixing reasonable prices, having regard to the relevant circumstances. Perhaps, many other methods may be evolved to achieve the said result. It is for the Government and the experts to do so. But what I emphasize is that, matters shall not be kept,, in a vague uncertainty in the minds of, persons affected by the said scheme, but the Government should evolve definite principles by making rules, of course providing for emergencies and change of circumstances. I should not be understood to have tied down the hands of the Central Government by the said observations, for it is left to it to make appropriate rules in the light of the said observations. At this stage, another contention of learned counsel for the appellant may be noticed. He argues that, unless a law is made by the State for carrying on the business by a corporation, owned 109 or controlled by the State, to the exclusion, complete or partial of citizens, a virtual monopoly brought about by administrative action under the colour of a power to canalize the trade in a particular commodity through specified channels must necessarily be an unreasonable res triotion on the right of a citizen to carry on his business in that commodity. In support of this contention reliance is placed upon article 19(6) of the Constitution, as amended by the Constitution (First ' Amendment) Act, 1951, the material part of which reads: "Nothing in sub clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub clause, and, in particular, nothing in the said sub clause, shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to, (i). . . . . . . . (ii) the carrying on by the State, or by a corporation, owned or controlled by the State, of any trade, business ' industry or service. whether to the exclusion, complete or partial, of citizens or otherwise. " The amended article does not propric vigore confer any power on the State to create monopolies by administrative action. But, it is only says that if a valid law is made conferring a power on the State to carry on trade or business to the exclusion, complete or partial, of citizens, such a law will not infringe the fundamental right guaranteed under 110 article 19 (1)(g) of the Constitution. It does not also say, as learned counsel for the appellant argues, that unless such a law is made, every interference by the State with the trade of a citizen in exercise of a power under some other law would necessarily be an unreasonable restriction: such an interference will not have the protection of the amended provision of the Constitution, but must be judged by the standard provided by the first part of article 19(6); it would be valid, if it was a reasonable restriction on the exercise of the petitioner 's fundamental right made in the interest of the general public. The decision of this Court in Saghir Ahmad vs The State U. P. (1) does not really help the appellant. there, this Court was considering the question whether the U. P. Road Transport Act (11 of 1951) violated the fundamental rights of private citizens guaranteed under article 19 (1)(g) of the Constitution, and was protected by cl. (6) of article 19. The question fell to be considered on the basis of the article,, as it stood before it was amended by the Constitution (First Amendment) Act, 1951. This Court held that it did offend the fundamental right. In that context, this Court made the following observations: It is quite true that if the present statute was passed after the coming into force of the new clause in article 19(6) of the Constitution, the question of reasonableness would not have arisen at all and the appellant 's case on this point, at any rate, would have been unarguable. These are however considerations which cannot affect our decision in the present case, the amendment of the Constitution, which come later, cannot be invoked to validate an earlier legislation which must be regarded as unconstitutional when it was passed." (1) ; , 727. 111 I do not see how these observations help the appellant. They only state the obvious, namely, that if there was a law within the meaning of the amended article, no question of infringing the fundamental right would arise. There is no force in this argument. This question anyhow does not affect my decision, as I have come to the conclusion that the Press Notes issued by the Government clearly infringed the fundamental right of the petitioner. But, in view of the fact that the period for which licence was asked had run out, the application in respect thereof has become infructuous and, therefore has to be dismissed. In the result, the appeal is dismissed, but, in the circumstances of this case, without costs.

IN-Abs

There was little internal demand for manganese ore and ' it was extracted mainly for exporting out of India. Though previously there was no restriction on the grant of export licences from 1956, the Central Government started controlling and restricting the export of manganese ore ' On May 26, 1958, the Central Government issued a notification which contained the policy statement for the period July 1938 to June 1959 under which export quotas were to be granted only to established shippers and mineowners who had exported from 1953 onwards and to the State Trading Corporation. Mine owners, like the ' appellant who did not have an) export performance in the earlier ),cars were excluded from the scheme. They could sell their ore only to the established shippers are to the Corporation which they could do only. at unremunerative prices. By subsequent policy statements the export was canalised entirely through the Corporation. Section 3 of the Imports and exports (Control) Act, 1947 empowered the Central Government to make orders restricting or controlling the imports and exports of goods. The Central Government made the Exports Control Order, 1958, cl. 6(h) of which empowered the Central Government and the licensing authority to refuse to grant a licence "if the licensing authority decides to canalise exports through special or specialized agencies or channels". The Notification of May 26, 1950, was issued under cl. 6(h). The appellants contended: (I) that the withholding of the right to engage in the export trade from a class of mineowners constituted an unreasonable restriction on their fundamental right guaranteed under Art, 19(1)(g), (II) that cl. 6 (h) of the order was ultra vires the Central Government as section 3 of the Act 74 permitted it to place restrictions only on goods and not on the persons who might participate in the export, and (iii) that the notification by which canalisation of exports was affected was outside the contemplation of" agency and channel under 1. 6 (h). Held (per Sinha, C.J., Ayyangar, Mudholkar and Aiyar, that the restrictions and control imposed on the export of manganese ore by the Central Government were legal and did not offend article 19(1) (g). The restriction or control in the form of channelling or canalising the trade was not outside the limitations which night be imposed on export trading by section 3 of the Act and consequently cl. 6 (h) of the Order permitting canalisation of exports was within the rule making power of the Central Government. The power to impose restrictions was not confined to goods but extended to persons also. The canalising of the exports through the established shippers and mineowners was unobjectionable; canalising through the State adding Corporation and the progressive increase through he corporation was a reasonable restriction in the interests of he general public. The object of these restrictions and control was to enable a regular supply of uniform quality of he ore to the foreign buyers so as to ensure the optimum earning of foreign exchange by the country, and this could rest be attained with the Corporation as the main agency engaged in the trade. The State Trading ' Corporation was a "special" agency or channel as contemplated by cl. (h) and the canalising could be done through it. A special agency is one which is more likely to achieve the object than other gencies or to achieve it in a larger 'measure than others. Canalising necessarily implied the exclusio n of some groups, and if the canalising was valid the appellant could not complain that he had been excluded from the export trade. Per Subba Rao, J. The Notifications and policy statements which destroyed the trade of mine owners like the appellant did not impose reasonable restrictions on their fundamental rights and violated article 19 (1) (g). The creation of a monopoly or near monopoly for the export of manganese ore in favour of the State Trading Corporation could only be achieved by a law made in conformity with article 19 (6) (ii) and not by administrative action like issuing of notifications and policy statement. The power conferred on the authorities under cl. 6 (h) of the Order to canalise exports through special or specialized agencies or channels was well within the power conferred on the Central Govern ment by section 3 of the Act. Further, the State Trading Corpo ration was a "special" agency within the meaning of cl. 6(h). 75 But the canalising had to be done in such manner that all persons engaged in the trade could participate in the export of the ore and no one was completely excluded.

minal Appeal No. 242 of 1960. Appeal by special leave from the judgment and order dated June 2, 1958, of the Patna High Court in Cr. 124/58. section P. Verma for the appellant. section R. Chari, D. P. Singh, B. K. Garg, S.C. Agarwal, and M. K. Ramanurthi, for the respondent. April 17. The Judgment of the Court was delivered by KAPUR, J. The State of Bihar has brought this appeal against the judgment and order of the High Court of Patna and it arises out of proceedings under article 226 of the Constitution and section 491 of the Criminal Procedure Code for a writ of habeas corpus in the matter of detention of one Bipat Gope. The present respondent was the petitioner in the High Court. Bipat Gope, a resident of the district of Patna, was convicted under s 323 & section 324 read with section 511 of the Indian, Penal Code and sentenced on November 29, 1957, to six months ' rigorous imprisonment by the High Court on appeal against acquittal under section 417 of the Code of Criminal Procedure but he was not taken into custody till January 6, 1958 and even then he was kept under armed guard in the Patna Medical College Hospital in one of the paying wards, on the ground that he was seriously ill. On an application by the respondent and on the recommendation of the appropriate medical authority Bipat Gope was released by the District Magistrate on March 11, 1958 under the rules of the Jail Manual when his unexpired period of imprisonment was four months and three days. The contention of the appellant State is that he was 185 released under R. 549 which is the rule providing for conditional release of prisoners but the respondent challenges the factum of release under this Rule. The sureties for Bipat Gope were called upon to produce him but as they had failed to do so notices were issued to them by an order dated April 27, 1958, to show cause why their surety bonds should not be forfeited. By the same order nonbailable warrant for arrest was ordered to be issued. On April 29, 1958, Bipat Gope moved a petition under article 226 against the order of the District Magistrate and the High Court directed on May 1, 1958, that Bipat Gope should appear on Monday following which was May 5, 1958, when the petition was to be taken up for preliminary hearing. On May 1, 1958, Bipat Gope appeared in the Court of the District Magistrate, Patna and made an application stating that he had filed the above mentioned petition in the High Court and that he had to appear there on Monday and he prayed that he be allowed an opportunity to present his case to the High Court and to avoid. his maltreatment at the hands of the police of which he was apprehensive. There is no order on the record showing what the District Magistrate did but from the respondent 's petition in the High Court it appears that the application before District Magistrate was taken up by the Senior Deputy Collector Patna, who ordered Bipat Gope to be taken into custody and sent him to jail. The earlier petition of Bipat Gope filed in the High Court was withdrawn on May 2, 1958. The High Court heard the petition filed by the respondent on May 5, 1958, and after some amendments were made the petition was allowed and Bipat Gope was ordered to be released from custody. The High Court held that the order of release by the District Magistrate of Patna above referred to was an order for, his unconditional release and therefore he could not be rearrested. It 186 is against that order that the State has come to this Court by special leave, its application under article 134 (1)(c) having been dismissed by the High Court. On the petition under Art,. 226 filed by the respondent, the High Court issued a, rule calling upon the appellant State to show cause why a writ of habeas corpus should not issue. It is unfortunate that no return was filed by the State and it is not clear from the record as to how exactly or under what authority Bipat Gope was taken into custody and under what authority the jailor was detaining him in jail. The order of the District Magistrate shows that a non bailable warrant was ordered to be issued, The petition of the respondent shows that Bipat Gope was arrested under the order of the Senior Deputy Collector ; what authority the Senior Deputy Collector had of ordering Bipat Gope 's rearrest is not clear from this record. The High Court has stated that Bipat Gope surrendered on May 1, 1958, to whom he surrendered is not clear. It is also stated in the petition that non bailable warrant of arrest was ordered to be 'withdrawn and the record was sent to the District Magistrate for confirmation who withdrew the non bailable warrant ordered to be issued. When the record was sent to the District Magistrate for confirmation and that was done by the District Magistrate thereafter is also not shown. In the absence of a properly drawn up return accompanied by proper documents it is not possible to find out what exactly happened in regard to the rearrest of Bipat Gope and it is for that reason that the filing of a proper return is necessary and is insisted upon in most jurisdictions. It was argued on behalf of the appellant that the release of Bipat Gope was under R. 549 of the Jail Manual Rules which are issued under the Prisons Act and that releases thereunder are conditional. The appellant was anxious to get the 187 opinion of this Court as to the true meaning and extent of Rule 549 under which, according to the appellant, Bipat Gope was released. On this record it is not clear as to the rule under which he was released. It appears from the petition of the respondent under article 226 that the respondent made an application for the release of Bipat Gope on the ground that he was seriously ill. There are, on the record certificates by Dr. V. N. Sinha, F. R. C, section, Professor of Clinical Surgery at the Patna Medical College stating the disease Bipat Gope was suffering from and that he was riot improving under the treatment he was being given. It was also stated therein that he would improve if he was released This was on February 21, 1958. The Civil Surgeon of Patna on March, 1, 1958, again enquired from Dr. V. N. Sinha if the prisoner (Bipat Gope) was in danger of death from illness. Upon this on March 3, "The complications of the disease i. e. of ventral hernia, peotic under and strees and strain syndrome sometime prove fatal". and on March 5, 1958, it was stated that he was in danger of death but was likely to improve if released. The superintendent of District Jail, Patna, sent a letter to the District Magistrate giving all these various particulars. Upon that a note was made by Judicial Peshkar in which he stated: In this connection Jail Manual Rule 548(1) and (2) and (3) and Rule 549 may be seen. The District Magistrate has power to pass order for the release of the prisoner, if the petitioner 's sentence does not exceed six months under the above Rules. From the sentence sheet of release from the Jail autho rity it appears that the prisoner has only 4 (four) months and 3 (three) days unexpired period of sentence. These rules may kindly be seen and necessary orders passed". 188 The order of the District Magistrate was ' ,Allowed release in the circumstances. It is not clear from this as to the Rule ' under which Bipat Gope was released. It was contended on behalf of the appellant that the release must have been under R. 549 and not under any other, Rule and in support reliance is placed on the release order of Bipat Gope which is in Form No. 105. That Form mentions Rules 548, 549 and 552 and the Rule which was not appropriate had to be scored out but none of these Rules was scored out. But at the bottom of the Form there is a declaration of two persons who started that they are willing to take. charge of Bipat Gope and bound themselves to surrender him at any time before the date of his expiry i. e. July 9, 1958 if required to do so. Here it may be stated that the support of the relevant Rules is set out in ' Form 105 as follows: "(i) Rule 549 There is no hope of his recovery either in or out of Jail; I consider it desirable that he be allowed the comfort of dying at home. (ii) Rule 549 The prisoner is in danger of death from illness and there is probability of his recovery if he is released". On the basis of the order of the District Magistrate which is referred to above dated March 7,1958 and Form 105. it was submitted that the release must have been under R. 549. The orders on the record do not make that clear. Neither the order of the District Magistrate nor the Form 105 shows that Bipat Gope was released under R. 549 and not under any other Rule. The State has not cared to make it clear in any return made on an affidavit filed as to the Rule under which Bipat Gope was released and then it is not shown as to what lawful authority there was for his rearrest. 189 In this connection the observations of Lord Atkin in Eshugbayi Eleko vs The Officer Administering The Government of Nigeria (1) are appropriate and applicable: "In accordance with Britain jurisprudence no member of.the executive can interfere with the liberty or property of a British subject except on the condition that he can support the legality of his action before a Court of justice. And it is the tradition of British justice that Judges should not shrink from deciding such issues in the face of the execu tive". It is the same jurisprudence which has been adopted in this country on the basis of which the courts of this country exercise jurisdiction. It has not been shown in this case that there was any lawful authority under which Bipat Gope was rearrested and in the absence of such lawful authority Bipat Gope 's detention cannot be supported and is illegal. In the ' circumstances the remedy under article 226 is rightly applicable to the facts of this case. We therefore dismiss this, appeal. Appeal dismissed. (1) ; 670.

IN-Abs

Bipat Gope was convicted under sections 323 and 324 read with section 511 of the Indian Penal Code and sentenced to six months rigorous imprisonment by the High Court on appeal against acquittal, but, was not taken into custody and on the ground of serious illness was kept in the Hospital under Armed Guards. On application moved by the respondent and on recommendation of the medical authority he was released by the District Magistrate under the jail Manual Rules. The Appellant contended that his release was conditional under r. 549 of the jail Manual Rules, which was challenged by the respondent. A nonbailable warrant for arrest was issued against him upon which he moved the High Court under article 226 of the constitution and was directed to appear at the preliminary hearing. He presented an application before the District Magistrate praying for his appearance and an oppor tunity to present his case before the High Court. The District Magistrate passed no order but from the respondent 's petition in the High Court, it appeared that Senior Deputy Collector, Patna, ordered his arrest and sent him to jail and his petition in the High Court was withdrawn. The High Court allowed the respondent 's petition and ordered his release from custody. The High Court held, that the order of release passed by the District Magistrate was an unconditional release and therefore, he could not be rearrested. Against that order, State came in appeal by special leave. The appellant contended that the release must have been under Rule 549 of the jail Manual Rules and not under any other rule. Held, that the State did not make it clear under which rule he was released and under what lawful authority he was rearrested and thus in absence of such lawful authority, the detention was illegal and the appeal must fail. Eshugbayi Eleko vs Officer Administering the Government of Nigeria and Anr. , ; , applied.

Criminal Appeal No. 125 of 1961. Appeal by special leave from the judgment and order dated January 20, 1961 of the Patna High Court in Criminal Revision No. 1274 of 1960. A.S.R. Chari, M.K. Ramamurthi, R.K. Garg, S.C. Agarwala and D.P. Singh, for the appellant. D.Goburdhan, for the respondent. April 4. The judgment of Subba Rao and Mudholkar J. was delivercd by Mudholkar J. Dayal J. delivered a separate judgment. MUDHOLEAR J. In this appeal by special leave from the judgment of the ]Patna High Court affirming the conviction of the appellant under section 47 (a) of the Excise Act and the sentences of rigorous imprisonment for one year and of fine amounting to Rs. 2,000 awarded by the Judicial Magistrate First Class, Patna, the substantial question which falls for decision is whether a confession made by the appellant and recorded by the Excise Inspector who was investigating the case is inadmissible by reason of the provisions of section 25 of the . It is not disputed before us by Mr. Chari that on August 3, 1957, a motor car bearing No. WBC 562 757 was stopped by the Excise Inspector, R.R.P. Sinha (P.W.1) on the Bayley Road, near the New Secretariat, Patna, at 10.00 p.m. The car belongs to the appellant 's brother Radhey Shyam; but he was not at that moment in the car. The car was then being driven by Jagdish Sah and the appellant was sitting by his side. Four other persons were sitting on the back seat. The Excise Inspector searched the car in the presence of three witnesses Debendra Prasad Singh (P.W. 2), Paresh Nath Prasad Singh (P.W. 3) and Rabindra Prasad Singh (P.W. 4) and recovered from the car five bundles of non duty paid Nepali Ganja. According to the prosecution four of them were recovered from the luggage boot of the. car while one was recovered from the leg space in front of the front seat of the car. According to the appellant, however, no ganja was carried in the car and therefore, none was seized from the car; Further, according to the prosecution, the appellant produced the keys with which the luggage boot was opened. The Excise Inspector made a seizure memo exhibit 2 and recorded the statements of all the persons who were in the car, including the appellant. Exhibit 3 is the statement of the appellant. After the investigation was completed all the persons who were in the car at that time including the appellant and Radhey Shyam, the brother of the appellant, were put up for trial before the Judicial Magistrate. He convicted all of them but in appeal the Sessions judge, Patna, acquitted all except the appellant. It is, therefore, not necessary to refer to the defence taken by the acquitted persons. The appellant 's defence was that he was not traveling in the car at the relevant moment and that he was at that time in the house of Kanhai Singh (D. W. 1) which is situate in Subjibagh Mohalla of Patna where he was arrested by the Excise Inspector at 6.00 on the morning of August 4. His defence 758 further is that after his arrest R. R. P. Sinha, P. W. I and other officers of the Excise Department took him in a jeep, subjected him to threats and abuses, assaulted him and eventually took his signature on a blank paper. Thus his defence is that he was falsely implicated by the Excise Inspector. In view, however, of the fact that all the courts have accepted the evidence of the prosecution witnesses which establishes the fact that the appellant was actually in the car when it was stopped by the Excise Inspector, Mr. Chari has rightly not challenged that finding. He has also not contended that the appellant 's signature was taken on a blank paper by the Excise Officers. The argument he advanced, however, is that there is no legally admissible evidence on the basis of which the appellant 's conviction can be sustained. The confessional statement ]exhibit 3 upon which reliance has been placed by the High Court as supporting the evidence of P. W. 2 Debendra Prasad Singh, P. W. 3 Paresh Nath Prasad Singh and P. W. 4 Rabindra Prasad Singh is attacked as being inadmissible in evidence and it is said that if this statement is put aside the evidence of the three prosecution witnesses on whom reliance has been placed by the High Court is insufficient in law to sustain the conviction of the appellant under section 47 (a) of the Excise Act. The relevant portion of section 47 runs thus : "Penalty for unlawful import, export, trans port, manufacture, possession, sale, etc. If any person, in contravention of this Act, or of any rule, notification or order made, issued 'or given, or license, permit or pass granted, under this Act. , (a) imports, exports, transports, manufactures, possesses or sells any intoxicant ; or. . he shall be liable to imprisonment for a term which may extend to one year or to 759 fine which may extend to two thousand rupees, or to both. " The evidence of P. Ws. 2, 3 and 4 taken along with the evidence of the Excise Inspector establishes the following facts : (1) that the appellant was sitting by the side of the driver when the car was stopped by the Excise Inspector ; (2) that five bundles of non duty paid Nepali Ganja were recovered from the car (3) that four bundles were recovered from. the luggage boot of the car and one from the leg space in front of the front seat ; (4) that a bunch of keys marked exhibit 2 series was recovered from the pocket of the appellant and another bunch of keys marked exhibit I series was recovered from the possession of 'the driver Jagdish Sah (5) that every key of exhibit I series could open the lock of the luggage boot and two keys of exhibit 2 series could also open the lock. In order to establish this, the prosecution has relied on the seizure memo exhibit F and the evidence of the Excise Inspector and P. W. 2 Debendra Prasad Singh. P. W. 3 Paresh Nath Prasad Singh and P. W. 4 Rabindra Prasad Singh. A perusal of exhibit F would, however, show that material Alterations and erasures appear to have been made in that document by reason of which no reliance can be placed upon it. The High Court has wholly ignored this Pact and we are, therefore, entitled to take it into consideration. It would appear that originally it was 760 shown in col. 5 and 6 taken together that a bundle containing 35 seers of ganja was found in the leg space in front of the rear seat but what was written originally in col. 6 has been over written by inserting words describing meaningless facts on top of the words originally written and in continuation of them. In Col. 5 the weight of the bundle is given as 35 seers and below it weights of four other bundles are mentioned. They are 35 seers, 26 seers, 18 seers and 6 seers. The weight of the first bundle was excluded from the bracket in which the weights of the first three bundles were included. Then by introducing another bracket, the first bundle was included within it. Against the bracket it is stated in col. 6 that the bundles were found in the luggage boot. The bundle weighing 6 seers is not included in the bracket. Against it,there was some other remark in col. 6 which has been clumsily erased and in its place it isstated "In the leg space in front of front seat. " Again, in col. 8 wherever the appellant 's name appears there appears to have been something else originally which was erased and his name written there subsequently. A bare look at the document shows that it has been materially altered and is, therefore, not a kind of material on which reliance can be placed. It is only with the aid of the confession that it can be accepted as incriminating the appellant. For, even the direct evidence of witnesses was not regarded by the High Court as worthy of credence, unaided by the confession. It is indeed the prosecution case that one bundle of ganja was found in the leg space in front of the front seat. Bearing in mind the fact that there were six persons in the car at the time and that the luggage boot in which the bundles were kept could be opened not merely with the keys which were recovered from the appellant but also with the keys which were recovered from the driver it is not possible to say, 761 though the driver has been acquitted, that the appellant was in exclusive possession of the ganja which was found in the car except with the aid of the confessional statement, exhibit 3. It follows, therefore, that the appellant 's conviction could be maintained only if, we hold that the confessional statement is admissible in evidence. Mr. Chari besides objecting to the admissibility of the confessional statement relying on section 25 of the Evidence Act also contends that statement is rendered inadmissible by the provisions of section 162, Code of Criminal Procedure inasmuch as it was recorded by R. R. P. Sinha, Inspector of Excise while .he was investigating into an excise offence. under Ch. XIV of the Code of Criminal Procedure. Section 25 of the Evidence Act reads thus: "No confession made to a police officer shall be proved as against a person accused of any offence. " Undoubtedly the Inspector R. R. P. Sinha is an Excise Officer and not a police officer in the sense that he does not belong to the police force or the police establishment. It has, however, been held in a large number of cases, including the one decided by this court, The State of Punjab vs Barkat Ram (1), that the words "Police ' Officer" to be found in section 25 of the Evidence Act are not to be construed in a narrow way but have to be construed in a wide and popular sense. Those words, according to this Court, are however not to be construed in so wide a sense as to include persons on whom only some of the powers exercised by the police are conferred. This Court was there concerned with the question whether a Customs Officer can be regarded as a Police Officer and consequently whether a confession made to such an officer is hit by the provisions of section 25 of the Evidence Act. In the (1) ; 762 majority judgment Raghubar Dayal J., has observed : "The Customs Officer, therefore, is not primarily concerned with the detection and punishment of crime committed by a person, but is mainly interested in the detection and prevention of smuggling of goods and safe guarding the recovery of customs duties. He is more concerned with the goods and customs duty, than with the offender." (p. 279). After pointing out that Customs Officers, when they act under the Sea Customs Act for the prevention of smuggling of goods, also act judicially inasmuch as they are entitled to confiscate the goods and levy penalties on the person found smuggling, he said that the mere fact that similar powers in regard to detection of infractions of Customs laws have been conferred on Officers of the Customs Department as are conferred on Officers of the Police is not sufficient for holding them to be police officers within the meaning of section 25 of the Evidence Act because the powers of search etc., conferred on the former are of a limited character and have a limited object of safeguarding the revenues of the State. The majority, however expressed no opinion on the question whether officers of departments other than the police on whom the powers of an officer incharge of a police station under ch. 14 of the Code of Criminal Procedure are conferred are police officers or not for the purpose of section 25 of the Evidence Act. The question whether an Excise Officer is a Police Officer was thus left open by them. It is precisely this question which falls for consideration in the present appeal. For, under s.78(3) of the Bihar and Orissa Excise Act, 1915 (2 of 1915) an Excise Officer empowered under s, 77, sub section (2) of that Act shall, for the purpose of 763 s.156 of the Code of Criminal Procedure be deemed to be an officer in charge of a police station with respect to the area to which his appointment as an Excise Officer extends. Sub section (1) of section 77 empowers the Collector of Excise to investigate without the order of a Magistrate any offence punishable under the Excise Act committed within the limits of his jurisdiction. Sub section (2) of that section provides that any other Excise Officer specially empowered in this behalf by the State Government I in respect of all or any specified class of offenses punishable under the Excise Act may, without the order of a Magistrate, investigate any such offence which a court having jurisdiction within the local area to which such officer is appointed would have power to inquire into or try under the aforesaid provisions. By virtue of these provisions the Lieutenant Governor of Bihar and Orissa by Notification No. 470 F dated January 15, 1919 has specially empowered Ins pectors of Excise and Sub Inspectors of Excise to investigate any offence punishable under the Act. It is not disputed before us that this notification is still in force. By virtue of the provisions of section 92 of the Act it shall have effect as if enacted in the Act. It would thus follow that an Excise Inspector or SubInspector in the State of Bihar shall be deemed to be an officer in charge of a police station with respect to the area to which he is appointed and is in that capacity entitled to investigate any offence under the Excise Act within that area without the order of a Magistrate. Thus he can exercise all the powers which an officer in charge of a police station can exercise under Ch. XIV 'of the Code of Criminal Procedure, He can investigate into offenses, record statements of the persons questioned by him, make searches, seize any articles connected with an offence under the Excise Act, arrest an accused person, grant him bail, send him up for trial before a Magistrate, file a charge sheet and so on. Thus his position in so far as offenses under the Excise Act 764 committed within the area to which his appointment extends are concerned is no different from that of an officer in charge of a police station. As regards these offenses not only is he charged with the duty of preventing their commission but also with their detection and is for these purposes empowered to act in all respects as an officer in charge of a police station. No doubt unlike an officer in charge of a police station he is not charged with the duty of the maintenance of law and order nor can he exercise the powers of such officer with respect to offenses under the general law or under any other special laws. But all the same, in so far as offenses under the Excise Act are concerned, there is no distinction whatsoever in the nature of the powers he exercises and those which a police officer exercises in relation to offenses which it is his duty to prevent and bring to light. It would be logical, therefore, to hold that a confession recorded by him during an investigation into an excise offence cannot reasonably be regarded as anything different from a confession to a police officer. For, in conducting the investigation he exercises the powers of a police officer and the act itself deems him to be a police officer, even though he does not belong to the police force constituted under the Police Act. It has been held by this court that the expression " 'Police Officer" in section 25 of the Evidence Act is not confined to persons who are members of the regularly constituted police force. The position of an Excise Officer empowered under section 77(2) of the Bihar and Orissa Excise Act is not analogous to that of a Customs Officer for two reasons. One is that the Excise Officer does not exercise any judicial powers just as the Customs Officer does under the . Secondly, the Customs Officer is not deemed to be an officer in charge of a police station and therefore can exercise no powers under the Code of Criminal Procedure and certainly not those of an officer in charge of a police station. No doubt, he too has the 765 power to make a search, to seize articles suspected to have been smuggled and arrest persons suspected of having committed an offence under the . But that is all. Though he can make an enquiry, he has no power to investigate into an offence under section 156 of the Code of Criminal Procedure. Whatever powers he exercises are expressly set out in the . Though some of those set out in ch. XVII may be analogous to those of a Police Officer under the Code of Criminal Procedure they are not identical with those of a police officer and are not derived from or by reference to the Code. In regard to certain matters, he does not possess powers even analogous to those of a Police Officer. Thus he is not entitled to submit a report to a Magistrate under section 190 of the Code of Criminal Procedure with a view that cognizance of the offence be taken by the Magistrate. Section 187(A) of the specially provides that cognizance of an offence under the can be taken only upon a complaint in writing made by the Customs Officer or other officer of the customs not below the rank of an Assistant Collector of Customs authorized in this behalf by the Chief Customs Officer. It may well be that a statute confers powers and imposed duties on a public servant, some of which are analogous to those of a police officer. But by reason of the nature of other duties which he is required to perform be may be exercising various other powers also. It is argued on behalf of the State that where such is the case the mere conferral of some only of the powers of a police officer on such a person would not make him a police officer and, therefore, what must be borne in mind is the sum total of the powers which he enjoys by virtue of his office as also the dominant purpose for which he is appointed. The contention thus is that when an officer has to perform a wide range of duties and 766 exercise correspondingly a wide range of powers, the mere fact that some of the powers which the statute confers upon him are analogous to or even identical with those of a police officer would not make him a police officer and, therefore, if such an officer records a confession it would not be hit by section 25 of the Evidence Act, In our judgment what is pertinent to bear in mind for the purpose of determining as to who can be regarded a "police officer" for the purpose of this provision is not the totality of the powers which an officer enjoys but the kind of powers which the law enables him to exercise. The test for determining whether such a person is a "police officer" for the purpose of section 25 of the Evidence Act would, in our judgment, be whether the powers of a police officer which are conferred on him or which are exercisable by him because he is deemed to be an officer in charge of a police station establish a direct or substantial relationship with the prohibition enacted by section 25, that is, the recording of a confession. In our words, the test would be whether the powers are such as would tend to facilitate the obtaining by him of a confe ssion from a suspect or a delinquent. If they do, then it is unnecessary to consider the dominant purpose for which he is appointed or the question as to what other powers he enjoys. These questions may perhaps be relevant for consideration where the powers of a police officer conferred upon him are of a very limited character and are not by themselves sufficient to facilitate the obtaining by him of a confession. As an instance of a law which confers on an officer powers of a limited character which are analogous to those conferred upon police officers, we may refer to the itself. This Act confers a wide range of powers on Customs Officers. But powers analogous to those of a police officer are to be found only in ch. XVII which deals 767 with " 'procedure relating to offenses, appeals etc. " Under section 169 a Customs officer is, empowered to search on reasonable suspicion any vessel in any port in India or any person who has landed from any vessel. This power, however, is subject to the right given by section 170 to that person to require the Customs officer to take him before his search to a Magistrate or Customs Collector. Where such person exercises that right the question. as to whether he should be searched or not would depend upon the Magistrate or the Customs Collector being satisfied about the existence of reasonable grounds for the search. No such restriction is imposed upon a police officer making a search under section 102, sub section (3) of the Code. Again, whereas an officer in charge of a police station can search any place in connection with a cognizable offence under investigation after recording in writing his reasons. a Customs Officer cannot search any place on land .where a dutiable or prohibited goods or documents relating to such goods are secreted without first obtaining a search warrant from a Magistrate. Under section 173 of the Act a Customs Officer has the power to arrest a person against whom reasonable suspicion exists that he has been guilty of an offence under the Act. But he is required to produce that person forthwith before the nearest Magistrate and it will be for the Magistrate either to commit that person to jail custody or release him on bail at his discretion. An officer in charge of a police station has, however, the power, to release an arrested person on his furnishing bail and is not required for the purpose to obtain an order of a Magistrate. It is only where he does not release him on bail that he must produce him before a Magistrate within 24 hours of arrest. We may add that the existence of the power to grant bail in an officer in charge of a police station itself enables him to exercise authority over the arrested person and influence his conduct if he so wishes. Finally, a 768 Customs Officer has power to seize anything liable to confiscation under the Act. But where he has seized anything he is liable, on demand of the person in charge of the thing so seized, to give him a statement in writing of the reasons for such seizure. Similarly where he, has arrested a person, he is bound to give to that person, if that person so demands, a statement ' in writing disclosing the reasons for the arrest. No such duty is cast upon a police officer seizing an article or arresting a person. Chapter XVII deals with no other powers which could be said to be analogous to those of a police officer. The whole of that chapter shows that the other powers conferred upon a Customs Officer are such, as are necessary 'for preventing the commission of offenses under the and matters incidental thereto. It is worthy of note that the powers of investigation into offenses which a police officer enjoys are not conferred upon a Customs Officer. It is the possession of these powers which enables police officers and those who are deemed to be police officers to exercise a kind of authority over the per sons arrested which facilitate the obtaining from them statements which may be incriminating to the persons making them. The law allows the police officer to obtain such statements with a view to facilitate the investigation of the offenses. But it renders them inadmissible in evidence for the obvious reason that a suspicion about voluntariness would attach to them . It is the power of investigation which establishes a direct relationship with the prohibition enacted in section 25. Therefore, where such a power is conferred upon an officer, the mere fact that he possesses some other powers under another law would not make him any the less A police officer for the purposes of section 25. In this connection it would be pertinent to bear in mind the object with which the provisions of section 25 of the Evidence Act were enacted. For this 769 purpose we can do not better than quote the following passage from the judgment of Mahmood J. in Queen Empress vs Babulal (1). malpractices of police officers in extorting confessions from accused persons in order to gain credit by securing convictions, and that those malpractices went to the length of positive torture; nor do I doubt that the Legislature, in laying down such stringent rules, regarded the evidence of police officers as untrustworthy, and the object of the rules was to put a stop to the extortion of confession, by taking away from the police officers the advantage of proving such extorted confessions during the trial of accused persons. " This provision was thus enacted to eliminate from consideration confessions made to an officer who, by virtue of his position, could extort by force, torture or inducement a confession. An Excise Officer acting under section 78 (3) would be in the same position as Officer in charge of a police station making an investigation under Ch. XIV of the Code of Criminal Procedure. He would likewise have the same opportunity of extorting a confession from a suspect. It is, therefore, difficult to draw a rational distinction between a confession recorded by a Police Officer strictly so called and one recorded by an Excise Officer who is deemed to be a Police Officer. A large number of decisions were cited at the bar bearing on the question as to whether the expression "Police Officer" used in section 25 of the Evidence Act is restricted to the members of the force or has a wider meaning. It is unnecessary to refer to those decisions because in Barkat Ram 's case (2), it has clearly been held that the expression (1) All. 509, 523. (2) ; 770 is not to be construed in a narrow way. We may, however, refer to certain decisions ' in which the question whether an Excise Officer is a Police officer within the meaning of that section has been specifically considered. There is, however, no unanimity in those decisions. Thus in Ah Foong vs Emperor ' (1), Harbhanjan Sao vs Emperor (2), Matilall Kalwar vs Emperor (3), it was held that an Excise Officer is not a Police Officer. A contrary view was, however, taken in .Ibrahim Ahmed vs King Emperor (4). The view taken in that case was affirmed by a Full Bench in Ameen Sharif vs Emperor (5). The view taken in the Full Bench case as well as in Ibrahim Ahmed 's case (4), follows that of the Bombay High Court in Nanoo Sheikh Ahmed vs Emperor (6). A similar view was also taken in Public Prosecutor vs C. Paramasivam (7), Ibrahim vs Emperor (8). In Radha Kishun Marwari vs King Emperor (9), it was, however, held that an Excise Officer functioning under the Bihar Excise Act is not a Police Officer and that a statement made to him is not within section 25 of the Evidence Act. We need not, however, consider the last mentioned decision because there the learned judges have construed the expression "Police Officer" in section 25 of the Evidence Act to mean only an officer of the police force. That, however, is not in accord with what this Court has held in Barkat Ram 's case We will briefly examine the other decisions. In Ah Foong 's case (1), all that Sanderson C.J., who delivered the leading judgment has said was that he did not think that Excise Officers in the case before the court could be said to be Police Officers and that the statements made by the accused to them were not admissible by reason of the fact that they were made to Police Officers. There is thus no discussion of the question at all. Apart from that the offence concerned in that case was one under the Opium Actand an Excise Officer (1) Cal. 41 1.(2) Cal. (3) Cal. (5) Cal 607.(6) Bom. 78 (7) A.I.R. 1953. Mad 917.(8) A.T.R. (9) Pat 46 F.B.(10) [1962] 3 S.C. R. 338. 771 acting under that Act was not conferred with the powers of an officer in charge of a police station under Ch. XIV of the Code of Criminal Procedure. Harbhanjan Sao 's case (1), merely followed this case as also did Matilal 's case (2). Ibrahim Ahmed 's case (3), was a case which arose after the amendment of the Opium Act and it followed the view taken in Nanoo Sheikh Ahmed 's case (4). In Nanoo Sheikh Ahmed 's Case (4), a Full Bench of the Bombay High Court examined a large number of decisions commencing from The Queen vs Hurribole Chunder Ghose (5). Marten C. J. quoted with approval the following two passages from that case : "Its humane object is to prevent confessions obtained from accused persons through any undue influence, being received as evidence against them . I consider that the term "police officer ' should be read not in any strict technical sense, but according to its more comprehensive and popular meaning." (p. 215). " and I think it better in construing a section such as the 25th which was intended as a wholesome protection to the accused to construe it in its widest and most popular signification." (p. 216). The Full Bench pointed out that in Ah Foong 's case (6), there was hardly any discussion of the question and further pointed out that Excise Officers had limited power in Bengal under the Opium Act of 1878 whereas in Bombay they exercised the powers of investigation and so on. The learned Chief Justice then observed : ' in my judgment, we should hold that as the Bombay Legislature has deliberately (1) Cal 601. is) Cal 1260. (5) Cal. (2) A T.R. (4) Bom. (6) Cal. 41 1. 772 conferred upon these Abkari officers substan tially all the powers of a Police Officer, they have thereby in effect made them Police Officers within the meaning of section 25, and that, accordingly, any confession made to such an officer in the course of his investigation under the Abkari Act or the Criminal Procedure Code is inadmissible in evidence." (p. 94) According to Shah J. section 25 of the embodies an important rule, which is to be given effect to as a matter of substance and not as a mere matter of form and that it is a perfectly fair interpretation of section 25 to say that 'the Police Officer within the meaning of that section is an officer, who exercises the powers of police conferred upon him by law, whether he is called a Police Officer or he is called by any other name and exercises other functions also under other provisions of law, if for the investigation of offenses under a particular Act he is empowered to exercise the powers of an officer in charge of a police station for the investigation of a cognizable offence. Fawcett J. pointed out that since the Legislature did not amend the Act even after the decision in Hurribole 's case (1), where the expression police officer" was given a wide meaning the courts would be justified in adhering to it. Kemp J. was of the opinion that though the term "police Officer" should not be construed strictly it was not safe to lay down generally that the term should not be construed in its popular and most comprehensive sense. All the same he held that an Excise Officer acting under the Abkari Act of Bombay must be deemed to be a Police Officer inasmuch as he had the power of investigating into excise offenses, Mirza J. concurred with this view but did not state any reasons. In Ameen Sharif 's case (2) the following question was referred to a Full Bench : "Is an excise (1) Cal. (2) Cal 607. 773 officer who, in the conduct of investigation of an offence against the excise, exercises the powers conferred by the Code of Criminal Procedure upon an officer in charge of a police station for the investigation of a cogenizable offence, a police officer within the meaning of section 25 of the ?" That case arose under the Bengal Excise Act and Mukerji J. who delivered the leading judgment, after pointing out that the powers .of an Excise Officer acting under the Opium Act (I of 1878) prior to its amendment by Opium (Bengal Amendment) Act, (Bengel Act V of 1933) are not quite the same as those of an Excise Officer acting under the Bengal Excise Act (Bengal Act V of 1909) observed that during arguments a much broader question had been submitted for the decision of the Full Bench as arising upon the order of reference taken along with the facts of the cases in which the reference was made. The learned judge then said that to answer this question one has nece ssarily to consider the meaning of the term "Police Officer" as used in section 25 of the Evidence Act which, though it may not rank with 'ancient statutes ' in the sense in which that expression is used in forensic language, great regard ought to be paid, in construing a statute enacted long ago to the construction which was put upon it by those who lived about the time or soon after it was made, because the meaning which a particular word or expression bore in those days may have got mixed up or blurred during the interval that has elapsed. From that point of view he regarded the decision in the case of Queen vs Hurribole Chunder Ghose (1), one of very great importance. We have already referred to that decision but we have not proceeded upon the view that while construing the relevant provision we should apply the principle followed in construing an ancient statute. The Evidence Act is of the year 1872 and in Senior Electric Inspector vs Laxminarayan Chopra (2), this court while considering the question (1) (2) ; , 774 as to the meaning to be given to the expression "Telegraph line" occurring in section 3, sub section (4) of the Telegraph Act, 1885, pointed out that the maxim contemporanea expositio as laid down by Coke was applied in construing ancient statutes but not in interpreting Acts which are comparatively modern. Indeed, the rule of construction which ought to be applied to a statute either ancient or modern is the same and that is to ascertain the intention of the Legislature. We, however, agree that it would be inappropriate to attach wide meaning to the words used by the legislature in a law made in remote ages when society was static and that the position would be different with respect to words used in a law made in a modern progressive society in which the frontiers of knowledge are fast expanding. The Evidence Act was 'enacted at a time when already a revolution in men 's ideas had set in and considerable scientific advances had already been made. The maxim laid down by Coke cannot therefore properly be applied for construing the language used by the Legislature in section 25 of the Evidence Act. The learned judge did not, however, rest his judgment solely upon this ground. Upon a consideration of a large number of decisions of the Indian High Courts, he came to the conclusion that an Excise Officer exercising the powers of an officer in charge of a police station within the area to which he is apointed would fall within the expression "police officer" occurring in section 25 of the Evidence Act. The learned judge, there referred to section 6 of the Police Act and some other provisions thereof and pointed out: "The police, therefore, were instruments for the prevention and detection of crimes with the concomitant powers of apprehension and detention of offenders in order to their being brought to justice, such powers varying accor ding to the position or status of the particular 775 member of the body. In other words, "police officers" were officers whose duty was to prevent and detect crimes. Apart from any technical meaning which the term "police officer," occurring under any particular Act, might bear, the more comprehensive and popular meaning of the term was what has just been stated. In the Oxford Dictionary, two of the senses in which the word "police" is used are said to be the following 'The department of government which is concerned with the maintenance of public order and safety, and the enforcement of the law; the extent of its functions varying greatly in different countries and at different periods. The civil force to which is entrusted the duty of maintains public order, enforcing regula tions for the prevention and punishment of breaches of the law, and detecting crime; con strued as plural, the members of a police force; the constabulary of a locality. ' All these duties which police officers discharge are but different phases of and means for carrying out the two more comprehensive duties, namely, of prevention of crimes and detection of crimes. It is true that it has nowhere been defined what minimum aggregation of functions will constitute a person a police officer within the meaning of section 25 of the Act, but the more comprehensive and popular signification of the term 'police officer", such as it was in 1861, is not difficult to appreciate from what was said by the legislature in the Police Act (V of 1861). Powers and duties of police officers under Act V of 1861 or under Act XXV of 1861 or under any other statute, or the different powers which different grades of police officers leave under any particular enactment, are mere matters of details worked out in order to enable the entire 776 body, taken as a whole, to carry out the two essential duties entrusted to them, namely, the prevention and detection of crimes. These, two features of the duties which the police have to discharge and especially that of detection of offenders, which involves the duty of holding investigations have always been regarded as marking them out for special treatment in so far as confessions made to them are concerned." (pp. 623 4). We agree with the learned judge that by and large it is the duty of detection of offenses and of bringing offenders to justice, which requires an investigation to be made, that differentiates police officers from private individuals or from other agencies of State. Being concerned with the in vestigation, there is naturally a desire on the part of a police officer to collect as much evidence as possible against a suspected offender apprehended by him and in his zeal to do so he is apt to take recourse to an easy means, that is, of obtaining a confession by using his position and his power over the person apprehended by him. We, there fore, agree with the observations of the learned judge at p. 629 which are to the following effect "I can find no reason why in 1872 in respect of an offence under the then Opium Act (XIII of 1857) the legislature could have thought of excluding a confession made to a member of the regular police force but not a confession made to an abkari or excise officer, if such officer was, in fact, holding an investigation into an offence and was exercising such powers as a police officer is competent to exercise. The fact is that, in those days, he had no such powers and so could not exercise them. When, in course of time, he came to have those powers and was able to exercise them in respect of offenses which 777 were not known to law in those day,% and only subsequently came to be regarded as such, such an officer, when so acting, is an officer for whom the term "police officer" used in section 25 of the Evidence Act was meant. " The learned judge then considered two points which were raised before the Full Bench as militating against the view expressed by him one being that there is a distinction between " 'police officers" and "revenue officers" and the other that in section 25 of the Evidence Act in respect of an officer of the police there is a personal disability implied irrespective of the question whether he is holding an investigation or not, while no such disability can be said to have been intended in the case of an Excise Officer. So far as the first of these points was concerned the learned judge agreed with the answer given by Marten C. J. in the case of Nanoo Sheikh Ahmed (1), at p. 95 of the report to, meet a similar point. As regards the second point he said that, whereas police officers, by reason of section 22 of Act V of 1961, are to be always considered: on duty for the purposes of the Act, all revenue officers, on the other hand, are not police officers and it is only such of them as may be exercising the powers of police officers and only when exercising such powers that they may be regarded as police officers. We are in complete agreement with this view Mallik and Ghose JJ agreed with Mukherji J. But Jack J. did not accept Hurribole 's case as an authority for holding that an Excise Officer is a Police Officer merely because he has certain powers of a police officer. His conclusion, however, was that the application of section 25 of the Evidence Act, in the case of an excise officer should be limited to a confession made to him in the course of an investigation of an offence by virtue of section 74(3) (1) Bom. Cal, 207, 778 of the Excise Act, which gives him the status of a police officer for the purposes of the investigation. In other words, what he means is that though an Excise Officer cannot be regarded as a Police officer, still, when he exercises certain functions under section 74(3) of the Excise Act he will be acting as a Police Officer and, therefore, a confession made to him would be hit by section 25 of the Evidence Act. Costello J. however, differed from the other learned judges and based himself largely upon the decision in Radha Kishan Marwari 's case (1) and in conclusion he observed : "In my opinion, endless difficulties inevitably arise when judges endeavor to extend the plain provisions of any statutory enactment. Where the language of an enactment is unambiguous it should be interpreted strictly and, in a case such as the present, it is, to my mind, in the highest degree unsound, and indeed dangerous for the court, by subtlety of argument or by resorting to other statutes to extend provisions such as that contained in section 25. I am clearly and definitely of opinion that when the legislature used the expression 'police officer ' they meant a police officer in the sense in which that expression is generally understood by the populace at large and in no other sense at all." (p. 648). The learned judge apparently overlooked the fact that in the popular sense Excise Officers are also regarded as Police Officers, being referred to as "the Excise Police. " Thus a consideration of the decisions of the High Courts in India shows that the preponderance of judicial opinion is in consonance with the view which we have already expressed. There is one more reason also why the confession made to an Excise Sub Inspector must be (1) Pat, 46. F.B. 779 excluded, that is, it is a statement made during the course of investigation to a person who exercises the powers of an officer in charge of a police station. Such statement is excluded from evidence by section 162 of the Code of Criminal Procedure except for the purpose of contradiction. Therefore, both by section 25 of the Evidence Act as well as by section 162, Cr.p.c. the confession of the appellant is inadmissible in evidence. If the confession goes, then obviously the conviction of the appellant cannot be sustained. Accordingly we allow the appeal ' and set aside the conviction and sentences passed on the appellant. RAGHUBAR DAYAL J. I agree that the appeal be allowed and the conviction and the sentences passed on the appellant be set aside, but for different reasons which I proceed to state : I do not consider the confession to be inadmissible in evidence as being made to a police officer. The admissibility of the alleged confession of the appellant depends on the question whether the Excise Inspector comes within the expression 'police officer ' in section 25 of the . I am of opinion that he does not. In State of Punjab vs Barkat Ram (1), this Court held that a customs officer is not a police officer within the meaning of section 25 of the Evidence Act. The view was based on the following considerations : (1) The powers which a police officer enjoys are Rowers for the effective prevention and detection of crime in order to maintain law and order while a customs officer is not primarily concerned with the detection and punishment of crime committed by a person but is mainly interested in the detection and prevention of smuggling of goods and safeguarding the recovery of customs duties. (1) ; 780 (2) The mere fact that customs officers possess certain powers similar to those of police officers in regard to detection of infractions of customs laws, is not a sufficient ground for holding them to be police officers within the meaning of section 25 of the Evidence Act, even though the words "police officer ' are not to be construed in a narrow way but have to be construed in a wide and popular sense, as remarked in Queen vs Hurribole (1). The expression 'police officer ' is not of such wide meaning as to include persons en whom certain police powers arc incidentally conferred. (3) A confession made to any police officer, whatever be his rank and whatever be the occasion for making it, is inadmissible in evidence, but a confession made to a customs officer when. he be not discharging any such duty which corresponds to the duty of a police officer, will be inadmissible even if the other view be correct that he was a police officer when exercising such powers. (4) The itself refers to (police officer ' in contra distinction to 'customs officer '. (5) Customs Officers act judicially when they act under the to prevent smuggling of goods and imposing confiscation and penalties, and proceedings before them are judicial proccedings for the purpose of sections 193 and 228 I. P. C. A scrutiny of the various provisions of the Bihar and Orissa Excise Act,, 1915 (Act II of 1915), hereinafter called the Act, leads to a similar conclusion with respect, to Excise Officers on whom powers of investigating offenses under the Act have been conferred. It will be useful to quote the relevant provisions of the Act and Government Orders which lead to such a conclusion. (1) Cal. 207, 781 .lm15 The preamble of the Act reads "Whereas it is expedient to amend and reenact the law in the Province of Bihar (and Orissa) relating to the import, export, transport, manufacture, possession, and sale of certain kinds of liquor and intoxicating drugs; According to cl. (8) of section 2, 'Excise Officer ' means the Collector or any officer or other person appointed or invested with powers under section 7. The relevant portion of section 7 reads : "(1) The administration of the Excise Department and the collection of the excise revenue within a district shall ordinarily be under the charge of the Collector. (2) The State Government may by notification a pplicable to the whole of the State or to any specified local area, (a) appoint an officer who shall, subject to such control as the State Government may direct, have the control of the administration of the Excise Department and the collection of the excise revenue; x x x x X" Excise Commissioners arc appointed under section 7(2)(a). Among the other officers appointed under the other clauses of sub s (2) of section 7 of the Act arc Superintendents of Excise, Inspectors of Excise and SubInspectors of Excise. The Superintendent of Excise exercises certain specified powers of the Collector to whom be is subordinate. 782 Chapter VIII deals with offenses and penalties. Section 63 provides for penalty for contempt of Court and reads : " 'Every proceeding under this Act before a Collector, or before any officer, of such rank as the, State Government may, by notification prescribe, who is exercising powers of a Collector, shall be deemed to be a 'judicial proceeding ' within the meaning of s: 228 of the Indian Penal Code (45 of 1860). " Officers who may exercise the powers of a Collector are Superintendents of Excise, Sub Divisional Officers and Deputy Collectors. Section 68 provides that the Collector or any Excise Officer specially empowered by the State Government in that behalf, not below the rank of Depury Collector or Superintendent of Excise, may compound offenses and release property liable to confiscation in certain circumstances on payment to the Col lector or such Excise Officer of asum of money not exceeding Rs. 500/ Section 69 empowers the Excise Commissioner, Collector or any Excise Officer not below such rank as the State Government may, by notification, prescribe and subje ct to any restrictions prescribed by the state Government by rule made under section 89, to enter and inspect any pl ace of manufacture or storage or sale of any toxicant by a licensed manufacturer and to test and seize measures and to examine accounts and registers or a place where an intoxic ant is kept for sale by such licensed person and to seize them if he had reasons to believe them to be false. Exc ise Officers not below the rank of a Sub Inspector have be en empowered under s 69, under Notification No. 470 F dated January 15, 1919, of the Financial Department of the 783 Government of Bihar and Orissa, and we understand that this Notification is still in force. Section 70 authorizes any officer of the Excise, Police, Salt, Customs or Land Revenue Department or any person empowered by the State Government in that behalf by notification, to arrest without warrant any person found committing offenses punishable under ss.47, 49, 55 or 56 of the Act and to seize and detain any article which he has reason to believe to be liable for confiscation under the Act or any other law for the time being in force relating to the excise revenue and to detain and search any person upon whom, and any vessel, raft, vehicle etc., upon which, he may have reasonable cause to suspect any such article to be. Sections 71 and 72 provide for the Collector or any Magistrate empowered to try offenses punishable under the Act to issue warrant for the arrest of any person whom he has reason to believe to have committed or abetted any offence punishable under ss.47, 49, 55 or 56 and to issue a warrant for the search of any intoxicant, material, still, utensil etc. in respect of which the alleged offence has been or is likely to be committed. Section 73 empowers the Collector or any SubDivisional Magistrate or Magistrate of the first class to arrest or direct the arrest in his presence or to search or direct a search to be made in his presence when he be competent to issue a warrant of arrest or a search warrant. Section 74 empowers an Excise Officer not below such rank as the State Government may, by notification, prescribe, to arrest certain offenders when such Officer has reason to believe that an offence had been committed or was being committed and when the obtaining of a search warrant might afford the offender an opportunity to escape or conceal evidence of the offence. The State Government has prescribed that Excise Officers not below the rank of a Sub Inspector can exercise the power under this section. 784 Section 77 is important for our purpose and is set out in full below: " '(1) A Collector may, without the order of a Magistrate, investigate any offence punishable under this Act which a Court having juris diction over the local area within th e limits of the Collector 's jurisdiction would have power to enquire into or try under the provi sions of Chapter XV of the Code of Criminal Procedure, 1898, relating to the place of in quiry or trial. (2) Any other Excise Officer specially empo wered in this behalf by the State Government in respect of all or any specified class of offenses punishable under this Act may, without the order of a Magistrate, investigate any such offence which a Court having jurisdiction over the local area to which such officer is appointed would have power to inquire into or try under the aforesaid pro visions. " Under sub section (2) of section 77, the State Government has specially empowered Inspectors of Excise and SubInspectors of Excise to investigate any offence punishable under the Act. Section 78 reads : "(1) Any Collector, or any Excise Officer empowered under section 77, sub section (2), may after recording in writing his reason for suspecting the commission of an offence which he is empowered to investigate, exer cise (a) any of the powers conferred upon a Police Officer making an investigation, or upon an officer in charge of a policc station, 785 by sections 160 to 171 of the Code of Criminal Procedure, 1898 (5 of 1898), and ' (b) as regards offenses punishable under section 47, section 49, section 55, or section 56 of this Act any of the powers conferred upon Police Officers in respect of cognizable offenses by clause first of sub section (1) of section 54 and by section 56 of the said Code; and the said portions of the said Code shall apply accordingly, subject to any restrictions or modifications prescribed by the State Government by rule made under section 89, clause (o). (2) Subject to any restrictions prescribed by the State Government a Collector or an Excise Officer empowered under section 77, sub section (2), may, without reference to a Magistrate, and for reasons to be recorded by him in writing, stop further proceedings against any person concerned, or supposed to be concerned, in any offence which he or any Excise Officer subordinate to him has investigated. (3) For the purposes of section 156 of the Code of Criminal Procedure, 1898 (5 of 1898) the area to which an Excise Officer empowered under section 77, sub section (2), is appointed shall be deemed to be a police station, and such officer shall be deemed to be the officer in charge of such station. (4) As soon as an investigation by a Collector or by an Excise Officer empowered under section 77, sub section (2), has been completed, if it appears that there is sufficient evidence to justify the forwarding of the accused to a Magistrate, the investigating officer, unless he 786 proceeds under sub section (2) of this section or under section 68 of this Act, shall submit a report [which shall, for the purposes of section 190 of the Code of Criminal Procedure, 1898 (5 of 1898) be deemed to be a Police report] to a Magistrate having jurisdiction to inquire into or try the case and empowered to take cognizance of offenses on Police reports. " Section 79 deals with security and bail and empowers any Excise Officer not below such rank as the State Government may, by notification, prescribe, to release persons on bail or on their own bond. The State Government has prescribed that any Excise Officer not below the rank of SubInspector can exercise this power. Section. 80 provides that articles seized and persons arrested under the warrant of the Collector shall be produced before the Collector and that articles seized and persons arrested under the Act by persons or officers not having authority to release arrested persons on bail on their own bond, shall be produced before or forwarded to the Collector or an Excise Officer empowered under section 77 (2) to investigate the offence, or to the nearest Excise Officer who has authority to release arrested persons on bail or on their own bond, or the officer in charge of the nearest police station, whoever be nearer. Section 82 reads : "When any Excise Officer below the rank of Collector, or any officer in charge of a police station, makes, or receives information of, any arrest, seizure, or search under this Act, he shall, within twenty four hours thereafter, make a full report of all the particulars of the arrest, seizure, or search, or of the information received to the Collector, and to the Excise Officer (if any) empowered under section 77, 787 sub section (2), within the local limits of whose jurisdiction the arrest, seizure, or search was made. " Section 84 directs that any person arrested for an offence under the Act shall be informed as soon as may be of the grounds for such arrest and shall be produced before the nearest Magistrate within a period of 24 hours of such arrest, excluding the time necessary for the journeys from the place of arrest to the Court of the Magistrate and no such person shall be detained in custody beyond such period without the authority of the Magistrate. Its sub section (2) reads : "(2) A Magistrate to whom an accused person is forwarded under section 167 of the Code of Criminal Procedure, 1898 (5 of 1898), by a Collector or an Excise Officer empowered under section 77, sub section (2), may exercise the powers conferred upon a Magistrate by the said section 167." Section 85 reads : "(1) Save as in this Act otherwise expressly provided, the provisions of the Code of Criminal Procedure, 1898 (5 of 1898), relating to arrests, detentions in custody, searches, summonses, warrants of arrest, search warrants and the production of persons arrested shall apply so far as may be, to arrests, detentions and searches made, summonses and warrants issued, and the production of persons arrested under this Act. (2) For the purposes of the said provisions of the said Code, a Collector shall be deemed to be a Court. (3) Officers to whom a Collector 's warrant is directed or endorsed and officers (other than 788 Collectors) making arrests, searches or seizures under this Act, shall, for the purposes of the said provisions of the said Code, be deemed to be Police Officers. " Section 89 empowers the State Government to make rules to carry out the objects of the Act or any other law for the time being in force relating to the excise revenue. Section 95 provides that no suit shall lie in any Civil Court against the Government or any Excise Officer for any act in good faith done or ordered to be done in pursuance of this Act or of any other law for the time being in force relating to the excise revenue. Section 96 provides for limitations of suits and prosecutions and reads ",No Civil Court shall try any suit against the Government in respect of anything done, or alleged to have been done, in pursuance of this Act, and, except with the previous sanction of the State Government, no Magistrate shall take cognizance of any charge made aga inst any Excise Officer under this Act or any other law relating to the excise revenue or made against any other person under this Act, unless the suit or prosecution is instituted within six months after the date of the act complained of. " The provisions of sections 7, 89, 95 and 96 are sufficient to indicate that the action of Excise Officers under the Act and under any other law relating to exciserevenue is treated alike. The Act is, therefore, like 789 the , primarily concerned with the collection of the excise revenue. The object of the Act according to the preamble, is not to provide for the prevention and detection of crime but is to provide for conditions on which liquor and intoxicating drugs can be imported, exported, transported, manufactured and possessed and sold. Offenses created under the Act are for contravening provisions in that regard and the power of Excise Officers to make arrests, searches or seizure or to investigate offenses under the Act is incidental to the general power to see that the provisions of the Act are observed. The first consideration for holding Customs Officers not to be police officers would equally apply to the case of Excise Officers empowered to investigate offenses. An Excise Officer too cannot be a police officer for the purpose of section 25 of the Evidence Act at all times. He can be a police officer only when he is discharging the duties of an investigating officer. In view of consideration No. 2, subject to what is said in section 85 (2), the expression 'Police officer ' in section 25 of the Evidence Act cannot embrace Excise Officers on whom certain powers corresponding to the powers of the police officers are conferred. Section 82 draws a distinction between an officer in charge of a police station and an Excise Officer who is empowered under section 77 (2) of the Act, as the former had to give information of any arrest, seizure or search under the Act which he makes, or about which he receives information to the Collector and to the Excise Officer empowered under section 77 (2) exercising jurisdiction in the area where any of these acts are done, and so consideration No. 4 is equally applicable in this case. Excise Officers not below the rank of Superintendent of Excise and Deputy Collector can 790 compound offenses and release property liable to confiscation in the exercise of powers conferred under section 68. Such a power implies that the culprit accepts his guilt and is prepared to compound the offence. Ordinarily the culprit will express such a desire to an Excise Inspector or Sub Inspector in the first instance. It appears to me to be incongruous that a confession to such an Excise Officer be considered to be inadmissible on trial of a suspect in Court by considering these Excise Officers to be police officers, while the Act itself allows the superior Excise Officer to compound the offence with the culprit and discharge him in view of section 68 and the Government Notification. Further all proceedings before the Collector or Superintendent of Excise, section D. 0. and Deputy Collector exercising the powers of the Collector are judicial proceedings within the meaning of section 228 1. P. C. Section 85 (3) provides about the officers who and the circumstances in which they can be deemed to be police officers for the purposes of the Criminal Procedure Code. All Officers other than Collectors .who make arrests. , searches or seizures under the Act are to be deemed 'police officers ' for the purpose of the provisions relating to arrests, searches or seizures in the Criminal Procedure Code. It is therefore clear that the Legislature had in mind the police ,officers who perform the duties of making arrests, searches, and seizures, under the Criminal Procedure Code and provided that Excise officers or other persons authorized under the Act to perform these acts be deemed to be police officers for these purposes. It is therefore clear that the Legislature did not contemplate that Excise Officers performing other duties corresponding to the duties of the regular police officers be deemed police officers merely on account of their performing those duties. It follows that Excise Officers when investigating offences under the Act are not to be deemed police officers for the 791 purposes of the provisions about investigation in the Code of Criminal Procedure. If the Legislature had intended that officers who investigate offences under the Act be also deemed to be officers for the purposes of provisions regarding investigation in the Code of Criminal Procedure or section 25 of the Evidence Act or for any other purpose under any other law, it could have made an express provision in that regard. It is not suggested for the appellant that a Collector who is an Excise Officer and on whom the power of investigating offences under the Act is conferred under section 77 of the Act is a police officer within section 25 of the Evidence Act. Sub section (3) of section 85 does not even provide that he be deemed to be a police officer when he makes arrests, searches or seizures under the Act. The Act itself therefore contemplates that the possession of a power to investigate offences under section 77 and the right under section 78 of the Act to exercise any of the powers conferred upon a police officer making an investigation or upon the officer in charge of a police station by sections 160 to 171 of the Code of Criminal Procedure do not make the officer so empowered a 'police officer '. Great reliance however is placed on the provision of sub section (3) of section 78 of the Act for the contention that Inspectors and Sub lnspectors of Excise are police officers for the purposes of section 25 of the Evidence Act. Sub section (3) of section 78 reads: " 'For the purposes of section 156 of the Code of Criminal 'Procedure, 1898 (5 of 1898) the area to which an Excise Officer empowe red under section 17, sub section (2), is appointed shall be deemed to be a police station, and such officer shall be deemed to be the officer in charge of such station. " 792 It is argued that these provisions definitely provide that the area to which the Excise Officer empowered under section 77 (2) is appointed is to be deemed a police station and he be deemed to be an officer in charge of the said police station, and that therefore such an Excise Officer is a police officer within the meaning of that expression in section 25 of the Evidence Act. I do not agree. The area is deemed to be a police station and he himself is deemed to be a police officer in charge of that police station for a very limited purpose. He is to be so considered for the purposes of section 156 of the Code of Criminal Procedure and not for any other purpose. Now, section 156 of the Code of Criminal Procedure reads : "(1) Any officer in charge of a police station may, without the order of a Magistrate investigate, any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to enquire into or try under the provisions of Chapter XV relating to the place of enquiry or trial. (2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate. (3) Any Magistrate empowered under section 190 may order such an investigation as above mentioned. " What sub section (1) of section 156 of the Code provides is already provided under sub section (2) of section 77 of the Act which empowers such officers to investigate, without the order of a Magistrate, any such offence which a Court having jurisdiction over the local area 793 to which such officer is appointed would have the power to enquire into or try under the aforesaid provisions. Sub section (1) of section 156 of the Code does nothing more than authorize an officer in charge of a police station, without the order of a Magistrate, to investigate any cognizable offence which the Court having jurisdiction over the local area or within the limits of the police station would have the power to inquire into or try under the provisions of Chapter XV relating to the place of enquiry or trial. The effect of sub section (3) of section 78 can only be that in view of the provisions of sub SS. (2) & (3) of section 156 of the Code, no proceeding by the Excise Officer so empowered under section 77 (2) shall, at any stage, be called in question on the ground that he was not empowered to investigate that offence and that any Magistrate empowered under section 190 Cr. P. C. can order such an ]Excise Officer to investigate an offence under the Act. In this view, the provisions of section 78 (3) are of no help in concluding that the Excise Officer empowered under section 77 (2) is a police officer for all the purposes of the investigation under the Code of Criminal Procedure, or for the purpose of section 25 of the Evidence Act. Further, the limited nature of the effect of sub. section (3) of section 78 is also apparent when it is considered that sub section (1) of section 78 provides that an Excise Officer empowered under section 77 (2) can exercise any of the powers conferred upon a police officer making an investigation or by an officer in charge of a police station by Ss. 160 to 171 of the Code of Criminal Procedure. If the provisions of sub section (3) make an Excise Officer empowered under section 77 (2) a police officer in charge of a police station for the purposes of the entire investigation, there was no necessity to provide in sub section (1) that he could exercise the powers under certain sections specified therein. The powers which the Excise Officer as an Investigating Officer exercises under section 78 (1) are 794 also limited in scope, Under section 160 Cr. P. C. he can summon persons for the purpose of investigation. He may examine such persons orally about the facts and circumstances of the case, just as a police officer can do under sub section (1) of section 161. But the person so examined does not appear to be bound to answer all questions relating to such case put to him by the Excise Officers though he is bound to answer the questions put by the police officer in view of sub section (2) of section 161 Or. P. C., and by the Customs Officer under section 171 A of the . Section 162 of the Code does not confer any power on a police officer. It only provides that any statement made by a person to a police officer in the course of an investigation under Chapter XIV of the Code could be used for no purpose except for the purpose provided in that sub section, at any enquiry in respect of that offence under investigation at the time when that statement was made. An investigation by the Excise Officer is not an investigation under Chapter XIV of the Code of Criminal Procedure. He may take similar steps during investigation which a police officer has to take, but that does not make his investigation an investigation under Chapter XIV of the Code. Again, section 163 has no application so far as the question of conferring power is concerned. It rather enjoins upon a police officer not to offer or make or cause to be offered or made, any such inducement, threat or promise as is mentioned in the , section 24, and not to prevent any person from making a voluntary statement in the course of an investigation. Section 164, again, deals with the recording of statements and confessions by Magistrates during the investigation under that Chapter, and can at best be said to empower by implication that these Excise Officers can send a confessing accused for the recording of confession to a Magistrate. In exercise of the powers under section 165, 795 Cr. P. C., the Excise Officer can search in certain circumstances a place for a thing which may be found useful for the investigation and, in view of section 166 Cr. P. C. he can require any other Excise Officer or police officer to a cause search to be made. Section 168 of the Code is of no use as it requires any subordinate police officer making investigation to report the result to the Station Officer as all Inspectors and Sub Inspectors of Excise are required by section 78 (4) of the Act to report to the Magistrate for trying the accused if he has not stopped further proceedings in exercise of the powers under section 78 (2) and which he would do when there be not sufficient evidence to send the accused to the Magistrate for Trial. For similar reason, section 169 Cr. P.C., is of no use to the Excise Officer empowered under section 77 (2). Section 170 empowers the officer in charge of a police station to send up the accused to a Magistrate if there be sufficient evidence. Under section 171, he can send up a witness on complaint, in certain circumstances, in custody to a Magistrate. I may now consider certain cases in which a view has been expressed that when an officer, who is not an officer of the regular police force, is invested with powers of the Station Officer in charge of a police station for the purposes of the investigation of offences he is competent to investigate, that officer will be a police officer within the meaning of section 25 of the Evidence Act during the course of the investigation he be making. The considerations which led to that view were mainly two. One was that neither the Code of Criminal Procedure of 1861 which originally enacted a provision identical with the one in section 25 of the Evidence Act, nor the Evidence Act of 1872 itself defined a police officer, that the definition of the word 'Police ' in the Police .Act of 1861 was not a definite definition but only an inclusive one and that the expression 'police officer ' 796 being not precise in defining the class of officers covered by it was to be interpreted according to what the original intention and object of the Legislature must have been in their enacting section 25 of the Evidence Act. The second was that the expression 'police officer ' in section 25 of the Evidence Act should be construed according to the meaning that expression carried at or about the time that enactment was made and for that purpose, the view expressed in Hurribole 's Case (1), was not only accepted but was interpreted to mean that anyone whom the people at large looked upon as a police officer would be included in that definition. I would first consider Hurribole 's Case (1), to which reference had been made in Barkat Ram 's Case (2). In Hurribole 's Case (1), Mr. Lambert who was a member of the regular police force and was so regarded outside Calcutta to which city the police Act of 1861 did not apply, was posted at Calcutta as Deputy Commissioner of Police. He was also invested with the powers of a Magistrate. The accused in that case made a confession originally to two policemen. It was taken down in writing. He was then brought before Mr. Lambert, the Deputy Commissioner of Police, at the police office. He affirmed the truth of his former statement to Mr. Lambert, who, in his capacity of a Magistrate, received and attested the statement. The question was whether this confession was hit by section 25 of the Evidence Act or not. The decision of this question depended on the view whether Mr. Lambert was a police officer within the meaning of section 25 of the Evidence Act. Garth C. J., repelled the contention that the expression 'police officer ' comprised only that class of persons who were called in the Bengal Police Act members of the police force and observed; at p. 215: ". that the term 'Police officer ' should be read not in any strict technical sense, but (1) (1876) I.L.R. I Cal, 207. (2) ; 797 according to its more comprehensive and popular meaning. In common parlance and amongst the generality of people, the Commissioner and Deputy Commissioner of Police are understood to be officers of police, or in other words 'police officers ' quite as much as the more ordinary members of the force; . I think it better in construing a section such as the 25th which was intended as a wholesome protection to the accused, to construe it in its widest and most popular signification. " These observations simply mean that Mr. Lambert who was a regular member of the police force did not cease to be a police officer when posted as Deputy Commissioner of Police at Calcutta with Magisterial powers, that he would still be considered to be a police officer by the people in general and that therefore he should be held to be a police officer. The use of the comparative words 'narrow ' and 'wider ' with respect to the meaning to be given to the term 'police officer ' have a particular reference in the context to the effect that a person, even though strictly not a police officer during the period of his tenure of office as Deputy Commissioner of Police, Calcutta, but a police officer in view of his regular service conditions, must be held to be a police officer as the people at large cannot make any distinction between the temporary character of his status when he was posted at Calcutta as Deputy Commissioner of Police, who according to the definition, probably did not come within either the Bengal Police Act or the Police Act of 1861, I cannot take it that Garth C. J., meant, that in construing the term 'police officer ' in section 25 of the Evidence Act Courts should resort to their notions as to whether the people at large considered the particular officer to be a police officer or not. Any such basis for construing this expression in section 25 would be very slippery as there 798 would be no real basic standard to form the foundation for such an interpretation. Another question raised in that case was that the confession was admissible in view of section 26 of the Evidence Act which provided that no confession made by a person in police custody would be admissible in evidence unless it was made in the immediate presence of a Magistrate, that Mr. Lambert was a Magistrate and that therefore the confession made to him was admissible in evidence. This contention was repelled on the ground that section 25 of the Evidence Act was imperative and a confession made to a police officer under any circumstances was not admissible in evidence against the maker thereof. This means that Mr. Lambert 's status as a Magistrate was completely ignored. The confession was not deemed to be taken by a Magistrate. It was taken to be made to a police officer as Mr. Lambert was a police officer on account of the service to which he belonged. It was merely as a Deputy Commissioner of Police that he enjoyed certain powers of a Magistrate. This view, therefore, can also be used in support of the contention that the mere conferment of certain powers of an officer of one class did not make that officer an officer of the class whose powers had been conferred on him. If conferment of powers of another officer could make the officer an officer of the other type during the period he be exercising the functions of the other officer, Mr. Lambert could have been treated a Magistrate when he purported to act as a Magistrate in receiving the confession of the accused. In my opinion, the case does not support the opposite view in any way. The only effect of the observations of the learned Chief justice to the effect that section 25 of the Evidence Act be construed in its widest and most popular signification is that the expression 'police officer ' is not restricted to only those police officers who come within the definition of police officer ' 799 within a certain Act dealing with police, but can include officers who belong to the police in general. Its effect is not to widen the scope of 'police officer ' in section 25 to such an extent as to make the Court embark on a general enquiry about popular concept in a certain area, about one being a police officer in the mind of the people at large. It is true that the Criminal Procedure Code of 1861 or of later years does not define the expression 'police officer ' while its various sections refer to police officers. For the purpose of this case, we may refer to section 148 of the Code of Criminal Procedure, 1861 (Act XXV of 1861). Section 148 was : " 'No confession or admission of guilt made to a Police Officer shall be used as evidence against a person accused of any offence." Which Officers were contemplated to be 'police officers ' by the Code of Criminal Procedure of 1861 ? I am of opinion that the Code of Criminal Procedure could not have but referred to the regular police officers for the purpose of its various enactments. It must have fixed upon a particular class of officers on whom the various powers of a police officer were being conferred by the Code and on whom the Code imposed certain important duties. Surely these powers were not conferred and duties were not imposed on a vague class of persons whose powers or liability would be subject to determination by Courts in accordance with the popular impression. The only definite class of people would be then members of the police according to the various enactments in force and not necessarily under the general Police Act of 1861 or any special Police Act applicable to the Presidency towns, or those who, under certain statutory provisions be deemed to be 800 police officers as, in that case, it would be the Legislature which itself would lay down the class of persons who would be treated to be police officers. I may say that it was not foreign to the Legislature in 1861 to make provisions with respect to certain persons being deemed to be officers of a certain class. Historically, I do not find the expression 'Police officer ' or 'Police ' to be a vague one. In 1793, a number of Regulations were made by the Governor General in Council. They dealt with many a subject connected with the administration of the territory under the control of the East India Company. The preamble of Regulation XXII of 1793 indicates that the object of that Regulation was to establish an efficient police throughout the country whereby offenders may be deprived of all hope of eluding the pursuit of officers of justice as the clause in the engagements of the landholders and farmers of land by which they were bound to keep the peace, and in the event of any robbery being committed in their respective estates or farms, to produce both the robbers and the property plundered, was found nugatory. Section 11 of this Regulation reads : " 'The police of the country is, in future, to be considered under the exclusive charge of the officers who may be appointed to the superintendence of it on the part of Government. The landholders and farmers of land who were bound to keep up establishments of tannahdars and police officers for the preservation of the peace are accordingly required to discharge them, and all landholders and farmers of land are prohibited from entertaining such establishments in future." Section III specifically provided that in future landholders and farmers would not be considered 801 responsible for robberies committed in their respective estates or farms unless certain facts mentioned therein existed. This seems to be the first Regular Code for the establishment of the efficient police in the country under the control of the British. Formerly, it was the landholder and the farmer of land who discharged the functions of the police for the maintenance of peace and for preventing the commission and detection of crimes, especially crimes against property, robbery, theft, etc. It is to be noticed that according to the preamble and the provisions of section II of this Regulation, the entire police was to be in the exclusive charge of the officers appointed by the Government. The Government had to appoint the police officers as such. Subsequent Regulations and Acts developed the law about the police on the foundations laid by this Regulation. The object of the Police Act of 1861 is also to cover the entire police in the country. Its title is : 'An Act for the Regulation of Police '; and its preamble reads : "Whereas it is expedient to reorganize the Police and to make it a more efficient instru ment for the prevention and detection of crime. . . The expression 'general police district ' according to section 1, embraces any Presidency, State or place, in which the Act shall be ordered to take effect. Section 2 provides that the entire police establishment under a State Government shall, for the purposes of the Act, be deemed to be one police force and shall be formally enrolled; persons of this establishment, therefore, formed a class by themselves. Section 3, however, provides that the superintendence of the police throughout a general police district shall vest in and shall be exercised by the State Government to which such district is subordinate. This does not speak of the superintendence 802 of the police force or the police establishment, but puts the entire police within the State under the control of the Government. The administration of such entire police is vested in the Inspector General of Police by section 4 and within a district 'is vested in the District Superintendent. These officers exercise no administrative control over the Excise Officers. Section 47 makes it lawful for the State Government to declare. that any authority which is being exercised by a Magistrate of the District over any village watchman or other village police officer for the purpose of police shall be exercised, subject to the general control of the Magistrate of the district, by the District Superintendant of Police. This is a clear indication that the Act purported to bring the entire police whether controlled under the Act or not, within its purview in the area where the Act be in force. It was on account of the various persons under several Acts or otherwise discharging the functions of the police that the Police Act of 1861 provided that the word "Police ' in the Act meant to include all persons who would be enrolled under that Act, indicating thereby that the expression could cover persons other than those enrolled under that Act. Section 21 of the Police Act refers to some of them, viz., hereditary or other police officer or police officers appointed under Act XX of 1856, the Bengal Chowkeydari Act. The inclusive definition of 'police ' does not appear to me to be so wide as to include any one to whom powers similar to those of a police officer are conferred by any Act. The history of the Excise Law also shows that Excise Officers have been considered different from police officers and that clear provisions were enacted for certain. officers of the Revenue and Police Departments to be deemed Excise Officers. 803 Regulation XXXIV of 1793 re enacted with modifications the rules passed on April 16, 1790, and subsequent dates, for levying a tax upon intoxicating liquors and drugs and for preventing illicit manufacture and vend of them. This was repealed by Regulation X of 1813. Section I of Regulation X of 1813 states with respect to the purpose of the Regulation : ". and whereas it will tend to the public convenience to reduce the whole of the Regu lations at present in force with respect to that branch of the public revenue, and respecting likewise the duties on intoxicating drugs, taury, and putchwye, to one Regulation, with alterations and amendments, the following rules have been passed". and thus emphasized that the Regulatian related to the branch of public revenue. Section XVIII provided that for the more convenient collection of the duties on spirituous liquors etc. , officers would be appointed by the collectors to be denominated abkarry darogahs for the collection of the said duties. These darogahs were to apprehend and send to the Collector any individual having an unlicensed still in his possession or engaged in the illicit sale of spirituous liquors etc. Section XXII provided that .all investigations which it may be necessary to institute respecting the illicit manufacture or sale of spirituous liquors etc., shall be conducted by the collectors of land revenue or other public officers entrusted with the charge of the abkarry mohaul. Section XXII further empowered the Collector or other officers entrusted with the charge of akbarry mohaul to cause the persons charged with or suspect ed of offences under the Regulation to be apprehended so that a regular enquiry might be made into the merits of the case. Officers in charge of the abkarry 804 mohaul were given power under section XXIII to issue search warrants. Section XXXI made the collectors of land revenue entitled to a commission on the net amount of the abkarry revenue realised by them. Act XXI of 1856 repealed Regulation X of 1813. Its title is 'An Act to consolidate and amend the law relating to the Abkaree Revenue in the Presidency of Fort William in Bengal ' and the preamble states : "Whereas it is expedient that the laws relating to the manufacture of spirits and the sale of spirituous and fermented liquors and intoxicating drugs, and the collection of the revenue derived therefrom, should be consolidated and amended : It is enacted as follows. " Section II says that the Collectors of land revenue will be in charge of the collection of the revenue arising from the manufacture of spirits and the sale of spirits, liquors and intoxicating drugs. Section IV empowered the Collectors to appoint darogahs, jemadars, peons, surveyors, gaugers and other officers for the collection of the abkaree revenue and for the prevention of smuggling. The office of abkaree darogah could be combined with that of any tuhseeldar, naib tuhseeldar or peshkar. In such cases section IV provided that those officers and officers subordinate to them would be held and deemed to be Abkaree officers within the meaning of the Act. The Abkaree officers were empowered under section LV to enter and inspect shops or premises of licensed Manu facturers or retail vendors. Section LVI empowered them to stop and detain any person carrying articles liable to confiscation under the Act and to seize such articles and also to arrest the person in possession of them. Powers of arrest under certain circumstances were also conferred on them by section LVII. Section LXV further provided that all police officers were required to aid the Abkaree officers in 805 the due execution of the Act upon notice given or request made by such officers. The expression 'police officers ' and 'abkarec officers ' in these sections refer to officers of the regular police and officers of Abkaree respectively. The Act makes a distinction between the two, and rightly. Section LVIII empowered an Abkaree officer above the rank of a jemadar of peons to enter and search certain places in the presence of the darogah or other officer of police in circumstances specified in that section. Section LIX provided for the vesting of certain powers in the officers of the Police, Customs and Revenue Departments and authorised the Government to invest those officers with powers with respect to the seizure of and search for spirituous and fermented liquors and intoxicating drugs and the arrest of persons found in possession of them. It further provided that all such officers when so empowered, as well as all police, Customs and Revenue officers, when acting under the authority conferred by that section, for the suppression of illicit dealings in opium, would be held and deemed to be Abkaree officers within the meaning of the Act. It is clear, therefore, from the provisions of sections IV and LIX that the Legislature specifically provided, whenever it considered necessary, for certain officers to be deemed to be Abkaree officers when, by virtue of their regular service, they were not Abkaree officers. It was in 1861, as already stated, that the 'Criminal Procedure Code, by section 148, provided that no confession made to a Police officer would be used in evidence against an accused person. In view of the provisions of the first Regulation XXII of 1793 dealing with the creation of the Police under the direct control of the Government and of the Abkaree Department 806 governed by Regulation XXXIV of 1793 up to 1856, it is not possible to say in my opinion, that the Legislature when using the expression 'police officer ' in section 148 of the Code of Criminal Procedure of 1861, intended that expression to include the Abkaree officers who had powers of investigation, though without any reference to the procedure to be followed in carrying out the investigation necessary for the purpose of establishing the offences under the Abkaree Act against the alleged culprits. It is also clear from certain provisions referred to above that the Legislature did state in clear terms that certain officers of the other departments would be deemed to be Abkaree officers in certain circumstances. It follows therefore that if the Legislature had intended to use the expression 'police officers ' in the Code of Criminal Procedure of 1861 or in section 25 of the Evidence Act of 1872 in such a sense as to include such officers of departments other than the Police on whom powers of investigation were conferred, it could have very easily said that a confession to a police officer or such other officers would be inadmissible in evidence or it could have explained the expression (police officer ' for the purposes of that section, that is, section 148 of the Criminal ' Procedure Code of 1861 or section 25 of the Evidence Act of 1872. Its omission to do so, to my mind,, is a clear indication of the fact that the Legislature had no intention to use the expression 'police officer ' in section 25 of the Evidence Act in such a general sense in which it is construed in Nanoo vs Emperor (1), Ameen Sharif vs Emperor (1), Public Prosecutor vs Paramasivam (3). I may refer to the case cited as Radha Kishun Marwari vs King Emperor (4), where it was held that an Excise officer was not a police officer within the meaning of section 25 of the evidence Act. of the three judges, Courtney Terrel, C. J., expressed his disagreement with the (1) Bom, 78. (2) Cal. 607, (3) A.I,P,, , (4) (1932) 1,L,R, 12 Pat. 46. 807 view of the Bombay High Court in Nanoo vs Emperor (1), and, after stating that the decision in Hurribole 's case (2), had been much misunderstood, said "The fact is that the term "police officer ' is sufficiently well understood to allow of its use without any precise definition. Thus it is well recognised that different countries and states confer upon their respective police officers different powers. Nevertheless it is not difficult to decide whether any particular individual is, or is not, a police officer in any particular country and it has been held that a confession made to a police officer of a foreign force in the country where he is in fact a police officer is not admissible in an Indian I trial." He also expressed the opinion that the Courts of justice were not primarily concerned with the objects with which the legislature enacted any particular law and that the legislature might not have finally enacted a provision to carry out the entire object with which it tended to enact it, and that in cases where the legislature had not thought fit to express its intention otherwise than by the use of the words of the section; those words, must be followed. Fazl Ali, J. agreed with his views and stated at p. 56: "It appears to me that the distinction between a person who is nothing but a police officer and one who is primarily not a police officer but merely invested with the powers of a police officer is material and cannot be ignored for the purpose of construing section 25 of the Evidence Act."" He pertinently remarked at p.57: "To take this view would, in my opinion, be to ignore the popular meaning of the term (1) Bom, 78. (2) (1871) I.L.R. I Cal. 207. 808 'police officer ' and enlarge unduly the scope of the section. There was nothing to prevent the framers of the Evidence Act from saying expressly that confessions made to a police officer as well as those persons who are for the time being and for certain limited purposes invested with the powers of a police officer arc inadmissible in evidence. " Agarwala J., expressed the opinion that the expression 'police officer ' in section 25 of the Evidence Act referred to the police officers enrolled in or appointed as members of the police force. I agree with respect with the wider view taken by the learned Chief Justice and Fazl Ali, J. I therefore hold that the Excise Inspector and Sub Inspector empowered by the State Government under section 77(2) of the Act are not police officers within the meaning of section 25 of the Evidence Act and that the aforesaid officers cannot be treated to be police officers for the purposes of section 162 of the Code of Criminal Procedure. Section 162 does not confer any power on a police officer. It deals with the use which can be made of the statements recorded by a police officer carrying out investigation under Chapter XIV of the Code. The investigation which the aforesaid Excise officer conducts is not under Chapter XIV of the Code, but is under the provisions of the Act and therefore this is a further reason for non applicablity of section 162 Cr. P. C. to any statements made by a person to an Excise officer during the course of his investigating an offence under the Act. In this case, the evidence on record about the appellant 's being found in possession of Nepali Ganja is not such on which reliance could be placed for maintaining his conviction. The High Court relied on it in view of the confession of the appellant, 809 The conduct of the Excise Inspector in tampering with the seizure memo is such as to affect his bona fides and therefore there is a lot of doubt about the alleged confession by the appellant being voluntary. I am not satisfied about the confession being voluntary and would therefore not use it in support of the unsatisfactory statements of the prosecution witnesses about the recovery of the ganja from his possession and would not sustain the conviction even though the High Court has recorded a finding of fact that Ganja was recovered from the appellant 's possession. The High Court did not consider the tampering of the seizure memo in all its aspects or its effect on the alleged voluntariness of the confession and, consequently, on the case. Appeal allowed.

