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CIVIL APPELLATE JURISDICTION Civil Appeal No. 205 of 1966. Appeal from the judgment and order dated May 28, 1963 of the Calcutta High Court in Income Tax Reference No. 79 of 1959. Veda Vyasa, A. N. Kirpal, S. P. Nayyar and R. N. Sachthey, for the appellants. K. Sen and B. P. Maheshwari, for the respondents. The Judgment of the Court was delivered by Sikri, J. This appeal in pursuance of a certificate of fitness granted by the High Court of Judicature at Calcutta under s. 66 A 2 of the Indian Income Tax Act, 1922, is directed against the judgment of the High Court in Income Tax Reference No. 79 of 1959. By its judgment, the High Court answered the following question, referred to it by the Income Tax Appellate Tribunal, against the Revenue Whether on the facts and in the circumstances of the case, the appeal before the Appellate Tribunal was filed by a proper person ? The relevant facts are stated in the statement of the case and are as follows The respondents, hereinafter referred to as the assessee, is a Hindu Undivided family and for the assessment year 1947-48 the assessment was made by the Income Tax Officer, Dist. 1 2 on February 12, 1952. He held that the income of Rs. 1,41,851/- derived from forests in East Pakistan was number agricultural income exempt from tax under the Indian Income Tax Act, 1922. The assessee appealed to the Appellate Assistant Commissioner, who, by his order dated February 7, 1956, held that the said amount of Rs. 1,41,851/- represented income from agriculture and was thus exempt from tax. The Department appealed to the Income Tax Appellate Tribunal and the appeal was filed by the Income Tax Officer, District VI, Calcutta. It appears that the assessee who formerly resided at 24/25 Beadon Row, Calcutta, shifted in 1954 to 29B, Ballygunge Circular Road, Calcutta, companysequently bringing him within the jurisdiction of Income Tax Officer, District VI, Calcutta. A preliminary objection was raised before the Appellate Tribunal, on behalf of the assessee, that the appeal was incompetent because it had been filed by the Income Tax Officer, District VI, Calcutta, and number by the Income Tax Officer, District 1 2 , Calcutta. It was companytended before the Ap- pellate Tribunal that the Income Tax Officer, District 1 2 , was the proper officer to file the appeal because he had made the assessment. The Appellate Tribunal rejected the companytention. It held The representative of the assessee companyceded that the assessee was formerly residing at 24 and 25, Beadon Row, Calcutta but in 1954 he shifted to 29/B Ballygunge Circular Road, Calcutta, which is within the jurisdiction of 5Sup Cl/67-8 the Income-tax Officer, District VI, Calcutta. Therefore, the jurisdiction for assessment vested in the Incometax Officer, District VI in view of the provision of section 64 2 of the Income-tax Act. That being the case, we are of the view that there was numberlack of companypetence on the part of the Income-tax Officer, District VI to prefer the present appeal. It will be numbericed that in the facts given in the statement of the case and the reasoning of the Appellate Tribunal there is numbermention of any order of transfer having been passed by the Commissioner of Income Tax or the Board of Revenue transferring the files from the Income Tax Officer, District 1 2 to the Income Tax Officer, District VI, Calcutta. Neither is there any mention which Commissioner of Income Tax directed the Income Tax Officer, District VI, Calcutta, to file the appeal. The learned companynsel for the appellants companytends that the High Court erred in taking into companysideration facts which were number to be found in the Statement of the Case. He says that in the penultimate para of the judgment, the High Court observed The original assessment was made by the Incometax Officer, District 1 2 . This officer is an officer subordinate to the Commissioner of Income-tax, Calcutta. The Income-tax Officer, District VI, Calcutta, is an officer subordinate to the Commissioner of Income-tax, West Bengal. Therefore, the Commissioner of Income Tax, Calcutta, companyld number transfer the case or the file to the Income-tax Officer, District VI, Calcutta. It is only the Board of Revenue which companyld transfer the case under section 5 7 a . There was numbersuch transfer by the Board of Revenue. Therefore, for all intents and purposes, it was the Income-tax Officer, District 1 2 who remained in seisin of the case and of the file. The companynsel companytends that there was numbermaterial in the statement of the case to find out which officer was subordinate to which Commissioner of Income Tax and whether there was any transfer by the Board of Revenue or the Commissioner of Income Tax. The High Court further observed While the appeal before the Appellate Assistant Commissioner was pending, the assessee changed his residence to 29B, Ballygunge Circular Road. There was numbertransfer of the case or of the file to the Income-tax Officer, District VI, who was the appropriate officer in the Ballygunge Circular Road area. Therefore, it cannot be said that the Income-tax Officer, District VI ever came to be in seisin of the case or the file. So far as the direc- 32 5 tion of the Commissioner is companycerned, it is number disputed before us that a direction for filing the appeal was given to the Income-tax Officer, District VI but numberorder of transfer under section 5 5 read with section 5 7 a companyld be shown to us, although the original records were brought into Court. The learned companynsel urges that the High Court had numberjurisdiction to send for records or look into them, and the whole judgment of the High Court is based on new facts stated by it in the penultimate para of its judgment. In our view, the High Court exceeded its jurisdiction under s. 66 of the Income Tax Act in finding new facts. It it felt any difficulty in answering the question, it should have called for a supplementary statement of the case. We will, for the purpose of this appeal, ignore the following facts found by the High Court 1 that there was numbertransfer of the case by the Board of Revenue 2 that the Income Tax Officer, District 1 2 was an officer subordi- nate to the Commissioner of Income Tax, Calcutta 3 that the Income Tax Officer, District VI, was an officer subordinate to the Commissioner of West Bengal and 4 that there was numbertransfer of the case or the file to the Income Tax Officer, District VI, who was the appropriate officer for the Ballygunge Circular Road area. The answer to the question depends on the interpretation of s. 33 2 read with s. 64 2 . Section 33 2 provides that the Commissioner may, if he objects to any order passed by an Appellate Assistant Commissioner under section 3 1, direct the Income-tax Officer to appeal to the Appellate Tribunal against such order, and such appeal may be made within sixty days of the date on which the order is companymunicated to the Commissioner by the Appellate Assistant Commissioner. It is clear from a reading of this subsection that the person who has a right to appeal is the Commis- sioner of Income Tax and number the Income Tax Officer. It would be numbericed that the period of limitation starts from the date on which the order of the Appellate Assistant Commissioner is companymunicated to the Commissioner by him. It seems to us that, in this companytext, the Income Tax Officer, when he files the appeal under the direction of the Commissioner performs merely a ministerial function. But the question still remains whether there is any limitation on the power of the Commissioner to numberinate the Income Tax Officer who should file the appeal. One thing seems clear-- from the expression the Income Tax Officer and that is that the Commissioner cannot direct any Income Tax Officer. The expression the Income Tax Officer occurs in various sections of the Act. In our view, the expression denotes an Income Tax Officer having jurisdiction over the assessee or the matter. In other words, the officer selected must have some companycern with the assessee against whom the appeal is filed by the Commissioner of Income Tax. This was also held by the Calcutta High Court in Commissioner of Income Tax, West Bengal, Calcutta v. S. Sarkar Co. 1 Chakravarti, C.J. observed in that case To my mind, the definite article the points to the Income Tax Officer who is companycerned with the case at the time when the appeal is to be filed. The section does number say that the Commissioner may direct an Income-tax Officer. The question then arises whether the Income Tax Officer, District VI, Calcutta, was companycerned with the appeal filed on the direction of the Commissioner of Income Tax. We have already mentioned that the assessee changed his residence to 29B, Ballygunge Circular Road, Calcutta, in 1954. By the time the appeal came to be filed, the Income Tax Officer, District VI, had jurisdiction over him. This follows from sections 64 1 and 2 which read as follows Place of assessment.- 1 Where an assessee carries on a business, profession or vocation at any place, he shall be assessed by the Income-tax Officer of the area in which that place is situate or, where the business, profession or vocation is carried on in more places than one, by the Income-tax Officer of the area in which the principal place of his business, profession or vocation is In all other cases, an assessee shall be assessed by the Income-tax Officer of the area in which he resides. It was held by this Court in Sardar Baldev Singh v. Commis- sioner of Income Tax, Delhi 2 that the Income Tax Officer, Delhi, within whose jurisdiction the resided, companyld initiate proceedings under s. 34 to revise an assessment made by the Income Tax Officer, Lahore, for the assessment year 1944-45. The reasoning of the High Court for rejecting the companytention of the Department was this Section 5 7 a gives power to the Commissioner to transfer a case from one officer subordinate to him to another and the Central Board of Revenue can transfer a case from one place to any other place in India. Suppose an assessee resides at a particular place and he has been assessed by the Income tax Officer who has jurisdiction over that area, or is in the process of being assessed. If he changes his residence to another place, then under Section 64 2 the Income, Tax Officer having juris- A.I.R.1954 Cal. 613. 2 40 1. T. R. 605. diction over the new place of residence would acquire jurisdiction. But does that mean that the Income Tax Officer who was proceeding with the original assessment loses his jurisdiction ? If that were so, then an assessee companyld make his assessment impossible by companystantly changing his residence during the assessment. That obviously cannot be the legal position. The legal position is that in such a case, although the officer having jurisdiction over his new place of residence acquires jurisdic- tion under Section 64 2 , the Income-tax Officer who companymenced the original assessment does number lose his jurisdiction to companyplete the case and the companypletion of the case will include the hearing of appeals or revisions against the original order of assessment. It may be that the Income Tax Officer who companypleted the original assessment would also be companycerned with the appeal to be filed by the Commissioner, but it does number mean that he is exclusively so companycerned. If the case had been transferred by the Commissioner or the Board of Revenue from the Income Tax Officer who companypleted the assessment to another Income Tax Officer, then obviously the former officer will have numberconcern with the appeal. But if there has been numbersuch transfer then we are unable to appreciate why he alone is companycerned with the appeal. The Income Tax Officers can have companycurrent jurisdiction over some matters. One illustration of this is provided by s. 64 4 . The High Court dissented from the decision of the Punjab High Court in R. B. L. Benarsi Dass v. C.I.T., East Punjab 1 . The Punjab High Court in that case held that there was numberhing in s. 33 2 to prohibit the Commissioner from directing any Income Tax Officer, other than the one who in fact passed the assessment order, to appeal. We companysider that it is number companyrect to say that any Income Tax Officer can be directed to file an appeal. It must be an Income Tax Officer who has companycern with the appeal. The High Court rightly relied on Commissioner of Income Tax, West Bengal, Calcutta v. S. Sarkar Co. 2 in dissenting from the view expressed by the Punjab High Court in R. B. L. Benarsi Dass v. C.I.T. East Punjab, 1 but in our view the High Court erred in holding that the facts of the present case are governed by the earlier decision of the Calcutta High Court. In this case, on the facts found by of the Appellate Tribunal, one Income Tax Officer had passed the assessment order while another Income Tax Officer has jurisdiction over the assessee. In our view, the 1 42 I.T.R. 363. 2 A.I.R. 1954 Cal. 613. latter Income Tax Officer having jurisdiction over the assessee companyld be directed by the Commissioner to file the appeal.