IN-Abs

The appellant along with five other. people, one of whom was driving the car, were traveling in a car belonging to the appellant 's brother. The car was stopped by the Excise Inspector who conducted a search of the car and recovered five bundles of Ganja, four from the luggage boot and one from the leg space in front of the seat of the car. The boot could be opened with the keys in the possession of the appellant as well as one of the keys in the possession of the driver. The appellant made a confession to the Excise Inspector admitting his guilt. At the trial of the appellant alongwith the other persons he pleaded an alibi and pleaded innocence. The 753 trial court acquitted all the other accused but convicted the appellant under section 47 (a) of the Bihar and Orissa Excise Act. 1915, and sentenced him to undergo rigorous imprisonment for one year and to pay a fine of Rs. 2,000. On appeal the High Court affirmed this conviction and sentence. The appellant thereupon appealed to this Court with special leave. In the appeal before this Court it was contended that the confessional statement exhibit 3 upon which reliance was placed by the High Court as supporting the evidence of P. W. 2, P. W. 3 and P. W. 4 was inadmissible and if this statement was put aside the evidence of these prosecution witnesses was insufficient in law to sustain the conviction of the appellant. In objecting to the admissibility of the statement reliance was placed on section 25 of the and section 162 of the Code of Criminal Procedure in as much as it was recorded by the Inspector of Excise while he was investigating into an excise offence under Ch. XIV of the Code of Criminal Procedure. Held (per Subba Rao and; Mudholkar JJ.) the words, "Police Officer" in section 25 of the Evidence Act are not to be construed in a narrow way but have to be construed in a wide and popular sense. Those words are however not to be construed in so wide a sense as to include persons on whom only some of the powers exercised by the police are conferred. State of Punjab vs Barkat Ram ; referred to. By virtue of section 77 (2) read with section 78 (3) of the Bihar & Orissa Excise Act, 1915, an Excise Inspector or Sub Inspector in the State of Bihar shall be deemed to be an of charge of a police station and is entitled to investigate any offence under the Excise Act. He can exercise all the powers which an officer in charge of a police station can exercise under Ch. XIV of the Code of Criminal Procedure. Therefore a confession recorded by him during an investigation into an excise offence cannot reasonably be regarded as anything 'different from a confession to a police officer. The test for determining whether a person is a "police officer" for the purpose of section 25 of the Evidence Act would be whether the powers of a police officer which are conferred on him or which arc exercisable by him because he is deemed to be an officer in charge of a police station establish a direct or 754 substantial relationship with the prohibition enacted by section 25 of the Evidence Act that is the recording of a confession. in other words the test would be whether the powers are such as would tend to facilitate the obtaining by him of a confession from a suspect delinquent. It is the power of investigation which establishes a direct relationship with the prohibitions under section 25 of the Evidence Act. Therefore where such power is conferred upon an officer, the mere fact that he possesses some other powers under another law would not make him any the less a police officer for the purpose of section 25. The object of enacting section 25 of the Evidence Act was to eliminate from consideration confession made to an officer who by virtue of his position, could extract by force, torture or inducement a confession. An Excise Officer acting under section 78 (3) of the Bihar & Orissa Excise Act, 1915, would be in the same position as an officer in charge of a police station making an investigation under Ch. XIV of the Code of Criminal Procedure. He would likewise have the same opportunity of extracting confession from a suspect. It is therefore difficult to draw a rational distinction between a ,confession recorded by a Police Officer strictly so called and recorded by an Excise Officer who is deemed to be a police officer. Case law reviewed. Harbhanian Sao vs Emperor, (1927) 1. L. R. , Matilal Kalwar vs Emperor, A. I. R. , Ameen Sharief vs Emperor, (1934) 1. L. R. , Nanoo Sheikh Ahmed vs Emperor, Bom. 78, Public Prosecutor vs O. Paramasivam, A. I. R. , Ibrahim vs Emperor, A. 1. R. , Radha Kishun Maruwari V. King Emperor, Pat. 46 and Queen vs Hurribole Chunder Ghose, (1876) 1. L. R. referred to. There is one more reason also why the confession made to an Excise Sub Inspector must be excluded, that is, it is a statement made during the course of investigation to a person who exercises the power of an officer in charge of a police station. Such a statement is excluded from evidence by section 162 of the Code of Criminal Procedure except for the purposes of contradiction. Therefore both by section 25 of the Evidence Act as well as section 162 of the Criminal Procedure Code the confession of the appellant is inadmissible in evidence. 755 Per Raghubar Dayal, J. The appeal should be allowed but for different reasons. A scrutiny of the various provisions of the Bihar & Orissa Excise Act, 1915, leads to the conclusion that the legal position of an Excise Officer is similar to that of the Customs Officer whom this Court has held to be not a "Police officer" in the case of State of Punjab vs Barkat Ram, A. 1. The provisions of sections 7, 89, 95 and 96 of the Bihar and Orissa Excise Act, 1915, are sufficient to indicate that the action of Excise Officers under the Act and under any other law relating to excise revenue is treated alike. The Act is like Sea Customs Act primarily concerned with the collection of the Excise revenue. An Excise Officer cannot be a police officer for the purpose of section 25 of the Evidence Act at all times. He cannot be a police officer only when he is discharging the duties of an investigating officer. The mere fact that the Excise Officer possesses certain powers similar to those of police officers in regard to infraction of excise laws is not a sufficient ground for holding them to be police officers within the meaning of section 25 Evidence Act. Under section 85(3) of the Bihar & Orissa Excise Act, 1915 all officers other than collectors who make arrests, searches or seizures under the Act are deemed to be police officers for the purpose of the provisions relating to arrests, searches and seizures in the Criminal Procedure Code. It is therefore clear that the Legislature did not contemplate that Excise Officers performing other duties corresponding to the duties of the regular police officers be deemed to be police officers merely on account of their performing those duties. It follows that Excise Officers when investigating offenses under the Act are not to be deemed police officers for the purpose of the provisions about investigation in the Code of Criminal Procedure. The effect of section 78(3) can only be that in view of the provisions of sub 3s. (2) and (3) of section 156 of the Code of Criminal Procedure no proceedings by the Excise Officer so empowered shall be called into question on the ground that he was not empowered to investigate an offence. The history of the Code of Criminal Procedure as well as the Excise law shows that Excise Officers have been considered 756 different from police officers and that clear provisions were created for certain officers of the Revenue and Police departments to be deemed Excise Officers. The Excise Inspector and Sub Inspector empowered by the State Government under section 77(2) of the Act are not police officers within the meaning of section 25 of the Evidence Act and that the aforesaid officers cannot be treated to be police officers for the purpose of section 162 of the Code of Criminal Procedure.

il Appeals Nos. 641 and 642 of 1961. Appeals from the judgment and decree dated April 11, 1957, of the Andhra Pradesh High Court in A.S. Nos. 95 and 520 of 1952. A.V. Viswanatha sastri, P.V. Chalapati Rau, S.N. Andley, and Rameshwar Nath, for the appellants. K.N. Rajagopal Sastri and R.N. Sashthey, for respondents Nos. 1 to 4 (in C.A. No. 641 of 1961). 194 C. Kandiah, M. Rajagopalan and K.R. Chaudhri, for respondent No. 1 (in C.A. No. 642 of 1961). April 19. The Judgment of the Court was delivered by SHAH J. Nagappa son of Pullanna resident Nandyal carried on business in yarn, drugs and forward contracts. He acquired in that business a considerable estate which was treated by him as property of the joint family of himself and his sons. Nagappa and his sons were assessed by the Incometax authorities to pay income tax and supper tax in the status of a Hindu undivided family as set out in the following table : Year of Year of Date of Income tax and account assess order. super tax ending ment. assessed. 24 3 44 1944 45 25 2 48 Rs. 51,116 7 0 14 3 45 1945 46 25 2 48 Rs. 21,452 1 0 2 4 46 1946 47 31 3 48 Rs. 21,012 13 0 Besides this amount of income tax and supertax he was assessed to pay penalty and excess profits tax aggregating to Rs. 26,602/ . The total amount of tax due for the three years of assessment 1944 45, 1945 46 and 1946 47 aggregated to Rs. 1,23,233/5/ . Nagappa did not pay the tax. The revenue authorities of the Province of Madras, at the instance of the Income tax Department attached 51 items of immovable property as belonging to the joint family of Nagappa and his sons and put up the same for sale under the Madras Revenue Recovery Act II of 1864. Out of these 38 items were sold and were purchased by certain persons. 195 Kalwa Devadattam, Kalwa Devarayulu and Kalwa Nandi Sankarappa (sons of Nagappa) hereinafter called collectively "the plaintiffs ' through their mother acting as their next friend commenced suit No. 52 of 1950 in the Court of the Subordinate Judge, Kurnool, against the Union of India, the revenue authorities of the State of Madras, the purchasers of the properties at the auction, and Nagappa, claiming a decree declaring that the assessment orders made by the Income tax officer, Kurnool, for the years 1944 45, 1945 46 and 1946 47 were unenforceable against 51 items of property of the plaintiffs described in the schedule and sale of their property by the revenue authorities was without jurisdiction, void and illegal", and an order restraining the Union of India and the authorities of the State of Madras from selling the "scheduled properties" or confirming the sale already held or that may be held after the institution of the suit. It was the case of the plaintiffs that items 46 to 51 did not at any time belong to the joint family, having been acquired by them with funds provided by their maternal grandmother Seshamma, and that the remaining items of property were not liable to be attached and sold since these had been allotted to them on a partition of the joint family estate before the order of assessment was made by the Income tax authorities. The suit was resisted by the Union of India and also by the purchasers on diverse grounds. The Union contended, inter aria that the plaintiffs were not entitled to question the correctness of the assessment of tax in a Civil Court because the jurisdiction of the Court in that behalf was excluded by section 67 of the Indian Income tax Act, that the plaintiffs were in any event precluded from setting up the plea of a partition between them and Nagappa as a defence to the enforcement of liability for payment of tax in view of the provisions of section 25A (3), that the 196 partition was sham and not intended to be operative and that items 46 to 51 were not the separate estate of the plaintiffs as contended by them. The purchasers (who were impleaded as defendants 5 to 28) contended that there was no invalidity in the proceedings for assessment of tax and that they having purchased those properties for the full amounts for which they were sold, sales in their favour though not confirmed were binding upon the plaintiffs. Suit No. 52 of 1950 was tried with another suit being suit No. 54 of 1949 of the same Court in which also the validity of the partition dated March 14, 1947 fell to be determined, between the sons of Nagappa and the firm of Kumaji Sare Mal who were creditors under a money decree against Nagappa. The facts which gave rise to that suit are these: Kumaji Sare Mal filed suit No. 7 of 1944 in the Court of the Subordinate Judge, Anantpur, against Nagappa for a decree for Rs. 10,022 10 6 due ' at the foot of certain transactions in yarn. This suit was dismissed by the Trial Court on the ground that the contracts for the supply of yarn were wagering contracts, but in Appeal No. 174 of 1945 the High Court of Madras decreed the suit on March 5, 1947 holding that the contracts giving rise to the liability though speculative were not of a wagering Character. The High Court passed a decree for Rs. 10,000/ with interest at 6 per cent from the date of suit and costs. This decree was soon followed by the execution of the deed of partition,dated March 14, 1947, between Nagappa and the plaintiffs, by which the joint family estate valued approximately at Rs. 1,25,000/ was divided into four shares. To Nagappa was allotted under that partition property of the value of Rs. 31,150/and he stood liable to satisfy debts of the value of Rs. 12,236/4/9. In execution of the decree in suit No. 7 of 1944 Kumaji Sare Mal attached some of the properties that fell to the share of the plaintiffs 197 under the deed of partition dated March 14, 1947. Objections to the attachment preferred under 0.21 r. 58 Code of Civil Procedure by the plaintiffs were dismissed by the executing Court on July 12, 1948. The plaintiffs then filed suit No. 54 of 1949 for a decree setting aside the summary order passed in the execution proceeding, claiming that the debt incurred by Nagappa being avyavaharika, the plaintiffs were not liable to satisfy the debt, and that the firm of Kumaji Sare Mal was incompetent to bring to sale in execution of the decree obtained against Nagappa in his individual capacity, the interest of the plaintiffs in the joint family property after the joint family status was severed and the properties of the family were partitioned. Common evidence was recorded in the two suits. The Trial Judge held that the properties items 1 to 45 belonged in the relevant years of assessment to the joint family of Nagappa and his sons, and in the absence of an order recording partition under section 25A (1) of the Indian Income tax Act, the Income tax Officer was bound to assess the undivided family even after partition on the footing that the family still continued to be joint. He further held that by virtue of section 67 of the Indian Income tax Act, no action questioning the assessment could be entertained by the Courts, and that there was no irregularity in the proceedings for sale. But the Court held that on March 14, 1947 division of property of the undivided family was in fact made between Nagappa and the plaintiffs: that the partition was effected with the object of defeating the claims of the creditors including the Income tax authorities, but it was nevertheless partition which was intended to be overative. The Court further held that items 46 to 51 were not proved by the defendants to be the joint family property of the plaintiffs and Nagappa. In suit No. 54 of 1949 the learned Judge held following 198 Schwebo K.S.R.M. Firm through Partner Govindan, alias Ramanathan Chettiar vs Subbiah alias Shanmugham Chettiar (1), that after a partition between the members of the joint Hindu family the sons ' share in the joint family property cannot be ' proceeded against in execution so as to enforce the pious obligation of the sons to satisfy their father 's debts under a decree passed against the father alone. The learned Judge accordingly decreed suit No. 54 of 1949 holding that the only remedy of the firm Kumaji Sare Mal was to proceed by a suit to enforce the pious obligation of the plaintiffs to discharge the pre partition debts. The plaintiffs appealed against the decree in suit No. 57 of 1950 to the High Court of Madras and the Union filed cross objections to the decree appealed from. Firm Kumaji Sure Mal also appealed against the decree dismissing their suit No. 54 of 1949. The High Court of Andhra Pradesh to which the appeals stood transferred for hearing under the held agreeing with the Trial Court that a suit to set aside the assessment of income tax was not maintainable against the Union, and that in any event in the absence of an order under section 25A(I) of the Indian Income tax Act, recording a partition, the Income tax authorities were bound to assess tax on the Hindu undivided family as if that status continued. The High Court also held that the partition set up by the plaintiffs was a transaction which was nominal and sham, 'and that the evidence established that itmes 46 to 51 were purchased with the aid of joint family funds and not with ,he funds supplied by Seshamma and therefore all the properties itmes 1 to 51 were liable to satisfy the tax liability of the joint family. The High Court also held that the firm Kumaji Safe Mal was entitled to recover the debt due to them in execution proceeding, there being no real partition (1) I. 199 between Nagappa and the plaintiffs prior to the date of attachment. The High Court accordingly dismissed both the suits. We will reserve for separate consideration the common question which arose in these two appeals, namely, whether the partition by the deed dated March 14, 1947 between Nagappa and his sons the plaintiffs was a sham transaction. Even on the footing that the partition was real and intended to be operative, suit No. 52 of 1950 filed by the plaintiffs against the Union was bound to fail for more reasons than one. For the assessment year 1943 44 the Hindu undivided family of Nagappa and his sons was assessed to income tax. In the years 1944 45, 1945 46 and 1946 47 the family was also assessed to pay income tax, super tax and excess profits tax, as set out hereinbefore. Nagappa maintained his accounts according to the Telugu year. and the last year of account corresponding to the assessment year 1946 47 ended on April 2, 1946. Under the Indian Income Tax Act liability to pay income.tax arises on the accrual of the income, and not from the computation made by the Taxing authorities in the course of assessment proceedings: it arises at a point of time not later than the close of the year of account. As pointed out by the Judicial Committee of the Privy Council in Wallace Brothers and Co, Ltd. vs The Commissioner of Income tax, Bombay City and Bombay Suburban District (1): "The general nature of the charging section is clear. First, the charge for tax at the rate fixed for the year of assessment is a charge in respect of the income of the 'previous year, ' not a charge in respect of the income of the year of assessment as measured by the income of the previous year. x x x Second the rate of tax for the year of assessment may be fixed after the close of the previous (1) (1948) L.R. 75 I.A 86. 200 year and the assessment will necessarily be made after the close of that year. But the liability to tax arises by virtue of the charging section alone, and it arises not later than the close of the previous year though quantification of the amount pa yable is postponed. " Liability of the Hindu undivided family of Nagappa and his sons therefore arose not later than the close of each account year and account period for which the tax was assessed and it is not the case of the plaintiffs that the family estate was partitioned before the liability of the undivided family to pay tax arose. There is no dispute in the suit filed by the plaintiffs against the Union that the business carried on by Nagappa was the business of the joint family. It is on the footing that the business carried on by Nagappa was of the joint family, and the income earned in the conduct of the business and the property was joint family income that the plaintiffs have filed this suit. Under section 25A of the Income tax Act, if at the date when the liability to pay tax arose there was in. existence a joint family which has subsequently disrupted, the tax will still be assessed on the Joint family. The machinery for recovery of the tax however. differs according as an order recording partition is.made or not made. If the Income tax Officer is satisfied on a claim made by a member of the family that the joint family property has, since the close of the. year of account been ' partitioned among the various members or groups of members m definite portions, he must ' record an order. to that effect and thereupon notwithstanding anything contained in sub section (1) of section 14 of the Act each member .or group of members is liable in addition .to any income tax for which he. is separately liable for a share of the tax on the income so assessed according to the portion. of the .joint family property allotted to him or it. But even after this apportionment of liability for the tax 201 assessed on the total income of the joint family, the members of the family or groups thereof remain jointly and severally liable for the tax assessed on the total income received by the family as such. If no order is recorded tinder sub section (1) of section 25A, by virtue of sub section (3) the family shall be deemed, for the purposes of the Act, to continue to remain a Hindu undivided family. Section 25A merely sets up machinery for avoiding difficulties encountered in levying and collecting tax, where since the income was received the property of the joint family has been partitioned in definite portions, while at the same time affirming the liability of such members or group of members, jointly and severally to satisfy the total tax in respect of the income of the family as such. The section seeks to remove the bar imposed by section 14 (1) against recovery of tax from an individual member of a joint Hindu family in respect of any sum which he receives as a member of the family, and to ensure recovery of tax due, notwithstanding partition. The incidence of tax, but not the quantum is readjusted to altered conditions. The judicial Committee of Privy Council in Sardar Bahadur Sir Sunder Singh Majithia vs Commissioner of Income tax, United and Central Provinces (1), analysed the scheme of section 25A as follows : "Section 25A is directed to the difficulty which arose when an undivided family had received income in the year of account but was no longer in existence as such at the time of ' assessment. The difficulty was the more acute by reason of the provision an important principle of the Act contained in section 14 (1) "The tax shall not be payable by an assessee in respect of any sum which he receives as a member of a Hindu undivided family." (1) (1942) L. R, 69 I. A. 119, 202 "Section 25A deals with the difficulty in two ways, which are explained by the rule, appli cable to families governed by the Mitakshara, that by a mere claim of partition a division of interest may be effected among coparceners so as to disrupt the family and put an end to all right of succession by survivorship. It is trite law that the filing of a suit for partition may have this effect though it may take years before the shares of the various parties are determined or partition made by metes and bounds. Meanwhile the family property will belong to the members as it does in a Dayabhaga family in effect as tenants in common. Section 25A provided that if it be found that the family property has been partitioned in definite portions, assessment may be made, notwithstanding section 14 (1), on each individual or group in respect of his or its share of the profits made by the undivided family, while holding all the members jointly and severally liable for the total tax. " In the present case no order under section 25A (1) was recorded. It is true, that Nagappa had made before the Income tax Officer on January 19, 1948 the following statement : "I am at present living singly. My sons divided from me about ten months back. There is a document to this effect. The document was registered. My sons are as follows" : After recounting the names of his three sons and their respective ages, lie proceeded to state "The guardian to these minor children is my wife. I divided my family properties between myself and my children. The properties 203 belonged to our joint family. The business also belonged to my joint family. " It may be assumed that by this statement within the meaning of section 25A it was claimed "by or on behalf of any member of a Hindu family hitherto assessed as undivided" that a partition had taken place among the members of his family and that the Income tax Officer was bound to make an inquiry contemplated by section 25A. But no inquiry was in fact made and no order was recorded by the Income tax Officer about the partition : by virtue of sub section (3) the Hindu family originally assessed as undivided had to be deemed for the purposes of the Act, to continue to be a Hindu undivided family. If by the assessment of the family on the footing that it continued to remain undivided, Nagappa or his sons were aggrieved their remedy was to take an appropriate appeal under section 30 of the Indian Income tax Act and not a suit challenging the assessment. The method of assessment and the procedure to be followed in that behalf are statutory, and any error or irregularity in the assessment may be rectified in the mariner provided by the statute alone, for section 67 of the Indian Income tax Act bars a suit in any Civil Court to set aside or modify any assessment made under the Act. The Income tax Officer made the assessment of tax under the Act : granting that he committed an error in making the assessment without holding an inquiry into the partition alleged by Nagappa, the error could be rectified by resort to the machinery provided under the Act and not by a suit in a Civil Court. In Commissioner of Income tax, West Punjab, North West Frontier and Delhi. Provinces, Lahore vs Tribune Trust, Lahore (1), the judicial Committee observed : " x x x x the only remedies open to the tax payer, whether in regard to appeal against assessment or to claim for refund are (1) (1947) I R. 74 I. A. 306, 316, 204 to be found within the four corners of the Act. This view of his rights harmonises with the provisions of section 67, x x x that no suit shall be brought in any Civil Court to set aside or modify any assessment made under the Act. It is the Act which prescribes both the remedy and the manner in which it may be enforced. " The suit filed by the plaintiffs against the Union must therefore fail on three independent grounds, each of which is sufficient to non suit them. (1) The suit which was in substance one for setting aside an assessment was in law not maintainable because of section 67 of the Indian Income tax Act ; (2) That in the absence of an order under section 25A (1) assessment of the Hindu joint family was properly made ; and (3) Even if an order recording partition wag made the liability of the plaintiffs to pay income tax assessed on the family could still be enforced against them jointly and severally under section 25A(2) proviso. The plea of irregularity in holding the sale proceedings set up in the Trial Court was negatived by the Trial Court as well as the High Court, and has not been canvassed before this Court. About the title of the plaintiffs to items 46 to 51 in the schedule annexed to the plaint, the High Court disagreed with the Trial Court. These properties were purchased in the names of two of the three plaintiffs by the sale deed Ext. A 230 dated March 15, 1944. The consideration of the sale deed was Rs. 23,500/ of which Rs. 5,019/ had been paid in advance in four instalments before March 15, 1944, 205 and the balance of Rs. 18,481/ was paid before the Sub Registrar to the vendors who conveyed the properties to Devadattam and Devarayulu two of the three plaintiffs acting by their mother Narayanamma as their guardian. The properties having been purchased in the names of the two plaintiffs the burden prima facie lay upon the Taxing authorities to establish that the sale deed was taken for and on behalf of the joint family or with the aid of joint family funds. Evidence was led by both the sides to support their respective versions. The Trial Court held that the plaintiffs ' case that their grandmother Seshamma provided the consideration was not proved, but there was also no evidence to show that the consideration was provided by the joint family, and as the burden of proof lay upon the Union, their case must fail. The High Court however held that the burden which lay upon the Union to prove that the properties were purchased out of the joint family funds was duly discharged. The question of onus probably is certainly important in the early stages of a case. It may also assume importance where no evidence at all is led on the question in dispute by either side; in such a contingency the party on whom the Onus lies to prove a certain fact must fail. Where however evidence has been led by the contesting parties on the question in issue, abstract considerations of onus are out of place; truth or otherwise of the case must always be adjudged on the evidence led by the parties. But in support of the case that Seshamma had provided the consideration three witnesses P.W. 4, P.W. 5, and P.W. 8 were examined. Seshamma had died a few months before evidence was recorded in the suit. That evidence was found by the Trial Court as well as the High Court to be discrepant and in essential particulars so improbable that it could not be relied upon. P.W. 4 Narayanamma plaintiffs ' mother deposed that the properties had been 206 purchased for the plaintiffs by her mother Seshamma with the money given to Seshamma" by her husband. This money according to Narayanamma was given to Nagappa and Nagappa paid it to the vendors in the presence of the Sub Registrar. But this story stands wholly discredited by her admission that Seshamma 's husband and his brothers were joint in business and estate till the former 's death. Again there is on the record a statement made by Seshamma, before the Income tax authorities, wherein she had stated that when her husband died, she might have had with her about Rs. 4,000/ to Rs. 5,000/ which she gave to her daughter. Nagappa was questioned in regard to this statement and he suggested that the statement was obtained by coercion from Seshamma by the Income tax authorities. The story that Seshamma Owned a large amount of cash, is not supported by any documentary evidence and it is difficult to believe that a trading family would not have invested the amount, if it was in truth devised to Seshamma by. her husband. In cross examination Narayanamma altered her version. She stated that Seshamma 's uncle had left everything to her as he had no children or family but he did riot execute any document in favour of Seshamma and that at the time of his death he stated orally that Seshamma should take all the properties and that Seshamma and her brother knew about what she received from her paternal uncle. P. W. 5 Venkatsami who was originally a clerk of Nagappa, said that he was acting as a clerk in the employment of Narayanamma. He swore that he had seen Seshamma giving Rs,6,000/to Narayanamma about four years ago and that a month later Seshamma brought Rs. 3,000/ and gave them to Narayanamma and that about *,en days thereafter Seshamma brought Rs. 12,000/ and gave them to Nagappa and Narayanamma. He admitted that Seshamma had no immovable property other than a house which she had bequeathed to her daughter under a will. The witness did not know 207 how Seshamma got the amount. He, however, stated somewhat inconsistently under cross examination that on the date of registration of Ext. A 230 Seshamma had asked her daughter 'Narayanamma to bring the money. ' On that day the key of the iron safe was with Narayanamma and that Narayanamma brought some cash which was counted and paid over to the vendors. Both the Courts found that this witness was unreliable and a bare reading of his recorded testimony confirms that view. Nagappa said that Seshamma had paid the consideration for the sale deed, but in cross examination he made diverse statements which threw doubt upon the truth of that story. He was interested in devising ways and means for saving the properties for the benefit of his sons. It was he who had instigated and had prosecuted the suits. His bare statement that the consideration for the sale deed was advanced by Seshamma not supported by any documentary evidence is unreliable, especially having regard to the statement which Seshamma had made before the Income tax authorities. It must therefore be held that the Courts below were right in holding that the plaintiffs have failed to establish that the properties conveyed by the sale deed were purchased with the funds supplied by Seshamma. It is common ground that the plaintiffs had no other source of income. As admitted by Nagappa and his clerk Venkatsami, Nagappa made large profits in his business, and Rs. 18,481/ out of the consideration payable under Ext. A 230 were actually paid to the vendors by Nagappa. There were before the Court two versions one by the plaintiffs who alleged that the consideration for the sale deed was supplied by Seshamma. That version, for reasons already stated, cannot be accepted. On the other hand there is the version that the funds belonged to the joint family of which Nagappa was the Manager and that Nagappa paid the consideration. No documentary evidence in support of either version is forthcoming : 208 even Nagappa 's accounts have not been produced. But if the moneys were actually paid by Nagappa and the story about Seshamma having provided the amount be disbelieved, it would be a legitimate inference consistent with probability that Nagappa had for purchasing the property provided the funds out of the joint family earnings. It appears that Kumaji Sare Mal who are the respondents in Appeal No. 642 of 1961 had in the suit filed by them in 1942 obtained an order for attachment before judgment over the immovable property of the joint family in the hands of Nagappa. This attachment before judgment was outstanding at the date of the saledeed Ext. A 230. This order for attachment before judgment was vacated when the suit was dismissed by the Trial Court on August 31, 1944. This circumstance in the context of the other evidence strongly supports the contention of the Union that with a view to protect the properties from his credi tors Nagappa thought of purchasing the properties in the names of his sons the plaintiffs and the consideration was advanced by him. The High Court was therefore right in holding that the properties items 46 to 51 were of the joint family and liable to be attached and sold in enforcement of the liability for payment of income tax. Civil Appeal No. 641 of 1961 must therefore fail. We may now deal with the questions which fall to be determined in Civil Appeal No. 642 of 1961 one of the questions being common in Appeals Nos. 641 and 642 of 1961. Suit No. 7 of 1944 was filed by the firm Kumaji Sare Mal for damages for breach of Contract. That suit was decreed by the High Court on March 5, 1947. Within nine days thereafter the deed of partition came into existence. The plaintiffs contended that the debts due by Nagappa to Kurmaji Sare Mal being immoral or avyavharika their share in the properties was not liable to be sold. In any event, they contended, 200 the shares allotted to them under the deed of partition were not liable to be attached and sold in execution proceeding in enforcement of the decree against their father Nagappa, and the remedy of the creditor even if the debts were not avyavharika was to file a suit to enforce the pious obligation of the plaintiffs and not in execution of the decree obtained against Nagappa alone. The creditors contended that the deed of partition was a sham transaction and therefore they were entitled to proceed in execution. Alternatively, it was contended that even if the deed of partition did not evidence a sham transaction, it was open to them as holders of a decree obtained before the partition to enforce the pious obligation of the plaintiffs to discharge the debts of their father in execution of the decree, and it was not necessary for them to file a separate suit. On the question as to the proper procedure for enforcement of the liability of a Hindu son to discharge the debts of his father which are not avyavharika, where since the passing of the decree on the debt against the father there has been a partition between the father and son, there has arisen difference of opinion. The Madras High Court in Schwebo K.S.R.M. Firm vs Subbiah (1), held that the son 's share in the property cannot be proceeded against in execution, as the division of status brought about by the partition will stand, notwithstanding the avoidance of the partition as a fraudulent transfer. This was reaffirmed in a Full Bench judgment of the Madras High Court in Katragadda China Ramayya vs Chiruvella Venkunraju (2), where the Court held: " A son under the Hindu law is undoubtedly liable for the pre partition debts of the father which are not immoral or illegal. If a decree, however, is obtained against the father alone and there is a partition of the family proper ' ties, in execution of such a decree, the son 's share cannot be seized by the creditor as by (1) I.L.R, (2) A.I.R. (1954) Mad. 210 reason of the partition the disposing power of the father possessed by him over the son 's share under the pious obligation of the son to discharge the father 's debts can no longer be exercised. With the partition, the power comes to an end. The liability thereafter can be enforced only in a suit. After partition, the son 's share can no longer be treated as property over which the father had a disposing power within the meaning of section 60 Civil P.C." On the other hand the Bombay High Court has held in Ganpatrao Vishwnathappa vs Bhimrao Sahibrao that a decree obtained against the Hindu father may after partition be executed against the son 's interest by impleading the son as a party to the executing proceeding against the father. There is no clear expression of opinion by this Court on this question, though in S.M. Jakati vs S.M. Borkar (2), this Court has held that the liability of a Hindu son to discharge the debts of his father which are not tainted with immorality or illegality is founded in the pious obligation of the son which continues to exist in the life time and even after the death of the father and which does not come to an end as a result of partition of the joint family property: all that results from partition is that the right of the father to make an alienation comes to an end. In that case the property of the family was sold in execution of a money decree against the father and the sons sued to set aside the sale in so far as is affected their interest in the property and for a decree for possession of their share. The Court held that it was not proved that the liability which was incurred by the father was illegal or immoral and the sale of the joint family property including the share of the sons for satisfying the debts was valid notwithstanding the severance of the joint family status effected before the sale was held through Court. We do not think it necessary to express our opinion on the question whether the (1) I.L.R. (2) , 211 remedy of the creditor is to file a separate suit to enforce the pious obligation of a Hindu son to discharge the debts of his father, where since the decree against the father on a debt there has been a severance of the joint family status, or whether he can proceed to execute the decree against the son 's interest in the property, after impleading him as a party to the execution proceeding, for we are definitely of the that partition was a sham transaction which was not intended to be operative. On March 14, 1947 the deed of partition was executed and registered. The object of this partition it is alleged was to protect the interest of his minor sons against their father who was acting to the detriment of his sons and was not even living with the family. The High Court relied upon a large number of circumstances in support of its view that the partition was nominal. The deed was executed within a week after the decree was passed by the High Court in Kumaji Sare Mal 's suit. Nagappa had acquired an extensive property which was on acquisition treated as joint family property and there was nothing to show that Nagappa was ill disposed towards his sons or was actuated by any desire to harm their interest. The real purpose of the partition was to save as much property as possible and to preserve it for his children. The deed of partition showed apparently an equal distribution of property valued at Rs. 1,24,600/ into four shares each of the value of Rs. 31,150/ but the properties allotted to the share of Nagappa were in reality not worth that amount. Nagappa had also to discharge a debt for Rs. 12,236/4/9 for which he was rendered liable under the deed and that debt could not be satisfied out of the property allotted to him. Again immediately after the deed of partition, Nagappa settled upon his wife Narayanamma a major fraction of that share and sold away one of the houses. The intention 212 of Nagappa to make it appear to the Income tax Department that no useful purpose would be served by taking coercive steps as the property allotted to him and remaining after disposal of a good part of it as indicated above was wholly insufficient to meet the demands of the Department, is indeed clear. It was Nagappa who had instigated and prosecuted the suits. Narayanamma was an illiterate and ignorant woman, who knew nothing about Nagappa 's transac tions, and dealings. She did not even know what property had fallen to the share of her sons. Admissions made by her disclose that she did not manage the property though apparently she was treated as the guardian of her sons in the partition deed. The story that Nagappa was living with a mistress, and was not looking after the education and welfare of his minor sons does not appear to be supported by any reliable evidence. The eldest son was at the date of the alleged partition 14 years of age, and the youngest was three years old, and in the absence of any serious cause for differences between Nagappa and Narayanamma, partition of the estate could not have been thought of. Witness Singari Seshanna D.W.I. has deposed that Nagappa, his wife and children were living together in the family house even at the date of the suit and that Nagappa was collecting rents from all the houses. This statement does not appear to have been challenged in cross examination. P.W. 5 Venkatsami the clerk of Narayanamma, who claimed to be looking after management of the properties on behalf of Narayanamma, admitted that he could not say which of the houses were leased and to whom; he was unable ', to give any particulars with regard to some of the houses. This ignorance on the part of the alleged manager lends support to the testimony of Singari Seshanna D.W. 1 that it was Nagappa who remained in management of the property, and that the family lived together and in fact there was no disruption of the joint family. It is true that many documents were produced to show that 213 the properties were entered in the names of the sons after the deed of partition. It also appears that taxes were paid separately in respect of the houses to the local Municipality and receipts were issued in the names of persons in whose names they stood in the municipal records. But these receipts do not show the names of the persons by whom the amounts acknowledged in the receipts were paid. The High Court has believed the evidence of Singari Seshanna D.W. I that it was Nagappa who continued to remain in management. It is true that the plaintiffs have led evidence of two witnesses P.W.6 and P.W. 7 who have deposed that they had assisted in making the partition. The deed of partition was undoubtedly executed and was registered, but the mere execution of the deed is not decisive of the question whether it was intended to be effective. The circumstances disclosed by the evidence clearly show that there was no reason for arriving at a partition. Counsel for the plaintiffs practically conceded that fact, and submitted that Nagappa 's desire to defeat his creditors, and to save the Property for his sons, was the real cause for bringing the deed of partition into existence. Counsel claimed however that Nagappa had adopted the expedient of affecting a partition with the object of putting the property out of the reach of his creditors, and the genuineness of that partition should not be permitted to be blurred by the unmeritorious object of Nagappa. But the continued management of the property by Nagappa since the partition, and the interest shown by him in prosecuting the suits do clearly support the inference that the deed of partition was a nominal transaction which was never intended to be acted upon and was not given effect to. If it be held that the partition was a sham transaction the plaintiffs ' suit or setting aside the summary order passed in execution proceeding on the application filed by the plaintiffs for setting aside the attachment must fail, 214 The Appeal No. 642 of 1961 must therefore also fail. Both the appeals are therefore dismissed with costs. Appeals dismissed.

IN-Abs

Nagappa and his sons who formed a joint family carried on business and they were assessed to income tax and super tax by the Income tax authorities. As Nagappa did not pay the tax assessed, 51 items of immovable property belonging to the joint family were attached and 38 items were actually sold A suit was filed by the sons of Nagappa claiming a decree declaring that the assessment orders were unenforceable against the property attached and the sale of the property by the revenue authorities was without jurisdiction, void and illegal and an order restraining the Union of India and the authorities of the State of Madras from selling the scheduled properties or confirming the sales already held. The plaintiffs contended that the items 46 to 51 did not belong to the joint family at all as these were acquired by them with funds provided by their maternal grand mother and the remaining items of property were not liable to be attached and sold as those had been allotted to them on a partition of the joint family estate on March 14, 1947, before the order of assessment was made by the Income tax authorities. The contention of the Union of India was that the plaintiffs were not entitled to question the correctness of the assessment of tax in a Civil Court because the jurisdiction of the court was excluded by section 67 of the Indian Income tax Act, that the plaintiffs were precluded from setting up the plea of partition between them and their father as their defence to the enforcement of liability for the payment of tax in view of the provisions of section 25 A (3), that the partition was sham and not intended to be operative and items 46 to 51 were not the separate estate of the plaintiff. 192 In another case, the High Court passed on March 5, 1947, a decree for Rs. 10.000/ against Nagappa and in favour am of Kumaji Sure Mal. On March 14, 1947, a deed of partition was executed by which the joint family estate of Nagappa and his sons was divided and separate shares were given to Nagappa and his sons. Kumaji got certain properties attached in execution proceedings. A suit was filed by the sons of Nagappa claiming that the debt incurred by Nagappa being Avyavaharika, the plaintiffs were not liable to satisfy the debt and Kumaji was not. competent to bring to sale in execution of the decree obtained against Nagappa in his individual capacity, the interest of the plaintiffs in the joint family property after the joint family status was severed and the properties of the families were partitioned. Held that both the suits of the appellants must be dismissed. The suit against the Union of India must fail on three independent grounds; The suit which was in substance one for setting aside an assessment was in law not maintainable because of section 67 of the Indian Incometax Act, 1922. In the absence of an order under section 25 A (1), the assessment of the Hindu joint family was properly made. Even if an order recording partition was made, the liability of the plaintiffs to pay income tax assessed on the family could still be enforced against them jointly and severally under section 25 A (2) proviso. Under section 25 A of the Income tax Act, if at the date when the liability to pay tax arose ' there was in existence a joint family, the fax Will still be assessed on the joint family notwithstanding its disruption after the crucial date. The machinery for recovery of the tax differs according as an order regarding partition is made or not made. If the Income tax Officer is satisfied that the joint family property has, since the close of the year of account, been partitioned among the various members or groups of members in definite portions, he must record an order to that effect and thereupon each member or group of members is liable, in addition to any income tax for which he is separately liable, for a share of the tax on the income so assessed according to the portion of the joint family property allotted to him. But even after this apportionment of liability for the tax assessed on the total income of the joint family, the members of the family or groups thereof remain jointly and severally liable for the tax assessed on the total income received by the family as such. If no order is recorded under section 25 A (1), the family shall be deemed, for the purpose of the Income tax Act, to continue to remain a Hindu undivided 193 family. Section 25 A merely sets up machinery for avoiding difficulties encountered in levying and collecting tax Held also, that properties items 46 to 51 belonged to the joint family and were liable to be attached and sold in enforcement of the liability for payment of income tax, because the alleged partition between Nagappa and his sons was a sham transaction which was not intended to be operative. The question of onus probandi is important in the early stages of a case. It may assume importance where no evidence at all is led on the question in dispute by either side. ' In such a contingency, the party on whom the onus lies to prove a certain fact, must fail. Where, however, evidence had been led by the contesting parties on the question in issue, abstract considerations of onus are out of place. Truth or otherwise of the case must always be adjudged on the evidence led by the parties. Schwebo K.8.R.M. Firm through partner Govindan alias Ramanatham Chettiar vs Subbiah alias Shanmugham Chettiar, I.L.R. , Wallace Brothers & Co. Ltd. vs The Commissioner of Income tax, Bombay City and Bombay Suburban District, (1948) L.R. 75 I.A. 86, Sir Sunder Singh Majithia vs Commissioner of Income tax, United and Central Provinces (1942) L.R. 69 I.A. 119; Commissioner of Income tax West Punjab, North West Frontier and Delhi Provinces vs Tribune Trust, Lahore: (1947) L.R, 74 I.A. 306, Katragadda China Ramayya vs Chirwvella Venkanraju, A.I.R. , Ganapatrao Vishwanathappa vs Bhimrao Sahibrao, I.L.R. 1950 Born. 414 and S.M. Jakati S.M. Borkar, , referred to.

minal Appeal Nos. 102404 of 1961, 90 Appeals by special leave from the judgment and order dated December 21, 1960 of the Allahabad High Court in Criminal Appeals Nos. 737,738 and 744 of 1960. Frank Anthony and P.C. Agarwala, for the appellant. G.C.Mathur and C.P. Lal, for the respondent. April 17. The Judgment of the Court was delivered by WANCHOO J. These are three appeals by special leave against the judgment of the Allahabad High Court. It will be convenient to dispose them of together, though they arise out of three different trials before the Special Judge, Saharanpur under section 5 (2) of the Prevention of Corruption Act, No. 2 of 1947, (hereinafter referred to as the Act), as the appellant is the same in all the appeals. The brief facts necessary for present purposes are these. Munnalal was the cashier of the Municipal Board of Hardwar and had been working as such since 1932. He was in charge of the cash and it was his duty to see that whenever the funds in his possession exceeded Rs. 4,000/ they were deposited in the treasury or the Imperial Bank at Roorkee. In 1949 there was an audit of the accounts of the Board and on May 24, 1949, the auditor found that the money received by the Board from April 20, 1949, to May 23, 1949, totalling Rs. 52,144/ had not been deposited in the treasury or the Imperial Bank at Roorkee. The matter was then reported to the Chairman of the Board, who called Munnalal and took his explanation as to the alleged embezzlement. It is said that the appellant admitted that he had spent some of the money in the .marriage of his daughter and some was used in his shop and Rs. 10,000/to 'Rs. 11,000/ had been given to the Executive Officer and the remainder was at his house. The appellant 91 was asked to make good the loss immediately but failed to do so. Thereupon the appellant was suspended and the matter was handed over to the police for investigation. The police registered a case under section 409 of the Indian Penal 'Code and after investigation prosecuted the Executive Officer as well as the appellant and his brother who was the Assistant Cashier at the relevant time. The case was transferred by the High Court to a magistrate in Meerut; but that case was not proceeded with as an application was made to withdraw it on the ground that the case was covered by section 5 (2) of the Act. So the magistrate discharged the three accused of that case. Thereafter necessary sanction was given for prosecution under section 5 (2) of the Act and four prosecutions were launched against the appellant and his brother. The Special Judge, however, took the view that the joint trial of the appellant and his brothers was not possible with respect to some of the moneys said to have been embezzled. He therefore ordered that there should be three separate trials of the appellant alone with respect to certain moneys in addition to the four trials of the appellant and his brother with respect to the remainder. That is how seven trials took place. In the present appeals we are not concerned with the other accused, namely, the brother of the appellant, as he was acquitted. We arc also notconcerned with four of the trials; we arc only concerned with three trials with respect to three sums of money in these three appeals. Appeal No. 102 is concerned with a sum of Rs. 1623/4/ , received between April 14, 1949 and May 23, 1949 and not accounted for; appeal No. 103 is concerned with a sum of Rs. 9611 9 6 received between April 20, 1949 and May 24, 1949 and not accounted for; and appeal No. 104 is concerned with a sum of Rs. 43087/ /3 received between April 20, 1949 and May 24, 1949 and not accounted for. 92 The case of the prosecution was that these sums were received by the appellant during the period mentioned above and had not been deposited either in the treasury or in the Imperial Bank at Roorkee as required by the rules. The appellant practically admitted the receipt of the money except a few items which were also found by the Special Judge to have been received by him. He also admitted that his duty was to deposit any sums above Rs. 4,000/ in the Imperial Bank or the treasury at Roorkee. He was however inconsistent in his defence as to what he did with the moneys which he had undoubtedly received. He first tried to prove that he had deposited the amounts. , In the alternative his case was that a practice had been prevailing for many years in the office of the Board under which the Executive Officer and other employees of the Board used to take advances from the cashier from time to time by sending slips and the cashier was utilised as a banker for all officers and servants of the Board, including the Executive Officer. Though these sums were supposed to be returned to the cashier (appellant) in the beginning of the next month when pay was drawn by those who had taken these unauthorised advances, in actual fact this did not always happen. The result of these advances which were sometimes of large amounts was that the money could not be deposited in the treasury according to the rules as these advances were being constantly made to the officers and servants of the Board. The appellant therefore contended that he had not converted the money to his own use and had advanced the same to the officers and servants of the Board according to the practice prevalent for a number of years and that such advances were even made to the highest officer of the Board, namely, the Executive Officer, and that the officers all knew of this practice and also knew that moneys were not being deposited in the Bank or the treasury at Roorkee as required by rules. 93 The Special Judge held on the evidence that it was proved that the moneys which were the subject matter of the charge (except for two items) had been received by the appellant. He also held that except for certain items, the appellant had dishonestly or fraudulently misappropriated or otherwise converted to his own use the property entrusted to him or under his control as a public servant or allowed any other person so 'to do. He therefore found the appellant guilty under section 5 (2) of the Act read with section 5 (1) (c) thereof. The Special Judge sentenced the appellant to five years ' rigorous imprisonment in the cases from which appeals Nos. 102 and 103 arise but ordered the sentences to run concurrently. He also sentenced the appellant in the case from which appeal No. 104 arises to five years ' rigorous imprisonment and a fine of Rs. 42,000/ . The sentence in this case was apparently not made concurrent. The appellant filed three appeals before the High Court which were heard together. The High Court agreed with the conclusions of the Special .Judge and upheld the conviction of the appellant in the three cases. In view however of the practice to which reference has been made above and which was proved to the hilt and in view also of the fact that these cases had taken almost 11 years to be disposed of, the High Court reduced the sentences in the three cases to two years ' rigorous imprisonment and made them all concurrent. It also set aside the sentence of fine as it was of the view that though the appellant was guilty he had not converted the money to his own use but had advanced most of it to the officers and servants of the Board. The present appeals by special leave are against these judgments of the High Court in the three appeals. ' Two points have been urged on behalf of the appellant and it is said that in view of those points the trial was illegal and should be .quashed. In the first place it is urged that the investigation was 94 irregular and not in accordance with section 5A of the Act. Section 5A lays down that no police officer below the rank of a Deputy Superintendent of Police shall investigate any offence punishable under the Act outside the presidency towns without the.order of a magistrate of the first class. What happened in this case was that originally the entire investigation was done by a sub inspector of police and therearter the case under sections 409/406 of the Indian Penal Code was instituted against the appellant, his brother and the Executive Officer. That case was later withdrawn and it was thereafter that sanction was granted for the prosecution of the appellant and his brother under section 5 (2) of the Act and investigation was made as required by section 5 A. But the evidence shows that this investigation merely consisted of this that the duly authorised investigating officer went through the papers of the earlier investigation and decided to file four prosecutions as already indicated on the basis of the earlier investigation. It does appears from these facts that though the letter of section 5A of the Act was complied with its spirit was not, for in reality there was no investigation by the officer authorised under that section and the real investigation was by a sub inspector of police who was never authorised. In H.N. Rishbud & Inder Singh vs The State of Delhi (1), this Court held that "section 5A is mandatory and not directory and an investigation conducted in violation thereof is illegal". This Court further held that "if cognizance is in fact taken on a police reporting breach of a mandatory provision relating to investigation, the results which follow cannot be set aside unless the illegality in the investigation can be shown to have brought about a miscarriage of justice". It was further held that "an illegality committed in the course of an investigation does not affect the competence and the jurisdiction of the court for trial and where cognizance of the case has in fact been taken and the case has proceeded to ; 95 termination the invalidity of the preceding investigation does not vitiate the result unless miscarriage of justice has been caused thereby". In view of this decision, even if there was irregularity in the investigation and section 5A was not complied with in substance, the trials cannot be held to be illegal unless it is shown that miscarriage of justice has been caused on account of the illegal investigation. Learned counsel for the appellant has been unable to show us how there was any miscarriage of justice in these cases at all due to the irregular investigation. As a matter of fact on the alternative case put forward by the appellant, the substance of the prosecution case was practically admitted by him and he merely pleaded certain mitigating circumstances. Learned counsel for the appellant however drew our attention to the State of Madhya Pradesh vs Mubarak Ali. (1) In that case an objection was taken before the trial began before the Special Judge that the investigation had been carried on in breach of section 5A of the Act. The matter went before the High Court and it directed that in order to rectify the defect and cure the illegality in the investigation, the Special Judge should have ordered the Duputy Superintendent of Police to carry on the investigation himself while the case remained pending in the court of the Special Judge. That order of the High Court was brought in appeal to this Court, and the appeal was dismissed. This case in our opinion is of no assistance to the appellant, for there the objection was taken at the earliest stage before the trial began and it was in those circumstances that the trial was stayed till proper investigation was completed and a proper report made thereafter for the prosecution of the accused of that case. In the present cases no objection was taken at the trial when it began and it was allowed to come to an end. In these circumstances the ratio of Mubarakali 's case (1) cannot apply and the decision in Rishbud 's case (2) would apply. The appellant therefore cannot say that the trial was (1) [1959] supp. 2 S.C.R. 201. (2) [L955] 1 section C.R. 1150 96 vitiated unless he can show that an. V, prejudice was caused to him on account of the illegal or irregular investigation. We have already remarked that no such thing has been shown in this case; nor was it possible 10 show any such thing in view of the alternative defence taken by the appellant. We therefore reject this contention. The next contention that has been urged is that there was no proper sanction in these cases and this is based on the fact that only four cases were filed before the Special Judge with of course proper sanction; but these cases were split up into seven and the argument is that there was no sanction for the remaining three cases, and two of the present appeals namely Nos. 102 and 103 are out of these split up cases. It is also urged that the sanction was not with respect to section 5 (1) (c) of the Act though it was under section 5 (2) of the Act and therefore it was insufficient to confer jurisdiction on the Special Judge to try the appellant under section 5(1)(c) read with section 5 (2). We are of opinion that there is no force in either of these contentions. It is true that the Special Judge split up the four cases before him into seven; but it is not disputed that the amounts involved in the three new cases which the Special Judge had directed for splitting up due to the difficulty of joint trial were with respect to amounts which were included in the four cases filed before him and with respect to which there was sanction. The mere fact that in view of the provisions of section 239 of the Code of Criminal Procedure the Special Judge thought it necessary to separate the trial of Munnalal with respect to certain items for which there was sanction would not mean that these cases which were directed by the Special Judge to be split up for that reason had no sanction behind it. The sanction of the original four cases would cover these three cases also which were split out of the original four cases. 97 As to the argument that there was no sanction for prosecution under section 5 (1) (c), it is clear that there is no force in it. The sanction says that the appellant had received money and misappropriated it by not crediting the same into the treasury and embezzled it and was therefore guilty of criminal misconduct and liable to prosecution under sections 409/406 and s 5 (2)of the Act. The allegations made clearly show that the sanctioning authority had section 5 (1) (e) in mind because the sanction speaks of misappropriation and embezzlement of the moneys of the Board and misappropriation and embezzlement is only to be found in section 5 (1) (c). It is argued however that section 5 (1) (c)speaks of misappropriation or otherwise conversion to his own use any property entrusted to him or under his control by a public servant for himself. It also speaks of a public servant allowing any other person to do so. But the sanction seems to show as if the appellant was to be prosecuted for converting the property to his own use. There is in our opinion no substance in this argument, for the sanction speaks of misappropriation and embezzlement and there is nothing in the words to imply that this was only with reference to conversion by the appellant to his own use. As the words of the sanction stand they would cover a case of misappropriation or conversion to his own use by the appellant himself or by allowing others to do so. We are therefore of opinion that the sanction was sufficient for the purpose of giving jurisdiction to ' the Special Judge to take cognizance of the cases out of which these appeals have arisen. This brings us to the merits of the three appeals. So far as this is concerned, learned counsel for the appellant has not urged and, in our opinion, rightly that the convictions are unjustified. The only question that he has urged is that in view of the established facts that the appellant was using the Board 's money in order to advance it to the officers 98 and servants of the Board beginning with the highest officer of the Board, namely, the Executive Officer and that the evidence as found by the High Court does not seem to establish that there was any conversion of the moneys by the appellant to his own use, this is a case in which the appellant was more sinned against than sinning. It is conceded that as the appellant was the cashier it was his duty in law to follow the rules with respect to the custody of the cash of the Board entrusted to him and if he did not do so he would be guilty. But it is urged that when the highest officer of the Board, namely, the Executive Officer was himself taking out money from the funds of the Board by sending slips to the cashier and other officers and servants of the Board were doing the same thing and this was well known, presumably also to the Chairman of the Board, it is not just that the appellant should be made to suffer when he was obliging the officers and servants of the Board and might even have felt compelled to grant the demands of the Executive Officer and other officers and servants of the Board, for he was serving under some of them. We must say that the evidence discloses, a scandalous state of affairs which was allowed to go on and even the highest officer of the Board, namely, the Executive Officer, was cognizant of this state of affairs and was himself a party to it. The appellant 's case further was that even the Chairman knew about it and was at times party to it and this may also be not incorrect. In these circumstances there is force in the contention on behalf of the appellant that he was more sinned against than stoning and that the misappropriation took place because he had to oblige these officers and servants of the Board or otherwise incur their displeasure which he could hardly do. So it is urged on behalf of the appellant that as he has already been in jail for more than ten months in the circumstances that punishment along with the fact that the trial had been prolonged for eleven years since 1949 should 99 be sufficient punishment for him. Ordinarily this Court does not interfere in the matter of sentence in appeals under article 136 but we think in the circumstances disclosed in the present appeals when the officers and servants of the Board including the highest officer were behaving as if the moneys of the Board were their private property and the misappropriation took place mainly because the appellant was obliging these officers and servants of the Board, that the sentence already undergone by the appellant would meet the ends of justice. We ought to add that Mr. Mathur who appeared for the respondent State did not feel justified and we think rightly in pressing for the confirmation of the reduced sentence passed by the High Court in appeal. We therefore dismiss the appeals with the modification that the sentence m each case is reduced to the period already undergone. The appellant, if on bail, shall be discharged from his bail bonds in respect of these appeals. Appeals dismissed. Sentence reduced.

IN-Abs

The appellant was the cashier of the Municipal Board Hardwar. He was in charge of the cash and it was his duty to see that funds above Rs. 4,000/ were deposited 'in the treasury or the Imperial Bank. On audit it was found that money received by the Board totalling Rs. 52,144/ was not deposited as required by the rules. On complaint by the Chairman of the Board, a Sub Inspector of Police investigated the case and a case was registered under section 409 of the Indian Penal Code, But this case was withdrawn and the accused discharged on the ground that it was covered .by section 5 (2) of the Prevention of Corruption Act. Thereafter investigation was conducted by an officer as required by section 5A of the Act. But this investigation consisted of this that the duly authorised investigating officer went through the papers of the earlier investigation and decided to file a fresh prosecution on the basis of the earlier investigation. Sanction was obtained for (2) of the Act. Subsequently the four cases, in which the appellant and his brother were jointly charged were split up into 7 cases. In the three new cases only the appellant was tried. The Trial Judge found the appellant guilty unders 5 (2) read with section 5 (1) of the Act and sentenced him to undergo imprisonment and to pay fine. On appeal to the High Court, it upheld the conviction but reduced the sentence and. set aside the sentence of fine. The appellant appealed to this Court with special leave. The following points were urged in the appeal before this Court. Firstly, it was urged that the investigation 89 irregular and not in accordance. ,with section 5A of the Act in as much as the investigation was not conducted by a person authorised by that section. Secondly, it was contended that sanction was obtained only for the first four cases and no sanction was obtained for the three new cases (after splitting up the four) out of which the present appeals have arisen. It was further contended that the sanction was not with respect to section 5 (1) (C) or ' the Act though it was under section 5 (2)of the Act and therefore it was insufficient to confer ,jurisdiction on.the Special Judge to try the appellant under section 5 (1) (c) read with section 5 (2) of the Act. Held that section 5A is mandatory and not directory and an investigation conducted in violation thereof is illegal. But this illegality wilt not vitiate the results of the trial unless it is shown that it has brought about a miscarriage of justice; neither does it affect the competence or jurisdiction of the court to try the case. In the present appeals it is not shown that there has been miscarriage of justice as a result of the illegal investigation. H.N. Rishbud & Inder Singh vs State of Delhi, [1955] I S.C.R. 1150 followed State of Madhya Pradesh vs Mubarak All [1959] Supp. 2 S.C.R. 201 distinguished. The mere fact that in view of the provisions of section 239 of the Code of Criminal Procedure, 1898, the Special Judge thought it necessary to separate the trial of the appellant with respect to certain items for which there was sanction would not mean that these cases had no sanction behind it. The sanction of the original four cases would cover these three cases also. The allegations made in the sanction show that the sanctioning authority had section 5 (1) (c) in mind because the sanction speaks of misappropriation and embezzlement of the 'money of the ' Board and misappropriation and embezzlement is only to be found in section 5 (1) (c). As the words of the sanction stand they would cover a case of misappropriation or conversion to Ins own case by the appellant himself or by allowing others to do so. The sanction is sufficient for the purpose of giving jurisdiction to the Special Judge to take cognizance of the cases out of which the present appeals have arisen.

Appeal No. 707 of 1962. Appeal by special leave from the order dated December 11, 1961, of the Central Government Labour Court, Delhi in L.C.A. No. 605 of 1961. M. K. Ramamurtthi, R. K. Garg, D. P. Singh and section C. Aggarwala, for the appellant. H. N. Sanyal, Solicitor General of India., H.L. Anand, Vidya Sagar and B. C. Das Gupta, for the respondent. April 22. The judgment of the Court was delivered by DAS GUPTA J. The appellant was appointed as a clerk in the State Bank of India, the respondent before us, on December 14, 1953. At the time of 277 appointment his salary was Rs. 95/ per month with a dearness allowance of Rs. 50/ . The Sastry Award in the disputes between certain banking companies and their workmen as modified by the labour Appellate Tribunal was given statutory force by the Industrial Disputes (Banking Companies) Decisions Act, 1955. In applying to the appellant this award which is admittedly applicable to him the bank proceeded on the basis that under it the appellant was entitled to get his annual increment in each year on April 1. According to the appellant, however, he is entitled under the award to have his annual increment in December each year. On December 14, 1960, the appellant made an application under section 33 (c) (2) of the before the Labour Court, Delhi, praying that the benefit under the award of which he is being deprived by the bank by the alleged error in its implementation should be computed and directed to be paid to him. A schedule was annexed to the application purporting to show that on the basis that the annual increment has to be allowed on December 14, of each year and not on April, 1, the appellant was entitled to an additional sum of Rs. 146/ plus dearness allowance. In resisting this application the Bank raised a preliminary objection that the question whether or not the appellant was entitled to the benefits as alleged by him could not be raised or decided in an application under section 33 (c) (2). On the merits the bank pleaded that it had acted in accordance with the terms of the Sastry Award in allowing increments on the 1st April of each year. The Labour Court rejected the preliminary objection but held on the merits that the annual increment of the appellant fell due from after April 1, 1954, and on April 1, in succeeding years. Accordingly, the Court rejected the application. 278 Against this order of rejection this appeal has been filed by special leave of this court. Before us the appellant contends that the Labour Court has erred in thinking that tinder the award annual increments to workmen appointed after January 31, 1950 and before the new scales were brought into force, fell due on April 1, of each year, starting from April 1, 1954. The respondent in addition to supporting the decision of the Labour Court on merits further contended that the Court had wrongly rejected the preliminary objection raised by the bank. The scope of section 33 (c) (2) of the has been elaborately considered by us in the Central Bank of India Ltd. vs P.S. Rajagopalan (1), and we have decided there that the Labour Court has got jurisdiction to decide on an examination of an award or settlement whether or not the workman is entitled to the benefits claimed by him. The preliminary objection must therefore be held to have been rightly rejected by the Court. It is necessary therefore to decide the appellant 's contention that the Labour Court had erred in its decision on the merits. The appellant 's case in the written statement was that under the Sastry Award his pay had to be fixed in accordance with the directions in cl. 7 of para 292 but that the bank had wrongly fixed his pay on the same basis as the employees who entered service of the respondent before January 31, 1950. He claimed that if his pay had been fixed in accordance with cl. 7 of para 292 his annual increment would have fallen due on December 14, of each year and not April 1, each year as calculated by the bank. The bank contended however that as the adjusted salary would have effect under para. 292 (1) [1964] Vol, 3 section C. R. 140. 279 from April l, '1954 the increments were rightly given on April 1, of each year, after April 1, 1954. The Labour Court considered the appellant 's petition and four other petitions together and disposed of these by the same order. It may be mentioned that in other four petitions, two persons were appointed on February 24, 1950, one on March 15, 1951 and one on June 1, 1953, while the appellant, as already stated, was appointed on December 14, 1953. In all the cases the Labour Court accepted the bank 's contention based on para. 292 (12) which after modification by the Labour Appellate Tribunal says : "The adjusted pay shall have effect from April 1, 1954. " The Court was of opinion that this rule should apply to all persons appointed after January 31, 1950 but before April 1, 1954. It is necessary to notice that para. 292 of the award dealt with the question of fitting the existing staff into the revised scales of pay. The revised scales of pay were brought into operation under para 627 with effect from April 1, 1953. The award, it may be mentioned, was signed by the members of the Tribunal between March 5, and March 20, 1953. It is easy to see that persons who joined the service of the bank after the date when the new scales came into force would not be governed by para. 292 for the simple reason that they were not "existing staff" of the bank. Such workmen would come straight into the revised scales of pay. Thus, the present appellant appointed on December 14, 1953 would get the benefit of the new scales of pay from the very date of his appointment In consequence. , he would get the increments under the new scale on December 14 of each year and would thus he entitled to payment of Rs. 100/ per month from December 14,1954 to December l3, 1955 at the rate of Rs. 106 per month from December 14, 1955 to December 13, 1956 and so on, as claimed by him in the schedule to his petition. He is therefore 280 entitled to Rs. 146/ plus dearness allowance as the benefit to which he is entitled under the Sastry Award but which has not been paid. The Labour Court was, therefore, wrong in rejecting the appellant 's petition. We allow the appeal, set aside the order of the Labour Court, Delhi, and compute the sum to which he is entitled under the Award at Rs. 146/ plus dearness allowance. No order as to costs. Appeal allowed.

IN-Abs

The appellant was appointed as a clerk in the State Bank of India on December 14, 1953. He made an application under s.33(c)(2) of the before the Labour Court. He prayed before the Labour Court that he was enti tled to Rs. 146/ plus dearness allowance as the benefit to which he was entitled under the Sastry Award but which had not been paid. The case of the appellant was that he was entitled under the Sastry Award to have his annual increment in December each year as he was appointed on December, 14, 1953. The case of the Bank was that on the basis of the Sastry Award the appellant was entitled to get his annual increment in each year on April 1. The respondent raised a preliminary objection that the question in regard to the increment of the appellant could not be decided in an application under s.33(c) (2) 276 of the Act. The Labour Court rejected this preliminary objection but on merits accepted the case of the Bank. Hence the appeal. Held that under s.37(c)(2) of the the Labour Court has got jurisdiction to decide on an exami nation of an award or settlement whether or not the workman is entitled to the benefits claimed by him. The preliminary objection must therefore be held to have been rightly rejected by the Labour Court. (2) that para 292 of the Sastry Award dealt with the question of fitting the existing staff into the revised scales of pay. Persons who joined the service of the Bank after the date when the new scales came into force would not be governed by para 292 of the award for the simple reason that they were not "existing staff" of the Bank. Such workmen would come straight into the revised scales of pay. Thus, the present appellant appointed on December 14, 1953, would get the benefit of the new scales of pay from the very date of his appointment. In consequence, he would get the increments under the new scale on December 14, each year.

ivil Appeal No. 202 of 1562. Appeal from the judgment and order dated March 10, 1961, of the Andhra Pradesh High Court in Writ Petition No. 677 of 1958. A.V. Viswanatha Sastri, Jayaram and R. Ganpathi lyer, for the appellant. ' 102 V.K. Krishna Menon, M. K. Ramamurthi, R.K. Garg, section C. Agarwal and D.P. Singh, for the respondent No. 1. K. R. Chaudhuri and P.D. Menon, for respondent No. 2 1963. April 18. The principal question which arises in this appeal is whether the respondent B. Somayajulu is a working journalist under section 2(b) of the Working Journalists Industrial Disputes Act 1955, (No. 1 of 1955) (hereinafter called 'the Act '). That question arises in this way. On February 19, 1935, the respondent was appointed a Correspondent at Guntur by the appellant, the management of the Express Newspapers Ltd. He did that work continuously until October, 20, 1955 on which date his services were terminated. The Andhra Union of Working Journalists, Elluru, then took up the respondent 's cause and alleged that his services had been terminated by the appellant without any justification and that as a working journalist, he was entitled to reinstatement and compensation for the period during which he was not allowed to work by the appellant in consequence of the order passed by the appellant terminating his services. This dispute was referred by the Government of Andhra Pradesh for adjudication to the Labour Court, Guntur. The question referred for adjudication was whether the termination of services of Mr. B. Somayajulu, Correspondent of Indian Express Newspapers at Guntur was justified? If not, to what relief was he entitled? Before the Labour Court, the respondent claimed that in addition to reinstatement, compensation should be awarded to him from October 13, 1955 to May 1, 1956 at Rs. 75/ per mensem and thereafter up to the 103 date of reinstatement at the rate prescribed by the Wage Board for Working Journalists under the provisions of the Act. The appellant disputed this claim on several grounds. It urged that the Labour Court had no jurisdiction to entertain the reference, because the appointment of the respondent had been made at Madras, the money due to him was sent from Madras, and so, the appropriate Government which could have made the reference was the Madras Government and not the Government of Andhra Pradesh. This argument has been rejected by the Labour Court. It was also urged that the reference was invalid since the order of reference in terms did not refer to section 10 (1) (c) 01 ' the Industrial Disputes Act under which the power to refer had been exercised. The Labour Court repelled this contention as well. Then it was alleged that the dispute referred to the Labour Court for its adjudication was an individual dispute and had not been properly sponsored by any Union. The Labour Court was not impressed even by this plea. That is how the preliminary objections raised by the appellant were all rejected. On the merits, the appellant urged that the respondent was not a working journalist under section 2(b) of the Act. In support of this plea the appellant averted that the respondent was a part time correspondent unattached to any particular newspaper establishment that a year or so later he was appointed as a selling agent of the publications of the appellant, such as the Express Newspapers, Dinamani and Andhra Pradesh at Guntur which assignment was given to him on his depositing Rs. 6,000/which was later raised to Rs. 7,000/ . According to the appellant, as such selling agent, the respondent was making on an average about Rs. 1,500/ per mensem as commission, whereas, as a correspondent he was first paid on lineage basis and later an honorarium was fixed at Rs. 50/ which was subsequently 104 raised to Rs. 75/ p.m. This latter amount was paid to him until his services were terminated. The appellant, therefore, contended that the avocation of a moffusil correspondent was not the respondent 's principal avocation, and so, he could not claim the benefit of the status of a working journalist under section 2(b) of the Act. The Labour Court took the view that parttime workers were outside the purview of the Act. It also referred incidentally to the commission which the respondent received as a selling agent and made some observations to the effect that the payment to the respondent for his work as a correspondent was very much less than the commission which he received from the appellant as its selling agent. It is common ground that some time before the respondent 's services as a correspondent were terminated, his selling agency had also come to an end. From the award made by the Labour Court, it is clear that the Labour Court decided the matter against the respondent solely on the ground that as a part time worker he could not be regarded as a working journalist, and it made no finding on the question as to whether his principal avocation at the time when his services were terminated could be said to satisfy the test prescribed by the definition under section 2(b). The award made by the Labour Court was challenged by the respondent before the Andhra Pradesh High Court by a writ petition under Articles 226 and 227 of the Constitution. The High Court has held that the respondent is a working journalist under section 2(b) and so, it has set aside the award passed by the Labour Court. There is no specific direction issued by the High Court remanding the proceedings between the parties to the Labour Court for disposal on the merits in accordance with law, but that clearly is the effect of the order. It is against this decision that the appellant has come to this Court with a 105 certificate issued by the said High Court; and on behalf of the appellant, the principal contention raised by Mr. Sastri is that the High Court was in ,error in holding that the respondent was a working journalist under section 9,(b). The Act which applied to the proceedings between the parties was the Act No. 1 of 1955. This Act came into force on March 12, 1955. It consists of only 3 sections. Section 1 gave the title of the Act; section 2 defined 'newspaper ' and 'working journalist ' by clauses (a) and (b); and section 3 made a general provision that the provisions of the applied to, or in relation to, working journalists as they applied to, or in relation to workmen within the meaning of that Act. In other words, the scheme of the Act was to define newspaper and working journalist and to make the provisions of the applicable to working journalists. This Act was followed by the working Journalists (Condition of Service) and Miscellaneous Provisions Act, 1955 (No. 45 of 1955). This Act consists of 21 sections and makes some specific provisions applicable to working journalists, different from the relevant provisions of the . Section 2 (f) of this Act defines a working journalist. The definition prescribed by section 2 (f) of this Act is identical with the definition prescribed by section 2 (b) of the earlier Act, and so, for the purposes of the present appeal, whatever we say about the scope and effect of the definition. of section 2 (b)in the earlier Act will apply to the definition prescribed by section 2 (f)of the latter. Section 3 of this latter Act makes the provisions of the , applicable to working. journalists. Sections ,4 and 5 make special provisions in respect of retrenchment and gratuity. Section 6 prescribes the hours of work; section 7 deals with problem of leave 106 section 8 provides for the constitution of a Wage Board; section 9 deals with the fixation of wages; section 10 requires ' the publication of the decision of the Board and its commencement, while section 11 deals with the powers and procedure of the Board. Section 12 makes the decision of the Board binding and section 13 gives power to the Government to fix interim rates of wages. These provisions are contained in Chapter II. Chapter III consists of 2 sections 14 and 15 and they make applicable to the newspaper employees the provisions of the and the Employees ' Provident Funds Act, 1952. Chapter IV contains miscellaneous provisions, such as those relating to the recovery of money due from an employer under section 17, penalty under section 18 and indemnity under section 19. Section 20 confers the rule making power on the Central Government, and section 21 repeals the earlier Act. In dealing with the question as to whether the respondent can be said to be a working journalist, iris necessary to read the definition prescribed by section 2 (b) of the Act: "Working journalist ' means a person whose principal avocation is that of a journalist and who is employed as such in, or in relation to, any establishment for the production or publication of a newspaper or in, or in relation to, any news agency or syndicate supplying material for publication in any newspaper, and includes an editor, a leader writer, news editor, subeditor, feature writer, copy tester, reporter, correspondent, cartoonist, news photographer and proof reader, but does not include any such person who (i) is employed mainly in a managerial or administrative capacity, or 107 (ii) being employed in a supervisory capacity, exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature. " It is plain that the definition prescribed by s.2 (b)consists of two parts; the first part provides what a working journalist means, and the second part brings within its purview by an artificial extension certain specified categories of newspaper employees. It would be noticed that the first part provides for two conditions which must be satisfied by a journalist before he can be .held to be a working journalist. The first condition is that he must be a journalist whose principal avocation is that of a journalist, and the second condition is that he must be employed as such in, or in relation to, any establishment as there specified. The first question which arises for our decision is whether the two conditions thus prescribed by the first part of the definition govern the categories of newspaper employees included in the definition by the artificial extention made by the including clause. The High Court has taken the view that the categories of employees who are included in the definition by name, need not satisfy the two conditions prescribed by the first part. The argument is that since a correspondent, for instance, has been named in the second clause, the whole object of the legislature was to make him a working journalist without requiring him tO satisfy the two conditions prescribed by the first part. In our opinion, this construction is plainly erroneous. The object of the second clause was to make it clear that the employees specified in that clause are journalists and nothing more. The word "journalist" has not been defined in the Act and the legislature seems to have thought that disputes may arise as to whether a particular newspaper employee was a journalist or not. There Can, of course, be no difficulty about an editor or 108 a leader writer, or a news editor or a sub editor being regarded as a journalist; but it was apparentIy apprehended that a difficulty may arise, for instance, in the case of a correspondent, a proof reader, a cartoonist, a reporter, a copy tester, or a feature writer, and so, the legislature took the precaution of providing specifically that the employees enumerated in the latter clause are to be regarded as journalists for the purpose of the definition prescribed by section 9, (b). The object of the artificial extension made by the including clause is not to dispense with the two main conditions prescribed by the definition before a journalist can be regarded as a working journalist. There can be no doubt that even the employees falling under the extended meaning must be employed as such. It is thus obvious that the second requirement prescribed by the first clause that the journalist must be employed as such in, or in relation to, any establishment for the production or publication of a newspaper, as therein specified, has to be satisfied by the employees falling under the latter clause, because unless there was an employment by the newspaper establishment, no relationship of employer and employee can arise, and the journalists specified in the latter clause could not, therefore, claim the status of working journalist qua the employer who manages the journal in question. Once it is realised that the. test of employment must govern the employees specified in the latter clause, it would become clear that the High Court was in error in assuming that the extended artificial definition of the working journalist dispensed with both the conditions prescribed by the first part of the said definition. That is why we think the extension was made by the word "includes" only for the purpose of removing any doubt as to whether the persons specified in the said clause are journalists or not. What is true about the condition as to employment is equally true about the other condition that a journalist can be a working journalist only where it is 109 shown that journalism is his principal avocation. In other words, the position is that whenever an employee working in the newspaper establishment claims the status of a working journalist he has to establish first that he is a journalist, and then that journalism is his principal avocation and he has been employed as such journalist. In proving the fact that he is a journalist, the employees specified in the latter clause need not prove anything more than this that they fall under one or the other category specified in the said clause. But that only proves their status as journalist; they have still further to show that their principal avocation is that of a journalist and that they have been employed as such by the newspaper establishment in question. That takes us to the question as to what is meant by avocation? The High Court thought that the dictionary meaning of the word "avocation" which showed that it meant "a distraction or diversion from one 's regular employment", could be adopted in the context of section 2 (b). In support of this view, the High Court has cited a passage from Fowler in Modern English Usage. Fowler says "Avocation originally a calling away, an interruption, a distraction, was for some time commonly used as a synonym for vocation or calling, with which it is properly in antithesis. This misuse is now less common, and the word is generally used in the plural, a person 's avocations being the things he devotes time to, his persuits or engagements in general, the affairs he has to see to; his vocation as such is neither excluded from, nor necessarily included m, his avocation." Applying this. dictionary meaning of the word ' 'avocation" the High Court has held that even if the respondent has to satisfy the first condition prescribed by the first part of section 2 (b), it can be held that he satisfied the said test, because the work of a correspondent in his case can be safely said to be his principal avocation in the sense of 110 distraction or diversion from his regular employment. In our Opinion, in applying mechanically the dictionary meaning of the word "avocation"without due regard to the context of section 2 (b) the High Court has adopted a somewhat pedantic approach. One has merely to read the definition to realise the word "avocation" used in section 2 (b) cannot possibly mean a distraction or diversion from one 's regular employment. On the contrary, it plainly means one 's vocation, calling or profession. The plain idea underlying section 2 (b) is that if a person is doing the work, say of a correspondent, and at the same time is pursuing some other calling or profession, say that of a lawyer, it is only where his calling as a 'journalist can be said to be his principal calling that the status of a working journalist can be assigned to him. That being the plain object of section 2 (b), it would, think, be, on the whole, inappropriate to adopt the dictionary or the etymological meaning of the word "avocation" in construing section 2 (b). We ought to add that Mr. Menon who appeared for the respondent did not attempt to support the approach adopted by the High Court in dealing with this point. Therefore, when a question arises as to whether a journalist can be said to be a working journalist, it has to be shown that journalism of whatever kind contemplated by section 2 (b) is the principal avocation of the person claiming the status of a working journalist and that naturally would involve an enquiry as to the gains made by him by pursuing the career of a journalist as compared with the gains made by him by the pursuit of other callings or professions. It is obvious that this test will be merely academic and of no significance in the case of full time journalists, because in such cases the obvious presumption would be that their full time employment is their principal avocation and no question of comparing their income from journalism with income from other sources can arise. In fact, the status of such full time journalists as 111 working journalists will not be affected even if in some cases the income received by them from such employment may be found to be less than, say, for instance, the income from their ancestral property. This test assumes significance and importance only in the case of journalists who are employed on parttime basis. Reverting to the second requirement of employment which we have already seen must obviously govern the employees failing under the latter part of section 2 (b) if they seek the status of working journalists, it is plain that an employment must be proved, because that alone will create a relationship of employer and employee between them and the newspaper establishment. Unless there is an employ ment, there can be no conditions of service and there would be no scope for making any claim under the Act. Thus the requirement of employment postulates conditions of service agreed between the parties subject to which the relationship of master and servant comes into existence. In the context, employment must necessarily postulate exclusive employment, because a working journalist cannot serve two employers, for that would be inconsistent with the benefits which he is entitled to claim from his employer under the Act. Take the benefit of retrenchment compensation, or gratuity, or hours of work, or leave; how is it possible for a journalist to claim these benefits from two or more employers? The whole scheme of the Act by which the provisions of the have been made applicable to working journalists, necessarily assumes the relationship of employer and employee and that must mean exclusive employment by the employer on terms and conditions of service agreed between the parties. Normally, employment contemplated by section 2(b) would be full time employment; but part time employment is not excluded from section 2(b) either. Most of the employees 112 falling under the first clause of section 2 (b) or even under the artificial extension prescribed by the later clause of section 2(b) would be full time employees. But it is theoretically possible that a news photographer, for instance, or a cartoonist may not necessarily be a full time employee. The modern trend of newspaper establishments appears to be to have on their rolls full time employees alone as working journalists; but on a fair construction of section 2(b), we do not think it would be possible to hold that a part time employee who satisfies the test prescribed by section 2(b) can be excluded from its purview merely because his employment is part time. The position, therefore, is that the Labour Court was m error in making a finding that the respondent was not a working journalist on the ground that he was a part time employee, whereas the High Court is in error in holding that the respondent is an employee because he has not to satisfy the test that journalism is his principal avocation. As we have held, the respondent can be said to be a working journalist only if he satisfies the two tests prescribed by the first part of section 2(b). The test that he should have been employed as a journalist would undoubtedly be satisfied because it is common ground that since 1935 he has been working as a correspondent of the appellant at Guntur and the payment which the appellant made to him by whatever name it was called was also regulated by an agreement between the parties; in its pleadings, the appellant has, however, disputed the fact that the respondent was exclusively employed. by it and so, that is one question which still remains to be tried. The further question which has to be considered is whether the respondent satisfies the other test: "was his working as a correspondent his principal avocation at the relevant time"? The definition requires that the respondent must show that he was a working journalist at the time when his services were terminated; 113 and that can be decided only on the evidence adduced by the parties. Unfortunately, though the Labour Court has made certain observations on this point, it has not considered all the evidence and has made no definite finding in that behalf. That was because it held that as a part time employee, the respondent was outside section 2(b). The High Court has no doubt purported to make a finding even on this ground in the alternative, but, in our opinion, the High Court should not have adopted this course in dealing with a writ petition under Articles 226 and 227. Even in dealing with this question, the High Court appears to have been impressed by the fact that in discharging his work as a correspondent the respondent must have devoted a large part of his time; and it took the view that the test that journalism should be the principal avocation of the journalist implied a test as to how much time is spent in doing the work in question? The time spent by a journalist in discharging his duties as such may no doubt be relevant, but it cannot be decisive. What would be relevant, material and decisive is the gain made by the part time journalist by pursuing the profession of journalism as compared to the gain made by him by pursuing other vocations or professions. In dealing with this aspect of the matter, it may no doubt be relevant to bear in mind the fact that some months before his services as a correspondent were terminated, the respondent 's selling agency had come to an end, and so, the Labour Court may have to hold an enquiry into the question as to whether the respondent proves that the work of correspondent was his principal avocation at the relevant time in the light of the relevant facts. The onus to prove this issue as well as the issue as to whether he was in the exclusive employment of the appellant lies on the respondent, because his claim that he is a working journalist on these grounds is disputed by the appellant, and it is only if he establishes the fact that he is a working journalist that the 114 question as to determining the relief to which he is entitled may arise. We, therefore, allow the appeal, set aside the order passed by the High Court and remand the case to the Labour Court with a direction that it should deal with the dispute between the parties in accordance with law in the light of this judgment. There would be no order as to costs. Before we part with this appeal, however, we would incidentally like to refer to the fact that the test of the principal avocation prescribed by section has presumably been adopted by the legislature from the recommendations made by the Press Commission in its report. In paragraph 505, dealing with the question of working journalists, the Commission observed that it thought that "only those whose professed avocation and the principal means of livelihood is journalism should be regarded as working .journalists," and it added that "we have deliberately included the words "professed avocation" because we have come across cases where persons belonging to some other professions, such as law, medicine, education, have devoted part of their time to the supply of news to and writing articles for, newspapers. It may be that in the case of some of them, particularly during the earlier years of their professional career, income from the practice of their own profession. But it would not, on that account, be correct to classify them as working journalists. so long as their professed avocation is other than journalism. " It would be noticed that the expression "professed avocation" has not been adopted by the legislature instead, it has used the words "principal avocation". That is why we are inclined to take the view that the time taken by a person in pursuing two different.professions may not be decisive; what would be decisive is the income derived by him from the different professions respectively. It does appear that the legislature was inclined to take the view that if a person following the profession of law in 115 the early years of his career received more money from journalistic work and satisfied the other tests prescribed by section 2(b), he may not be excluded from the definition merely because he is following another profession. To that extent, the provision of section 2(b) departs from a part of the recommendation made by the Press Commission. In regard to part time employees who, as we have held, are not necessarily excluded from section 2(b) the position appears to be that the report by the Wage Committee appointed by the Union Government under the provisions of Act 45 of 1955, shows that the Committee treated some part time employees as working journalists. In paragraph 103, the committee has observed that it had provided a regular scale or retainer for part time correspondents, and it has added that the remuneration in accordance with that scale will be available to the part time correspondents only if, in accordance with the definition in paragraph 23, Part II, of its recommendations, their principal avocation is journalism. The Committee noticed the fact that many of the part time correspondents employed by newspaper establishments would not fall within the definition if their principal avocation is something else and journalism is only a side business, and it added that the problem of the said class of part time correspondents was not within the purview of its terms of reference, and so, it made no recommendations in regard to that class. Appeal allowed. Case remanded.

IN-Abs

The reapondent 's services as a correspondent at Guntur under the appellant were terminated. The Andhra Union of Working Journalists, Elluru, took up the respondent 's cause and alleged that his services had been terminated by the appellant without any justification and that as a working journalist, he was entitled to reinstatement and compensation. the dispute was referred to the Labour Court, Gunrut, by the Government of Andhra Pradesh. The appellant raised preliminary objections before the Labour Court, which were all rejected. On the merits, the appellant contended that the avocation of a moffusil correspondent was not the respondent 's principal avocation, and so, he could not claim the benefit of the status of a working journalist under section 2 (b) of the Act. The Labour Court decided the matter against the respondent solely on the ground that as a part time worker he could not be regarded as a working journalist, and it made no finding on the question as to whether his principal avocation at the time when his services were terminated could be said to satisfy the teat prescribed by the definition under section 2 (b) of the Act. The award was challenged by the respondent by a writ petition before the High Court of Andhra Pradesh. The High Court held that the respondent was a working journalist under section 2 (b) of the Act and so it set aside the award. On appeal by certificate the appellant 's principal contention in this Court was that the High Court was in error in holding that the respondent was a working journalist under section 2 (b) of the Act. Held that whenever an employee working in a newspaper establishment claims the status of a working journalist, 101 he has to establish first that he is a journalist, and then that journalism is his principal avocation and he has been employed as such journalist. In proving the fact that he is a journalist, the employees specified in the latter clause of section 2 (b) of the Act need not prove anything more than this that they fail under one or the other category specified in the said clause. But that only proves their status as journalist; they have still further to show that their principal avocation is that of a journalist and that they have been employed as such by the newspaper establishment in question. The object of the artificial extention made by the including clause is not to dispense with the two main conditions prescribed by the definition before a journalist can be regarded as a working journalist. Having regard to the context of section 2 (b) it would be inappropriate to adopt the dictionary or the etymological meaning of the word "avocation" in construing s 2 (b)of the Act. Held further that normally employment contemplated by 2 (b) would be full time employment but part time employment is not excluded from section 2 (b) either. On a fair construction of section 2 (b), it would be impossible to hold that a part time employee who satisfies the test prescribed by section 2 (b) can be excluded from its purview merely because his employment is part time. In the present case, the onus to prove the issue as to whether the work of a correspondent was his principal avocation at the relevant time in the light of the relevant facts. as well as, the issue as to whether he was in the exclusive employment of the appellant lies on the respondent and it is only if he establishes the fact that he is a working journalist, the question as to determining the relief to which he is entitled may arise.

minal Appeal No. 165 of 1960. Appeal from the judgment and order dated July 22, 1960, of the Calcutta High Court in Criminal Appeal No. 448 of 1960. A.S.R. Chari, N.S. Bindra, and D.N. Mukherjee, for the appellant. B. Sen, section C. Mazumdar and P. K. Bose., for respondent. April 22. The judgment of the Court was delivered by GAJENDRAGADKAR J. The appellant Chittaranjan Das was charged with having commited an offence punishable under section 376 I.P.C. This charge was framed against him on three counts. It 240 was alleged that between November 18, 1958 and November 21, 1958 at 29A and B, Kailash Bose Street, Calcutta, lie committed rape on Sandhyarani Das Gupta alias Nirmala. The second count was that he committed the same offence at the same place and in respect of the same girl between December 1, 1958 and December 6, 1958 ; and the third count related to the commission of the said offence between December 9, 1958 and December 15, 1958 at the same place and in respect of the same girl. Along with the appellant, Ganesh De was charged with having abetted the appellant in the commission of the said offence, the charge framed against Ganesh De being under section 376 read with section 109 of the Indian Penal Code. The learned Presidency Magistrate, 8th Court, Calcutta, held the commitment proceedings, and was satisfied that the evidence adduced by the prosecution before him made out a prima facie case against both the accused persons. Since the offence in question was triable exclusively by the Court of Sessions, the learned Magistrate committed them to the Sessions on May 4, 1960. The case of the appellant and his co accused was then tried by the City Sessions Court at Calcutta with the aid of jury. The jury returned a verdict of guilty against the appellant in respect of all the three counts. A similiar verdict was brought by the jury in respect of the co accused Ganesh De. The learned Sessions judge took the view that the verdict of the jury was not perverse, and so, he decided to accept the said verdict and accordingly convicted the appellant under section 376 and sentenced him to suffer rigorous imprisonment for four years on the first charge. No separate sentence was awarded in respect of the other charges. Ganesh De was also sentenced to a similiar period of imprisonment. This order was passed on July 9, 1960. 241 The appellant challenged the correctness of the order of conviction and sentence passed against him by the learned Sessions judge by preferring an appeal before the Calcutta High Court. A Division Bench of the said High Court did not feel impressed by the points made on appellant 's behalf, and so, his appeal was summarily dismissed on July 22, 1960. The appellant then applied for a certificate under Article 134 (1) (c) of theConstitution. This application was allowed by Labiri C.J. and Bose J. on the ground that some of the points which the appellant wanted to raise before this Court by his appeal were substantial points of law, and so ' _they granted him a certificate under the said Article. It is with this certificate that the appellant has come to this Court. Before dealing with the points which fall to be considered in the present appeal, it is necessary to state briefly the material facts leading to the prosecution of the appellant. Sandhyarani Das Gupta was a minor girl who was staying with her mother Soudamini in the Refugee Colony at Ghola. It appears that one Maniprova alias Manibala Majumdar induced this young girl to go to her house 'at Ashutosh Mukherjee Road, Bhowanipur some time in the first week of November 1958. Manibala induced Sandhya to go to her place with a promise that she would secure a nurse 's job for her. The appellant was the Zonal Officer of the Refugee Rehabilitation Office at Tollygunge at that time and, according to the prosecution, the co accused Ganesh De was a Peon in the said office. The prosecution alleged that in course of time, Sandhya was taken to the appellant in his house in about the middle of November 1958 on the representation that the appellant wanted to give her employment. When Sandhya met the appellant, the appellant held out the hope of a job for her and he managed to ravish her. Similarly, Sandhya was taken to the house of the appellant on two or three occasions within a 242 period of one month and each time the appellant had sexual intercourse with her. Every time this happened the appellant promised that he would provide Sandhya with a job. The prosecution case is that as a result of this sexual intercourse, Sandhya conceived and the appellant was anxious to cause her abortion. In accordance with the plan, Mani bala attempted to cause her abortion but did not succeed, and so, the girl was taken to the Chittaranjan Sevasadan on February 11, 1959 where the abortion was completed. Some time, thereafter, she was sent back to her own house on her insistance. It appears from the evidence that Sandhya was again taken to the house of the appellant and was ravished by him. This happened on two or three occasions again. At one of these meetings with the appellant, Sandhya was introduced to a young man named Himangsu Ganguli. This young man had approached the appellant for a job. The appellant exploited the helpless position of both Himangsu and Sandhya, and asked them to go through a show of marriage. Thereafter, the appellant wanted a photograph in proof of their marriage and a group photo was accordingly taken with Ganesh De, Manibala, Himangsu and Sandhya, the last two having posed as husband and wife. Himangsu and Sandhya then went to the house of the appellant and gave him a copy of the photograph. This time again Sandhya was ravished by the appellant. That, in broad outlines, is the prosecution case against the appellant. On June 6, 1959, Sandhya 's mother filed a complaint that her daughter had disappeared. This complaint was investigated by the Enforcement Branch Calcutta, and in consequence, Sandhya was recovered from the house of Ganesh De on June 10, 1959. She was then taken to the Tollygunge Police Station where her statement was recorded. It, however, appeared that the offence which on 243 Sandhya 's statement seemed to have been committed by the appellant was within the jurisdiction of the Amherst Street Police Station, and so, the case papers were transferred to the said Police Station. Sandhya 's statement was again recorded at this Police Station on June 12, 1959. As a result of the statement, Challan was forwarded which specified November 14, 1958, May 30, 1959 and June 6, 1959 as the dates on which the appellant had raped Sadhya. Subsequently, the appellant was arrested and he along with the co accused was charged before the Court of the Presidency Magistrate as we have already mentioned. In 'granting certificate to the appellant, the High Court has held that the point which the appellant sought to raise in regard to the invalidity and illegality of the charge was a point of substance. In fact, it has observed that the scheme of section 222 of the Criminal Procedure Code seems to suggest that the charge framed in the present case con travened the requirement of section 222 (1), and was therefore, invalid. The High Court also appears to have thought that this contention received support from a decision of the Calcutta High Court in Ali Hyder vs Emperor, (1). It is, therefore, necessary to examine this argument at the outset. We have already set out the 3 counts of the charge framed against the appellant and we have noticed that in the three counts periods were mentioned within which the appellant was alleged to have committed rape on Sandhya. The first period was between 18.11.1958 to 21.11.1958, second was 1.12.1958 to 6.12.1958 and the third was 9.12.1958 to 15.12.1958. The argument is that section 222 (1) Cr. P.C. requires that the charge must specify, inter alia, the particulars as to the time when the offence was committed, and this means that the precise date on which and the time at which the offence was committed must be stated (1) 244 in the charge. Before dealing with this argument, it is necessary to read section 22 : "(1) The charge shall contain such particulars as to the time and place of the alleged offence and the person (if any) against whom, or the thing (if any) in respect of which, it was committed, as are reasonably sufficient to give the accused notice of the matter with which he is charged. (2) When the accused is charged with criminal breach of trust or dishonest misappropriation of money, it shall be sufficient to specify the gross sum in respect of which the offence is alleged to have been committed, and the dates between which the offence is alleged to have been committed, without specifying particular items or exact dates, and the charge so framed shall be deemed to be a charge of one offence within the meaning of section 234 : Provided that the time included between the first and last of such dates shall not exceed one year. " The appellant 's contention is that it is only in cases under section 222 (2) where the prosecution is not required to specify the precise date and time at which the offence is committed ; and that means that it is only in respect of the offences of criminal breach of trust or dishonest misappropriation of money to which the said sub section applies that liberty may be claimed by the prosecution not to mention the date and time of the offence. In all other cases to which section 222 (1) applies, particulars as to the time and place of the alleged offence must be specifically mentioned. In our opinion, this contention is not well founded. In fact, Mr. Chari who appeared for the appellant himself fairly conceded that in almost every charge 245 to which section 222 (1) applies, it is usual to state that the particular offence was committed on or about a certain date. In other words, it is not suggested by Mr. Chari that the specific date and the specific time must necessarily be stated in the charge in every case. If it is permissible to say in a charge that a particular offence was committed on or about a specified date, without specifying the particular time, it is difficult to hold that because a period of four or five or six days is indicated in the charge within which the offence is alleged to have been committed section 222 (1) has been contravened. It is true that sub section (2) specifically deals with two kinds of offences and makes a provision in respect of them, but that is not to say that in every other case, the time must be so specifically mentioned as to indicate precisely the date and the time at which the offence was committed. It is quite clear that of the charge mentions unduly long period during which an offence is alleged to have been committed, it 'would be open to the criticism that it is too vague and general, because there can be no dispute that the requirement of section 222 (1) is that the accused person must have a reasonably sufficient notice as to the case against him. The basic requirement in every criminal trial therefore, is that the charge must be so framed as to give the accused person a fairly reasonable idea as to the case which he is to face, and that validity of the charge must in each case be determined ' by the application of the test, viz., had the accused a reasonably sufficient notice of the matter with which he was charged ? It is quite conceivable that in some cases by making the charge too vague in the matter of the time of the commission of the offence an accused person may substantially be deprived of an opportunity to make a defence of alibi, and so, the criminal courts naturally take the precaution of framing charges with sufficient precision and particularity 246 in order to ensure a fair trial ; but we do not think it would be right to hold that a charge is invalid solely for the reason that it does not specify The particular date and time at which any offence is alleged to have been committed. In this connection, it may be relevant to bear in mind that the . requirements of procedure are generally intended to subserve the ends of justice, and so, undue emphasis on mere technicalities in respect of matters which are not of vital or important significance in a criminal trial, may sometimes frustrate the ends of justice. Where the provisions prescribed by the law of procedure are intended to be mandatory, the legislature indicates its intention in that behalf clearly and contravention of such mandatory provisions may introduce a serious infirmity in the proceedings themselves ; but where the provisions made by the law of procedure are not of vital importance, but are, nevertheless, intended to be observed, their breach may not necessarily vitiate the trial unless it is shown that the contravention in question has caused prejudice to the accused. This position is made clear by sections 535 and 537 Cr. P. C. Take, for instance, the case of murder where the prosecution seeks to prove its case against an accused person mainly on circumstantial evidence. In such a case, investigation would generally begin with, and certainly gather momentum after the discovery of the dead body. In cases of circumstantial evidence of this character, it would be idle to expect the prosecution to frame a charge specifying the date on which the offence of murder was committed. All that the prosecution can do in such cases is to indicate broadly the period during which the murder must have been committed. That means the precision of the charge in respect of the date on which the offence is alleged to have been committed will depend upon the nature of the information available to the prosecution in a given case. Where 247 it is possible to specify precisely the necessary particulars required by 'section 222 (1), the prosecution ought to mention the said particulars in the charge, but where the said particulars cannot be precisely specified in the charge having regard to the nature of the information available to the prosecution, failure to mention such particulars may not invalidate the charge. In this connection, it may be useful to refer to the facts in the present case. The evidence of Sandhya shows that she and the members of her family had to face the terrible problems posed before the refugees in that part of the country, and in her anxiety to help her destitute family in its hour of need Sandhya was very easily persuaded by Manibala to adopt the course of earning money by selling her body. In such a case, if the minor girl has been exposed to the risk of having sexual intercourse with several people from time to time, it is unreasonable to expect that she would be able to specify the precise dates on which particular individuals had intercourse with her. If it is insisted that in a case of this kind, the charge of rape framed against the appellant must specify the date on which the offence was committed by him, it would really mean that the appellant cannot be charged with the offence because the unfortunate victim would, in the ordinary course of things, not be able to state precisely the dates on which she was made to submit to the appellant. Therefore, in dealing with the question as to whether the charge framed in a criminal trial has contravened section 222 (1), the Court will have to examine all the relevant facts and if it appears to the Court that having regard to them, the charge could and ought to have been framed more precisely, the Court may reach that conclusion and then enquire whether the defective charge has led to the prejudice of the accused. That, in our opinion, is the reasonable course to adopt in dealing 248 with contentions like the one raised by the appellant before us. The question of prejudice did not impress the High Court, because it has summarily dismissed the appeal. It is not a matter on which the appellant can be permitted successfully to challenge the view taken by the High Court. In this connection we ought to add that the decision in the case of Ali Hyder (1) to which the High Court has referred in granting a certificate on this point does not support the contention in question. The next ground on which the High Court has granted certificate to the appellant is that the Division Bench should not have summarily dismissed his appeal, and in coming to the conclusion that this argument amounted to a substantial point of law, the High Court has referred to two decisions of this Court in Mushtak Hussein vs The State of Bombay, (2 ) and Shreekantiah Ramayya Municipalli vs State of Bombay (3). In Mushtak Hussein 's case, this Court has no doubt observed that it is riot right for the High Court to dismiss an appeal preferred by the accused to that Court summarily where it raises some arguable points which require consideration. It was also added that in cafes which prima facie raise no arguable issue, that course is, of course, justified. It is in the light of this conclusion that this Court stated that it would appreciate it if in arguable cases the summary rejection orders give some indications of the views of the High Court on the points raised. In the case of Shreekantiah Ramayya it appeared that out of the two appeals filed separately by two different accused persons against the same judgment, one was summarily dismissed by one Bench of the High Court and the other was admitted by another Bench. It is in the light of this somewhat anomalous position that this Court repeated its observation made in the case of Mushtak Hussein (2), that summary rejections of appeals (1) (1939) 40 Cr. L .T. 280. (2) A I.R. 1953 $.C. 282. (3) A. I. R. , 249 which raise issues of substance and importance are to be disapproved. With respect, there can be no9 doubt whatever that in dealing with criminal appeals brought before them the High Courts should not summarily reject them if they raise arguable and substantial points and it would be stating the obvious if we were to add that no High Court summarily dismisses a criminal appeal if it is satisfied that it raises an arguable or substantial question either of fact or of law. In this connection, it is, however, necessary to bear in mind that it is for the High Court which deals with the criminal appeal preferred before it to consider whether it raises any arguable or substantial question of fact or law, or not. Section 421 (1) of the Code provides that on receiving the petition and copy under section 419 or section 420., the appellate court shall peruse the same, and, if it considers that there is no sufficient ground for interfering, it may dismiss the appeal summarily. The proviso to this section requires that no appeal presented under section 419 shall be dismissed unless the appellant or his pleader has had a reasonable opportunity of being heard in support of the same. Sub section (2) empowers the appellate court to call for the record of the case before dismissing the appeal under sub section (1) but it does not make it obligatory on the court to do so. Therefore, the position under section 421 is clear and unambiguous. When a criminal appeal is brought before the High Court, the High Court has to be satisfied that it raises an arguable or substantial question; if it is so satisfied, the appeal should be admitted; if, on the other hand, the High Court is satisfied that there is no substance in the appeal and that the view taken by the Trial Court is substantially correct, it can summarily dismiss the appeal. It is necessary to emphasis that the summary dismissal of the appeal does not mean that before summarily dismissing the appeal, the High Court has not applied 250 its mind to all the points raised by the appellant. Summary dismissal only means that having considered the merits of the appeal, the High Court does not think it advisable to admit the appeal because in its opinion, the 'decision appealed against is right. Therefore, we do not think the High Court was right in granting certificate to the appellant on the ground that his appeal should not have been summarily dismissed by another Division Bench of the said High Court. If the High Court in dealing with criminal appeals takes the view that there is no substance in the appeal, it is not necessary that it should record reasons for its conclusion in summarily dismissing it. The third ground on which the certificate has been granted by the High Court is in regard to an alleged misdirection in the charge delivered by the learned Sessions judge to the jury. It appears that in dealing with the argument of the defence that the charge was vague and that the dates specified in the charge did not correspond to the dates given by Sandhya in her evidence, the learned Judge told the jury that if the statement of the girl in her cross examination is taken as the basis, the dates on which the girl was ravished by the appellant would not be covered by the three sets of dates mentioned in the charge, and then he added that "in case you hold that the charges are in order, in that case you shall proceed to consider the evidence. " It was urged by the appellant before the Division Bench of the High Court which granted the certificate that the last statement constituted a misdirection. The argument was that whether or not a charge is valid is a question of law which the learned judge should have decided himself and given a direction to the jury in accordance with his decision; inasmuch as he left that question to the jury, he failed to exercise his jurisdiction and to discharge his duty, and as such the 251 charge must be held to suffer from a serious misdirection. This argument appears to have appealed to the Division Bench which granted the certificate and has been pressed before us by Mr. Chari. In our opinion, there is no substance in this argument. We should have stated earlier that after the committal order was passed by the presidency Magistrate, the appellant moved the High Court in its revisional jurisdiction and urged that the charge framed against him was defective and invalid and should be quashed. The High Court rejected this contention and held that the charge was valid within the meaning of section 222 and section 234 of the Cole. Therefore, the true position is that at the time when the learned Sessions judge delivered his charge to the jury, the question about the validity of the charge had been considered by the High Court and so far as the learned Sessions Judge was concerned, the finding of the High Court was binding on him, so that when the learned Sessions judge told the jury that they may consider whether the charges were in order, he was really leaving it open to the jury to consider the matter which had been decided against the appellant and in favour of the prosecution. If there can be any grievance against this part of the charge, it would be in the side of the prosecution and not on the side of the appellant. That leaves to be considered certain other alleged misdirections to which Mr. Chari has referred. Mr. Char; contends that in explaining the true legal position with regard to the evidence of a prosecutrix in cases of rape, the learned judge did not cell the jury that in view of the contradictions brought out in the evidence of Sandhya and in view of her past career and record, her evidence should not be believed. Mr. Chari argues that when criminal courts require corroboration to the evidence of the prosecutrix in such cases, as a matter of prudence, it necessarily means that in the first instance, the 252 prosecutrix must appear to the court to be a reliable witness. If the prosecutrix does not appear to be a reliable witness, or if her evidence suffers from serious infirmities, corroborations in some particulars would not help the prosecution, and according to Mr. Chari, this aspect of the matter was not properly brought to the notice of the jury by the learned Sessions judge. We do not think there is any substance in this contention. We have carefully read the charge and we are satisfied that on the whole, the charge has not only been fair, but has. been more in favour of the appellant than in favour of the prosecution. In fact, the whole tone of the charge indicates that the learned Sessions judge was not satisfied that the prosecution had really made out a case against the appellant beyond a reasonable doubt. But in delivering charge to the jury, the learned Sessions judge can never usurp the function of the jury. He cannot pronounce on the reliability or otherwise of any witness. The requirement as to corroboration in regard to the evidence of a prosecutrix like Sandhya has been elaborately explained by the Sessions judge to the jury. He told them that the most important witness in the case was Sandhya and that there was hardly any corroborative evidence to her story. He also warned them that though it was not illegal to act upon the evidence of a prosecutrix, it was unsafe to adopt that course and he said that before convicting the appellant on the uncorroborated testimony of Sandhya, the members of the jury should ask themselves whether they were so much convinced about the truthfulness of the girl as to accept her evidence in its entirety. He referred to the broad and material contradictions brought out in her evidence and asked them to bear that fact in mind in deciding whether they should accept her testimony or not. Having regard to the several statements made by the learned judge in his charge on this topic we find it difficult to accept Mr. Chari 's grievance that the charge was materially defective in this matter. 253 The next misdirection or) which Mr. Chari has relied is in regard to the prosecution evidence about the age of the girl. The prosecution alleged that the girl was below If) years of age, whereas the defence contended that she was above 16 and was a consenting party. As usual, evidence was given by the prosecution in support of its case as to the girl 's age. This evidence consisted of the testimony of the girl 's mother Saudamini and of Dr. Nag as well as Dr. Saha. Having summarised the material evidence fairly and accurately, the learned judge told the jury that the said evidence was no doubt somewhat conflicting and he warned them that they had to decide as a question of fact whether the age of the girl at the relevant time was above or below 16. Mr. Chari contends that at this stage, the learned judge should have told the jury that the onus to prove the fact that the girl was below 16 was on the prosecution and that if there was any doubt about her age, the benefit of the doubt must go to the appellant. We do not think there is any substance in this argument. In the first part of his charge, the learned judge explained to the jury the essential requirements which had to be proved by the prosecution in support of its charge under section 376, and there the learned judge had made it clear to the jury that the prosecution had to show that the girl was below 16. 'That being so, we do not think that his failure to mention the point about onus once again when he dealt with the actual relevant evidence, can be said to constitute a misdirection, much less a material misdirection which may have led to the prejudice or the appellant. The last misdirection on which Mr. Chari has relied is the statement of the learned judge that the previous statements made by the girls which had been brought on the record do not constitute substantive evidence but are intended only to contradict the actual evidence given by her in court. It appears that on behalf of the appellant the evidence given 254 by the girl on a previous occasion had been brought out under s.145 of the Indian Evidence Act. In that statement the girl had sworn that Anil Chatterjee had sexual relations with her day after day and that she had sexual relations with others also. The girl admitted in her cross examination that her statement had been recorded on a previous occasion by the Magistrate, Alipore, but when the contents of the statement were put to her, she said she did not remember whether she had made those statements or not. Now, it is clear that when a previous statement is put to a witness in cross examination under s.145 of the Indian Evidence Act, its primary purpose is to contradict the witness by reference to the evidence he gives at the trial, and so, it cannot be said that the learned judge was wrong in law in telling the jury that the previous statement on which the defence relied may help the defence to contend that the girl was not a straightforward witness and was changing her story from time to time, but the said previous statement cannot be treated as substantive evidence at the trial. That is the true legal position and no grievance can be made against the charge for stating the said position in the terms adopted by the learned Sessions judge. Therefore, we do not think that the grievance made by Mr. Chari that the charge suffered from serious misdirections is well founded. There is one more point which we may mention before we part with this appeal. After the verdict was returned by the jury, the learned Sessions Judge considered the question as to whether he should accept the said verdict, or should make a reference. In that connection, he observed that the verdict that the jury had returned against the appellant, was practically based on the uncorroborated testimony of the prosecutrix but he thought that the said course adopted by the jury cannot be said to be illegal and he was not prepared to take the view that the verdict of the jury was in any way perverse. 255 Mr. Chari contends that having regard to the general tone of the charge delivered by the learned judge to the jury, the learned judge should have treated the verdict as perverse and not acted upon it. We do not think that this contention can be accepted. In his charge, the learned judge no doubt indicated that the evidence of the girl was not satisfactory, that it was not corroborated and that there were other circumstances which showed that the prosecution case might be improbable, but having done his duty, the learned judge had to leave it to the jury to consider whether the prosecution had established its charge against the appellant beyond reasonable doubt or not. The jury apparently considered the matter for an hour and half and returned the unanimous verdict of guilty. In the circumstances of this case, we cannot accede to Mr. Chari 's argument that the Session Judge was required by law to treat the said verdict as perverse. In a jury trial where questions of fact are left to the verdict of the jury, sometimes the verdicts returned by the jury may cause a disagreeable surprise to the judge, but that itself can be no justification for characterising the verdict as perverse. In the result, the appeal fails and is dismissed, the appellant to surrender to his bail bond. Appeal dismissed.

IN-Abs

The appellant was the Zonal officer of the Refugee Rehabilitation office and the co accused Ganesh De was a peon in the said office. One Sandhyarani, a minor girl was staying with her mother in the Refugee colony. She was induced by one Manibala to go to her place with a promise for a nurse 's job. In course of time, she was taken to the appellant 's house in about the middle of November 1958 on the representation that he wanted to give her employment. The appellant held out the hope of a job for her and managed to ravish her. Similarly, she was taken to the house of the appellant on two or three occasions within a period of one month and each time he bad sexual intercourse with her. Sandhya 's mother filed a complaint which was investigated and she was recovered from the house of Ganesh De. Sandhya 's statement was recorded and challan was forwarded which specified the dates on which the appellant had raped Sandhya. The charge was framed against the appellant on three counts and in the three counts, periods were mentioned within which the appellant was alleged to have committed rape on Sandhya. The first period was between 18.11.1958 to 21.11.1958, second was 1. 12.1958 to 6.12.1958 and the third was 9.12.1958 to 15.12. Ganesh De was charged under s, 376 read with section 109 of the Indian Penal Code. They were tried by the City Sessions Court with the aid of jury. The jury returned a verdict of guilty against the appellant in respect of all the three counts which was accepted by the Sessions Judge and the appellant was convicted and sentenced under section 376 to undergo rigorous imprisonment for four years on the first charge. No separate sentence was 238 awarded in respect of the other charges. Ganesh De was also sentenced to a similar period of imprisonment. The appellant preferred an appeal, which was summarily dismissed by a vision Bench of the High Court. The appellant then obtained a certificate under article 134(1) (c) of the Constitution, hence this appeal. Held that where it is possible to specify precisely the necessary particulars required by section 222(1), the prosecution ought to mention the said particulars in the charge but where the said particulars cannot be precisely specified in the charge having regard to the nature of the information available to the prosecution, failure to mention such particulars may not invalidate the charge. In dealing with the question as to whether the charge framed in a criminal trial has contravened section 222(1), the court will have to examine all the relevant facts and if it appears to the Court that having regard to them, the charge could and ought to have been framed more precisely, the court may reach that conclusion and then enquire whether the defective charge has led to the prejudice of the accused. The charge framed in the present case did not contravene the requirement of section 22(1),2 and was therefore, valid. Ali Hyder vs Emperor, , held in applicable. Held further, that the position under section 421 is clear and unambiguous. If the High Court in dealing with criminal appeals takes the view that there is no substance in the appeal, it is not necessary that it should record reasons for its conclusion in summarily dismissing it. Therefore, the High Court was not right in granting certificate to the appellant on the ground that his appeal should not have been summarily dismissed by another Division Bench of the High Court. Mushtak Husain vs State of Bombay, A.I.R. 1953 S.C.282 and Shreekantiah Ramayya Municipally vs State of Bombay, A.I.R. , distinguished. Held further that the requirement as to corroboration in regard to the evidence of a prosecutrix had been elaborately explained by the Sessions Judge to the Jury and having regard to the several statements made by the learned Judge in his charge on this topic, it is difficult to accept that the charge was materially defective in this matter. 239 The failure of the learned judge to mention the point about onus to prove the age of the girl once again, when he dealt with the actual relevant evidence, cannot be said to constitute a misdirection, much less a material misdirection which may have led to the prejudice of the appellant. When a previous statement is put to a witness in cross examination under a. 145 of the Indian Evidence Act, its primary purpose is to contradict the witness by reference to the evidence given at the trial, and so, it cannot be said that the learned judge was wrong in law in telling the jury that the previous statement on which the defence relied may help the defence to contend that the girl was not a straightforward witness and was changing her story from time to time, but the said previous statement cannot be treated as substantive evidence at the trial. That being the true legal position the charge did not suffer from serious misdirection. In a jury trial where questions of fact are left to the ver dict of the jury sometimes the verdicts returned by the jury may cause a disagreeable surprise to the Judge, but that itself can be no justification for characterising the verdict as perverse. The appeal, therefore, must be dismissed.

minal Appeal No. 126 of 1961. Appeal from the judgment and order dated May3,1961 of the Allahabad High Court in Criminal Appeal No. 381 of 1960. O. P. Rana, for the appellant. The respondent did not appear. April 25. The judgment of the Court was delivered by RAGHUBAR DAYAL J. Raja Kamlakar Singh of Shankargarh, U.P. took a lease from the District Board, Allahabad, with respect to the realisation of bayai and bazaar dues on the sale of commodities in the bazaar of Shankargarh. Bachchoo Lal was his employee to collect these dues. On April 13, 1959, Bahadur Singh , a peon of the Raja Sahib, asked Shyam Lal Kurmi, P.W. 2, who had sold two bullock load of linseed to Mewa Lal, respondent 2, in that 360 bazaar, to accompany him to the Munim in order to pay the bayai dues there. Mewa Lal asked Shyam Lal not to pay those dues. The peon, however, took Shyam Lal to Bachchoo Lal, appellant, at the grain godown. Mewa Lal, armed with a lathi, came there and on Bachchoo Lal 's asking him as to why he was creating obstruction in the realisation of the dues, filthily abused him and threatened to break his hand and feet and kill him. Bachchoo Lal, thereafter, instituted a complaint against Mewa Lal, on obtaining sanction of the District Magistrate for prosecuting Mewa Lal for an offence under section 107 of the United Provinces District Board Act, 1922 (U.P. Act No. X of 1922), hereinafter called the Act. The trial Magistrate, the II Class Tashildar Magistrate of Karchana, convicted Mewa Lal of the offences under sections 504 and 506, I.P.C., and also of an offence under section 107 of the Act. On appeal, the Sessions Judge, Allahabad, acquitted Mewa Lal holding that proper authority in favour of Bachchoo Lal for prosecuting Mewa La] under section 10 7 of the Act had not been proved, that the Magistrate had no jurisdiction to try an offence under section 506, Part II, I.P.C. which was triable by a Magistrate of the I Class, and that the prosecution case under section 504 I.P.C., was suspicious. Bachchoo lal filed an appeal against the acquittal of Mewa Lal, after obtaining the permission of the High Court under sub section (3) of section 417 of the Code of Criminal Procedure, hereinafter called the Code. The High Court dismissed the appeal repelling the contentions for the appellant to the effect that the appellant, being the complainant and therefore a party to the criminal case against Mewa Lal, ought to have been given notice of the appeal by the Sessions judge and also ought to have been given an opportunity to be heard and that such notice and opportunity of hearing were necessary on the principles of natural justice and in view of the fact that section 417 (3) of the Code conferred a 361 substantive right of appeal on the complainant. The High Court further held that though the Sessions judge was wrong in holding that the sanction required by section 182 of the Act had not been proved, the sanction was in the name of Raja Sahib of Shankargarh and not of Bachchoo Lal and therefore the complaint was not a valid complaint and that the Raja Sahib could not collect Tah Bazari through his agents. It also held that the acquittal of the accused of the offence under section 506 I.P.C., was justified and that the acquittal of the offence under section 504 I.P.C. could not be said to be erroneous and that in any case the matter was too petty for interfering with an order of acquittal even if it had taken a different view of facts from the one taken by the Sessions judge. The High Court, accordingly, dismissed the appeal. Bachchoo La] has preferred this appeal after obtaining the requisite certificate from the High Court under article 134 (I.) (c) of the Constitution. The State of U.P. is the first respondent and Mewa Lal, the accused, is respondent No. 2. Three questions have been raised on behalf of the appellant. One is that the Assistant Sessions judge ought to have issued a notice of the hearing of the appeal to the appellant on whose complaint Mewa Lal was convicted by the Magistrate and against which order of conviction he had filed an appeal. No such notice was issued to him and therefore the order of the Assistant Sessions Judge acquitting Mewa Lal was not a good order. ' The second contention is that the High Court was wrong in holding that the Raja of Shankargarh could not collect the Tah Bazari dues through his agents. The third contention is that Bachchoo Lal had requisite sanction under section 182 of the Act for prosecuting Mewa La] and, therefore, the finding to the contrary is wrong. 362 The third contention is correct. The requisite authority under section 182 of the Act is in favour of not only the Raja of Shankargarh, but also in favour of several of his employees including Bachchoo Lal, the appellant. We need not express an opinion on the second contention as we do not know the terms of the lease executed by the District Board in favour of the Raja of Shankargarh and as we are not concerned with the civil rights with respect to the manner of collecting the dues which he could collect under the lease. We are, however, of opinion that section 107 does not make obstruction or molestation of an employee of the person under contract with the Board an offence. Section 107 of the Act reads "Whoever obstructs or molests a person employed by, or under contract with, the Board under this Act in the performance of his duty or in the fulfilment of his contract, or removes a mark set up for the purpose of indicating any levels or direction necessary to the execution of works authorised by this Act, shall be liable on conviction to a fine which may extend to fifty rupees. " The section speaks of the obstruction or molestation of two classes of persons. One class of persons consists of persons employed by the District Board under the Act. The Raja of Shankargarh or Bachchoo Lal is not an employee of the District Board. The second class of persons consists of those who are under contract with the Board under the Act. Surely, the person under contract with the Board is the Raja of Shankargarh and not Bachchoo Lal. Bachchoo Lal is only an employee of the Raja. 363 We did not hear the learned counsel on the merits of the case under section 504 of the Code and accept the finding of the court . below. In view of the considerations mentioned, no interference is possible with the acquittal of the respondent No. 2 on merits. It is, therefore, not necessary to decide the first question raised for the appellant. We accordingly dismiss the appeal.

IN-Abs

One Raja Sahib took a lease from the District Board, Allahabad,. with respect to the realisation of bayai and bazar dues on the sale of commodities in the bazar. The appellant was his employee to collect these dues. A peon of Raja Sahib asked Shyam Lal, P.W. 2, who had sold linseed to Mewa Lal, respondent No. 2, to come to the Munim and pay the beyai dues. Mewa Lal asked Shyam Lal not to pay those dues. The peon took Shyam Lal to the appellant. The respondent No. 2 armed with a lathi, came there and on appellant 's asking him as to why he was creating obstruction in the realisation of the dues, filthily abused him and threatened to kill him. The appellant, thereafter, on obtaining sanction of the District Magistrate, instituted a complaint against Respondent No. 2 for prosecuting him for an offence under section 107 of the United Provinces District Board Act. The trial Magistrate convicted him of the offences under sections 504 and 506 of the Indian Penal Code and also of an offence under section 107 of the Act. On appeal, Sessions judge acquitted him of all the charges. Against acquittal, the appellant filed an appeal to the High Court which was dismissed. On appeal by certificates three contentions were raised by the appellant in this Court: (i) The order of the Sessions judge aquitting Mewa Lal was bad as no notice of hearing of the appeal was issued to the appellant, on whose complaint the Magistrate convicted him, (ii) The High Court was wrong in holding that the Raja could not collect the Tah Bazari dues through his agents, and (iii) that the appellant had requisite sanction under section 182 of the Act, for prosecuting Mewa Lal, respondent No. 2. Held that section 107 of the Act does not make obstruction or molestation of an employee of the person under contract with 359 the Board, an offence. The section speaks of the obstruction or molestation of two classes of persons. One class consists of persons employed by the District Board under the Act. The Raja or the appellant is not an employee of the District Board. The second class consists of those persons who are under contract with the Board under the Act. Surely, the person under contract with the Board is the Raja and not the appellant. The appellant is only an employee of the Raja. In view of these considerations, the acquittal of the respondent No. 2 could not be interfered with merits. The appeal, therefore, must be dismissed. The appeal was not heard on merits. If was considered not necessary to decide the first contention and the Court did not express any opinion on the second contention as the terms of the lease were not known. The third contention was held to be correct.

Appeal No. 75 of 1962. Appeal by special leave from the judgment and decree dated October 19, 1959, of the Bombay High Court in Appeal No. 152 of 1959. N. C. Chatterjee, J.B. Dadachanji, O. C. Mathur and Ravinder Narain, for the appellants. A. V. Viswanatha Sastri and D. D. Sharma, for respondents. April 22. The judgment of S.K. Das and Hidayatullah, JJ. was delivered by Das J. Sarkar J., delivered separate, judgment. S.K. DAS J. The only question which arises in this appeal is, whether on a proper interpretation of section 28 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (Bombay Act LVII of 1947) the Court of Small Causes Bombay had exclusive jurisdiction to deal with the suit out of which this appeal has arisen. The respondent before us is a partnership firm. It was in possession as a tenant of a shop No. 582/638, at Mulji Jetha Market, Bombay. It instituted a suit in the Bombay City Civil Court (to be distinguished from the Court of Small Causes, Bombay) in which it asked for (1) a declaration that it was in lawful possession of shop No. 582/638 at Mulji Jetha Market, Bombay and that the present appellants (who were the defendants in the suit) or their family members, servants or agents had no right to enter into or remain in possession of the said shop ; (2) for an injunction restraining the present appellants, their family members, servants and agents from entering into the said shop ; and (3) for an amount of commission payable to it under an agreement 218 dated June 23, 1955. The main averments in the plaint were that by the aforesaid agreement defendant No. 1, appellant No. 1 before us, appointed the respondent as his commission agent for the sale of the appellants ' cloth in the shop in question. The agreement was to remain in force for a period of four years expiring on June 30, 1959. Pursuant to the agreement, the appellants, their family members, servants and agents were allowed by the respondent to visit the shop only for the purpose of looking after the business of commission agency. On the expiry of the agreement the appellants had no further right to enter into the shop and in paragraphs 10 and 11 of the plaint the respondent firm alleged that some commission was due to it and further it asked the appellants not to disturb the possession and peaceful enjoyment of the shop by the respondent ; but the appellants, their servants and agents were visiting the shop daily and preventing the respondent from having access to its various articles such as stock in trade, books of account, furniture, fixtures etc. On these averments the respondent firm asked for the reliefs to which we have earlier referred. The plaint proceeded on the footing that during the period of the agreement the appellants were mere licensees, and after the expiry of the agreement they were trespassers and had no right to be in the shop. The plaint in terms negatives any relationship of landlord and tenant as between the parties to the suit. The substantial defence of the appellants was that the respondent firm had sublet the shop to the appellants at a monthly rent of Rs. 500/ ; but as no sub tenancy could be legally created at the time, without the consent of the landlord, by reason of the provisions of the Act, the respondent firm with a view to safeguard its position in regard to the penal provisions of the Act required the appellants to enter into a sham agreement in the shape of a letter dated June 30, 1952. The agreement was never acted 219 upon and was intended to be a cloak to conceal the true nature of the transaction. The appellants further alleged that the agreement dated June 23, 1955, was also not operative between the parties, and the true relation between the parties was that of landlord and tenant. On these averments in the written statement the appellants took the plea that as the question involved in the suit related to the possession of premises as between a landlord and his tenant, the Court of Small Causes, Bombay, alone had jurisdiction to try the suit. On these pleadings a preliminary issue as to jurisdiction was framed by the City Civil Court, Bombay and this issue was in these terms: "Whether this court has jurisdiction to entertain and try this suit ?" The learned judge of the City Civil Court relying on a decision of this court in Babulal Bhuramal vs Nandram Shivram (1), decided the preliminary issue in favour of the present appellants. He held that in view of the observations of the Supreme Court in the aforesaid decision, an earlier decision of the Bombay High Court in Govindram Salamatrai vs Dharampal (2), which had taken a different view was of no assistance to the present respondent, and must be deemed to have been over ruled by the Supreme Court decision. We may state here that the decision in Govindram Salamatrai (2) , had itself over ruled an earlier decision of the same court in Ebraham Saleji vs Abdulla Ali Raza (3), where Gajendragadkar J. (as he then was) had taken the view that section 28 of the Act included within its jurisdiction all suits and proceedings where the trial court has to consider all claims or questions arising out of the Act., and it makes no difference whether such claim or question arises from the allegations made in the plaint or those made in the (1) ; (2)(1951) , (3) , 220 written statement. The learned judge of the City Civil Court accordingly made an order that the plaint be returned to the present respondent for presentation to tile proper court. An appeal was taken by the present respondent to the High Court of Bombay from the decision of the learned City Civil judge. The High Court pointed out in its judgment dated October 19, 1959, that the ratio of the decision of this court in Babulal Bhuramal 's case (1), was correctly explained in a later decision of the Bombay High Court in Jaswantlal vs "Western Company, India" (2) and on a correct interpretation of section 28 of the Bombay Rents, Hotel and Lodging Houses Rates Control Act, the suit out of which this appeal has arisen was not a suit within the exclusive jurisdiction of the Court of Small Causes, Bombay. The High Court said that the decision in Babulal Bhuramal (1), did not in effect hold, nor did it justify any interpretation to the effect, that section 28 of the Act made a departure from the general principle that governs the question of jurisdiction, which is that jurisdiction at the inception of, the suit depends on the averments made in the plaint and is not ousted by the defendant saying something in his defence. In this respect, the High Court accepted as correct the view expressed by Chagla C. J. in Govindram Salamatrai (3), rather than the view of Gajendragadkar, J. in Ebrahim Saleji (4). In this view of the matter the High Court held that the City Civil Court has jurisdiction to try the suit out of which the appeal has arisen. It, therefore, set aside the order of the learned City Civil judge and directed that it should now dispose of the suit in accordance with law. The appellants then asked for special leave to appeal to this court from the judgment and decree of the High Court, and having obtained special leave have preferred the present appeal. (1) ; (2) (1959) 61 Bom. I.h. 1087, (3) (1951) 53 Bom, L.R (4) , 221 The Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 was enacted, to amend and consolidate the law relating to the control of rents and repairs of certain premises, of. rates of hotels and lodging houses and of evictions, In Part II of the Act there are provisions which make rent in excess of standard rent illegal, provisions relating to increase of rent, provisions as to when a landlord may recover possession, when a sub tenant becomes a tenant, unlawful charges by landlord etc. All these proceed on the footing that there is or was, at the inception, a relation of landlord and tenant between the parties. In the same Part occur sections 28. 29 and 29 A. Section 28 which we shall presently read deals with jurisdiction of courts ; section 29 deals with appeals, and section 29 A is a section which saves suits involving title. The particular section the interpretation of which is in question before us is section 28 and we shall read only sub section (1) thereof in so far as it is relevant for our purpose. This subsection reads. "28. (1) Notwithstanding anything contained in any law and notwithstanding that by reason of the amount of the claim or for any other re ason, the suit or proceeding would not, but for this provision, be within its jurisdiction. (a) in Greater Bombay, the Court of Small Causes, Bombay, (aa) xx xx xx (b) xx xx xx. . shall have jurisdiction to entertain and try any suit or proceeding between a land. lord 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 222 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 subject to the provisions of sub section (2), no other court shall have jurisdiction to entertain any suit, proceeding or application or to deal with such claim or question. " S.29 A also has some relevancy and may be set out here. "Nothing contained in section 28 or 29 shall be deemed to bar a party to a suit, proceeding or appeal mentioned therein in which a question of title to premises arises and is determined, from suing in a competent court to establish his title to such premises. " Leaving out what is unnecessary for our purpose s.28(1) states that 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 within its jurisdiction, the Court of Small Causes in Greater Bombay 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 (meaning thereby Part II apply and to decide any application made under the Act and to deal with any claim or question arising out of the 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 any such claim or question. It is to be noticed that the operative part of the subsection refers to two matters: (a) any suit or proceeding between a landlord and a tenant reletting to the recovery of rent or possession of any premises to which any of the provisions of Part II apply and (b) any application made under the Act or any claim or 223 question arising out of this Act or any of its provisions. What is the true effect of sub s.(I) of s.28 with regard to the aforesaid two matters? Does it mean that if the defendant raises a claim or question as to the existence of a relationship of landlord and tenant between him and the plaintiff, the jurisdiction of the City Civil Court is ousted even though the plaintiff pleads that there is no such relationship, and the only court which has exclusive jurisdiction to try the suit is the Court of Small Causes, Bombay ? That is the question before us. In answering this question it is perhaps necessary to refer to the general principle which admittedly governs the question of jurisdiction at the inception of suits. This general principle has been well explained in the Full Bench decision of the Allahabad High Court, Ananti vs Chhannu (1), and bag not been disputed before us. It was observed there: The plaintiff chooses his forum and files his suit. If he establishes the correctness of his facts he will get his relief from the forum chosen: If . he frames his suit in a manner not warranted by the facts, and goes for his relief to a court which cannot grant him relief on the true facts, he will have his suit dismissed. Then there will be no question of returning the plaint for presentation to the proper court, for the plaint, as framed, would not justify the other kind of court to grant him the relief. . . If it is found, on a trial on the merits so far as this issue of jurisdiction goes, that the facts alleged by the plaintiff are not true and the facts alleged by the defendants are true, and that the case is not cognizable by the court, there will be two kinds of orders to be passed. If the jurisdiction is only one relating to territorial limits or pecuniary limits, the plaint will be ordered to be returned for presentation to the (1) All, 501. 224 proper court. If, on the other hand, it is found that, having regard to the nature of the suit, it not Cognizable by the class of court to which the court belongs, the plaintiff 's suit will have to be dismissed in its entirety." Having regard to the general principle stated above, we think that the view taken by the High Court in this case is correct. section 28 no doubt gives exclusive jurisdiction to the Court of Small Causes to entertain and try a suit or proceeding between a landlord and a tenant relating to recovery of rent or possession of any premises to which any of the provisions of Part II apply; it also gives exclusive jurisdiction to decide any application under the Act and any claim or question arising out of the Act or any of its 'provisions all this notwithstanding anything contained in any other law. The argument of learned counsel for the appellants is that the section in effect states that notwithstanding any general principle, all claims or questions under the Act shall be tried exclusively by the courts mentioned in the section, e.g. the Court of Small Causes in Greater Bombay, and it does not matter whether the claim or question is raised by the plaintiff or the defendant. 'The argument is plausible, but appears to us to be untenable on a careful scrutiny. We do not think that the section says or intends to say that the plea of the defendant will determine or change the forum. It proceeds on the basis that exclusive jurisdiction is conferred on certain courts to decide all questions or claims under the Act as to parties between whom there is or was a relationship of landlord and tenant. It does not invest those courts with exclusive power to try questions of title, such as questions as between the rightful owner and a trespasser or a licensee, for such questions do not arise under the Act. If, therefore, the plaintiff in his plaint does not admit a relation which would attract any of the provisions of the Act on which the exclusive jurisdiction 225 given under section 28 depends, we do not think that the defendant by his plea can force the plaintiff to go to a forum where on his averments he cannot go. The interpretation canvassed for by the appellants will give rise to anomalous results; for example, the defendant may in every case force the plaintiff to go to the Court of Small Causes and secondly, if the Court of Small Causes finds against the defendant 's plea , the plaint may have to be returned for presentation to the proper court for a second time. Learned counsel for the appellants has argued in the alternative that the Court of Small Causes need not return the plaint a second time, for his contention is that Court has "exclusive" jurisdiction to decide the case whenever a claim is made under the Act even though the claim is found to be false on trial. We do not think that this contention can be accepted as correct, for to do so would be to hold that the Court of Small Causes has exclusive jurisdiction to decide question of title, which is clearly negatived by section 29 A. Anomalous results may not be a conclusive arguments but when one has regard to the provisions in Part 11 it seems reasonably clear that the exclusive jurisdiction conferred by s.28 is really dependent on an existing or previous relationship of landlord and tenant and on claims arising under the Act as between such parties. Dealing with a similar argument in Govindram Salamatrai (1) Chagla, C.J. said : "There can be no doubt that when a plaintiff files a suit against a defendant alleging that he is his licensee, it is a suit which cannot be entertained and tried by the Small Causes Court because it is not a suit between a landlord and a tenant, and judging by the plaint no question arises out of the Rent Control Act or any of its provisions which would have to be determined on the plaint as it stands. . . . (1) 226 It cannot be suggested that the plaintiff should anticipate any defence that might be taken up by the defendant that he is a tenant or that the initial jurisdiction which the Court had or which the Court lacked should be controlled or affected by any subsequent contention that might be taken up by the defendant. The jurisdiction of a Court is normally and ordinarily to be determined at the time of the inception of a suit. Therefore when a party puts a plaint on file, it is at that time that the Court has to consider whether the Court had jurisdiction to entertain and try that suit or not. But it is argued that although the Court might have had jurisdiction when the suit was filed, as soon as the defendant raised the contention that he was a tenant the Court ceases to have jurisdiction to try that suit and that contention could only be disposed of by the Small Causes Court by virtue of the pr ovisions of section 28. Therefore, the question that I have to address myself to is whether the question as to whether the defendant is a tenant or a licensee is a question which arises out of the Act or any of its provisions. Really, this question is not a question that has anything to do with the Act or any of its provisions. It is a question which is collateral and which has got to be decided before it could be said that the Act has any application at all. " We are in agreement with these observations, and we do not think that section 28 in its true scope and effect makes a departure from the general principle referred to earlier by us. Nor do we think that the right of appeal given by s.29 affects the position in any way. In respect of a decision given by a Court exercising jurisdiction under section 28, an appeal is provided for in certain circumstances 227 under s.29. This does not mean that s 28 has the effect contended for on behalf of the appellants. As to the decision of this Court in Babulal Bhuramal (1), we do not think that it assists the appellants. We consider that the Bombay High Court correctly understood it in Jaswantlal vs "Western Company, India" (2). In Babulal Bhuramal 's case the facts were these. A landlord after giving a notice to quit to his tenant on December 6, 1947, filed a suit against him in the Court of Small Causes, Bombay, joining to the suit two other persons who were alleged to be sub tenants of the tenant. The landlord 's case was that the tenancy of his tenant was validly terminated and he was entitled to evict his tenant; that the alleged sub tenants of the tenant were trespassers who had no right to be on the premises. The suit succeeded in the Small Causes Court, the Court holding that the subtenants were not lawful sub tenants, the sub letting by the tenant to them being contrary to law. The Small Causes Court, therefore, passed a decree against the plaintiff and the alleged sub tenants. Thereafter, the tenant as plaintiff No. I and the alleged sub tenants as plaintiffs Nos. 2 and 3 filed a suit against the landlord in the City Civil Court for a declaration that plaintiff No. I was a tenant of the defendant and was entitled to protection under the Rent Act and that plaintiffs Nos. 2 and 3 were lawful sub tenants of plaintiffs No, I and were entitled to possession and occupation of the premises as sub tenants thereof. A question was raised in the City Civil Court as to whether the City Civil Court had jurisdiction to entertain the suit. The City Civil Court held that it had jurisdiction to entertain the suit, but dismissed it on merits. In the appeal which was filed in the High Court, the High Court dismissed the appeal holding that the City Civil Court had no jurisdiction to entertain the suit and therefore, the suit filed by the plaintiffs in the City (1) [1959] 367, (2) 228 Civil Court was not maintainable. It was from this decision of the High Court that an appeal was filed in the Supreme Court and the question which the Supreme Court had to consider was whether the second suit filed by the plaintiffs was within the jurisdiction of the City Civil Court. It was urged before the Supreme Court that the suit was main tainable under section 29 A of the Bombay Rent Act which provided that nothing contained in sections 28 or 29 should be deemed to bar a party to a suit, proceeding or appeal mentioned there in which a question of title to premises arises and is determined, from suing in a competent Court to establish his title to such premises. The Supreme Court held that a suit which was competent to establish title under section 29 A was a suit to establish title de hors the Bombay Rent Act and not a suit which sought to establish title which required to be established under the Rent Act itself. It is obvious that in the suit before the Court of Small Causes, it was open to the tenant to claim protection under the Act and by reason of section 28 no other Court had jurisdiction to try that claim; therefore, the Supreme Court held that section 28 barred the second suit and section 29 A did not save it, because it only saved a suit to establish title de hors the Act. The observations made in that decision on which the present appellants rely were these "Do the provisions of section 28 cover %case where in a suit one party alleges that he is the landlord and denies that the other is his tenant or vice versa and the relief asked for in the suit is in the nature of a claim which arises out of the Act or any of the provisions? The answer must be in the affirmative on a reasonable interpretation of section 28. " We agree with the High Court that these observation merely show this that in order to decide whether a suit comes within the purview of section 28 what must 229 be considered is what the suit as framed in substance is and what the relief claimed therein is. If the suit as framed is by a landlord or a tenant and the relief asked for is in the nature of a claim which arises out of the Act or any of its provisions, then only and not otherwise will it be covered by section 28. The High Court has rightly said : "A suit which is essentially one between the landlord and tenant does not cease to be such a suit merely because the defendant denies the claim of the plaintiff. In the same way, a suit which is not between the landlord and tenant and in which judging by the plaint no claim or question arises out of tile Rent Act or any of its provisions does not become a suit covered by the provisions of section 28 of the Act as soon as the defendant raises a contention that he is a tenant. " For the reasons given above we hold that the City Civil Court had jurisdiction to entertain the suit and the High Court correctly came to that conclusion. Therefore, the appeal fails and is dismissed with costs. SARKAR J. I agree that this appeal fails. The City Civil Court, Bombay held that in view of section 28 of the Bombay Rents Hotel and Lodging Rates Control Act, 1947 it had no jurisdiction to entertain and try the Suit which the respondent had filed against the appellants in that Court and directed the plaint to be returned to the respondent for being filed in the proper Court indicated by that section, namely) the Court of Small Causes, Bombay. The City Civil Court had tried the question as a preliminary issue in the suit. There was an appeal to the High Court of Bombay from this decision and the High Court took a contrary view holding that 230 the City Civil Court 's jurisdiction to entertain and try the suit had not been taken away by section 28 of the Act. The matter is now before this Court in further appeal. The suit asked for a declaration that the appellants were not entitled to enter into or remain in possession of a certain shop in Greater Bombay and for a permanent injunction restraining them from entering the shop ' The allegations on which the claim to these reliefs was based were that the appellants had been granted a licence to use the shop of which the respondent was the tenant under the owner and that the appellants were wrongfully continuing there in spite of the termination of the licence and were thereby preventing the , respondent from carrying on its business in the shop. The suit, therefore, was by a licenser against a licensee for certain reliefs based on the termination of the licence. The defence of the appellants to this suit was that the relationship between the parties was not that of licenser and licensee but that the shop had in fact been sub let to the first appellant and that the agreement between the parties had been given the form of a licence only as a cloak to protect the respondent from ejectment under the Act by its landlord on the ground of unlawful sub letting. The appellants contended that as they were really tenants, their landlord, the respondent, was not entitled to remove them from possession in view of the provisions of the Act. The question is, how far the suit is affected by section 28 of the Act. I proceed now to set out the terms of that section omitting the unnecessary portions. section 28 (I) "Notwithstanding anything contained in any law 231 (a) in Greater Bombay, the Court of Small Causes, Bombay, 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. " The section deals with three different kinds of matters, namely, (1) suits or proceedings between a landlord and a tenant relating to the recovery of rent or recovery of possession of premises, (2) an application made under the Act and (3) a claim or question arising out of the Act or any of its provisions. It provides that no court except the Court of Small Causes, so far as properties in Greater Bombay are concerned, shall have jurisdiction to entertain and try any suit or proceeding or to decide any application or lastly to deal with any claim or question of any of the said three kinds mentioned in it. I think it is fairly clear that the suit of the respondent does not fall within the first two kinds of matters contemplated by the section mentioned in. the preceding paragraph and I did not understand learned counsel for the appellants to contend to the contrary. The suit obviously does not come within the second kind for that consists of applications under the Act only and a suit is, of course, not an "application". Turning now to the first kind, it has to be 232 observed that it deals with two varieties of suits between landlord and tenant, namely, a suit for rent and a suit for possession of premises. Obviously the respondent 's suit is not a suit for rent for no rent is claimed at all. Nor do I think it possible to say that the suit is one between a landlord and a tenant for recovery of possession of premises. I suppose whether a suit is of this kind or not will have to be decided by the frame of the suit, that is, by reference to the plaint for the suit is by the plaintiff and it must be as lie has decided it shall be. Admittedly the plaint that the respondent filed does not show that the suit filed by it is between landlord and tenant nor does it contain any claim for recovery of possession of premises. That brings me to the third class of matters mentioned in the section namely, claims and questions arising out of the Act. The section provides that no court other than a Court of Small Causes shall have jurisdiction to deal with any claim or question arising under the Act concerning properties in Greater Bombay. It is important to note here that this part of the section does not purport to affect any court 's jurisdiction to entertain and try a suit but it only prevents a court from dealing with certain claims or questions. Therefore, a court may try a suit in so far as it does not thereby have to deal with a claim or question arising out of the Act. If the other claims and questions arising in the suit cannot be tried without dealing with a claim or question arising out of the Act, then of course the practical result would be to prevent the court from trying the suit at all. Therefore, it seems to me that the real question in this case is whether the City Civil Court had no jurisdiction to try the respondent 's suit as a whole or in part because it would thereby be dealing with a claim or question arising under the Act. Does the 233 decision of the suit then require any claim or question arising out of the Act to be dealt with ? If it does not, the City Civil Court would be absolutely free to try the suit. Now, if one considers the plaint only, then of course it is clear that the present suit raises no claim or question arising out of the Act. But it is said by the appellants that the defence raises such a claim or question. The respondent answers that the section contemplates claims or questions raised by the plaint only, for the section determines the jurisdiction of a court to entertain and try a suit and this must be done when the suit is instituted and, therefore, it is irrelevant to consider what questions the defence raises. I think it unnecessary to decide the dispute whether it is permissible under the section to look at the defence for ascertaining whether a claim or question under the Act arises in the suit. As at present advised, I do not want to be understood as assenting to the proposition that a reference to the written statement is not at all permissible for deciding whether a court has jurisdiction under the section to deal with claims or questions of a certain kind. It is important to remember that the question now is whether a court has jurisdiction to deal with a claim or question and not whether a court has jurisdiction to entertain a suit. I think it unnecessary to decide the dispute because in my view even the defence in the present case does not raise any claim or question tinder the Act. The defence really is that the appellants are not licensees. No doubt the appellants have gone on to say that they are sub tenants but they say that only to show why they are not licensees; apart from that it is irrelevant to enquire whether they are sub tenants or not. I think the defence is only one of 234 a traverse ; it is that the appellants are not licensees as the plaint alleges. That being so, the only question that the suit involves is whether the appellants are licensees of the shop. If they are not licensees, then the suit must fail. No other question would fall for decision. Quite clearly, a question whether a defendant is a licensee or not, is not a question nor is it a claim arising out of the Act. Assume however that the defence by contending that the appellants are not licensees as they are subtenants, also raises the question whether the appellants are sub tenants. Even so, it does not seem to me that is a question or claim arising out of the Act. The Act does not create any tenancy. That has to be created by a contract. The question whether the appellants are sub tenants, that is to say, tenants of a certain kind, is really a question whether a contract of tenancy was made between the appellants and the respondent. That question is not one arising out of the Act for the Act says nothing as to the creation of a tenancy and is only concerned with the regulation of the relations between a landlord and tenant in a tenancy the existence of which is otherwise brought about. The appellants no doubt say that the respondent cannot evict them because they are tenants whose right to possession is protected by the Act. They say that, therefore, a question arises whether they are entitled to remain in possession as subtenants by virtue of the provisions of the Act and without the decision of that question the respondent 's suit cannot be decided. I am entirely unable to see 'that such a question arises in the suit or that it cannot be decided without a decision of that question. As soon as it is held that the appellants are licensees, the suit has to be decreed. When it is so held it has also been necessarily held 235 that the appellants are not tenants, and, therefore, no further question as to rights of tenants under the Act falls to be decided. If however it is held that the appellants are not licensees but tenants, then on that ground alone the suit has to be dismissed for the claim is not based on any ground other than that the appellants are licensees whose licence has expired. It would not in such an eventuality be necessary further to consider whether the appellants who have been found to be tenants, are entitled to protection from eviction under the Act for the suit involves no claim whatever for ejectment of the appellants considered as tenants. No question, therefore, can possibly arise in the suit as to whether the appellants are entitled to be in possession as tenants by virtue of rights created by the Act. Looking at the matter from whatever point of view I do, I am wholly unable to think that the decision of any question or claim arising out of the Act is necessary for deciding the suit. Learned counsel for the appellants referred to Babulal Bhuramal vs Nandram Shivram (1), in support of the proposition that the claim or question arising out of the Act mentioned in the section may be one where only the defence gives rise to it. I find it wholly unnecessary to discuss whether this case supports that proposition for, as I have said in the case in hand, even the defence of the appellants does not raise any such claim or question. I think it right before concluding to refer to section 51 of the Act under which reference to suits and proceedings in the Act are to include reference to proceedings under Chapter VII of the . Chapter VII of the contemplates proceedings for the recovery of possession of premises from licensees after the termination of licences in certain cases. Whether the present case is of that (1) ; 236 type or not is not known. If it is of that type, then it may be that the City Civil Court would have no jurisdiction to deal with it and only the Court of Small Causes would have jurisdiction to do so in view of section 28. As however no argument was advanced by counsel for the appellants on the basis of section 51 nor the facts necessary for its application appear on the record, I do not feel called upon to express any opinion on the matter. I only draw attention to it to show that if the question does arise that has not been argued nor decided in this case. I think it also right to point out that it may be a moot question whether the appellants, having on their own statement entered into an agreement to defraud, in a manner of speaking, the superior landlord of his rights arising under the Act from an unlawful sub letting, can be permitted to say that the real transaction between them and the respondent was a sub tenancy. For these reasons I concur n i the order ' proposed by my brother Das. Appeal dismissed.