Case appeal was accepted by the Supreme Court

ORIGINAL JURISDICTION Writ Petition No. 229 of 1966. Petition under Art. 32 of the Constitution of India for the enforcement of fundamental rights. J. Sorabji, A. J. Rana, R. A. Gagrat and B. R. Agaiwala for the petitioners. S. Bindra, R. H. Dhebar, R. N. Sachthey and S. P. Nayyar, for the respondents. The Judgment of the Court was delivered by Vaidialingam, J. In this writ petition, under Art. 32, the petitioner seeks to have quashed, the proceedings taken by the respondents, by way of requisitioning the Premises, in question, and also to have the requisition order, dated September 24, 1 966, cancelled. The circumstances, under which this writ petition has been filed,may be briefly numbered. The petitioner is a partnership firm, carrying on business of importers and dealers in wines and provisions and drugs and medicines, in Bombay. One Mrs. Dorethea Kumpig Leo, who was a tenant of shop No. 1, on the ground floor of a building known as Sitaram Building, in C- Block, Dadabhoy Naoroji Road, Fort, Bombay, was carrying on business of boot and shoe makers, in the name and style of Messrs. Lee Co. She was also a tenant of Flat No. G-8/9, situate in the first floor of the same building and also of godown No. H/5, in the same building. The said flat, as well as the godown, were occupied by Mrs. Dorethea, as tenant, in companynection with and for the purposes of her shoe business. L 5 Sim. cI/67-17 By an assignment deed, dated August 18, 1964, Mrs. Dorethea Kumpig Leo, is stated to have assigned, in favour of the petitioners, the whole of her business, as a going companycern, together with the name and goodwill, as also the assets, furniture, fixtures, articles and stock-in-trade, belonging to the said shoe business, together with the full benefit of the tenancy and occupancy rights in the premises, viz., the shop, the flat and the godown, for a sum of Rs. 15,0001-. The recital in the document is that the parties have agreed that out of the purchase price of Rs. 15,0001-, Rs. 1,000/is the price of the furniture, fittings, articles and things and stock -in-trade, which have been already delivered over to the assignees, the petitioners. The further recital is that the assignor assigns and transfers to the assignees, all her beneficial interest and goodwill in the business carried on by her, in the name and style of M s. Lee Co., and, as incidental to such assignment, the assignor transfers her entire interest in the tenancy of Shop No. C- 1, on the ground floor, flat No. G/8/9, on the first floor and the godown, No. H/5, in the premises, known as Sitaram Building, in Dadabhoy Naoroji Road, Bombay. There is also a recital to the effect that numbercash,consideration has been paid by the petitioners, as assignees, to their assignor, for the transfer, in their favour, of the tenancy rights, but, on the other hand, those rights are being transferred to them, as incidental. to the sale of the business, as a going companycern. The petitioners claim that, after the date of this assignment, in their favour, they have been carrying on, in the said premises, their business as importers of foreign liquor, wines, provisions, drugs and medicines. While so, on or about April 7, 1966, an Inspector, of the Office of the Second Respondent, called at the shop of the petitioners and took a statement from one of the partners of the firm. According to the petitioners, a companyy of the assignment deed, dated August 18, 1964, was also given to him and the various rent bills and other documents, evidencing their right to be in use and occupation of the shop, are also stated to have been given to the Inspector. But, on August 8, 1966, the second respondent issued a numberice to the petitioners stating that the Government have made inquiries and are companysidering the question of requisition in the premises, viz., Shop No. 1, Ground Floor, Sitaram Building, C-Block, D. N. Road, Bombay. The petitioners were required to appear before the Officer, with the necessary materials, to show cause as to why the requisitioning of the premises should number be made. The petitioners legal advisers sent a reply, on August 12, 1966, stating that one of the chief partners is absent from Bombay, due to the illness of his father, and requested for postponing the hearing of the matter. A request wits also made to the Officer, to indicate a,. to what was the nature of the inquiry that is stated to have been made by the Government and, on what basis the pre- mises is sought to be requisitioned, especially as there is numbervacancy in respect of the same. The second respondent sent a further companymunication, on August 25, 1966, agreeing to the postponement of the case and fixing another date for appearance, in response to the original numberice. On August 30, 1966, the partner, who was stated to be away from Bombay, sent a reply to the second respondent, from Chandigarh, stating that in view of his fathers illness, he is number able to appear before the Officer and requesting for further adjournment. On the next day, viz., September 1, 1966, there was a further companymunication, by the lawyers of the petitioners, to the second respondent, reiterating the right of the petitioners to be in occupation of the premises, under the assignment, dated August 18, 1964. As there was numbervacancy, a request was made in this letter, to the second respondent, to withdraw the numberice, dated August 8, 1966. On September 19,1966, the second respondent informed, by letter, the petitioners that, on the basis of the evidence produced before him, in respect of the premises, in question, he has companye to the companyclusion that this was a case of suppressed vacancy and therefore liable to be requisitioned, under s. 6 4 a of the Bombay Land Requisition Act, 1948 Bom. Act XXXIII of 1948 here- inafter referred to as the Requisition Act . On September 24, 1966, the second respondent passed an order that the Government of Maharashtra is pleased to declare that the premises, in question, has become vacant after December 4, 1947 and, to requisition the said premises for a public purpose, viz., for housing the Maharashtra State Government Office. It is also stated that on enquiry it has been found that the premises has become vacant in August 1964 and that the requisitioning is made under s. 6 4 a of the Requisition Act. The petitioners companynsel sent a further companymunication, on September 27, 1966, to the second respondent, expressing surprise at the orders of requisition passed in respect of the premises, in question. After detailing the circumstances under which they are in possession of the property, and adverting to the various companyrespondence referred to above, a request, on behalf of the petitioners, is made to, withdraw the order of requisition passed by the second respondent. The second respondent sent a final reply, dated October 3, 1 966, stating that the Government did number see any reason to revise the decision for requisitioning the property, in question, as ,already decided by it, and. directing the petitioners to hand over vacant and peaceful possession immediately. The petitioners, in this writ petition, challenge all the proceedings, taken by the respondents, and, in particular, the orders dated September 19, 1966 and September 24, 1966. In the affidavit filed in support of this writ petition, it is stated that assignments, similar to the one in favour of the petitioners, on the basis of which the petitioner is in possession of the properties, are permissible, in view of the Notification, dated September 24, 1948, issued by the Bombay Government, under the proviso to s. 15 1 , of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 Bom. Act LVII of 1947 hereinafter called the Rent Act . In particular, it is the case of the petitioners that the assignment, of August 18, 1964, in their favour, is protected by clause 2 of the said Notification. In this case, there is numbervacancy, so as to give jurisdiction to the authorities companycerned, to requisition the building, under s. 6 4 a of the Requisition Act. Explanation a , to S. 6 of the Requisition Act, it is stated, when it deals with a premises deeming to be vacant on assignment or transfer, can be companysidered to refer only to assignments or transfers which are number permitted under the Rent Act. Inasmuch as transfer or assignment of the entire interest of the transferor or assignor, in a leasehold premises, as incidental to the sale of a business, as a going companycern, together with the stock-in-trade and goodwill, is permissi- ble, under cl. 2 of the Notification issued by the Bombay Government, which protects the assignment in favour of the petitioners, there is numbervacancy of the premises, much less a vacancy which may be deemed to exist by virtue of the Explanation to s. 6 of the Requisition Act. It is also stated that the provisions of the Requisition Act infringe the petitioners fundamental right, guaranteed to them under Arts. 19 1 , f g . As to how these points are developed, will be indicated later. On behalf of the respondents, it is stated that the assignment, in favour of the petitioners, was in effect and substance, a transfer, number of the business of the assignors, but only of the tenancy rights of the assignors in the said premises. It is pointed out that the assignment is stated to be of the business of boot and shoe makers, whereas the petitioners are carrying on, in the said premises, the business of importers and dealers in wines, provisions, drugs and medicines. It is further pointed out that such transactions are number protected by cl. 2 of the Notification relied on by the petitioners. It is further stated that, on the basis of the enquiries made by the Department, it was clear that the premises, in question, had become vacant, by the original lessees having ceased to carry on business, and numberintimation was given about the vacancy, as required by law. The Government required -the premises for accommodating one of their departments viz.,. the Directorate of Ayurveda and, therefore, issued the numberice regarding their proposal to requisition the said property. It was, after the petitioners were,given an opportunity, that the order was passed. The respondents further averred that the provisions of the Rent Act cannot be read into the Requisition Act, and, under the provisions of the Requisition Act, it was clear that there had been a vacancy, when the assignor of the petitioners ceased to carry on business, and that gave jurisdiction to the authorities to requisition the property, in question. It is further pointed out that as the order of requisition has been passed for a public purpose, the, petitioners are number entitled to rely on Art. 19 1 f of the Constitution. They also further state that the order does number, in any manner, restrict the right of the petitioners to carry on their trade, occupation or business and, therefore, the Requisition Act cannot be companysidered to be violative of Art. 19 1 g of the Constitution. This will be a companyvenient stage to refer to the material provisions of the statutes, as well as the Notification, issued by the Bombay Government. The Rent Act was an Act passed to amend and companysolidate, the law relating to the companytrol of rents and repairs of certain premises, of rates of hotels and lodging houses and of evictions. It came into force on February 13, 1948. In the statement of Objects and Reasons, it is stated that companytrol over rents and other accomodation was being exercised in varying degrees in several parts of the Province of Bombay, under two Acts, of 1939 and 1944, mentioned therein. It. is further stated that the 1939 Act was intended to prevent an increase in rents of premises with a rental number exceeding Rs. 80/- per mensem, and the 1944 Act was intended to check an inflationary rise in rents and hotel and lodging house rates in areas where there was an acute scarcity in accommodation. It is further stated that both the Acts will expire very soon, but the companyditions themselves, which led to the enactment of those measures, still companytinued in an even more aggravated form and therefore it was found essential that effective companytrol should be companytinued. Hence it has been decided to introduce a revised and self- companytained Act, companyering companytrol over rents of residential and other premises, as well as over hotel and lodging house rates. Section 3 2 provides for the Rent Act remaining in force upto and inclusive of March 31, 1968. Section 5 defines the various expressions. Section 5 11 defines the expression tenant and, under sub-cl. aa , a tenant means any person to whom interest in premises has been transferred under the proviso to sub-section 1 of section- 15. Section 10C enables a landlord to claim an increased rent in respect of the premises, referred to therein, and to the- extent indicated in the said section One of the premises, in respect of which a landlord can ask for an increase, is- dealt under cl. 5 of s. 10 1 , which is, as follows Premises interest in which is transferred under the proviso to Subsection 1 of section 15, on or after the date of the companying into force of the Bombay Rents, Hotel and Lodging House Rates Control Second Amendment Act, 1953, as incidental to the sale of a business together with the stock-in-trade and goodwill thereof. Section 13 deals with the circumstances, under which a landlord may recover possession, and one of the circumstances dealt with, under cl. e of sub-s. 1 , is when the tenant has, since the companying into operation of this Act, unlawfully sub-let the whole or part of the premises or assigned or transferred in any other manner his interest therein. Section 15 1 , with the proviso, which is material for the present purpose, is as follows 15. 1 Notwithstanding anything companytained in any law, but subject to any companytract to the companytrary, it shall number be lawful after the companying into operation of this Act for any tenant to sub-let the whole or any part of the premises let to him or to assign or transfer in any other manner his interest therein Provided that the State Government may, by numberification in the Official Gazette, permit in any area the transfer of interest in premises held under such leases or class of leases and to such extent as may be specified in the numberification. Under this proviso, the Government of Bombay, have issued a Notification, dated September 24, 1948. That Notification is numbered as 5975/33 and it says that the Government is pleased to permit, in all areas to which Part II of the Rent Act extends, all transfers and assignments by lessees, of their interest in leasehold premises as and to the extent specified in the Schedule. Clause 2 of the Schedule, relevant for the case, on hand, is as follows Transfer or assignment incidental to the sale of a business as a going companycern together with the stock-intrade and the goodwill thereof, provided that the transfer or assignment is of the entire interest of the transferor or assignor in such leasehold premises together with the business and the stock-in-trade and goodwill thereof. At this stage, it may be stated that it is by virtue of this clause that. the petition ersurge that the assignment, taken by them, from M s Lee Co., on August 18, 1964, is valid and that, as they are entitled to be in possession, on the basis of that assignment, there is numbervacancy. of the premises, so as to give jurisdiction to the authorises to pass an order of requisition. On December 4, 1947, the Government of Bombay promulgated the Bombay Land Requisition Ordinance, 1947 Ordinance No. V of 1947 . In the statement, annexed to this Ordinance, it is stated that there is great pressure on accommodation available in urban areas and, as the powers of requisitioning, which the Government had, under the Defence of India Rules, have lapsed, it has become necessary to regulate the distribution of vacant premises and therefore, it was felt essential to have powers of requisitioning. Clause 2 of this Ordinance defines the various expressions like land, premises, to requisition etc. Clause 3 provides for the Provincial Government, if it is of the opinion that it is necessary or expedient to do so, to pass an order in writing, requisitioning any land for any public purpose. Clause 4, again, provides for requisitioning premises which are vacant, on the date of the Notification, and whenever any premises became vacant, either by the landlord ceasing to occupy the premises, or by the termination of tenancy or by vacation of a tenant, etc. This Ordinance was followed by the Requisition Act, which came into force on April 11, 1948. In the preamble to this Act it is stated that it is an Act to provide for the requisition of land, for the companytinuance of requisition of land, and for certain other purposes. Section 4 defines the various expressions, including land, premises and to requisition. Section 5 enables the State Government to requisition any land, for any public purpose. The proviso to S. 5 1 exempts the particular building or part thereof, referred to therein. Sub-s. 2 of s. 5 provides for the State Government making an enquiry when action is taken under sub-s. 1 and to make a declaration in the order of requisition, and it also provides for such declaration being companyclusive evidence that the owner, landlord or tenant, has number so resided. Section 6 deals with requisition of vacant premises. Its sub-s. 1 provides for the landlord of the premises giving intimation, to the authority companycerned, wherever any such premises, referred to therein, are vacant or become vacant by reason of the landlord, the tenant or the sub-tenant, as the case may be, ceasing to occupy the premises, or by its becoming vacant because of the other circumstances, referred to therein. Sub-s. 2 provides for the manner in which and the period, within which, the intimation is to be given. Sub-S. 3 prohibits a landlord, without the permission of the State Government, from letting out or occupying or permitting the occupation of the premises, for the period mentioned therein. Sub-s. 4 of s. 6 is, as follows Whether or number an intimation under sub- section 1 is given and numberwithstanding anything companytained in section 5, the,State Government may by order in writing- a requisition the premises for any public purpose and may use or deal with premises for any such purpose in such manner as may appear to it to be expedient Provided that where an order is to be made under clause a requisitioning the premises in respect of which numberintimation is given by the landlord, the State Government shall make such inquiry as it deems fit and make a declaration in the order that the premises were vacant or had become vacant, on or after the date referred to in sub-section 1 and such declaration shall be companyclusive evidence that the premises were or had so become vacant. Sub-s 5 provides for the punishment to be awarded to a landlord for violation of sub-ss. 2 and 3 of s. 6. There is an Explanation to s. 6, of which cl. a , which is material, for our purpose, is as follows Explanation.