IN-Abs

The respondent Is a partnership firm. It instituted a suit in the Bombay City Civil Court against the appellant. It was alleged in the plaint that by virtue of an agreement appellant No. I appointed the respondent as his commission agent for the sale of his cloth in the shop which was in the possession of the respondent. The agreement was to remain in force for four years. Persuant to the agreement the appellants, their family members, servants and agents were allowed by the respondent to visit the shop only for the purpose of looking after the business of commission agency. On the expiry of the agreement the appellants had no further rights to enter into the shop. The respondent prayed for a declaration that it was in lawful possession of the shop, for an injunction restraining the appellants, their family members, servants and agents from entering into the shop and for an amount of commission payable to it under the agreement. The plaint proceeded on the footing that 215 during the period of agreement the appellants were mere licensees and after the expiry of the agreement they were mere trespassers. The plaint in terms negatives any relationship of landlord and tenant as between the parties to the suit. The defence of the appellants was that the respondent had sublet the shop to them at a certain monthly rent. But since no subletting is possible under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, without the consent of the land lord the parties entered into a sham agreement which was never acted upon and which was only a cloak to conceal the true relationship. The relationship was that of a land lord and tenant. On these averments in the written statement the appellants took the plea that the Court of Small Causes Bombay alone had jurisdiction to try the suit. The City Civil Court relying on a decision of this Court upheld the contention of the appellants and made an order that the plaint be returned for presentation to the proper court. The respondent thereupon appealed to the High Court. The High Court held that on a correct interpretation of s.28 of the Act the suit out of which the appeal had arisen was not a suit within the exclusive jurisdiction of the Court of Small Causes Bombay and setting aside the order of the City Civil judge directed that it should dispose of the suit in accordance with law. The present appeal is by way of special leave. In the appeal the same question as to the jurisdiction of the City Civil Court was raised. Held (per S.K. Das and M. Hidayatullah, JJ.) that section 28 no doubt gives exclusive jurisdiction to the Court of Small Causes to entertain and try a suit or proceeding between a landlord and a tenant relating to recovery of rent or possession of any premises to which any of the provisions of Part II of the Act apply; it also gives exclusive jurisdiction to decide any application under the Act and any claim or question arising out of the Act or any of its provisions. Section 28 does not invest the Court of Small Causes with exclusive power to try questions of title as between the rightful owner and a trespasser or a licensee, for such questions do not arise under the Act. If therefore the plaintiff in his plaint does not admit a relation which would attract any of the provisions of the Act on which the exclusive jurisdiction given under section 28 depends, the defendant by his plea cannot force the plaintiff to go to a forum where on his own averments he cannot go. If the suit as framed is by a land lord or a tenant and the relief asked for is in the nature of a claim which arises 216 out of the Act or any of its provisions then only and not otherwise will it be covered by section 28. The City Civil Court had jurisdiction to entertain the suit and the High Court correctly came to that conclusion. Ananti vs Ghhannu, All. 501 Govindram Salamatrai vs Dharampal, , and Jaswantlal vs Western Company, India (1959), 61 Bom. L R. 1087, approved. Babulal Bhuramal vs Nandram Shivram ; , explained. Per Sarkar, J. The suit is not one between a land lord and a tenant for recovery of possession of premises and there. fore it does not come under the first kind of matters mentioned in section 28(1). The suit does not come under the second kind mentioned in that section as that deals with certain applications only. Section 28 thirdly provides that no court other than a Court of Small Causes shall have jurisdiction to deal with any claim or question arising under the Act concerning properties in Greater Bombay. This part of the section does not purport to affect any court 's jurisdiction to entertain and try a suit but it only prevents a court from dealing with certain claims and questions. Therefore a court may try a suit in so far as it does not thereby have to deal with a claim or question arising out of the Act. It is unnecessary to decide the dispute whether it is per missible under the section to look at the defence for ascertaining whether a claim or question under the Act, arises in the suit because even the defence in the present case does not raise any claim or question under the Act. The defence really is that the appellants arc not licensees. That being so, the only question that the suit involves is whether the appellants are licensees of the shop. Quite clearly, such a question is neither a question nor a claim arising out of the Act. Neither is a question whether the appellants are sub tenants one arising out of the Act for the Act says nothing as to the creation of a tenancy. No discussion of any question or claim arising out of the Act is necessary for deciding the suit.

Appeal No. 181 of 1952. Appeal by special leave granted by the Supreme Court on the 16th October, 1952, from the decision dated the 22nd December, 1952, of the Labour Appellate Tribunal of India at Calcutta in Appeals Nos. 366/51, Cal. 69/52 and Cal. 70/52, arising out of the award dated the 9th February, 1952, of the Chairman, Industrial Tribunal, Delhi. M.C. Setalvad (Attorney General for India) and N.C. Chatterjee (B. L. Agarwal, with them) for the appellant. A.S. B. Chari and Hardyal Hardy for the respondents. April 10. The Judgment of the Court was delivered by PATANJALI SASTRI C. J. This is an appeal by special leave from a decision dated September 22, 1952, of the Labour Appellate Tribunal of India at Calcutta setting aside an award dated February 9, 1952, made by the Industrial 'Tribunal :constituted to adjudicate on certain disputes between the appellant, the Punjab National Bank Ltd., Delhi (hereinafter referred to as the Bank) and its workmen, the respondents represented by their Union. The facts leading to this appeal may be briefly stated. Several other disputes between the parties had already been referred on February 21, 1950, to another Industrial Tribunal presided over by Sri K. section 688 Campbell Puri, and during the pendency of the proceedings before the said Tribunal, the Bank alleged that the respondents along with other workmen numbering more than a thousand illegally commenced a general strike on April 18,1951, in connection with a fresh dispute. Thereupon, notice was issued to the strikers that unless they returned to work by April 24, 1951, they would be deemed to have left service of their own accord. That notice having been ignored by the strikers a second notice was issued to them on April 27, 1951, terminating their service. The Government of India thereupon intervened, and as a result of the discussions held between the Government officials and the Bank, the latter agreed to take back all the employees except 150 against whom the Bank had objections on account of their alleged subversive activities and other objectionable and unlawful conduct before and during the strike. On July 2, 1951, the Government of India constituted a Tribunal to decide the questions regarding the dismissals etc. of the aforesaid 150 employees, and that Tribunal, after calling for the statements of case on behalf of the parties and hearing them, made an award on February 9, 1951, refusing reinstatement on the sole ground that the respondents had gone on an illegal strike in contravention of section 23(b) of the , and that the Bank was entitled to dismiss them. The Tribunal, however, granted to the respondents compensation byway of salary and allowances at half the rates from the date of dismissal to the date of the publication of the award. The respondents appealed to the Labour Appellate Tribunal at Calcutta which, while agreeing with the Industrial Tribunal that the strike was illegal, held that it was condoned by the Bank and it was, therefore, not open to it to justify the dismissal of the respondents on the ground that they had participated in the illegal strike. The Appellate Tribunal further held that the dismissal of the respondents ' was wrongful because no charges were framed against any of them in respect of their alleged acts of violence or 689 subversive activities and their explanation was not called for. The Appellate Tribunal accordingly thought that further evidence was necessary on certain specific points mentioned in its, order and reserved its decision as to whether the respondents were entitled to reinstatement till after such evidence was taken. Learned counsel for the Bank advanced a two fold contention in support of this appeal. He challenged the correctness of the conclusion that the Bank had, in the circumstances of the case, condoned the illegal strike by the respondents, and maintained that it was open to the Bank to rely upon the illegal strike as justifying the dismissal of the respondents. On that basis learned counsel argued that there could no longer be any question of reinstating the respondents in the service of the Bank as such reinstatement would in law amount to compelling the Bank to employ these respondents afresh in its service, which the Appellate Tribunal had no jurisdiction to do. He accordingly submitted that this Court should set aside the order of the Labour Appellate Tribunal dated September 22, 1952, obviating the further enquiry directed by the said order. We consider it unnecessary to express any opinion on the question of condonation or waiver of the illegal strike; for, assuming that there was no such condonation or waiver and it was open to the Bank to rely upon the illegal strike as a valid ground for dismissing the respondents, we are of opinion that section 33 of the , furnishes a short answer to the further contention that the Appellate Tribunal had no jurisdiction to order reinstatement of the respondents. That section provides, inter alia, that no employer shall, during the pendency of any proceedings before a 'tribunal in respect of any industrial dispute, discharge by way of dismissal or otherwise, any workman concerned in the dispute save with the permission in writing of the said Tribunal. Admittedly, no such permission was obtained. If the pendency of the proceedings before 690 Sri Campbell Puri made the strike of the respondents illegal under section 23(b) of the Act, the dismissal of the respondents by the Bank without obtaining his permission as required by section 33 was also illegal. We see no force in the argument of the AttorneyGeneral that the section has no application to the case as strikes and lock outs are dealt with in a different chapter, Chapter V, and as the respondents were not concerned in the disputes pending adjudication before Sri Campbell Puri. The terms of section 33 are wide enough to cover the present case, and the fact that it finds place in Chapter VII headed "Miscellaneous" is by no means inconsistent with its general application to all cases of discharge on whatever ground it may be based. This is shown by the recent amendment of the section by Act XLVIII of 1950 which has omitted the words "except for misconduct not connected with the dispute" in the newly substituted section. It is equally clear that the respondents are concerned in the disputes pending before Sri Campbell Puri, as it is conceded that any award made by him would bind the respondents. Section 33 being thus applicable to the case, the contention of the Bank that the dismissal of the respondents was lawful and that in consequence the Appellate Tribunal had no jurisdiction to direct their reinstatement falls to the ground. We therefore see no reason to interfere with the order made by the Labour Appellate Tribunal and we accordingly dismiss the appeal with costs. Appeal dismissed. Agent for the appellant : Ganpat Rai.

IN-Abs

During the pendency of proceedings before an Industrial Tribunal relating to certain disputes between a bank and its workmen represented by the union of its employees, the respondents along with other workmen numbering over a thousand commenced a general strike in connection with a fresh dispute. The strikers were dismissed and on a reference to another Tribunal, it was held by that Tribunal that the strike was illegal and the dismissal was legal. The Labour Appellate Tribunal held on appeal that though the strike was illegal the bank had condoned it and the dismissal was therefore illegal and ordered reinstatement On further appeal; 687 Held, that even assuming that the strike was illegal and the bank had not condoned it, as proceedings were pending before another Tribunal between the bank and its workmen in respect of an industrial dispute, under section 33 of the , the bank could not dismiss the workmen save with the permission in writing of that Tribunal which was not obtained and the dismissal was accordingly illegal on this ground. Section 33 of the , applies to strikes and lock outs as well, though it does not appear in Chap. V of the Act which is headed " Strikes and lock outs " but in Chap. VII which is headed " Miscellaneous."

iminal Appeal No. 39 of 1961. Appeal by special leave from the judgment and order dated January 30, 1960 of the Andhra Pradesh High Court (in Criminal Appeals Nos. 277 and 278 of 1957 and Criminal Revision Case No. 810 of 1957. A.S.R. Chari, K. R. Choudhry and P.D. Menon, for the appellant. Bhimasankaran and R. Thiagarajan for respondent No. 1. R. Mahalingier, for respondent No. 2. 1963. April 23. The judgment of the Court was delivered by MUDHOLKAR J. The respondent No. I was tried before the Court of Sessions, Visakhapatnam for offences under section 120 B, Indian Penal Code, section 409, section 477 A and section 471 read with section 467, I.P.C. while respondent No. 2 was tried for an offence under 301 section 120 B and for offences under sections 409 read with section 109, 477 A and 471 read with section 467, I.P.C. Each of the respondents was convicted of the first two offences, but the respondent No. I alone was convicted of the other two offences. Various sentences were passed against them by the Additional Sessions judge, Visakhapatnam, who presided over the court. The respondents preferred appeals before the High Court challenging their convictions and sentences. The State on the other hand preferred an application for revision under section 439, Cr. P.C. for the enhancement of the sentences passed on the respondents. The High Court allowed the two appeals, acquitted the respondents and dismissed the application for revision preferred by the State. The State of Andhra Pradesh has come up before this Court in appeal by obtaining special leave under article 136 of the Constitution. The prosecution case in so far as it is material for the decision of this appeal is as follows : In the year 1929 the Andhra Engineering Co., which was originally a partnership firm formed by one D.L.N. Raju was converted into a private limited, company with its headquarters at Visakhapatnam. (We shall refer to this company throughout as the AECO). It obtained licences from the Government under the Electricity Act for supply of electrical energy to Visakhapatnam, Anakapalli and some other places. As the AECO did not have the necessary capital to undertake the work Raju floated in the year 1933 a public limited company called Visakhapatnam Electric Supply Corporation Ltd., (referred hereafter as VESCO) and another in the year 1936 called the Anakapalli Electric Supply Corporation Ltd. The AECO transferred its licences for the supply of electrical energy to the consumers of Visakhapatnam to VESCO and similarly transferred to AECO the licence to supply 302 electrical energy to consumers at Anakapalli. The AECO was appointed Managing Agent for each of these corporations under separate agreements. Some time later other industrial concerns, the Andhra Cements Ltd., Vi jayawada and the East Coast Ceremics, Rajahmurthy were started apparently by Raju himself and the AECO was appointed the Managing Agent of each of these concerns. The original managing agency agreement in favour of AECO with respect to VESCO was for a period of 15 years i.e., from 1933 to 1948 and was later renewed for the remaining term of the currency of the licence granted by the Government under the Electricity Act. A mention may be made of the fact that in June, 1952 the VESCO undertaking was acquired by the Government under the provisions of the " 'Electricity Undertaking Acquisition Act" but nothing turns on it. The VESCO had its own Board of Directors while the AECO had also its own separate Board of Directors. The VESCO had no Managing Director but at each meeting of its Board of Directors one of the Directors used to be elected Chairman. The same practice was followed at the meeting of the general body of the shareholders. The AECO on the other band always had a Managing Director, first of whom was D.L.N. Raju. He died in the year 1939 and was succeeded by R.K.N.G. Raju, an Advocate of Rajahmundry. This person, however, did not shift to Visakhapatnam on his becoming the Managing Director but continued to stay most of the time at Rajahmundry. According to the prosecution both these concerns were running smoothly and efficiently during the lifetime of D.L.N. Raju because he was personally attending to their affairs. His successor, however, apart from the fact that be continued to be staying mostly at Rajahmundry, was also interested in several other ventures, including a sugar factory at Dewas in Central India. 303 Eventually many of those ventures failed. According to the prosecution the second Raju was not bestowing sufficient care and attention on the affairs of VESCO. The AECO as Managing Agents of VESCO had appointed in the year 1939 one D.V. Appala Raju, a trusted employee, as its representative and as the secretary of VESCO. In 1944 this person resigned from his appointments and started his own business in radio and electrical goods in the name of D. Brothers. He was succeeded by T. Visweswara Rao, P.W. 6, an employee of the AECO. The respondent No. 1, Ganeswara Rao was also an old employee of AECO, having been appointed a stenotypist in the year 1923 on an initial salary of Rs. 40/ p.m. Eventually he became the Head Clerk therein. He pressed his claim for appointment as Secretary of VESCO and representative of the Managing Agents at Visakhapatnam and R .H.G. Raju appointed him to that post. All this is not disputed. The respondent No. 1, even after his appointment on two posts connected with VESCO, continued to work with the AECO also whose business had by then been confined only to that of Managing Agents of the four companies floated by D.L.N. Raju. It is the prosecution case that as Secretary of VESCO and the resident representative of the Managing Agents, the respondent No. I was attending to the day to day affairs of VESCO, which included the receiving of all sums of money due to VESCO, spending money for the purpose of VESCO attending to the appointment, supervision and control of the staff of VESCO, purchasing materials required for the purpose of VESCO and supervising over the accounts of VESCO. He was thus all important with respect to the every day affairs of 304 VESCO. His dual capacity enabled the respondent No. I to earn the confidence not only of the Directors of AECO but also of those of VESCO. The accounts maintained by the VESCO used to be explained by him not only to the Directors but also to the shareholders. The knowledge of the Financial position of VESCO obtained by them used to be derived essentially from the respondent No. 1. As Secretary of VESCO it was his duty to convene the meetings of the Board of Directors, to present before them the periodical statement of receipts and expenditure of VESCO, to convene meetings of the General Body, to prepare the Managing Agents ' report and the Director 's report as also to see to the presentation of auditors ' report and the statement of accounts. The explanations of the Managing Agents and the Directors of VESCO with respect to the items mentioned in the orders of the Board used also to be placed by him before the shareholders. It was also his duty to have the accounts of VESCO audited by the auditors elected by the general body and to produce before the auditors the relevant accounts, vouchers, bank statements and so on. There were no complaints about the management of the affairs of VESCO or the AECO till the end of 1946 or the beginning of 1947. One significant fact, however, which occurred prior to 1946 is referred to by the prosecution. Till the year 1945 Messrs C. P. Rao & Co., a firm of Chartered Accountants were the auditors of VESCO but after the respondent No. I became Secretary. one B. Rajan was elected Auditor not only for VESCO but for all the other four concerns, including AECO. This person was Auditor for Greenlands Hotel at Visakhapatnam, of which the respondent No. I was a Director. R.K.N.G. Raju took till towards the end of 1947 and died at Madras in April, 1948. According 805 to the prosecution the respondent No. I wanted to take advantage of this fact and conceived of a scheme for misappropriating as much money belonging to VESCO as possible before the managing agency agreement of AECO came to an end in October, 1948. The respondent No. I secured the promotion of the approver K.V. Ramana, who was originally Accounts Clerk to the post of Senior Accountant. Similarly K. V. Gopala Raju was transferred from the post of Stores Clerk to the general department and K.S.N. Murty, the discharged accused, was appointed Stores Clerk in his place. Later, however, Murty was also got transferred to the general section and replaced by P. W. 18, Srinivasa Rao originally a stores boy. The approver who was originally an Accounts clerk with the AECO was, it may be mentioned, appointed a cashier in VESCO in 1946 at the instance of the respondent No. I and was thus beholden to him. He was later promoted as Senior Accountant and in his place the respondent No. 2 Laksbminarayana Rao was appointed the Cashier. According to the prosecution the respondent No. I took both the approver and Lakshminarayana Rao in his confidence as also some other persons "known and unknown" for carrying out his nefarious purpose, namely, the misappropriation of the funds of VESCO during the subsistence of AECO 's managing agency of VESCO. The conspiracy is said to have been hatched in the year 1947 and falsification of accounts and misappropriation of funds of VESCO went on till the end of the accounting year. The term of the managing agency was renewed in 1943 and AECO con tinued to be managing agents until the VESCO was taken over by the Government in 1952. The respondent No. I continued to be the Secretary of VESCO and resident representative of the Managing Agents throughout the period of conspiracy. 306 After the death of R.K.N.G. Raju, it was discovered that the AECO was indebted to many concerns which were under its managing agency, the liability being shown either as that of AECO or that of R.K.N.G. Raju personally. Again, the VESCO was shown as indebted to the Andhra Cement,; to the extent of Rs. 42,000/ . This amount was, however, paid by the AECO from the funds of VESCO. The respondent No. I and some of his friends were in search of a rich and substantial man who would be amenable to them to fill the post of Managing Director of AECO. Eventually their choice fell on G. V. Subba Raju, P. W. 25, a resident of Manchili, who held a large number of shares in the AECO and who was, besides, related to R.K.N.G. Raju by marriage. It is said that this person has not received much education and knows only bow to sign his name in English. He was assured that by consenting to become the Managing Director be would not be required to discharge onerous duties and that the respondent No. I would look to all the affairs of VESCO. He was also told that apart from signing important papers which may be sent to him by the respondent No. I from time to time to Manchili or wherever be might be would have no work to do. He agreed and was elected Managing Director of AECO in the middle of 1948. Upon this understanding he accepted the position offered to him. The VESCO used to receive large amounts of money from high tension power consumers such as the railways, K. G. Hospital, the Port Administration, the Andhra University etc., by cheques. But domestic consumers usually paid their bills in cash to the bill collectors who used to hand over their collections to the respondent No. 2. The respondent No. 2 was asked by the respondent No. I to maintain a private note book. In "that book payments which used to be made by respondent No. 2 on the 307 basis of slips issued by the respondent No. I (which included payments to his relatives or to business firms in which he was personally interested) used to be noted and the amount totalled up at the end of the day. This amount was posted in VESCO 's Cash Handover Book as " 'by safe" indicating that this amount was kept in the safe, though in fact it was not. On the basis of the entries in the Handover Book the final accounts were written up. The respondent No. I opened four personal accounts in different banks, including the Imperial Bank of India (as the State Bank then was). When the respondent No. I had to issue a personal cheque on any of these Banks he used to ask the second respondent to send an equivalent amount to the Bank concerned for being credited to his account. These amounts also used to be noted in the private note book and entered "by safe ' in the Handover Book. Another thing which the respondent No. I initiated was opening a heading in the ledger called "advance purchase of materials. " Amounts which had been misappropriated used to be posted therein though in fact no orders were placed for any material. It may be mentioned that Subba Raju used to visit Visakhapatnam twice a month and check up the account books. At that time it used to be represented to him that the amounts which were shown to be in the safe and not found therein (but which were actually misappropriated) had been sent to the Bank for being deposited. Apparently Subba Raju was fully satisfied with this and other explanations and, therefore, he appointed one C. section Raju, who was the Manager of Andhra Cements to supervise over the affairs of VESCO. Apparently because of this a new method of misappropriation was adopted by the respondents by starting in the VESCO account books, an account called "suspense account". A lakh of rupees passed through that account. Amounts which were misappropriated used to find their way in this 308 account. A new cash book was also said to have been prepared by the conspirators with the object of covering up the misappropriations which had been made. Subba Raju was not satisfied with the nature of supervision exercised by C. section Raju over the affairs of VESCO because he used to look only at the cash book entries of the days on which he paid visits to VESCO 's office, to which he used to go with previous intimation. Besides that, C. section Raju 's management of Andhra Cements had landed it into a loss of Rs. 30,000/ `. Because of all these things he had C. section Raju replaced towards the end of the year 1951 by one Subbaramayya, a retired Finance Officer from the Madras Electricity Board both as a Director of Andhra Cements and as a Supervisor over the accounts of VESCO. Subbaramayya took his work seriously and called for information on a number of points from the respondent No. 1. He, however, was unable to obtain any information. In January, 1952 he therefore brought one section G. Krishna Aiyar who had vast experience in the maintenance of accounts of electrical undertaking 's having been Chief Accountant of the South Madras Electric Supply Corporation, to undertake an investigation and then to act as Financial Adviser. In the meantime on November 29, 1951 there was a meeting of the General Body at which the accounts were, among other things, to be considered. There was a considerable uproar at that meeting because the respondent No. 1 said that the Auditor 's report had not been received. The shareholders felt that the report had been received but was being suppressed or deliberately withheld. However, the meeting was postponed and eventually held on December 9, 1951. On that date the respondent No. 1 produced the auditor 's report (exhibit p. 234 of which exhibit P. 235 is a printed copy). According to 309 the prosecution the report is a forged document. That was also the feeling of a number of shareholders who wanted to see the original but one Dutt who was Chairman of the meeting after seeing exhibit P. 234 said that the report seemed to be a genuine one. section G. Krishna Aiyar after his appointment in January, 1952, made close enquiry and submitted an interim report. That report showed that during the period 1948 49 Rs. 33,271 10 0 shown as paid to the Andhra Power System were in fact not paid. The respondent No. 1 on being asked to explain said that he would give his explanation to the Managing Director. The Interim Report showed that there was a shortage of about Rs. 90,000/ for this period. On February 12, 1952 the respondent No. I wrote to the Managing Director admitting his responsibility and agreed to make good the amounts found short or such other amounts as would be found short up to the end of March, 1952. Further scrutiny of the accounts was being carried out by Krishna Aiyar and in his subsequent report he pointed out that Rs. 2,38,000/ which were shown as having been paid to the Andhra Power System had actually not been paid. In fact in April, 1952 the Collector attached VESCO properties for realising this amount. On April 30, 1952 the respondent No. 1, by selling some of his property, himself paid Rs. 50,000/ to the Andhra Power System towards the sum due to it from VESCO and had promised to pay the balance shortly thereafter. He was given time for doing so but he failed to pay it. The Directors of VESCO thereafter authorised K. section Dutt, one of the Directors to lodge a complaint with the police which he accordingly lodged on May 19, 1952. On the next day the police placed an armed guard around the office of the respondent No. I and seized a number of papers. As a result of investigation they found that there was a total misappropriation 310 of Rs. 3,40,000/ . On May 13, 1954 a chargesheet was filed against the two respondents as well as Murti and the approver Ramana. OD September 13, 1954 Ramana offered to make a full Confession to the Additional District Magistrate (Independent) who was empowered to grant pardon under section 337 of i he Code of Criminal Procedure. He, however, directed Ramana to make his confession before a SubMagistrate. The latter accordingly made a confession on November 15, 1954 and on November 17, 1954 the Additional District Magistrate (Independent) granted him pardon and that is how he came to be examined as a witness in this case. As already stated, the Additional Sessions judge convicted both the respondents, the respondent No. I in respect of each head of the offences with which he was charged and the respondent No. 2 in respect only of the offences of conspiracy and misappropriation. The High Court set aside the conviction of the respondents on a number of grounds. In the first place according to the High Court, joint trial of two or more persons in respect of different offences cornmitted by each of them is illegal and that here as they were charged with having committed offences under section 120 B, section 409, section 477 A and section 476/467, I.P.C. they could not be tried jointly. According to it the provisions of section 239 were of no avail. Next according to the High Court even if section 239 is applicable its provisions are subject to those of section 234 and as such the trial being for more than three offences was impermissible. Then according to the High Court offences under. section 409 and section 471/467 are of different kinds and are not capable of joint commission. Therefore, they could not be jointly tried. Further, according to the High Court where a conspiracy has yielded its fruits the conspirators can be charged with the actual offences committed and not with conspiracy to commit those offences. Charge of conspiracy, according to the High Court, can be validly made 311 only when the prosecution establishes that every conspirator expected to receive a personal benefit from it and that the prosecution has not been able to establish that the respondent No. 2 or the approver evidently had any such expectations since they did not in fact receive any corresponding benefit. In so far as the respondent No. 2 is concerned the High Court has held that since he was charged with a specific offence under s.409 I.P.C. he could not be convicted of mere abetment of an offence. The approver 's evidence was held by the High Court to be inadmissible because the pardon granted to him was illegal. The High Court has also held that his evidence is unreliable and further that the Additional Sessions judge was in error in allowing him to refresh his memory by referring to various documents in a manner not permitted by section 159 of the Evidence Act. The High Court has further stated that inadmissible evidence was taken on record by the Additional Sessions judge, namely, account books of Billimoria Brothers, maintained in Gujrati and further that the Additional Sessions judge was in error in allowing the prosecution to use those account books for establishing absence of entries with regard to certain payments alleged in the VESCO books to have been made to them. Finally, the High Court held that the examination of the respondent under section 342 of the Code was unfair for a number of reasons and that the Additional Sessions judge had failed to perform an important duty in that he did not call the attention of the respondents to the provisions of section 342 which enable an accused person to give evidence in his own behalf Mr. Bhimasankaram, appearing for the two respondents, however, has not sought to support the judgment of the High Court on all these points. The points which he urged are briefly these: (1) That there was a misjoinder of charges and persons in that the various provisions 312 of section 239 were clubbed together and an omnibus charge of conspiracy was framed which on its face was one likely to embarrass the respondents and make their task of defending themselves difficult. (2) The procedure adopted in the investiga tion and committal stages was irregular. (3) Irrelevant evidence was introduced and some evidence was introduced in a manner not authorised by the Evidence Act. (4) That the Court abused its powers under s.342, Cr. P.C. while conducting the examination of the respondents. (5) The evidence of the approver was inadmissible because the pardon granted to him was illegal, that, in any case, it is unreliable, was so found even by the Sessions judge and must, therefore, be rejected. If the evidence of the approver is left out the remaining evidence would be inadequate to sustain the prosecution case. We shall deal with Mr. Bhimasankaram 's contentions in the order in which we have set them out. The first question for consideration is whether there was a misjoinder of parties and of persons. The first charge is in respect of the conspiracy alleged to have been entered into by the two respondents, K. V. Ramana, the approver, and others "known and unknown" to commit criminal breach of trust of the funds of VESCO and, in order to screen its detection, to falsify the accounts of VESCO and to use forged documents as genuine. On the face of it this is a valid charge. But certain objections have been taken to it with which we will deal at the 313 appropriate place. The second charge is for an offence of criminal breach of trust punishable under section 409 and the accusation therein is that the two respondents along with Ramana, misappropriated 69 items aggregating to a little over Rs. 3,20,000/ . It is clear from the charge that some of the amounts were misappropriated between April, 1947 and March, 1950, some between April, 1947 and March, 1949, some between April, 1947 and March, 1951 and quite a large number between September, 1947 and March, 1950 and a still large number between April, 1951 and March, 1952. It is thus apparent that offences committed within a space of 12 months were tried along with offences committed beyond that period. Unless, therefore, the provisions of section 239 are applicable it would follow that there was a misjoinder of charges. The third charge is that the two respondents, along with the approver Ramana made false entries on seven different dates in the account books between September 19, 1947 and March 18, 1952 and thus committed an offence under section 477 A, I.P.C. The fourth charge is that the two respondents, along with the approver Ramana forged six documents on different dates between March 28, 1949 and November 12, 1951 and thus committed an offence under section 471 read with section 467, I.P.C. As we have pointed out earlier the respondent No. I alone was convicted by the Additional Sessions judge in respect of the third and fourth charges. Mr. Bhimasankaram supports the reason given by the High Court for coming to the conclusion that there was a misjoinder of charges. The main reasons upon which the conclusion of the High Court is based are firstly that there could be no clubbing together of the provisions of the various clauses of section 239 and secondly that the respondents were charged with more than three offences of the same kind and that this was in contravention of section 239 (c). In coming to the conclusion that the 314 provisions of various clauses of section 239 cannot be applied cumulatively the High Court has relied upon the decision in Re: Vankavalapati Gopala Rao (1). There the learned judges have held thus: "These clauses are mutually exclusive and they cannot be simultaneously applied and to construe them as supplementing each other would be enlarging the scope of the exceptions. Each clause is an exception to the general rule enacted in section 233, Cr. If such a combination is permissible, all persons accused of offences described in cls. (a) to (g) can be tried together in one case which certainly involves a bewildering multiplicity of charges and which would obviously set at naught the salutary principle contained in section 233." (p. 24) In support of this view the High Court in that case has relied upon the decision in T. B. Mukherji vs State (2 ) and referred to the decision in Singarachariar vs Emperor (3) and D. K. Chandra vs The State(,). Before considering these decisions it will be useful to look at the scheme of Chapter XIX of the Code of Criminal Procedure which deals with the charge. The chapter is split up into two sub heads, ' Form of charges" and "Joinder of charges. " Sections 221 to 232 are comprised under the first sub head and sections 233 to 240 in the second. Sections 221 to 223 deal with the framing and content of charge. section 224 deals with the interpretation of the language of the charge and section 225 with the effect of errors in the charge. Sections 226 to 231 deal with the power of the court with regard to framing and altering charges and the procedure to be adopted at the trial where a charge is found to be defective or there is no charge or where a new charge is to be (1) A.I.R. 1956 Andhra 21. (2) A.I.R. 1954 All. 501. (3) A,I,R, (4) A,I.R. F.B, 315 framed. Section 232 deals with the power of the. appellate court or the High Court when it discovers that there is material error in the charge. Then we come to the other sub head of this chapter. Section 233 provides that for every distinct offence of which any person is accused there shall be a. separate charge. It thus lays down the normal rule to be followed in every case. But it also provides that this will be subject to the exceptions contained in SS. 234, 235, 236 and 239. The first three provisions relate to the framing of charges against a single accused person. Section 234 (1) deals with the trial of a person for offences of the same kind not exceeding three committed within the space of 12 months from the first to the last of such offences and section 231 (2) what is meant by the expression 'offences of ' the same kind '. This provision lifts partially the ban on the trial of a person for more than one offence at the same trial. Section 235(1), however, goes a step further and permits the trial of a person for more offences than one if they are so connected together as to form the same transaction. Thus under this provision if the connection between the various offences is established the limitations placed by section 234(1) both as regards the number and the period during which the offences are alleged to have been committed will not apply. Full effect cannot possibly be given to this provision if we hold that it is subject to the limitation of s.234(1). Sub section (2) of section 235 deals with a case where an offence falls within two definitions and sub s.(3) deals with a case in which a number of acts are alleged against an accused person, different com binations of which may constitute different offences. Then we come to section 236 which provides that if a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged with having committed all or any of such offences and further provides that any number of such 316 charges may be tried together. It also permits that charges could be framed against an accused person in the alternative if the court thinks fit. Thus, this is a special provision available in case of doubt and is neither subject to the limitations prescribed by section 233 nor those of the other preceding provisions. Now, if the respondent No. 1 were alone tried upon the second, third and the fourth charges the provisions of section 235(1) could have been pressed in aid if the allegations were that the offences were so connected together as to form one and the same transaction and the validity of the trial would not have been open to any attack. Similarly if the second respondent were alone tried on the second charge his trial would not have been open to any objection if the allegation were that the offences were so connected together as to form the same transaction. Here, however, we have a case where the prosecution alleges that there was additionally a conspiracy to which apart from the two respondents the approver and some other persons were parties and where in both the respondents were tried together. A conspiracy must be regarded as one transaction and, there fore, a single individual charged with it could be tried with the aid of section 235(1) for all the acts committed by him in furtherance or in pursuance of the conspiracy without the limitations imposed by s.234(1). For, where all the acts are referable to the same conspiracy their connection with one another is obvious. The only provision in the Code which permits the joint trial of more than one person is section 239 and what we have to see is whether under that provision the two respondents could have been jointly tried for the offences with which they were charged. Let us, therefore, examine closely the provisions of 317 section 239. It will be useful to set out the provisions of that section which run thus : " The following persons may be charged and tried together, namely: (a) persons accused of the same offence committed in the course of the same transaction; (b) persons accused of an offence and per sons accused of abetment, or of an attempt to commit such offence; (e) persons accused of more than one offence of the same kind within the meaning of section 234 committed by them jointly within the period of twelve months; (d) persons accused of different offences committed in the course of the same transaction; (e) persons accused of an offence which includes theft, extortion, or criminal misappropriation, and persons accused of receiving or retaining, or assisting in the disposal or concealment of, property possession of which is alleged to have been transferred by any such offence committed by the first named persons, or of abetment of or attempting to commit any such 1st named offence; (f) persons accused of offences under sec tions 411 and 414 of the Indian Penal Code or either of those sections in respect of stolen property the possession 318 of which has been transferred by one offence; and (g) persons accused of any offence under Chapter XII of the Indian Penal Code relating to counterfeit coin, and persons accused of any other offence under the said Chapter relating to the same coin, or of abetment of or attempting to commit any such offence; and the provisions contained in the former part of this Chapter shall, so far as may be, apply to all such charges. " This first thing to be noticed is that section 239 does not read as if its various clauses can be applied only alternatively. On the other hand at the end of cl. (f) there is a conjunction 'and '. If the intention of the Legislature was that the provisions of these clauses should be available only alternatively it would have used the word "or" and not "and" which has the opposite effect. Grammatically, therefore, it would appear that the provisions of the various clauses are capable of being applied cumulatively. The opening words of the section show that it is an enabling provision and, therefore, the Court has a discretion to avail itself cumulatively of two or more clauses. Of course a Court has the power to depart from the grammatical construction if it finds that strict adherence to the grammatical construction will defeat the object the Legislature had in view. The concluding portion of section 239 shows that the provisions contained in the former part of Chapter XIX shall, as far as may be, apply to the charges framed with the aid of section 239. Does this mean that the provisions of section 233, 234, 235, and 236 must also be complied with? Obviously, section 233 does not override the provisions of section 239. Section 234 cannot also be regarded as an 319 overriding provision because reading it that way will lead to the clear result that whereas several accused persons can be charged at the same trial with any number of different offences committed by them in the course of the same transaction they cannot be tried also for offences of the same kind exceeding three in number and committed beyond a space of 12 months from the first to the last. It could not have been the intention of the Legislature to create such a situation. Again, as already stated, section 234(1) does not override the provisions of section 235(1) which permits trial of a person for more offences than one committed during any period provided they are so connected together as to form one transaction. Unless we read section 234(1) as not enacting a fetter on section 235(1), it may not be possible to give full effect to the latter. Now, since section 234(1) cannot be properly read a,,; overriding section 235(1) there is no valid reason for construing it as overriding the provisions of section 239 either. There are also other reasons which point to this conclusion which we will set out while considering the argument advanced by Mr. Bhimasankaram. Mr. Bhimasankaram contended that s, 239 must be read at least subject to sections 234(1) and 235(1) on the ground that if there are certain restrictions with respect to the trial of a single accused there is no reason why those restrictions will disappear if an accused person is tried along with several other persons. Thus he points out that where several persons are accused of more offences than one of the same kind committed by them jointly within a period of 12 months, the number of offences for which they could be tried cannot exceed three. In this connection he relied upon the words "within the meaning of section 224" occurring in cl. (c) of section 239. These words, he contended, clearly show that cl. (c) of section 239 is subject to the provisions of section 234. In our opinion the words " within the meaning of section 234" indicate that what was meant by the words offence of the same kind" 320 in cl. (c) of section 239 is the same thing as was meant by the identical expression used in section 234(1) and defined in section 234(2) and nothing more. If it was the intention of the Legislature to provide that the number of offences for which several accused persons could be tried under cl. (c) of section 239 should be limited to three as provided in section 234(1), the Legislature would either have Said " 'persons accused of more offences than one of the same kind not exceeding three in number" or may have used the words "person accused of more than one offence of the same kind to the extent permissible under section 234". Language of this kind would have made perfectly clear that cl. (c) of section 239 was subject to section 234(1). As already stated, if section 239(c) is construed as being subject to section 234(1), there would be this anomaly that whereas the same accused person could be charged with and tried jointly for any number of offences of different kinds committed by them, for more than three offences of the same kind committed by them jointly there will have to be a separate trial with respect to such offences. Surely such could not have been the intention of the legislature. The object of enacting section 239 was to avoid multiplicity of trials and the only limitation which could properly be placed on the trial of several persons for the same kind of or different offences would be that which considerations of justice and fairness would require. No doubt, such a construction would also give rise to the result that whereas so far as the trial of a single accused person is concerned the charges must be limited to three offences committed by him within the space of 12 months from the first to the last of such offences, there would be no such limitation when along with that accused person there are one or more persons who have jointly committed those offences. The reason for this possibly is that the Legislature did not want to differentiate between cases where any number of different offences were committed jointly by a group of persons from cases where any number 321 of offences of the same kind were committed by a group of persons. According to Mr. Chari section 235(1) cannot be construed as having an overriding effect on section 239 because whereas it contemplates acts so connected together as to form the same transaction resulting in more offences than one, section 239(d) contemplates offences committed in the course of the same transaction and nothing more. The question is whether for the purposes of section 239(d) it is necessary to ascertain any thing more than this that the different offences were committed in the course of the same transaction or whether it must further be ascertained whether the acts are intrinsically connected with one another. Under section 235(1) what has to be ascertained is whether the offences arise out of acts so connected together as to form the same transaction, but the words "so connected together as to form" are not repeated after the words " 'same transaction" in section 239. What has to be ascertained then is whether these words are also to be read in all the clauses of section 239 which refer to the same transaction. Section 235(1), while pro viding for the joint trial for more than one offence, indicates that there must be connection between the acts and the transaction. According to this provision there must thus be a connection between a series of acts before, they could be regarded as forming the same transaction. What is meant by "same transaction" is not defined anywhere in the Code. Indeed, it would always be difficult to define precisely what the expression means. Whether a transaction can be regarded as the same would necessarily depend upon the particular facts of each case and it seems to us to be a difficult task to undertake a definition of that which the Legislature has deliberately left undefined. We have not come across a single decision of any Court which has embarked upon the difficult task of defining the expression. But it is generally thought that where there is proximity of time or place or 322 unity of purpose and design or continuity of action in respect of a series of acts, it may be possible to infer that they form part of the same transaction. It is, however, not necessary that every one of these elements should co exist for a transaction to be regarded as the same. But if several acts committed by a person show a unity of purpose or design that would be a strong circumstance to indicate that those acts form part of the same transaction. The connection between a series of acts seems to us to be an essential ingredient for those acts to constitute the same transaction and, therefore, the mere absence of the words "so connected together as to from" in cl. (a), (c) and (d) of section 239 would make little difference. Now, a transaction may consist of an isolated act or may consist of a series of acts. The series of acts which constitute a transaction must of necessity be connected with one another and if some of them stands out independently, they would not form part of the same transaction but would constitute a different transaction or transactions. Therefore, even if the expression " 'same transaction" alone had been used in section 235(1) it would have meant a transaction consisting either of a single act or of a series of connec ted acts. The expression "same transaction" occurring in cls. (a), (c) and (d) of section 239 as well as that occurring in section 235(1) ought to be given the same meaning according to the normal rule of construction of statutes. Looking at the matter in that way, it is pointless to inquire further whether the provisions of section 239 are subject to those of section 236(1). The provisions of sub section (2) and (3) of section 235 are enabling provisions and quite plainly can have no overriding effect. But it would be open to the court to resort to those provisions even in the case of a joint trial of several persons permissible under section 239. Section 236 is also an enabling provision to be availed of in case of doubt and it is meaningless to say that section 239 is subject to section 236. ]Bearing in 323 mind the fact that the provisions in the "former part" of Chapter XIX are applicable to charges made with the aid of section 239 only "so far as may be" it would not be right to construe section 239 as being subject to the provisions of sections 233 to 236. It was contended by Mr. Chari that the expression "former part" would apply to the first sub division of chapter XIX which deals with the form and content of the charges and the powers of the court with regard to the absence of charge and alteration of charge. We cannot, however, give the expression such a restricted meaning. For, even in the absence of those words, the earlier provisions could not have been ignored. For, it is a rule of construction that all the provisions of a statute are to be read together and given effect to and that it is, therefore, the duty of the Court to construe a statute harmoniously. Thus, while it is clear that the sections preceding section 239 have no overriding effect on that section,, the courts are not to ignore them but apply such of them as can be applied without detracting from the provisions of S.239. Indeed, the very expression 'so far as may be ' empha sises the fact that while the earlier provisions have to be borne in mind by the Court while applying section 239 it is not those provisions but the latter which is to have an overriding effect. Apart from this, the question whether the provisions of sections 233 to 236 have or have no overriding effect on section 239 is not strictly germane to the question considered by the High Court that is, clubbing together all the provisions of the various clauses of section 239. Whether they can or cannot be read cumulatively must be determined by consideration of the language used in those clauses. We have already indicated how those clauses may be grammatically read. On a plain construction of the provisions of section 239, therefore, it is open to the Court to avail itself cumulatively of the provisions of the different clauses of section 239 for the purpose of framing charges 324 and charges so framed by it will not be in violation of the law, the provisions of sections 233, 234 and 235 notwithstanding. The decision of the Allahabad High Court in T. R. Mukherji 's case (IL), is directly in point and is clearly to the effect that the different clauses of section 239 are mutually exclusive in the sense that it is not possible to combine the provisions of two or more clauses in any one case and to try jointly several persons partly by applying the provisions of one clause and partly by applying those of another or other clauses. A large number of decisions of the different High Courts and one of the Privy Council have been considered in this case. No doubt, as has been rightly pointed out in this case, separate trial is the normal rule and joint trial is an exception. But while this principle is easy to appreciate and follow where one person alone is the accused and the interaction or intervention of the acts of more persons than one does not come in, it would, where the same act is committed by several persons, be not only inconvenient but injudicious to try all the several persons separately. This would lead to unnecessary multiplicity of trials involving avoidable inconvenience to the witnesses and avoidable expenditure of public time and money. No corresponding advantage can be gained by the accused persons by following the procedure of separate trials. Where, however, several offences are alleged to have been committed by several accused persons it may be more reasonable to follow the normal rule of separate trials. But here, again, if those offences are alleged not to be wholly unconnected but as forming part of the same transaction the only consideration that will justify separate trials would be the embarrassment or difficulty caused to the accused persons in defending themselves. We entirely agree with the High Court that joint trial should be founded on some 'principle '. But we find it difficult to appreciate what seems to (1) A. I. R. 1954 All. 325 be the view of the High Court that because each `clause of section 239 enunciates a separate principle those principles are, so to speak, mutually ' exclusive and cannot be cumulatively resorted to for trying several persons jointly in respect of several offences even though they form part of the same transaction. The High Court has propounded that the connection described in each of the various clauses is mutually exclusive, that no two of them can exist simulta neously in any case and that one cannot, therefore, have in any case persons connected with one another in two or more ways. In other words, as the High Court puts it, persons included in two or more of the groups cannot all be tried together and that since there is absolutely nothing to connect one group with any other, the persons of one group cannot be tried with those of any other. No reason has been stated in support of this view. Let us consider whether there is anything intrinsically incompatible in combining two clauses of section 239. Take cls. (a) and (b). Clause (a) says that persons accused of the same offence committed in the course of the same transaction may be charged and tried together. Clause (b) says that persons accused of an offence and persons accused of abetment, or, of an attempt to commit such offence may also be charged and tried together. Now, if persons A, B and C are tried for an offence of murder what intrinsic difficulty would there be in trying X, Y and Z of abetment of the same offence? The transaction in which all of them have participated is the same and the abetment by X, Y and Z of the offence committed by A, B and C would itself establish the connection of their acts with those of X, Y and Z. Next, let us take cls. (a) and (c). Clause (c) provides that persons accused of more than one offence of the same kind within the meaning of section 234 committed by them jointly within the period of twelve months could also be charged and tried together. Let us consider these clauses along with another illustration. Two persons A and 326 B enter a house at night and first together commit the murder of a man sleeping there and then also his wife. Each of them has committed two offences and each of them participated in the same offence. Why can they not be tried jointly for both murders and why should there be two trials for the two murders ? The offences are of the same kind and must be deemed to have been committed in the course of the same transaction because of association and mutual connection. Now, supposing in the illustration given A killed the man and B killed his wife. Under cl. (c) they could be tried together because the offences are of the same kind. It would be ridiculous to say that they cannot be tried together for jointly committing the murder of the man and the wife because cl. (a) and (c) cannot be combined. For, without combining these two clauses their joint trial for the two offences in each of which both have participated would be impermissible. Then take section (a) and (d). Under cl. (d) persons accused of different offences committed in the course of the same transaction can be tried together. Let us suppose that a group of persons are accused of having been members of an unlawful assembly the common object of which was to overawe by sheer force another group of persons and take forcible possession of a piece of land. Some of the members of the unlawful assembly carried axes with them while some others carried lathis and attacked the other group. During the course of the attack one person from the second group was killed, as a rest of blows with an axe inflicted by the aggressors A, B and C. Two persons of the second group sustained grievous hurt as a result of lathi blows and one person sustained simple hurt. Let us say that the grievous hurt was caused as a result of lathi blows given by X and Y, simple hurt was caused by lathi blows given by Z. Here, the offences committed were those under sections 147, 302, 325 and 323, I.P.C. The offences being different and the persons commiting the offences being different, they could not 327 be tried jointly only with the help of cl. (a) of section 239. Nor again, could they be tried jointly only with the help of cl. Yet the transaction in which the offences were committed is the same and there is a close association amongst the persons who have committed the different offences. What intrinsic difficulty is there in trying them all together simultaneously availing of cls. (a) and (d) of section 239? These are enabling provisions which circumstance implies that the court may avail itself of one or more of these provisions unless doing so would amount to an infringement of any of the provisions of the Code. All these persons can be jointly tried for offences under section 147 by recourse to cl. So also A, B and C could be jointly tried together for an offences under section 302. X and Y can be charged not only with offences under sections 147 and 325, I. P.C. but also under section 302 read with section 149. Similarly Z can be charged with offence 's under sections 147, 323 and offences under section 302 read with section 149 and section 325 read with section 149. The same offence committed by all of them is that under section 147 and all of them can be tried jointly in respect of that offence under cl. Similarly, if we take cl. (d) by itself all of them can be tried jointly for the different offences committed by each of them in the course of the same transaction and if cl. (a) is unavailable they could not be tried for the offence under section 147 at the same trial. This means that the trial for an offence under section 147 will have to be separated from the trial for the different offences committed by them. It is difficult to appreciate what purpose would be served by separating the trial for the same offence from the trial for different offences. To repeat, the object of the legislature in enacting section 239, Cr. P.C. clearly was to prevent multiplicity of trials and not only would that object be defeated but an extraordinary result will ensue if the various clauses of section 239 are read disjunctively. The reasons given by the Allahabad High Court, therefore, do not merit acceptance. 328 The decision in Singarachariar 's Case (1), has really no bearing upon the point before us. What was held there was that sections 235 (1) and section 236 are mutually exclusive and if a case is covered by one of them it cannot be covered by the other. In that case the question was whether a person who was first tried for an offence under section 380, I.P.C. for stealing a blank second class railway ticket from the booking office, tried, for it and acquitted, could not be tried subsequently for the offence of forgery by making entries in that ticket and using it. The acquittal in the previous case was urged as a bar under section 403(1) of the Code to the trial for an offence under section 467, I.P.C. The contention apparently was that this was a case which fell under section 236, Cr. P.C. and that if he had been tried alternatively for both the offences at the same trial the Court could have dealt with him under section 237, Cr. The High Court, however, held that to be a kind of case which fell under section 235(1) of the Code and that since that was so, the provisions of section 236 were excluded. It is difficult to appreciate how this case assists the conclusion arrived at by the High Court. In D.K. Chandra 's Case (2) it was held that the provisions of sections 234, 235 and 236 being exceptions to section 233 must be strictly construed and that if joinder of charges did not fall under any of them it would be illegal and contrary to law. The precise point which we have to consider here did not fall for consideration in that case i.e., whether the provisions of the various clauses of section 239 could be used together or not. This decision is, therefore, of little assistance. On the other band there is the decision of this Court in The State of Andhra Pradesh vs Kandinmlla Subbaiah (3), which is to the effect that where several persons had committed offences in the course of the same transactions, they could jointly be tried in respect of all those offences under section 239 of the Code of Criminal (1) A.I.R. 1934 Mad 673. C. (2) A. I.R. , F. B. (3) [1962] 2 section R. 194. 329 Procedure and the limitation placed by section 234 of the Code could not come into operation. There, nine persons were jointly tried for 'an offence under section 5 (1) (c) and (d) of the Prevention of Corruption Act, 1947, and section 109, I. P. C. read with s ' 420, section 466 and section 467, I. P. C. and all except one for offences under sections 420, 467/471, I.P.C. Some of them were also charged with separate offences under some of these provisions. Two of the accused persons preferred a revision application before the High Court of Andhra Pradesh in which they challenged the charges framed against them. The High Court allowed the revision application. But on appeal by the State of Andhra Pradesh to this Court, this Court held that there was no misjoinder of charges, that the introduction of a large number of charges, spread over a long period was a question of propriety and that it should be left to the judge or the Magistrate trying the case to adopt the course which he thought to be appropriate in the facts and circumstances of the case. In so far as some of the charges were concerned this Court pointed out that the Special judge who was to try the case should consider splitting them up so that the accused persons would not be prejudiced in answering the charges and defending themselves. It is true that the question of reading the various clauses cumulatively did not specifically arise for decision in that case but the High Court had held that the first charge was an omnibus charge containing as many as 203 offences and that it was in direct violation of sections 234, 235 and 239 of the Code of Criminal Procedure. Dealing with this matter this Court held at p. 200 : "No doubt, sub section (1) of section 234 provides that not more than three offences of the same kind committed by an accused person within the space of 12 months can be tried at the same trial. But then section 235 (1) provides that if in any one series of acts so connected together 330 as to form the same transaction more offences than one are committed by the same person, he may be charged with and tried at one trial for every such offence. Therefore, where the alleged offences have been committed in the course of the same transaction the limitation placed by section 234 (1) cannot operate. No doubt, the offence mentioned in charge No. I is alleged to have been committed not by just one person but by all the accused and the question is whether all these persons can be jointly tried in respect of all these offences. To this kind of charges. 239 would apply. This section provides that the following persons may be charged and tried together, namely : (1) persons accused of the same offence committed in the course of the same transaction; (2) persons accused of abetment or an attempt to commit such an offence; (3) persons accused of different offences committed in the course of the same transaction. Clearly, therefore, all the accused persons could be tried together in respect of all the offences now comprised in charge No. 1. This Court has thus clearly read the provisions of the various clauses cumulatively and we see no reason to read them differently. There remains the decision of this Court in K.V. Krishna Murthy Iyer vs The State of Madras (IN on which Mr. Bhimasankaram strongly relied. In that case this Court upheld the order of the High Court of Madras in quashing the charges in the exercise (1) A. I. R. 1954 s, a. 406. 331 of its inherent powers even before the conclusion of the trial. It is true that there the charges were 67 in number and spread over a long period, of time. That again was a matter which came before the High Court before conviction and not after the trial was over. When an objection is taken at an early stage, there is time enough to rectify an error. But in the case before us no objection was taken to multiplicity or misjoinder of charges before the learned Additional Sessions judge and it was only in the High Court that the point was raised, In such circumstances what the Court has to consider is whether prejudice has in fact been caused to the accused by reason of the multiplicity of charges or misjoinder, if any, of the charges. This is quite clear from the provisions of section 537 of the Code as amended by Act 26 of 1955. In Willie (William) Slaney vs The State of Madhya Pradesh (1), all the learned judges were in agreement on the point that this section and section 535 cover every case in which there is departure from the rules set out in Ch. XIX ranging from error, omissions and irregularities in charges that are framed, down to charges that might have been framed and were not and include a total omission to frame a charge at all at any stage of the trial. The whole question has again been examined by this Court recently in Birichh Bhuian vs The State of Bihar (2). Subba Rao J., who delivered the judgment of the Court has stated the position thus "To summarise: a charge is a precise formula tion of a specific accusation made against a person of an offence alleged to have been com mitted by him. Sections 234 to 239 permit the joinder of such charges under specified condi tions for the purpose of a single trial. Such a joinder may be of charges in respect of different offences committed by a single person or several persons. If the joinder of charges was contrary to the provisions of the Code it would (1) [1955] 2 section Co R. 1140, (2) [1963] Supp. 2S.C.R. 328 332 be a misjoinder of charges. Section 537 prohibits the revisional or the appellate court from setting aside a finding, sentence or order passed by a court of competent jurisdiction on the ground of such a misjoinder unless it has occasioned a failure of justice. " Even if we were to assume that there has been a misjoinder of charges in violation of the provisions of sections 233 to 239 of the Code, the High Court was incompetent to set aside the conviction of the respondents without coming to the definite conclusion that misjoinder had occasioned failure of justice. This decision completely meets the argument based upon Dawson 's Case (1). Merely because the accused persons are charged with a large number of offences and convicted at the trial the conviction cannot be set aside by the appellate court unless it in fact came to the conclusion that the accused persons were embarrassed in their defence with the result that there was a failure of injustice. For all these reasons we cannot accept the argument of learned counsel on the ground of misjoinder of charges and multiplicity of charges. Mr. Bhimasankaram, supporting the view taken by the High Court then contends that it is not permissible to frame a charge of conspiracy when the matter has proceeded beyond the stage of conspiracy and that in pursuance of it offences have actually been committed. A similar view was expressed by the same High Court in the case which was reversed by this Court in The State of Andhra Pradesh V. Kandinalla Subbaiah (2), and it was held that conspiracy to commit an offence being itself an offence a person can be separately charged with respect to such a conspiracy. Then this Court has observed: " Where a number of offences are committed by several persons in pursuance of a conspiracy it is usual to charge them with those (1) (1960)1 All, E. R. 558 (2) , 333 offences as well as with the offence of conspiracy to commit those offences. As an instance of this we may refer to the case in section Swamirathnam vs State of Madras (1). Though the point was not argued before this Court in the way it appears to have been argued. . . before the High Court of Andhra Pradesh, this Court did not see any thing wrong in the trial of several persons accused of offences under section 120 B and s.420. I.P.C. We cannot, therefore, accept the view taken by the High Court of Andhra Pradesh that the charge of conspiracy was bad. If the alleged offences are said to have flown out of the conspiracy the appropriate form of charge would be a specific charge in respect of each of those offences along with the charge of conspiracy." (pp. 201 202). This decision is sufficient to dispose of the point under consideration. In Swamirathnam 's case (1), which is a decision of this Court certain persons were tried for the offence of the conspiracy to cheat the members of the public and for specific offences of cheating in pursuance of that conspiracy. It was urged before this Court that there was misjoinder of charges and persons Negativing the contention this Court held that the charge as framed disclosed a single conspiracy although spread over several years, that there was one object of the conspiracy and that was to cheat the members of the public, that the fact that in the course of years other joined the conspiracy or that several incidents of cheating took place in pursuance of the conspiracy did not have the effect of splitting the conspiracy into several conspiracies. that the several instances of cheating being alleged to be in pursuance of that conspiracy were parts of the same transaction and, therefore, the joint trial of the accused (1) A. I. R. , 343, 344. 334 persons for the different offences was not vitiated. No doubt, there is no discussion there as to the question whether the various clauses of section 239 could be combined or as to the impact of the provisions of section 233 to 236 on those of section 239. The actual decision of the case is, however, directly opposed to the contention now put forward before us. This decision has been followed in Natwarlal Sakarlal Mody vs The State of Bombay (1). In that case the impact of section 120 B, I.P.C. on sections 233 and 239 of the Code of Criminal Procedure was considered by this Court and this Court observed: "The combined effect of the three provisions (sections 235, 236 and 239) is that if there is a criminal conspiracy to commit different offences, the persons who are members of that conspiracy may be charged and tried together but the necessary condition for invoking the provisions of section 239 (d) is that the offence should have been committed in the course of one transaction i.e., in the present case one and the same conspiracy. " Here again, the question of clubbing together of the various provisions of cls. (a) to (d) of section 239 was not raised expressly in the argument before the Court. But the ultimate decision of the case would negative such argument. Mr. Bhimasankaram then relying upon the decision in R. vs Dawson (2), contended that in any event it was not desirable to try the respondents at the same trial for as many as 83 offences and pointed out that these observations had received the approval of this Court in The State of Andhra Pradesh vs Kandimalla Subbaiah (3). In the first place there the trial had not actually begun. Again, what was said by this Court was that it is undesirable to complicate a trial by introducing a large number of charges (1) Crl. A. No. III of 1959 decided on January 19, 1961. (2) , (3) 335 spread over a long period but even so this was a question of propriety which should be left to the discretion of the judge or Magistrate trying the case. Objection was taken very seriously by Mr. Bhimasankaram to the charge of conspiracy framed in this case. That charge reads thus : "That both of you along with K.V. Ramana, exhibit Senior Accountant of the Vizagapatam Electric Supply Corporation Ltd., Visakhapatnam (approver) and others, known or unknown, in or about April 1, 1947, at Visakhapatnam, agreed to do illegal acts, to wit, commit criminal breach of trust in respect of the funds belonging to the Vizagapatam Electric Supply Corporation Ltd., Vizagapatnam; and to screen yourselves from detection of the same, to wilfully, and with intent to defraud, falsify the accounts of the said Vizagapatam Electric Supply Corporation Ltd., Visakhapatnam and that pursuant to the said agreement, you committed criminal breach of trust in respect of funds of the said Vizagapatam Electric Supply Corporation Ltd., Visakhapatnam to the extent of over Rs 3,20,000 and falsified the said accounts between April, 1947 and March, 1952, and also used forged documents as genuine], offences punishable under Sections 409, Indian Penal Code and 477 A, Indian Penal Code and 471 read with section 467, Indian Penal Code ; and thereby committed an offence of criminal conspiracy punishable under Section 120 B of the Indian Penal Code and within my cognizance. " Adverting to the portion which we have bracketed, his first objection was that the charge comprises within it not merely the conspiracy but also what 336 was in fact done in pursuance of the conspiracy. His next objection was that it brought within its purview all the various offences which were alleged to have been committed by the respondents. The third objection was that no charge of conspiracy could have been framed after the conspiracy had borne its fruits. The last objection was that the charge of conspiracy was added to the charge sheet very late. We shall first deal with the third point. The offence of conspiracy is an entirely independent offence and though other offences are committed in pursuance of the conspiracy the liability of the conspirators for the conspiracy itself cannot disappear. In the Indian Penal Code, as originally enacted, conspiracy was not an offence. Section 120 B which makes criminal conspiracy punishable was added by the Indian Criminal Law Amendment Act, 1913 (8 of 1913) along with section 120 A. Section 120 A defines conspiracy and section 120 B provides for the punishment for the offence of conspiracy. Criminal conspiracy as defined in section 120 A and consists of an agreement to do an illegal act or an agreement to do an act which is not illegal by illegal means. Section 120 B provides that whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards shall be punishable in the same manner as if he has abetted such offence unless there was an express provision in the Code for the punishment of such conspiracy. Criminal conspiracy was, however, not an unknown thing before the amendment of the Indian Penal Code in 1913. But what the amendment did was to make that conspiracy itself punishable. The idea was to prevent the commission of crimes by, so to ,speak, nipping them in the bud. But it does not follow that where crimes have been committed the liability to punishment already incurred 337 under section 120 B by having entered into a criminal conspiracy is thereby wiped away. No doubt, as already stated, where offences for committing which a conspiracy was entered into have actually been committed it may not, in the particular circumstances of a case, be desirable to charge the offender both with the conspiracy and the offences committed in pursuance of that conspiracy. But that would be a matter ultimately within the discretion of the court before which the trial takes place. In so far as the fourth point is concerned, that would have a bearing not on the form of the charge but on the credibility of the evidence bearing on the point of conspiracy. As we are remanding the appeal to the High Court for a fresh decision after full consideration of the evidence adduced in the case it would be open to it to consider this matter particularly while judging the credibility of the evidence of the approver. In so far as the portion included in the bracket is concerned we agree with the learned counsel that it should not have found place there. The ideas, however, of the committing magistrate in stating all that is said there appears to have been merely to describe the conspiracy and do nothing more. We do not think that either that or the other objection raised, that is, that the charge embraces within it all the offences said to have been committed by the respondents can properly. be said to vitiate the charge. The object in saying what has been set out in the first charge was only to give notice to the respondents as to the ambit of the conspiracy to which they will have to answer and nothing more. Even assuming for a moment that this charge is cumbersome in the absence of any objection by the respondents at the proper time and in the absence of any material from which we could infer prejudice, they are precluded by the provisions of section 225 from complaining about it at any rate after their conviction by the trial court. 338 Coming to the next point of Mr. Bhimsankaram regarding the abuse of powers under section 342 his first contention was that long and involved questions were put to the respondents. His second contention was that reference was made to a number of documents in some of these questions and those documents were not made available to the respondents for answering those questions. The third contention was that the questions were involved, confusing and bordered on cross examination. Finally he said that the court did not perform its duty under section 342 (4) of the Code as amended as it failed to bring to the notice of the respondents that they may, if they chose, give evidence in their defence. In support of his first contention he referred to questions Nos. 4, 8, 9, 10 and 20 put to the respondent No. I and question No. 12 put to the respondent No. 2 and tried to show that those questions rolled up a large number of separate questions and that it could not have been possible for the respondents to give any rational answers to those questions. We have read the questions and so also the answers. While we are disposed to agree with learned counsel that the questions embrace a number of matters and that it would have been better if those matters had been made the subjects of separate questions, the answers given by the respondents clearly show that they understood the questions and wherever possible they have given complete answers to those questions. That is to say, they have given their explantion regarding the circumstances appearing in the evidence set out in the questions and wherever that was not feasible they have said that they would do so in their written statements. In fact written statements have been filed by each of them in which every point left over has been fully answered. We are informed that the questions had been prepared before hand by the learned Additional Sessions judge, copies thereof were made available to 339 each of the respondents and it was with reference to those copies that they gave their answers in the court. A pointed reference was made to question No. 20 put to respondent No. I which contains as many as 22 sub heads and it is said that it was an extremely unfair and embarrassing question. What the learned Additional Sessions judge has done is to err on the side of over cautiousness by putting every circumstance appearing in the evidence to the respondents for eliciting their explanations. His object was to obviate the possibility of a complaint before the appellate court that they were denied the opportunity of explaining the circumstances appearing in evidence against them because of defective questions. Nor again, do we think that there is any substance in the complaint made that the respondents had no opportunity of referring to the documents to which reference has been made in certain questions. No objection was taken on their behalf before the learned Additional Sessions judge and from the manner in which they have answered the questions there is no doubt that they must have had opportunity to look at the relevant documents and answer the questions. We are also satisfied that there is no substance in the complaint that the questioning bordered on cross examination. Undoubtedly the learned Additional Sessions judge has questioned the respondents very fully and elaborately but to say that this bordered on cross examination is wholly unjustifiable. The object of the learned Additional Sessions Judge quite clearly was, as already stated, to leave no loophole for a complaint to be made before the appellate court of incomplete or insufficient examination under section 342. Finally we are clear that it was not the duty of the court to draw the pointed attention of the respondents to the provisions of sub section (4) of section 342 and tell them that they may, if they chose, enter the witness box. It is true that by introducing this provision 340 the disability placed on an accused person in respect of giving evidence on oath in his own defence has been removed and to that extent such person is placed on par with an accused person under the English law. The new provision, however, does no more than lift the ban and does not impose a duty on the court to draw the attention of an accused person to its contents. Apart from that, the respondents were represented by counsel at the trial who knew very well what the law was. No complaint was made by the respondents even in appeal that they were ignorant of their right, that had they known about it they would have given evidence on oath in their defence and that because of this they have been prejudiced. In the circumstances this point must also be rejected as being without substance. The irrelevant evidence to which Mr. Bhimasankaram referred was certain account books. The entries in the. account books of VESCO show that certain sums of money were paid to various parties, Crompton Engineering Co., Lumin Electric Co., D. Brothers, Radio and Electrical, Madras, Vizagapatam Municipality, P. V. Ramanayya Bros., and Andhra Power System. They also show payment case was that the payments which were entered in the account of VESCO do not find a place in the account books of the corresponding firms or authorities because they were never made by VESCO. The High Court has pointed out that the main evidence on which the prosecution rests its case that the amount represented by the entries against these various firms were in. fact misappropriated by the, respondents in the circumstance that there are no corresponding entries in the account books of those firms. The argument before the High Court was and before us is that, the absence of an entry cannot of electricity duty to Government. The prosecution 341 be established by reference to section 34 of the Indian Evidence Act which reads thus: "Entries in books of account, regularly kept in the course of business, are relevant whenever they refer to a matter into which the Court has to inquire, but such statements shall not alone be sufficient evidence to charge any person with liability." This section appears in a group of sections headed "Statements made under special circumstances". What it does is to make entries in books of account regularly kept in the course of business relevant in all proceedings in a court of law. These entries are, however, not by themselves sufficient to charge any person with liability. Therefore, when A sues B for a sum of money it is open to him to put his account books ' in evidence provided they are regularly kept in the course of business and show by reference to them that the amount claimed by him is debited against B. The entry though made by A in his own account books, and though it is in his own favour is a piece of evidence which the court may take into consideration for the purpose of determining whether the amount referred to therein was in fact paid by A to B. The entry by itself is of no help to A in his claim against B but it can be considered by the court along with the evidence of A for drawing the conclusion that the amount was paid by A to B. To this limited extent entries in the account books are relevant and can be proved. Section 34 does not go beyond that. It says nothing about non existence of entries in account books. We, therefore, agree with the High Court that the account books of the various concerns to whom payments are said to have been made by the respondents are not by themselves evidence of the fact that no payments were received by them. The decision in Queen Empress vs Grees Chunder Banerjee (1), upon which reliance (1) Cal. 342 is placed by the High Court in support of its view is also to that effect. Similarly in Ram prashad Singh vs Lakhpati Koer (1). Lord Robertson during the course of the hearing has observed that no inference can be drawn from the absence of any entry relating to any particular matter which observation supports the view taken in Queen Empress vs Girish Chander Banerjee (2). That, however, is not the only provision to be considered. There is section II of the Evidence Act which provides that facts not otherwise relevant are relevant if they are inconsistent with any fact in issue or relevant fact. Some of the facts in issue in this case are whether payments of certain sums of money were made to Crompton Engineering Co., and other firms or authorities. These are relevant facts. Absence of entries in their account books would be inconsistent with the receipt of the accounts and would thus be a relevant fact which can be proved under section 11. The fact that no payments were received by those firms has been deposed to by persons connected with those firms and whose duty it was to receive and acknowledge amounts received by the firms or who were in charge of the accounts of these firms. For the purpose of showing that no amounts were received by the firms, their account books would thus be as relevant as the VESCO account books for the purpose of showing the contrary. Similarly there is section 5 of the Evidence Act which reads thus: "Evidence may be given in any suit or procee ding of the existence or non existence of every fact in issue and of such other facts as are hereinafter declared to be relevant, and of no others. " It is the case of the prosecution that the alleged payments were never made by VESCO to the various firms. It is also their case that these firms maintain their accounts in the regular course of business and it is their practice to enter in those accounts all payments received by them. Both the sets of facts are (1) Cal. 231, 247. (2) C.L 1024. 343 relevant, that is, non receipt of the amounts by the firms and non existence of entries in their account books pertaining to those amounts. It is permissible, therefore, for the prosecution to lead evidence to ,Drove both these facts. The best evidence to prove the latter set of facts consists of the account books of the firms themselves. It is under these provisions that the account books of the firms must be held to be relevant. What value to attach to them is another matter and would be for the Court of fact to consider. It may further be mentioned that the account books of VESCO show certain payments made to Billimoria & Co. of Kharagpur. Papers seized by the police include receipts purporting to have been signed by one J. J. Billimoria on behalf of the firm. The prosecution case is that these receipts are forged documents and the entries in the account books of VESCO are false. One of the partners of the firm was examined by the prosecution as a witness in the case and he produced the account books of the firm. Those account books are in Gujrati and he stated in his evidence that the accounts were regularly kept and that there were no entries in them corresponding to the entries in the VESCO accounts. The High Court held that since the account books were not translated they are not admissible in evidence. The High Court was clearly wrong in so holding. In coming to this conclusion it has relied upon the provisions of section 356 (2A) of the Code of Criminal Procedure. That section reads thus: "When the evidence of such witness is given in any other language, not being English, than the language of the Court, the Magistrate or Sessions judge may take it down in that language with his own hand, or cause it to be taken down in that language in his presence and hearing and under his personal direction and superintendence, and an authenticated translation of 344 such evidence in the language of the Court or in English shall form part of the record." This provision relates only to the oral evidence adduced in a case and not to documentary evidence. Mr. Bhimasankaram, therefore, very rightly did not support the view of the High Court. In the circumstances we wish to say nothing further on the point. We may, however, point out that Billimoria himself gave his evidence in English. Another point urged by Mr. Bhimasankaram was that as many as 2,000 documents were "dumped" by the prosecution in this case out of which 1600 documents were not sought to be proved by it. Further, 64 documents were missing from the records when they came to the High Court and that this has caused serious prejudice to the respondent. No objection, however, was taken in the courts below on this score and in the absence of any prejudice to the respondents we do not think that we should take notice of the complaint made by Mr. Bhimasankaram. The third point stressed by him was that the approver was allowed to refresh his memory, while deposing in the case, by referring extensively to the account books and various documents produced in the case. This, according to him, was an absue of the provisions of section 159 of the Evidence Act. Now, section 159 expressly enables a witness while under examination to refresh his memory by referring to any writing made by himself at the time of the transaction concerning which he is being questioned or soon afterwards, or to a writing made similarly by another person and read by the witness immediately or soon after the writing was made. Section 160 provides that a witness may also testify to the facts mentioned in any such document as is mentioned in section 159. The complaint of Mr. Bhimasankaram is that the approver should have been questioned 345 about the various facts which were sought to be established through his evidence and it was only if and when he was in a difficulty that he should have been allowed to refer to the account books. Instead of doing that what he was permitted to do was just to prove the various documents or read those documents and then depose with reference to them. In our opinion, where a witness has to depose to a large number of transactions , and those transactions referred to are or mentioned either in the account books or in other documents there is nothing wrong in allowing the witness to refer to the account books and the documents while answering the questions put to him in his examination. He cannot be expected to remember every transaction in all its details and section 160 specifically permits a witness to testify the facts mentioned in the documents referred to in section 159 although he has no recollection of the facts themselves if he is sure that the facts were correctly recorded in the document. That is precisely what happened in this case and we do not think that the Additional Sessions judge adopted a procedure which was either a violation of law or was an abuse of the power of the Court. The next point is a formidable one. According to Mr. Bhimasankaram, the pardon tendered to the approver was illegal and if the pardon is illegal his evidence is wholly inadmissible. Further, according to him, the evidence of the approver was found by the Additional Sessions judge to be unreliable and therefore, the first condition referred to in Sarwan Singh vs The State of Punjab (1), was not satisfied. For all these reasons the evidence of the approver must be left out of account. If it is left out of account, he contends, there is nothing left in the prose cution case, because, as pointed out by the Additional Sessions judge himself the evidence of the approver is the pivot of the prosecution case. (1) ; 346 The pardon is stated to be illegal for two reasons. The first reason is that none of the offences alleged to have been committed falls within section 337 of the Code of Criminal Procedure and the second reason is that the pardon was granted by an authority not empowered to grant it. Section 337 (1) as it stood before its amendment by Act 26 of 1955 read thus "In the case of any offence triable exclusively by the High Court or Court of Session, or any offence punishable with imprisonment which may extend to ten years, or any offence punishable under section 211 of the Indian Penal Code with imprisonment which may extend to seven years, or any offence under any of the following sections of the Indian Penal Code namely, sections 161, 165, 165A, 216A, 369, 401, 431, 435 and 477 A, the District Magistrate, a Presidency Magistrate, a sub divisional Magistrate or any Magistrate of the first class may, at any stage of the investigation or inquiry into, or the trial of the offence, with a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy to the offence, tender a pardon to such person on condition of his making a full and true disclosure of the whole of the circumstances within his knowlege relative to the offence and to every other person concerned, whether as principal or abettor, in the commission thereof : Provided that, where the offence is under inquiry or trial, no Magistrate of the first class other than the District Magistrate shall exercise the power hereby conferred unless he is the Magistrate making the inquiry or holding the trial, and, where the offence is under investigation, no such Magistrate shall 347 exercise the said power unless he is a Magistrate having jurisdiction in a place where the offence might be inquired into or tried and the sanction of the District Magistrate has been obtained to the exercise thereof." His contention is that where none of the offences is exclusively triable by the High Court or the Court of Sessions pardon could be granted only if the offences are punishable with imprisonment which could extend to ten years but not if a higher punishment were provided for them. Here, one of the offences alleged against the respondents is criminal breach of trust punishable under section 409, I.P.C. It is not exclusively triable by a Court of Sessions and the punishment as set out in the 7th column of Schedule II, Cr. P. C. was transportation for life or imprisonment of either description for ten years and fine. He contends that since the offence is punishable with transportation for life, section 337 (1) could not be availed of for granting pardon to the approver. It seems to us that it would not be correct to read section 337 (1) in the way sought by learned counsel. The very object of this provision is to allow pardon to be tendered in cases where a grave offence is alleged to have been committed by several persons so that with the aid of the evidence of the person pardoned the offence could be brought home to the rest. The gravity is of course to be determined with reference to the sentence awardable with respect to that offence. On the strength of these considerations Mr. Chari for the State contends that if the words "any offence punishable with imprisonment which may extend to 10 years" were interpreted to mean offences which were punishable with imprinsonment of less than 10 years grave offences which are not exclusively triable by a court of Sessions will be completely out of section 337 (1). He suggests that this provision can also be reasonably 348 interpreted to mean that where the offences are punishable with imprisonment exceeding 10 years pardon may be granted to the approver. No doubt, if this interpretation is accepted the object of the section, that is, to embrace within it the graver offences, would be fulfilled, but we wish to express no opinion on it. For, the pardon granted in this case can be regarded as being within the ambit of section 337 (1) for another reason. It will be noticed that transportation for life was not the only punishment provided for an offence under section 409 of the Indian Penal Code even before the amendment made to the Indian Penal Code by section 117 of the Act 26 of 1955, the other alternative being imprisonment up to 10 years. Therefore, since the offence under section 409 was not merely punishable with transportation for life but alternately also punishable with imprisonment which could extend to 10 years, section 337 (1) would apply. This section does not expressly say that the only punishment provided for the offence should be imprisonment not exceeding 10 years. The reason why two alternative maximum sentences are given in col. 7, that is, transportation for life (now imprisonment for life) and imprisonment not exceeding 10 years appears to be that the offence is not exclusively triable by a court of session and could also be tried by a Magistrate, who, except when empowered under section 30 would be incompetent to try offences punishable with transportation for life (now imprisonment for life) and the further reason that it should be open to the court of Session, instead of awarding the sentence of transportation for life to a convicted person to award him imprisonment in a jail in India itself for a period not execeeding 10 years. Now, of course, by the amendment made by section 117 of Act 26 of 1955 for the words "transportation for life" the words "imprisonment for life" have been substituted, but the original structure of all the sections now amended continues. That is why they read rather queer but even so they serve the purpose 349 of allowing certain offences triable by a court of Session, to be triable also by Magistrates of the First Class. Be that as it may, there is no substance in the first ground. What we have said about pardon in respect of an offence under section 409 would apply equally to that for one under section 120 B because the punishment for it is the same as that for the offence under section 409. The offence under section 467 read with section 471 is punishable with imprisonment for life or imprisonment of either description for a period of 10 years but it is exclusively triable by a court of Session and, therefore, in so far as such offence is concerned the argument of Mr. Bhimasankaram would not even have been available. As regards the offence under section 477 A, it is one of those sections which are specifically enumerated in section 337 (1) and the argument advanced before us and which we have rejected would not even be available with regard to the pardon in respect of that offence. It is true that the respondent No. I alone was convicted by the Additional Sessions judge of this offence and the offence under section 467 read with section 471 but the validity of a pardon is to be determined with reference to the offence alleged against the approver alone and not with reference to the offence or offences for which his associates were ultimately convicted. Coming to the next ground of attack on the validity of pardon, the argument of Mr. Bhimasankaram is that whereas section 337 (1) speaks of pardon being granted by a District Magistrate, or Presidency Magistrate, a Sub Divisional Magistrate or any Magistrate of First Class, except in cases where an enquiry or trial was pending before another Magis tratc, the pardon here was granted by the Additional District Magistrate in a case where an enquiry was pending before the District Magistrate and is, therefore, illegal and of no avail. He contends that 350 section 337 (1) speaks of the District Magistrate which expression does not include an Additional District Magistrate. Mr. Bhimasankaram 's argument on the point may be summarised thus : Such a power cannot be conferred upon an Additional District Magistrate because section 337 (1) does not contemplate grant of pardon by an Additional District Magistrate and that the Additional District Magistrate would have no status other than that of a Magistrate, First Class. No doubt, under entry (9 a) in Part III of Sch. III to the Code a Magistrate, First Class, has the power to grant pardon under section 337 but it is limited by the proviso thereto to certain classes of cases. A case under enquiry or trial before another magistrate does not fall in any of these classes. Therefore, a pardon granted by him in such a case would be illegal. The Magistrate before whom the enquiry or trial is proceeding or the District Magistrate would be the only authorities competent to grant a pardon in such a case. Alternatively, the State Government has not made any directions under sub section (2) of section 10 specifying the powers of the District Magistrate which would lie exercisable by the Additional District Magistrate concerned. In order to appreciate and consider the argument it is desirable to bear in mind the changes in the magisterial set up in the former province of Madras which comprised within it the district of Visakhapatnam. By Government Order No. 3106 dated September 9, 1949 the Government of the Province of Madras issued certain instructions to the Magistrates in pursuance of the separation of the judiciary from the executive. It divided the magistrates into two groups, Judicial magistrates and executive magistrates. The latter category comprises of the executive officers of the Revenue Department, on whom the responsibility for the maintenance of law and order was to continue to rest. , Para 4 of the instructions provides 351 ". . . To enable them to discharge this respon sibility, these officers will continue to be magistrates. The Collector, by virtue of office, will retain some of the powers of a District Magistrate and will be called the 'Additional District Magistrate. To distinguish him from his Personal Assistant, he may be called 'Additional District Magistrate (Independent) '. He will continue to be the Head of the Police. Similarly, the Revenue Divisional Officers will be exofficio First Class Magistrates, and the Tahsildars and the Deputy Tahsildars will be ex officio Second Class Magistrates. The extent of their magisterial powers will be as indicated in the Schedule of allocation of powers. They will exercise these powers within their respective revenue jurisdictions. " Para 5 provides that as officers of the Revenue Department, those magistrates would be under the control of the Government through the Board of Revenue. The Additional District Magistrates (Independent) would also be under the control of the Government through the Board of Revenue. The category of judicial Magistrates was constituted of the following: (1) District Magistrate; (2) Sub divisional Magistrates; (3) Additional First Class Magistrates and (4) Second Class Magistrates (Sub magistrates). The District Magistrate was constituted as the principal magistrate of the District and as such was entrusted with the duty of general administration and superintendence and control over the other judicial magis trates in the district. In addition to his general supervisory functions and the special powers under the Code of hearing revision petitions, transfer petitions, appeals from Second Class Magistrates and the like, the District Magistrate was also to be assigned a specific area, the cases arising from which would be disposed of normally by himself. This body of magistrates was made subordinate to the High Court. Till the separation between the judiciary and the executive was effected the Collector as the head of the Revenue Department was also the 352 District Magistrate. Consequent on the separation he became only an Additional District Magistrate. Part IV of the Government order deals with the allocation of powers between the judicial and executive magistrates. Para 19(3) occurring in this part deals with allocation of powers under the provisions of the Code otherwise than these referred to in the earlier paragraphs. It specifically provides that the power to tender pardon udder section 337 shall be exercised by executive magistrates except in cases referred to in the proviso to sub section (1) of that section, in which case a judicial magistrate may exercise that power. In spite of the Government order all Magistrates who have, under Sch. III to the Code of Criminal procedure the power to grant pardon will continue to have that power and, therefore, a pardon granted by a judicial Magistrate in contravention of the Government order will not be rendered invalid. However, that is not the point which is relevant while considering the argument of Mr. Bhimasankaram. His point is that the proviso to section 337(1) confers the power on "the District Magistrate" to grant pardon in a case pending before another Magistrate and not on "a District Magistrate" and, therefore, his power to grant pardon in such cases cannot be conferred under sub s.(2) of section 10 on an Additional District Magistrate. According to him, under that section only the powers of "a District Magistrate" meaning thereby only the powers under Entry 7 (a) in Part V of Sch. III as distinguished from the power under the proviso to section 337 (1) can be conferred upon an Additional District Magistrate. Secondly, according to him, no direction has in fact been shown to have been made by the State Government conferring upon an Additional District Magistrate the power of the District Magistrate to grant pardon. In our opinion, there is no subtance in the contention. The power conferred by sub section (1) of section 337 on the different clauses of Magistrates is of the same character. 353 The power to grant pardon in a case pending before another Magistrate is no doubt conferred by the proviso only on the District Magistrate. But Entry 7 (a) in Part V of Sch. III when it refers to the power of a District Magistrate under section 337 (1) does not exclude the power under the proviso. There is, therefore, no warrant for drawing a distinction between the powers of "the District Magistrate" and the powers of " 'a District Magistrate." The power of a District Magistrate to grant Pardon has been specifically conferred on Additional District Magistrates as would appear from section No. 37 of Sch. III of the Government Order, which reads thus : "SI. Concurrent No. magis magis jurisdic trate trate tion 37 337(1) 2nd paragraph (proviso) Remarks Reference to the District Magistrate in the proviso should be construed as reference to the Executive District Magistrate. Reference to the Magistrate making the enquiry or holding the trial etc., should be construed as a reference to the judicial Magistrate. " No doubt, here the reference is to the Executive District Magistrate. But it is clear from the other part of the Government Order that what is meant by that is the Additional District Magistrate (Independent). This was., and, we are told, is being regarded as a direction of the Government falling under subs. (2) of section 10 of the Code. Whether the interpretation is correct or not, we feel little doubt that the 354 action of the Additional District Magistrate (Independent) Visakhapatnam in granting a pardon to the approver in this case though it was pending enquiry before the District Magistrate (judicial), was bona fide. A pardon granted bona fide is fully protected by the provisions of section 529, Cr. P. C. The High Court has not considered any of the provisions to which we have referred but held that as the offence was being equired into by the District Magistrate,the Additional District Magistrate could not usurp the functions of the former and grant a pardon. Had it done so, it would not have come to this conclusion. We are, therefore, unable to accept it. Mr. Chari for the State advanced a further argument before us in case his main argument that the pardon was valid failed and said that the approver, even if we ignore the pardon, was a competent witness. In support of his contention he strongly relied upon the decision in Kandaswamy Gounder In re : the appellant (1), and the cases referred to therein, in particular the decision in Winson vs Queen (2). What has been held in all these cases is that where the trial of a person who was charged with having committed an offence or offences jointly with several persons is separated from the trial of those persons, he would be a competent witness against them though of course there will always be the question as to what weight should be attached to his evidence. Mr. Chari then referred to section 133 of the Evidence Act and pointed out that this section clearly makes an accomplice evidence admissible in a case and that an approver whose pardon is found to be invalid does not cease to be an accomplice and contends that he is, therefore, as competent a witness as he would have been if he had not been granted pardon at all and not been put on trial. Learned counsel further pointed out that the decisions show (1) I.L.R. , (2) (1866) L.R. I Q.B. 355 that however undesirable it may be to adduce the evidence of a person jointly accused of having committed an offence along with others, his evidence is competent and admissible except when it is given in a case in which he is being actually tried. This legal position does not, according to him, offend the guarantee against testimonial compulsion and he points out that that is the reason why an accused person is not to be administered an oath when the court examines him under section 342 (1) for enabling him to explain the circumstances appearing in evidence against him. If pardon is tendered to an accused person and eventually it is found that the pardon is illegal such person is pushed back into the rank of an accused person and being no more than an accomplice would be a competent witness. The question raised is an important one and requires a serious consideration. Mr. Chari in support of his contention has cited a large number of cases, Indian as well as English, and certain passages from Halsbury 's Laws of England. But in the view we take about the legal validity of the pardon tendered, we do not wish to pronounce one way or the other on this very interesting question. Now, as regards the reliability of the approver. It is no doubt true that an approver has always been regarded as an infamous witness, who, on his own showing has participated in a crime or crimes and later to save his own skin, turned against his former associates and agreed to give evidence against them in the hope that he will be pardoned for the offence committed by him. The High Court seems to think that before reliance could be placed upon the evidence of the approver it must appear that he is a penitent witness. That, in our opinion, is not the correct legal position. The section itself shows that the motivating factor for an approver to turn, what in England is called "King 's evidence" is the hope of pardon and not any noble sentiment like contrition 356 at the evil in which he has participated. Whether the evidence of the approver should in any given case be accepted or not will have to be determined by applying the usual tests such as the probability of the truth of what he has deposed to the circumstances in which he has come to give evidence whether he has made a full and complete disclosure, whether his evidence is merely self exculpatory and so on and so forth. The court has, in addition, to ascertain whether his evidence has been corroborated sufficiently in material particulars. What is necessary to consider is whether applying all these tests we should act upon the evidence of the approver should be acted upon. We however, find that certain documents upon which Mr. Chari wants to rely are not included in the paper book. It would take considerable time if we were to adjourn this matter now and give an opportunity to the parties to include those documents on record. The better course would be for us to set aside the acquittal of the respondents and send back the appeal to the High Court ?or being decided on merits. The High Court will of course be bound by the finding which we have given on the questions of law agitated before us. What it must now do is to consider the entire evidence and decide for itself whether it is sufficient to bring home all or any of the offences to the respondents. We may mention that the High Court 's observation that the approver 's evidence was treated as unreliable by the learned Additional Sessions judge is not correct. Of course, the view taken by the Additional Sessions judge is not binding on the High Court. But it should remove from its mind the misconception that the Additional Sessions judge has not believed him. There is another thing which we would like to make clear. The decision in Sarwan Singh vs The State of Punjab (1), on which reliance has been placed by the High Court has been explained by this Court in the case of (1) 357 Maj. E. G. Barsay vs The State of Bombay (1). This Court has pointed out in the latter decision that while it must be shown that the approver is a witness of truth, the evidence adduced in a case cannot be considered in compartments and that even for judging the credibility of, the approver the evidence led to corroborate him in material particulars would be relevant for consideration. The High Court should bear this in mind for deciding whether the evidence of the approver should be acted upon or not. Then again it would not be sufficient for the High Court to deal with the evidence in a general way. It would be necessary for it to consider for itself the evidence adduced by the prosecution on the specific charges and then to conclude whether those charges have been established or not. The prosecution would be well, advised if, instead of placing the evidence on each and every one of those large number of charges against the respondents, it chooses to select a few charges under each head other than the head of conspiracy and concentrates on establishing those charges, this would save public time and also serve the purpose of the prosecution. With these observations we set aside the acquittal of the respondents and remit the appeal to the High Court for decision on merits in the light of our observations. Appeal allowed. Case remanded.