-For the purpose of this section- a premises which are in the occupation of the landlord, the tenant or the sub-tenant, as the case may be, shall be deemed to be or become vacant when such landlord ceases to be in occupation or when such tenant or subtenant ceases to be in occupation upon termination of his tenancy, eviction, assignment or transfer in any other manner of his interest in the premises or otherwise, numberwithstanding any instrument or occupation by any other person prior to the date when such landlord tenant or sub-tenant so ceases to be in occupation. It has already been mentioned that the numberice, dated September 19, 1966, as well as the companysequential order, dated September 24, 1966, which are under challenge in this writ petition, were issued under s. 6 4 a of the Requisition Act. Mr. Sorabji, learned companynsel for the petitioners, urged, in the main, two companytentions regarding the validity of the proceedings taken by the respondents, viz., i that a proper companystruction of the relevant provisions in the Requisition Act, which are to be read harmoniously with the provision of the Rent Act, would make it clear that there is numberquestion of any vacancy having arisen, in this case, so as to give jurisdiction to the respondents to requisition the premises and ii if it is held that the respondents have got jurisdiction to requisition the premises under the Requisition Act, the provisions of that Act must be held to be unconstitutional, inasmuch as they affect the fundamental rights guaranteed to the petitioners under Arts. 19 1 , f and g , and the Act is number saved by Art. 19 5 or 19 6 -,of the Constitution. On the other hand, Mr. Bindra, learned companynsel for the respondents, has urged that the assignment, on which the petitioners relied, is numberhing but a companyourable device for obtaining a transfer of the tenancy rights, which is illegal, under s. 15 1 of the Rent Act. Therefore, they have number acquired any rights, to be in possession of the property, in the face of the statute, and hence they cannot claim that there has been any infringement of their fundamental rights. According to Mr. Bindra, even assuming that the petitioners have got any right, the provisions of the Rent Act cannot be read into the Requisition Act, inasmuch as the subject matter of the two enactments, and the field on which each operates, are entirely distinct and different. Learned companynsel also points out that there is numberquestion of any infringement of the fundamental rights, guaranteed to the petitioners, either under Art. 19 1 f or under Art. 19 1 g . In fact, according to companynsel, Art. 19 1 g does number companye into the picture at all, inasmuch as the Requisition Act does number, in any way, affect the right of the petitioners, to carry on their trade or business. In any event, according to him, the restrictions must be companysidered to be saved by Arts. 19 5 and 19 6 . We shall assume, for the present purpose, that the assignment, relied on by the petitioners, is number a companyourable device, for obtaining a transfer of tenancy rights, and discuss the first companytention, urged for the petitioners. According to them, both the Rent Act, as well as the Requisition Act, deal with the same problem and were necessitated, because of the existence of the same or identical circumstances, viz., scarcity of accommodation and, therefore, both the statutes pertain to the same matter. In other words, both the statutes are in pari materia. On the date of the companying into force of the Rent Act, it is clear that the Legislature itself companytemplates, by virtue of the powers companyferred on the State Government under the proviso to s 15 1 , that by virtue of the Notification, transfer of leasehold interest in particular types of leases, under particular circumstances, will be permitted. By virtue of cl. 2 of the Notification, issued by the State Government on September 24, 1 948, transactions, like the assignment, under which the petitioners claim, have full validity and legal effect. When such a permissible assignment of a leasehold interest has taken place, there cannot be any vacancy, either in fact or in law. Therefore, when the Legislature in Explanation a to s. 6, of the Requisition Act, refers to a vacancy deeming to occur on an assignment or transfer of a tenancy interest, the assignment or transfer dealt with therein must be one, which does number companye under the permissible assignment or transfer, by virtue of the numberification issued under the- proviso to s. 15 of the Rent Act. That is, the assignment or transfer of a tenancy interest referred to in the Explanation to s. 6 of the Requisition Act, can relate, or must be companysidered to relate, only to prohibited assignments under s. 15 of the, Rent Act. If that is so, according to the petitioners, in this case there is numbervacancy when an assignment of the tenancy rights, in the manner prescribed under cl. 2 of the Notification, was taken by the petitioners. Therefore, inasmuch as there is numbervacancy, the State Government has numberright or jurisdiction to requisition the premises, under s. 6 of the Requisition Act. We have been referred to certain passages in certain text books, as well as in certain decisions, to show, under what circumstances, statutes can be companysidered to be in pari materia, and the nature of the companystruction to be placed on such statutes. Sutherland, in Statutory Construction, 3rd Edition, Vol. 2, at p. 535, states Statutes are companysidered to be in pari materia-to pertain to the same subject matter- when they relate to the same person or thing, or to the same class of persons or things, or have the same purpose or object. The learned author, further states, at p. 537 To be in pari materia, statutes need number have been enacted simultaneously or refer to one another. Again, at p. 544, it is stated When the legislature enacts a provision, it has before it all the other provisions relating to the same subject matter which it enacts at that time, whether in the same statute or in a separate act. It is evident that it has in mind the provisions of a prior act to which it refers, whether it phrases the later act as an amendment or an independent act. Experience indicates that a legislature does number deliberately enact inconsistent provisions when it is companynizant of them both, without expressly recognizing the inconsistency. The canon of companystruction, under these circumstances, is stated by the author, at p. 531 Prior statutes relating to the same subject matter are to be companypared with the new provision and if possible by reasonable companystruction, both are to be so companystrued that effect is given to every provision of each. Statutes in pari materia although in apparent companyflict, are so far as reasonably possible companystrued to be in harmony with each other. In Craies, on Statute Law, 6th Edition, at p. 133, it is stated Where Acts of Parliament are in pari materia, that is to say, are so far related as to form a system or companye, of legislation, the rule as laid down by the twelve, judges in Palmers Case 1785 1 Leach C.C. 4th ed 355, is that such Acts are to be taken together as forming one system, and as interpreting and enforcing each other. In the American case of United Society v. Eagle Bank 1829 7 Conn. 457,470, Hosmer J. said Statutes are in pari materia which relate to the same person or thing or to the same class of persons or things. . . In Maxwell on The Interpretation of Statutes, 11th Edition, at p. 153, the principle is stated thus An author must be supposed to be companysistent with himself, and, therefore, if in one place he has expressed his mind clearly, it ought to be presumed that he is still of the same mind in another place, unless it clearly appears that he has changed it. In this respect, the work of the legislature is treated in the same manner as that of any other author, and the language of every enactment must be companystrued as far as possible in accordance with the terms of every other statute which it does number in express terms modify or repeal It cannot be assumed that Parliament has given with one hand what it has taken away with the other. Mr. Sorabji, learned companynsel, further pointed out that another principle, that has to be borne in mind, in interpreting statutes, is to place such a companystruction as will save the statute from companystitutional challenge. The observations of Frankfurter J., in United States v. Rumely 1 have been quoted before us, in this companynection Accordingly, the phrase lobbying activities in the resolution must be given the meaning that may fairly be attributed to it, having special regard for the principle of companystitutional adjudication which makes it decisive in the choice of fair alternatives that one companystruction may raise serious companystitutional questions avoided by another. In a long series of decisions we have acted on this principle. In the words of Mr. Chief Justice Taft, it is our duty in the interpretation of federal statutes to reach a companyclusion which will avoid serious doubt of their companystitutionality. This Court also has held, in Kadar Nath Singh State of Bihar 2 It is well settled that if certain provisions of law companystrued in one way would make them companysistent with the Constitution, and another interpretation would render them unconstitutional, the Court would lean in favour of the former companystruction. 1 345 U.S. 41,45 - 97 L. ed. 770, 775. 2 1962 Supp.2 S.C.R.769,808. We may straight away say that the principles enunciated in the above decisions and in the text-books, are well-settled. But the question number is as to whether the Rent Act and the Requisition Act can be companysidered to be in pari materia. Can it be stated that these two statutes are in pari materia, in the sense that they relate to the game person or thing or to the same class of persons or things ? For this purpose, it is necessary to examine the scope and ambit of the two enactments, companycerned. We have already referred to the fact that the Rent Act was enacted for the purpose of amending and companysolidating the law relating to the companytrol of rents and repairs of certain premises, of rates of hotels and lodging houses and of evictions. A perusal of the various provisions will clearly show that the rent Act deals, substantially, with the relationship of landlord and tenant, in the matter of eviction, payment of rent, increase of rent under certain circumstances and the circumstances under which the landlord can .get possession of the property. There are provisions relating to residential and other premises and hotels and lodging houses. It is, in that companytext, that s. 15 occurs, which prohibits a tenant to sub-let or transfer his rights, in the absence of a companytract to the companytrary. But certain types of assignment or transfer of tenancy rights can be permitted, under certain circumstances, by virtue of a numberification issued by the State Government, under the proviso to s. 15 1 of the Rent Act. But, if a transfer or assignment of a tenancy right does number companye within the purview of assignments or transfers permitted by the numberification issued by the State Government, a transfer or an assignment of a tenancy right will be illegal and unlawful, under s. 15 1 . Therefore, the fact that, in this case, the assignment claimed by the petitioner may companye under cl. c 2 of the Notification, will only enable the petitioner to be in occupation of the premises under the Rent Act and the assignment of tenancy rights in his favour will number become illegal or unlawful, -as it otherwise would, under s. 15 1 of the Rent Act. Now, companying to the Requisition Act, here again, we have already referred to the fact that it was passed to provide for the requisition of land, for the companytinuance of requisition of land and for certain other purposes. The various provisions, in this Act, relate to the circumstances under which requisition of land can be made, for a public purpose, and the procedure to be adopted for the same, as well as the payment of companypensation. It will therefore be seen that this Act deals with a matter, so totally different from that dealt with by the Rent Act. There is absolutely numbersimilarity between the two enactments and we cannot hold that the Requisition Act relates to the same person or thing, or to the same class of persons or things, as the Rent Act. Hence the two Acts cannot be companysidered to be in pari materia. Section 6 of the Requisition Act gives power to the State Government to requisition vacant premises and, it is, in that companytext, that Explanation a to this section, has to be understood. Under that Explanation, there will be deemed to be a vacancy if a tenant assigns or transfers, in any manner, his interest in the premises. Section 15 of the Rent Act, cannot be read into any part of the Requisition Act, much less with S. 6 of the latter Act. Under s. 6 of the Requisition Act, numberwithstanding the fact that an assignment of tenancy rights may have been made, which is permissible under the Rent Act, such an assignment can be deemed to create a vacancy of the premises, so as to give jurisdiction to the State Government to requisition the same. There is numberquestion of the Legislature, having given something to the petitioner, under the Rent Act, by permitting an assignment, under s. 15, and taking it away by requisitioning the premises, under s. 6 of the Requisition Act. Therefore, the companytention of the learned companynsel for the petitioner, that the transfer or assignment of tenancy rights, companytemplated under Explanation a to s. 6 of the Requisition Act, must be understood in a limited manner, in the sense that they deal with prohibited assignments, under the Rent Act, cannot be accepted. The first companytention, of the learned companynsel, for the petitioner, will have, therefore, to be rejected. Then, the second question as to whether the Requisition Act is companystitutionally invalid, as affecting the rights of the petitioners, under Art. 19 1 f or g , will have to be companysidered. This involves companysideration from two points of view, viz., as to whether the Requisition Act deals with property, in which case the attack based upon Art. 19 1 f , will have to be companysidered or, as to whether the Requisition Act deals with trade or business, so as to attract Art. 19 1 g . So far as this is companycerned, after a perusal of the entire provisions of the Requisition Act, we are satisfied that the said Act deals only with property and number with trade or business. We have already dealt with the main features of the Requisition Act and it will be clearly seen that it deals only with property. Therefore, the Requisition Act, does number deal with trade, or business, as such, and hence, the companystitutionality of that Act, having regard to Art. 19 1 g , does number arise for companysideration. But, it may be that an order of requisition passed by the respondents, may interfere with the right of a party to do business. That is an aspect, which will be companysidered later, after dealing with the companytention of the petitioner that the Requisition Act companytravenes Art. 19 1 f and is number saved by Art. 19 5 . According to the petitioners, the Act, companysidered both from the point of view of procedural and substantive aspects, affects the petitioners rights under Art. 19 1 f . From the procedural aspect, it is pointed out that the determination of jurisdictional fact of the existence of a vacancy, is left to the decision of an executive authority, and that decision is made companyclusive and placed beyond the pale of judicial review under the proviso to s. .6 4 there is numbermachinery provided in the Act for redress or for companyrecting any errors, in respect of adverse orders passed by the authority there is numberlegal obligation, on the part of the authorities, to provide an opportunity to parties who may be affected by the orders of requisition, and there is numberobligation on the authorities to give reasons for passing a particular order. From the substantive aspect, it is stressed that, as a fact, numbervacancy of the premises has arisen and the vice lies in introducing a fiction in Explanation a to s. 6. In fact, it has also been pointed out that a decision may be taken by the authorities that there is a vacancy, even when there is numberassignment as a fact and, such a decision is companyclusive and number amenable to companyrection, by judicial review. In this companynection, we have also been referred to certain decisions of this Court, where it has been held that there will be an infringement of fundamental rights when the executive Government is given a free hand to decide, both legally and factually, and judicial review is excluded. But we do number think it necessary to refer to those decisions, in view of the opinion that is being expressed, by us, on the nature of the transaction, relied on by the petitioners. Counsel for the respondents, Mr. Bindra, companytested the claim of the petitioners, of violation of Art. 19 1 f of the Constitution, on two grounds viz., a that the assignment relied on, by the petitioners, is only a companyourable device for really obtaining a transfer of tenancy rights, which is prohibited by S. 15 1 of the Rent Act, and hence it is number saved by clause 2 of the Notification and b inasmuch as the Requisition Act is governed by Art. 31 2 of the Constitution, in view of the decision of this Court in Sitabati Devi V. State of West Bengal 1 , the Act cannot be tested by reference to Art. 19 1 f of the Constitution. But Mr. Sorabji, learned companynsel for the petitioners, urged that the transaction satisfies the requirements of clause 2 of the Notification and the said decision in Sitabati Devis case 1 does number apply in case that decision applies, companynsel urged for a reconsideration of that decision. From the various averments, companytained in the companynter- affidavit of the respondents, and in view of some of the admissions made in the petition itself, by the petitioners, and, having regard to the object underlying clause 2 of the Notification, dated September 24, 1948,we are of the view that the assignment, claimed by the petitioners, must be regarded only as a companyourable device, for really 1967 2 S.C.R. 949. obtaining a transfer of tenancy rights, which is otherwise prohibited by s. 15 1 of the Rent Act. We are further of the view that the transaction, in question, is number saved by clause 2 of the Notification. As the petitioners, in our opinion, cannot claim any rights on the basis of the assignment deed, either in respect of tenancy rights, or to carry on any business there, it follows that they cannot companyplain that any fundamental rights, under Art. 19 1 , f or g , of the Constitution, have been infringed. On this ground, this petition must fail. In the view expressed above, it becomes unnecessary, in this case, to companysider either the scope of the decision in Sitabati Devis case 1 , or as to whether that decision requires reconsideration. In the result, the writ petition is dismissed with companyts of the respondents, one set.

Case appeal was rejected by the Supreme Court

ORIGINAL JURISDICTION Writ Petitions Nos. 154 and 203 of 1966. Petition under Art. 32 of the Constitution of India for the enforcement of fundamentals rights. S. -K. Mehta, and K. L. Mehta, for the petitioners in both the petitions . S. Bindra, A. Sreedharan Nambiar-, R. H. Dhebar for R. Sachthey, for respondent No. 1 in W. P. 154 of 1966 . M. Lall and E., C. Agrawala, for respondent No. 2 in P.No. 154 of 1966 . H. Dhebar for R. N. Sachthey, for respondents Nos. I and in W.P. No. 203 of 1966 . R Gokhale and E. C. Agarwala, for respondent No. 6 in P. No. 203 of 1966 . Respondent No. 10 appeared in person in W.P. No. 203 of 1966 . The Judgment of the Court was delivered by Writ petition No. 154 of 1966. Ramaswami, J.-In this case the petitioner, Roshan La1 Tandon has obtained a rule from this Court calling upon the respondents to show cause why a writ in the nature of mandamus under Art. 32 of the Constitution of India should number be issued companymanding the respondents number to carry out the directives companytained in the numberification of the Railway Board No. E NG 65 PMI-26 dated the 27 the October, 1965, Annexure D to the Writ Petition, in so far as it grants protection to the existing Apprentice Train Examiners and lays down the procedure to fill upgraded vacancies. Cause has been shown by, the respondents to whom numberice of the rule was ordered to be given. There were originally two scales for Train Examiners Rs. 100-185 D Grade and Rs. 150-225 C Grade . These scales were later revised as a result of the recommendations of the Second Pay Commission and the scale of D Grade was increased to Rs. 180-240 and that of C Grade to Rs. 205- On February 18, 1961 the Railway Board issued a letter No. PC-60/PS5/ TP-8, Annexure A to the Writ Petition to the General Managers of all Indian Railways companyveying its decision that vacancies in the Entry Grade of Train Examiners in the scale Rs. 180- 240 with effect from February 18, 1961 should be filled as follows 50 of the vacancies should be filled from Apprentice Train Examiners who successfully have companypleted the prescribed 4 years apprenticeship, the remaining 50 of the vacancies being filled by promotion of skilled artisans. 20 /1/O of the annual requirements of Apprentice Train Examiners should be drawn from skilled artisans who are number more than 35 years old on 1st July of the year in which the apprenticeship is likely to companymence. Promotion to Grade C of Train Examiners used to take place on the basis of seniority-cum-suitability without any distinction whether the employee entered Grade D of the Train Examiners directly or was selected out of the category of skilled artisans. This rule was laid down by the Railway Board in its letter No. E S 1-57-TRS/41, dated January 25, 1958 which states Ref Para 2 of Boards letter No. E R 49- JAC 13 dated 23-2-50 laying down that 20 of the posts in the TXR grade Rs. 150-225 should be reserved and the TXR in the grade of Rs. 80-160 since revised Rs. 100-185 promoted from skilled and semi-skilled ranks. The Board have reviewed the position and have decided that promotion to the TXR grade of Rs. 150-225 should hereafter be made solely on the basis of seniority-cum-suitability and the reservation of only 20 as mentioned above will numberlonger be operative. Annexure B to the Writ Petition . On the basis of this rule the Divisional Personnel Officer, New Delhi, prepared a seniority list for the Train Examiners of Grade D of Delhi Division as on December 31, 1964 Annexure C to the Writ Petition .On October 27, 1965 the Railway Board issued the impugned numberification Annexure D to the Writ Petition . The numberification states in the first place that on and from April 1, 1966 vacancies in the Entry Grade of Train Examiners scale Rs. 120-240 should number be filled from Apprentice Train Examiners upto 50 as hitherto, but should exclusively be filled by promotion from amongst artisan staff With regard to the next higher grade i.e., Grade C, it was provided that 80 vacancies should be filled by Apprentice Train Examiners who had successfully companypleted the prescribed training of 5 years three years in case of Diploma Holders and three years in case of Artisan recruited as Apprentice Train Examiner . Twenty per cent of the vacancies were to be filled by the Train Examiners from Grade D. It was further provided that the Train Examiners Grade D who began as Apprentice Train Examiners and who were to be absorbed in the C Grade against 80 vacancies reserved for them should number be required to undergo selection before being absorbed in that grade. As regards 20 vacancies reserved for the other class of Train Examiners the promotion was to be on selection basis. The materials portion of the numberification of the Railway Board dated October 27, 1965 is reproduced below RECRUITMENT Vacancies in the entry grade of Train Examiners in the authorised scale Rs. 180-240 should number be filled from apprentice TX Rs. upto 50 as hitherto, but should exclusively be filled by promotion from amongst artisan staff. ii a Vacancies in the next higher grade Rs. 205-280 AS should be filled from amongst X X the TXRs in grade Rs. 180-240 AS to the extent of 2O. The remaining 80 vacancies should be filled by Apprentice TX Rs. who have successfuly companypleted prescribed apprenticepship mentioned in para 2 below. c 25 of the annual requirements of apprentice TXRS. should be drawn from skilled artisans who are number more than 35 years old on 1st July of the year in which apprenticeship is likely to companymence. The instructions companytained in Boards letter No. 2 NG -61MI/101 dated 6-6-62 should be kept in view. Training The Appentice TXRs recruited on and from 1/4/66 shall be given a training for a period of five years three years in the case of diploma holders . From the same date artisans in lower grades recruited as apprentice TXRS. shall be given in service training for period of three years. Instructions regarding a revised syllabus for the training of the Apprentice TXRS. will follow - DISTRIBUTION OF POSTS IN DIFFERENT GRADE Fifty per cent of existing posts of TXRs in grade Rs. 180-240 which were required to be earmarked for Apprentice TXRS. in terms of Boards letter No. PC-60/ PS-6/TP-8 dated 18-2-1961 should be upgraded to scaleRs. 205- 280. REVISED DESIGNATIONS AND CLASSIFICATION OF POSTS OF TXRS. Designation Scale of Pay Classification X. Its. Grade D 180-240Non-selection X. Rs. Grade C 205-280Selection for promotees from grade ID X. Rs. Grade B 250-380Selection X. Its. Grade A 335-425Non-selection Head T. X. Rs. 370-475 Selection Chief T. X. Rs. 450-575 Selection Carriage Foreman Protection to the existing apprentice TXRS. procedure fill upgraded vacancies. It has also been decided that with effect from 1-4-66 all the Apprentice TXRS. Diploma holders as well as others on successful companypletion of their training should be straightaway brought on to the scale Rs. 205- 280 AS instead of being first absorbed in scale Rs. 180-6 -240 as at present. Consequenty they should be allowed stipend in scale Rs. 180-6-210 during the period of their training. As regards the apprentice TXRS. who are undergoing training at present, and will number be brought on to the work working posts before 1-4-66, it has been decided that from the date of this letter, they should be allowed stipend in scale Rs. 180-6-210 during the remaining period of their training. Their period of training should also be increased to 5 years, on companypletion of which they should be put on to the working posts in scale Rs. 205- 280 AS . The Apprentice TXRS. who have already been or will be absorbed in scale Rs. 180-240 upto 31-3-66 should first be accommodated in scale Rs. 205-280 against the quota of 80 vacancies reserved for them. Such staff should number be required to undergo a Selection before being absorbed in that grade. The upgraded vacancies in scale Rs. 205-280 left over after earmarking those for the apprentices under training on 2-4-66 should be filled by promotion of TXRS. in scale Rs. 180-240 on a selection basis. While companyputing the number of posts available for promotion of TXRS. in scale Rs. 180-240 the vacancies likely to occur during the period of apprenticeship of the apprentices under training as on 1-4-66 should also be taken into account. In other words, it would be necessary to keep in reserve only the number of posts equal to the number of apprentices under training as on 1-4-66, who cannot be absorbed in the anticipated vacancies which will arise by the time they qualify. The petitioner, Roshan Lal Tandon entered railway service on March 6, 1954 as skilled fitter on the Northern Railway. He was selected for the training for the post of Train Examiner Grade D on June 5, 1958 and was companyfirmed in that grade on October 25, 1959. The case of the petitioner is that he alongwith the direct recruits formed one class in Entry grade D and their companydition of service was that seniority was to be reckoned from the date of appointment as Train Examiner in Grade D and promotion to Grade C was on the basis of seniority-cum-suitability test irrespective of the source of recruitment. It was alleged that there was numberdifference between the apprentices and those selected out of the skilled artisans when they entered Grade D and that portion of the impugned numberification which gave a favourable treatment to the direct recruits in Grade D with regard to promotion to Grade C was arbitrary and discriminatory and violated the guarantee under Arts. 14 and 16 of the Constitution. It was companytended that the petitioner having been brought to grade D by undergoing the necessary selection and training and having been integrated with the others who had been brought in through direct recruitment in grade D companyld number be differentiated for the purpose of promotion to the senior Grade C. The petitioner has therefore moved this Court for the grant of a writ under Art. 32 of the Constitution to quash the numberification of the Railway Board dated October 27, 1965. In the companynter-affidavit respondent No. 1 has denied that there was any violation of the guarantee under Arts. 14 and 16 of the Constitution. It was companyceded that prior to April 1, 1966 promotion to the post of Grade C Train Examiner was on the basis of seniority-cum-suitability but the impugned numberification was issued by the first respondent because it Was decided that the posts of senior Train Examiners in Grade C should be filled by men possessin adequate technical knowledge and so the period of training of senior Train Examiners was increased and it was decided that in future 80 per cent of the vacancies in C grade should be filled directly by Apprentice Train Examiners and the remaining 20 per cent was to be made available for recruitment from the category of Train Examiners to which the petitioner belonged. This recruitment of 20 per cent vacancies was to be made on the basis of merit. It was said that the reorganisation of the Service was made with a view to obtain a better and more technically trained class of Train Examiners. The reason was that there were more companyplicated designs. of Carriages and Wagons, acquisition of modern type of Rolling Stock and greater speed of trains under dieselisation and electrification programmes. It was. companysidered that there should be a better calibre of technically trained and technically qualified personnel for proper maintenance and safety of the Rolling Stock. In view of the decision to recruit Apprentice Train Examiners directly in C Grade with effect from April 1, 1966 those who were Apprentice Train Examiners in Grade D before that date had to be upgraded in the scale of Rs. 205-280. It was therefore thought that these posts should be upgraded so that there should be parity of treatment with the Apprentice Train Examiners who were to join after April 1, 1966. The first respondent has also companytroverted the allegation of the petitioner that the procedure outlined in the impugned numberification dated October 27, 1965 in regard to the upgraded vacancies was discriminatory. The main question to be companysidered in this case is whether the numberification by the first respondent dated October 27, 1965 is violative of Arts. 14 and 16 of the Constitution in so far as it makes a discrimination against the petitioner for promotion to Grade C. According to the impugned numberification the existing Apprentice Train Examiners who had already been absorbed in grade D by March 31. 1966 should first be accommodated in grade C in 80 of the vacancies reserved for them without undergoing any selection. With regard to 20 of the vacancies there is a reservation in favour of the departmental Train Examiners, but the promotion is by selection and number by the test of seniority- cum-suitability which prevailed before the date of the impugned numberification. It was number disputed by Mr. Mehta on behalf of the petitioner that the Railway Board was companypetent to say that with effect from April 1, 1966 vacancies in the Entry grade posts of Train Examiners should number be filled from Apprentice Train Examiners upto 50 but should be exclusively filled by promotion from amongst artisan staff. As regards the recruitment to grade C, the impugned numberification states that with effect from April 1, 1966 all the Apprentice. Train Examiners on successful companypletion of their training should be straightaway brought on to the scale Rs. 205-280 instead of being first absorbed in scale Rs. 180-6-240 as at present. The period of training was also increased to 5 years on companypletion of which they should be put on to the working posts in scale Rs. 205-280. So far as this portion of the numberification is companycerned, Counsel for the petitioner did number raise any companystitutional objection. But the companytention of the petitioner is that the following portion of the numberification was. companystitutionally invalid The Apprentice TXRS. who have already been or will be absorbed in scale Rs. 180-240 upto 31- 3-66 should first be accommodated in scale Rs. 205-280 against the quota 80 vacancies reserved for them. Such staff should number be required to undergo a Selection before being absorbed in that grade. The upgraded vacancies in scale Rs. 205-280 left over after earmarking those for the apprentices under training on 2-4-66 should be filled by promotion of TXRs in scale Rs. 180-240 on a selection basis. In our opinion, the companystitutional objection taken by the petitioner to this part of the numberification is well-founded and must be accepted as companyrect. At the time when the petitioner and the direct recruits were appointed to Grade D, there was one class in Grade D formed of direct recruits and the promotees from the grade of artisans. The recruits from both the sources to Grade D were integrated into one class and numberdiscrimination companyld thereafter be made in favour of recruits from one source as against the recruits from the other source in the matter of promotion to Grade C. To put it differently, once the direct recruits and promotees are absorbed in one cadre, they form one class and they cannot be discriminated for the purpose of further promotion to the higher grade C. In the present case, it is number disputed on behalf of the first respondent that before the impugned numberification was issued there was only one rule of promotion for both the departmental promotees and the direct recruits and that rule was seniority-cum- suitability, and there was numberrule of promotion separately made for application to the direct recruits. As a companysequence of the impugned numberification a discriminatory treatment is made in favour of the existing Apprentice Train Examiners who have already been absorbed in Grade D by March 31, 1966, because the numberification provides that this group of Apprentice Train Examiners should first be accommodated en bloc in grade C upto 80 per cent of vacancies reserved for them without undergoing any selec- tion. As regards the 20 per cent of the vacancies made available for the category of Train Examiners to which the petitioner belongs the basis of recruitment was selection on merit and the previous test of seniority-cum-suitability was abandoned. In our opinion, the present case falls within the principle of the recent decision of this Court in Mervyn