IN-Abs

A and B were tried together at one trial, A of offences under sections 120 B, 409,477 A and 471 read with section 476 Indian Penal Code and B of offences under sections 120 B,409 read with 109 298 and 471 read with 467 Indian Penal Code. The Sessions judge who tried them convicted A of all the offences charged and B of the first two charges. On appeal the High Court acquitted both of them. The State appealed to the Supreme Court. The respondents contended: (i) that there was a misjoinder of charges and persons on account of the cumulative use of the various clauses of section 239 of the Code of Criminal Procedure which was not permissible, (ii) that no charge of conspiracy could be framed after the conspiracy had fructified, (iii) that the Sessions judge had failed to inform the accused of their right under 3. 342 ( 4 ) of the Code to examine themselves as witnesses, (iv) that the pardon had been granted to the approver illegally, (v) that the approver had been allowed illegally to refresh his memory by reference to documents at the time when he was examined before the Court, and (vi) that the account books of certain firms which contained no entries regarding payments alleged to have been made to them were inadmissible in evidence. Held that there was no misjoinder of charges and of accused persons. It is open to the Court to avail itself cumula tively of the provisions of the different clauses of section 239 of the Code for the purpose of framing charges. Sections 233 to 236 do not override the provisions of section 239. But the provisions of sections 234 to 236 can also be resorted to in the case of a joint trial of several persons permissible under section 239. Even if there was a misjoinder the High Court was incompetent to set aside the convictions without coming to the definite conclusion that the misjoinder bad occasioned failure of justice. Re: Fankaralapati Gopala Rao, A.I.R. 1936 Andhra 21 and T.B. Mukherji vs State, A.I.R. 1954 All. 501, not approved. State of Andhra Pradesh vs Kandimalla Subbaiah, , K.V. Kriahna Murthy Iyer vs State of Madras, A.I.R. 1954 S.C. 406, Willi (William) Slaney vs State of Madhya Pradesh. ; , Birichh Bhuian vs The State of Bihar. (1964) Supp. 2 S.C.R. 328. Held further that where offences have been committed in pursuance of a conspiracy, it is legally permissible to charge the accused with these offences as well as with the conspiracy to commit those offences. Conspiracy is an entirely independent offence and though other offences are committed in pursuance of the conspiracy, the liability of the conspirators for the conspiracy itself cannot disappear. 299 State of Andhra Pradesh vs Kandimalla Subbaiah. , relied on. S, Swamirathnam vs State of Madras, A.I.R. 1957 S.C. 340 and Natwarlal Sakarlal Mody vs State of Bombay, Cr. A. No. 111 of 1959, dt 19.1.196 1, referred to. Held further, that there was no violation of the provisions of section 342 of the Code. The Sessions Judge had erred on the side of overcautiousness by putting every circumstance appearing in the evidence to the accused. Copies of the questions put to the accused were given to them before hand. Any point left over in the questions was covered in the written statements filed by the accused. In such circumstance the length of the questions or of the examination could not prejudice the accused. Further, there was no duty cast on the Court to inform the accused of their right under section 342 (4) to examine themselves as witnesses. They were represented by counsel who must have been aware of this provision. Held further, that the pardon was legally granted to the approver under section 337 of the Code and was a valid pardon. The offences with which the accused were charged were all such in respect of which a pardon could be granted under section 337 (1). The offences under section 467 read with section 471 which was exclusively triable by a court of sessions and the offence under section 477 A which was mentioned in section 337 (1) itself and thus both fell within the ambit of section 377 (1). the offence under section 409. and consequently the offence under section 120 B also, was punishable with imprisonment for life or with imprisonment not exceeding ten years and was an "offence punishable with imprisonment which may extend to ten years" within the meaning of section 337 (1). Further, tinder G.O. No. 3106 dated September 9, 1949, the Madras Government, the power of a District Magistrate to grant pardon was specifically conferred on Additional District Magistrates, and the Additional District Magistrate, (Independent) who granted the pardon in the present case was competent to do so. Held further, that the Sessions judge acted legally and properly in allowing the approver to refresh his memory, while deposing, by referring to the account books and other documents produced in the case. Where a witness has to depose to a large number of transactions and those transactions are referred to or mentioned either in the account books or in other documents there is nothing wrong in allowing the witness to refer to the account books and the documents 300 while questions are put to him. Such a course is specifically permitted by sections 19 and 160 of the Evidence Act. Held further, that the account books of the firms which contained no entries with respect to payments alleged to have been made were not relevant under section 34 of the Evidence Act, as that section is applicable only to entries in account books regularly kept and says nothing about non existence of entries. But they were relevant under section I I of the Act as the absence of the entries would be inconsistent with the receipt of the amounts which was a fact in issue. They were also relevant under section 5 to prove the facts alleged by the prosecution that payments were never made to these firms and that those firms maintained their accounts in the regular course of business, and both these were relevant facts. Queen Empress V. Grees Chander Banerjee (1884) I.L.R. IO Cal, 1024, and Ram Pershad Singh vs Lakhpati Koer, Cal. 231, referred to.

Appeals Nos. 166 and 167 of 1962. Appeals from the judgment and decrees dated October 25, 1957 of the Allahabad High Court in Special Appeals Nos. 140 and 139 of 1957. J.B. Goyal, for the appellants (in C.A.No. 166 of 62). 1 C. B. Agarwala and P. C. Agarwala, for the appellants (in C.A. No. 167 of 62). 428 K. section Hajela and C. P. Lal, for respondent No. I (in both the appeals). C. P. Lal, for respondent No. 2 (in both the appeals). April 26. The judgment of the Court was delivered by WANCHOO J. These two appeals on certificates granted by the Allahabad High Court raise common questions and will be dealt with together. It will be enough if we mention the facts in appeal No. 167, for the facts in the other appeal are exactly the same, except that the lands in dispute are different in the two cases, though lying in the same area in the city of Kanpur. Deoki Nandan, appellant in appeal No. 167, is the lessee of two plots in Anwarganj, Bans Mandi, Kanpur, and his lease is for a period of 99 years from 1943. On these plots there exists a mill known as Om Cotton Ginning and Oil Mill. Besides the mill there are pacca godowns also on the plots and two thirds of the area is under buildings while onethird is open land paved with bricks. No part of the land is waste or arable. It appears that in February 1932 the Government of U. P. sanctioned by notification a scheme known as Pechbagh Dalelpurwa Scheme No. XX (hereinafter referred to as scheme No. XX) of the Improvement Trust Kanpur. It may be mentioned that the Improvement Trust Kanpur has now been replaced by the Development Board Kanpur (hereinafter referred to as the Board) by the Kanpur Urban Area Development Act, No. VI of 1945, (hereinafter referred to as the Kanpur Act), which repealed the U. P. Town Improvement Act, No. III of 1920, insofar as it applied to Kanpur. It is not clear what 429 happened to scheme No. XX after 1932; but it does appear that it was not fully carried out. It appears that in 1955 a scheme known as subsidized industrial housing scheme was sponsored by Housing Department of the U. P. Government. This scheme was to be put in force in four phases. and we are concerned in the present appeal with the fourth phase. For that phase the Government of India had sanctioned over rupees two crores and it was decided to build 6973 tenements of which 1368 were to be in an Ahata on the Hamirpur road. We are concerned with this part of the scheme, for the lands in dispute are in this locality. The decision in this connection was taken by the Government of U. P. in May 1955. Thereafter on January 6, 1956, a notification was issued under section 4 of the Land Acquisition Act, (No. I of 1894) by the Governor of U. P. to the effect that the two plots in dispute were required for the construction of tenements in the fourth phase of the subsidized industrial housing scheme sponsored by the Government of U. P. as well as for general improvement and street scheme No. XX of the Board. This was followed by a notification under section 6 of the Land Acquisition Act on January 31, 1956. That notification further said that the case being one of urgency the Governor was pleased under sub sections (1) and (I A) of section 17 of the Land Acquisition Act to direct that the collector of Kanpur, though no award under section 11, has been made, might on the expiration of the notice mentioned in section 9 (1) take possession of lands, buildings and structures forming part of the land mentioned in the schedule for public purposes. Then followed a notice under section 9 by the Collector on February 10, 1956, which said that possession would be taken over 15 days after the issue of the notice i. e. on February 25, 1956. On receipt of this notice, Deoki Nandan appellant filed his objections before the Collector on February 21, 1956, 430 Two days later, on February 23, 1956, he filed the writ petition in the High Court out of which the present appeal has arisen. In this writ petition two main points were urged on behalf of the appellant. It was first urged that as the acquisition was for the purposes of scheme No. XX of the Board, action had to be taken in accordance with section 114 of the Kanpur Act and the schedule thereto and as no action had been so taken, the proceedings for acquisition were bad. In the second place, it was urged that it was not open to the Governor to issue the notification under section 6 of the Land Acquisition Act without first taking action under section 5 A thereof. It is not in dispute that no action was taken under section 5 A and no report was made as required therein. The writ petition was dismissed by the learned Single judge who heard it. On the first question he held that this was not a case to which the Kanpur Act applied. On the second question, he held that section 17 (4) applied and therefore it was not necessary to take proceedings to comply with section 5 A before issuing a notification under section 6. Then followed an appeal which was heard by a Division Bench of the High Court. The appeal court upheld the view taken by the learned Single Judge and dismissed the appeal. However, the appeal court granted a certificate as prayed for, and that is how the matter has come up before us. The same two questions which were agitated in the High Court have been raised before us. In the first place, it is urged that as the acquisition was for scheme No. XX of the Board, action should have been taken under the Kanpur Act and as this was Dot done the entire proceedings are bad including the issue of the notifications under section 4 and section 6. In the second place, it is urged that section 17 (4) could not 431 apply in the present case and no notification under section 6 could be issued unless section 5 A had been complied with. As no such compliance was admittedly made, the notification under section 6 in any case is bad, even if the notification under section 4 is good. Turning now to the first point, the main reliance of the appellant is on section 114 of ' the Kanpur Act, which is in these terms : "Modification of the Land Acquisition Act, 1894 For the purpose of the acquisition of land for the Board under the land Acquisition Act, 1894 (a) the said Act shall be subject to the modification specified in the Schedule to this Act; (b) the award of the Tribunal shall be deemed to be the award of the court under the Land Acquisition Act, 1894. " We may also refer to section 108 which provides for constitution of the tribunal and section 109 which lays down that the tribunal shall perform the functions of the court with reference to the acquisition of land for the Board under the Land Acquisition Act, 1894. Further, it is necessary to refer to section 71 (1) also which provides that "the Board may, with the previous sanction of the State Government, acquire land under the provisions of the Land Acquisition Act, 1894, as modified by the provisions of this Act, for carrying out any of the purposes of this Act". The argument on behalf of the appellants is that where land is acquired for the purposes of the Board action has to be taken under ch. VII which provides for various kinds of development schemes for the Board and the procedure for making such schemes. After this procedure laid down in ch. VII is gone through, (and it is not in dispute that no s c procedure was gone through in the present case insofar as scheme No. XX is concerned), section 114 comes 432 into play and acquisition has to take place under the modified provisions of the Land Acquisition Act even where the Government is acquiring the land. Stress in this connection is laid on the words "acquisition of land for the Board" in section 114, and it is said that whenever there is acquisition of land for the Board, action can only be taken, even though it is the Government which is acquiring the land, under the modified provisions of the Land Acquisition Act ,contained in the Kanpur Act. We are of opinion that this argument is fallacious. If one looks at the scheme of the Kanpur Act, one finds that ch. VII provides for various kinds of development schemes and the procedure for finalising them. After the scheme is finalised under ch. VII power is given to the Board to purchase the land required for the scheme or take it on lease under section 70. Then section 71 provides in the alternative that the Board may with the previous sanction of the State Government acquire land under the provisions of the Land Acquisition Act as modified by the provisions of the Kanpur Act. It is only when the Board proceeds to acquire land by virtue of its powers under section 71 that section 114 comes into play and the proceedings for acquisition have to take place under the Land Acquisition Act as modified by section 114 read with the schedule. It is true that section 114 speaks of acquisition of land for the Board, and the argument is that when section 114 speaks of acquisition of land for the Board, it applies to acquisition of land for the Board by the Government and not to acquisition by the Board, which is provided by section 71 (1). This interpretation of ' section 114 is in our opinion incorrect. Section 71 certainly provides for acquisition of land by the Board when it says that the Board may acquire land under the provisions of the Land Acquisition Act as modified by the Kanpur Act; but that ' acquisition is also by that very section for carrying out the 433 purposes of the Act i.e. for the Board. Therefore when section 71 authorises the Board to acquire land under the Land Acquisition Act as modified by the Kanpur Act, the acquisition is for the Board. Section 71 further speaks of the modification of the provisions of the Land Acquisition Act. This modification is not provided in section 71 itself. In order to find out the modification we have to go to section 114. Therefore, s.114 merely serves the purpose of indicating the modification which has been mentioned in section 71. There is no reason to hold, because the words "acquisition of land for the Board" appear in s.114, that this acquisition is by the Government for the Board. The scheme of the Kanpur Act clearly shows that the Board frames a scheme and then decides to acquire the land for itself tinder section 71 with the previous sanction of the State Government. If it so decides, section 114 applies to such an acquisition by the Board for itself with the necessary modification in the Land Acquisition Act. We may in this connection refer to section 109, which describes the duties of the tribunal. Now there is no doubt that where the Board is acquiring land under" section 71 of the Kanpur Act, it is the tribunal which takes the place of the court in the Land Acquisition Act. But section 109 also uses the same words, namely acquisition of land for the Board. As the acquisition by the Board is also for the Board, there can be no doubt that the scheme of the Kanpur Act is that the Board first proceeds under ch. VII, then decides to acquire land under section 71. and if it so decides s.114 comes into play with the modifications in the Land Acquisition Act mentioned in the schedule. Two modifications in the schedule are the replacement of the notification under s.4 by the notification under section 53 in ch. VII and the replacement of notification under section 6 by the notification under s.60 also in chap. It is obvious that ch. VII, section '11, s.1 14 and the other provisions in ch. XI dealing with modifications and the modifications in the schedule are all part of one scheme, where the Board is acquiring 434 land itself for its own purpose with the previous sanction of Government; but where the acquisition is, as in the present case, by the Government under the Land Acquisition Act, for public purpose though that purpose may be the purpose of the Board, the Kanpur Act has no application at all. , and the Government proceeds to acquire under the provisions of the Land Acquisition Act alone. The contention therefore on behalf of the appellants that the Kanpur Act has not been complied with and therefore the proceedings for acquisition of land are bad has no force and must be rejected. We now come to the second point raised on behalf of the appellants. For that purpose we may briefly refer to the scheme of the Land Acquisition Act, The proceedings for acquisition start with a preliminary notification under s.4. By that notification the Government notifies that land in any locality is needed or is likely to be needed for any public purpose. On that notification certain consequences follow and authority is conferred on an officer 'either generally or specially by Government and on his servants and workmen to enter upon and survey and take levels of any land in such locality, to dig or bore into the sub soil, to do all other acts necessary to ascertain whether the land is adapted for such purpose, to set out the boundaries of the land proposed, to be taken, and so on. Then section 5 A provides that any person interested in any land which has been notified in s.4, may within thirty days of the issue of the notification object to the acquisition of the land .or of any land in the locality as the case maybe. Every such objection shall be made to. the Collector in writing and the Collector has to give the objector an opportunity of being heard. After hearing all objections and after making further inquiry if any, as he thinks fit, the Collector has to submit the case for the decision of the Government together with the record of the proceedings held by him and the report 435 containing his recommendations on the objections. the decision of the Government on the objections is final. Then comes the notification under s.6, which provides that when the appropriate government is satisfied after considering the report, if any, made under section 5 A that any particular land is needed for a public purpose, a declaration shall be made to that effect and published in the official gazette. After such a declaration has been made under s.6, the Co llector has to take order for acquisition of land. It is marked out, measured and planned under section 8 if necessary and notice is given under section 9 to persons interested. The Collector then holds inquiry under section II and makes an award. After the award is made the Collector has got the power to take possession of the land under section 16 and the land then vests absolutely in the Government free from all encumbrances. It will be clear from this scheme that compliance with the provisions of section 5 A is necessary before a notification can be issued under section 6. As soon as the preliminary notification is issued under s.4, the officer authorised by Government may enter upon the land to survey it and to do all other necessary acts to ascertain whether the land is adapted for the purpose for which it is to be acquired, and this action, if taken, will give sufficient notice to those interested to object. If objections are made the Collector will consider those objections and make his recommendation thereon in his report to Government. If no objections are made the Collector will report that no objection has been made and the Government then proceeds to issue a notification under s.6. In either case however, the Collector has got to make a report with his recommendations on the objections if they are filed or inform the Government that there are no objections filed in pursuance of the notification under section 4 and it is thereafter that the Government is empowered under section 6 to issue a notification. This, as We have said,is the usual procedure to be followed 436 before the notification under s.6 is issued: To this usual procedure there is however an exception under s.17, and that is why in section 6 we find the words "if any" in the clause after considering the report , if any, made under section 5A". When action is taken under section 17 (4), it is not necessary to follow the procedure in section 5 A and a notification under s.6 can be issued without a report from the Collector under section 5 A. In the present appeals we are concerned with sections 17 (1) and 17 (4), which we now read: "17 (1). In cases of urgency, whenever the appropriate Government so directs, the Collec tor, though no such award has been made, may, on the expiration of fifteen days from the publication of the notice mentioned in section 9, sub section (1), take possession of any waste or arable land needed for public purposes or for a company, such land shall thereupon vest absolutely in the Government, free from all encumbrances." "17 (4). In the case of any land to which, in the opinion of the appropriate Government, the provisions of sub section (1) or sub section (2) are applicable, the appropriate Government may direct that the provisions of section 5A shall not apply, and if it does so direct, a declaration may be made under section 6 in respect of the land at any time after the publication of the notification under section 4, subsection (1). " It will be seen that section 17 (1) gives power to the Government to direct the Collector, though no award has been made under section 11, to take possession of any waste or arable land needed for public purpose and such land thereupon vests absolutely in the Government free from all encumbrances. If action is taken under section 17 (1), taking possession and vesting which 437 are provided in section 16 after the award under section 11 are accelerated and can take place fifteen days after the publication of the notice under section 9. Then comes section 17 (4) which provides that in case of any land to which the provisions of sub section (1) are applicable, the Government may direct that the provisions of section 5 A shall not apply and if it does so direct, a declaration may be made under section 6 in respect of the land at any time after the publication of the notification under section 4 (1). It will be seen that it is not necessary even where the Government makes a direction under section 17 (1) that it should also make a direction under section 17 (4). If the Government makes a direction only under section 17 (1) the procedure under section 5 A would still have to be followed before a notification under section 6 is issued, though after that procedure has been followed and a notification under section 6 is issued the Collector gets the power to take possession of the land after the notice under section 9 without waiting for the award and on such taking possession the land shall vest absolutely in Government free from all encumbrances. It is only when the Government also makes a declaration under section 17 (4) that it becomes unnecessary to take action under section 5 A and make a report thereunder. It may be that generally where an order is made under section 17 (1), an order under section 17 (4) is also passed; but in law it is not necessary that this should be so. It will also be seen that under the Land Acquisition Act an order under section 17 (1) or section 17 (4) can only be passed with respect to waste or arable land and it cannot be passed with respect to land which is not waste or arable and on which buildings stand. This brings us to section 17 (I A) introduced in section 17 of the Land Acquisition Act by the Land Acquisition (U. P. Amendment) Act, (No. XXII of 1954). Section 6 of that Act is in these terms : "After sub section (1) of section 17 of the Principal Act (i. a. Land Acquisition Act) the 438 following shall be inserted as a new sub section (I A): ,(I A). The power to take possession under sub section (1) may also be exercised in the case of other than waste or arable land, where the land is acquired for or in connection with sanitary improvements of any kind or planned development. " It is not in dispute before us that the land in the present case was required for planned development. Therefore subsection (1 A) as inserted by the U. P. Act into the Land Acquisition Act applies. The contention on behalf of the appellants however is that sub 'section (1 A) gives merely power to take possession of land other than waste or arable land where the land is acquired for or in connection with sani tary improvements of any kind or planned development. It is further urged that sub section (1) is mentioned in sub section (I A) merely to import the circumstances in which the power to take possession may be exercised with respect to land other than waste or arable and the time when such power may be exercised thearguement further is that section 17 (4) was not amended by the U.P. Act XXII by including the new sub s.(1.A) also in that sub section. Sub section (4) still stands as it was; therefore it still applies to waste and arable land only. There is force in this argument. There has been no change by the U. P. Act in sub section (1) and therefore when sub section (4) speaks of any land to which sub section (1) applies it still refers only to waste or arable land and no other. It is true that by sub section (I A) as introduced by U. P. Act in section 17, power has been given to take possession in case of land other than the waste or arable; but this does not necessarily mean that sub section (4) will also apply to a case of )and other than waste or arable simply because power has been 439 given by sub section (I A) to take possession of land other than waste or arable. It seems to us that when sub section (1) is mentioned in sub section (I A) as introduced by the U. P. Act it only means that the power can be exercised to take possession of land other than waste or arable in the same circumstances and at the same time as it could be exercised with respect to arable or waste land as provided in sub section (1), and nothing more Sub section (I A) as introduced by the U. P. Act therefore has the effect only of accelerating the taking of possession which normally can take place after the award has been made under section 11 in the case of land other than waste or arable in the circumstances and under the conditions mentioned in sub section But sub section (I A) does not amend sub section (1) so as to include within that sub section land other than waste or arable. Therefore when sub section (4) was not amended by the U. P. legislature to include sub section (1 A) as introduced by it can apply only to waste or arable land mentioned in sub section (1), which also remained unamended. We have already pointed out that it is not necessary in law that when an order is passed under section 17 (1), an order under section 17 (4) must also be passed. similarly if an order is passed under sub section (1 A) it does not necessarily follow that an order must bepassed under section 17 (4). Sections 17 (1) and 17 (4) are independent of each other in the sense that an order under the former does not necessarily require an order under the latter. Similarly section 17 (I A) must be independent of section 17 (4) and an order under section 17 (I A) would not necessarily mean that an order under section 17 (4) must be passed. In these circumstances it seems to us that if the legislature intended that provisions of sub section (4) should also apply to a case falling under sub section (I A), it has failed to carry out that intention. Sub section (I A) has been added as an independent sub section and no amendment has been made either in sub section (1) or sub section (4); nor has any separate provision been made 440 for applying sub section (4) to a case falling under sub section (I A) and so subs. (4) cannot be applied to sub section (I A). The right to file objections under section 5 A is a substantial right when a person 's property is being threatened with acquisition and we cannot accept that that right can be taken away as if by a side wind because sub section (I A) mentions sub section As we have already pointed out sub section (1) has been mentioned in sub section (I A) merely to indicate the circumstances and the conditions under which possession can be taken. The legislature has mentioned sub section (1) in sub section (I A) as a measure of economy; otherwise sub section (I A) would have read as follows : "In cases of urgency, whenever the appropriate Government so directs, the Collector, though no such award has been made, may, on the expiration of fifteen days from the publication of the notice mentioned in section 9, sub section (1), take possession of any land other than waste or arable land for public purposes where the land is acquired for or in connection with sanitary improvements of any kind or planned development. " Now if there had been Do economy of words and sub section (I A) had read as we have indicated above, it could Dot have been possible to argue that sub section (4) of section 17 also covered cases of section 17 (1 A). Therefore, simply because for the sake of economy of words the legislature has used the words which it did in sub section (I A), it cannot be said that it was either amending sub section (1) or sub section In the absence of such amendment either in sub section (1) or sub section (4) and in the absence of any specific provision being introduced in section 17 by which sub section (4) was also to apply to the new sub section (I A), it cannot be said that power was conferred on the State Government to apply sub section (4) also to a case falling under sub section (1 A), 441 simply by the introduction of sub section (I A) in the form in which it was introduced in section 17. We are therefore of opinion that it was not open to the State Government to say in the notification under section 4 that proceedings under section 5 A shall not take place. This part of the notification under section 4 is therefore beyond the powers of the State Government. In consequence the notification under section 6 also as it was issued without taking action under section 5 A must fall. The appeals must therefore be allowed and the notification under section 6 and that part of the notification under section 4, which says that the Governor was pleased to direct that under sub section (4) of section 17, the provisions of section 5 A shall not apply, are bad and are hereby set aside. Rest of the notification under section 4 will stand and it will be open to the Government if it so chooses to proceed with the acquisition after action is taken under section 5 A and thereafter to issue a noti fication under section 6 of the Land Acquisition Act. In the circumstances we feel that the appellants should be given an opportunity under section 5 A now, though the period for making objections provided in that section expired long ago in view of the misunderstanding of the law on the part of the Government by treating the objections made before the Collector after the issue of the notices under section 9 as objections under section 5 A. The appellants will get their costs of this Court from the respondents; one set of hearing fee. Appeals allowed.

IN-Abs

In these two appeals the same questions of law arise and the facts in C.A. No. 166 of 1962 are similar to those in C.A. 167 of 1962 which are stated below. The appellant in C.A. No. 167 of 1962 is the owner of certain lands situated in the city of Kanpur. The land is occupied by a Mill and godowns and no part of the land is waste land or arable land. In 1932 the U. P. Government sanctioned by a notification a Scheme (Scheme No. XX) of the improvement Trust, Kanpur. This Trust has been replaced by the Development Board, Kanpur, by reason of the Kanpur Urban Area Development Act, 1945. 426 In 1955 the Housing Department of the Government of U.P, sponsored a scheme for building industrial tenements. Part of the scheme concerned the locality in which the land in dispute is situated. In 1956 a notification was issued under section 4 of the Land Acquisition Act, 1894, by the Governor of U.P. to the effect that the plots in dispute were required for the construction of tenements tinder the subsidized industrial.housing scheme of the U.P. Government as well as for general improvement and street scheme No. XX of the Board. This was followed by a notification under section 6 of the Land Acquisition Act stating that the case being one of urgency the Governor was pleased under sub sections (1) and (I A) of section 17 of that Act to direct that the Collector of Kanpur, though no award under section II had been given, might on the expiration of the notice mentioned vs 9(1) take possession of land mentioned in the schedule. Subsequently a notice under section 9 was issued which stated that possession of the land will be taken within 15 days. The appellant thereupon filed a writ petition under article 226 of the Constitution in the High Court. Two main points were raised in the petition. Firstly, it was contended that as the acquisition was for the purpose of Scheme No. XX of the Board action had to be taken in accordance with section 114 of the Kanpur Act and the schedule thereto and as no action had been so taken the proceedings for acquisition were bad. In the second place, it was urged that it was not open to the Governor to issue the notification under section 6 of the Land Acquisition Act without first taking action under section 5A thereof. The High Court rejected both these contentions and in the result dismissed the writ petition. The present appeal was filed with a certificate issued by the High Court. In the appeal before this Court the same questions which were agitated before the High Court were raised. Held it is only when the Board proceeds to acquire land by virtue of its powers under section 71 that section 114 comes into play and the proceedings for acquisition have to take place under the Land Acquisition Act as modified by section 114 read with the schedule. But where the acquisition is, as in the present case, by the Government under the Land Acquisition Act, for public purposes though that purpose may be the purpose of the Board, the Kanpur Act has no application at all and the Government proceeds to acquire under the provisions of the Land Acquisition Act alone. From the scheme of the Act it is clear that compliance with the provisions of s.5 A is necessary before a notification 427 can be issued under section 6. Even where the Government makes a direction under section 17(1) it is not necessary that it should also make a direction under section 17(4). If the Government makes a direction only under section 17(1) the procedure under section 5 A would stil have to be followed before a notification under section 6 is issued. It is only when the Government also makes a declaration under section 17(4) that it becomes necessary to take action under section 5 A and make a report thereunder. Under the Land Acquisition Act an order under section 17(1) or section 17(4) can only be passed with respect to waste or arable land and it cannot be passed with respect to land which is not waste or arable land on which buildings stand. just as section 17(1) and section 17(4) are independent of each other, section 17(1.A) and section 17(4) are independent of each other and an order under section 17 (I A) would not necessarily mean that an order under section 17(4) must be passed. The right to file objections under section 5 A is a substantial right when a person 's property is being threatened with acquisition and that right cannot be taken away as if by a side wind because section 17(1 A) mentions section 17(1). Section 17(1 A) mentions section 17(1) merely to indicate the circumstances and the conditions under which possession can be taken. It was not open to the State Government to say in the notification under section 4 that proceedings under section 5 A will not take place. This part of the notification under section 4 is beyond the powers of the State Government and in consequence the notification under section 6 also, as it was issued without taking action under section 5 A, must fail.

Appeal No. 197 of 1961. Appeal by special leave from the judgments and decrees dated January 29, 30, 1957 of the Calcutta High Court in Appeals from Original Orders Nos. 122 and 156 of 1956 respectively. 413 G.S. Pathak, A.N. Sinha and P.K. Mukherjee, for the appellants. A.V Vismanatha Sastri, B. R.L. lyengar and section N. mukherjee for the respondents. April 26. The judgment of the Court was delivered by AYYANGAR J. This is an appeal by special leave against the judgment of the High Court of Calcutta affirming the decision of a Single judge of that Court refusing to set aside the award of an arbitrator dated May 27, 1955. One Hemendra Nath Sen, father of the second appellant, died intestate in 1929 leaving his widow Premtarangini Debi and 8 sons. Respondents 1,2,3, 4, 6 and 7 are the brothers of the 2nd appellant. The 5th respondent is the widow of a deceased brother who died in 1933 while the 8th respondent is the wife of the 2nd respondent. The 1st appellant is the wife of the 2nd appellant. The parties were governed by the Dayabhaga School of Hindu law. Hemendra Nath left considerable properties and on his death disputes arose between his several heirs but an agreement dated January 31, 1933 these were settled By then one of the sons the husband of the 5th respondent had died leaving a widow (the 5th respondent) and these viz., the widow, the 7 sons and the widowed daughter in law entered into this agreement by which the properties left by the deceased were partitioned among them Broadly stated, the agreement specified the shares of the 9 parties thereto as equal i.e., one ninth each, with however the two widows being allotted their respective shares for their life as for their maintenance. There was also a provision that in regard to a glass factory the 2nd appellant was to have a 5 annas share, the rest of the member dividing the balance of the II annas 414 (presumably because the 1st appellant 's money went in for the initial capital for starting the concern) till certain specified contingencies occurred. Fresh disputes however, arose between the parties and by a formal agreement dated May 11, 1953, they set out those disputes between themselves and agreed to refer the same to the sole aribitration of Dr. Radha Binode Pal an eminent lawyer and jurist of Calcutta. As the terms of reference have some relevance to the points urged before us in the appeal it would be convenient to set them out. It read : "We the I undersigned hereby agree, First to refer all disputes arising out of or in connection with or in relation to the New Indian Glass Works Ltd., including the management thereof and the acts of any of the parties in respect of or in relation to or arising out of the said Company, and for future management thereof including the dispute regarding the alleged lease in favour of R. N. Sen (7th respondent) and of the alleged,prior leases in favour of A. N. Sen (2nd appellant) and F. N. Sen (6th respondent) of the said Company 's business, the legality and validity thereof and Secondly all disputes whatsoever in relation to the joint properties as per Schedule hereunder written or otherwise which were or are owned by the parties or some of them, to the sole Arbitration of Dr. Radha Binode Pal, Advocate. The said Arbitrator is to enquire, ascertain and partition the said joint properties. We agree that the, said Dr. Radha Binode Pal would have summary powers and the award which would be made by him would be final and conclusive and binding upon the parties. " This was followed by a Schedule in which the joint properties were specified and to this document all the family members affixed their signatures. 415 Before, however, the reference was submitted to the arbitrator, the respondents made an application to the High Court of Calcutta on its original side on July 12., 1954 under section 20 of the Indian for an order directing the agreement to be filed into Court and for making a reference to the arbitrator appointed by the parties. Notices were issued to the appellants who were impleaded as respondents to that application and after a hearing, an order was made on November 29, 1954 referring the disputes set out in the agreement to the arbitrator named therein. The arbitrator entered on the reference on January 16, 1955 and the parties thereafter filed statements of cases before him setting out their respective claims and contentions. Evidence was taken and counsel were heared and thereafter ' the arbitrator pronounced his award on May 27, 1955. It is the validity of this award that is under challenge in these proceedings. We might, merely to clear the ground, mention even at this stage that no 'misconduct ' is alleged against the arbitrator but the main ground on which the award is impugned is that it is incomplete. The award is a long document and purports to decide all the disputes which had been referred to him. It does not set out the arguments or even the contentions urged by the parties in regard to any specific matter or even the reasons for the particular decisions recorded but corresponds in form to what might for convenience be termed a decree in a civil suit. The award was filed into Court on June 29, 1955, and thereupon the appellants made an appli cation for setting it aside on various grounds the principal of which was, as already indicated, that the award was incomplete, in that all the disputes which had been referred for arbitration had not been disposed of by it. The application came on for hearing before a learned Single judge on the original side and it was dismissed on May 26, 1956, the 416 learned judge directing a decree to be passed in terms of the award. The appellants preferred two appeals one from the order refusing to set aside the award and the other from the decree in terms thereof. These were heard and disposed of by a common judgment dated January 29, 1957 which directed the dismissal of the appeals and thereafter they applied for and obtained special leave of this court and in pursuance thereof the present appeal which is a consolidated one against the judgment in the two appeals in the High Court has been filed. Before the High Court a very large number of objections were taken to the validity or legality of the award and they have been elaborately considered and dealt with by the judge of first instance and by the appellate Bench. Most of these, however, were not repeated before us and Mr. Pathak learned Counsel for the appellants intimated that he would press only three of the grounds: (1) that all the disputes which had been referred to the arbitrator had not been disposed of by the award, and that for this reason the award was incomplete and had to be set aside. He submitted that there was this incompleteness in respect of three matters : (a) the award had given no direction regarding the rendition of accounts and profits with reference to a lease of the Glass Works Ltd., which the award had declared was invalid and not binding on the Company in which all the shares were owned by the parties, (b) the parties had specifically required the arbitrator in their agreement of reference that he should give directions as regards the future management of the Glass Co. , but the award had failed to comply with this request. , (c) there was an allegation made in the reference, and as regards which evidence was led before the arbitrator, as to misappropriation of moneys by the 6th respondent. The arbitrator had not specified in his award as to whether this allegation of misappropriation had been 417 made out or not, nor had he given any direction in regard to the matter. These related to the head of objections touching the incompleteness of the award. (2) The second ground urged was this : This award had directed that a piece of land situated at Ketugram in the district of Burdwan be allotted to the 7th respondent in trust for sale for meeting the costs and charges of filing the award and other Court proceedings in reference thereto and to distribute the balance remaining after meeting the said costs and charges, equally between himself and 6 other named. Learned Counsel urged that it was beyond the power of the arbitrator to have created this trust of the property in dispute. (3) The values of the several items of property were specified in the award and the division effected was on the basis of this valuation. Learned Counsel urged that the arbitrator failed in his duty in not valuing the properties himself but had adopted the values suggested by one or other of the parties. We shall now deal with these points. As however, we consider that it is only the 1st of the above points about the incompleteness of the award that merits any consideration and that the other two have really no substance and it would be convenient first to dispose of the second and the third of the above points. The trust created by the award to which point No. 2 relates is in the following terms. Clause 13 of the award which the relevant clause runs : "That the land at Ketugram, Katwa in the District of Burdwan is allotted to Sri Dhirendra Nath Sen, in trust for selling the same to meet the costs and charges of filing the award together with minutes of the arbitration proceedings, depositions and documents to be filed in court with the award and to distribute the balance if 418 any, left after meeting the said costs and charges, equally amongst himself and the 6 other sons. " and then the award proceeds to make provisions for the contingency of the sale proceeds being insufficient. It was submitted by learned Counsel that the arbitrator had no jurisdiction to create a trust in respect of property which he was called upon to divide between the parties. This contention however proceeds on a misreading of what the arbitrator had done, for he has done nothing of the sort alleged. He has merely made provision for the payment of the costs to be incurred in filing the award which obviously, if it were a valid award, would have to be borne by all the parties whose property was being divided under the award and he had made provision just for that purpose and had directed a division of the surplus sale proceeds among the parties entitled to the property. When this aspect of the matter was pointed out to learned Counsel the contention was not seriously maintained. The third point about the arbitrator not having determined the values of the property himself has even less merit than the one we now disposed of The minutes of the proceedings before the arbitrator were produced before the court and those clearly showed that the estimated values of the items, as set out in the award, were those to which the parties themselves had agreed. The point, therefore, does not call for any further consideration. Coming next to the point regarding the in completeness of the award, we shall deal first with the contention based on the absence in the award of a direction to account for profits with regard to a lease of the Glass factory which was declared void. The relevant facts relating to this objection are as follows. Under the arbitration agreement the 1st 419 head of the disputes referred was this " disputes arising out of or in connection with or in relation to the New Indian Glass Works Ltd. including the management thereof and the acts of any of the parties in respect of or in relation to or arising out of the said company". This was amplified in a statement filed before the arbitrator on February 12, 1955 by the 1st appellant. "Para 12. Dhirendra Nath Sen, Phanindra Nath Sen, Satyendra Nath Sen, Rabindra Nath Sen and jitendra Nath Sen should render true accounts of their dealings with the assets and/or properties of the said Company (New Indian Glass Works) and an award be passed for my share of the amount found due on accounting. The alleged leases in favour of Rabindra Nath Sen and Phanindra Nath Sen were fraud ulently made in order to defraud me. I claim for an adjudgment that the said leases are void and I pray for accounts, against the said alleged lessees and an award for my share of the profits on accounting. " The arbitrator decided in paragraph 9 (c) of the award that "the alleged lease of the factory to Rabindra Nath Sen to be declared void and to be of no binding effect on the Company or on the shareholders. " The award contained, however, no further direction ordering or refusing to order Rabindra Nath Sen to account for the profits with regard to this lease declared void. The point that is now urged is that the award is incomplete, in that it has not followed up this declaration or invalidity of the lease by making a consequential order for accounting or by rejecting the claim of the appellants to the accounting and for their share of the amounts found due on the taking of such accounts. The learned 420 Single judge on the original side as well as the appellate Bench rejected this objection on the authority of an English decision in Harrison vs Creswick (1), where Parke, B., delivering the judgment of the court, stated : "The silence of the Arbitrator upon the subject placed before him means that the Arbitrator has negatived such plea. " It was submitted by Mr. Pathak that this decision had been misunderstood by the learned judges of the High Court, and that, in fact, it was an authority in his favour. The contention urged before the Court of common pleas as a ground for setting aside the award was that the defendant bad pleaded a cross claim before the arbitrator and that The award bad granted the plaintiff a decree for a certain sum without specifically allowing or negativing the defendant 's cross claim. Dealing with this objection Parke, B. who spoke for the Court, observed : "The only question is whether the arbitrator has not by his award impliedly, if not in express terms, finally disposed of the matter. The rule as laid down in the notes to Birks vs Trippett is, that, where an award professes to be made de praemissis 'Even where there is no award of general releases, the silence of the award as to some of the matters submitted and brought before the arbitrator, does not per se prevent it from being a sufficient exercise of the authority vested in him by the submission. An award is good, notwithstanding the arbit rator has not made a distinct adjudiction on each or any of the several distinct matters submitted to him, provided that it does not appear that he has excluded any. . Where an award is made de praemissis, the presump tion is, that the arbitrator intended to dispose (1) 421 finally of all the matters in difference; and his award will be held final, if by any intendment it can be made so. The rule is this where there is a further claim made by the plaintiff, or a cross demand set up by the defendant, and the award, professing to be made of and concerning the matters referred, is silent respecting such, further claim or crossdemand, the award amounts to an adjudiction that the plaintiff has DO such further claim, or that the defendant 's cross demand is untenable : but where the matter so set up from its nature requires to be specifically adjudicated upon, mere silence will not do. " It is this last sentence on which Mr. Pathak relies in support of the submission that in the case now before us there was a need for the arbitrator to have rendered a decision in express terms accepting or rejecting the claim for the accounting and that a rejection of that claim could not be inferred from the mere failure of the arbitrator to deal with it. Learned Counsel pointed out that a case of a cross demand or a cross claim with which Parke, B. was dealing was quite different from an independent claim such as that for accounting made by the appellants in the present case, for where a sum is decreed to a plaintiff it necessarily involves the acceptance or rejection of the cross claim made by the defendant but the position is different where the claim made stands on independent footing. Before dealing with this point it is necessary to emphasize certain basic positions. The first of them is that a Court should approach an award with a desire ' 'to support it, if that is reasonably possible, rather than to destroy it by calling it illegal (See Salby vs Whitbread and Co., (1). Besides it is obvious that unless the reference to arbitration specifically so requires the arbitrator is not bound to deal with each (1) , 748. 422 claim or matter separately, but can deliver a consolidated award. The legal position is clear that unless so specifically required an award need not formally express the decision of the arbitrator on each matter of difference. (Vide Re. Brown and The Croydon Canal Co. (1) and Jewell vs Christie (). Further, as parke, B. himself put it during the course of arguments in Harrison vs Creswick (3) : "Unless the contrary appears the court will presume that the award disposes finally of all the matters in difference." and to repeat a sentence from the extract quoted earlier : "Where an award is made de praemissis, the presumption is, that the arbitrator intended to dispose finally of all the matters in difference ; and his award will be held final, if by any intendment it can be made so. " We shall approach the argument addressed to us in the light of these considerations. Now the award opens with a paragraph which recites, after setting out the reference : "Whereas I have heard and duly considered all the allegations advanced, evidence adduced before me regarding the respective cases of the parties. . I do hereby make and publish this, my award in writing as to all the disputes mentioned above. " It need hardly be added that the arbitration agreement and the statements filed extracts from which we have set out earlier were among the documents incorporated with this award and included among the matters considered by the arbitrator which (1) (1839) 9 Ad. & Ell. (2) (1867], L.R. 2 C.P. 296 (3) ; 423 disputes he intended to resolve by this award. The award, therefore, on its face intended and purported s to decide all the disputesr aised for this adjudication and therefore the Court will assume that he has Di, considered and disposed of every claim made or defence raised. Since the award now impugned or expressly states that it is made "de pruemissis," i.e., of and concerning all the matters in dispute referred to the arbitrator, there is a presumption that the award is complete. In the circumstances the principle of construction enunciated by Parke, B. aptly covers the case and the silence of the award as regards the claim for accounting must, therefore, be taken to be intended as a decision rejecting the claim to that relief. We shall next turn to the Submission that the nature of the claim here made required a specific adjudication and the appellants were logically entitled to the relief of accounting when once the lease of the factory was declared void and that viewed from that angle the award must be treated as incomplete as not expressly dealing with a legal consequence of the declaration granted. We do not consider this contention sound, for two reasons : (1) If the lease were held to be void because of technical informality it need not necessarily involve any accounting since accounting postulates, the lease being for an improperly low rental. If the lease be set aside for such a reason, it would not necessarily follow that the relief of accounting was implicit in the declaration of the invalidity of the lease, (2) Non constat, the amount due on taking on an accounting has not been taken into account or adjusted in making the other provisions of the award. This objection, there fore, has to be repelled. The next item alleged as regards the incompleteness of the award was the failure on the part of the arbitrator to provide by his award, for the future 424 management of the New Indian Glass Works Ltd. We consider that there is no substance in this objection either The award had declared the shares ' of the parties in the Glass Company and by cl. 9 (b) had set aside the agreements or arrangements put forward as regards the management of the affairs of the company regarding whose validity and pro priety disputes had been raised. When those alleged agreements were set aside and declared not to be binding on the parties, the law would step in and the provisions of the Indian Companies Act as regards the management of the business and affairs of the company would come into operation, and the arbitrator may well have considered that the provisions contained in the law of the land sufficient to safeguard the interests of the shareholders. The silence of the arbitrator in this regard and his failure to make any specific provision therefor in regard to the management did not therefore leave any lacuna as regards the rights of the parties to manage but must be taken to have left the right of the parties to be determined by the relevant general law applicable to the management of the company. If the arbitrator considered that these provisions sufficiently secured the rights of the parties and did not consider that any special provision as regards this matter was needed the award would be silent on that point and that might be the explanation for the state of affairs. The last of the points urged was that the award had not referred to or decided the claim of the appellants to relief from the respondents or some of them on the ground that they had misappropriated the moneys of the company and were, therefore, bound to bring the money back into hotch potch for division among the parties. The absence of any provision in regard to this claim is capable only of one interpretation and that is that arbitrator rejected the claim. It is, therefore, an instance where the silence of the award is a clear indication, having regard to 425 the adjudication being professedly complete and de praemissis, that the claim in that respect was not upheld. This would not render the award incomplete. We consider therefore that none of the three points urged in challenge of the validity of the award on the ground of its incompleteness has any substance. The appeal fails and is dismissed with costs.

IN-Abs

The appellant as well as the respondents are the heirs of one Hemendra Nath Sen who died intestate in 1929 leaving considerable properties. Dispute having arisen between his heirs an agreement for partition was entered into determining their shares Among other provisions there was one by which the 2nd appellant was to have 5 annas shares in a glass factory and the rest of the members dividing the balance of the II annas share Further disputes arose and the parties executed an arbitration agreement in which the dispute between the parties was set out Before the reference was submitted to the arbitrator the respondents applied to the High Court under section 20 of the Arbitration Act for an order directing the agreement to be filed in the Court and for making a reference to the arbitrator appointed by the parties. The present appellants were impleaded as respondents. The court made an order referring the disputes to the 411 arbitrator named in the agreement. The arbitrator entered on the reference and after following the prescribed procedure he pronounced the award. The award was filed in the court where upon the appellants applied for setting it aside on various grounds the principal of which was that the award was incomplete. , in that all the disputes which had been referred for arbitration had not been disposed of by it. The Single judge before whom the application came for hearing rejected the application and directed a decree to be passed in terms of the award. The two appeals filed by the appellants in the High Court, one from the order refusing to set aside the award and the other from the decree in terms of the award were dismissed. The present appeal is by way of special leave granted by this Court The main contention raised was that the award was incomplete in as much as the award did not dispose of three matters referred to the arbitrator. These three matters were (a) the award bad given no direction regarding the rendition of accounts and profits with reference to a lease of the Glass Works Ltd. which the award had declared invalid (b) the award had failed to comply with the request, contained in the arbitration agreement, that the arbitrator should give directions as regards the future management of the Glass Co., (c) there was an allegation in the arbitration agreement as regards which evidence was led before the arbitrator, in relation as to miappropriation of moneys by 6th respondent but the arbitrator had not specified in the award whether this allegation had been made out or not and no direction had been given in regard to the matter. Held that a court should approach an award with a desire to support it if that is reasonably possible, rather than to destroy it by calling it illegal. Salby vs Whitbread and Co. [1917] I.K.B.736 referred to. Unless the reference to arbitration specifically so requires the arbitrator is not bound to deal, with each claim or matter separately, but can deliver a consolidated award. Re Brown and the Croydon Canal Co. (1839) 9 Ad & E11 522 : ; and Jewell vs Christe , referred to. The silence of the arbitrator upon the subject placed before him means that the arbitrator has negatived such plea. Unless the contrary appears the court will presume that the 412 award disposes of finally all the matters in difference. Where an award is made de praemissis, the presumption is that the arbitrator intended to dispose finally of all the matters in difference and his award will be held final if by any intendment it can be made so. Harrison vs Creswick, ; referred to. Since the impugned award expressly states that it is made de praemissis", i.e. of and concerning all matters in dispute referred to the arbitrator, there is a presumption that the award is complete. The silence of the award as regards the claim for accounting must therefore be taken to be intended as a decision rejecting the claim to the relief. If the lease were set aside because of technical informality. it would not necessarily follow that the relief of accounting was implicit in the declaration of the invalidity of the lease. Non constat, the amount due on taking an account has not been taken into account adjusted in making the other provisions of the award. Hence the contention that the nature of the claims required a specific adjudication is repelled. The silence of the arbitrator on the question of the award in the facts and circumstances of the case, on the question of future management of the Glass Company and his failure to make any specific provision in regard to the management did not therefore leave any lacuna as regards the rights and must be taken to have left the right of the parties to be determined by the relevant general law applicable to the management of the company. The absence of any provision regarding the claims of the appellants to relief from the respondents on the ground that they misappropriated the money of the company is capable of only one interpretation and that is that the arbitrator rejected the claims.

minal Appeal No. 226 of 1960. Appeal by special leave from the judgment and order dated July 28, 1960 of the Madhya Pradesh High Court in Criminal Appeal No. 385 of 1959. A. R. Choubay and Naunit Lal, for the appellant. I. N. Shroff, for the respondent. April 23. The judgment of the Court was delivered by RAGHUBAR DAYAL J. This appeal, by special leave, is directed against the order of the High Court of Madhya Pradesh reversing, on State appeal, the order of the Additional Sessions judge, Hoshangabad, acquiring the appellant, and convicting him of an offence under section 414 I. P.C. Five bales, containing woollen shawls and mufflers despatched from Kanpur by the British India Corporation Ltd., Kanpur Woollen Mills Branch, Kanpur, and another bale despatched from 291 Haimanpur to Kanpur were loaded at Itarsi railway station on September 18, 1957, in Wagoa No. C.R. 325. The lock of the wagon wag found broken open at Pandhurna Railway Station at about 1.00 a.m. on September 20, 1957. on checking at Nagpur the aforesaid bales were found missing. One of the bales despatched from Kanpur was found lying the next morning near the railway line between railway stations Jaulkheda and Multai. On September 23, 1957, the house of one Gopi Nath, at Multai, was searched and certain articles, including some torn labels were recovered from that house. The same day, the police found the appellant and a few other persons come out of Gopi Nath 's house at Betul, whose front door was locked. Subsequently, these persons were taken to the police station, where the appellant made a statement showing readiness to point out the stolen property. At his instance, the police recovered from different places of that house, woollen shawls, mufflers, bed sheets and certain house breaking implements. These recoveries were made on September 23 and 24. As a result of investigation, six persons were put on trial in the Magistrate 's Court. Ajendra Nath, appellant, was charged under sections 120 B, 379 and 414, I.P.C. Babu Ram was charged under sections 120 B and 379 I.P.C. Ram Prasad and Gyarsi were charged under section 120 B read with section 879 I.P.C., Gopinath under section 120 B read with section 414 I.P.C. and Birendranath under section 414 I.P.C. The learned Magistrate acquitted Birendra Nath and convicted the other accused of the offence under section 120 B read with section 379 I.P.C., except in the case of Gopinath, who was convicted of the offence under section 120 B read with section 414 I.P.C. Ajendra Nath was also convicted of the offence tinder section 414 I.P.C. 292 On appeal, the learned Additional Sessions judge, Hoshangabad, acquitted all these convicted persons. He held that the property recovered was not proved to be stolen property and that the alleged conspiracy was not proved. The State filed an appeal against the acquittal of Gopinath and Ajendra Nath. The High Court dismissed the appeal against Gopinath and the appeal against Ajendra Nath for the offence of conspiracy. It however allowed the appeal against Ajendra Nath with respect to the offence under section 414 I.P.C. It is against this order that this appeal has been filed by Ajendra Nath, appellant. Ajendra Nath did not question the recovery of the various articles from Gopi Nath 's house at Betul at his instance. He did not claim the property to be his own, but stated that it was not stolen property. The main contention for the appellant in this Court has been that these recovered article; were not proved to be stolen property. Tile articles consisted of those said to have been sent by the British India Corporation Ltd., Kanpur Woollen Mills Branch, Kanpur, and bed sheets sent by the firm of V.S.N.C. Narsingha Chettiar, which carries on business of wholesale Hand Loom Cloth at Karur. The invoices relating to the four bales sent by ' the Kanpur Woollen Mills give the details of the shawls and mufflers the bales contained. A very large quantity of these has been recovered. Out of 95 shawls and 63 mufflers, as many as 80 shawls and, 43 mufflers had been recovered. Similarly, out of 10 pairs of bed sheets stolen, 8 pairs have been recovered. The absence of any adequate explan ation for the presence of such a large quantity of articles similar to those proved to have been despatched by the Kanpur Woollen Mills or by the Karur company, the recovery of these articles within 293 a few days of the theft, the presence of silk and paper labels of Kanpur Woollen Mills on most of the shawls and mufflers recovered and of certain manuscript writings on the labels of the bed sheets by P.W. 24 Krishnamurthi, brother of P.W. 16, Venkat Raman, who does the Karur business, have been taken into consideration by the High Court for coming to the finding that the property recovered was proved to be stolen property. These circumstances cannot be said to be such which would not justify the finding arrived at. The main contention for the appellant however is that it has not been definitely established from the evidence of Kunzru, P. W. 10, that the shawls, mufflers recovered were manufactured by the Kanpur Woollen Mills and were despatched in the bales which were subsequently stolen. Kunzru 's evidence does fall short of establishing that the shawls and mufflers recovered were manufactured by the Kanpur Woollen Mills. He has not identified the recovered shawls and mufflers as those manufactured by these mills. In fact, he was not even shown all the shawls and mufflers recovered. He was shown by the Police Inspector, Government Railway Police, two lois (two shawls) and two mufflers. He got them examined by the textile expert and, on the report of the expert, gave the certificate that they appeared to be manufactured by the Woollen Mills of Kanpur. That expert has not been examined in Court and therefore Kunzru 's statement alone fails to establish that these shawls and mufflers were manufactured by these mills. However, it is not open to doubt that they were manufactured by these mills when most of them had sewn silk labels of these mills and quite a good number of them had even paper labels indicating that they were manufactured by these mills. There, is no reason to suppose and in fact no such suggestion has been made that these labels had been put on these articles by some one for the purpose of 294 deception. We therefore consider that the finding that these shawls and mufflers were the manufacture of Kanpur Woollen Mills is correct. It was also contended for the appellant that it was not proved that these shawls and mufflers were in the bales which were despatched by the Kanpur Woollen Mills and that the gate passes and the invoices produced by Kunzru were not proved as persons who wrote them had not been examined. Kunzru produced the originals of these documents. He is the salesman of the Kanpur Woollen Mills. His cross examination in no way indicates that his statement about the genuineness of the invoices and gate passes was questioned in cross examination. There is nothing to suppose that the invoices and gate passes produced in Court did not correctly represent the articles placed inside particular bales to which specific numbers were given and that those bales were despatched from the Mills in accordance with the gate passes. In this connection reference was made to the fact that five of the shawls recovered were of violet colour and no shawl of such a colour was mentioned in any of the invoices. There can be a possibility of a misdescription in the invoices, There can be a possibility of the violet shawls being the property stolen in some other incident. The fact remains that even the violet shawls are not claimed by the appellant as his own. So, we do not consider any force in this contention for considering the finding of the High Court defective about the property recovered to be stolen property. With respect to the identity of the bed sheets, there is the evidence of P.Ws. 16 and 24. P.W. 16 deposed that he had supplied 10 pairs of bed sheets to a certain customer who disowned the bale. Thereupon he asked the Station Master, Ahimanpur to return the parcel to Karur. He recognized the various sheets to be of his firm which they had 295 despatched to Ahimanpur. He further deposed that before despatching the goods they paste the firm labels on them. He stated that his younger brother Krishna Murti had noted size number and pattern over these sheets in his handwriting, as he happened to be at home on vacation. Krishna Murti, P.W.24, admits that certain labels on the bed sheets were in his hand writing, that he wrote them under instructions of his brother and that he had not written sirnilar numbers on any other bed sheets. He however stated subsequently that he did such type of markings casually, on occasions, and that the Sub Inspector had also got him write the size, pattern etc., on certain other blank labels of the shop as well. The learned Additional Sessions judge did not rely on these statements and felt that the Investigating Officer might have got those markings on the labels of the recovered articles during the investigation. The High Court thought that there was no reason for doubting the correctness of the statements of these witnesses and for suspecting that the writings on the labels were obtained during the investigation. No question was put to P.W. 24 about the police making him write on the labels on the recovered articles. In fact, according to the witness, labels with his writings were shown to him for purposes of recognition and he recognized those writings to be his. The police took his writings on blank labels for purposes of comparison. We therefore see no good reason for considering the finding of the High Court with respect to the bed sheets recovered to be stolen property to be wrong. It was also contended that it was not open to the High Court to record a finding about the recovered property to be stolen property when the Government had not appealed against the other co accused who were acquitted on the basis of the finding that the property recovered was not proved to be stolen 296 property. We do not see any force in this contention. The mere fact that the learned Additional Sessions judge acquitted the other accused on the ground that the property recovered was not proved to be stolen property did not preclude the State from appealing against the acquittal of the appellant against whom there is better evidence for establishing that he was in possession of the stolen property than the evidence was against the other co accused. The State could challenge the correctness of the findings of the learned Additional Sessions judge about the property being stolen property and, consequently, the High Court can record its own finding on that question. Lastly, it was also urged that even if the identity of the articles recovered with the articles stolen be established, no offence under s.414 I.P.C. is made out against the appellant as the other accused have been acquitted and it is not known whom the appellant is supposed to have helped in concealing the stolen property. Section 414 I.P.C. makes it an offence for a person to assist voluntarily in stealing or disposing of or making away with property which he knows or has reason to believe to be stolen property. It is not necessary for a person to be convicted under s.414 I.P.C. that another person must be traced out and convicted of an offence of committing theft. The prosecution has simply to establish that the property recovered is stolen property and that the appellant provided help in its concealment and disposal. The circumstances of the recovery sufficiently make out that the property was deliberately divided into different packets and was separately kept. May be that the property failing to the share of a particular thief was kept separately. It was recovered from several different places in the same house. These places included an iron safe and an underground cellar. The evening before, several persons, including the appellant, were found to be coming out of the back door of the house which had its front door 297 locked. The appellant also knew the whereabouts of the property inside the house of his maternal grandfather. He attempted to sell a few mufflers a day before the recoveries were made. He was seen arriving at the house, during the night, in a car with some persons and then removing property which looked like bales from the car to the house. All these circumanstances go to support the finding that he had assisted in the concealment of the stolen property and had thus committed the offence under s,414 I.P.C. We therefore see no force in this appeal and, accordingly, dismiss it. Appeal dismissed.

IN-Abs

Five bales, containing woollen shawls and mufflers dispatched from Kanpur by the British India Corporation Ltd. and another bale despatched from Haimanpur to Kanpur, were loaded in wagon at Itarsi railway station. The lock of the wagon was found broken open and on checking at nagpur the aforesaid bales were found missing. On search, certain articles including some torn labels were recovered from the house of one Gopinath. The same day the appellant and few other persons were found by the Police,coming out of Gopinath 's house whose front door was locked. They were taken to the Police Station and at the instance of the appellant the police recovered woollen shawls, mufflers, bed sheets and certain house breaking implements from different places of that house. After investigation, six persons including the appellant were put on trial before the Magistrate for several charges under sections 120 B, 379 and 414 of the Indian Penal Code and except one Birendra Nath, all were convicted. On appeal, all the convicted persons were acquitted by the Additional Sessions Judge, on further appeal by the State, against the acquittal of Gopinath and the appellant, the High Court allowed the appeal only against the appellant with respect to the offence under section 414 of the Indian Penal Code. On appeal by special leave, this Court held : Held that the mere fact that the other accused persons were acquitted on the ground that the property recovered was not proved to be stolen property did not preclude the State from appealing against the acquittal of the appellant against 290 whom there is better evidence. The State could challenge the correctness of the findings of the Additional Sessions Judge about the property being stolen property and the High Court could record its own findings on that question. Held further, that it is not necessary for a person to be convicted under section 414 Indian Penal Code that another person must be traced out and convicted of an offence of committing theft. The prosecution has simply to establish that the property recovered is stolen property and that the appellant provided help in its concealment and disposal. The circum stances of the recovery in the present case sufficiently prove that the appellant had assisted in the concealment of the stolen property and had thus committed the offence under section 414 Indian Penal Code. The appeal therefore, must be dismissed.

Civil Appeal No. 705 of 1962. Appeal by special leave from the Award dated September 19, 1961 of the Fourth Industrial Tribunal, West Bengal in Case No. VIII 42 of 1961. H. N. Sanyal, Solicitor General of India and P. E. Chatterjee, for the appellant. D.L. Sen and Janardhan Sharma, for the respondents. May 2. The judgment of the Court was delivered by GAJENDRAGADKAR J. This appeal arises out of an industrial dispute between the appellant, Khardah Co. Ltd., and the respondents, its workmen. The dispute was in regard to the, dismissal of the appellant 's employee, Samiran jadav. The respondents alleged that the said dismissal was unjustified, whereas, according to the appellant, the said employee had been properly and validly dismissed. The dispute which was referred to the 4th Industrial Tribunal, West Bengal, for its adjudication was whether the said dismissal was justified, and to what relief, if any, was the workman entitled? The Tribunal has held that the dismissal was unjustified and so, it has directed the appellant to reinstate the said employee to his old post within a month from the date of the publication of the award. It has also ordered that the period starting from the date of the dismissal till the date of reinstatement should be treated as leave without pay and as such, should be counted towards the length of service. It is against this award that the appellant has come to this Court by special leave. 509 The respondent 's case was that jadav had been dismissed by the appellant mala fide with the motive of victimising him for his trade union activities. jadav was the Organising Secretary of the Union and since he supported the Union 's demands very strongly, the appellant wanted to get rid of him. It appears that jadav had been working as a weaver for some years past. He was confirmed in service with effect from April 12, 1954. On September 19, 1960, he went on a week 's leave. When he returned on September 26, 1960, he was asked to work on machine producing twill, though, normally, he was assigned work on a plain machine. jadav was not accustomed to work on the complicated machine which produces twill and so, he requested the management that he should be asked to do his usual work on a plain machine. This request was, however, turned down Being unaccustomed to work on the machine producing twill, jadav met with an accident on September 27, 1960, and was grantedmedical leave for a week ending on Saturday, October 1, 1960. On October, 3 1960, when he resumed duty, he again requested the management that he should be permitted to work on the plain machine, but when his request was turned down, he told the management that he would work on the twill machine in the second shift which starts from I P.M. On that day, another employee Mahboob who was ailing and had been on leave, asked for further leave which was refused and he fell unconscious while he was going to operate his machine. As a result, 700 weavers of the appellant stopped work and the weaving section could not resume work at 1 P. M. The management then declared a lock out on October 5, 1960 which continued until October 29, 1960. On October 3, 1960, the management served a charge sheet on jadav in which it was alleged that jadav had wilfully disobeyed the lawful 510 and reasonable order of his superior and had acted in a manner subversive of discipline. The case against him was that he had moved from one place to another in the weaving Department and incited workers of the said department to go on strike. The management alleged that by his conduct, jadav had committed misconduct under Rule 14(c) (i) and (viii) of the Standing Orders. jadav was called upon to offer his explanation within 24 hours after receipt of the charge sheet. After jadav gave his explanation, an enquiry was held. At the initial stages of the enquiry, jadav appeared, but, later, he did not take part in the proceedings. The appellant contends that jadav deliberately refrained from taking part in the proceedings, whereas according. to the respondents, the enquiry was conducted unfairly, and so, it became impossible for jadav to participate in it. This enquiry was conducted by the Manager himself After the enquiry was over, the Manager decided that jadav was guilty of the charge, and so, dismissed him on November 21, 1960. The respondents ' case was that the dismissal was purely vindictive and was not justified at all. On the other hand, the appellant 's case was that jadav had been working in the weaving department both on plain looms and on looms that produce twill. When he returned to duty on October 3, 1960, the departmental Overseer, Mr. jha asked Jadav to go to his loom; but he refused to obey his orders. The appellant further alleged that jadav moved inside the weaving department and incited the workers to stop work. The appellant also pleaded that a proper enquiry had been held against jadav and it was as a result of the said enquiry that he was dismissed for misconduct under Rule 14 (c)(i) & (viii) of the Company 's Standing Orders. Regarding the incident of Mahboob, the appellant alleged that 511 Mahboob was absent on October 3, 1960 and, therefore, no question of his working on any machine arose on that day. In other words, the appellant 's contention was that the Union 's version that the strike was spontaneous because Mahboob fainted, was untrue and the strike was in substance, the result of the instigation of jadav. Before the Tribunal, some oral evidence was led by the parties and reliance was placed by the appellant on the proceedings of the enquiry itself. The Tribunal held that the management had deliberately suppressed the fact that Mahboob had gone to the mill on October 3, and prayed for extension of leave which was refused, and so, the Tribunal came to the conclusion that the strike could not have been instigated by jadav. The Tribunal further commented on the fact that after the enquiry was held, no finding was recorded by the Manager who held the enquiry, and it appeared to the Tribunal that the conclusions on which the management presumably acted in dismissing jadav were of such a character that "no person acting fairly and honestly could have reached them". The Tribunal also held that jadav was not used to work on a twill loom, and so, his request that he should be allowed to work on a plain loom was not unjustified. Its conclusion, therefore, was that a grave charge had been unjustly framed against jadav and that showed want of good faith and Vindictiveness. On these findings, the Tribunal answered the question in favour of the respondents and directed reinstatement of jadav. On behalf of the appellant, the learned Solicitor General has strenuously urged before us that the appellant has held a proper domestic enquiry and has dismissed jadav because the management thought that the enquiry disclosed the fact that the charges framed against jadav had been established. He contends that it is firmly established by decisions of this Court 512 that an Industrial Tribunal will not interfere with the action of the management in dismissing its employee after holding an enquiry into his alleged misconduct unless it is shown that the management has not acted in good faith; or that the dismissal amounts to victimisation or unfair labour practice, or where the management has been guilty of a basic error, or violation of a principle of natural justice, or when on the materials, the finding is completely baseless or perverse, vide Indian Iron & Steel Company Ltd. vs Their Workmen. There is no doubt that this Court has consistently refrained from interfering with the conclusions reached. by the enquiry officer who Conducts domestic enquiries against industrial employees unless one of the four tests laid down in the case of the Indian Iron & Steel Co. Ltd. (1) is satisfied, because we have generally accepted the view that if the enquiry is fairly held and leads to the conclusion that the charge framed against the employee is proved, the Industrial 'Tribunal should not sit in appeal over the finding recorded at the said enquiry and should not interfere with the management 's right to dismiss a workman who is found guilty of misconduct. It would be noticed that the essential basis on which this view is founded is that the enquiry conducted by the management before a domestic tribunal must be a fair and just enquiry and in bringing home to the workman the charge framed against him, principles of natural justice must be observed. Normally, evidence on which the charges are sought to be proved must be led at such an enquiry in the presence of the workman himself. It is true that in the case of departmental enquires held against public servants, this Court has observed in the State of Mysore vs section section Makapur (2) that if the deposition of a witness has been recorded by the enquiry officer in the absence of the public servant and a copy thereof is given to him, and an opportunity is given to him (1) (1958) 1 I L. J. 260. (2) ; 513 to cross examine the witness after he affirms in a general way the truth of his statement already recorded, that would conform to the requirements of natural justice; but as has been emphasised by this Court in M/s Kesoram Cotton Mills Ltd. vs Gangadhar (1), these observations must be applied with caution to enquiries held by domestic Tribunals against the industrial employees. In such enquiries, it is desirable that all witnesses on whose testimony the management relies in support of its charge against the workman should be examined in his presence. Recording evidence in the presence of the workman concerned serves a very important purpose. The witness knows that he is giving evidence against a particular individual who is present before him, and therefore, he is cautious in making his statement. Besides, when evidence is recorded in the presence of the accused person, there is no room for persuading the witness to make convenient statements, and it is always easier for an accused person to cross examine the witness if his evidence is recorded in his presence. Therefore, we would discourage the idea of recording statements of witnesses exparte and then producing the witnesses before the employee concerned for cross examination after serving him with such previously recorded statements even though the witnesses concerned make a general statement on the latter occasion that their statements already recorded correctly represent what they stated. In our opinion, unless there are compelling reasons to do so, the normal procedure should be followed and all evidence should be recorded in the presence of the workman who stands charged with the commission of acts constituting misconduct. In this connection, it is necessary to point out that unlike domestic enquiries against public servants to which article 311 of the Constitution applies, in industrial enquiries, the question of the bona fldes or mala fides off the employer is often at issue. 'If it (1) [1964] Vol. 2 section C. R. 809. 514 is shown that the employer was actuated by a desire to victimise a workman for his trade union activities, that itself may, in some cases, introduce an infirmity in the order ' of dismissal passed against such a workman. The question of motive is hardly relevant inenquiries held against public servants, vide UnionTerritory of Tripura vs Gopal Chandra Dutta Choudhuri (1). That is another reason why domestic enquiries in industrial matters should be held with scrupulous regard for the requirements of natural justice. Care must always be taken to see that these enquiries are not reduced to an empty formality. Take the present case where, after the enquiry was held, the Manager who held the enquiry has not recorded any findings, and so, we do not know what reasons weighed in his mind and how he appreciated the evidence led before him. The learned Solicitor General contends that there was hardly any need to record any findings or to make a formal report in the present case, because the Manager who held the enquiry was himself competent to dismiss the employee. We are not impressed by this argument. The whole object of holding an enquiry is to. enable the enquiry officer to decide upon the merits of the dispute before him, and so, it would be idle to contend that once evidence is recorded, all that the employer is expected to do is to pass an order of dismissal which impliedly indicates that the employer accepted the view that the charges framed against the employee had been proved. One of the tests which the Industrial Tribunal is entitled to apply in dealing with industrial disputes of this character is whether the conclusion of the enquiry officer was perverse or whether there was any basic error in the approach adopted by him. Now, such an enquiry would be impossible in the present case because we do not know how the enquiry officer approached the question and what conclusions he C. R. 266. 515 reached before he decided to dismiss jadav. In our opinion, therefore, the failure of the Manager to record any findings after holding the enquiry constitutes a serious infirmity in the enquiry itself. The learned Solicitor General suggested that we might consider the evidence ourselves and decide whether the dismissal of jadav is justified or not. We are not prepared to adopt such a course. If industrial adjudication attaches importance to domestic enquiries and the conclusions reached at the end of such enquiries, that necessarily postulates that the enquiry would be followed by a statement containing the conclusions of the enquiry officer. It may be that the enquiry officer need not write a very long or elaborate report ; but since his findings are likely to lead to the dismissal of the employee, it is his duty to record clearly and precisely his conclusions and to indicate briefly his reasons for reaching the said conclusions. Unless such a course is adopted, it would be difficult for the Industrial Tribunal to decide whether the approach adopted by the enquiry officer was basically erroneous or whether his conclusions were perverse. Indeed, if the argument urged before us by the learned Solicitor General is accepted, it is likely to impair substantially the value of such domestic enquiries. As we have already observed, we must insist on a proper enquiry being held, and that means that nothing should happen in the enquiry either when it is held or after it is concluded and before the order of dismissal is passed, which would expose the enquiry to the criticism that it was undertaken as an empty for mality. Therefore, we are satisfied that the Industrial Tribunal was right in not attaching any importance to the enquiry held by the Manager in dealing with the merits of the dispute itself on the evidence adduced before it. It is well settled that if the enquiry is held to be unfair, the employer can lead evidence before the Tribunal and justify his action, but in such a case) the question as to whether the dismissal of The employee is justified or not would be open before the Tribunal and the Tribunal will consider the merits ,if the dispute and come to its own conclusion without having any regard for the view taken by the management in dismissing the employee. If the enquiry is good and the conduct of the management is not mala fide or vindictive, then, of course, the Tribunal would not try to examine the merits of the findings as though it was sitting in appeal over the conclusions of the enquiry officer. In the present case, the Tribunal has come to the conclusion that the dismissal of jadav was not effected in good faith and has been actuated by a desire to victimise him for his trade union activities. That is a conclusion of fact which cannot be said to be perverse, and so, it is not open to the,appellant to challenge its correctness of the merits before us. There is one point to which we ought to refer before we part with this appeal. It appears that the main dispute between the parties was whether the strike on October 3, 1960, was spontaneous, or had been instigated by jadav. The respondents contended that the treatment given by the management to Mahboob caused this strike and 700 weavers struck work spontaneously, whereas the appellant urged that Mahboob was not present on the said date, and so, the story that his request for leave was not acceded to and he had to work is altogether false and the strike had really been instigated by jadav. On this point, the Tribunal has made a categorical finding against the appellant and in doing so, it has relied upon the minutes of the Emergency Works Committee meeting held on October 3, 1960, at 3 P.M. with the Manager himself in the chair. These minutes show that when an enquiry was made as to why the strike had commenced, it was definitely reported to the Committee that Mahboob who had 517 gone on leave, had extended his leave and after the expiry of the extended leave, he reported or October 3, and pleaded that he was still unwell and should be given still further leave, but "nobody paid any heed to his prayer", and so, presumably he had to resume duty. The minutes further show that the Labour Officer informed the members of the Com mittee that Mahboob had produced a certificate of fitness on September, 22, 1960 and after discussion, it was unanimously decided to refer his case to the Mill 's Medical Officer on whose recommendation the leave should be considered. These minutes, therefore, clearly prove that Mahboob had gone to the Mill on October 3, had asked for further leave, and his request for further leave was not granted. We ought to add that these minutes have been signed by the joint Secretary on the employer 's side and the joint Secretary on the employees ' side, and their correctness cannot be impeached. It is in the light of these statements that the plea made by the appellant before the Tribunal had to be considered by it. The plea specifically made was that Mabboob was absent on October 3, and, therefore, there was no question of his working on any machine. This plea would seem to suggest that Mahboob was absent from the Mill and that undoubtedly is not true. The learned Solicitor General invited us to consider this plea in the light of the statement made by one of the witnesses in the domestic enquiry. This statement was that Mahboob and the witness had gone to the Labour Officer for extension of leave to Mahboob and the Labour Officer had granted leave. This statement would show that leave had been granted to Mahboob in the morning of October 3, but as 'we have already seen, the Labour Officer himself told the members of the Works Committee at 3 P.M. on the same day that leave had not been granted to Mahboob because he had produced 518 a certificate of fitness dated September 22, and the Works Committee had resolved that Mahboob 's case should be referred to the Mill 's Medical Officer on whose recommendation action should be taken. Thus, there can be not doubt that even if the plea made by the appellant is liberally construed and is read in the light of the statement made by one of the witnesses at the domestic enquiry, the Industrial Tribunal was right in holding that the stand taken by the appellant was wholly untrue and that Mahboob had not been given leave on October 3. That being so, if the Industrial Tribunal took the view that the refusal of the management to give leave to Mahboob exasperated the workmen, we cannot hold that its conclusion is erroneous or that its propriety can be successfully challenged before us. The incident in regard to Mahboob forms the main background of the strike and the anxiety of the appellant was to show that Mahboob was not present on that date. Therefore, once the Industrial Tribunal came to the conclusion that the version given by the appellant was untrue, it naturally changed the complexion of the whole of the charge sheet framed by the appellant against jadav. That is why the Industrial Tribunal came to the conclusion that the conduct of the appellant in dismissing jadav showed lack of good faith and appeared to have been in spired by the desire to victimise jadav for his trade union activities. The learned Solicitor General commented on the fact that the Tribunal had allowed the respondents to call for the register of trade unions after the arguments had been heard before it. It appears that both the parties appeared before the Tribunal on January 19, 1961, when arguments were heard and the award was reserved. The Union then filed an application praying that the trade union record may be called for, and the Tribunal ordered that the record be called for. The grievance made by the 419 learned Solicitor General is that it is improper to have allowed additional evidence to be called for after the arguments had been heard. We do not think there is any force in this argument, because the only purpose for which the record was called for by the Union was to show that jadav was the Organising Secretary of the Union. Since that fact was presumably disputed by the appellant in arguing the case before the Tribunal, the Union urged that the record kept by the Registrar of Trade Unions would show that the appellant 's plea was not well founded. If, in such circumstances, the Tribunal sent for the record to satisfy itself 'that the record showed that jadav was the Organising Secretary of the Union, we do not think any serious grievance can be made by the appellant about the conduct of the Tribunal. It is perfectly true that in dealing with industrial matters, the Tribunal cannot allow evidence to be led by one party in the absence of the other, and should not accept the request of either party to admit evidence after the case has been fully argued unless both the parties agree. In the present case, however, what the Tribunal has done, is merely to send for authenticated record to see whether jadav was the Organising Secretary of the Union or not. The result is, the appeal fails and is dismissed with costs. Appeal dismissed.

IN-Abs

The appellant dismissed one of its workmen on a domestic enquiry held by its Manager who did not record any findings, took some of the evidence in the absence of the workman and found him guilty of misconduct under Rule 14 (c) (i) and (viii) of the Standing Orders. The Industrial Tribunal held that the dismissal was unjustified and directed the appellant to reinstate the employee. The respondent Union 's case was that the dismissed workman, who was the Organising Secretary of the union, was dismissed by the appellant mala fide with the purpose of victimising him for his trade union activities. The dispute centered round the question whether the strike which the dismissed workman was charged as having instigated was really instigated by him or was the spontaneous result of the treatment meted out by the appellant to another workman who was sick and fainted on the day the strike started. The case of the appellant was that this latter workman was not present on that day at all. This was belied by the record and the Industrial Tribunal without attaching any importance to the domestic enquiry held by the Manager dealt with the merits of the dispute itself and found in favour of the respondent, holding that the management was unjustified in dismissing the workman on the report of the Manager which was neither fair nor honest. On behalf of the appellant reliance was placed on the decision of this Court in Indian Iron & Steel Co. Ltd. vs Their Workmen and it was contended that the Industrial Tribunal was in error in interfering with the decision of the management. Held the Industrial Tribunal was right in discarding the domestic enquiry. Although this Court has consistently 507 refrained from interfering with the conclusions of domestic enquiries in industrial matters unless one of the four tests laid down in Indian Iron & Steel Co. Ltd. vs Their Workmen was satisfied, the essential basis on which this view is founded is that the domestic enquiry must be conducted fairly and properly in conformity with the principles of natural justice. The evidence on which the charges are sought to be proved against the workman must normally be led in his presence. The procedure of recording statements of witnesses ex parte and thereafter producing the witnesses for cross examination, unless there are compelling reasons to do so, must be discouraged. Departmental enquiries under article 311 of the Consti tution where the question of motive is hardly relevant do not stand on the same footing as those in industrial enquiries where the question of bona fides or mala fides of the employee is often in issue. Indian Iron & Steel Co. vs Their Workmen, , explained. State of Mysore vs section section Makapur, ; ; M/s. Ke.8oram Cotton Mills Ltd. vs Gangadhar, [1961] Vol. 2 S.C.R. 809, and Union Territory of Tripura vs Gopal Chander Dutta Choudhri, [1963] Supp. I S.C.R. 266, referred to. The failure of the Manager to record any findings after holding the enquiry was a serious infirmity in the enquiry and it is not for this Court to go into the evidence to decide whether the dismissal was justified. It is the duty of the enquiry officer in an industrial enquiry to record clearly and precisely his conclusions and to indicate briefly the reasons therefor so that the Industrial Tribunal can judge whether they arc basically erroneous or perverse. Although the Industrial Tribunal should not as a normal procedure allow evidence to be led by one party in absence of the other or admit evidence after the case has been fully argued unless both the parties agree, the mere calling for the authenticated record to see whether the workman was the Organising Secretary could not amount to a breach of the rule.

Appeal No. 717 of 1961. Appeal by special leave from the judgment and order dated April 10, 1961 of the Assam High Court in Civil Revision No. 10 of 1961. D. R. Prem, P. D. Menon for R. N. Sachthey, for the appellants. The respondent did not appear. 626 1963. May 7. The judgment of the Court was delivered by RAGHUBAR DAYAL J. This appeal, by special leave, is directed against the order of the High Court of Assam rejecting the revision application, under section 115 of the Code of Civil Procedure, hereinafter called the Code, of the appellants against the order of the Additional Subordinate, Judge, Gauhati, in a money suit to the effect that he had jurisdiction to try the suit. The contention of the appellants is that this view of the Subordinate judge, confirmed by the High Court, is wrong. To appreciate the contention for the appellants, the facts of the case may be stated. The suit was instituted by the plaintiff respondent against the Union of India and the Northern Frontier Railway represented by the General Manager, having its headquarters at Pandu. It related to a claim for recovery of a sum of Rs. 8,250/ on account of nondelivery of the goods which had been consigned to the plaintiff 's firm run tinder the name and style of M/s. Ladu Lal Jain. The consignment consisted of 134 bags of rice and was booked from Kalyanganj station of defendant No. 2 for carriage to Kanki station of the same defendant on April 13, 1958. The goods consigned were no, delivered to the plaintiff and hence the suit, after serving a notice under section 77 of the Indian Railways Act on the defendant railway and also serving a notice tinder section 80 of the Code. It was alleged in the plaint that the cause of action arose at Pandu within the jurisdiction of the Court at Gauhati, the place where notice under section 80 of the Code was duly served upon the defendant railway and that the suit was filed in the Court within the jurisdiction of which the defendant railway had 627 its principal place of business by virtue of its held quarters being at Pandu. The two defendants filed a joint written statement. Kalyanganj is in West Bengal and Kanki is in the State of Bihar. Gauhati is in the State of Assam. It was contended inter alia that Gauhati Court had no territorial jurisdiction to try the suit as neither of the aforesaid railway stations was within its jurisdiction and that the consignment never travelled within any part of the State of Assam and therefore the cause of action could not arise within the jurisdiction of any Court in Assam It was further contended that mere service of notice, which was not admitted, on the defendants at a place within the jurisdiction of the Court, could not vest territorial jurisdiction on it and that defendant No. 1, the Union of India, had no principal place of business at Pandu or any other place within the jurisdiction of the Court, its head quarters office being at New Delhi. It was also stated that defendant No. 2 is owned and managed by defendant No. 1, that the office of defendant No. 2 at Pandu was also owned and controlled by defendant No. 1 and that the office at Pandu was a branch office of the Union of India which was controlled by defendant No. I from New Delhi. Relying on the case reported as P.C. Biswas vs Union of India (1), the Trial Court decided the preliminary issue about jurisdiction against the defendants holding that the principal place from which the railway administrator in a particular area is carried on is the principal place of business for the purpose of section 20 of the (ode. The single judge of the High Court rejected the revision also on the basis of the same decision of his Court. The territorial jurisdiction of a Court is in general determined by the provisions of section 20 of the Code which reads : "Subject to the limitations aforesaid, ever suit 628 shall be instituted in a Court within the local limits of whose jurisdiction (a) the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain or (b) any of the defendants, where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides,. or carries on business, or personally works for gain, provided that in such case either the leave of the Court is given, or the defendants who do not reside, or carry on business, or personally work for gain, as aforesaid, acquiesce in such institution ; or (c) the cause of action, wholly or in part, arises. Explanation I : Where a person has a permanent dwelling at one place and also temporary residence at another place, he shall be deemed to reside at both places in respect of any cause of action arising at the place where he hag such temporary residence. Explanation 11 : A corporation shall be deemed to carry on business at its sole or principal office in India or in respect of any cause of action arising at any place where it has also a subordinate office, at such place. " The principle behind the provisions of clauses (a) and (b) of section 20 is that the suit be instituted at a place 629 where the defendant be able to defend the suit without undue trouble. The expression 'voluntarily resides or personally works for gain ' cannot be appropriately applied to the case of the Government. The Government can however carry on business. The mere fact that the expression 'carries on business ' is used along with the other expressions, does not mean that it would apply only to such persons to whom the other two expires ions regarding residence or of personally working for gain would apply. The sole contention raised for the appellants in this Court is that the running of railways by the Union of India cannot be said to amount to its carrying on business and that therefore the fact that the headquarters of the Northern Frontier Railway Administration is at Pandu within the jurisdiction of the Court at Gauhati does not give the Court jurisdiction under section 20 of the Code. The contention is based on the reasoning that any undertaking run by the Government, even if it amounts to the carrying on of a business when run by a private individual, would not be the carrying on of business by the Government if there was no element of profit making in it. There is no allegation in the written statement that the Government is not running railways for profit. No issue was framed about it. The Court below recorded no decision on the point. It cannot be presumed that the Government is not making a profit from its running the railways in the country or is not running it with a profit motive. The fact that the Government runs the railways for providing quick and cheap transport for people and goods and for strategic reasons will not convert what amounts to the carrying on of a business into an activity of the State as a sovereign body. 630 Article 298 of the Constitution provides that the executive power of the Union and of each State shall extend to the carrying on of any trade or business and cl. (6) of article 19 provides that nothing in sub cl. section (g) of cl. (1) of that Article shall prevent the State from making any law relating to the carrying on by the State or by a corporation owned or controlled by the State, of any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise. These provisions clearly indicate that the State can carry on business and can even exclude citizens completely or partially from carrying on that business. Running of railways is a business. that is not denied. Private companies and individuals carried on the business of running railways, prior to the State taking them over. The only question then is whether the running of railways ,ceases to be a business when they are run by Government. There appears to be no good reason to hold that it is so. It is the nature of the activity which defines its character. Running of railways is such an activity which comes within the expression 'business '. The fact as to who runs it and with what motive cannot affect it. This Court bad occasions to detemine the nature of certain activities of Government. The rationale of those cases is a good guide for determining the point before us. In State of Bombay vs The Hospital Mozdoor Sabha(1) ' the question was whether the relevant provisions of the , applied to the group of hospitals run by the State of Bombay and whether they are 'industry ' within the meaning of that Act. The decision of the question depended on the interpretation of the definition of 'industry ' prescribed by section 2 (j) of the Act. This section provides that industry means any business, trade, undertaking etc., of employers. In considering the question it became necessary to enquire whether that activity, i.e., the running of the (1) 631 hospitals, would be an undertaking if it is carried on by a private citizen or a group of private citizens. It was field that if a hospital is run by private citizens for profit, it would be an undertaking very much like the trade or business in their conventional sense. It was observed at p. 878 : "Thus the character of the activity involved in running a hospital brings the institution of the hospital within section 2.(j). Does it make any difference that the hospital is run by the Government in the interpretation of the word undertaking ' in section 2 (j) ? In our opinion, the answer to this question must be in the negative. It is the character of the activity which decides the question as to whether the activity in question attracts the provision of section 2(j); who conducts the activity and whether it is conducted for profit or not do not make a material difference " To similar effect were the observations in The Corporation of the City of Nagpur vs Its employees where it was said : "If a service rendered by an individual or a private person would be an industry, it would equally be an industry in the hands of a corporation. " It was earlier said at p. 960 "Monetary considerations for service is, therefore, not an essential characteristic of industry in a modern State." "Barring the regal functions of a municipality, if such other activities of it, if undertaken by an individual, would be industry, then they would equally be industry in the hands of a municipality, (1) [1960] a S.C.R. 942, 962, 632 Lastly, in Satya Narain vs District Engineer, P.W.D. (1), the question for determination was whether plying motor buses by the Government by way of commercial activity amounts to its running it on a public service. In determining this question, this Court observed at p. 1163: "It is undoubtedly not easy to define what is "Public service ' and each activity has to be considered by itself for deciding whether it is carried on as a public service or not. Certain activities will undoubtedly be regarded as public services, as for instance, those undertaken in the exercise of the sovereign power of the State or of governmental functions. About these there can be no doubt. Similarly a pure business undertaking though run by the Government cannot be classified as public service. But where a particular activity concerns a public utility a question may arise whether it falls in the first or the second category. The mere fact that that activity may be useful to the public would not necessarily render it public service. An activity however beneficial to the people and however useful cannot, in our opinion, be reasonably regarded as public service if it is of a type which may be carried on by private individuals and is carried on by government with a distinct profit motive. It may be that plying stage carriage buses even though for hire is an activity undertaken by the Government for ensuring the people a cheap, regular and reliable mode of transport and is in that sense beneficial to the public. It does not, however, cease to be a commercial activity if it is run with profit motive. Indeed even private operators in order to attract custom are also interested in providing the same facilities to the public as the Government undertaking provides. Since that is so, it is difficult (1) A, I, R. 633 to see what difference there is between the activity carried on by private individuals and that carried on by Government. By reason of the fact that a commercial undertaking is owned and run by the State it does not ipso facto become a "public service '. " This case simply held that commercial activity carried on with profit motive cannot be held to be 'public service '. It does not hold that such activity carried on by Government will not be "business ' if conducted without profit motive. We are of opinion that 'profit element ' is not a necessary ingredient of carrying on business, though usually business is carried on for profit. It is to be presumed that the Railways are run on a profit basis, though it may be that occasionally they are run at a loss. The case reported as Director of Rationing & Distribution vs The Corporation of Calcutta (1), relied on for the appellants is really of no help to them. It was in connection with the sovereign activities of the State that it was said that the State was not bound by any statute unless the statute provided to that effect in express terms or by necessary implication. The contention that the Government could not get the benefit of this law in connection with its business activities was neither repelled nor considered. It was held to have no foundation as there was nothing on the record that the Food Department of the Government of West Bengal by undertaking rationing and distribution of food on a rational basis had embarked upon any trade or business and, in the absence of any such indication, it appeared that the department was discharging the elementary duty of a sovereign to ensure proper and equitable distribution of available foodstuffs with a view to maintaining peace and good government. (1) [1961] I. &.C. A? 158, 634 In view of what we have said above, we hold that the, Union of India carries on the business of running railways and can be sued in the Court of the Subordinate Judge of Gauhati within whose territorial jurisdiction the headquarters of one of the railways run by the Union is situated. We accor dingly dismiss the appeal with costs. Appeal dismissed.

IN-Abs

The plaintiff respondent instituted a suit in the court of the Additional Subordinate Judge, Gauhati, against the Union of India and the Northern Frontier Railway represented by the General Manager, having its headquarters at Pandu. Pandu is within the jurisdiction of the Subordinate judge. The claim was for the recovery of a sum of Rs. 8,250/ on account of nondelivery of the goods which had been consigned to the plaintiffs firms, The consignment was booked from Kalyanganj station of defendant No. 2 fair carriage to Kanki, a station of the same defendant. It was alleged in the plaint that the cause of action arose at Pandu within the jurisdiction of the Court, where the defendant railway had its principal place of business by virtue of its headquarters being at Pandu. The suit was resisted by the defendants on the ground that the court bad no jurisdiction to entertain the suit. Relying on the decision of the Assam High Court in P. C. Biswas vs Union of India, A. I. R. , the court of first instance held that the principal place from which the railway administration in a particular area is carried on is the principal place of business for the purpose of jurisdiction under section 20 of the Code of Civil Procedure, 1908, and decided the issue in favour of the plaintiff. The revision petition filed by the appellants was rejected by the High Court. The present appeal was filed with special leave granted by this Court. It was contended in the appeal by the appellants that the running of the railway by the Union of lndia could not be said to amount to carrying on of business and that therefore the fact that the headquarters of Northern Frontier Railway Administration was at Pandu within the jurisdiction of the 625 Court at Gauhati did not give the Court jurisdiction under section 20 of the Code of Civil Procedure. Held that articles 19 (6) and 298 of the Constitution clearly indicate that the State can carry on business and can even exclude citizens completely or partially from carrying on that business. The running of railways which is a business when carried on by private companies or individuals does not cease to be a business when they are run by the Government. It is the nature of the activity which determines the character of an activity. The fact as to who runs it and with what motive cannot affect it. 'Profit element ' is not a necessary ingredient of carrying on of business, though usually business is carried on for profit. The fact that the Government runs the railways for providing cheap transport for the people and goods and for strategic reasons will not convert what amounts to carrying on of business into an activity of the State as a sovereign body. The Union of India carries on the business of running railways and can be sued in the court of the Subordinate judge of Gauhati within whose territorial jurisdiction the headquarters of one of the railways run by the Union is situated. Case Law reviewed. State of Bombay vs Hospital Mazdoor Sabha [1960] 2 S.C.R. 866, The Corporation of the City of Nagpur vs Ito Employees, ; and Satya Narain vs District Engineer, P. W. D., A. I. R.

Appeal No. 219 of 1962. 384 Appeal from the judgment and decree dated August 31, 1960 of the Patna High Court in Appeal from Original decree No. 7 of 1955. B. Sen, J. B. Dadachanji, O. C. Mathur and Ravinder Narain, for the appellants. B. R. L. Iyengar, section K. Mehta and K. L. Mehta, for the respondents. April 25. The Judgment of the Court was delivered by GAJENDRAGADKAR J. This appeal arises out of proceedings under the Land Acquisition Act, 1894 (No. 1 of 1894) (hereinafter called 'the Act '). The respondents owned an area of 0.12 acre of land in village Bermo No. 18 in the district of Hazaribagh. This land was required for the construction 'of Aerial Rope way for Bokaro Thermal Power Plant, and so, in order to acquire the said land, a declaration under section 4 of the Act was made on August 9, 1952. The property of the respondents which stands on this plot consists of two buildings, one is the main structure and the other is made up of out houses together with an open space of land in front of these structures. The notification showed that the Government thought it necessary, to acquire a space of 50 fit in width for the electric wire to run over and this included a portion of open space as also the out houses of the respondents. Under the proceedings taken under the relevant provisions of the Act, the Land Acquisition Officer fixed the compensation to be paid to the respondents at Rs. 4,4511516; according to him, the said amount represented a fair and reasonable compensation for the land together with the out houses under acquisition. The respondents were not satisfied with this award, and so, ' they applied for reference under section 18 385 of the Act. One of the grounds taken by the respondents in para I (d) of their petition for reference was that the other lands and buildings contiguous to the land and building acquired which belonged to them had not been acquired, and in consequence, they had to suffer a huge loss; the rope line passes close to the rest of the property, and so, it could not be used for fear of its being dangerous for human habitation. On this basis, the respondents alleged that they were entitled to recover as compensation amount Rs. 21,765/8/ which they had spent on the construction of the principal building. Besides, they urged that the monthly rent of Rs. 160/ which they were receiving from the tenants in respect of the said principal building would also be lost and they were entitled to adequate compensation on that account. In other words, one of the grounds raised by the respondents in their petition was referrable to section 23 (3) of the Act. The Deputy Commissioner of Hazaribagh then proceeded to make the reference as claimed by the respondents. In his letter of reference, he stated that the respondents were claiming additional compensation on the ground that the other lands and buildings contiguous to the land and building acquired which they owned had not been acquired and thereby they had to suffer a huge loss. On reference, the District judge of Hazaribagh heard the matter. It appears that before the District judge, Kundan Singh, respondent No. 1, gave evidence and stated that on October 22, 1952, he had put in an application that the other quarters belonging to him which had not been acquired should also be acquired, because the said quarters were contiguous to the land acquired and had become useless to the respondents. The learned District judge considered the point raised by the respondents and held that since only a narrow 386 strip of land had been left in front of the larger building, it had affected the utility of the said building and the other unacquired land of the respondents, and so, he directed that in addition to the amount of Rs. 4 451/5/6 which had been determined as the amount of compensation by the Land Acquisition Officer, Rs. 1000/ should be paid to the respondents. In his opinion, the amounts determined by the Acquisition Officer for the property actually acquired was quite appropriate and all that was needed to be done was to award an additional amount of Rs. 1,000/ on the ground that the unacquired property was adversely affected by the acquisition in question. The respondents then preferred an appeal before the High Court of Patna under section 54 of the Act. In their appeal, the only ground which they urged was that the rope way having completely spoiled the main building, the Land Acquisition Officer could not acquire the out houses without acquiring the main building. Accordingly, they claimed a declaration that the Land Acquisition Officer should acquire the main building along with the other properties under acqiuisition. When this plea was raised before the High Court, the appellants, the State of Bihar and the Deputy Commissioner, Hazaribagh, contended that it was not open to the respondents to claim a declaration for the acquisition of other properties in their appeal, because the said appeal arose out of a reference under section 18 of the Act and a plea like the one raised by the respondents which could be made under section 49 of the Act, was foreign to the present enquiry. It was also contended that this point had not been taken by the respondents either before the Land Acquisition Officer or before the District judge. These arguments were rejected by the High Court and a direction has been issued by the High Court calling upon the Land Acquisition Officer to takeover the remaining area 387 and the building and assess the compensation thereon in due course according to law. The High Court has ordered that when the said assessment is thus determined, the additional compensation of Rs. 1,000/which has been allowed by the District judge should be deducted and the balance paid to the respondents. It is against this order that the appellants have come to this Court with a certificate issued by the High Court; and the principal question which has been raised before us by Mr. Sen on behalf of the appellants is that the High Court was in error is allowing section 49 to be invoked in the appeal before it. The first point which must be considered in dealing with the appellants ' argument is whether the respondents had made an application to the Land Acquisition Officer under section 49 of the Act as alleged by respondent No. I in his evidence before the District judge. We have already noticed that respondent No. I stated in his evidence that on October 22, 1952 he had put in an application that the other quarters should also be acquired. In other words, his plea was that the said application had been made invoking the provisions of section 49 of the Act after the date of the notification and before the award was made on November 27, 1952. The judgment of the District judge shows that he did not accept this plea, and so, he proceeded to deal with the case on the basis that the respondents were claiming additional compensation either under the third or the fourth clause of section 23 (1) of the Act. If he had held that an application had been made by the respondents under section 49 of the Act before the award was made and they were asking for relief under that provision, he would, undoubtedly, have considered the matter and recorded his conclusion on it. Therefore, it would not be unreasonable to assume that the District judge did not attach any importance to the statement made by respondent No. I that he had put in an application under section 49, or it may be that the 388 respondents merely pressed their claim for additional compensation under section 23 before the learned District judge. When the matter was argued before the High Court, the appellants seriously disputed the allegation of the respondents that an application had been made to the Land Acquisition Officer under section 49. It is true that the statement of respondent No. 1 that he had made such an application was not challenged in cross examination, but it is remarkable that the said statement does not appear to have been pressed before the District judge and when it was attempted to be pressed before the High Court, the application alleged to have been made by respondent No. I was not produced before or shown to the High Court at all. In fact, no such application has been printed in the paper book prepared for this Court in the present appeal. The High Court also does not appear to have made any definite finding that the statement of respondent No. I could be accepted. It has, however, held that the claim made by the respondents when they asked for reference under s.18 showed that they were asking for protection under s.49 of the Act and it is on the basis of the said claim contained in para. I (d) of the respondents ' petition under section 18 of the Act that the High Court came to the conclusion that the respondents had relied upon section 49 before the Land Acquisition Officer. We have already referred to the ground taken by the respondents in para I (d) of their petition and have noticed that the claim made under the said ground was under section 23 of the Act and not at all under section 49; and so, we are not prepared to accept Mr. Iyenger 's argument that the present appeal should be dealt with on the basis that the respondents had made an application to the Land Acquisition Officer under section 49 of the Act before he pronounced his award. By their application for 'reference, the respondents merely claimed additional compensation under section 23(1) and 389 that is how their claim was considered and decided by the learned District Judge. It is in the light of this, finding that we have to determine the question as to whether the High Court could have entertained the respondents ' plea under section 49 in the appeal preferred before it by the respondents against the decision of the District Judge in reference proceedings taken before him under section 18 of the Act. In determining the question about the scope of the enquiry under section 18, it is necessary to consider the relevant provisions of the Act. Section 4 of the Act deals with the publication of a preliminary notification in regard to the acquisition proceedings proposed to be taken. Section 5 A deals with the hearing of objections. Section 6 provides for the declaration that a particular land is required for a public purpose. Section 9 requires notice to be given to the persons interested in the said property. Section 11 prescribes the manner of the enquiry and provides for the making of the award by the Collector. Section 12 lays down that the award, when made, shall be filed in the Collector 's office and shall be final, as therein prescribed ' Section 16 empowers the Collector to take possession of the property acquired, ' and section 18 deals with reference to Court. In dealing with the claim for compensation made by the owner of the property, the Court has to consider the matters specified in section 23. The third clause of section 23 (1) provides that in determining the amount of compensation, the Court shall take into account the damage (if any), sustained by the person interested, at the time of the Collector 's taking possession of the land , by reason of severing such land from his other land and the fourth clause requires the Court to take into account the damage (if any), sustained by the person interested, at the time of the Collector 's taking possession of the land, by reason of the acquisition injuriously affecting his other property, movable or immovable, in any other manner, or his earnings. 390 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 the Collector or the determination of the Court, whether his objection be to the measurement of the land, the amount of the compensation, the persons to whom it is payable, or the apportionment of the compensation among the persons interested. ' It is thus clear that the scope of the enquiry under section 18 (1) is specifically indicated by the section itself. The objections which the Court can consider on a reference made to it under section 18 may be either in respect of the measurement of the land, the amount of compensation, the persons to whom it is payable, and the apportionment of the compensation among different persons. In dealing with the ' question about the amount of Compensation, the Court may have to take into account the matters specified in s.23. As was observed by the Privy Council in Pramatha Nath Mullick vs Secretary of State for India (1), the section clearly specifies four different grounds of objection which can be the subject matter of an enquiry in reference proceedings. Therefore, it is very difficult to accede to Mr. Iyengers ' argument that in dealing with the reference proceedings under section 18 (1), the Court can also consider the pleas raised by the owner of the property under section 49 of the Act. It does appear that the owner of property under acquisition may claim additional compensation on the ground that the portion of the property acquired so materially affects the value or the utility of his other property not acquired as to justify a claim for additional compensation under section 23, and if such a claim is made, it would legitimately form the subject matter of an enquiry in a reference under section 18 (1), but if the owner of the property wants to claim 'that the whole of his property should be acquired, and in that connection relies on the provisions of section 49, that cannot be introduced in an enquiry under section 18 (1) (1929) L. R. 57 I. A. 100. 391 such a claim must form the subject matter of different proceedings taken by the owner under section 49 itself. That takes us to section 49. Section 49 reads thus " (1) The Provisions of this Act shall not be put in force for the purpose of acquiring a part only of any house, manufactory or other building, if the owner desires that the whole of such house, manufactory or building shall be so acquired Provided that the owner may, at any time before the Collector has made his award under section 1 1, by notice in writing, withdraw or modify his expressed desire that the whole of such house, manufactory or building shall be so acquired : Provided also that, if any question shall arise as to whether any land proposed to be taken under this Act does or does not form part of a house, manufactory or building within the meaning of this section the Collector shall refer the determination of such question to the Court and shall not take possession of such land until after the question has been determined. In deciding on such a reference the Court shall have regard to the question whether the land proposed to be taken is reasonably required for the full and unimpaired use of the house, manufactory or building. (2) If, in the case of any claim under section 23, sub section (1), thirdly, by a person interested, on account of the severing of the land to be acquired from his other land, the (appropriate Government) is of opinion that the claim is unreasonable or excessive, it may, at 392 any time before the Collector has made his award, order the acquisition of the whole of the land of which the land first sought to be acquired forms a part. (3) In the case last hereinbefore provided for, no fresh declaration or other proceedings under sections 6 to 10, both inclusive, shall be necessary ; but the Collector shall without delay furnish a copy of the order of the (appropriate Government) to the person inter ested, and shall thereafter proceed to make his award under section 11. The provisions of section 49 (1) prescribe, inter alia, a definite prohibition against putting in force any of the provisions of the Act for the purpose of acquiring a part only of any house, if the owner desires that the whole of such house shall be acquired. This prohibition unambiguously indicates that if the owner expresses his desire that the whole of the house should be acquired, Do action can be taken in respect of a part of the house under any provision of the Act, and this suggests that where a part of the house is proposed to be acquired and a notification is issued in that behalf, the owner must make up his mind as to whether he wants to allow the acquisition of a part of his house or not. If he wants to allow the partial acquisition, proceedings would be taken under the relevant provisions of the Act and an award directing the payment of adequate compensation would be made and would be followed by the taking of possession of the property acquired. If, on the other hand, the owner desires that the whole of the house should be acquired, he should indicate his desire to the Land Acquisition officer and all further proceedings under the relevant provisions of the Act must stop. This provision thus seems to suggest that if an objection is intended to be raised to the acquisition of a part of the house, it must be 393 made before an award is made under section 11. In fact, it should be made soon after the initial notification is published under section 4 ; otherwise, if the proceedings under the relevant provisions of the Act are allowed to be taken and an award is made, it would create unnecessary confusion and complications if the owner at that stage indicates that he objects to the acquisition of a part of his house ; at that stage, it would no doubt be open to him to claim adequate compensation in the light of the material provisions of section 23 of the Act, but that is another matter. The first proviso to section 49 (1) also leads to the same conclusion. If the owner has made his objection to the acquisition of a part of his house, it is open to him to withdraw or modify his objection before an award is made under section 11 ; and if he withdraws 'his objection, further proceedings will follow and if he modifies his objection, steps will have to be taken as indicated in the other provisions of section 49. This proviso, therefore, suggests that the objection of the owner to acquisition of a part of his house has to be considered and dealt with before an award is made under section 11. It would be noticed that if an objection is made by the owner under section 49 (1), the Collector may decide to accept the objection and accede to the desire of the owner to acquire the whole of the house. In that case, further proceedings will be taken on the basis that the whole of the house is being acquired. In some cases, the Collector may decide to withdraw acquisition proceedings altogether, because it may be thought not worthwhile to acquire the whole of the house ; in that case again nothing further remains to be done and the notification issued has merely to be withdrawn or cancelled. But cases may arise where the Collector may not accept the claim of the owner that what is being acquired is a part of the house ; in that case, the matter in dispute has to be 394 judicially determined, and that is provided for by the second proviso to section 49 (1). Under this proviso, the Collector is under an obligation to refer the matter to the Court and he shall not take possession of the land under acquisition until the question is determined by the Court. In dealing with this matter, the Court has to have regard to the question as to whether the land proposed to be taken is reasonably required for the full and unimpaired use of the house. Sub section (2) of section 49 seems to contemplate that where land is acquired and it is shown to form part of a house, it would be open to award to the owner of the house additional compensation under the third clause of section 23, and I so, this sub section deals with cases where the claim made by the owner of the house under the third clause of section 23 is excessive or unreasonable, and provides that the appropriate Government may decide to acquire the whole of the land of which the land first sought to be acquired forms a part rather than agree to pay an unreasonable or excessive amount of compensation as claimed by the owner. This provision also emphasises the fact that where land is acquired and it results in the acquisition of a part of the house connected with the land, the owner can make a claim for additional compensation under section 23, or he may require, before the acquisition has taken place, that the whole of the house should be acquired. These are two alternative remedies available to the owner ; if he wants to avail himself of the first remedy under section 23, he may make a claim for additional compensation in that behalf and such a claim would form the subject matter of an enquiry under section 18 ; if, on the other hand, he claims the other alternative remedy provided by section 49 (1), that must form the subject matter of another proceeding which has to be dealt with under section 49 itself. It is true that in cases of dispute, this matter also goes to the same Court for its decision on a 395 reference by the Collector; but though the Court is the same the proceedings taken are different and separate and must be adopted as such. A claim under section 49 which can be properly tried by the Court on a reference made to it by the Collector under the second proviso to section 49 (1), cannot be mixed up with a claim which can be made in reference proceedings sent to the Court under section 18 by the Collector. Section 49 (3) merely dispenses with the necessity of issuing a further fresh declaration or adopting other proceedings under sections 6 to 10 in regard to cases falling under section 49 (2). Thus, it would be seen that the scheme of section 49 is that the owner has to express his desire that the whole of his house should be acquired before the award is made, and once such a desire is expressed, the procedure prescribed by section 49 has to be followed. This procedure is distinct and separate from the procedure which has to be followed in making a reference under section 18 of the Act. In the present case, the respondents have taken no steps to express their desire that the whole of their house should be acquired, and so, it was not open to the High Court to allow them to raise this point in appeal which arose from the order passed by the District judge on a reference under section 18. That being our view, we do not think necessary to consider the respondents ' contention that what is acquired in the present proceedings attracts the provisions of section 49 (1). It now remains to consider two relevant decisions which were cited before us. In the Secretary of State for India in Council vs Narayanaswamy Chettier (1), the Madras High Court appears to have taken the view that there is nothing in section 49 requiring the claimant to put forward his particular claim, viz., that the whole of his house should be acquired, at any particular stage of the proceedings. Referring (1) Mad. 391 396 to section 49 (1), Ramesam off. C. J., observed that the said clause cannot imply that the claims covered by it should be made before the Collector makes his award. Cornish J., who delivered a concurrent judgment agreed with this view. It appears that in coming to this conclusion, both the learned judges referred to the special circumstances under which the claimant made his claim under section 49 on September, 29, that is to say, after the award. and those special circumstances clearly showed that the claimant was not to blame for the delay made by him in expressing his desire under section 49 (1). In our opinion, however, the scheme of section 49 is clear. Section 49 (1) has imposed a ban on taking any further action under any of the provisions of the Act where the owner expresses a desire that the whole of his house should be acquired, and that clearly indicates that after the relevant notifications are issued under sections 4 and 6, if it appears to the owner of the land under acquisition that a part of his house is being acquired, he has to express his desire before an award is made under section 11 ; otherwise if the owner allows. proceedings to be taken under the provisions of the Act and an award follows, it would lead to unnecessary complications if the owner is allowed to express his desire under section 49 (1) and the reference is then required to be made under the second proviso to section 49 (1). Logically, if an enquiry has to be made as contemplated by section 49, it must precede any further action under the other provisions of the Act, and that is the main basis of the mandatory prohibition prescribed by section 49 (1). The said prohibition coupled with the first proviso to section 49 (1) leads to the conclusion that the owner cannot take recourse to section 49 after an award is made under section 1 1 of the Act. In our opinion, therefore, the High Court did not correctly interpret the effect of section 49 (1) when it held that the said section did not require the claimant to put forward his claim before the award was made. 397 In Krishna Das Roy vs The Land Acquisition Collector of Pabna (1), the Calcutta High Court, on the other hand, seems to have taken the view and we think, rightly, that if the owner wants to make an application expressing his desire under section 49 (1), he has to make that application some time before the award is actually made. The result is, the appeal is allowed, the order passed by the High Court is set aside and that of the District judge restored. There will be no order as to costs. Appeal allowed.

IN-Abs

The appellant acquired a plot of land on which the respondent 's property stands, consisting of the main house and an outhouse with an open space in front of them. The land acquired covered a space 50 ft. in width for the electric wire to run over and this included a portion of the open space as also the outhouse. The Land Acquisition Officer fixed a compensation of Rs. 4,451/5/6. Not being satisfied with this award the respondents appealed under section 18 of the Land Acquisition Act, 1894. One of the grounds taken in the petition for reference was that the other lands and buildings contiguous to the land and building acquired which belonged to them had not been acquired, they had to suffer a huge loss, the electric rope line passed close to the rest of the property and so it could not be used as it might be dangerous for human habitation. On this basis compensation of about Rs. 21,765/8/which had been spent in the constructions of the principal house was claimed Before the District Judge, on reference, Respondent No. I gave evidence that he had made I an application before the award was given for the payment of the higher compensation on the above stated ground. The District judge considered this ground and held that since only a narrow strip of land was left in front of the main building its utility was diminished and awarded an additional compensation of Rs. 1,000/ . The respondents preferred an appeal to the High Court in which they prayed for a declaration that the Land Acquisition Officer should acquire the main building along with the other properties acquired. The present appellant contended that the respondents should not be allowed to raise this contention 383 because this plea could have been raised by them only under section 49 of the Act and the plea was foreign to the scope of the reference out of which the appeal arose. It was also contended that his plea was not taken before the Land Acquisition Officer. The High Court rejected these contentions of the Appellants and granted the declaration as prayed for by the respondents. The present appeal is by way of a certificate granted by the High Court. Substantially the same contentions as were raised before the High Court were raised in this appeal before this Court. Held that the claim was made by the respondents under section 23 of the Act and not under section 49 and what they have in fact done is to claim additional compensation under section 23 (1). It is clear that the scope of the enquiry under section 18 (1) is specifically indicated by the section itself and the grounds on which objection can be taken. The Court cannot consider the pleas raised by the owner of the property under section 49 in an enquiry under section 18 (1). The scheme of section 49 is that the owner has to express his desire that the whole of his house should be acquired before the award is made and once such a desire is expressed the procedure prescribed by section 49 has to be followed. This procedure is distinct and separate from the procedure which has to be followed in making a reference under section 18. In the present case the respondents have not taken any steps to express their desire that the whole of their house should be acquired and it was not open to the High Court to allow them to raise this point in appeal which Arose out of an order passed by the District Judge under section 18. Case law reviewed. Pramatha Nath Mullick vs Secretary of State for India in Council, (1929) L. R. 57 I. A. 100. The Secretary of State for India in Council V. R. Narayanaswami Chettiar, Mad. 391, distinguished. Krishna Das Roy vs The Land Acquisition Collector of Pabna,

Civil Appeal No. 577 of 1961. Appeal by special leave from the judgment and decree dated January 7, 1959, of the Allahabad High Court in Second Appeal No. 448 of 1952. Sarjoo Prasad, Vithal Bhai Patel and S.S. Shukla, for the appellants. C. B. Agarwala, and J. P. Goyal, for the respondent No. I. 1963. May 3: The judgement of the Court was delivered by RAGHBAR DAYAL J. The facts leading to this appeal, by special leave, are these. Nine 551 persons, including Kedar Nath, instituted a suit for ejectment and recovery of rent against two defendants on the allegation that defendant No. I was the tenant inchief who had sub let the premises to defendant No. 2. The suit for ejectment was decreed against both the defendants and for arrears of rent against defendant No. 1. On appeal by defendant No. 2 the District judge set aside the decree for ejectment against defendant No. 2 and confirmed the rest of the decree against defendant No. 1. It is against this decree that the nine original plaintiffs filed the second appeal in the High Court on February 29, 1952. Kedar Nath, appellant No. 3, died on September 8, 1955. In view of rr. 3 and 11 of O. XXII of the Code of Civil Procedure, hereinafter called the Code, the appeal abated so far as Kedar Nath was concerned as no application for bringing his legal representatives on the record was made within the prescribed time. On October 1, 1956, two applications were filed in the High Court One was an application under section 5 of the Limitation Act for the condonation of the delay in filing the application for substitution of the heirs in placec of Kedar Nath. The other was the application for substitution in which it was prayed that Bithal Das and Banarsi Das, the sons of Kedar Nath, deceased, be substituted in place of the deceased appellant as they were his heirs and representatives. These two applications were dismissed on May 1, 1957, with the result that the appeal stood abated as against Kedar Nath. Bhagwati Prasad, appellant No. 9 also died on July 2,1956. His widow, Remeshwari Devi, was brought on the record in his place. When the appeals of the appellants other than Kedar Nath came up for hearing on September 1, 1958, a preliminary objection was taken for the, 552 respondent that the entire appeal had abated. Mr. jagdish Swarup, learned counsel appearing for the appellants, contended that the deceased belonged to a joint Hindu family and other members of the family were already on the record and that it was not necessary to bring on record any other person. He further stated that the appeal could not be said to have abated in the particular circumstances. The Court allowed the appellants time for filing an affidavit stating that the deceased was a member of the joint Hindu family and other relevant facts. On September 8, 1958, an affidavit was filed by Suraj Prasad Misra pairokar of the appellants. Para 9 of the Affidavit stated that Lala Ram Chandra Prasad, appellant No. 8, managed the family properties including the one in dispute which was joint and looked after the affairs of the properties and acted for and on behalf of the family and was 'already on the record. A counter affidavit was filed stating that the allegations in para 9 of the affidavit were misleading, that there was no allegation in the affidavit that the family was a joint Hindu family and that the true facts were that the family of the plaintiffsappellants was not a joint family, that the members were separated, that Lala Ram Chandra Prasad was not karta of the joint Hindu family, that the plaintiffs were assessed to income tax separately and that the property in dispute was not joint family property or even joint property. A rejoinder affidavit was then filed by Sri Narain, general agent of the appellants stating that the aforesaid statements in the counteraffidavit were misleading and irrelevant and re affirming that Ram Chandra Prasad managed the house property of the family including the one in dispute and that he looked after the affairs of the house property and acted for and on behalf of the family just as other members of the family looked after other affairs including the business belonging to the family. 553 At the hearing of the appeal of the surviving appellants, the only point which was urged for consideration seems to have been that the surviving appellants were competent to continue the appeal in view of O.XLI, r. 4, C. P. C. This contention was repelled in view of the full Bench decision of the Allahabad High Court reported in Baij Nath vs Ram Bharose (1), as the interests of the surviving appellants and the deceased appellant were joint and indivisible and as in the event of the success of the appeal there would be two inconsistent and contradictory decrees. It accordingly dismissed the appeal. It is against this decree that this appeal has been filed after obtaining special leave. Mr. Sarjoo Prasad, learned counsel for the appellants, has raised two points. One is that the provision of r. 2 of O. XXII and not of r. 3 of that Order apply to the facts of this case as the nine appellants constitute a joint Hindu family and the surviving plaintiffs could continue the appeal. The second point is that if the provisions of r. 3 of O.XXII applied and the appeal of Kedar Nath had abated, the provisions of r. 4 of O.XLI have not been correctly construed in Baij Nath vs Ram Bharose (1) and Ramphal Sahu vs Babu Satdeo Jha (2). We see no force in the first contention. We have already referred to the contents of the various affidavits filed by the parties subsequent to the point being raised that Kedar Nath, the deceased appellant and the surviving appellants constituted a joint Hindu family. They clearly indicate that the affidavits filed on behalf of the appellants made no averment that Kedar Nath and the surviving appellants formed a joint Hindu family, even though time had been given to them for filing an affidavit stating such a fact. The inference is obvious, and (1) I.L.R. [1953) All, Pat, 870, 554 is that these people did not form a joint Hindu family as alleged by the respondents. It is further of significance that the application made on October 1, 1956, for substituting the sons of Kedar Nath in his place stated that they were his heirs and legal representatives. The application was on the basis that Kedar Nath was not a member of the joint Hindu family. We are, therefore, of opinion that it is not proved that Kedar Nath, deceased, and the other appellants constituted a joint Hindu family that the right to appeal survived to the surviving appellants alone and that they could have continued their appeal in view of r. 2 of of XXII of the Code. The second contention really is that the surviving appellants could have instituted the appeal against the entire decree in view of the provisions of O. XLI, r. 4 of the Code, that they were, therefore, competent to continue the appeal even after the death of Kedar Nath and the abatement of the appeal so far as he was concerned, that the Court could have reversed or varied the whole decree in favour of all the original plaintiffs and could have granted relief 'with respect to the rights and interests of Kedar Nath as well. We do not agree with this contention Rule 4 of O.XLI reads: "Where there are more plaintiffs or more defendants than one in a suit, and the decree appealed from proceeds on any ground common to all the plaintiffs or to all the defendants, any one of the plaintiffs or of the defendants may appeal from the whole decree, and there upon the appellate Court may reverse or vary the decree in the favour of all the plaintiffs,or defendants, as the case may be." These provisions enable one of the plaintiffs or one of the defendants to file an appeal against the entire 555 decree. The second appeal filed in the High Court was not filed by any one or by even some of the plaintiffs as an appeal against the whole decree, but was filed by all the plaintiffs jointly, and, therefore, was not an appeal to which the provisions of r. 4 O.XLI could apply. The appeal could not have been taken to be an appeal filed by some of the plaintiffs against the whole decree in pursuance of the provisions of r. 4 of O.XLI from the date when the appeal abated so far as Kedar Nath was concerned. If the appeal could be treated to have been so filed, then, it would have been filed beyond the period prescribed for the appeal. At that time, the decree stood against the surviving plaintiffs and the legal representatives of Kedar Nath. The legal representatives could not have taken advantage of r. 4 of O. XLI. It follows that r. 4 of O. XLI would not be available to the surviving plaintiffs at that time. Further, the principle behind the provisions of r. 4 seems to be that any one of the plaintiffs or defendants, in filing such an. appeal, represents all the other non appealing plaintiffs or defendants as he wants the reversal or modification of the decree in favour of them as well, in view of the fact that the original decree proceeded on a ground common to all of them. Kedar Nath was alive when the appeal was filed and was actually one of the appellants. The surviving appellants cannot be said to have filed the appeal as representing Kedar Nath. Kedar Nath 's appeal has abated and the decree in favour of the respondents has become final against his legal representatives. His legal representatives cannot eject the defendants from the premises in suit. It will be against the scheme of the Code to hold that r. 4 of O. XLI empowered the Court to pass a decree in favour of the legal representatives of the 556 deceased Kedar Nath on hearing an appeal by the surviving appellants even though the decree against him has become final. This Court said in State ' of Punjab vs Nathu Ram(1). "The abatement of an appeal means not only that the decree between the appellant and the deceased respondent had become final, but also, as a necessary corollary, that the appellate Court cannot, in any way, modify that decree directly or indirectly. The reason is plain. It is that in the absence of the legal representatives of the deceased respondent, the appellate Court cannot determine anything between the appellant and the legal representatives which may affect the rights of the legal representatives under the decree. It is immaterial that the modification which the Court will do is one to which exception can or cannot be taken." No question of the Provisions of r. 4 of O.XLI overriding the provisions of r. 9 of O. XXII arises. The two deal with different stages of the appeal and provide for different contingencies. Rule 4 of 0 XLI applies to the stage when an appeal is filed and empowers one of the plaintiffs or defendants to file an appeal against the entire decree in certain circumstances. He can take advantage of this provision, but he may not. Once an appeal has been filed by all the plaintiffs the provisions of 0 XLI, r. 4 became unavailable. Order XXII operates during the pendency of an appeal and not at its institution. If some party dies during the ' pendency of the appeal, his legal representatives have to be brought on the record within the period of limitation. If that is not done, the appeal by the deceased appellant abates and does not proceed any further. There is thus no inconsistency between the previsions of r. 9 of O. XXII and those of r. 4 of O~. XLI, C.P.C. They operate at different stages and provide for (1) [1962] 2 S.C. R. 636 557 different contingencies. There is nothing common in their provisions which make the provisions of one interfere in any way with those of the other. We do not consider it necessary to discuss the cases referred to at the hearing. Suffice it to say that the majority of the High Courts have taken the correct view viz., that the appellate Court has no power to proceed with the appeal and to reverse and vary the decree in favour of all the plaintiffs or defendants under O. XLI, r. 4 when the decree proceeds on a ground common to all the plaintiffs or defendants, if all the plaintiffs or the defendants appeal from the decree and any of them dies and the appeal abates so far as he is concerned under O.XXII, r. 3. See : Ramphal Sahu vs Babu Satdeo Jha (1); Amin Chand vs Baldeo Sahai Ganga Sahai(2), Baij Nath vs Ram Bharose (3); Nanak vs Ahmad Ali (4); Pyarelal vs Sikhar Chand (5); Raghu Sutar vs Nrusingha Nath (6); Venkata Ram Rao vs Narayana (7); Sonahar Ali vs Mukbul Ali (8). The Bombay,, Calcutta and Madras High Courts have taken a differentview : see Shripad Balwant vs Nagu KushebaSatulal Bhattachariya vs Asiruddin ShaikhSomasundaram Chettiar vs Vaithilinga Mudaliar OrderXLI, r. 33 is of no greater help to the contention of the appellants that their appeal could continue even though the appeal by Kedar Nath had abated, as the Court could have passed a decree in favour of the rights and interests of Kedar Nath, deceased, as well. This rule reads : "The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, an( this power may be exer cised by the Court notwithstanding that the (1) I.L.R. [1953] 2 All. Lah.667 (3) I.L.R. [1953] 2 All. (6) A.I.R. 1959 Orissa 148. (7) A.I.R. 1963 A.P. 168 (8) A I.R. (9) I.R.R. (10) I.L.R. (11) I.L.R. 558 appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection : Provided that the Appellate Court shall not make any order under section 35A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order. " This rule is under the sub heading 'judgment in appeal '. Rule 31 provides that the judgment of the Appellate Court shall be in writing and shall state inter alia the relief to which the appellant is entitled in case the decree appealed from is reversed or varied. Rule 32 provides as to what the judgment may direct and states that the judgment may be for confirming, varying or reversing the decree from which the appeal is preferred, or, if the parties to the appeal agree as to the form which the decree in appeal shall take, or as to the order to be made in appeal, the Appellate Court may pass a decree or make an order accordingly. The reversal or variation in the decree would, therefore, be in accordance with what the appellant had been found to be entitled. The decree therefore, is not to be reversed or varied with respect to such rights to which the appellant is not found entitled. Rule 33 really provides as to what the Appellate Court can find the appellant entitled to. It empowers the Appellate Court to pass any decree and make any order which ought to have been passed or made in the proceedings before it and thus could have reference only to the nature of the decree or Order in so far as it affects the rights of the appellant. It further empowers the Appellate Court to pass or make such further or other decree or Order as the case may require. The Court is thus given wide discretion to pass such decrees and Orders as 559 the interests of justice demand. Such a power is to be exercised in exceptional cases when its non exercise will lead to difficulties in the adjustment of rights of the various parties. A case like the present is not a case of such a kind. When the legal representatives of the deceased appellant and the surviving appellants were negligent in not taking steps for substitution, the Court is not to exercise its discretion in favour of such a party. The discretionary power cannot be exercised to nullify the effect of the abatement of the appeal so far as Kedar Nath is concerned. In fact such an exercise of power will lead to the existence of two contradictory decrees between the heirs of Kedar Nath and the respondents, one passed by the appellate Court and another to the contrary effect by the Court below which has attained finality consequent on the abatement of the appeal in so far as they are concerned. This is always avoided. Rule 33 deals with a matter different from the matter dealt with by r. 9 of O. XXII and no question of its provisions overriding those of r. 9 of O. XXII or vice versa arises. In Mahomed Khaleel Shirazi & Sons vs Los Panneries Lyonnaises (1) it was held that O. XLI, r. 33 was not intended to apply to an appeal which was not a competent appeal against a party under the Code or under the Letters Patent 'of the High Court. This principle applies with equal force in the present case. The appeal by the surviving appellants is not competent in the circumstances of the case and, therefore, the provisions of 0. XLI, r. 33 are not applicable to it. We are, therefore, of opinion that the High Court could not have heard the appeal of the surviving appellants when the appeal by kedar Nath had (1) 53 I.A 84 560 abated as all the appellants had a common right and interest in getting a decree of ejectment against defendant No. 2 and such decree could have been on a ground common to all of them. The defendant cannot be ejected from the premises when he has a right to remain in occupation of the premises on the basis of the decree holding that Kedar Nath, one of the persons having a joint interest in letting out the property could not have ejected him. It is not possible for the defendant to continue as tenant of one of the landlords and not as a tenant of the others when all of them had a joint right to eject him or to have him as their tenant. We, therefore, dismiss the appeal with costs. Appeal dismissed.

IN-Abs

Nine persons including K instituted a suit for ejectment and recovery of rent against two defendants and obtained a decree, but on appeal, the District judge set aside the decree against defendant No. 2. The plaintiffs then filed a second appeal in the High Court on February 29, 1952, and while the appeal was pending K died on September 8, 1955. No application for bringing his legal representatives on the record was, however, made within the prescribed time, and the appeal abated so far as K was concerned. When the appeal of the appellants other than K came up for hearing on September 1, 1958, a preliminary objection was taken for the respondents that the entire appeal had abated on the ground that the interest of the surviving appellants and the deceased appellant were joint and indivisible and that in the event of the success of the appeal there would be two inconsistent and contradictory decrees. The appellants claimed that the appeal was maint. ainable on the grounds that the surviving appellants could have filed the appeal against the entire decree in view of the provisions of O. 41, r. 4, of the Code of Civil Procedure, that they were, therefore, competent to continue the appeal even after the death of K and the abatement of the appeal so far as he was concerned, and that the Court could have reversed or varied the whole decree in favour of all the original plaintiffs and could have granted relief with respect to the rights and interests of K as well. Held (1) that the provisions of r. 4 of 0. 41 of the Code of Civil Procedure were not applicable, since the second appeal in the High Court was not filed by anyone or by even some of the plaintiffs as an appeal against the whole decree, but was filed by all the plaintiffs jointly, and the surviving appel 550 lants could not be said to have filed the appeal as representing K. (2) that an appellate court had no power to proceed with the appeal and to reverse and vary the decree in favour of all the plaintiffs or defendants under O. 41, r. 4, of the Code of Civil Procedure, when the decree proceeded on a ground comm. on to all the plaintiffs or defendants, if all the plaintiffs or the defendants appealed from the decree and any of them died and the appeal abated so far as he was concerned under O. 22, r. 3. Ramphal Sahu vs Babu Satdeo Jha, I.L.R. 19 Pat. 870; Amin Chand vs Baldeo Sahai Ganga Sahai, I.L.R. ; Baij Nath vs Ram Bharose, I.L.R. 1953 (2) All. 434; Nanak vs Ahmad Ali, A.I.R. 1946 Lah. 399; Pyarelal vs Sikhar, Chand, I.L.R. 1957 M.P. 21; Raghu Sutar vs Narusingha Nath, A.I.R. 1959 Orissa 148 ; Venkata Ran Rao vs Narayana, A. I.R. and Sonahar Ali vs Mukbul Ali, A.I.R. 1956 Assam 164, approved. Shripad Balwant vs Nagu Kusheba, I.L.R. ; Satula Bhattachariya vs Asiruddin Shaikh, I.L.R. and Somasundaram Chettiar vs Vaithilinga Mudaliar, I.L.R. , disapproved. (3) that the provisions of O. 41, r. 33 were 'not applicable since the appeal by the surviving appellants was not competent in the circumstances of the case. Mohomed KhaleeJ Shirazi & Sons vs Lee Tanneries 53 I.A. 84, relied on.

ivil Appeal Nos. 300 301 of 1963. 562 Appeals by special leave from the award dated October 23, 196 of the Industrial Tribunal (111), Allahabad in Adjudication Case No. 33 of 1961. G.B. Pai, J. B. Dadwhanji, O. C. Mathur and Ravinder Narain, for the appellant in C.A. No. 300 of 1963 and the respondent in C.A. No. 301 of 1963. C.B. Agarwala, O. P. Lal and G. O. Mathur, for the respondents in C.A. No. 300 of 1963 and the appellants in C.A. No. 301 of 1963. May 3. The Western India Match Gompany; the Bareilly Branch of which is the appellant in the first of the two appeals before us, is engaged in the manufacture and sale of matches in India. The manufacture of matches is carried on by the company at its four factories at Ambernath, Madras, Calcutta and Clutterbuckgan j in Bareilly. At these four places the company has also four sales offices catering to the needs of the regions assigned to them. The sales office at Clutterbuckganj with which we are concerned in this appeal carries on its sales activities in the States of U.P., Punjab, Delhi, Himachal Pradesh, a part of Rajasthan and a part of Madhya Pradesh. According to the appellant each of these sales offices is independent of the factories of their respective regions and so the Bareilly Sales Office is quite independent of the "factory at Bareilly. As an incentive to larger production of matches the 0company introduced in 1945 a Production Bonus Scheme the details of which will be mentioned later. The scheme was applied at the beginning not only to the 1500 workmen engaged in the factory in making matches but also to the workmen working in the factory office, who numbered about 100. In 1947, the production bonus was withdrawn from the office staff of the factory, though it continued to operate as regards 563 the other workmen. The factory office staff raised a dispute on this question in 1957 and ultimately as a result of a decision of the Adjudicator given on March 13 1958, the factory office staff also became entitled to the benefits of the production bonus scheme on the same terms as the other workmen in the factory. The workmen of the sales office consisting of the clerical staff as also salesmen and inspectors of salesmen were however denied the benefits of the scheme, though it does appear that for a very short period in 1946 the sales office staff also received payments purporting to be production bonus. The Adjudicator 's decision extending the production bonus scheme to the factory staff was confirmed by this Court on March 17, 1961. It appears that during the pendency in this Court of the appeal against the Adjudicator 's order there was some discussion between the Union of which the sales office staff became members in 1957 or thereabout and the sales manager 'at Bareilly, in regard to extending the Production Bonus Scheme to the members of the sales staff, if the appeal in this Court was decided in favour of the factory office staff On March 13, 1961, the Union wrote to the sales manager reiterating the claim to Production bonus and pointing out that "discrimination between the employees of the same company in the matter of admissibility of item of wage was bound to lead to heartburning." The manager replied on May 22, 1961, characterizing this demand of the sales office staff as unreasonable to which the management could not agree. Ultimately, on August 18, 1961, the dispute which thus arose between the employers and the workmen was referred by the Government of U. P. to the Third Industrial Tribunal at Allahabad for adjudication. The dispute referred was described in these words: "Should the employers be required to pay production bonus to the workmen employed 564 in their sales office ? If so, with effect from what date and with what other details By a later amendment on December 4, 1961, the word " 'in" was substituted by the word "by". Though a number of matters were raised in issue, both the parties rightly 'concentrated at the hearing on the question whether the sales office and the Factory were independent units of production or formed integral parts of one and the same unit of industrial production. Whether or not an incentive scheme for better production should be introduced in any industry is essentially a matter for the management to decide. This position has been recognized by this Court in Titaghur Paper Mills Company Ltd. v Their Workmen (1). and again in Burn & Co., vs Their Workmen (2). While in view of the importance of industrial adjudication not interferng with what is purely management functions, the Court felt that industrial adjudication should not impose an incentive bonus on the management for the first time. the Court pointed out that the position would be different where an incentive bonus is already in force for themajority of the workmen. "We can see no reasonwe said in Burn Company 's Case"why where anincentive bonus scheme is in force in a concern for the majority of its workmen, the Tribunal should not be able to extend the same to the remainder of the workmen. " In view of this the appellant in this case tried to establish the fact that the sales office was entirely 'independent of the factory, while the workmen, on the other band, directed their efforts to showing that these are only two departments of the one and the same unit of production. Another question on which the parties joined issue was whether Inspectors, Salesmen and Retail Salesmen out of the sales office staff were workmen (1) [1959] Supp. 2 S.C.R. 1012 (2) 565 or not within the meaning of the U. P. Industrial disputes Act. The management contended that they were not workmen and so were not within the terms of reference; the respondents claimed that they were workmen within the meaning of the Act. Applying the principles laid down by this Court in several cases where the question whether two or more units of business under the same ownership form one industrial unit or more to the facts and circumstances of this case as disclosed by the oral and documentary evidence, the Tribunal came to the conclusion that the sales office and the factory form one single unit of industry and there being no reason for making any discrimination against the sales office staff on the question of production. bonus held that the employers should be required to pay production bonus to the workmen employed by their sales office also. The Tribunal directed that the sales office staff should be paid production bonus at the same rate at which it was given to the workmen of the factory and the factory office. The question whether inspectors, salesmen and retail salesmen employed by the sales office were workmen was also answered by the Tribunal in the affirmative so that they also became entitled to the benefit of the award. Being of opinion that the dispute should have been raised earlier by the workmen of the sales office, the Tribunal directed that the payment of production bonus to the sales office staff would start from the date the award became enforceable in law. Against this decision the employers, the Western India Match Co., Ltd., Bareilly, has appealed by special leave granted by this Court. The workmen have also appealed against the direction that the payment of production bonus should start from the date the award became enforceable in law. Three points have been raised before us on behalf of the employers in support of their appeal, 566 which has been numbered Civil Appeal No. 300 of 1963. The first and the main contention is that the Tribunal has erred in holding that the sales office and the factory formed parts of one and the same unit of industrial production. In any case, it was next urged, the Tribunal ought not to have extended to the sales office staff the production bonus scheme, for the factory and the factory office without any modification. Thirdly, it was contended that the Tribunal was wrong in holding that Inspectors, Salesmen and Retail Salesmen are workmen within the meaning of the U.P. This last contention can be disposed of easily. "Workman" has been defined in the U. P. Industrial disputes Act to mean any person employed in an industry to do any manual, supervisory, technical or clerical work for hire or reward. The Tribunal has accepted the evidence of the workmen 's witness Sexena that the writing work takes up 75% of the time of these categories of the sales staff Mr. Pai has characterized this finding as arbitrary. We do not think this criticism is justified The management did not file any document to show the list of duties of these persons but contented itself with filing an affidavit that no certified duty list of inspectors, .salesmen and retail salesmen has been circulated for travelling letters by the employers. A statement of duties of the salesmen and retail salesmen was filed on behalf of the workmen and was marked exhibit W. 61. The correctness of what is stated in this document has not been challenged by the management. On a consideration of the statement of duties as detailed in this document along with the oral testimony of the workmen 's witnesses, we are of opinion that the Tribunal cannot be said to have acted unreasonably or arbitrarily in believing that 75% of the time of these categories of workmen is devoted to writing work. It is not out of place to mention in this connection that on some previous occasions the management 567 itself has treated these categories as workmen within the meaning of the U. P. The management 's contention that the Tribunal has erred in thinking that the inspectors, salesman and retail salesmen are workmen must therefore be rejected, A more difficult question is whether the sales office and the factory form part of one and the same unit of industrial production or are independent of each other. It will be useful to clear the ground first of the confused notion which is expressed in para. 8 of the Company 's written statement that the employees of the Sales office have nothing to do with "Production". It does not require an economist to tell us that just as the man who tills the soil, and grows the crop is engaged in producing wealth for the community, so also is the person who reaps the harvest, the person who transports it from the field to a place of storage and the people who are engaged in completing the process by bringing it to the ultimate consumer. It is equally trite that just as a man who makes an article, be it bricks or steel or boxes or something else by using different materials in such a way as to make them more suitable to satisfy people 's wants is engaged in productive labour, so also is the person or persons who help in the ultimate achievement of satisfaction of those wants by bringing them to the consumer 's reach Therefore, it would be unreasonable to say that though those who make the matches are "producing" but those who sell them are not. Once, this misapprehension is cleared we are face to face with the centre of the problem. The principles to be followed in deciding these problems have so often been considered by this Court and the tests that can be applied to assist their solution have so frequently been laid down that further detailed discussion is un neccessary. It is enough to mention 568 that among the many tests that have been evolved, functional integrality, inter dependence or community of financial control and management; community of man power and of its control, recruitment and discipline, the manner in which the employer has organised the different activities, whether he has treated them as independent of one another or as inter connected and inter dependent, enjoy pride of place. But this list is by no means exhaustive. Nor can the tests and the principles that have been laid down be applied mechanically or by way of syllogism. A mechanical or syllogistic approach may appear to furnish the easiest way of solving a complicated problem, but the allurement of the easy way has to be resisted. For, while such ways are beset with risks of error in all branches of law, they are even more unsafe and inexpedient in industrial law, where sensitive problems of human relations have to be solved in the midst of all the complexities of modem industrial Organisation. That is why in applying the well settled tests and principles on these problems we have to bear in mind that while all tests that are possible of application should be applied, the value and importance to be attached to individual tests will vary according to the nature of the industrial activities and according to the nature of the disputes in which the problem has arisen, viz., whether it is in respect of lay off, retrenchment, production bonus, profit bonus or something else. Again, as in most questions which come before the courts, it is the substance which matters and not the form; and every fact and circumstance relevant to the ascertainment of the substance deserve careful attention. In the first place, functional integrality is writ large on the activities under consideration. The sales office cannot exist without the factory While 569 it is true that the sales office does from time to time handle the production of a sister concern of the company, the Assam Company, by far the largest portion of its activities is devoted to the marketing of what is made at the Bareilly factory and to a certain extent of the products of the Western India Match Company. It is equally clear that the factory itself cannot conveniently function without a sales organization. The inter dependence of the two activities the manufacture of matches in the factory and their sale by the sales office is further emphasized by the fact that the factory arranges its volume of production in accordance with the programmes made from time to time by the sales manager. Turning now to the question of finance, we find that the sales office and the factory have the same banking account, though separate cheque books are maintained and operated upon Even more important is the fact that the financial forecasts that are made for this Branch from time to time make no distinction between the disbursements in the sales office and the factory. This is clear from the fore cast for the period October December This forecast was prepared by the sales manager and bears the heading "Bareilly Sales Office" Under the head "Cash Disbursements" we find first some figures in respect of bonus, woods, splints, ' raw materials and general stores and then one inclusive item for salaries and wages for both factory and sales office. This document discloses the further interesting fact that excise duty a duty on the production of matches also finds place in the financial forecast, prepared by the sales manager for the sales office. The manner in which the financial forecast was prepared by the sales manager in respect of functions not only of, the sales office but also of the factory proper is eloquent testimony that the 570 company did consider them as inter dependent parts of the same production unit. Against all this, Mr. Pai seeks support for his contention that the sales office is independent of the factory, mainly in the rules and practice in connection with the recruitment, control and discipline of man power. The documents, including letters of appointment and standing orders, which have been produced undoubtedly show that the company has kept these matters distinct and separate between the factory and the sales office. It is also clear that separate muster rolls are maintained for the factory and the sales office, though it must be pointed out that a few workmen are common. Our attention has been drawn also to the fact that the sales office pays rent to the factory for the area occupied by it by means of book adjustments. These and some other details to which our attention has been drawn by Mr. Pai are of little assistance however to establish his proposition that the Tribunal hasacted arbitrarily in deciding that the sales officeand the factory are parts of one and the same industrial unit. We have to mention here that our purpose in referring to these details of evidence is not to find out whether the Tribunal has come to a wrong conclusion on fact, but only to see if it has made any mistake in applying the correct principles or has come to a conclusion that is unreasonable, arbitrary or perverse On an analysis of the materials on the record we are clearly of opinion that the correct principles have been applied in a fair and reasonable manner and the conclusion reached cannot be challenged before us. There remains for consideration Mr. Pai 's cotention that the Tribunal was not justified in 571 extending to the sales office staff the production bonus for the factory and the factory office without any modification. Mr. Pai complains that having come to the conclusion that production bonus should be extended to the sales office staff the Tribunal did not apply its mind to the further question that was referred to it, viz.; with what details the production bonus scheme should be applied to the sales office staff According to Mr. Pai the sales office staff, speaking generally, enjoys much higher rates of pay than the corresponding categories in the factory office and that this was a factor which ought to be taken into consideration in deciding whether the production bonus scheme in force in the factory for the factory staff should be applied to the sales office staff without any modification. If it were clear that the Tribunal had applied its mind to this aspect of the problem we would not have felt justified in upholding Mr. Pai 's complaint. As it appears however that this aspect was not considered, we think it will be in the best interests of industrial peace and of social justice that the Tribunal applies its mind to the question and then comes to a decision. We express no opinion whether Mr. Pai 's contention that the sales office staff enjoys higher pay scales than the factory staff is correct in fact or not nor on the question whether if this assertion be found to be correct any modification in the production bonus scheme would be called for. We confirm the Tribunal 's decision that the production bonus scheme should be extended to the sales office staff and remand the case to the Tribunal for decision after taking note of all relevant facts whether the production bonus scheme in force in the factory and the factory staff should be extended to the sales office staff with or without modification. 572 This disposes of the management 's appeal viz., Civil Appeal No. 300 of 1963. The workmen 's appeal Which is numbered Civil Appeal No. 301 of 1963 challenges the correctness of the Tribunal 's direction that the payment of production bonus should start from the date the award became enforceable in law. According to the workmen the payment of production bonus should have been directed to be made with effect from the date of reference, if not from the date of the demand. The question as to the date from which the benefit granted by an award should take effect must generally be left to the discretion of the Tribunal making the award and this Court ordinarily refuses to interfere with the exercise of that discretion. We are unable to find any special circumstances in this case that would justify any departure from our established practice. The Appeal No. 301 of 1963 is therefore dismissed. In view of the fact that the case is going back to the Tribunal for a decision of the question as mentioned above we think it proper to direct that the ultimate award by the Tribunal should be given effect from the same date from which the award now under appeal would have come into force. There will be no order as to costs in either of the appeals. Appeal No. 300 remanded. Appeal No. 301 dismissed.