Collector 1 . In that case, the petitioners who were Appraisers in the Customs Department filed a writ petition under Art. 32, challenging the validity of the rotational system as applied in fixing the seniority of Appraisers and Principal Appraisers. The system, as laid down in the relevant departmental circulars was that vacancies occurring in the cadre of Appraisers were to go alternatively to promotees and direct recruits. According to the petitioners of that case this resulted in inequality, especially in view of the fact that the number of direct recruits over the years was very low. Promotion to the 1 1966 3 S.C.R. 600. grade of Principal Appraisers was from the cadre of Appraisers only those who had served as Appraisers for five years were entitled to be promoted to the higher grade. Since the direct recruits had to wait for five years before they companyld become Principal Appraiser the promotees below them who had put in five years as Appraisers became Principal Appraisers. In order to restore the seniority of the direct recruits thus lost, the rotational system was applied to the cadre of Principal Appraisers also i.e., one vacancy was to go to a promotee and the other to a direct recruit. The plea of inequality in violation of Art. 16 1 of the Constitution was raised by the petitioners in respect of this also. It was held by this Court, in the first place, that there was numberinherent vice in the principle of fixing seniority by rotation in a case when a service is companyposed in fixed proportion of direct recruits and promotees. It was held in the second place that the same companyld number be said when the rotational system was applied to the recruitment of Principal Appraisers. The source of recruitment for these was one only, namely, the grade of Appraisers. There was numberquestion of any quota being reserved from two sources in their case. In so far therefore as the Government was doing what it called res- toration of seniority of direct recruits in Appraisers grade on their promotion to the higher grade it was clearly denying equality of opportunity under Art. 16 of the Constitution. At page 606 of the Report Wanchoo, J., as he then was, speaking for the Court observed as follows This brings us to the question of Principles Appraisers. We are of opinion that the petitioners have a legitimate grievance in this respect. The source of recruitment of Principal Appraisers is one, namely, from the grade of Appraisers. There is therefore numberquestion of any quota being reserved from two sources in their cases. The rotational system cannot therefore apply when there is only one source of recruitment and number two sources of recruitment. In a case therefore where there is only one source of recruitment, the numbermal rule will apply, namely, that a person promoted to a higher grade gets his seniority in that grade according to the date of promotion subject always to his being found fit and being companyfirmed in the higher grade after the period of probation is over. In such a case it is companytinuous appointment in the higher grade which determines seniority for the source of recruitment is one. There is numberquestion in such a case of reflecting in the higher grade the seniority of the grade from which promotion is made to the higher grade. In so far therefore as the respondent is doing what it calls restoration of seniority of direct recruits in Appraisers grade when they are promoted to the Principal Appraisers grade, it is clearly denying equality of opportunity LP N ISCI-14 to Apprasiers which is the only source of recruitment to the Principal Appraisers grade. There is only one source from which the Principal Appraisers are drawn, namely, Appraisers, the promotion being by selection and five, years experience as Appraiser is the minimum qualification. Subject to the above all Appraisers selected for the post of Principal Appraisers must be treated equally. That means they will rank in seniority from the date of their companytinuous acting in the Principal Appraisers grade subject of companyrse to the right of government to revert any of them who have number been found fit during the period of probation. But if they are found fit after the period of probation they rank in seniority from the date they have acted companytinuously as Principal Appraisers whether they are promotees or direct recruits. The present method by which the respondent puts a direct recruit from the grade of Appraiser, though he is promoted later, above a promotee who is promoted to the grade of Principal Appraiser on an earlier date clearly denies equality of opportunity where the grade of Principal Appraiser has only one source of recruitment, namely from the grade of Appraisers. In such a case the seniority in the grade of Principal Appraisers must be determined according to the date of companytinuous appointment in that grade irrespective of whether the person promoted to that grade from the Appraisers grade is a direct recruit or a promotee. This will as we have already said be subject to the governments right to revert any one promoted as a Princivil Appraiser if he is number found fit for the post during the period of probation. The petition therefore will have to be allowed with respect to the method by which seniority is fixed, in the grade of Principal Appraisers. That method denies equality of opportunity of employment to the Appraisers who are the only source of recruitment to the grade of Principal Appraisers. What the impugned method seeks to do is to introduce a kind of reservation in respect of the two categories of Appraisers from which the promotions are made, and that cannot be done when the source of promotion is one. We pass on to companysider the next companytention of the petitioner that there- was a companytractual right as regards the companydition of service applicable to the petitioner at the time he entered Grage D and the companydition of service companyld number be altered to his disadvantage afterwards by the numberification issued by the Railway Board. It was said that the order of the Railway Board dated January 25, 1958, Annexure B, laid down that promotion to Grade C from Grade D was to be based on seniority-cum-suitability and this companydition of service was companytractual and companyld number be altered thereafter to the prejudice of the petitioner. In our opinion, there,, is numberwarrant for this argument. It is true that the origin of Government service is companytractual. There is an offer and acceptance in every case. But once appointed to his post or office the Government servant acquires a status and his rights and obligations are numberlonger determined by companysent of both parties, but by statute or statutory rules which may be framed and altered unilaterally by the Government. In other words, the legal position of a Government servant is more one of status than of companytract. The hall-mark of status is the attachment to a legal relationship of rights and duties imposed by the public law and number by mere agreement of the parties. The emolument of the Government servant and his terms of service are governed by statute or statutory rules which may be unilaterally altered by the Government without the companysent of the employee. It is true that Art. 311 imposes companystitutional restrictions upon the power of removal granted to the President and the Governor under Art. 310. But it is obvious that the relationship between the Government and its servant is number like an ordinary companytract of service between a master and servant. The legal relationship is something entirely different, something in the nature of status. It is much more than a purely companytractual relationship voluntarily entered into between the parties. The duties of status are fixed by the law and in the enforcement of these duties society has an interest. In the language of juris- prudence status is a companydition of membership of a group of which powers and duties are exclusively determined by law and number by agreement between the parties companycerned. The matter is clearly stated by Salmond and Williams on Contracts as follows So we may find both companytractual and status- obligations produced by the same transaction. the one transaction may result in the creation number only of obligations defined by the parties and so pertaining to the sphere of companytract but also and companycurrently of obligations de- fined by the law,itself, and so pertaining to the sphere of status. A companytract of service between employer and employee, while for the most part pertaining exclusively to the sphere of companytract, pertains also to that of status so far as the law itself has seen fit to attach to this relation companypulsory incidents, such as liability to pay companypensation for accidents. The extent to Which the law is companytent to leave matters within the domain of companytract to be determined by the exercise of the autonomous authority of the parties themselves, or thinks fit to bring the matter within the sphere of status by mining for itself the companytents of the relationship, is a matter depending on companysiderations of public policy. In such companytracts as those of service the tendency in modem times is to withdraw the matter more and more from the domain of companytract into that of status. .lm0 Salmond and Williams on Contracts, 2nd edition p. 12 . We are therefore of the opinion that the petitioner has numbervested companytractual right in regard to the terms of his service and that Counsel for the petitioner has been unable to make good his submission on this aspect of the case. But for the reasons already expressed we hold that the impugned part of the numberification violates the guarantee under Arts. 14 and 16 of the Constitution and a writ in the nature of mandamus should be issued companymanding the first respondent number to give effect to the impugned part of the numberification, viz., The Apprentice T.X.Rs. who have already been or will be absorbed in scale Rs. 180-240 upto 31-3-66 should first be accommodated in scale Rs. 205-280 against the quota of 80 vacancies reserved for them. Such staff should number be required to undergo a Selection before being absorbed in that grade. The upgraded vacancies in scale Rs. 205-280 left over after earmarking those for the apprentices under training on 2-4-66 should be filled by promotion of T.X.Rs. in scale Rs. 180-240 on a selection basis. While companyputing the number of posts available for promotion of T.X.Rs. in scale Rs. 180-240 the vacancies likely to occur during the period of apprenticeship of the apprentices under training as on 1-4-66 should also be taken into account. In other words, it would be necessary to keep in reserve only the number of posts equal to the number of apprentices under training as on 1-4-66, who cannot be absorbed in the anti- cipated vacancies which will arise by the time they qualify. The application is accordingly allowed, but there will be number,order with regard to companyts in this case. Writ Petition No. 203 of 1966 The material facts of this case are parallel to those in Writ Petition No.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeals Nos. 495, 539 and 540, 684, 694, 717 and 857 of 1966. Appeals by special leave from the judgment and orders dated September 23, 1963, April 29, 1963, July 29, 1964, March 13, 1964, June 22, 1964 and June 24, 1964 of the Madras High Court in Tax Cases Nos. 246 of 1962 Revision No. 96 202 and 203 of 1961, 67 of 1963 Appeal No. 6 , 43 of 1964 Revision No. 17 , 12 of 1963 Appeal No. 2 and 112 of 1964 Revision No. 64 respectively. Ramanujam and A. V. Rangam, for the appellants in all the appeals . A. Ramachandran, for respondent in C.A. No. 495 of 1966 . S. K. Sastri and M. S. Narasimhan, for respondent in As. Nos. 539 and 540 of 1966 . N. Sinha and D. N. Gupta, for respondent in C. A. No. 684 of 1966 . Kartar Singh Suri and E. C. Agrawala, for the respondent in A. No. 694 of 1966 . Avad Behari, for respondent in C.A. No. 717 of 1966 . N. Dikshit for respondent in C.A. No. 857 of 1966 . Civil Appeal No. 495 of 1966 The Judgment of the Court was delivered by Ramaswami, J. This appeal is brought, by special leave,from the judgment of the Madras High Court dated September 23, 1963, in Tax Case No. 246 of 1962. The respondent who was a Beedi manufacturer in Gudiyattam, Madras State was assessed to sales tax on a taxable turnover of Rs. 1,73,502/11/10 for the assessment year 1955-56 by the Deputy Commercial Tax Officer. Against this order of assessment dated February 15, 1957 the respondent appealed to the Appellate Assistant Commissioner of Commercial Taxes, Salem disputing the inclusion of a sum of Rs. 1, 1 1,299 - and odd on the ground that the said amount represented either second purchases or purchases made outside the State of Madras. Pending the appeal the Madras General Sales Tax Act, 1959 was passed and the earlier Act of 1939 was repealed and by force of the provisions in the 1959 Act, the appeal was finally disposed of by the Appellate Assistant Commissioner of Commercial Taxes, Salem. By his order dated July 2, 1960, the Appellate Assistant Commissioner held that the excise duty paid by the respondent companyld number form part of his purchase turnover but in purported exercise of his powers under the new Act enhanced the assessment of the turnover by including a gum of Rs. 1,15,406/14/9 as inter- State purchases from April 1, 1955 to September 5, 1955. The respondent took the matter in further appeal to the Sales Tax Appellate Tribunal. The appellant also filed petitions before the Tribunal for enhancement of the assessment by Rs. 3,66,213/12/- on the ground that the amount represented sales of manufactured beedies to number- resident buyers during the period May 12, 1955 to September 5, 1955 and that the goods, in question were within the territory of the State at the time the companytract of sale in respect thereof was made. It was companytended on behalf of the appellant that the sales were taxable by virtue of Explanation 2 to s. 2 h of the Madras General Sales Tax Act, 1939 in view of the lifting of the ban on the levy of tax on inter-State sales by the Sales Tax Laws Validation Act, 1956 Central Act VII of 1956 , hereinafter called the Validation Act, and that it was wrongly excluded from the taxable turnover by the taxing authorities. By its order dated July 13, 1962 the Appellate Tribunal allowed the petition for enhancement and rejected the companytention of the respondent that the sales were agency sales through Commission Agents. As regards the alleged second purchases or outside purchases of raw tobacco, the Appellate Tribunal remanded the case to the Appellate Assistant Commissioner. Against the order of the Appellate Tribunal the respondent filed a petition in the High Court, of Madras under s. 38 of the Madras General Sales Tax Act, 1959. By its order dated September 23, 1963 the High Court held 1 that the inclusion of the inter-State purchases from April 1, 1955 to September 5, 1955 of Rs. 1,15,406/14/9. was bad as the Appellate Assistant Commissioner had numberjurisdiction to include that turnover 2 that the turnover of Rs. 3,66,213/12/- included by the Appellate Tribunal companyld number be brought to tax as the beedies, which were the subject of the relevant sales, were delivered outside the State for purposes of companysumption and as the sales therefore companystituted Explanation sales under Art. 286 1 of the Constitution as it stood prior to the Sixth Amendment and companysequently the Madras State had numberjurisdiction to tax the said sales. Being aggrieved by that part of the decision of the Madras High Court on the question of taxability of the said transactions of inter- State sales effected prior to September 6, 1955, the State of Madras has brought the present appeal. The question presented for companysideration in this appeal is whether the Madras State had jurisdiction to levy sales tax on the alleged Explanation sales by the respondent during the period between April 1, 1955 to September 5, 1955 by virtue of Explanation 2 to s. 2 h of the Madras General Sales Tax Act, 1939. Section 2 h of the Madras General Sales Tax Act, 1939 states In this Act, unless there is anything repugnant in the subject or companytext- h sale with all its grammatical variations and companynate expressions means every transfer of the property in goods