IN-Abs

The appellant company was engaged in the manufacture and sale of matches in four places in India, including Bareilly, in which there were factories as well as sales offices. As an incentive to larger production of matches the company introduced in 1945 a Production Bonus Scheme which was made 561 applicable to workmen engaged in the factory in making matches as also to those working in the factory office. In 1947, it was withdrawn in its application to the sales office. The workmen of the sales office consisting of clerical staff as also salesmen and inspectors of salesmen made a claim to Production bonus painting out that there should be no discrimination between the employees in the same company. The company resisted the claim on the grounds : (1) that the sales office was entirely independent of the factory; and (2) that the salesmen, retail salesmen and inspectors employed by the sales office were not workmen within the meaning of the U.P. The facts showed : (1) that there was interdependence of the two activities viz., manufacture of matches in the factory and their sale by the sales office, inasmuch as (a) the sales office could not exist without the factory, (b) the factory itself could not conveniently function without a sales organization. and (c) the factory arranged its volume of production in accordance with the programme made from time to time by the sales manager; (2) that the sales office and the factory had the same banking account, though separate cheque books were maintained and operated upon ; (3) that the financial forecasts that were made for the Bareilly branch from time to time made no distinction between the disbursements in the sales office and the factory ; (4) the rules and practice in connection with the recruitment, control and discipline of man power, as also documents, including letters of appointment and standing orders and the muster rolls were kept distinct and separate between the factory and the sales office; and (5) the sales office paid rent to the factory fir the area occupied by it by means of book adjustments. The evideuce also showed that 75% of the time of the workmen in the sales office was devoted to writing work. Held that, on the facts, there was functional integrality and inter dependence or community of financial control and management of the sales office and the factory in the appellant company and that the two must be considered part of one and the same unit of industrial production. Held further, that the inspectors, salesmen and retail salesmen were workmen as defined in the U.P.

ivil Appeal No. 1115 of 1962. Appeals by special leave from the judgments and orders dated February 16,26, 1960, of the Punjab High Court in Civil Misc. No. 1212 C of 1959 and Regular First Appeal No. 44 of 1955. D.R. Prem and P.D. Menon, for the appellant. 469 Veda Vyasa, K. K. Jain, for P.C. Khanna, for respondent. April 30. The judgment of the Court was delivered by RAGHUBAR DAYAL J. The facts leading to this appeal, by special leave, against the orders of the high Court of Punjab are these. Ram Charan obtained a decree for money against the Unioun of India on January 6, 1955. The Union of India presented an appeal on April 6, 1955, in the High Court. Ram Charan, the sole respondent, filed a cross objection on July 31, 1955. On February 6, 1956 the High Court passed an order in connection with the surety bond. Ram Charan was represented at the proceedings. Ram Charan died on July 91, 1957. On March 18, 1958 an application was presented to the High Court on behalf of the appellant under O. XXII, r. 4, read with section 151, Code of Civil Procedure, stating that Ram Charan died on July 21, 1937, that the Divisional Engineer, Telegraphs, Ambala Cantonment, learnt of his death on February 3, 1958, and that the deceased had left as his legal representatives, an adopted son and a widow. It was prayed that these legal representatives be brought on record in the place of the deceased respondent. The affidavit filed in support of this application did not convey any further information and it was solemnly affirmed by the dependent that the averments in the affidavit were true to his belief The deponent was no other than the Divisional Engineer, Telegraphs, Ambala Cantonment. On May 13, 1958, the widow of Ram Charan applied that she alone was the legal representative of Ram Charan under a will and that the alleged adopted son was not the legal representative. The appellant 's application for bringing on record the 470 legal representatives of the deceased Ram Charan came up for hearing on May 14, 1958. The Court ordered the application to be heard at the time of the hearing of the appeal as it was pointed out that there was a difference of opinion in the Court as to whether limitation under 0. XXII of the Code started from the date of death or from the date of knowledge of death. Subsequently, on an application on behalf of the legal representatives, it was ordered that the question of abatement be decided first and thereafter the printing of the record be taken on hand. The application for substitution came up for decision on February 16, 1960. It was dismissed, the Court holding that the Union of India had failed to show that it was prevented from any sufficient cause from continuing the appeal. On February 26, 1960, the appeal itself was dismissed as having abated. On May 14, 1960, an application for leave to appeal to the Supreme Court was presented to the High Court. The heading of the application was described to be one for leave to the Supreme Court from the judgment dated February 16, 1960, in C.M. No. 1212/C of 1959 in R.F.A. No. 44 of 1955. This application was rejected on May 17, 1960. Thereafter, an application for special leave was filed in this Court. Special leave was prayed for appealing from the judgment of the High Court of Punjab in R.F.A.No.44 of 1955 and C.M. No. 1212 C/59 dated February 16/26 of 1960. The order granting special leave said: "That special leave be and is hereby granted to the petitioner to appeal to this Court from the judgment and order dated 16th day of February, 1960 and 26th day of February, 1960 of the Punjab High Court in Civil Miscellaneous No. 1212 C of 1959 and Regular First Appeal No. 44 of 1955. " A preliminary objection was taken to the effect that the appellant having not applied to the 471 High Court for leave to appeal against the order dated February 26, 1960 in Regular First Appeal, that order had become final and special leave could not be asked for from this Court in view of Order XIII, r.2 of the Supreme Court Rules, 1950, the rule being: "Where an appeal lies to the Supreme Court on a certificate issued by the High Court or other tribunal, no application to the Supreme Court for special leave to appeal shall be entertained unless the High Court or tribunal concerned has first been moved and it has refused to grant the certificate. " We do not see any force in this objection and reject it. The application for leave to appeal, though described as one against the judgment in the miscellaneous case and not against the order in the regular appeal, stated in paragraph I that the regular first appeal had been ordered to have abated and in paragraph 3 that it was a fit case in which necessary certificate for filing an appeal against the judgment passed by the Court in regular first appeal No. 44 of 1955 be granted. Both these statements refer to the proceedings in connection with the regular first appeal and not of the order on the miscellaneous application for substitution. Ground No. 2 referred to those proceedings. The application, therefore, was really an application for leave to appeal against both the orders. The High Court does appear to have construed that application in this manner. Its order dated May 17, 1960 stated : "The appeal was decided as having abated because the appellant failed to show sufficient cause for not bringing the legal 472 representatives of the deceased respondent within time." To appreciate the real contention between the parties before us, we may now give in brief, the reasons for the order of the High Court dated February 16, 1960. It may be pointed out that in the narration of facts the High Court stated that the application dated March 17, 1958, was filed under O. XXII, rr. 4 and 9 read with section 151 of the Code. ' he application, as printed on the record, did not purport to be under r. 9 of O. XXII, C.P.C. There is not a word in the application that the appeal had abated and that the abatement be set aside The error in this respect seemed to have further led to the error in stating that the reason for the delay given in the application was that the Divisional Engineer, Telegraphs, came to know about Ram Charan 's death on February 3, 1958, there being no reason mentioned in the application. It was just stated as a matter of fact that the Engineer had come to know of the death on February 3, 1958. The order states that some application was presented by the Union of India on May 14, and that it was stated therein that the interval between February 3 and March 17. 1,958, was spent in collecting information about the legal representatives of the deceased. This application, however, is not printed in the paper book. The High Court relied on the Full Bench case of its Court reported in Firm Dittu Ram Eyedan vs Om Press Co. Ltd., (1), which held that ignorance of the death of the defendant was not a sufficient cause for setting aside the abatement when an application to bring the legal representatives of ' the deceased on the record was made after the expiry of the period of limitation, as the law imposed an obligation on the person applying for bringing the legal representatives of the deceased on the record and he had, therefore, to show absence of want of care. The (1) (1960) 1 1. L. R. Punj 935 473 High Court held that the Union of India did not state either in its application dated March 17, 1958, or in the other application dated May 14, 1958, that the Government had not been careless in the matter and had been vigilant in keeping itself informed regarding the whereabouts of Ram Charan and that it would not have been difficult for the Government to have come to know of Ram Charan 's death, who lived in Ambala Cantonment, to which place the appeal related. The contentions raised for the appellant in this Court are : (1) That mere ignorance of death of the res pondent was sufficient cause for the appel lant 's inability to apply for the impleading of the legal representatives within time, unless it be that the appellant was guilty of some negligence or some act or omission which led to the delay in his making the application. (2) Once the respondent is served in the first appeal, no duty is cast on the appellant to make regular enquiries about the state of health of the respondent. (3) The expression 'sufficient cause ' should be liberally construed in order to advance the cause of justice. (4) The Court itself ' has inherent power to add legal representatives to do full justice to the party. (5) The High Court misapplied the decision of the Full Bench of its Court to the facts of the present case. We may say at once that there is no force in the fourth point. The Court is not to invoke its inherent 474 powers under section 151, C.P.C. for the purposes of impleading the legal representatives of a deceased respondent, if the suit had abated on account of the appellant not taking appropriate steps within time to bring the legal representatives of the deceased party on the record and when its application for setting aside the abatement is not allowed on account of its failure to satisfy the Court that there was sufficient cause for not impleading the legal representatives of the deceased in time and for not applying for the setting aside of the abatement within time. There is no question of construing the expression 'sufficient cause ' liberally either because the party in default is the Government or because the question arises in connection with the impleading of the legal representatives of the deceased respondent. The provisions of the Code are with a view to advance the cause of justice. Of course, the Court, in considering whether the appellant has established sufficient cause for his not continuing the suit in time or for not applying for the setting aside of the abatement within time need not be over strict in expecting such proof of the suggested cause as it would accept for holding certain fact established, both because the question does not relate to the merits of the dispute between the parties and because if the abatement is set aside, the merits of the dispute can be determined while, if the abatement is not set aside, the appellant is deprived of his proving his claim on account of his culpable negligence or lack of vigilance. This, however, does not mean that the, Court should readily accept whatever the appellant alleges to explain away his default. It has to scrutinize it and would be fully justified in considering the merits of the evidence led to establish the cause for the appellant 's default in applying within time for the impleading of the legal representatives of the deceased or for setting aside the abatement. 475 It is true, as contended, that it is no duty of the appellant to make regular enquiries from time to time about the health or existence of the opposite party, but it does not mean that the mere fact of the appellant 's coming to know of the respondent 's death belatedly will, by itself, justify his application for setting aside the abatement. That is not the law Rule 9 of O. XXII of the Code requires the plaintiff to prove that he was prevented by any sufficient cause from continuing the suit. The mere allegation about his not coming to know of the death of the opposite party is not sufficient. He had to state reasons which, according to him, led to his not knowing of the death of the defendant within reasonable time and to establish those reasons to the satisfaction of the Court, specially when the correctness of those reasons is challenged by the legal representatives of the deceased who have secured a valuable right on the abatement of the suit. It is not necessary to consider whether the High Court applied its earlier Full Bench decision correctly or not when we are to decide the main question urged in this appeal and that being the first contention Rules 3 and 4 of O. XXII, C.P.C. lay down respectively the procedure to be followed in case of death of one of several plaintiffs when the right to sue does not survive to the surviving plaintiffs alone or that of the sole plaintiff when the right to sue survives or of the death of one of several defendants or of sole defendant in similar circumstances. The procedure requires an application for the making of the legal representatives of the deceased plaintiff or defendant a party to the suit. It does not say who is to present the application. Ordinarily it would be the plaintiff, as by the abatement of the suit the defendant stands to gain. However, an application is necessary to be made for the purpose. If no such application is made within the time allowed by law, the suit abates to far as the deceased 476 Plaintiff is concerned or as against the deceased defendant. The effect of such an abatement on the suit of the surviving plaintiffs or the suit against the surviving defendants depends on other considerations as held by this Court in State of Punjab vs Nathu Ram (1) and Jhanda Singh vs Gurmukh Singh (2) . Any way, that question does not arise in this case as the sole respondent had died. It may be mentioned that in view of r. 11 of O.XXII, the words 'plaintiff ', 'defendant ' and 'suit 'in that Order include 'appellant ', 'respondent ' and`appeal ' respectively. The consequence of the abatement of the suit against the defendant is that no fresh suit can be brought on the same cause of action. Sub rule (1) of r. 9 bars a fresh suit. The only remedy open to the plaintiff or the person claiming to be the legal representative of the deceased plaintiff is to get the abatement of the suit set aside and this he can do by making an application for that purpose within time. The Court will set aside the abatement if it is proved that the applicant was prevented by any sufficient cause from continuing the suit. This means that the applicant had to allege and establish facts which, in the view of the Court, be a sufficient reason for his not making the application for bringing on record the legal representatives of the deceased within time. If no such facts are alleged,. none can be established and, in that case the Court cannot set aside the abatement of the suit unless the very circumstances of the case make it so obvious that the Court be in a position to hold that there was sufficient cause for the applicants not continuing the suit by taking necessary steps within the period of limitation. Such would be a very rare case. This means that the bare statement of the applicant that he came to know of the death of the other party more than three months after the death will not (1) [ ; (2) C. A. No. 344 of 1956 decided on April 10, 1962. 477 ordinarily be sufficient for the Court 's holding that the applicant had sufficient cause for not impleading the legal representatives within time. If the mere fact that the applicant had known of the death belatedly was sufficient for the Court to set aside the abatement, the legislature would have. expressed itself differently and would not have required the applicant to prove that he was prevented by any sufficient cause from continuing the suit. The period of limitation prescribed for making such an application is three months, under article 171 of the First Schedule to the Limitation Act. This is a sufficiently long period and appears to have been fixed by the legislature on the expectancy that ordinarily the plaintiff would be able to learn of the death of the defendant and of ' the persons who are his legal representatives within that period. The legislature might have expected that ordinarily the interval between two successive hearings of a suit will be much within three months and the absence of any defendant within that period at a certain hearing may be accounted by his counsel or some relation to be due to his death or may make the plaintiff inquisitive about the reasons for the other party 's absence. The legislature further seems to have taken into account that there may be cases where the plaintiff may not know of the death of the defendant as ordinarily expected and, therefore, not only provided a further period of two months under article 176 for an application to set aside the abatement of the suit but also made the provisions of section 5 of the Limitation Act applicable to such applications. Thus the plaintiff is allowed sufficient time to make an application to set aside the abatement which, if exceeding five months, be considered justified by the Court in the proved circumstances of the case. It would be futile to lay down precisely as to what considerations would constitute 'sufficient cause ' for setting aside the abatement or for the plaintiff 's not applying to bring the legal representatives of the deceased 478 defendant on the record or would be held to be sufficient cause for not making an application to set aside the abatement within the time prescribed. But it can be said that the delay in the making of such applications should not be for reasons which indicate the plaintiff 's negligence in not taking certain steps which he could have and should have taken. What would be such necessary steps would again depend on the circumstances of a particular case and each case will have to be decided by the Court on the facts and circumstances of the case. Any statement of illustrative circumstances or facts can tend to be a curb on the free exercise of its mind by the Court in determining whether the facts and circumstances of a particular case amount to `sufficient cause ' or not Courts have to use their discretion in the matter soundly in the interests of justice. It will serve no useful purpose to refer to the cases relied on for the appellant in support of its contention that the appellant 's ignorance of the death of the respondent is sufficient cause for allowing its application for the setting aside of the abatement and that in any case it would be sufficient cause if its ignorance had not been due to its culpable negligence or mala fides. We have shown above that the mere statement that the appellant was ignorant of the death of the respondent, cannot be sufficient and that it is for the appellant, in the first instance, to allege why he did not know of the death of the respondent earlier or why he could not know about it despite his efforts, if he had made any efforts on having some cause to apprehend that the respondent might have died. The correctness of his reasons can be challenged by the other party. The Court will then decide how far those reasons have been established and suffice to hold that the appellant had sufficient cause for not making an application to 479 bring the legal representatives of the deceased respondent earlier on the record. In the present case, the appellant had adopted a very wrong attitude from the very beginning. In its application dated March 17, it merely said that Ram Charan died on July 21, 1957, and that Shri Bhatia, the Divisional Engineer, Telegraphs, Ambala Cantonment, learnt about it on February 3, 1958. Shri Bhatia did not say anything more in his affidavit and did not verify it on the basis of his personal knowledge. Why he did not do so is difficult to imagine if. he came to know of the death on February 3, 1958. He was the best person to say that this statement was true to his knowledge, rather than true to his belief. Further, it appears from the judgment of the High Court that no further information was conveyed in the application dated May 13, 1958 which is not on the record. The most damaging thing for the appellant is that the application came up for bearing before the learned Single judge and at that time the stand taken by it was that limitation for such an application starts not from the date of death of the respondent but from the date of the appellant 's knowledge of the death of the respondent. The appellant 's case seems to have been that no abatement had actually taken place as the limitation started from February 3, 1958, when the appellant 's officer knew of the death of the respondent and the application was made within 3 months of that date. It appears to be due to such an attitude of the appellant that the application dated March 17, 1958 purported to be simply under r. 4 O. XXII and did not purport to be under r. 9 of the said Order as well and that no specific prayer was made for setting aside the abatement. The limitation for an application to set aside abatement of a suit does start on the death of the deceased respondent. Article 171, First Schedule to the Limitation Act provides that. It does not provide 480 the limitation to start from the date of the appellant 's knowledge thereof. The stand taken by the appellant was absolutely unjustified and betrayed complete lack of knowledge of the simple provision of the Limitation Act. In these circumstances, the High Court cannot be said to have taken an erroneous view about the appellant 's not establishing sufficient ground for not making an application to bring on record the representatives of the deceased respondent within time or for not making an application to set aside the abatement within time. We, therefore, see no force in this appeal and dismiss it with costs. Appeal dismissed.

IN-Abs

Ram Charan obtained a money decree against the Union of India. An appeal was filed against that decree in the High Court. Ram Charan respondent died on july 21, 1957. On March 18, 1958, an application was filed in the High Court under 0.22, R .4 read with section 151 of the Code by Civil Procedure stating that the respondent had died on July 21, 1957 and the Divisional Engineer, Telegraphs, learnt of his death on February 3, 1958 and the deceased had left his widow and an adopted son as his legal representatives. A prayer was made to bring the legal respresentatives of the deceased on record. The High Court dismissed the application on the ground that the appellant had failed to show sufficient cause for not bringing the legal representatives of the deceased on record within time. The appeal was also dismissed. In the appeal before this Court, it was contended on behalf of the appellant that the mere ignorance of death of the respondent was sufficient cause for the appellant 's inability to apply for the impleading of legal representatives within time unless the appellant was guilty of some negligence or some act or omission which led to delay in his making the application, that once the respondent was served no duty was cast on the appellant to make further enquiries about the state of health of the respondent, that expresssion sufficient cause ' should be liberally construed in order to advance the cause of justice, that the Court itself had inherent power to add legal representatives to do justice to the party and that the High Court misapplied the decision of the Full Bench 468 in Firm Dittu Ram Eyedan vs Om Press Co. Ltd. to the facts of the present case. Held that limitation for an application to set aside the abatement of an appeal starts on the death of the respondent and not from the date of the appellant 's knowledge thereof. Held also that the Court is not to invoke its inherent powers under section 151 C.P.C. for the purpose of impleading legal representatives of a deceased respondent, if the suit had abated on account of the appellant not taking appropriate steps within time to bring legal representatives of the deceased on the record and when its application for setting aside abatement was not allowed on account of its failure to satisfy the court that there was sufficient cause for not impleading the legal representatives of the deceased in time and for not applying for setting aside of the abatement within time. Held also that the expression sufficient cause ' is not to be liberally construed either because the party in default was the Government or because the question arose in connection with the impleading of the legal representatives of the deceased respondent. The Court should not readily accept whatever is alleged to explain away the default. The delay in making the application should not be for reasons which indicate the negligence of the party making the application in not taking certain steps which he could have and should have taken The court has to be satisfied that there were certain valid reasons for the applicant not knowing the death within a reasonable time. The bare statement of the applicant is not enough. Firm Dittu Ram Eyedan vs Om Press Co. Ltd. (1960) 1 I.L.R Punjab. 935 (F.B.), State of Punjab vs Nathu Ram ; and Jhanda Singh vs Gurmukh Singh C. A. No. 344 of 1936 dated 10.4.62, referred to.

67 of 1953. Petition under article 32 of the Constitution of India for a writ in the nature of habeas corpus. Veda Vyas (V. N. Sethi and section K. Kapur, with him) for the petitioner. M. C. Setalvad, Attorney General for India (G. N. Joshi, with him) for the respondents. 709 1953. April 16. The Judgment of the Court was delivered by PATANJALI SASTRI C.J. This is a petition under article 32 of the Constitution for the issue of a writ in the nature of habeas corpus directing the release of the petitioner Dr. Ram Krishan Bhardwaj who is a medical practitioner in Delhi and is now said to be under unlawful detention. The petitioner was arrested on the 10th March, 1953, under an order of the District Magistrate of Delhi made under section 3 of the Preventive Detention Act as amended. The grounds of detention were communicated to the petitioner on the 15th March, 1953. The first paragraph of that communi cation states that " the Jan Sangh, the Hindu Mahasabha and the Ram Rajya Parishad have started an unlawful campaign in sympathy with the Praja Parishad movement of Kashmir for defiance of the law, involving violence and threat to the maintenance of public order " as evidenced by the sub paragraphs which follow. The incidents referred to in sub paragraphs (a) to (1) are said to have ranged from the 4th to the 10th March, 1953, the date on which the petitioner was arrested, but they do not directly implicate the petitioner. They merely give particulars of the alleged unlawful activities of the three political organizations referred to above. Subparagraph (m) is important, as, on it is founded the first contention of Mr. Veda Vyas, the learned counsel for the petitioner. It runs as follows: "(m) On the evening of 11th March, 1953, there was very heavy brick batting indulged in by or at the instance of Jan Sangh and Mahasabha workers in Sabzimandi when the police dispersed a Jan Sangh and Hindu Mahasabha procession and several persons including policemen, journalists and other non officials were injured. An assault was made on Miss Mridula Sarabhai and Sri Dan Dayal one of her associates received a stab injury. " 710 It will be noticed that the incidents related in the sub paragraph are alleged to have taken place on the 11th March, the day after the petitioner was arrested and detained. Mr. Veda Vyas relies upon it as showing that the District Magistrate did not apply his mind to the alleged necessity for the detention of the petitioner as, if he had done so, he could not possibly have referred to what happened on the 11th March as a ground of justification for what he did on the 10th The so called grounds on which the detention is said to have been based must, it was suggested, have been prepared by some clerk or subordinate in the District Magistrate 's office and mechanically signed by him. The learned Attorney General explained that the incidents of the 11th March were referred to not as a ground for the arrest and detention of the petitioner, but merely as evidencing the unlawful activities of the movement organized by the Jan Sangh and the other political bodies of which the petitioner was an active member. The explanation is hardly convincing and we cannot but regard this lapse in chronology as a mark of carelessness. Notwithstanding repeated admonition by this Court that due care and attention must be bestowed upon matters involving the liberty of the individual, it is distressing to find that such matters are dealt with in a careless and casual manner. In view, however, of the statements in the affidavit filed by the District Magistrate before us that he carefully perused and considered the reports. and materials placed before him by responsible Intelligence Officers and that he was fully satisfied that the petitioner was assisting the movement and agitation started by the Jan Sangh, etc. , we are not prepared to hold that the District Magistrate failed to apply his mind to the relevant considerations before he made the detention order as suggested for the petitioner. The second contention raised by Mr. Veda Vyas is more formidable. As already stated, the first paragraph of the statement. of grounds, while it sets out the unlawful activities of the, three political bodies, 711 does not directly implicate the 'petitioner in any of them. The second paragraph shows how the petitioner was concerned in those activities. It begins by stating " The following facts show that you are personally helping and actively participating in the above mentioned movement which has resulted in violence and threat to maintenance of public order". Then follow four sub paragraphs (a) to (d) which refer to private meetings of the Working Committee of the Jan Sangh in January and February, 1953, where, it is alleged, it was decided to launch and intensify the campaign and the petitioner made inflammatory speeches. Sub paragraph (e) on which this contention is based runs thus : "(e) You have been organising the movement by enrolling volunteers among the refugees in your capacity as President of the Refugee Association of the Bara Hindu Rao," a local are& in Delhi. It is argued by Mr. Veda Vyas that this ground is extremely vague and gives no particulars to enable the petitioner to make an adequate representation against the order of detention and thus infringes the constitutional safeguard provided in article 22 (5). Learned counsel relies on the decision in Atma Ram Vaidya 's case(1) where this Court held by a majority that the person detained is entitled, in addition to the right to have the grounds of his detention communicated to him, to a further right to have particulars " as full and adequate as the circumstances permit " furnished to him so as to enable him to make a representation against the order of detention. It was further held that the sufficiency of the particulars conveyed in the " second communication " is a justiciable issue, the test being whether it is sufficient to enable the detained person to make a representation " which, on being considered, may give relief to the detained person". On this interpretation of article 22 (6) two questions arise for consideration : first, whether the ground mentioned in subparagraph (e) is so vague (i) 712 as to render it difficult, if not impossible, for the peti tioner to make an adequate representation to the appropriate authorities, and second, if it is vague, whether on vague ground among others, which are clear and definite, would infringe the constitutional safeguard provided in article 22(5). On the first question, the Attorney General argued that the grounds must be read as a whole and so read, the ground mentioned in sub paragraph (e) could reasonably be taken to mean, that the petitioner was organizing the movement by enrolling volunteers from the 4th to 10th March in the area known as Bara Hindu Rao. This interpretation is plausible, but the petitioner, who is a layman not experienced in the interpretation of documents, can hardly be expected without legal aid, which is denied to him, to interpret the ground in the sense explained by the AttorneyGeneral. Surely, it is up to the detaining authority to make his meaning clear beyond doubt, without leaving the person detained to his own resource for interpreting the grounds. We must, therefore, hold that the the ground mentioned in sub paragraph (e) of paragraph 2 is vague in the sense explained above. On the second question, there is no considered pronouncement by this Court, though in some cases it would appear to have been assumed, in the absence of any argument, that one or two vague grounds could not affect the validity of the detention where there are other sufficiently clear and definite grounds to support the detention. Mr. Veda Vyas now argues that even though the petitioner might succeed in rebutting the other grounds to the satisfaction of the Advisory Board, his representation might fail to carry conviction so far as the ground mentioned in sub paragraph (e) was concerned in the absence of particulars which he could rebut and the Advisory Board might, therefore, recommend the continuance of his detention. The argument is not without force, as the possibility suggested cannot altogether be ruled out. The Attorney General drew attention to the recent amendment of section 10 of the Preventive Detention 713 Act as a result of which the petitioner would be entitled to be heard in person before the Advisory Board if he so desires and, it was said that he would thus have the opportunity of getting the necessary particulars through the Board who could call upon the appropriate Government to furnish particulars if the Board thought that the demand for them was in the circumstances just and reasonable. The petitioner would thus suffer no hardship or prejudice by reason of sufficient particulars not having been already furnished to him. The question however is not whether the petitioner will in fact be prejudicially affected in the matter of securing his release by his representation, but whether his constitutional safeguard has been infringed. Preventive detention is a serious invasion of personal liberty and such meagre safeguards as the Constitution has provided against the improper exercise of the power must be jealously watched and enforced by the Court. In this case, the petitioner has the right, under article 22(5), as interpreted by this Court by a majority, to be furnished with particulars of the grounds of his detention "sufficient to enable him to make a representation which on being considered may give relief to him. " We are of opinion that this constitutional requirement must be satisfied with respect to each of the grounds communicated to the person detained, subject of course to a claim of privilege under clause (6) of article 22. That not having been done in regard to the ground mentioned in sub paragraph (e) of paragraph 2 of the statement of grounds, the petitioner 's detention cannot be held to be in accordance with the procedure established by law within the meaning of article 21. The petitioner is therefore entitled to be released and we accordingly direct him to be set at liberty forthwith. Petition allowed. Agent for the petitioner : Ganpat Rai. Agent for the respondent : G. H. Rajadhyaksha.

IN-Abs

Under article 21 (5) as interpreted by an earlier decision of this court a person detained under the Preventive Detention Act is entitled, in addition to the right to have the ground of his detention communicated to him, to a further right to have particulars as full and adequate as the circumstances permit furnished to him as to enable him to make a representation against the order of detention and the sufficiency of particulars conveyed in the second communication is a justiciable issue, the test being whether they are sufficient to enable the detained person to make a representation which on being considered may give him relief. The constitutional requirement that the grounds must not be vague must be satisfied with respect to each of the grounds communicated to the person detained subject to the claim of privilege under el. (6) of article 22 of the Constitution. Where one of the grounds mentioned was "you have been organising the movement (Praja Parishad Movement) by enrolling volunteers among the refugees in your capacity as President of the Refugee Association of Bara Hindu Rao": Held, that this ground was vague and even though the other grounds were not vague the detention was not in accordance with the procedure established by law and was therefore illegal. Dictum: Preventive detention is a serious invasion of personal liberty and such meagre safeguards as the Constitution has provided against the improper exercise of the power must be jealously watched and enforced by the Court.

minal Appeal No. 172 of 1962. Appeal by special leave from the judgment and order dated March 7, 1962, of the Mysore High Court in Criminal Revision Case No. 100 of 1961. B. Gopalakrishnan, for the appellant. B. R. L. Iyengar and P. D. Menon, for the respondent. May 8. The judgment of the Court was delivered by RAGHUBAR DAYAL J. This appeal by special leave is directed against the order of the High Court of Mysore rejecting the reference by the Sessions Judge, Shimoga Division, recommending the quashing of the commitment order of the Magistrate committing the accused to the Sessions for trial of offences under sections 307 and 326, I.P.C., on the ground that the Magistrate could not have taken cognizance of the offences without the sanction of the State Government in view of the provisions of sections 132 and 197 of the Code of Criminal Procedure. The case against the appellant was started on the complaint of one Kenchappa who alleged that 674 the Sub Inspector and another person had severely beaten one Thimma and that the Sub Inspector, when forcibly taking away Thimma and requested by Kenchappa to excuse Thimma if he had misbehaved, wantonly fired from his revolver at Hanumanthappa and Shivalingappa. It Is on this complaint that, after preliminary enquiry, the Magistrate committed Nagraj, the appellant, to the Court of Session for trial. The facts of the incident, according to the The facts of the incident, according to the appellant and the basis of the counter case, are these. The appellant was a Sub Inspector of Police in the State of Mysore. He was posted at Yagati, Kadur Taluk, in September 1959. On September 7, 1959, he arrested one Gidda, manufacturing illicit liquor and sent him with the constable to the police station. Thereafter, he arrested Thimma who was supposed to be in league with Gida in manufacturing liquor. When Thimma was being taken to the police station by the Sub Inspector and a constable a crowd of about 20 or 30 persons rushed at them, surrounded them and the police officials attacked them and rescued Thimma. Nagraj asked those people not to resort to violence, but to remain calm. The people however, did not pay heed to the advice, caught the constable and asked Nagraj to stay there till one Kenchappa came. Upon this, the Sub Inspector again told them to go away without creating any trouble and said that there was no reason for him to wait for Kenchappa. The people threatened him and the constable with dire consequences if they left the place. just then Kenchappa came and then these persons encircled the Sub Inspector and the constable and the Sub Inspector, apprehending danger to his life and that of the constable, first fired his revolver in the air and when the people pelted stones at him and grappled with him, two shots went off from the revolver and injured two persons, Hanumanthappa and Shivalingappa. Kenchappa snatched 675 the revolver, leather bag with the ammunition pouch and the two mahazars prepared by the SubInspector regarding the prohibition case. The people beat the Sub Inspector and carried him to a pond saying that they would throw him into it. They were, however, released at the remonstrance of one Basappa. The persons who are said to have attacked Nagraj that day have also been committed to the Court of Session for trial, of offences under ss, 147, 332, 341 and 395 read with s.149, though prosecuted for offences under sections 143, 147, 149, 224, 225, 395 and 34, I.P.C. The Sessions judge made the reference for the quasbing of the commitment of the a appellant as it appeared that the two cases arose out one incident that the Sub Inspector was at the time discharging his duties, that while discharging his duties he had to disperse an unlawful assembly by force as his own life and that of his subordinate were in jeopardy and that therefore previous sanction of the Government under section 197 of the Code was necessary, for the Court 's taking cognizance of the offence against him as the Power of dismissing a Sub Inspector of Police vested in the Government. He was also of opinion that even if the Sub Inspector had fired without any justification as alleged by the complainant, sanction under section 132 of the Code was necessary. He observed : "Now, it cannot be gainsaid that at that time he was clearly on duty and was taking Thimma to the Police station in the discharge of his official duty as a Sub Inspector. A large number of persons then surrounded him and rescued Thimma. It cannot also hence be denied that there was an unlawful assembly which the SubInspector was entitled to disperse by force. Now section 132 of the Cr. P.C. is clearly a bar to 676 the prosecution of police officers purporting to act under Chapter IX of the Cr. P. C. which deals with unlawful assemblies without the sanction of the local Government. " The High Court rightly observed that the Sessions judge was wrong in practically accepting the version of the appellant that he was surrounded by a number of persons who constituted an unlawful assembly and that they rescued Thimma and that therefore he was entitled to disperse the unlawful assembly by force. The High Gourtheld that the Sub Inspector of Police could be removed from service by the Deputy Inspector General of Police and that therefore no question of sanction under section 197 arose. It further held that before a Court could hold that the cognizance of the case had been taken by the Magistrate without sanction of the Government under section 132, it must be established that there was an unlawful assembly and that the police officer purported to disperse the assembly under any of the sections 128 to 131 of the Code. The High Court stated later : "Section 132 Cr. P.C. has nothing to do with the ingredients of any offence. It is a protection against prosecution. In order to obtain its benefit the accused person need not prove that the acts complained of were done under circumstances mentioned in Section 132 Cr. In other words, he must place before the judge materials and circumstances justify ing an inference that there was an unlawful assembly and the acts complained of were Durported to have been done while dispersing that assembly. " The High Court further held that it is for the Sessions judge to decide on facts established in 677 the case whether section 132 Or. P.C. was applicable and if he came to the conclusion that the facts of the case brought it within the provisions of section 132, Cr. P.C., the Sessions judge was at liberty to reject the complaint holding that it was barred under section 132, Cr. P.C. Lastly, the High Court suggested that the Sessions case against the other party be tried first and that if after its trial the Sessions judge was satisfied that the complaint against the accused was barred under section 132 Or. P.C., it would be appropriate for him to reject that complaint on that ground alone. Learned Counsel for the appellant has raised four contentions in this Court : (1) The appellant as Sub Inspector of Police could be dismissed by the State Government alone and that, therefore, sanction under section 197 of the Code was necessary for his prosecution of the offences spurported to have been committed in the discharge of his duty. (2) That a police officer cannot be prosecuted without a sanction from the State Government for an offence which the police officer alleges, took place during the course of performance of duties under Ch. IX of the Code. (3) That when both a case and a counter case have been committed for trial to the Sessions Court it could be said that the appellant has prima facie established his version of the incident and that his producing a copy of the committal order in the counter case is sufficient for holding that sanction under section 132, Or. P.C. was necessary. (4) That it is not necessary for the police officer to prove conclusively that he was dispersing an unlawful assembly before he can raise the plea of want of sanction as a bar from prosecution. We are not satisfied that the appellant, the Sub Inspector can be dismissed by the State 678 Government alone. Section 4 (c) of the Mysore Police Act, 1908 (Act No. V of 1908), hereinafter called the Act, provides that unless there be something repugnant in the subject or context the word "inspector ' in the Act, subject to such rules and orders as the Government may pass, includes 'Sub Inspector. ' Section 8 states that the appointment of Inspectors of such grades as Government may from time to time prescribe shall be made by Government and the dismissal of Inspectors of all grades shall vest in Government. It is on the basis of these two provisions that it is submitted for the appellant that it is the Government which can dismiss him as he, though a Sub Inspector, is an Inspector for the purposes of section 8 of the Act. The contention is not sound. It is the dismissal of Inspectors of all grades which vests in the Government. It appears there are Inspectors of various grades. Inspectors of some grades were appointed by the Government but the dismissal of Inspectors of all grades is vested in the Government. In this context the word 'Inspector ' in section 8 will not include Sub Inspector as he could not possibly be an Inspector of any grade. Subsection (1) of section 26 of the Act further provides that any officer authorised by sub section (3) in that behalf may dismiss any police officer below the grade of Assistant Superintendent and sub section (3) provides that subject to the provisions of section 8, the InspectorGeneral shall have authority to punish any Police Officer below the grade of Assistant Superintendent. It follows that the Inspector General of Police can dismiss a Sub Inspector who is a police officer below the grade of Assistant Superintendent. No sanction therefore, of the State Government for the prosecution of the appellant was necessary even if he had committed the offence alleged while acting or purporting to act in the discharge of his official duty. Before dealing with the other contentions raised we may refer to the provisions of Ch. IX of 679 the Code of Criminal Procedure which has the heading 'unlawful assemblies. ' Section 127 empowers any Magistrate or officer in charge of a police station to command any unlawful assembly or any assembly of five or more persons likely to cause a disturbance of the public peace, to disperse and further provides that it shall be the duty of the members of such assembly to disperse on command. If such a command is not obeyed by the members of such an assembly, section 128 authorizes the Magistrate or the officer in charge of the police station to use civil force to disperse the assembly. Civil force can also be used even without giving such command, if the conduct of the assembly shows a determination not to disperse. Such officer can call upon any male person to assist in the dispersing of the assembly and can also arrest and confine the persons who form part of the assembly. Sections 129 and 130 deal with the use of military force in the dispersing of such assembly and of the duty of the officer commanding the armed forces called upon to disperse such assembly. Section 131 authorises any commissioned officer of the armed forcees, in the absence of any communication with any Magistrate, to disperse such an assembly with the help of armed forces in certain circumstances. The officers and persons who act under these provisions for the purpose of dispersing, the unlawful assembly are protected from prosecution under the provisions of section 132 on which the appellant relies. The relevant portion of this section, for the purpose of this appeal, reads : "No prosecution against any person for any act purporting to be done under this Chapter shall be instituted in any. Criminal Court, except with the sanction of the State Government; and (a) no Magistrate or police officer acting under this Chapter in good faith, x x 680 shall be deemed to have thereby committed an, offence". It is clear that when a complaint is made to a criminal court against any police officer and makes allegations indicating that the police officer had acted or purported to act under sections 127 and 128 of the Code and in so doing committed some offence complained of, the Court will not entertain the complaint unless it appears that the State Government had sanc tioned the prosecution of that police officer. If the allegations in the complaint do not indicate such facts, the Court can have no ground for looking to the sanction of the Government and in the absence of such a sanction for refusing to entertain the comp laint. It must proceed with the complaint in the same manner as it would have done in connection with complaints against any other per son. The occasion for the Court to consider whether the complaint could be filed without the sanction of the Government would be when at any later stage of the proceedings it appears to the Court that the action of the police officer complained of appears to come within the provisions of Ss. 127 and 128 of the Act. This can be either when the accused appears before the Court and makes such a suggestion or when evidence or circumstances Prima facie show it. The mere suggestion of the accused will not, however be sufficient for the Court to hold that sanction was necessary. The Court can consider the necessity of sanction only when from the evidence recorded in the: proceedings or the circumstances of the case it be possible to ' hold either definitely that the alleged criminal conduct was committed or was probably committed in connection with action under sections 127 and 128 of the Code. It is contended for the appellant that if the question of sanction is not decided in the very first 681 instance when a complaint is filed or when the accualleges that he could not be prosecuted for the alleged offences without the sanction of Government in view of section 132 of the Code, the protection given by this section will be nugatory as the object of giving this protection is that the police officer be not harassed by any frivolous complaint. There may be some such harassment of the accused, but the Court has no means to hold in the circumstances alleged that the prosecution of the accused was in connection with such action as the complaint did not disclose the necessary circumstances indicating that fact and the bare word of the accused cannot be accepted to hold otherwise. just as a complainant is likely to omit mentioning the facts which would necessitate the sanction of Government before he can prosecute the accused, the accused too is likely to make such allegations which may lead to the rejection of the complaint for want of sanction. It is well settled that the jurisdiction of the Court to proceed with the complaint emanates from the allegations made in the complaint and not from what is alleged by the accused or what is finally established in the case as a result of the evidence recorded. In this connection reference may be appropria tely made to the observations of this Court in connection with prosecution to which the provisions of section 197 of the Code apply. In Matajog Dobey vs H. C. Bhari (1), in connection with the question "is the need for sanction to be considered as soon as the complaint is lodged and on the allegations therein contained?", it was said : "The question may arise at any stage of the proceedings. The complaint may not disclose that the act constituting the offence was done or purported to be done in the discharge of official duty; but facts subsequently coming to light on a police or judicial inquiry or even in (1) ; ,935, 682 the course of the prosecution evidence at the trial, may establish the necessity for sanction. Whether sanction is necessary or not may have to be determined from stage to stage. The necessity may reveal itself in the course of the progress of the case. " It follows, therefore, that the contention that a police officer cannot be prosecuted without the sanction from the State Government for an offence which he alleges to have taken place during the course of his performing the duties under ("h. IX of the Code cannot be accepted. His mere allegation will not suffice for the purpose and will not force the Court to throw away the complaint of which it had properly taken cognizance on the basis of the allegations in the complaint. The third contention really is that the Court can hold that sanction wag necessary if the appellant could prima facie show that his action which is complained of was in connection with the performance of his duties under ss.127 and 128 of the Code. Assuming that this is the position in law, it does not appear from the record which consists of the orders of the Sessions judge and the High Court that the evidence in this case prima facie establishes that the appellant 's contention that his acts complained of were such for which he could not be prosecuted without the sanction of the Government. In this case the High Court has definitely said that the Sessions judge did not arrive at any such conclusion and had made the reference on a mere acceptance of the accused 's version, for which there was no justification. It is contended for the appellant that the mere fact that some of the persons alleged to have formed part of the unlawful assembly were prosecuted by the State and have also been committed by the Magistrate to the Sessions Court for trial establishes prima facie that the accused 's contention about the necessity 683 for sanction under section 132 of the Code. is correct. The commitment of the other accused is on the basis of evidence in that case and cannot be legally taken into consideration to decide the question raised in this case. The question is to be decided on the evidence in this case and not on the basis of evidence and inferenccs drawn in the other case. The third contention, therefore, has no force. The next question and the real question to decide then is to determine what the accused has to show in order to get the benefit of the provisions of section 132 of the code in the case. To get such a benefit and to put off a clear decision on the question whether his conduct amounts to an offence or not, the appellant has to show (i) that there was an unlawful assembly or an assembly of five or more persons likely to cause a disturbance of the public peace ; (ii) that such an assembly was commanded to disperse ; (iii) that either the assembly did not disperse on such command or, if no command had been given; its conduct had shown a determination not to disperse ; and (iv) that in the circumstances he had used force against the members of such assembly. He has to establish these facts just in the same manner as an accused has to establish any other exception he pleads in defence of his conduct in a criminal case. It is sufficiently well settled that it is for the prosecution to prove the offence in the sense that the offence was committed in the circumstances in which no recourse to an exception could be taken and, therefore, if the accused establishes such circumstances which either conclusively establish to the satisfaction of the Court or make the Court believe them to be probable that the case comes within the exception that would be sufficient compliance on the part of the accused with respect to his proving the exception to prove which the onus was on him. In the present case therefore the accused has to show to the Court that the alleged offences were committed during the performance of his 684 duties in the circumstances narrated above. On his so showing, it would be the duty of the Court to hold that the complaint could not have been entertained without the sanction of the Government under section 132 of the Code. To show this is not equivalent to the accused establishing facts which would be necessary for him to take advantage of the provisions of section 79 of the Indian Penal Code as had been thought in some of the cases cited to us. Section 79, I.P.C. deals with circumstances which when proved makes acts complained of not an offence. The circumstances to be established to get the protection of section 132, Or. P.C. are not circumstances which make the acts complained of no offence, but are circumstances which require the sanction of the Government in the taking of cognizance of a complaint with respect to the offences alleged to have been committed by the accused. If the circumstances to be established for seeking the protection of section 132 of the Code were to make the alleged conduct no offence, there could be no question of a prosecution with the sanction of the State Government. This distinction had not been considered in the cases we were referred to. It is not necessary to refer to those cases which were ultimately decided on the basis that the allegations either in the complaint or taken together with what had appeard from the evidence on record justified the conclusion that the action complained of came under sections 127 and 128 of the Code and that no prosecution in con nection with such an action could be instituted in the Court without the sanction of the State Government. The last question to consider is that if the Court comes at any stage to the conclusion that the prosecution could not have been instituted without the sanction of the Government, what should be the procedure to be followed by it, i e., whether the Court should discharge the accused or acquit him of the charge if framed against him or just drop the procee dings and pass no formal order of discharge or 685 acquittal as contemplated in the case of a prosecution under the Code. The High Court has said that when the Sessions judge be satisfied that the facts proved bring the case within the mischief of section 132 of the Code then he is at liberty to reject the complaint holding that it is barred by that section. We consider this to be the right order to be passed in those circumstances. It is not essential that the Court must pass a formal order discharging or acquitting the accused. In fact no such order can be passed. If section 132 applies, the complaint could not have been instituted without the sanction of the Government and the proceedings on a complaint so instituted would be void,, the Court having no jurisdiction to take those proceedings. When the proceedings be void, the Court is not competent to pass any order except an order that the proceedings be dropped and the complaint is rthe relating to Bombay and reads thus: "(1) The body known as the Bombay State Road Transport Corporation and the Board thereof, referred to in the notification of the Government of Bombay, No. 1780/5, dated the 16th November, 1949 (hereinafter referred to as the existing Corporation ' and 'Board ' respectively) shall, notwithstanding any defect in, or invalidity of the enactment or order under which they were constituted, be deemed for all purposes to have been validly constituted as if all the provisions of the said notification had been included and enacted in this section and this section had been in force continuously on and from the said date, and accordingly (a) all action by, and all transactions with, the existing Corporation or Board, including any action or transaction by which any property, asset or right was acquired or any liability or obligation whether by contract or otherwise, was incurred, shall be deemed to have been validly and lawfully taken or done; and (b) no suit, prosecution or other legal proceeding shall lie against the Government of Bombay or any member of the 694 Board or any officer or servant of the existing Corporation in respect of any action taken by, or in relation to the setting up of, the existing Corporation or Board merely on the ground of any defect in, or invalidity of, the enactment or order under which the existing Corporation or Board was constituted. (2) On the establishment of a Corporation under section 3 in the State of Bombay (hereinafter referred to as 'the New Corporation ') (a) the existing Corporation and Board shall be deemed to be dissolved and shall cease to function; (b) all property and assets vesting in the existing Corporation shall vest in the new Corporation; (c) all rights, liabilities and obligations. of the existing Corporation, whether arising out of any contract or otherwise, shall be the rights, liabilities and obligatorily, respectively, of the new Corporation; and (d) all licences and permits granted to all contracts made with, and all instruments executed on behalf of the existing Corporation or Board shall be deemed to have been granted to, made with, or executed on behalf of, the new Corporation and shall have effect accordingly. " It will be clear from these provisions that the old Corporation was recognised as having always had valid legal status and deemed to have been properly incorporated. On the establishment of a Corporation under section 3 of the Act of 1950 the old 695 Corporation was dissolved. But all action by and transaction with the old Corporation including any action or transaction by which any property or asset etc., was acquired by or for the old Corporation was deemed to have been validly or lawfully taken or done. It is common ground that in consequence of the passing of the Act of 1950 the Bombay Act of 1950 stood impliedly repealed and was in fact expressly repealed 'by the Bombay Act 29 of 1955. The provisions which we have set out above clearly show that the State Transport Corporation having been incorporated by an Indian law is a Company. Since, however, the compensation to be awarded for the acquisition is to be paid only by the Corporation and no portion of it was paid by the Government, could it be said that the terms of the proviso to sub section (1) of section 6 have been satisfied ? It is contended by the learned Attorney Generalon behalf of the respondent that the funds of the Corporation have themselves come out of public revenue inasmuch as they consist of moneys provided by the State of Bombay. Even assuming that the funds of the Corporation consist only of the moneys which have been provided by the State of Bombay it is difficult to appreciate how they could be regarded as part of the public revenue. No doubt, the source of the funds would be public revenue but the funds themselves belong to the Corporation and are held by it as its own property. They cannot, therefore, be regarded as 'public revenue ' in any sense. It was then said by reference to several provisions of the Act that the Government is entitled to exercise control over the Corporation, that the profits earned by the Corporation would go to the Government, that if the Corporation was wound up all its assets would also go to the Government and that, therefore, the Corporation could be regarded as noth ing more than a limb of the Government. Even though that may be so. the Corporation is certainly not a department of Government but is a separate legal 696 entity and, therefore, moneys coming out of public revenues whether invested, loaned or granted to it would change their original character and become the funds or assets of the Corporation when they are invested in or transferred or loaned to it. While, therefore, the terms of the proviso could be said to have been satisfied because compensation is to be paid by the Corporation, the acquisition will be bad because the provisions of Part VII of the Land Acquisition Act have not been complied with. In order to get out of this difficulty the learned Attorney General argued that the State Transport Corporation is a local authority. The expression "Local authority" is not defined in the Land Acquisition Act but is defined in section 3 (31) of the , as follows : " 'local authority ' shall mean a municipal committee, district board, body of port commissioners or other authority legally entitled to, or entrusted by the Government with, the control or management of a municipal or local fund:" The definitions given in the , govern all Central Acts and Regulations made after the commencement of the Act. No doubt, this Act was enacted later in point of time than the Land Acquisition Act ; but this Act was a consolidating and amending Act and a definition given therein of the expression "local authority" is the same as that contained in the earlier Acts of 1868 and 1887. The definition given in section 3 (3 1) will, therefore, hold good for construing the expression "local authority" occurring in the Land Acquisition Act. We have already quoted the definition. It will be clear from the definition that unless it is shown that the State Transport Corporation is an 697 "authority ' and is legally entitle i to or entrusted by the Government with control or management of a local fund it cannot be regarded as a local authority. No material has been placed before us from which it could be deduced that the funds of the Corporation can be regarded as local funds. It was no doubt submitted by the learned Attorney General that the Corporation was furnished with funds by the Govern ment for commencing its business ; but even if that were so, it is difficult to appreciate how that would make the funds of the Corporation local funds. Learned Attorney General then relied upon the provisions of section 29 of the Bombay State Road Transport Act, 1950, which provides that the Corporation shall for all purposes be deemed to be a local authority. No doubt that is so. But the definition contained in this Act cannot override the definition contained in the of 1897 which alone must apply for construing the expression occur ring in a Central Act like the Land Acquisition Act unless there is something repugnant in the subject or context. Though land acquisition is now in the concurrent list and therefore, the State can legislate, the Bombay Act not having received the President 's assent, cannot prevail against the meaning of the expression 'local authority ' in that Act. No repugnancy is pointed out. Then again, the Act of 1948 had empowered the Province of Bombay, among other provinces, to appoint Road Transport Corporations and conferred power on the Provincial Governments under sections 5 and 6 to deal with compensation and winding up of Corporations so appointed. In pursuance of this power and after the commencement of the Constitution, the Bombay Act of 1950 had been enacted by the State Legislature of Bombay. But by the repeal of the Act of 1948 by the Central Act of 1950 the foundation for the continuance and existence of the Bombay Act 698 of 1950 disappeared. Moreover, since section 41 of the Central Act provided that a Corporation shall be deemed to be a local authority within the meaning , and not within the meaning of any other law, the provisions of section 29 of the Bombay Act could in no circumstances be said to survive. In view of all this the learned Attorney General did not press his argument on the point further. In our view the acquisition impugned in this case having been made ' for the benefit of a Corporation, though for a public purpose, is bad because no part of the compensation is to come out of public revenues and the provisions of Part VII of the Land Acquisition Act have ' not been complied with. We, therefore, allow the appeals and decree the suits of the appellants with costs in all the courts. Appeals allowed.

IN-Abs

The appellant, a Sub Inspector of Police in Mysore State, was committed to Sessions Court for trial on the complaint of K. K alleged that the appellant and another person had severely beaten T, and that the appellant, when forcibly taking away T, and requested by K to excuse T, wantonly fired on two persons. The appellant 's case, on which his counter case is based, is that while he and a constable, after arresting, were taking T to the P. )lice Station, 20 or 30 persons attacked them and rescued T. Not heeding to appellant 's advice to desist from violence. the crowed asked him to wait till K came. On appellant 's refusal, the crowd threatened. just then K came. Apprehending danger to their lives, the appellant first fired in the air, but when the people pelted stones and grappled him, two shots went off injuring two persons. K snatched his revolver and two mazahars. prepared by the appellant in T 's case, and the people beat him. These persons have also been committed to the Sesions Court for trial. The Sesions Judge made the reference for quashing the commitment of the appellant, holding that the Magistrate could not have taken cognizance of the offences without the sanction of the State Government in view of the provisions of sections 132 and 197 Code of Criminal Procedure. The High Court rejected the reference of the Sessions Judge for quashing the commitment order. On appeal by special leave, the appellant contended that (1) the appellant could be dismissed by the State Government alone and, therefore, sanction under section 197 Code of Criminal Procedure was necessary ; (2) a police officer cannot be prosecuted without a sanction for an offence which the police officer alleges took place in course of his duty ; (3) when a case and 672 a counter case are both committed to Sessions Court, it should be inferred that the appellant has prima facie established his version of the incident and that his Producing a copy of the committal order in the counter case is sufficient for holding that sanction under section 132 Code of Criminal Procedure was necessary, and (4) it is not necessary for the police officer to prove conclusively that he was dispersing an unlawfull assembly before he can raise the plea of want of sanction. Hold that (1) in view of the provisions of sections 4 (C), 8 and sub sections (1) & (3) of section 26 of the Mysore Police Act, the Inspector General of Police can dismiss Sub Inspector and therefore, no sanction of the State Government for prosecution of the appellant was necessary even if he had committed the offences alleged while acting or purporting to act in discharge of his official duty ; (2) the court can consider the necessity of sanction only when from the evidence recorded in the proceedings or the circumstances of the case it be possible to hold either definitely that the alleged offence was committed or was probably committed in connection with action under sections 127 and 128 of the Code. If at any stage of the proceedings it 'appears to the court that the action of the police officer complained of comes within the provisions of sections 127 and 128 of the Code, the court should hold that sanction was necessary. The jurisdiction of the court to proceed with the complaint emanates from the allegations made in the complaint and not from what is alleged by the accused or what is finally established in the case as a result of the evidence recorded. Majajoj Dobey vs H. C. Bhari, ; , referred to. (3) in the present case it does not appear from the record that the evidence prima facie establishes the appellant 's contention that be could not be prosecuted without the sanction of the Government. This question is to be decided on the evidence in this case and not on the basis of evidence and inferences drawn in the other case ; (4) in order that the appellant can get the benefit of the provisions of section 132 of the Code, he has to establish that (i) there was an unlawful assembly likely to cause disturbance of public peace, (ii) the assembly was commanded to disperse,(iii) the assembly did not disperse on the command or, if no command had been given, its conduct had shown a determination not to disperse; and (iv) in the circumstances he had 673 used force against the members of such assembly. This he has to do in the same manner as an accused has to establish an exception he pleads in his defence. Therefore, the accused in the present case has to show to the court that the alleged offences were committed during the performance of his duties and on his so doing the court would hold that the complaint could not proceed without the sanction of the Government under section 132 of the Code. Held further, that if the court decides that section 132 of the Code applies to the case the proceedings on the complaint instituted without the sanction would be void and the proper order for it to pass would be that the proceeding be dropped and the complaint rejected.

Appeal No. 1 of 1962. Appeal from the judgment and decree dated September 10, 1957, of the Kerala High Court in Second Appeal No. 42 of 1954 (I.T.) T. section Venkataraman and V. A. Seyid Muhammad, for the appellant. A. V. Viswanatha Sastri, G. B. Pai, Shakuntala Sharm and K. P. Gupta for respondent No. 1. 1963. May 8. The judgment of the Court was delivered by HIDAYATULLAH J. This is an appeal on a certificate by the High Court of Kerala against its judgment and decree dated September 10, 1957. The suit out of which this appeal arises, was filed by the appellant Kunju Kesavan to redeem an Otti created by one Bhagavathi Parameswaran in favour of 638 one Krishnan Marthandan on 5.5.1091 M.E., for 3500 fanams. Subsequently, Krishnan Marthandan created some chittoti. Bhagavathi Parameshwaran made a gift of the property to his wife Bhagavathi Vailiyamma on 9.3.1103 M.E., by Exh. Bhagavathi Valli died on 4.11.1105 M.E. She had an only son Parameswaran Sivaraman who was married to Parvathi Meenakshi and had a son named Vasudevan. Sivaraman, according to the plaintiff, left Travancore in 1096 M.E., and both sides have taken it for granted that he died thereafter. Meenakshi and Vasudevan, claiming to be the heirs, jointly sold the jenmom rights on 12.4.1123 M.E., to the appellant Kunju Kesavan, and he brought the present suit for redemption of the otti, offering to pay 3500 fanams in equivalent money and for improvements, if any, as determined by the court. The suit was valued at 3500 fanams (about Rs. 500/ ) which was the amount of the otti, and the claim was for redemption of the otti and possession of the fields from the defendants who were in possession. The suit was resisted by the first defendant (respondent No. 1). Defendants 2 and 3 (respondents 2 and 3) filed a written statement, but do not appear to have taken much interest thereafter. The first respondent admitted some of these facts. He, however, averred that the document executed by Bhagavathi Parameshwaran was not meant to be acted upon and Bhagavathi Valli and others never obtained any rights in the jenmom by Exh. He also contended that if Bhagavathi Valli got any rights, they were subject to a prior charge of the decree of the District Court, Trivandrum, in O. section No. 36 of 1100 M.E., and that in an auction sale held on 3.4.1114 M. E., the jenmom rights were purchased by the decree holders, who were the heirs of Krishnan Marthandan and from whom the first respondent obtained the sale deed. He claimed to have thus obtained the jenmom rights as also the otti rights. 639 The first respondent admitted that Sivaraman had left India in 1096 M.E., but denied the allegation that letters were received from him till II 00 M.E , or that till 1108 M E., some information was being received about him. He asserted that right from 1096 M.E., none heard from him or of him, and submitted that Sivaraman must have died in 1096 M.E., or was not alive on 9.3 1103 M.E., the date of the gift to Bhagavathi Valli. According to him, on Bhagavathi Valli 's death, her sister Narayani and Narayani 's daughter Gouri were heirs and Meenakshi and Vasudevan were not her heirs and thus they never got the jenmom rights. Alternatively, he contended that even if they did obtain any jenmom rights, they lost them by the auctionsale in O.S. No. 36 of 1100 M.E., to the auctionpurchasers. The first respondent, therefore. submitted that the transaction by sale in favour of the present appellant gave him no rights; on the other hand, as the auction purchasers were allowed to continue in possession as full owners with the consent express or implied or the acquiescence of Vasudevan and Meenaksi, full title resulted to him. The parties are Ezhavas, and in the absence of a special exemption under the Act, they would be governed by the ' Travancore Ezhava Act, 1100 (Act III of 1100) in the matter of succession and partition. One of the contentions tried in the case relates to this exemption, it being contended that Bhagavathi Valli had applied for exemption from part IV of the Act, and was thus governed not by its terms but by the general Marumakkathayam law. , The two courts below decreed the suit. The Temporary District Munsiff of Trivandrum held that the plaintiff was entitled to redeem the otti and valued the improvements at Rs. 1367/13/4. An appeal was filed by the present first respondent, and the other side cross objected. The appeal and the crossobjection were dismissed. On further appeal by the 640 first defendant, the High Court reversed the decision of the two courts below, holding that the plaintiff had not obtained a valid title to the equity of redemption by the sale deed in his favour, and was not entitled to redeem the property. The plaintiff has now appealed to this Court on a certificate by the High Court. A preliminary objection has been raised about the competency of the certificate granted by the High Court. It is contended that the suit was valued at 3500 fanams, and this valuation governs the suit for the purpose of the certificate, and the amount or value being below the mark, the certificate was wrongly issued by the High Court and ought to be cancelled. Alternatively it is contended that if the valuation was more than Rs. 10,000, the trial court had no jurisdiction to try the suit. The present appeal is against the judgment of the High Court which reversed the decision of the court below, and if the valuation was above the mark, the certificate was properly granted by the High Court since an appeal as of right would lie. An appeal must satisfy two tests of valuation. The amount or value of the subject matter of the suit in the court of first instance and the amount or value of the subject matter in dispute on appeal to this Court must both be above the mark. There are, however, cases in which the decree or final order involves directly or indirectly some claim or question to or respecting property above the mark. Such cases are also appealable. Ordinarily, the valuation in the plaint determines the valuation for the purposes of appeal. A plaintiff, who sets a lower value on a claim which he is required to value according to the real or market value, cannot be permitted to change it subsequently, because this would amount to approbation and reprobation. But in those cases in which the plaint is not required to be valued in 641 this way, a question may arise as to the proper value of the claim both in the court of first instance and on appeal to this Court. The word 'indirectly ' in such cases covers the real value of the claim which is required to be determined quite apart from the valuation given in the plaint. In this case, the High Court found the value to be Rs. 42,000 and Rs. 80,000 at the two material times. It is obvious that the plaintiff was not required to value his plaint on the real or market value of the property but on the price for redemption. He was not, therefore, concluded by the valuation given in the plaint. He had asked for possession of the property after redemption, and that property as the High Court hag found, is well above the mark in value. The certificate was, therefore, properly granted. The attack on the jurisdiction of the court of first instance must also fail. The suit as valued was properly laid in the court of first instance, and in any case, such an objection cannot be entertained now. The preliminary objection is, therefore, rejected. The main question in this appeal is whether Meenakshi and Vesudevan had any title to the property and whether they could transmit any title to the appellant. This depends on whether the Ezhava Act applies or the ordinary Marumakkatha yam law. The ordinary Marumakkathayam law has a system of inheritance in which the descent is traced in the female line. It is conceded that if the Marumakkathayam law is applicable, Meenakshi and Vasudevan, who were the daughter in law and son 's son of Bhagavathi Valli, were not heirs to her. The Ezbava Act was passed to define and amend, among others, the law of succession and partition among the Ezhavas. In its application, it excluded Ezhavas domiciled in Travancore, who were following Makkathayam. By section 2 of the Ezhava 642 Act, the Act could be extended to Ezhavas who followed Makkathayam. No question has been raised before us that it was not so extended and the arguments proceeded on the assumption that it was, indeed, the answering respondent claimed that Bhagavathi Valli had opted out of part IV under section 32 of the Act, and this could only be if the Act was applicable to her. The appellant contended. as we shall show presently, that Bhagavathi Valli was governed by the Ezhava Act. 'Makkathayam ' means gift by the father. In the Ezhava Act, Makkathayam property is defined to mean property obtained from the husband or father by the wife or child or both of them, by gift, inheritance or bequest. The property in suit was gifted by Bhagavathi Parmeswaran to his wife Bhagavathi Valli, and obtained the character of makkathayam property. The first question, therefore, raised by Dr. Seyid Muhammed, counsel for the appellant, is that though the gift was to Bhagavathi Valli co nomine, it operated, under the law applying to makkathayam property, to confer equal benefits upon Bhagavathi Valli and her issue howlow so ever. Reference in this connection is made to section 32 of the Act which makes a special provision for the partition of makkathayam property and provides: "32. Makkathyam property divisible among wife and children equally. Except where a contrary intention is expressed in the instrument of gift or bequest, if any, makkathayam property acquired after the date of the passing of this Act shall be liable to be divided among the wife and each of the children in equal shares : Provided that, in the partition of makkathayam property, the issue how low so ever of a 643 deceased child shall be entitled to only such share as the child itself, if alive would have taken. " According to the answering respondent, the settlement deed, Exh. III, gave the suit property exclusively to Valliyamma and some other property to the grandson Vasudevan and thereby evinced an intention contrary to the operation of section 32. Dr. Seyid Muhammed submits that the ordinary rule of law was that the property was impartable and was always shared by a female of a marumakkathyam tarwad with her thavazhee, and cited a passage from M.P. Joseph 's book on the Principles of Marumakkthayam Law (1926), pp. 52,53, in support of this contention. He also refers to the observations of a Division Bench in Narayanen Narayanen v, Parwathi Nangali (1), where it was held that a gift by the rather (known as makkathayam) to his wife was ordinarily intended to benefit the wife and the children of the donor and though the property was usually registered and acquired in the name of the mother, it was always held in common by them. He contends that section 32 made a departure and imposed partibility on the makkathayam property and the only intention that must appear must be in favour of impartibility, and such an intention cannot be spelled out of Exh. Section 32 makes the makkathayam property divisible among wife and children equally. The provision is in part VII which deals with partition. It is not possible to say that by the contrary intention only impartibility could be imposed. There is nothing to show that impartibility was the rule in respect of makkathayam property. The two passages only show that ordinarily the benefit went to the thavazhee as a whole. What the law did was to define the rights on partition of makkathayam property and laid down that on partition the shares would be equal (1) 644 unless a contrary intention was expressed. The reading suggested by Dr. Seyid Muhammed cannot be accepted as the only reading. If one goes by the document, Exh. III, it is clear that there was such an intention implicit in it. The donor gave some properties to his wife, and others to his grandson. His son was then unheard of for years. He thus divided his properties between his wife and grandson and the intention is manifest that each was to take exclusively. Dr. Seyid Muhammed next contends that the property was either shared by Bhagavathi Valli with her son and son 's son as shown in the proviso to section 32, quoted above, or it belonged to her exclusively. In either case, be contends Vasudevan would have an interest and could transmit it to the appellant. He argues that if the property was shared by Bhagavathi Valli with Sivaraman and Vasudevan, then, Vasudevan would have the right to redeem the otti as a person interested, and so would the present appellant, as a transferee from him. Alternatively, if the property became that of Bhagavathi Valli alone, then, succession to that property would be governed by sections 18 and 19 of the Ezhava Act, read with Explanation II, which explanation governs the whole of part IV where sections 18 and 19 figure. These sections and the explanation read : "18. Devolution of self acquired or separate property of a female. On the death of an Ezhava female, the whole of her self acquired or separate property left undisposed by her at her death shall develove on her own thavazhee. If she dies leaving her surviving no members of her thavazhee but her husband and members of her mother 's thavazhee, one half of such property shall devolve on her husband and the other half on her mother 's thavazhee. In the absence of the husband the mother 's thavazhee shall take the whole; and in the absence of the 645 mother 's thavazhee the husband shall take the whole." "19. Devolution of such property in the absence of members of her or her mothers thavazhee or husband. On the death of an Ezhava female, leaving her surviving neither members of her thavazhee nor other members of her mother 's thavazhee nor husband but only the thavazhee of her grandmother or of her other more remote female ascendants, her self acquired or separate property left undisposed of by her at her death shall devolve on such thavazhee, the nearer excluding the more remote. " x x x x " 'Explanation II. The expression 'children ' in the case of an intestate male and the expression 'thavazhee ' in the case of an intestate female shall, for the purpose of Part IV of this Act, include the issue of such intestate male or female how low so ever. " From the explanation, it would appear that the expression 'thavazhee ' in the case of an intestate female includes her issue how low so ever, and the word 'issue ' indicates both males and females. Reading this expression in connection with section 18, Dr. Seyid Muhammed contends that on the death of Bhagavathi Valli, the whole of her separate property left undisposed of by her at her death, devolved on her own thavazhee, that is to say, her issue how lowso ever. In this connection, a question of great nicety was also argued before us as to whether Sivaraman could be said to have survived Bhagavathi Valli or to have died earlier. In the absence of evidence, we need not embark upon an inquiry by the light of presumptions as to when Sivaraman can be said 646 to have died. In the document executed in favour of the answering respondent, Exh. R, dated 1 7 1121 M.E., it is quite clearly stated by the predecessors in title of the answering respondent that Sivaraman was then dead. This constitutes an admission which. has neither been withdrawn nor shown to be incorrect, and is thus binding upon the answering respondent. It follows that whether Sivaraman survived Bhagavathi Valli or died before her, Vasudevan succeeded, as an 'issue ' within the expression 'how low so ever ' of the Explanation, at least to a fractional interest in the property. He would thus be in a position to transfer that interest to the appellant, and the appellant would be a 'person interested ' for the purpose of redeeming the otti. But this can only be if 'lie provisions regarding succession under the Ezhava Act were applicable to Valli. Though in the pleadings, there is no mention that Bhagavathi Valli, had secured an exemption from the Ezhava Act, parties appeared to have joined issue on this subject. The answering respondent filed in the Court a copy of a Gazette notification which, so it was claimed, mentioned Bhagavathi Valli 's name among the persons who were granted exemption from part IV of the Ezhava Act. Section 33, under which such an exemption from the Act could be claimed, reads : "33. (1) On an application made within six months from the commencement of this ' Act (i) by an individual member of an Ezhava tarwad with reference to the provisions of part IV, x x x x the Government may, after making such enquiry as may be necessary and on being 647 satisfied as to the truth of the application, exempt by a notification in the Government Gazette such individual member. .from the operation of the said provisions of this Act. " The plaintiff was cross examined about the address of Bhagavathi Valli to prove that it was the same as shown in the notification. Evidence was also led by the answering respondent to show that Bhagavathi Valli had applied for exemption and obtained it. The appellant did not lead any evidence to show the contrary. It is contended before us that the notification or the deposition of the aforesaid witness cannot be looked into when there is no proper plea or issue about the exemption. It is contended that the plaintiff was taken by surprise when the High Court considered this point, as he did not get sufficient opportunity to rebut it, which he would have done if it had been pleaded and an issue had been framed. In our opinion, the parties understood that the only issue in the case was the application to Bhagavathi Valli of the rules of succession contained in part IV of the Ezhava Act. The appellant was cross examind regarding Bhagavathi Valli 's address, and D.W.1, an advocate, gave evidence that Exh. II was the notification, which showed the exemption obtained by Bhagavathi Valli. The trial judge assumed that Bhagavathi Valli had been exempted from the provisions of part IV of the Ezhava Act, but he felt that did not affect the devolution of makkathayam property according to the provisions of section 32 of the Ezhava Act. He was, therefore, of the opinion that after Bhagavathi Valli 's death, Bhagavathi Valli 's sister Narayani and Narayani 's daughter, Gouri, did not acquire any right in the property. In the appeal court, the learned District Judge observed that in the notification there were more 648 than one Bhagavathi Valli, and therefore, it was impossible to say whether Bhagavathi Valli, the donee under Exh. III, was at all mentioned in the notification. We do not think that the plaintiff in the case was taken by surprise. The notification must have been filed with the written statement, because there is nothing to show that it was tendered subsequently after obtaining the orders of the court. The plaintiff was also cross examined with respect to the address of Bhagavathi Valli, and the only witness examined on the side of the defendant deposed about the notification and was not cross examined on this point. The plaintiff did not seek the permission of the court to lead evidence on this point. Nor did he object to the reception of this evidence. Even before the District judge, the contention was not that the evidence was wrongly received without a proper plea and issue but that the notification was not clear and there was doubt whether this Bhagavathi Valli was exempted or not. The parties went to trial fully understanding the central fact whether the succession as laid down in the Ezhava Act applied to Bhagavathi Valli or not. The absence of an issue, therefore, did not lead to a mistrial sufficient to vitiate the decision. The plea was hardly needed in view of the fact that the plaintiff made the following plea in the replication: "The suit property was obtained as makkathayam property, by Bhagavathi Valli, under the Ezhava Act. And as per the provisions in the said Act, the said property was obtained exclusively by Vasudevan, subsequent to the death of the said Bhagavathi Valli and Sivaraman." and the notification was filed to controvert his allegation. In our opinion, the subject of exemption was properly raised between the parties and considered in the High Court and the courts below. The High 649 Court differed from the District Court with regard to the notification and held that Bhagavathi Valli was exempted from the operation of part IV of the Ezhava Act. We shall now consider whether the finding on this part of the case given by the District judge or that given by the High Court is correct. II is a notification issued in 1102 M.E. It reads : "Whereas the undermentioned persons have applied to the Government, under Section 33 (1)(i) of the Travancore Ezhava Regulation, Act 3 of 1100 M.E, praying to exempt them from the provisions of Part IV of the said regulation, and whereas the Government have become convinced of the truth of their application, on making enquiries. The Government have exempted each of the following persons, from the provisions of Part IV of the Travancore Ezhava Regulation, Act 3 of 1100 M.E. Huzur, Trivandrum. (By order) 8th January 1927 K. George Chief Secretary to Government." "section No. Full name of the person. Address. Bhagavathi Valli belong Thottuvarambu ing to the branch of Bha Bungalow, Kat gavathi Bhagavathi of akampalli Paku Pinarummoottu tarwad thi, Trivandrum Taluk. 171. Bhagavathi Narayani of do Pinarummootu tarwad 172. Narayani Gouri of do " Pinarummootu tarwad 650 section No. Full name of the person Address "183. Narayanan Lakshmanan Vanchiyoor Pa of Pinarummototu kuthi, Trivand rum." "185. Bhagavathi Valli of do Pinarummoottu 186. Bhagavathi Narayani do It was contended by the answering respondent that Bhagavathi Valli at No. 170 is this Bhagavathi Valli. His witness, Mathan Kuruvila, an advocate, deposed that Bhagavathi Valli shown at No. 170 was Bhaga vathi Valliamma and Bhagavathi Narayani at No. 171 was her sister and Narayani Gouri at No. 172 was Narayani 's daughter. The plaintiff admitted that he had seen Bhagavathi Narayani on several occasions, that their house was called Thottuvarambu, that Pinarummoottu Veedu was the name of the tarwad house, that Thottuvarambu Veedu is in Katakam Palli Pakuthi, and that he did not know whether Gouri was also residing in Thottuvurambu Veedu. Dr. Seyid Muhammed refers to a number of documents in which the address of Bhagavathi Valli was shown as Pinarummoottu Veedu in Vanchiyoor Pathirikari Muri. These documents were of the years 1928 to 1938. They are exhibits C, D, K,L,M, Q and R. He contends that in all these documents except one (Exh. Q), the address of Bhagavathi Valli or of her sister was shown as Pinarummoottu Veedu in Vanchiyoor Pathirikari Muri which is not the address shown in Exh. II and that Bhagavathi Valli at No, 170 was not this Bhagavatht Valli. In Exh. Q, however, Bhagavathi Narayani, deposing in an earlier suit in 1110 M.E. (1935), gave 651 her address as "Pinarummoottu Veedu in Vanchiyoor Pathirikari Muri and now in Thottuvaramba Bungalow in Katakampulli Pakuthi" and stated that she had an elder sister by name Bhagavathi Valli who was residing in the Veedu. It is, therefore, clear that the tarwad had two places of residence, one Veedu in Vanchiyoor Pathirikari Muri, and the other, a bungalow called Thottuvaramba in Katakampalli Pakuthi. One of these addresses is given in Exh. It would, therefore, follow that the address as given in Exh.11 does not show that this was some other Bhagavathi Valli. Indeed the points which identify the suit Bhagavathi Valli with the Bhagavathi Valli mentioned at No. 170 are numerous. The name is correctly described. It is also a fact that she belonged to the Bhagavathi Bhagavathi branch. Further, she was of Pinarummoottu tarwad. Then follow two other names, namely, Bhagavathi Narayani and Narayani Gouri who also belonged to the same branch and tarwad and who could be none other than her sister and her niece. Even the address is correct. It is, therefore, quite clear that the High Court was right in holding that the identity had been established. The observation of the learned District judge that there were many Bhagavathi Vallis in the list is not borne out on the record of this case, because the only other Bhagavathi valli mentioned at No. '185 may or may not be the same Bhagavathi Valli whose name is mentioned in conduction with one Narayanan Lakshmanan of Pinarummoottu, Vanchiyoor Pakuthi, Trivandrum. In the other notification, under which exemption from part VII of the Act was notified, the 'branch of Bhagavathi Bhagavathi of Pinarummoottil tarwad was again shown to be at Thottuvaramba Bungalow in Katakampalli Pakuthi in Trivandrum Taluk, while Pinarummoottil tarwad was shown as at Pathirikari Muri in Vahchiyoor Pakuthi in Trivandrum. This again proves that the tarwad had two houses which were occupied by different branches. 652 We are satisfied that the exemption under the Act has been duly proved in this case. Since Bhagavathi Valli was not subject to part IV of the Ezhava Act, it is obvious that under the pure Marumakkathayam law, Meenakshi and Vesudevan were not her heirs, but Bhagavathi Narayani and her daughter Gouri. Of these Gouri Narayani joined in executing the document 'R ' in favour of the answering respondent, which was executed by the legal representatives of the original mortgagee. In our opinion, therefore, the High Court was right in holding that the present appellant was not entitled to redeem the otti, having never enjoyed the jenmom rights. The appeal, therefore, must fail and is dismissed with costs. Appeal dismissed.