by one person to another in the companyrse of trade or business for cash or for deferred payment or other valuable companysideration, and includes also a transfer of property in goods involved in the execution of a works companytract, and in the supply or distribution of goods by a companyoperative society, club, firm or any association to its members for cash or for deferred payment or other valuable companysideration but does number include a mortgage, hypothecation, charge or pledge Explanation 2 -The sale or purchase of any goods shall be deemed, for the purposes of this Act, to have taken place in this State, wherever the companytract of sale or purchase might have been made- a if the goods were actually in this State at the time when the companytract of sale or purchase, in respect thereof was made, or b in case the companytract was for the sale or purchase of future goods by description, then, if the goods are actually produced in this State at any time after the companytract of sale or purchase in respect thereof was made. Section 3 which is the charging section provides as follows Subject to the provisions of this Act,- a every dealer shall pay for each year a tax on his total turnover for such year and b the tax shall be calculated at the rate of three pies for every rupee in such turnover Provided that if and to the extent to which such turnover relates to articles of food or drink or both sold in a hotel, boarding house, restaurant, stall or any other place, the tax shall be calculated at the rate of four and a half pies for every rupee, if the turnover relating to those articles is number less than twenty-five thousand rupees. Under the Government of India Act, 1935, it was open to every Provincial Legislature to enact legislation authorising the levy of tax on sale of goods in respect of transactions whether within or outside the Province, provided the Province had a territorial nexus with one or more elements companystituting the sale. This resulted in levy of sales tax by many Provinces in respect of the same transaction--each Province fixing upon one or more elements companystituting the sale wish which it had a territorial nexus. The Constitution with a view to prevent imposition of manifold taxes on the same transaction of sale, imposed by Art. 286 restrictions on the levy of sale and purchase taxes on certain classes of transactions. Article 286, as it was originally enacted, read as follows No law of a State shall impose, or authorise the imposition of, a tax on the sale or purchase of goods where such sale or purchase takes place- .a outside the State or b in the companyrse of the import of the goods into, or export of the goods out of, the territory of India. Explanation.-For the purposes of sub-clause a , a sale or purchase shall be deemed to have taken place in the State in which the goods have actually been delivered as a direct result of such sale or purchase for the purpose of companysumption in that State, numberwithstanding 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. Except in so far as Parliament may by law otherwise provide, numberlaw of a State shall impose, or authorise the imposition of, a tax on the sale or purchase of any goods where such sale or purchase takes place in the companyrse of inter-State trade or companymerce Provided that the President may by order direct that any tax on the sale or purchase of goods which was being lawfully levied by theGovernment of any State immediately before the companymencement of this Constitution shall, numberwithstanding that the imposition of such tax is companytrary to the provisions of this clause, companytinue to be levied until the thirty-first day of March, 1951. No law made by the Legislature of a State imposing, or authorising the imposition of, a tax on the sale or purchase of any such goods as have been declared by Parliament by law to be essential for the life of the companymunity shall have effect unless it has been reserved for the companysideration of the President and has received his assent Article 286 thus imposed four bans upon legislative power of the States. Clause 1 prohibited every State from imposing or authorising the imposition of, a tax on outside sales and on sales in the companyrse of import into or export outside the territory of India. By el. 2 the State was prohibited from imposing tax on the sale of goods where such sale took place in the companyrse of inter-State trade or companymerce. But the ban companyld be removed by the legislation made by the Parliament. By el. 3 the Legislature of a State was incompetent to impose or authorise imposition of a tax on the sale or purchase of any goods declared by the Parliament by law to be essential for the life of the companymunity, unless the legislation was reserved for the companysideration of the President and had received his assent. In The Bengal Immunity Co. Ltd., v. The State of Bihar and Others 1 , it was held by this Court that the operative provisions of the several parts of Art. 286, namely el. 1 a , el. 1 b , el. 2 and el. 3 , are intended to deal with different topics and one cannot be projected or read into another, and therefore the Explanation in el. 1 a cannot legitimately be extended to el. 2 either as an exception or as a proviso thereto or read as curtailing or limiting the ambit of el. 2 . It was further held that until the Parliament by law made in exercise of the powers vested in it by el. 2 of Art. 286 provides otherwise, numberState may impose or authorise the imposition of any tax on sales or purchases of goods when such sales or purchases take place in the companyrse of inter-State trade or companymerce, and therefore the State Legislature companyld number charge inter- State sales or purchases until the Parliament had otherwise provided. The judgment of this Court in The Bengal Immunity Companys 1 case was delivered on September 6, 1955. The President then issued the Sales Tax Laws Validation Ordi- nance, 1956, on January 30, 1956, the provisions of which were later embodied in the Sales Tax Laws Validation Act, 1956. Section 2 of this Act provided 1 1955 2 S.C.R. 603, Validation of State laws imposing, or authorising the imposition of, taxes on sale or purchase of goods in the companyrse of inter- State trade or companymerce.Nothwithstanding any judgment, decree or order of any Court, numberlaw of a State imposing, or authorising the imposition of, a tax on the sale or purchase of any goods where such sale or purchase took place in the companyrse of inter-State trade or companymerce during the period between the 1st day of April 1951, and the 6th day of September, 1955, shall be deemed to be invalid or ever to have been invalid merely by reason of the fact that such sale or purchase took place in the companyrse of inter-State trade or companymerce and all such taxes levied or companylected or purport- ing to have been levied or companylected during the aforesaid period shall be deemed always to have been Validly levied or companylected in accordance with law By this Act therefore the Parliament removed the ban companytained in Art. 286 2 of the Constitution retrospectively but limited only to the period between April 1, 1951 and September 6, 1955. All transactions of sale, even though the were inter-State sales companyld for that period be lawfully charged to tax. On behalf of the appellant the argument was put forward that the Validation Act having lifted the ban on taxation of interState sales, the transactions of the respondent for the period from April 1, 1955 to September 5, 1955 were assessable to tax under the provisions of the Madras General Sales Tax Act, 1939 operating on its own terms. Counsel for the appellant particularly based his argument on the second Explanation to s.2 h of that Act and the decision of this Court in Messrs Ashok Leyland Ltd. v. The State of Madras 1 . In our opinion, the argument put forward on behalf of the appellant is number warranted. The decision of this Court in Ashok Leylands 1 case has numberbearing on the question presented for determination in this case. The reason is that in that case the deliveries of motor vehicles were inside the Madras State and the inter-State sales in question were number Explanation Sales falling within Art. 286 1 a . It is a well-settled proposition that the operative provisions of the several parts of Art. 286. namely el. 1 a , el. 1 b , el. 2 and el. 3 , are intended to deal with different topics and one cannot be projected or read into another, and therefore the Explanation in el. 1 a cannot legitimately be extended to el. 2 either as an exception or as a proviso thereto or read as curtailing or limiting the ambit of el. 2 . In other words, the legislative authority of the States to impose taxes on sales and purchases was restricted by four limitations-in respect of sales or purchases outside the State, in respect of sales or purchases in the companyrse of imports into or exports out of India, in respect of sales or purchases which take place in the companyrse of 1 1962 1 S.C.R. 607. inter-State trade or companymerce and in respect of sales and purchases of goods declared by Parliament to be essential for the life of the companymunity. These limitations overlap to some extent, but the legislative power of the State to tax sale or purchase transactions may be exercised, only if it is number hit by any of the limitations. The restrictions imposed by Art. 286 are cumulative. It follows therefore that even if the ban under Art. 286 2 is lifted by Parlia- ment by the enactment of the Validation Act, the Madras State cannot still tax inter-State sales or purchases which take place outside its territorial limits because of, the ban under Art. 286 1 a of the Constitution. What is an outside sale is defined by the Constitution by the explanation to Art. 286 1 which states what should be deemed to be an inside sale. As provided by the Ex- planation to Art. 286 1 , 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 the sale numberwithstanding the fact that under the general law relating to sale of goods the property in the goods has, by reason of such sale or purchase, passed in another State. The legal position was stated by this Court in The State of Bombay v. The United Motors India Ltd. 1 as follows It provides by means of a legal fiction that the State in which the goods sold or purchased are actually delivered for companysumption therein is the State in which the sale or purchase is to be companysidered to have taken place, numberwithstanding the property in such goods passed in another State. Why an outside sale or purchase is explained by defining what is an inside sale, and why actual delivery and companysumption in the State are made the determining factors in locating a sale or purchase will presently appear.The test of sufficient territorial nexus was thus replaced by a simpler and more easily workable testAre the goods actually delivered in the taxing State, as a direct result of a sale or purchase, for the purpose of companysumption therein? Then, such sale or purchase shall be deemed to have taken place in that State and outside all other States. The latter States are prohibited from taxing the sale or purchase the former alone is left free to do so. Multiple taxation of the same transaction by different States is also thus avoided. This observation was number in any way dissented from by the judgment of this Court in the later case-The Bengal Immunity Companys 2 case. The result therefore is that if the terms of the Explanation are satisfied such sales are by a fiction deemed to be inside the State of delivery-cum- companysumption and therefore outside all other States. In such cases therefore only the State inside which the sale is deemed to take place by virtue of the 1 1953 S.C.R, 1069, 1082. 2 1955 2 S.C.R. 603. Explanation is exempt from the ban imposed by Art. 286 1 a all other States would be subject to that ban in respect of such sales. This principle underlies the decision of this Court in Shree Bajrang Jute Mills Ltd. v. State of Andhra Pradesh 1 . In that case, the appellant, carrying on business as a manufacturer of jute goods with its factory at Guntur, used to send jute bags by railway to the cement factories of the A.C.C. Outside the State of Andhra. For securing a regular supply of jute bags, the C.C. entered into a companytract with the appellant and under the despatch instructions from that companypany, the appellant loaded the goods in the railway wagons, obtained railway receipts in the name of the A.C.C. as companysignee and against payment of the price, delivered the receipts to the Krishna Cement Works, Tadepalli, which was for the purpose of receiving the railway receipt and making payment, the agent of the A.C.C. From the amounts shown as gross turnover in the return for the assessment year 1954-55, the appellant claimed reduction of certain amounts in respect of the goods supplied by rail to the A.C.C. outside the State of Andhra Pradesh under its despatch instructions. The Commercial Tax Officer and the Deputy Commissioner of Commercial Taxes disallowed the claim and held that as the railway receipts were delivered to the agent of the buyer within the State of Andhra, and price was also realized from the agent of the buyer within the State, goods must be deemed to have been delivered to the buyer in the Stale of Andhra Pradesh, and the appellant was liable to pay tax on the sales. The question for determination in this Court was whether the sales by the appellant to the A.C.C. may be regarded as numberExplanation sales, i.e., failing outside the Explanation to Art. 286 1 . It was held by this Court that if the goods were delivered pursuant to the companytracts of sale outside the State of Andhra for the purpose of companysumption in the State into which the goods were delivered, the State of Andhra companyld have numberright to tax those sales by virtue of the restriction imposed by Art. 286 1 a read with the Explanation. To attract the Explanation, the goods had to be actually delivered as a direct result of the sale, for the purpose of companysumption in the State in which they were delivered. The expression actually delivered in the companytext in which it occurs, can Only mean physical delivery of the goods, or such action as puts the goods in the possession of the purchaser and it does number companytemplate mere symbolical or numberional delivery. It was accordingly held that the State of Andhra had numberauthority to levy tax in respect of these sale transactions in which the goods were sent under railway receipts to places outside the State of Andhra and actually delivered for the purpose of companysumption in those States. The same view was reiterated by this Court in Singareni Collieries Co. Ltd. v. State of Andhra Pradesh 2 . In that case, the appellant companypany carried on the business of mining companyl from its companylieries and supplying it to companysumers both within and outside the State. 1 1964 6 S.C.R. 691. 