IN-Abs

The property in the suit originally belonged to one Bhag avathi Parameswaram who created an otti in favour of one Krishnan Marthandam for 3500 fanams (about Rs. 500/ ). Subsequently the latter created a chittoti, Bhagavathi Parameswaram some years later (in 1163 M.E.) made a gift of the property to his wife Bhagavathi Valli. Bhagavathi Valli died in 1105 M.E. She bad an only son Sivaraman who was mar ried to Parvathi Meenakshi and had a son named Vasudevan. Sivaraman left Travancore in 1096 M.E. Both sides are agreed that he died thereafter. But there is no aggreement as to the date of his death. &ad Vasudevan claiming 635 to be the heirs jointly sold the jenmom rights in 1123 M.E. to the present appellant. The appellant brought a suit for the redemption of the otti and recovery of possession of the property from the defendant (present respondent No. 1). The defendant denied that Bhagawathi Valli ever got the jenmom right. He claimed to have obtained both the jenmom right as well as other rights. According to him on Bhagavathi Valli 's death her sister B. Narayani and Narayani 's daughter Gouri were heirs through whom he traced his title. He further contended that even if Meenakshi and Vasudevan got any jenmom right they lost it by the auction sale in O.S. No. 36 of 1100 M. E. For these reasons it was contended that the plaintiff had no title to sue. It is admitted by both parties that the case is governed by the Travancore Ezhava Act, 1100. The trial court and the first appellate court decreed the suit but the High Court reversed the decision of the courts below holding that the plaintiff had not obtained a valid title to the equity of redemption by the sale deed in his favour and was not entitled to redeem the property. The plaintiff thereupon appealed to this Court on a certificate granted by the High Court. A preliminary objection was raised by the respondent about the competency of the certificate granted by the High Court. It was contended that since the suit was valued at 3500 fanams (Rs. 500/ ) this valuation governed the suit for the purpose of the certificate and this value being below the prescribed minimum under article 133 of the Constitution the certificate was not competent. It was alternatively contended that if the valuation was more than Rs. 10,000 the trial court had no jurisdiction to try the suit. It was contended on behalf of the appellant that the ordi nary rule of law was that property was impartable and that section, 32 of the Act made a departure and imposed partibility on the Makkothayam property and the expression 'contrary intention ' contemplated in section 32 was an intention contrary to partibility and such an intention could not be spelled out from exhibit III the gift deed. It was contended that if the property was shared by Bhagavathi Valli with Sivaraman and Vasudevan, then Vasudevan would have the right to redeem the Otti as a person interested and so would the appellant, a transferee from him. Alternatively if the property became that of Bhagavathi Valli alone then Vasudevan would be entitled to succeed to the property left by Bhagavathi Valli by virtue of sections 18 636 and 19 of the Act provided Bhagavathi Valli was not exempted from the operation of the Act under section 33. It was further contended that since the question of exemption was not pleaded by the defendant (respondent) in his written statement and since no issue was framed the High Court ought not to have considered the notification put in by the respondent in his evidence purporting to prove that Bhagavathi Valli was exempted. Finally it was urged that the notification does not in fact prove that she was so exempted since her identity is not established by the notification. Held that for the certificate to be competent the appeal must satisfy two tests of valuation. The amount or value of the subject matter of the suit in the court of first instance and the amount or value of the subject matter in dispute on appeal to this Court must both be above the mark. There are however cases in which the decree or final order directly or indirectly involves some claims or question to or respecting property above the mark. Such cases are also appealable. The word indirectly ' in such cases coven the real value of the claims which is required to be determined quite apart from the valuation given in the plaint if the property was not required to be valued for the purposes of the suit on the market value. In the present case the High Court found the value to be Rs. 42,000/ and Rs. 80,000/ at the material times. The plaintiff was not required to value his plaint on the real or market value of the property but on the price for redemption. He had asked for possession of the property after redemption and the property as the High Court has found is well above the mark in value. The certificate is competent. The suit as valued was properly laid in the court of first instance and in any case such an objection cannot be raised for the first time in this Court. The working of section 32 does not justify the contention that by reason of the expression 'contrary intention ' only impartibility could be imposed. What the law did was to define the rights on partition of makkathayam property and laid down that on partition the shares should be equal unless a contrary Intention was expressed. The gift deed exhibit III in the present case shows that the properties given to the donees are to be taken by each exclusively. Reading sections 18 and 19 it follows that whether Sivaraman survived Valli or died before her Vasudevan would succeed as an issue within the expression 'how low so ever ' of the Explanation to section 19 at least to a fractional interest in the property. 637 But this can only be if Bhagavathi Valli was not exempted from the operation of Part IV of the Act. The parties went to trial, fully understanding the central fact whether the succession as laid down in the Ezhava Act applied to Bhagavathi Valli or not. The absence of an issue, therefore, did not lead to a material sufficient to vitiate the decision. The plea was hardly needed in view of the fact that the plaintiff stated in his replication that the "suit property was obtained as makkathayam property, by Bhagavathi Valli under the Ezhava Act". The subject of exemption from Part TV of the Ezhava Act, was properly raised in the trial Court and was rightly considered by the High Court. The High Court was right in holding that the identity of Bhagavathi Valli had been established and that Bhagavathi Valli was exempted from the operation of the Ezhava Act (Part IV). The present appellant. is not entitled to redeem the otti having never enjoyed the jenmom rights.

Civil Appeal Nos. 30 and 31 of 1963. Appeals by special leave from the judgment and order dated August 31, 1962, of the Rajasthan High Court in D. B Civil Writ Petitions Nos. 376 and 377 of 1962. ' M. C. Setalvad, G. section Pathak, N. P. Nathwani, H. J. Thacker and G. C. Mathur for the appellant (in C.A. No. 30 of 1963). G.S. Pathak, N. P. Nathwani, H. J. Thackar and G. C. Mathur, for the appellant (in C.A. No 31 of 1963). section C. Agarwala, R. K. Garg, D. P. Singh and M. K. Ramamurthi, for respondent No. 2 (in C. A. No. 30 of 1963). R.K. Garg, for respondent No. 2 (in C. A. No. 31 of 1963). V.K. Krishna Menon and Janardan Sharma for the Intervener. 575 1963. May 7. The judgment of the Court was delivered by section K. DAS J. These two appeals have been heard together as they raise some common questions of law and fact, and this judgment will govern them both. The appellant before us, Murarka Radhey Shyam Ram Kumar was elected to the House of the People at the third general elections held in the month of February, 1962. He was elected from a constituency known as the jhunjhunu Parliamentary Constituency in Rajasthan. Two election petitions were filed for setting aside the election of the appellant. One of these was filed by one Ridmal Singh who stated that he was an elector in the said constituency. Another application was filed by one Balji who was also an elector in the said Parliamentary Constituency and whose nomination paper was rejected by the returning officer. We are not concerned in the present appeals with the grounds on which the two election petitions, one by Ridmal Singh and numbered as 269 of 1962 and the other by Balji and numbered as 295 of 1962, were based, because the election petitions have not yet been tried on merits By two applications dated July 6, 1962, the appellant who was one of the respondents to the two election petitions raised certain preliminary objections to the maintainability of the two election petitions. The Election Tribunal dealt with these preliminary objections by its orders dated August 13, 1962. It dismissed the preliminary objections. Thereupon the appellant filed two writ petitions in the High Court of Rajasthan by which he prayed that the orders of the Election Tribunal dated August 13, 1962, and certain consequential orders passed on August 14, 1962, be quashed and that an order or direction be issued to the Election Tribunal to dismiss the two election petitions on the main ground that they do 576 not comply with certain mandatory provisions of the Representation of the People Act, 1951, hereinafter referred to as the Act. These two writ petitions were dismissed by the High Court by its order dated August 31, 1962. The appellant then applied for special leave to this court and having obtained such leave, has preferred the present appeals. We may now state briefly the grounds on which the appellant contends that the two election petitions were not maintainable and should have been dismissed by the Election Tribunal With regard to Election Petition No. 269 of 1962 the grounds urged before us on behalf of ' the appellant are three in number Firstly, it is contended that there was noncompliance with the mandatory provisions of section 82 of the Act. We shall presently read that section. The contention of the appellant is that Ballu or Balji whose nomination paper was rejected and who was not a contesting candidate was improperly impleaded as respondent No. 7 to the election petition, though section 82 requires that in cases where in addition to the relief o declaring the election of the returned candidate to be void, a further declaration is claimed that the petitioner himself or some other candidate has been duly elected, all the contesting candidates must be made parties to the election petition. Ballu or Balji was not a contesting candidate and was therefore impleaded to the election petition in contravention of the provisions of section 82. Secondly, it is urged that there was non compliance with the provisions of section 81 (3) of the Act because the copy of the election petition served on the appellant was not a true copy of the original filed before the Election Commission nor war, it properly attested to be a true copy under the signature of the petitioner who filed the election petition. Thirdly, it is urged that there was non compliance with the provisions of section 83 of the Act inasmuch as the affidavit in respect of corrupt 577 practices which accompanied the election petition was neither properly made nor in the prescribed form. With regard to Petition No. 295 of 1962 the grounds alleged are these Firstly, it is stated that at the time of its presentation to the Election Commission, the petition was not accompanied by true copies of the petition as required by section 81 (3) of the Act because there was a reference to four enclosures at the foot of the schedule of the original petition, but in the copy served on the appellant the enclosures were not reproduced. Secondly it is urged that the election petition was not duly verified inasmuch as the date and place of verification were not stated at the foot of the verification clause Thirdly, it is urged that a copy of the treasury receipt showing the deposit of a sum of Rs. 2,000/ in favour of the Election Commission was not enclosed with the copy of the petition which was served on the appellant, nor was the copy of the order dated january 22, 1962, by which the returning officer rejected the nomination paper of the petitioner, signed or verified by the, petitioner. We may here refer to some of the provisions of the Act (as they stood 'at the relevant time) which have a bearing on the preliminary objections urged before us Under section 79 (b) the expression "candidate" in parts VI, VII and VIII of the Act means, unless the context otherwise requires, a person who has been or claims to have been duly nominated as a candidate at any election, and any such person shall be deemed to have been a candidate as from the time when, with the election in prospect, he began to hold himself out as a prospective candidate. section 80 of the Act states that no election shall be called in question except by an election petition presented in accordance with the provisions of Part VI. section 81 states in effect that an election petition calling in question any election may be presented on one or 578 more of the grounds specified in sub section (1) of section 100 and section 101 to the Election Commission by any candidate at such election or any elector within forty five says from the date of election of the returned candidate Sub section (3) of section 81 which sub section is important for our purpose, reads as follows : "Every election petition shall be accompanied by as many copies thereof as there are respon dents mentioned in the petition and one more copy for the use of the Election Commission, and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition." 82 states who shall be parties to the petition. It leads : "A petitioner shall join as respondents to his petition (a)where the petitioner, in addition to clai ming a declaration that the election of all or any of the returned candidates is void, claims a further declaration that he himself or any other candidate has been duly elected, all the contesting candidates other than the petitioner, and where no such further declaration, is claimed, all the returned candidates; and (b)any other candidate against whom alle gations of any corrupt practice are made in the petition." S.83 lays down what shall be the contents of the petition. We are concerned in the present case,% with the provisos to sub section (1) of section 83. That proviso says, "Provided that where the petitioner alleges any corrupt practice, the petition shall also be 579 accompanied by an affidavit in the prescribed form in support of the allegation of such cor rupt practice and the particulars thereof " S.85 states that if the provisions of section 81 or section 82 or s.117 have not been complied with, the Election Commission shall dismiss the petition. section 86 lays down that if the petition is not dismissed under section 85, the Election Commission shall cause a copy of the petition to be published in the Official Gazette and a copy to be served by post on each respondent, and shall then refer the petition to an Election Tribunal for trial. We may skip over sections 87, 88 and 89 which deal with matters with which we are not directly concerned. We then come to section 90 which lays down the procedure to be followed before the Election Tribunal. Sub section (1) of section 90 says that subject to the provisions of the Act and of any rules made thereunder, every election petition shall be tried by the Tribunal as nearly as may be in accordance with the procedure applicable under the Code of Civil Procedure, 1908, to the trial of suits. Sub section (3) of section 90states : ' 'The Tribunal shall dismiss an election peti tion which does not comply with the provisions of section 81, or section 82 notwithstanding that it has not been dismissed by the Election Commission under section 85. Explanation An order of the Tribunal dismissing an election petition under this subsection shall be deemed to be an order made under clause (a) of section 98. " Sub s (4) of section 90 states that any candidate not already a respondent shall, upon application made to the Tribunal within fourteen days from the date of commencement of the trial and subject to the provisions of section 119, be entitled to be joined as a 580 respondent. Sub section (6) states that every election petition shall be tried as expeditiously as possible and endeavour shall be made to conclude the trial within 6 months from the date of publication of the copy of the petition in the Official Gazette under subs. (1) of section 86. Let us now examine the preliminary objections which have been urged before us on behalf of the appellant, in the light of the provisions to which we have just now referred. We take first the objection based on the joinder of Ballu or Balji to Election petition No. 269/1962. The argument on this part of the case is the following Learned counsel for the appellant has contended that the provisions of section 82 of the Act are mandatory provisions and any failure to comply with those provisions is fatal in the sense that it is obligatory on the Tribunal to dismiss an election petition which does not comply with the Provisions of section 82. He has relied for this purpose on sub section (3) of section 90. He has further contended that in view of the aforesaid provisions of the Act, namely, the provisions in section 82 and sub section (3) of section 90, it is not open to an Election Tribunal to apply the Principles of the Code of Civil Procedure and treat a non ,joinder or mis joinder as not fatal to the maintainability of the petition. The foundation of the argument is that there has been a non compliance with the provisions of section 82. If that foundation is absent, then the whole argument disappears. Now, it is admitted that Ballu or Balji was not a contesting candidate within the meaning of section 82 because his nomination paper had been rejected. The admitted position further is that all the contesting candidates were joined to the petition as required by section 82. Therefore, what happened was this All 'the parties whom it was necessary to join under the provisions of section 82 were joined as respondents to the petition ; but Ballu 581 or Balji was joined in excess of the requirements of section 82. The question before us is, does this amount to non compliance with, or contravention of, the provisions of section 82? Learned counsel for the appellant wishes us to read section 82 as though it said that the persons named therein and no others shall be joined as respondents to the petition. He wants us to add the words "and no others" in the section. We find no warrant for such a reading of section 82. We agree with the High Court that if all the necessary parties have been joined to the election petition, the circumstance that a person who is not a necessary party has also been impleaded does not amount to a breach of the provisions of section 82 and no question of dismissing the petition under sub so (3) of section 90 arises. It is open to the Election Tribunal to strike out the name of the party who is not a necessary party within the meaning of section 82 of the Act. The position will be different if a person who is required to be joined as a necessary party under section 82 is not impleaded as a party to the petition. That however is not the case here and we are of the view that the learned counsel for the appellant has failed to make out the very foundation on which his argument on this part of the case is based. In the view we have taken it is unnecessary to consider further the legal effect of a contravention of the provisions of section 82. It is perhaps necessary to add that learned counsel for the respondents relied on the decision of this court in Jagan Nath vs Jaswant Singh (1), where it was held that section 82 of the Act as it then stood was not mandatory. section 82 then provided as follows: "A petitioner shall join as respondents to his petition all the candidates who were duly No. minated at the election other than himself if he was so nominated. " Sub section (4) of section 90 then provided that notwithstanding anything contained in section 85, the tribunal may (1) ; 582 dismiss an election petition which does not comply with the provisions of sections 81, 83 or 117. There has been a change of law since that decision. section 82 has been re cast and sub section (3 of section 90 now states that the tribunal shall dismiss an election petition which does not comply with the provisions of section 81 or section 82 notwithstanding that it has not been dismissed by the Election Commission under section 85. Therefore we do not think that the decision in Jagan Nath vs Jaswant Singh (1), is determinative of the problem before us. We need not however pursue this question any further, because we have held that in the present cases there was no contravention of the provisions of section 82. We now go to the second point. But before we do so, it may perhaps be stated that certain defects in the verification of Election Petition No. 269 of 1962 have been brought to our notice, as they were brought to the notice of the Election Tribunal. One of these defects was that though the verification stated that the averments made in some of the paragraphs of the petition were true to the personal knowledge of the petitioner and the averments in some other paragraphs were verified to be true on the basis of advice and information received by the petitioner from legal and other sources, the petitioner did not state in so many words that the advice and information received was believed by him to be true. The Election Tribunal took the view that this defect in verification was a matter which came within cl. (c) of sub section (1) of section 83 and the defect could be removed in accordance With the principles of the Code of Civil Procedure, 1908. The Election Tribunal further held that such, a defect did not attract sub section (3) of section 90 inasmuch as that sub section does not refer to non compliance with the provisions of section 83 as a ground for dismissing an election petition. We agree with the view expressed by the Election Tribunal. We have pointed out that sub section (4) of (1) ; 583 section 90 originally referred to three sections, namely, is 81, 83 and 117. It said that nothwithstanding anything contained in section 85 the Tribunal might dismiss an election petition which did not comply with the provisions of section 81, section 83 or section 117. section 90 .was amended by Act 27 of 1956. Sub section (3) then said that the Tribunal shall dismiss an election petition which does not comply with the provisions of section 81, section 82 or section 117 notwithstanding that it has not been dismissed by the Election Commission under section 85. There was a further amendment by Act 40 of 1961 and sub section (3) of section 90 as it now stands has already been quoted by us in an earlier part of this judgment. It seems clear to us that reading the relevant sections in Part VI of the Act, it is impossible to accept the contention that a defect in verification which is to be made in the manner laid down in the Code of Civil Procedure, 1908, for the verification of pleadings as required by cl. (c) of sub section (1) of section 83 is fatal to the maintainability of the petition. On behalf of the appellant it has been further contended that the copy of the petition which was served on the appellant was not a true copy within the meaning of the mandatory provisions of subs. (3) of section 81 of the Act. The argument is that a failure to comply with the provisions of sub section (3) of section 81 attracts sub section (3) of section 90 and it is obligatory on the Tribunal to dismiss an election petition which does not comply with the requirements of sub section (3) of section 81. On the basis of the decision of this court in Sri Babu Ran vs Shrimati Prasanni (1), it is contended that the principle in such cases is that whenever the statute requires a particular act to be done in a particular manner and also lays down that failure to comply with the said requirement leads to a specific consequence, it would be difficult to accept the argument that the failure to comply with the said requirement should lead to any other consequence (1) 584 It is argued that no question of substantial compliance arises in such cases, and the mandatory requirement must be strictly complied with. Let us first see what are the defects found in the copy of the petition served on the appellant. It is admitted that the first part of sub section (3) of section 81 has been complied with and the election petition was accompanied by as many copies thereof as there were respondents mentioned in the petition. It is also admitted that one more copy for the use of the Election Commission was also given with the petition. The ' last part of the sub section says that " 'every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition. " The grievance of the appellant is that this part of the sub section was not complied with inasmuch as (1) the copy which was 'served on the appellant did not contain the signature of the petitioner at the foot of the petition though the original contained such signature, and (2) the verification in the copy served on the appellant omitted to mention paragraph 14 g (ii) in that part of the verification which related to averments stated to be true to the personal know ledge of the petitioner. As to the first of these defects the Election Tribunal pointed out that every page of the copy served on the appellant was attested to be a true copy under the signature of the petitioner and furthermore it was not necessary to append a fresh signature to the copy of the petition. With regard to the second defect the Election Tribunal apparently took the view, though it did not say so in so many words, that the omission of a reference to. paragraph 14 g (ii) in the verification in the copy served on the appellant was a case of mere oversight which did not mislead anybody because in the body of the petition full details of the averments were made. The High Court took the view that the defect was not of such a nature as to amount to noncompliance with the provisions of sub section (3) of section 81. 585 We agree with the High Court and the Election Tribunal that the first defect is not a defect at all. When every page of the copy served on the appellant was attested to be a true copy under the signature of the petitioner, a fresh signature below the word "petitioner" was not necessary. Sub section (3) of section 81 requires that the copy shall be attested by the petitioner under his own signature and this was done. As to the second defect the question really turns on the true scope and effect of the word "copy" occurring in sub section (3) of section 81. On behalf of the appellant the argument is that sub section (3) of section 81 being mandatory in nature all the requirements of the sub section must be strictly complied with and the word "copy" must be taken to be an absolutely exact transcript of the original. On behalf of the respondents the contention is that the word "copy" means that which comes so near to the original as to give to every person seeing it the idea created by the original. Alternatively, the argument is that the last part of sub section (3) dealing with a copy is merely directive, and for this reliance is placed on the decision of this court in Kamaraja Nadar vs Kunju Thevar (1). We are of the view that the word ""copy" in sub section (3) of section 81 does not mean an absolutely exact copy, but means that the copy shall be so true that nobody can by any possibility misunderstand it (see Stroud 's judicial Dictionary, third edition, volume 4, page 3098). In this view of the matter it is unnecessary to go into the further question whether any part of sub section (3) of section 81 is merely directory. Several English decisions were cited at the Bar The earliest decision cited to us is the decision in Pocock vs Mason (2) where it was held that the omission of the words "the" and "by" in the copy of the writ of capias prescribed by the schedule 2 W. 4, c. 39 did not invalidate an arrest. The reason given was thus expressed : "To ascertain whether or not an unfaithful copy produces any alteration in the meaning (1) [ (2) ; 586 supposes an exertion of intellect which it may be inconvenient to require at the hands of those who serve the copy. It was to obviate this inconvenience, that the legislature has.given a form, and required that it should be pursued. Nothing but ordinary care is neccs sary for taking the copy. " In a later decision Sutton vs Mary and Burgess the copy of the writ served on the defendant omitted the letter "s" in the word "she" It was held that the omission was immaterial as it could not mislead anybody. In Morris vs Smith (2), there was a motion to set aside the service of the writ of summons for irregularity, on the ground that the defendant being an attorney, he was only described as of Paper Buildings in the Inner Temple, London and the addition of "gentleman" was not given. It was held that the form in the statute 2 Will 4, c. 39 section I did not require the addition of the defendant to be inserted in the writ and it was sufficient to state his residence. The writ of summons was therefore valid. In another case in the same volume Cooke vs Vaughan (2), it was held that where a writ of capias described the defendant by the addition of "gentleman", but that addition was omitted in the copy served, the copy was not a copy of the writ, in compliance with the stat. 2 Will. 4, c. 39, section 4 On behalf of the respondents a number of decision under the Bills of Sale Act, 1878 and the Amend ment Act, 1882 (45 and ' 46 Vict. c. 43) were cited The question in those cases was whether the bill was ""in accordance with the form in the schedule to this Act annexed" as required by section 9 of the Bills of Sale Act 1878, and Amendment Act 1882. In re Hewer Ex parte Kahen (4), it was held that a "true copy" of a bill of sale within the Bills of Sale Act, 1878 section 10, sub section 2, must not necessarily be an exact copy so long as any errors or omissions in the copy file( are merely clerical and of such a nature that no on, (1) ; (2) ; (3) ; (4) 587 would be thereby misled. The same view was expressed in several other decisions and it is unnecessary to refer to them all. Having regard to the provisions of Part VI of the Act, we are of the view that the word "copy" does not mean an absolutely exact copy. It means a copy so true that nobody can by any possibility misunderstand it. The test whether the copy is a true one is whether any variation from the original is calculated to mislead an ordinary person. Applying that test we have come to the conclusion that the defects complained of with regard to Election Petition No. 269 of 1962 were not such as to mislead the appellant ; therefore there was no failure to comply with the last part of sub section (3) of section 81. In that view of the matter sub section (3) of section 90 was not attracted and there was no question of dismissing the election petition under that sub section by reason of any failure to comply with the provisions of section 81. This disposes of the second preliminary objection raised before us. We now turn to the third preliminary objection and this relates to the affidavit which accompanied the petition in respect of the corrupt practices alleged against the appellant. The argument on this part of the case is that the affidavit was neither in the prescribed form nor was it properly sworn as required by the rules in the Conduct of Election Rules, 1961 ; therefore there was a failure to comply with the proviso to sub section (1) of section 83 of the Act. The argument further is that an election petition under section 81 must comply with the provisions of section 83 and unless it complies with those provisions, it is not an election petition under section 81. We think that this contention hag been sufficiently disposed of by what has been stated by the Election Tribunal. The Election Tribunal has rightly pointed out that the affidavit was in the prescribed form but due to inexperience the oaths 588 Commissioner had made a mistake in the verification portion of the affidavit. The Tribunal said : "It appears that due to inexperience of the Oaths Commissioner instead of "verified before me" words, "verified by me" have been written. The signature of the deponent have been obtained in between the writing with respect to admission on oath of the contents of affidavit by the petitioner and the verification by the Oaths Commissioner. According to the prescribed form the verification should be " solemnly affirmed or sworn by "such and such" on "such and such date" before me". The verification of the affidavit of the petitioner is apparently not in the prescribed form but reading as a whole the verification carries the same sense as intended by the words mentioned in the prescribed form. The mistake of the Oaths Commissioner in verifying the affidavit cannot be a sufficient ground for dismissal of the petitioner 's petition summarily, as the provisions of section 83 are not necessarily to be complied with in order to make a petition valid and such affidavit can be allowed to be filed at a later stage also. " This view of the Election Tribunal was affirmed by the High Court. We agree with the view expressed by the Election Tribunal and we do not think that the defect in the verification due to inexperience of the Oaths Commissioner is such a fatal defect as to require the dismissal of the election petition. Turning now to Election Petition No. 295 of 1962, the defect as to the time and place of verification is, as we have said earlier, not a fatal defect. It is a matter which comes within cl. (c) of sub.s. (1) of section 83 and the defect can be remedied in accordance with the principles of the Code of 589 Civil Procedure relating to the ' verification of pleadings. As to the four enclosures which were not re ,produced in the copy served on the appellant, the position was this. In the original petition there was an endorsement to the following effect "Enclosed : 1. Two copies of the grounds of election petition. Original treasury receipt of Rs. 2,000/ as security deposit. Certified copy of the order of the Returning Officer rejecting the nomination dated 22 1 1962. Vakalatnama duly stamped." ' In the copy served on the appellant the original treasury receipt of Rs. 2,000/ deposited byway_ of security was not re produced. A certified copy of the order of the returning officer rejecting the nomination of the petitioner was appended to the copy but this certified copy was not further signed by the petitioner. As to the security deposit it was mentioned in the body of the petition (paragraph 9) that such a deposit had been made. The certified copy of the rejection of the nomination paper was verified to be a true copy and we fail to see how any further signature of the petitioner was necessary thereon. It is obvious to us that a copy of the vakalatnama was not required under sub section (3) of section 81 nor was it necessary to make a further endorsement that two copies of the petition had been filed along with the petition. It is not disputed that copies as required by sub s.(3) of section 81 were filed. The only ' grievance made is that the endorsement "two copies" was not repated in the enclosure portion of the copy served on the appellant. We 590 have already explained what is meant by the word " copy" in sub section (3) of section 81 and we are of the view that the defects pointed out on behalf of the appellant are not of such a character as to invalidate the copy which was served on the appellant in the present case. In conclusion we have to point out that we allowed one Dr. Z. A. Ahmed to intervene in these appeals on the grounds mentioned in his petition dated April 4, 1963. The intervener supported the arguments advanced on behalf of the appellant. We have fully dealt with those arguments in this judgment and nothing further need be said about the intervener 's petition. For the reasons given above, we see no merit in these two appeals. The appeals are accordingly dismissed with costs. Appeals dismissed.

IN-Abs

The validity of the election of the appellant to the House of the People at the third general elections held in the month of February, 1962, was challenged by two of the electors of the constituency from which the appellant was elected, by filing election petitions for setting aside the election. The nomination paper of B, one of the two electors aforesaid, had been rejected by the returning officer. The appellant who was one of the respondents to the two election petitions raised preliminary objections to the maintainability of the petitions and pleaded that they should be dismissed on the grounds, inter alia, (1) that B whose nomination paper was rejected and who was not a contesting candidate was improperly impleaded as a respondent to the election petition in contravention of the provisions of section 82 of the Representation of the People Act, 1951, (2) that there was non compliance with the provisions of section 81 (3) of the Act because the copy of the election petition served on the appellant was not a true copy of the original filed before the Election Commission, and (3) that there was non compliance with the provisions of section 83 of the Act inasmuch as (a) the election petition was not verified in the manner laid down in section 83, and (b) the affidavit in respect of corrupt practices which accompanied the petition was neither properly made nor in the prescribed from. Held (1) that where all the parties whom it was neces sary to join under the provisions of section 82 of the Representation of the People Act, 1951, were joined as respondents to the 574 petition, the circumstance that a person who was not a necesary party had also been impleaded did not amount to a contravention of section 82 of the Act; (2) the word "copy" in section 81 (3) of the Act did 'not mean an absolutely exact copy but a copy so true that nobody could by any possibility misunderstand it, and that the test whether a copy was a true one was whether any variation from the original was calculated to mislead an ordinary person; In re Hewer, Ex parte Kahan, (I 882) 1, relied on. (3)that a defect in the verification of an election petition as required by section 83 (1) (c) of the Act did not attract section 90 (3) and so was not fatal to the mintainability of the petition; and, (4)that a defect in the affidavit was not a sufficient around for dismissal of the petition.

Appeals Nos. 480 & 481 of 1962. Appeals by special leave from the order dated March 10, 1958 of ' the Allahabad High Court in Writ Nos. 1006 and 1007 of 1955, and from the decision dated July 15, 1955 of the Labour Appellate Tribunal of India, Lucknow, III Bench in Appeal Nos. III 274 and 300 of 1954. G. section Pathak and G. C. Mathur, for the appellants. K. section Hajela and C.P. Lai, for respondent No. 2 (In C.A. No, 480 of 1962). 727 J.P. Goyal, for respondents Nos. 3 to 12 (in C.A. No. 480 of 1962) and the respondents (in C.A. No. 481 of 1962). May 9. The judgment of the court was delivered by GAJENDRAGADKAR J. An Industrial dispute which arose between the appellant, J,K. Cotton Spinning & Weaving Mills Co., Ltd,, and the respondents, its employees, was referred by the Government of Uttar Pradesh for adjudication to the Adjudicator, Kanpur, on November, 30, 1953.This dispute covered two items of claim made by the respondents. The judgment of the court was delivered by GAJENDRAGADKAR J. An Industrial dispute which arose between the appellant, J. K. Cotton Spinning & Weaving Mills Co., Ltd,, and the respondents, its employees, was referred by the Government of Uttar Pradesh for adjudication to the Adjudicator, Kanpur, on November, 30, 1953.This dispute covered two items of claim made by the respondents. The first item was in regard to the dismissal of a gardener (Mali) Badri by name. The respondents urged that the said dismissal was unlawful and Badri was entitled to reinstatement with all the wages during the period of his enforced unemployment. The second item of dispute was in regard to the claim made by the 10 Malis employed by the appellant to receive dear food allowance, weekly holidays and leave with: wages. Before the Adjudicator, the appellant contended that the Malis were not workmen within the meaning of the U.P. (No. 28 of 1947), and so, the reference was invalid. It was also urged by the appellant that the claim made by the respondents for dear food allowance could not be sustained, because G.O. No. 3754 (LL)/XVIII 894 (L) 1948 issued by the U. P. Government on December 6, 1948, was inapplicable to the Malis inasmuch as the said Government order applied only to industrial employees and the Malis are not industrial employees within the meaning of the said order. The other claims made by the respondents for weekly holidays and leave with wages were also resisted on the ground that the Malis were not workmen under 728 the Act, and so, they were entitled to, no relief in the present proceedings. The Adjudicator held that the Malis were workmen under the Act, and so, he rejected the appellant 's contention that the reference was bad. On the merits, he found that the dismissal of Badri was without justification, and so, he was entitled to reinstatement. He also ordered that the appellant should pay Badri half his wages at Rs. 45/ p.m. as compensation from the date of his dismissal to the date of his reinstatement. That is how the first item of dispute was decided by the Adjudicator. On the second item of dispute. the Adjudicator found that the Malis were not industrial employees, and so, they were not entitled to claim dear food allowance under the relevant Government order. The other claims made by the Malis With regard to weekly holidays and leave with wages were likewise rejected by the Adjudicator. In other words, the second item of dispute was decided against the respondents. This award was pronounced on May, 31 1954. The decision of the Adjudicator gave rise to two appeals before the Labour Appellate Tribunal. The appellant by its appeal No. 300 of 1954 disputed, the correctness of the Adjudicator 's conclusion that Badri was a workman and that his dismissal was unjustified. The Labour Appellate Tribunal has rejected this contention and the appellant 's appeal was dismissed. The respondents by their appeal No. 274/1954 contended that the Adjudicator was in error in holding that the Malis were not industrial employees and as such, were not entitled to dear food allowance. The Labour Appellate Tribunal has upheld this plea and has given the Malis the benefit of the provision contained in the relevant Government order in respect of dear food allowance. The claim of the respondents for a weekly holiday was, however, rejected by the Labour Appellate 729 Tribunal, while their claim for leave with wages was allowed, and a direction was issued that the Malis in question should be given leave in the manner prescribed by section 79 of the Factories Act (No. 63 of 1948). The Labour Appellate Tribunal held that though the said Act was, in terms, not applicable to the Malis, the principle on which the statutory provision for leave prescribed by section 79 was based was a principle of social justice, and so, the Malis were entitled to have a similar benefit. The respondents had also claimed that Badri should be given the full wages for the period of his enforced unemployment instead of Rs. 45/ as allowed by the Adjudicator. This plea has also been upheld by the Labour Appellate Tribunal. In the result, the respondents appeal substantially succeeded. The decision, of the Labour Appellate Tribunal was pronounced on 15.7.1955. This decision was challenged by the appellant before the Allahabad High Court by preferring a writ petition No. 1006/1955. It was urged by the appellant that, the decision of the Labour Appellate Tribunal was patently erroneous and illegal, and so,, it should be quashed under article 226 of the Constitution. Whilst the writ petition was pending in the said High Court, the Bench of the Labour Appellate Tribunal that sat at Lucknow ceased to exist, and so, the High Court took the view that it had no jurisdiction to entertain a writ petition in respect of the decision of the Labour Appellate Tribunal which was not functioning within the limits of its territorial juridiction. That is why the said writ petition was dismissed as having become in fructuous. This decision was pronounced on March 10, 1958. The two present appeals Nos. 480 & 481/1962 have been brought to this Court by the appellant by special leave and they are directed, against the decision of the High Court dismissing the appellant 's 730 writ petition and against the decision of the Labour Appellate Tribunal respectively. Mr. Pathak who appeared before us for the appellant stated that he did not propose to argue Civil Appeal No. 480/1962, because this Court 's decision in Civil Appeal No. 481/1962 would determine the dispute between the parties. Civil Appeal No. 480/1962 has in that dense become unnecessary, because the merits of the main dispute are raised by the appellant in its appeal No. 481/1962 which is directed against the decision of the Labour Appellate Tribunal. We would, therefore, deal with Civil Appeal No. 481/1962 only. In this appeal, Mr. Pathak has not disputed the correctness or propriety of the decision of the Labour Appellate Tribunal in regard to the claim made by the respondents in respect of Badri 's dismissal. So, that part of the dispute need not detain us in the present appeal. The principal contention which has been seriously pressed before us by Mr. Pathak is that the Labour Appellate Tribunal was in error in holding that the Malis are workmen under section 2 of the Act. Section 2 of the Act, as it stood at the relevant time, provided, inter alia , that in this Act the expression "workman" shall have the meaning assigned to it in section 2 of the , and that takes us to section 2 (s) of the (No. 14 of 1947) which defines a workman. Section 2 (s), inter alia, provi des that a "Workman" means any person (including an apprentice) employed in any industry to do any skilled or unskilled manual, supervisory, technical or clerical work for hire or reward. , whether the terms of employment be expressed or implied; and so, the question is whether the 10 Malis whose claims have given rise to the present reference can be said to be workmen under section 2 (s). For deciding this point, it is necessary to refer to the relevant facts, as they have been found by the 731 Tribunals below. The 10 Mails have been appointed by the appellant for the maintenance of gardens attached to the bungalows of some of the officers of the Mills which are situated in the compoun, of the Mills, while others are employed for looking after the gardens attached to Kamla Niwas which is a residential building allotted to the Governing Director of the Mills and which is also situated within the compound of the Mills. Some of these Malis have also to work in the gardens attached to the residential building of the Director in charge of the Mills. The gardens which are looked after by these Malis are not the gardens attached to the Mills as such. It appears that in the large and expensive colony of the Mills, the factory of the Mills is inside a compound. Outside this compound of the factory, but within the colony of the Mills, are situated the bungalows occupied by the officers of the Mills and the Director. It is the gardens attached to these bungalows that arc looked after by the 10 Malis. It is also clear that the Malis are appointed by the appellant. The total monthly wages of these 10 Malis come to about Rs. 450/ . The appellant collects a small amount from. the officers as a contribution to the salaries of these Malis and the bulk of it approximating to 78% is paid by the appellant. The contributions made by the officers are credited to the revenue of the appellant and from the funds of the appellant, the Malis are paid their wages and they are debited in the accounts of the appellant. The names of the Malis are borne on a register maintained by the clerk of the appellant who supervises their work. This clerk notes their attendance from day to day. Their appointment is made by the appellant, their work is supervised and controlled by the appellant and they are liable to be dismissed by the appellant. The officers who are allotted the bungalows have no control over the Malis and can exercise no jurisdiction over them. It is in the light 732 of these facts that the question raised by Mr. Pathak in regard to the status of the Malis has to be determined. Mr. Pathak contends that the crucial words used in the definition prescribed by section 2 (s) are ",,employed in any industry". He argues that before any person can claim to be a workman under section 2 (s), it must be shown that he has been employed in the industry of the employer. The industry of the appellant is spinning and weaving operations and, says Mr. Pathak, the Malis have obviously nothing to do either with the spinning or weaving operations of the appellant; since they are not employed in the industry of the appellant, the fact that they have been employed by the appellant would not make them Workmen within the meaning of the Act. Thus presented, the argument is no doubt prima facie attractive; but as soon as we begin to examine it more carefully, it breaks down. If the construction for which 'Mr. Pathak contends is accepted without any modification, clerks employed in the factory would not be workmen, because on the test suggested by Mr. Pathak, they are not employed in the spinning or weaving operation carried on by the appellant and yet, there is no doubt that clerks employed by the appellant to do clerical work are workmen under section 2 (s), and so. the literal construction of the clause employed in any industry" cannot be accepted and that means that " employed in any industry" must take in employees who are employed in connection with operations incidental to the main industry, and once we are compelled to introduce this concept of incidental Connection with the main industry, the literal construction for which the appellant contends has to be rejected. It is, of course, not very easy to decide what is the field of employment included by the principle of incidental relationship, and what would be the limitations of the said principle? If sweepers arc 733 employed by the appellant to clean the premises of the Mills, that clearly would be work incidental to the main industry itself, because though the work of the sweepers has no direct relation either with the spinning or weaving, it is so manifestly necessary for the efficient functioning of the industry itself that it would be irrational to exclude sweepers from the purview of section 2 (s). If buses are owned by the industry for transporting the workmen, would the drivers of such buses be workmen or not? It would be noticed that the incidental connection in ' the present illustration is one degree removed from the main industry; the workmen who work in the industry are intended to be brought to the factory by the buses and it is these buses that the drivers run. Even so, it would not be easy to exclude drivers of buses engaged by the factory solely for the purpose of transporting its employees to the Mills from their respective homes and back, on the basis that they are not workmen under section 2 (s). Mr. Pathak was unable to resist the extension of the definition to such cases; but, nevertheless, he attempted to argue that though sweepers who sweep the premises of the factory may be called workmen, sweepers who sweep the area around the factory may not be included under section 2 (s). Sweeping the area outside the factory, it is argued, may be incidentally connected with the main industry, but the incidental connection is indirect and remote, and so, this class of employees must be excluded from the definition. We are not prepared to accept this argument. In our opinion, an employee who is engaged in any work or operation which is incidentally connected with the main industry of the employer would be a workman, provided the other requirements of section 2 (s) are satisfied. In this connection, it is hardly necessary to emphasise that in the modern world industrial operations have become complex and complicated and for the efficient and successful functioning of 734 any industry, several incidental operations are called in aid and it is the totality of all these operations that ultimately constitutes the industry as a whole. Wherever it is shown that the industry has employed an employee to assist one or the other operation incidental to the main industrial operation, it would be unreasonable to deny such an employee the status of a workman on the ground that his work is not directly concerned with the main work or operation of the industry. Reverting to the illustration of the buses owned by the factory for the purpose of trans porting its workmen, if the bus drivers can legitimately be held to assist an operation incidental to the main work of the industry, we do not see why a Mali, should not claim that he is also engaged in an operation which is incidental to the main industry. While we are dealing with this point, it is necessary to bear in mind that the bungalows are owned by the appellant and they are allotted to the officers as required by the terms and conditions of the officers ' employment. Since the bungalows are allotted to the officers, it is the duty of the appellant to look after the bungalows and take tare of the gardens attached to them. If the terms and conditions of service require that the officers should be given bungalows and gardens are attached to such bungalows, it is difficult to see why in the case of Malis who are employed by the appellant, are paid by it, and who work subject to its control and supervision and discharge the function of looking after the appellant 's property, it should be said that the work done by them has no relation with the industry carried on by the appellant. The employment is by the appellant, the 'conditions of service. are determined by the appellant, the payment is substantially by the appellant, the continuance of service depends upon the pleasure of the appellant, subject, of course, to the Standing 735 Orders prescribed in that behalf, and the work assigned to the Malis is the work of looking after the properties which have been allotted to the officers of the appellant. Like the transport amenity provided by a factory to its employees, bungalows and gardens are also a kind of amenity supplied by the employer to his officers and the drivers who look after the buses and the Malis who look after the gardens must, therefore, be held to be engaged in operations which are incidentally connected with the main industry carried on by the employer. It is true that in matters of this kind it is not easy to draw a line, and it may also be conceded that in dealing with the question of incidental relationship with the main industrial operation, a limit has to be prescribed so as to exclude operations or activities whose relation with the main industrial activity may be remote, indirect and far fetched. We arc not prepared to hold that the relation of the work carried on by the Malis in the present case can be characterised as remote, indirect or far fetched. That is why we think that the Labour Appellate Tribunal was right in coming to the conclusion that Malis are workmen under the Act. Before we part with this point, we would like to add that industrial adjudication appears consistently to have taken the view that Malis looking after the gardens attached to the bungalows occupied by officers of any industrial concern are workmen under section 2 (s). Our attention has been drawn to two decisions of the Labour Appellate Tribunal dealing with this question. In Shri Bhikari, Kanpur vs Messrs. Cooper Allen & Co., Kanpur, (1) the Labour Appellate Tribunal while dealing with the case of Bhikari who was engaged as a gardener by the Company and was on the pay roll of the Company observed that the Tribunal failed to see why he is not to be regarded as a workman within the meaning of section 2 (s) of the which (1) 736 definition has been adopted by the U.P. under which the case was started. The same view was taken by the Labour Appellate Tribunal in the case of The Upper India Chini Mazdoor Union vs The Upper India Sugar Mills (1). Dealing, with the case of Rati Rama Who was engaged as a Mali, the Tribunal rejected the employer 's contention that the said Mali was a domestic servant and observed that merely because the Company chooses to put Rati Ram on the work of a gardener with the Managing Director which the A Company is admittedly required to provide for and pay for, it does not follow that Rati Ram became a domestic servant. It is remarkable that both these decisions which are directly in point, were under section 2 of the Act with which we are concerned. In dealing with industrial dispute we are reluctant to interfere with the well established and consistent course of decisions pronounced by the Labour Appellate Court unless, of course, it is shown that the said decisions are plainly erroneous. The next question which calls for our decision is whether the Malis are industrial employees within the meaning of the relevant G. O. The said G. O. opens with two operative paragraphs which are followed by the table of minimum basic wages prescribed by it and other paragraphs. These first two paragraphs read thus : "(1) This order shall he deemed to have come into force with effect from December, 1, 1948 and shall, in respect of the matters covered by it, bind all the industries affected thereby and the workmen employed therein. (2) The minimum basic wage payable to employees (industrial or clerical) in the various industries and undertakings specified in column 1 of, Table I hereunder shall, so long as this (1) 737. order remains in force, be the amounts menti oned against them in column 2 or 3 thereof, as the case may be," Paragraph 3 prescribes the dear food allowance, and it is in respect of this claim made by the respondents that the appellant has raised the contention that this paragraph does not apply, because the Malis are not industrial employees. It will be noticed that the first Paragraph makes it perfectly clear that the order binds all the industries affected by it and the workmen employed therein ; so that as soon as it is held that the Malis are workmen under section 2 of the Act, it would follow that the order would apply to the Malis. In considering the present point. it is necessary to bear in mind that this order has been issued in exercise of the powers conferred by clauses (b) and (g) of section 3 of the Act, and that clearly means that persons who are workmen under section 2 of the Act are referred to by paragraph I and there would be no escape from the conclusion that the order would apply to such workmen and the Industries that employed them. It is, however, urged that in paragraph 2 the minimum basic wage is specified as being payable to employees, industrial, or clerical, in the various industries and the suggestion is that it is only employees who are either industrial or clerical to whom the order applies. Industrial employees are not defined; but it is assumed by the appellant in urging this argument that the class of industrial employees would be narrower than the class of workmen covered by section 2 of the Act. In our opinion, this argument is wholly fallacious. It is clear that the second paragraph refers to industrial or clerical employees, because the table prescribing the minimum basic wages divides the employees into two categories, industrial and clerical. It is only because his division is made by the table that for the 738 purpose of clarification, paragraph 2 mentions industrial or clerical in bracket after referring to the employees. Besides it would be unreasonable to assume that when the order prescribed minimum basic wages for workmen to whom paragraph I expressly refers, it could have been intended that the said minimum basic wages should not be extended to some workmen falling under paragraph I because they do not fall under the category of industrial employees or clerical employees. The scheme of the order is plain and unambiguous ; to all workmen failing under section 2 the benefits of the order are intended to be extended. That is the view taken by the Labour Appellate Tribunal and, in our opinion, that view is obviously right. If that be so, the validity of the order passed by the Labour Appellate Tribunal awarding the respondents ' claim for dear food allowance under paragraph 3 of the G.O. cannot be questioned. It is true that in The Suti Mill Mazdoor Sabha Kanpur vs Messrs. The British Indian Corporation Ltd. Kanpur (1), the Labour Appellate Tribunal appears to have taken the view that the expression " 'industrial employees" is limited to the class of employees who are employed directly or indirectly for the purpose of manufacturing process carried on by the factory. In coming to this conclusion, the Labour Appellate Tribunal noticed the fact that the expression " 'industrial employees" had not been defined, but it was disposed to drive assistance from the definition of the word "worker" in the Factories Act in determining the scope of the expression "industrial employees". No doubt, it was urged before the Tribunal that expression "industrial employees" should be understood in the same comprehensive sense as the word "industry" as defined in the industrial Disputes Act, but this contention was rejected by the Tribunal. It seems to us that the Tribunal was in error in limiting the, scope of (1) 739 the expression. " 'industrial employees" by reference to the definition of the word "worker" prescribed by the Factories Act. Indeed, it would be relevant and appropriate to refer to the definition of the word workman" under section 2 (s) of the , because the G.O. in question has been issued under the Act and the definition of a "work man" prescribed by section 2 of the Act as section 2 (s) of the would determine the true denotation of the expression "industrials employees". We must accordingly hold that the Labour Appellate Tribunal was in error in accepting the very narrow construction of the expression "industrial employees" used in the Government order. The next point which has been urged before us by Mr. Pathak is in regard to the decision of the Labour Appellate Tribunal awarding the benefit of leave to the respondents on the same lines as section 79 of the Factories Act. Mr. Pathak attempted to argue that the claim for leave had been made specifically on the basis of provisions of the Factories Act and the U.P. shops and Commercial Establishments Act, and he suggested that as soon as it was found that these two Acts were inapplicable to the Malis the said claim should have been rejected. The Labour Appellate Tribunal has, however, held that though the said two Acts do not apply, a claim for leave can be justified on the ground of social justice. Mr. Pathak objects to this decision on the technical ground. that the claim itself was based on the provisions of the said two Acts and no other. This contention is not well founded. It does appear that in paragraph 10 of the written statement filed on behalf of the respondents reference is made to the said two Acts but in the prayer clause the claim is made in general terms without reference to the Acts, and the reference itself is in general terms and makes no mention of the said two Acts. Therefore, the technical ground urged by Mr. Pathak that the, 640 relevant claim was made on the provisions of the two specified Acts and should be rejected solely on the ground that the said Acts do not apply, cannot be sustained. It was a general reference which the Adjudicator was called upon to decide and the fact that the said two Acts did not apply, cannot be said to rule out the said claim as to leave in limine. Then Mr. Pathak was driven to contend that the ground of social justice given by the Labour Appellate Tribunal in support of its award is really not sound in law, and he referred us to the observations made by this Court on some occasions that the considerations of social justice 'were "not only irrelevant but untenable" vide J.K. Iron & Steel Co., Ltd. Kanpur vs The Iron and Steel Mazdoor Union, Kanpur (1), and Muir Mills Co., Ltd. vs Suti Mills Mazdoor Union, Kanpur. (2), In our opinion, the argument that the considerations of social justice are irrelevant and untenable in dealing with industrial disputes, has to be rejected without any hesitation. The development of industrial law during the last decade and several decisions of this Court in dealing with industrial matters have emphasised the relevance, validity and significance of the doctrine of social justice, vide Messrs. Crown Aluminum Works vs Their Workmen, (s) and The State of Mysore vs The Workers of Gold Mines (4) Indeed the concept of social justice has now become such an integral part of industrial law that it would be idle for any party to suggest that industrial adjudication can or should ignore the claims of social justice in dealing with industrial disputes. The concept of social justice is not narrow, one sided, or pedantic, and is not confined to industrial adjudication alone. Its sweep is comprehensive. It is founded on the basic ideal of socioeconomic equality and its aim is to assist the removal of socioeconomic disparities and inequalities ; nevertheless, in dealing with industrial matters, it does not adopt a doctrinaire (1)[1955] 2 S.C.R. 1315. (2)[1955] 1 S.C.R. 991. (3)[1958]S.C.R. 651. (4) ; 741 approach and refuses to yield blindly to abstract notions, but adopts a realistic and pragmatic approach. It, therefore, endeavours to resolve the competing claims of employers and employees by finding a solution which is just and fair to both parties with the object of establishing harmony between capital and Labour, and good relationship. The ultimate object of industrial adjudication is to help the growth and progress of national economy and it is with that ultimate object in view, that industrial disputes are settled by industrial adjudication on principles of fair play and justice. That is the reason why on several occasions, industrial adjudication has thought it fit to make reasonable provision for leave in respect of the workmen, who may not strictly fall within the purview of the Factories Act or the Shops and Commercial Establishments Act. We are, therefore, satisfied that there is no substance in the grievance made by Mr. Pathak that the Labour Appellate Tribunal should not have granted the demand of the respondents for leave on grounds of fair play and social justice. The result is, Civil Appeal No. 481/1962 fails and is dismissed with costs. Civil Appeal No. 480 of 1962 has not been pressed and is, therefore, dismissed. There would be no order as to costs. Appeals dismissed.

IN-Abs

An industrial dispute was referred by the Government of Uttar Pradesh for adjudication to the Adjudicator, Kanpur. ,Me Adjudicator held that the Malis were workmen under the U.p. but they were not Industrial employees and hence were not entitled to claim dear food allowance under the Government order dated December 6, 1948. The claims of the Malis with regard to weekly holidays and leave with wages were also rejected by the Adjudicator. 725 Two crow appeals were filed against the order of the Adjudicator before the Labour Appellate Tribunal. The appeal of the appellant was dismissed. As regards the appeal of respondents, the Tribunal gave the Malis benefit of dear food allowance. Their claim for leave with wages was also allowed on the ground of social justice. However, their claim for weekly holiday was rejected. The appellant filed a writ petition in the Allahabad High Court but that was dismissed as in fructuous. The appellant came to this court by special leave. The contentions raised by the appellant in this court were that the Malis were not workers within the meaning of section 2 of the U.P. , that Malis were not industrial employees within the meaning of Government order dated December 6, 1948, and hence were not entitled to dear food allowance and that the Labour Appellate Tribunal should not have granted the demand of the respondents for leave on ground of fair play and social justice. Held that the Malis were workers within the meaning of section 2, of the U.P. They were employed by the appellant, were paid by it and were, subject, to its control and supervision and *discharged the function of looking after the properties of the appellant. Their conditions, of service were also determined by the appellant and the continuance of their service also depended upon the pleasure of the appellant. The bungalows and gardens on which they worked were a kind of amenity supplied by the appellant to its officers. Hence, the Malis were engaged in operations which were incidentally connected with the main industry carried on by the employers The case of the Malis was similar to that of the bus drivers. The relation of the work carried on by the Malis with the industry was not remote, indirect or far fetched. The employee who is engaged in any work or operation which is incidentally,connected with the main industry of the employer is a workman, provided the other requirements of section 2 (s) of the industrial Disputes Act are satisfied. Held also, that the Malis were industrial employees within the meaning of the Government order dated December 6, 1948, and hence were entitled to claim the benefit of dear food allowance. The Tribunal was in error in limiting the scope of the expression, " Industrial , employees" by reference to the definition of the word "worker" as given in the Factories Act, 726 Held also, that the Tribunal was justified in granting the demand of the respondents for leave on grounds of fair play and social justice. The concept of social justice has now become such an integral part of industrial law that it is idle for any party to suggest that industrial adjudication can or should ignore the claims of social justice in dealing with industrial disputes. The concept of social justice is not narrow, one sided or pedantic and is not confined to industrial adjudication alone. Its sweep is comprehensive. It is founded on the basic ideal of socioeconomic equality and its aim is to assist the removal of socioeconomic disparities and inequalities. In dealing with industrial matters, it does not adopt a doctrinaire approach and refuses to yield blindly to abstract notions, but adopts a realistic and pragmatic approach. It endeavors to resolve the competing claims of employers and employees by finding a solution which is just and fair to both parties with the object of establishing harmony between capita i labour and relationship. Shri Bhikari, Kanpur vs Messrs. Cooper Allen & Co., Kanpur, ; The Upper India Chini Mills Mazdoor Union vs The Upper India Sugar Mills ; The Suti Mill Mazdoor Sabha, Kanpur vs Messrs. The British India Corporation Ltd., Kanpur, ; J.K. Iron& Steel Co. Lid, Kanpur vs The Iron and Steel Masdoor Union, Kanpur, ; Muir Mills Co. Ltd. vs Suti Mills Mazdoor Union, Kanpur, ; ; Messrs. Crown Aluminium Works vs Their Workmen, ; and The State of Mysore vs The Workers of Gold Mines, [1959] S.C.R. 895, referred to.

Appeals Nos. 333 334 of 1962. Appeals by special leave from the preliminary order dated June 3, 1961 and Order dated September 29, '1961 of the Second Labour Court, Bombay in Applications (I.D.A.) Nos. 447 to 462 of 1958. R.J. Kolah, J. B. Dadachanji, O. C. Mathur and Ravinder Narain, for the appellant. section V. Gupte, Additional Solicitor General of India, K. T. Sule, M. C. Bhandare, M. Rajagopalas and K. B. Chaudhuri, for the respondents. May 9. The judgment of the Court was delivered by GAJENDRAGADKAR.J. These 16 appeals arise out of petitions filed by the 16 respondents who arc the employees of the appellant, the Bombay Gas Co. Ltd., under section 33C (2) of the Industrial Disputes Act (No. 14 of 1947) (hereinafter called the Act). These respondents are the District Siphon Pumpers and Heat Appliances Repairers Inspectors, and in their applications made before the Second Labour Court, Bombay, they alleged that as a result of the award made by the Industrial Tribunal in reference (I. T.) No. 54 of 1949 published in the Bombay Government Gazette on May 11, 1950, they were entitled to a certain benefit 712 and they moved the Labour Court to compute that benefit in terms of money and to direct the appellant to pay the same to them. The direction in the earlier award on which this claim was based was made in these terms "The demand in respect of the workers of the Mains, Services and District Fittings Departments and Lamp Repairers and others who were till 1948 required to work on Sundays and in respect of whom a weekly day off was enforced thereafter without any corresponding increase in wages is granted. In respect of the rest, the demand is rejected. This demand was resisted by the appellant on several preliminary grounds which formed the subject matter of several preliminery issues framed by the Labour Court. The principal contentions raised by the appellant by way of preliminary objections were. that the applications made by the respondents were not maintainable under section 33C (2) of the Act and that the said applications were barred by res judicata by reason of awards made in other proceedings between the same parties. It was also urged by the appellant that if the claim made by the respondents was held to be justified by the direction of the award on which the respondents relied, then the said direction was given by the earlier Tribunal without jurisdiction and as such, was incapable of enforcement. On the construction, the appellant urged that the said direction did not cover the cases of the respondents, and it was argued that even if the said direction was held to be valid and it was also held that it gave the respondents the right to make the present claim, the conditions precedent prescribed by the said direction had not been satisfied by any of the respondents, and so, on the merits, their claim could not be sustained. 713 The Labour Court took up for trial 10 prcliminary issues in the first instance and by its judgment delivered on June 3, 1961, it rejected all the preliminary pleas raised by the appellant. In other words, the preliminary issues framed by the Labour Court were found in favour of the respondents. Thereafter, the applications were set down for hearing on the merits and evidence was led by both the parties in support of their respective claims. On considering the evidence, the Labour Court came to the conclusion that the respondents had established their claims, and so, it has directed the appellant to pay to the respondents the respective amounts specified against their names in the award. The plea raised by the appellant that the whole of the: claim made by the respondents should not be allowed on the ground of belatedness and laches, was, according to, the Labour Court, not sustainable under section 33C (2). That is why the Labour Court computed the benefits claimed by the respondents in terms of money from the date when the earlier award became enforceable until the date of the present applications filed before it. The appellant has come to this Court by special leave against the preliminary decision and the final order passed by the Labour Court in favour of the respondents. Before dealing with the points raised in the present appeals by the appellant, it is necessary to set out briefly the terms of the earlier award on which the respondents ' claims are based. In the previous industrial dispute, the employees of the appellant had made several demands. In the present case, we are concerned with demand No. 11. This demand was made in these terms "(a) Workers should get a paid weekly off. (b) Weorkers of Mains, Services and District Fitting Departments and Lamp Repairers, 714 who have been adversely affected in the matter of their earnings on account of closing down of the overtime and Sunday Work, should be compensated for the loss suffered by them; compensation being the amount lost by them since the scheme was introduced. " The Tribunal which dealt with this demand observed that demand No. 11 (a) had been badly worded. There was, however, no doubt that what the employees claimed against the appellant was, in substance, a demand for paid weekly off only for those workers who were actually getting a weekly off, though without pay. In dealing with this demand, the Tribunal noticed the fact that all the monthly paid staff employed by by the appellant got a paid weekly off,and so,it thought that there was no reason to dicriminate between the said staff and the daily rated workers. In regard to the daily rated workers usually, their mothly income would be determined on the basis of a month consisting of 26 working days. From the Statement of claim 'filed by the Union before the Tribunal, it appeared that prior to 1946, most of the workers used to work for all the seven days of the week. By about August, 1946, however, weekly offs were enforced upon the major section of the workmen. In June 1946, the appellant and the Union had entered into an agreement as regards wage scales of various categories of workers, and the Tribunal assumed that in respect of most of the daily rated workers, the wages must have been fixed on the basis of what their monthly income would be for 26 working days. It is in the light of this. background that the Tribunal proceeded to examine demand No. 11 (a). The Tribunal noticed that in the case of the four categories of workers specified in demand No. 11 (b), difference had to be made because it could not be said in their case that their daily rates of 715 wages were fixed with reference to a month of 26 working days. The result was that with the introduction of the weekly off, the wages of those workers were reduced. Naturally, the Tribunal observed that in such a case, the concession of a weekly off would be a very doubtful benefit if as a result, the monthly income of the workers was to go down. That is why the Tribunal gave the direction on which the respondents ' present claim is based. This direction we have already quoted at the beginning of the judgment. Having thus dealt with demand No. 11 (a), the Tribunal proceeded to examine, demand No, 11 (b), and it ordered that the workers of Mains, Services and District Fittings Departments and Lamp Repairers who had been adversely affected in the matter of their earnings on account of closing down of Sunday work, should be compensated for the loss suffered by them, by payment of their wages and dearness allowance for the weekly off given to them from June 1, 1949 onwards till the date of the publication of the award. The question about the scope and effect of the provisions of section 33C (2) of the Act and the extent of the jurisdiction conferred on the Labour Court by it have been recently considered by us in the case of The Central Bank of India Ltd. vs P. section RajagopaIan (1). That decision shows that the applications made by ' the respondents were competent and the Labour Court had jurisdiction to deal with the question as to the computation of the benefit conferred on the respondents in terms of money. Mr. Kolah for the appellant contends that though the applications made by the respondents may be competent and the claim made by them may be examined under section 33C (2), it would, nevertheless, be open to the appellant to contend that the award on which the said claim is based is without jurisdiction and if he succeeds in (1) , 716 establishing his plea, the Labour Court would be justified in refusing to give effect to the said Award. In our opinion, this contention is well founded. The proceedings contemplated by section 330 (2) are, in many cases, analogous to execution proceedings, and the labour Court which is called upon to compute in terms of money the benefit claimed by an industrial employee is, in such cases, in the position of an executing court; like the executing court in execution proceedings governed by the Code of Civil Procedure the Labour Court under section 33C (2) would be competent to interpret the award on which the claim is based, and it would also be open to it to consider the plea that the award sought to be enforced is a nullity. There is no doubt that if a decree put in execution is shown to be a nullity the executing court can refuse to execute it. The same principle would apply to proceedings taken under s 33C (2) and the jurisdiction of the labour court before which the said proceedings are commenced. Industrial Tribunals which deal with industrial disputes referred to them under section 10 (1) (d) of the Act are, in a sense, Tribunals with limited jurisdiction. They are entitled to deal the disputes referred to them, but they cannot I outside the terms of reference and deal with matters not included in the reference, subject, of course, to incidental matters which fall within their jurisdiction. Therefore, on principle, Mr. Kolah is right when he contends that the Labour Court would have been justified in refusing to implement the award, if it was satisfied that the direction in the award on which the respondents ' claim is based is without jurisdiction. That takes us to the question about the merits of the plea raised. by Mr. Kolah. Mr. Kolah contends that the direction in question on which the respondent 's claim is based, is invalid for the reason that the Tribunal travelled outside the terms of reference when it added the words " 'and others" in the 717 said direction. His argument is that the said direction has really been issued under demand No. 11 (b) and since the said demand was confined to the four categories of workmen specified in it, the Tribunal had no jurisdiction to extend the relief to any workers outside the said four categories by adding the words " and others". Thus presented, the argument is no doubt attractive, but on a careful examination of the scheme of the award in so far as it relates to demand No. 11, it would be clear that the impugned direction has relation not to demand No. 11 (6), but to demand No. 11(a), and it is obvious that demand referred to all workers and was not confine to any specified categories of workers. It is true that in dealing with the said demand, the Tribunal prominently referred to the four categories of employees specified in demand No. 11 (b), but that is not to say that it was confining the said demand to the said four categories. The said four categories were mentioned specifically because they clearly brought out the cases of workmen to whom relief was due under demand No. 11 (a). Having thus dealt with the said four categories by name, the Tribunal thought it necessary, and we think, rightly, to add the words "and others", because if there were other workmen who were till 1948 required to work on Sundays and in respect of whom a weekly day off was introduced thereafter without any corresponding increase in their wages, there was no reason why they should not have been given the benefit which was given to the workmen of the four categories specifically discussed. it is significant that having thus comprehensively described the workmen who were entitled to the said benefit, the Tribunal has added that in respect of the remaining workmen, demand No. 11 (a) was rejected. Therefore, we are satisfied that the relief granted by the Tribunal in paragraph 115 of its award has reference. to demand No. 11 (a) and the use of the words "and others" is not only not outside the terms of reference, but is quite appropriate and justified. 718 That being so, it is difficult to sustain the plea that the impugned direction was without jurisdiction. Mr. Kolah no doubt relied on the fact that the present respondents never thought that they were entiteld to the benefit conferred by the impugned direction and in support of this plea, he referred us to the fact that in ' 1952, a demand was made on their behalf for a similar benefit. If the respondents had felt that the benefit conferred by the impugned direction was available to them, it is very unlikely says Mr. Kolah, that they would have made the same demand in 1952 on the basis that it had not been granted to them by the earlier award. It does appear that this demand was made on behalf of the respondents and the Government of Bombay took the view that the said demand had already been considered by the Tribunal and that it was too late to reopen it in regard to other categories of employees; that is why the Government refused to make a reference. In our opinion, this fact cannot materially assist Mr. Kolah, because on a fair and reasonable construction of the material direction in the award, we are satisfied that the said clause applies to all workers of the appellant who satisfy the test prescribed by it. If the respondents did not understand the true scope and effect of the said clause, that cannot affect the construction of the clause. Therefore, we do not think that the failure of the respondents to take advantage of the said clause soon after the earlier award was pronounced can have any bearing on the construction of the clause. Then, Mr. Kolah has suggested that on the merits the respondents are not entitled to make the claim, because, it is not shown by them that they were required to work on all Sundays in the relevant years. He argues that the test prescribed by the direction is that the benefit should be available to 719 workmen who were, till 1948, required to work on Sundays and that, it is suggested, must mean "who were required to work on all Sundays in the year". This argument has been examined by the Labour Court and it has found that the respondents were required to work on Sundays before 1948, though they might not have attended on all Sundays. In support of this finding, the Labour Court has referred to Ext. 32 and has drawn the inference from the said document that the workers in the Syphon Department were required to work on all Sundays before September, 1948, and it has added that the fact that they did not work on some Sundays may be attributed to some casual circumstances, such as the workers having voluntarily remained absent, or there not being sufficient work for all, some might have been sent home. Mr. Kolah has invited our attention to the chart (Ext. 32) and has shown that in some cases, the employees were not required to work even half the number of Sundays during that year. In our opinion, this argument proceeds on a misconstruction of the relevant clause in the award. The said clause does not provide that before getting the benefit in question, the workers must show that they actually worked on all Sundays in the year. The test which has to be satisfied by the workers is that they could have been required to work on Sundays in that year. In other words, what the Tribunal decided was that if there were workers employed by the appellant whom the appellant could require to work on Sundays during the relevant year, they would be entitled to the benefit. In other words, the test is : did the terms and conditions of service impose an obligation on the workers to attend duties on Sundays if called upon to do so? That is very different from saying that the benefit would be available only if the workers in question worked on all Sundays. Therefore, we do not think there is any substance in the argument that since the respondents had not been actually required to work on all Sundays in the 720 relevant year, they were not entitled to the benefit of the relevant clause in the award. That leaves one more question to be considered. Mr. Kolah has strenuously argued that the Labour Court should not have allowed the claim of the respondents for such a long period when they made the present applications nearly 8 years after the award was pronounced. It is true that the earlier award was pronounced on May 11, 1950 and the present applications were made in 1958. In support of his argument that the delay made by the respondents should be taken into account, Mr. Kolah has referred to the fact that under the Payment of Wages Act (No. 4 of 1936) a claim for wages has to be made within six months from the date on which the cause of action accrues to the employees. In the State of Maharashtra, by local modification, this period is prescribed as one year. The argument is that the present claim made by the respondents under section 33 C(2) is a claim for wages within the meaning of the Payment of Wages Act. If the respondents had made such a claim before the authority under the said Act, they could not have got relief for more than a year. It would be anomalous, says Mr. Kolah. that by merely changing the forum, the respondents should be permitted to make a claim for as many as 8. years under section 33C (2). In this connection, Mr. Kolah also contends that by virtue of section 22 of the Payment of wages Act, a claim for wages cannot be made by an industrial employee in a civil court after a lapse of one year, because though the period for such a., suit may be 3 years under article 102, a civil suit is barred by section 22. The jurisdiction conferred on the payment authority is exclusive and so far as the said Act goes, all claims must be made within one year. Prima facie, there is some force in this argument. It does appear to be somewhat anomalous that a claim which would be rejected as barred by 721 time if made under the Payment of Wages Act., should be entertained under section 33C (2) of the Act; but does this apparent anomaly justify the introduction of considerations of limitation in proceedings under section 33C (2)? Mr. Kolah suggests that it would be open to this Court to treat leaches on the part of the employees as a relevant factor even in dealing with case under section 33C (2) and he has relied one fact that this Court has on several occasions discouraged belated claims in the matter of bonus. in appreciating the validity of this I argument, we do not propose to consider whether the jurisdiction conferred on the authority under the Payment of Wages Act is exclusive in the sense that a claim for wages cannot be made by an industrial employee in a civil court within 3 years as permitted by article 102; that is a question which may have to be decided on the merits when it directly arises. For the purpose of the present appeal, the only point which we have to consider is : does the fact that for recovery of wages limitation has been prescribed by the payment of Wages Act. Justify the introduction of considerations of limitation in regard to proceedings taken under section 33C (2) of the Act ? In dealing with this question, it is necessary to bear in mind that though the legislature knew how the problem of recovery of wages had been tackled by the Payment of Wages Act and how limitation had been prescribed in that behalf, it has omitted to make any provision for limitation in enacting section 33C (2). The failure of the legislature to make any provision for limitation cannot, in our opinion, be deemed to be an accidental omission. In the circumstances, it would be legitimate to infer that legislature deliberately did not provide for any limitation under section 33C (2). It may have been thought that the employees who are entitled to take the benefit of section 330 (2) may not always be conscious of their rights and it would not be right to put the restriction 722 of limitation in respect of claims which they may have to make under the said provision. Besides, even if the analogy of execution proceedings is treated as relevant, it is well known that a decree passed under the Code of Civil Procedure is capable of execution within 12 years, provided, of course, it is kept alive by taking steps in aid of execution from time to time as required by article 182 of the Limitation Act, so that the test of one year or six months ' limitation prescribed by the Payment of Wages Act cannot be treated as a uniform and universal test in respect of all kinds of execution claims. It seems to us that where the legislature has made no provision for limitation, it would not be open to the courts to introduce any such limitation on grounds of fairness or justice. The words of section 33C (2) are plain and unambiguous and it would be the duty of the Labour Court to give effect to the said provision without any considerations of limitation. Mr. Kolah no doubt emphasised the fact that such belated claims made on a large scale may cause considerable inconvenience to the employer, but that is a consideration which the legislature may take into account, and if the legislature feels thatch play and justice require that some limitations be prescribed, it 'may proceed to do so. In the absence of any provision,however, the Labour Court cannot import any such consideration in dealing with the applications made under section 33C (2). Mr. Kolah then attempted to suggest that article 181 in the First Schedule of the Limitation Act may apply to the present applications, and a period of 3 years ' limitation should, therefore, be held to govern them. Article 181 provides 3 years ' limitation for applications for which no period of limitation is provided elsewhere in Schedule 1, or by section 48 of the Code of Civil Procedure, and the said period starts when the right to apply accrues. In our opion, this argument is one of desperation. It is well settled 723 that article 181 applies only to applications which are made under the Code of Civil Procedure, and so, its extension to applications made under section 33C (2) of the Act would not be justified. As early as 1880, the Bombay High Court had held in Rai Manekbai vs Manekji Kavasji (1), 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, and the consensus of judicial opinion on this point had been noticed by the Privy Council in Hansraj Gupta vs Official Liquidator8, Dehra Dun Mussoorie Electric Tramway Company Ltd. (2) An attempt was no doubt made in the case of Sha Vulchand & Co. Ltd. vs Jawahar Mills Ltd. (3), to suggest that the amendment of articles 158 and 178 ipso facto altered the meaning which had been attached to the words in article 181 by judicial decisions, but this attempt failed, because this Court held " 'that the long catenate of decisions under article 181 may well be said to have, as it were, added the words "under the Code" in the first column of that Article. " Therefore it is not possible to accede to the argument that the limitation prescribed by article 181 can be invoked in dealing with applications under section 33C (2) of the Act. It is true that in dealing with claims like bonus, industrial adjudication has generally discouraged laches and delay, but claims like bonus must be distinguished from claims made under section 33C (2). A claim for bonus, for instance, is entertained on grounds of social justice and is not based on any statutory provision. In such a case,, it would, no doubt, be open to industrial adjudication to have regard to all the relevant considerations before awarding the claim and in doing so, if it appears that a claim for bonus was made after long lapse of time, industrial adjudication may refuse to entertain the claim, or Government nay refuse to make reference in that behalf. But these considerations would (1)[1880] I.L R. (2) [1932] L.R. 60 I.A. 13, 20. (3) ; , 371 , 724 be irrelevant when claims are made under section 33C (2), where these claims are, as in the present case, based on an award and are intended 'merely to execute the award. In such a case, limitation cannot be introduced by industrial adjudication on academic ground of social justice. It can be introduced, if at all, by the legislature. Therefore, we think, that the Labour Court was right in rejecting the appellant 's contention that since the present claim was belated, it should not be awarded. In the result, the appeals fail and are dismissed with costs. Appeals dismissed.

IN-Abs

Petitions were filed by sixteen respondents under section 33C(2) of the , claiming certain benefits under an award made by an Industrial Tribunal. The prayer was to compute the benefits in terms of money and direct the appellant to pay the same to them. Many objections were raised by the appellant but these were rejected by the Labour Court which accepted the claim of the respondents and directed the appellant to pay to the respondents the respective amounts specified against their names in the award. The appellant came to this Court by special leave. The contentions raised by the appellant before this Court were that the award, on which the claim was based, was without jurisdiction and hence the Labour Court should have refused to implement it; that in order to get benefit, the workers must show that they actually worked on all Sundays in the year before September, 1948; and that as the claims of the respondents were belated, those should not have been awarded. Held that the Labour Court would have been justified In refusing to implement the award if it was satisfied that the 710 direction in the award on which the respondents ' claim was based, was without jurisdiction, but as that was not actually so, the impugned direction was according to law. The applications made by respondents were competent and the Labour Court had jurisdiction to deal with the question as to the computation of the benefit conferred on the respon dents in terms of money. The proceedings contemplated by section 330 (2) were, in many cases, analogous to execution proceed ings and the Labour Court which was called upon to compute in terms of money the benefit claimed by an industrial employee, was in the position of an executing court and was competent to interpret the award on which the claim was based and also consider the plea that the award, sought to be enforced, was a nullity. Held also, that there was no substance in the argument that since the respondents had not been actually required to work on all Sundays in the relevant year, they were not entitled to the benefit given in the award. The test which had to be satisfied by the workers was that they could have been required to work on Sundays in that year and not that they actually so worked. Held also, that the legislature has not made any provision for limitation for applications under section 33C (2) and it was not open to the Courts to introduce any such limitation on grounds of fairness or justice, The words of section 33 C (2) were plain and unambiguous and it was the duty of the Labour Court to give effect to the said provisions without any considerations of limitation. The employees who are entitled to take the benefit of section 33C (2) may not always be conscious of their right and it would not be right to put the restriction of limitation in respect of claims which they may have to make under the said provision. There was no justification for applying the provisions of the Payment of Wages Act and article 181 of the Limitation Act to the proceeding under section 33C (2). Claims like bonus arc distinguishable from claims made under section 33C (2). A claim for bonus is entertained on grounds of social justice and is not based on any statutory provision and in such a case, it is open to industrial adjudication to have regard to all the relevant considerations before awarding the claim and in doing so if it appears that a claim for bonus was made after long lapse of time, industrial adjudication may refuse to entertain the claim or Government may refuse to make the reference in that , behalf. 711 However, those considerations are irrelevant when claims we made under section 330 (2). In such cases limitation cannot be introduced by industrial adjudication on academic grounds of social justice. Central Bank of India Ltd. vs P. section Rajagopalan, [1964] Vol. 3 S.C.R. 140; Rai Manekbai vs Manekji Kavasji, (1883) 7 Bom. 213; Hansral Gupta vs Official Liquidators, Dehra Dun Musoorie Electric Tramway Co. Ltd., (1932) L.R. 60 I.A. 13 and Sha Mulchand & Co. Ltd. vs Jawahar Millar Ltd. ; , referred to.