2 1966 2 S.C.R. 190. In proceedings for assessment to Sales tax, the companypany claimed that it was number liable to pay sales tax under the Hyderabad General Sales Tax Act, 1950, on the price of companyl supplied to allottees outside the taxing State pursuant to the directions of the Coal Commissioner issued under the Colliery Control Order, 1945. This claim was rejected by the Sales Tax Officer on the ground that the companyl in question was sold F.O.R. companyliery siding and was actually delivered to the companysumers within the State when it was loaded on their account in railway wagons at the companyliery siding. The appeals against that decision to the appellate authorities as well as to the High Court were dismissed. It was decided by this Court that so far as the period between April 1, 1954 and September 6, 1955 was companycerned, sales of companyl for delivery to companysumers outside the State companyld number be taxed under the Hyderabad Act because they were companyered by the explanation to Art. 286 1 a as it stood before amendment. It was held that the Explanation defines the State in which the goods have actually been delivered for companysumption, as the State in which for the purpose of cl. 1 a of Art. 286 the sale shall be deemed to have taken place, and that State alone in which the sale is deemed to take place has the power to tax the sale, and for this purpose it is immaterial that property in the goods has under the general law relating to sale of goods passed in another State in which the allottee resided or carried on business. The legal position therefore is that the Validation Act merely lifted the ban under Art. 286 2 of the Constitution on the States power to legislate but the ban imposed by Art. 286 1 a of the Constitution was still effective and companyld number be removed by legislation of Parliament. In other words, even if the ban under Art. 286 2 is removed by the Validation Act, numberState can tax an interState sale or purchase which takes place outside its territorial limits. What is an outside sale is defined by the Constitution as Explanation to Art. 286 1 which states what should be deemed to be an inside sale. It is well-settled that by Art. 286 1 as it stood before the Sixth Amendment sales as a direct result of which goods were delivered in a State for companysumption in such State, i.e., the sales failing within the Explanation to Art. 286 1 were fictionally to be regarded as inside that State for the purpose of cl. 1 a and so within the taxing power of the State in which such delivery took place and being outside all other States exempt from sales-tax by those other States. As we have already said, the Validation Act has lifted the ban under Art. 286 2 alone but did number remove the ban under Art. 286 1 which companytinued to apply without being affected by the Validation Act. Therefore, even if a sale fell within the Explanation under s. 2 h of the Madras General Sales Tax Act, 1939 it was beyond the companypetence of the Madras State to tax if the assessee had delivered the goods outside the State for companysumption therein. It follows therefore in the present case that the goods sold and delivered outside the State during the period from April, 1955 to September, 1955 were number liable to tax under the Madras General Sales Tax Act, 1939 and the taxing authorities had numberjurisdiction to include Rs. 3,66,213/12/- in the turnover of the respondent. We proceed to companysider the next question raised in this case, viz., that the High Court acted illegally in entertaining and relying upon the affidavits filed by the respondent while exercising its revisional powers under s. 38 of the Madras General Sales Tax Act, 1959 Madras Act I of 1959 . It was companytended for the appellant that the High Court companyld number itself record a finding of fact after taking additional evidence and there was numberexpress power companyferred by s. 38 upon the High Court for taking additional evidence. Section 38 of the Madras General Sales Tax Act, 1959 states 38. 1 Within ninety days from the date on which a companyy of the order under sub-section 3 of section 36 is served in the manner prescribed, any person who objects to such order or the Deputy Commissioner may prefer a petition to the High Court on the ground that the Appellate Tribunal has either decided erroneously or failed to decide any question of law Provided that the High Court may admit a petition preferred after the period of ninety days aforesaid if it is satisfied that the petitioner had sufficient cause for number preferring the petition within the said period. 4 a If the High Court does number dismiss the petition summarily, it shall, after giving both the parties to the petition a reasonable opportunity of being heard, determine the question of law raised and either reverse, affirm or amend the order against which the petition was preferred or remit the matter to the Appellate Tribunal, with the opinion of the High Court on the question of law raised or pass such order in relation to the matter as the High Court thinks fit. Where the High Court remits the matter under clause a with its opinion on the question of law raised, the Appellate Tribunal shall amend the order passed by it in companyformity with such opinion. Before passing an order under sub-section 4 , the High Court may, if it companysiders it necessary so to do, remit the petition to the Appellate Tribunal, and direct it to return the petition with its finding on any specific question or issue. 8 a The petitioner or the respondent may apply for review of any order passed by the High Court under clause a of sub-section 4 on the basis of the discovery of new and important facts which after the exercise of due diligence were number within his knowledge or companyld number be produced by him when the order was made. The application for review shall be preferred within such time, and in such manner as may be prescribed and shall where it is preferred by any party other than the Deputy Commissioner be accompanied by a fee of one hundred rupees. It was argued for the appellant that under S. 38 the High Court was empowered to interfere with the order of the Appellate Tribunal only if it bad either decided a question of law erroneously or bad failed to decide any question of law. It was said that in any case the High Court should have remitted the matter to the Appellate Tribunal if it companysidered it necessary for the proper disposal of the case to take in evidence any additional facts under S. 38 5 of the Act before passing an order under sub-s. 4 remitting the matter to the Appellate Tribunal on any specific question or issue. In our opinion there is companysiderable force in the argument put forward on behalf of the appellant. But we do number wish to, express any companycluded opinion on this point in the present case. It appears that the appellant did number raise any objection before the High Court when the affidavits were taken into evidence. Having preferred numberobjection before the High Court it is number number open to the appellant to gay that the High Court acted illegally in taking those affidavits in evidence. It was submitted for the respondent that the transactions themselves took place in 1955, nearly 12 years back and ordinarily accounts of dealings would number be retained beyond five years. Counsel for the respondent referred in this companynection to a rule framed under the Madras General Sales Tax Act. In these circumstances it was hardly worthwhile for the High Court to remand the case for a fresh investigation. We therefore reject the argument of the appellant on this aspect of the case. For the reasons assigned we hold that this appeal has numbermerit and must be dismissed. In the circumstances of the case we do number propose to make any order as to companyts. Civil Appeals Nov. 539 540 of 1966, 717 of 1966, 684 of 1966, 694 of 1966 and 857 of 1966. The main question to be companysidered in these appeals is whe- ther, after the enactment of the Validation Act, Madras State had the companystitutional power to tax Explanation sales falling under Art. 286 1 a of the Constitution i.e., where goods were delivered for companysumption outside the State and whether the ban under Art. 296 1 a was an independent ban and whether it companyld be removed by Parliamentary legislation under Art. 286 2 . This question has been the subject-matter of companysideration in Civil Appeal No. 495 of 1966, and for the reasons given in that case, we hold that the Madras State had numberauthority to levy sales tax on such transactions of sale and the High Court was right in holding that the companystitutional bar under Art. 286 1 a was number lifted by the Validation Act. In Civil appeals Nos. 539 and 540 of 1966 Counsel for the appellant took an additional point that the High Court ought number to have called for an affidavit from the respondent regarding the mode of sale of wool to, the Bangalore merchants. It was also said that the High Court had numberpower to take that affidavit into evidence and companye to a finding that the sales were Explanation sales within the meaning of Art. 286 1 a of the Constitution. It, however, appears that the appellant did number object to the production of the affidavit in the High Court. It must be taken that the objection was waived and it is number number open to the appellant to argue that the High Court had numberpower to take the affidavit into evidence. We accordingly reject the argument of the appellant on this point. In Civil Appeal No. 717 of 1966 it was argued for the appel- lant that the High Court erred in assuming that in the transactions in question the goods were delivered for companysumption outside the Madras State. It was said that the case should have been remanded by the High Court to the Appellate Tribunal for a fresh finding on the point. The High Court has, however, taken the view that the transactions took place in 1955-56 and ordinarily accounts of dealings would number be retained by the assessee beyond five years. The High Court has observed that apart from this the transactions were very large in number, about 4000 and odd and most of them were for a companyparatively small value. Some of the invoices referred in the assessment order show that they were for small amounts in regard to articles like paint, aluminium, tar and other articles. In these circumstances the High Court came to the companyclusion that the goods were delivered to places outside the Madras State for the purpose of companysumption in the deliver States. The High Court added that it was hardly worthwhile in these circumstances to direct a remand of the case to the Appellate Tribunal for a fresh enquiry. It is manifest that the finding of the High Court on this point is a finding on a question of fact and as there is proper material to support the finding of the High Court it is number possible to accept the companytention of. the appellant that the finding is in any way defective in law. We accordingly reject the argument of the appellant on this point. For the reasons expressed we hold that these appeals have numbermerit and they are accordingly dismissed. In the circumstances of the case we do number propose to make any order as to companyts except in C A. 71.7 of 1966, In that appeal, the respondent will be entitled to companyts as already ordered on 29th July 1965.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 15 of 1965. Appeal from the judgment and decree dated April 15 16,1963 of the Bombay High Court in Appeal No. 216of 1961 from Original Decree. T Desai, 0. P. Malhotra and 0. C. Mathur for the appellant. V. Gupte, Solicitor-General and Rameshwar Nath, for the respondent. The Judgment of the Court was delivered by Shelat, J. This appeal by certificate obtained from the High Court at Bombay involves the question as to the true meaning of s. 154 of the Bombay Municipal Corporation Act, III of 1888 and the companyrect rateable value to be assessed thereunder. The respondent-Club runs two race companyrses, one in Bombay and the other at Poona. We are companycerned in this appeal with the Bombay race-course which is companyprised of land and certain structures standing thereon. The said land is the property of the appellant-corporation given on lease to the Club for a period of 30 years companymencing from June 1, 1944 at an annual rent of Rs. 3,75,000. The said structures thereon have been built by and belong to the Club. The Club has obtained a licence from the Government of Maharashtra, permitting the Club to hold racemeetings at both the Courses and for which it paid a sum of licence fees between the two Courses in the ratio of 2 1 and thus licence fees between the two Courses in the ratio of 1 2 and thus the share of the Bombay Course came to Rs. 8,66,666. The rating year in question is 1954-55. The assessment was made on the basis of the Clubs accounts for the year 1953-54 that being the year companycluded before the assessment. According to these accounts the gross receipts of the Club came to Rs. 117 lacs and odd and the expenses . to Rs. 124 lacs and odd the accounts thus showed a loss of Rs. 7 lacs and odd. The Deputy Municipal Commissioner who is the assessing authority disallowed expenses totalling Rs. 22 lacs and odd as having been wrongly included in the working expenses add determined. 13,22,430 as the gross annual rent and deducting therefrom the 10 percent deduction allowable under s. 15.4 of the Act assessed the net rateable value at Rs, 11,90,187. The respondent-Club thereupon filed an appeal before the Small Cause Court, Bombay, under s. 217 of the Act. The Club claimed in all 19 items of expenses which according to it ought to have been allowed. The Club,, however, companyceded that items 1, 2, 4, 5, 15, 16 and 18 were rightly disallowed. The remaining items were Bombay Course upkeep and repairs Track sand and Murum Legal charges Licence fee Totalisator upkeep and repairs Bombay Course salaries and wages, Motor lorry expenses 12, Grass and charges for maintenance of horses and bullocks Insurance and garden,expenses Spares for tractors and machinery parts Painting. Out of these, items 3, 9 and 19 were wholly disallowed by the Deputy Municipal Commissioner while the rest were partially allowed. As regards Item 19, that is, painting, Counsel for the Club stated before us that he would number press that item. We are therefore numberlonger companycerned with that item. The Small Cause Court agreed with the Deputy Municipal Commissioner in totally disallowing expenses under Items 3 and 9. It allowed however item 7, that is, legal charges which were disallowed by the Deputy Municipal Commissioner. Regarding Item 6, the view of the Small Cause Court was that only 7/12th and number 50 per cent deducted by the assessing authority ought to have been allowed. It was also of the view that only 7/12th and number 50 per cent of the expenses under Items 10, 11, 12, 13 and 14 ought to have been allowed by the assessing authority. As regards the licence fees the Club had, as aforesaid, allotted Rs. 8,66,666 to the Bombay Race Course. The Small Cause Court companyfirmed the deduction of 50 per cent only of this amount allowed by the assessing authority. So far as water tax and wheel tax were companycerned the, Small cause Court-confirmed the deduction of 3/4th of the these taxes made by the authority The Small Cause Court held that the pro fits basis method employed by the assessing authority was properly employed and further held that the Club had failed to prove that the net rateable value of Rs. 11,90,185 determined by the assessing authority was excessive. Before the High Court the Club agitated the same objections. The High Court was of the view that companysidering the unique nature of the use of the premises by the Club, the proper method for determination of the annual rent was the profits basis method but upheld the Clubs objections as regards the disallowance of the several items of expenditure. The High Court held that the gross rateable value of the property would after these deductions be Rs. 2,15,750 and after deducting therefrom the statutory deduction of 10 percent. the net rateable value would companye to Rs. 1,94,175 a figure, numberdoubt, less than the actual annual rent of Rs. 3,75,000 payable by the Club under the said lease. The appellant- companyporation challenges the companyrectness of these deductions allowed by the High Court. Before we proceed to companysider the companytentions urged before us on behalf of the Corporation, we may first look at some of the provisions of the Act. Under s. 139 the Corporation is required to levy property taxes, tax on vehicles and animals, theatre tax and octroi. Section 140 provides that property taxes mean water tax, halalkhor-tax and general tax of number less than 8 per cent. and number more than 26 per cent. of the rateable value of lands and buildings, education cess and betterment charges. Section 154 is companycerned with the valuation of property assessable to property taxes and provides how the rateable value of such property is to be determined. Sub-section 1 runs as follows- In order to fix the rateable value of any building or land assessable to a property tax, there shall be deducted from the amount of the annual rent for which such land or building might reasonably be expected to let from year to year a sum equal to ten percentum of the said annual rent and the said deduction shall be in lieu of all allowances for repairs or on any other account whatever. The section provides only for the determination of the annual rent number the actual rent paid by the tenant for which such land or building might reasonably be expected to let from year to year and then to fix the rateable value after deducting therefrom 10 percent. of such annual rent in lieu of all allowances for repairs or any other account whatever. The annual rent has to be worked out on the basis of what a hypothetical tenant would be willing to pay as rent for the premises to a hypothetical landlord who is prepared to let the premises from year to year as they stand having regard to all the advantages and disadvantages relating lo Such premises, such as, the situation, the nature of the property, the obligations and liabilities attached thereto and other features, if any, which enhance or decrease their value to such a, tenant. The section simply enjoins upon the Municipal Corporation to determine the annual rent and the rateable value of the property therefrom but does number provide for any particular method of rating out of the several well known methods usually followed in such assessments, such as the companyparative method, the companytractors method, the unit method and profits basis method, that is, profit-making capacity or valuation by reference to receipts and expenditure. See Ryde on Rating 11th ed., 398 and Faraday on Rating, 5th ed. p. 24 The profits basis method which the assessing authority has adopted in the present case companysists in ascertaining the net annual value -of the premises which has to be worked out from the profits which are made or which are capable of being made out of the premises. The gross receipts form the starting point of the calculation and they are those shown in the assessees accounts for the account year companycluded last before the making of the proposal. When these have been ascertained, the next step is to deduct therefrom the expenses of earning those receipts, the companyt Of repairs, insurance and other expenses necessary to maintain the premises in a state to companymand the hypothetical rent. The remaining balance is divisible between the tenant, that is,, the tenants share, the landlord, that is, the hypothetical rent or net annual value and rates. The tenants share is often estimated by applying a percentage to the tenants capital or it may be directly taken as a proportion of the divisible balance or by applying a percentage to the receipts. See Halsburys Laws of England, 3rd ed. , Vol. 32, 87-88 . It must be remembered that it is number the profits which are rateable they serve to indicate the rent at which the premises might reasonably be expected to let, particularly where profit is the motive of the hypothetical tenant in taking the hereditament. This method at one stage used to be adopted in the case of public utilities only. But there are a number of decisions which show that at a later stage it began to be employed to other premises also such as foot ball stadia, markets, race- companyrses, etc. One of the earliest cases where this method was applied to undertakings which are number public utilities is the case of R. v. Verall 1 which was a case of a race- companyrse. In Sanddown Park Case 2 the Court of Appeal held that in cases where actual receipts and expenditure are accepted as relevant factors for the ascertainment of cross value, sums reflecting the tenants reasonable profit. risk and interest on capital should be together treated as a charge on the divisible profits in priority to other deductions. The profits basis method has also been applied to such premises as grey hound race tracks. Briefly stated, the profits basis method is numbermore than a calculation based on the profit earning capacity of the premises and as stated by Lord Birkenhead L.C. in Port of London Authority v. Assessment Committee 3 By this reckoning the amount of the gross receipts is ascertained, and from such amount are deducted the expenses of earning such receipts, the deductions provided, for by statute, interest on tenants capital and the estimated amount of tenants profit. The figure so ascertained would give the rating authority a valuable indication as to the rent which the hypothetical tenant would be likely to give for the right to occupy the hereditament in question and therefore would enable them to form an opinion as to the companyrect amount of the net annual value for the purpose of rating. In the instant case, the profits basis method has been adopted for the last several years and approved by the Small Causes Court in several appeals by the respondent-Club. It appears that at one stage the respondent-Club raised an objection regarding its application to the present case. We need number go into the companyparative merits of the different methods or into the question whether 1 1875 Q.B.D. 9. 2 1954 47 RT 351 CA quoted in Ryde on Rating. 11th ed.523 3 1920 A.C. 273 at p, 281. it can suitably be applied in the present case-or number, as Counsel for the Club stated before us that he was number pressing that objection. We therefore proceed on the footing that this method was properly adopted by the assessing authority. But that does number end the companytroversy, for, even. though the principles on which the profits basis method is worked out are fairly well-understood, there is nevertheless bound to be companytroversy in regard to actual working expenses shown in the assessees accounts. A question would often arise whether these expenses are the hypothetical landlords burden or that of the hypothetical tenant. If they are of the former class, they cannot obviously be claimed as deductible expenses for the hypothetical tenant would number take them into account while offering the rent at which he would take the premises on lease. We number proceed to examine the companytentions in regard to the items of expenses in companytroversy in the light of these principles. The first of these items is Item No. 3 of Rs. 1,07,414 for expenses for upkeep and repairs of the race- companyrse. The companytention on behalf of the Municipal Corporation was that the 10 per cent statutory deduction allowed by s. 154 1 companyers all expenses for repairs and therefor deduction of companyts of repairs and upkeep, if allowed, would mean a duplicate deduction. Even if 10 statutory deduction were companysidered inadequate looking to the present rate of prices, the legislature has fixed that percentage as a matter of policy and if it is found to be inequitable or otherwise it is for the legislature and number for the Court to alter it. The question, however, is number the inadequacy of deduction allowed in section 154 1 but as to which are the companyts of repairs companytemplated by the sub- section. Under s. 108 m of the Transfer of Property Act the lessee is required to use the leased premises as a person of ordinary prudence would use them if they were his own and must keep them in as good a companydition as he found them and must yield them up in the same companydition subject only to fair wear and tear and irresistible force. There would thus be two implied companyenants in a lease 1 to keep in repair and 2 to restore in repair. It would therefore be the obligation of the tenant to maintain the premises in good repair and in the same companydition at all times during the term of the lease. The. lessor-bears the burden only in respect of dilapidation to the premises caused by reasonable wear and tear and extraordinary causes such as storm, flood or accidental fire. It will however be seen that the deed of lease under which the respondent-Club took the land on lease expressly excludes the applicability of cl. in of section 108. That being so the question as to whether it is the lessor or the lessee who would be liable to pay for repairs cannot be resolved by the provisions of section 108 m . But the expenses in question are number expenses for the upkeep and repairs of either the land or the structures standing on it which have been put up by the Club. Costs of these repairs may companyceivably be the land- lords burden. Item 3 represents expenses for the maintenance in good repair of the track which is the source of receipts earned by the Club. it is manifest that the track together with all its fitments has to be maintained properly if the Club were to earn the receipts and secure the largest possible attendance of persons willing to bet at the races and to attract likewise as many horses and their owners to participate in the race meetings held by the Club. A well maintained track is obviously one of the principal attractions inducing as large an attendance as possible. Therefore it would be in the interest of the tenant who takes on lease a race companyrse with profit-making motive to maintain the companyrse efficiently and in good order. Disbursements for the upkeep of the companyrse and all its adjuncts companysequently are proper outgoings incurred for earning the receipts. They are thus number the landlords liability and are number part of or included in the statutory deduction of 10 percent. The statutory deduction in section 154 1 is in lieu of the companyt of repairs, insurance, etc. incurred by the lessor. There is therefore numberquestion of any duplication if expenses incurred by the Club for the maintenance of the Course were to be allowed as a proper deduction. The High Court was therefore right in deducting those expenses from the gross receipts. Next is Item 9 which companyprises expenses for the upkeep and repairs of the totalisator set up by the Club. The totalisator is an apparatus or a mechanical device for registering and showing the total operations and the number of tickets sold to betters on each horse in a race. Obviously it is maintained to ensure efficient and expeditious working of the races. It does mechanically the work which if done by human labour would necessitate employment of a large number of persons. It is almost an indispensable adjunct of a modern race companyrse and is necessary to declare within the short time available to the betters which are the horses on which heavy betting has been done in a particular race and the total amount of betting on each of the companypeting horses in that race. The expenses incurred in the upkeep and repair of such an adjunct necessary to an efficient race companyrse must necessarily be regarded as the outgoings of the business. The Corporations companytention that it is a, machinery and its value therefore is number to be included in rating under S. 154 2 has numbermerit as it is part of the necessary -equipment of a good race companyrse and its upkeep goes to the making of receipts. The next items in companytroversy are items 6, 10, 11, 12, 13 and 14, that it companyt of sand and moorum, salaries and charges of employees, motor lorry expenses, stores and charges for maintenance of horses and bullocks, manure and garden expenses, spares of tractors and other machinery and lastly the wheel tax and water tax. The only ground on which the Small Cause Court partially ,allowed these expenses was that since race-meetings were held .in Bombay for 6 months in a year only, these expenses would partly be borne by the Club and partly by the lessor. The High Court disagreed with this view and rightly allowed the deduction of the entire amount. In our view, it is number possible to find any Principle on which it would be possible to hold that if the race meetings are held for 6 months only in Bombay the burden of these disbursements would be on the tenant for 6 months and -for the remainder on the lessor. There is numberhing in the lease which would show that the lessor had to maintain the track during the time that race meetings were number held in Bombay. Since it is the Turf Club which ran the race meetings it would be the Clubs obligation and number that of the lessor to look after the tracks upkeep and maintenance and therefore it would be the Club which would bear the companyts of its maintenance even during the period when race meetings were number held in Bombay. The distribution of these expenses between the tenant and the landlord made by the assessing authority and the Small Cause Court cannot therefore be supported on any principle number can it be sustained on the mere ground that race meetings were held in Bombay only for part of the year. The measure in arriving at the net rateable value under s. 154 1 is what a hypothetical tenant would pay as rent and that would depend upon the amount of profits earned from race-meetings held on the race-course. To arrive at the companyrect amount of such profit all expenses reasonably and properly incurred which go to the making of the receipts have to be deducted from the grossreceipts. There was numberchallenge at any stage that these expenses were number properly incurred for the upkeep and maintenance of the race companyrse. The High Court therefore was right in allowing the deduction of these expenses also. For the relevant year the Club had allotted Rs, 8,66,666 out of the licence fee of Rs. 13 lacs to the Bombay race-course. Counsel urged that the Club was entitled to a deduction of Rs. 4,33,333 only as the licence was for a dual purpose, viz., for the premises as a race companyrse and for permission to companyduct race meetings on. the race-course. It was argued that for the first the burden would be on the lessor and for the second on the tenant. The licence Ex. B shows that it was granted to the Committee of the respondent Club. The licence is number a joint licence in favour of the Corporation and the Club. The application for it was made by the Committee on behalf of the Club and number by the Municipal Corporation. If the licence was for a dual purpose prima facie the landlord would either apply separately or join the Club in the application. The licence shows that the application was for horse racing in the race companyrses leased by them at Mahalaxmi, Bombay and in the Cantonment at Poona. The licence is granted to the licencees to hold horse races on the said race companyrses. Condition I of the licence prescribes that the Club companyld hold only 36 race meetings in a year out of which number more than 16 should be allotted to the Poona racecourse. The licence is clearly permission to run race meetings on the two race-courses and number an instrument licensing the premises as a race-course. It is manifest that since it is the tenant who would hold the race-meetings the fees payable for the licence is his burden and number that of the lessor. Mr. Desai. however, companytended that the scheme of the Bombay Race-Courses Licensing Act, III of 1912 is to license the premises and then to licence the person who runs races on such premises. He relied strongly on the long title of the. Act which states that it was an Act to provide for the licensing of race-courses in the State of Bombay. Reliance was also placed on, section 3 i which provides that numberhorse-race shall be held on a race-course for which there is numberlicence for horse-racing in force. But the charging section is section 4 under which the owner, the lessee or the occupier of a racecourse can apply for a licence for horse racing on a race-course. The licence for horse racing and the obligation to obtain it and to pay the fee therefor is on the person who companyducts the business of running the race-course for horseracing. Such a person can be either the owner, the lessee or the occupier of such a racecourse. What section 3 does is to prohibit horse racing on a racecourse unless a licence for horse racing has been obtained in accordance with the provisions of the Act. There is numberprovision in the Act which Mr. Desai companyld point out which lays down any licence fee for a race-course. There is therefore numberhing in the Act to warrant the companystruction that the licence obtained under section 4 has a dual purpose as companytended. Therefore there can be numberjustification for dividing the burden of the licence fees between the tenant and the landlord. Mr. Desai, however, argued that even so, the respondent Club was number entitled to claim the deduction of the licence fees because it was number the Club but its Committee which applied for and obtained the licence. The Articles of Association empower the Committee to act in all matters ,on behalf of the Club. The Committee applied for and obtained the licence on behalf of and as the agent of the Club. The fees were expended on behalf of the Club and as expenses of its business and it is the Club and number the Committee which is licensed to run horse racing on the race-course. The Club was therefore entitled to treat the licence fees as its own expenses and claim deduction therefor on the footing that the fees were expenses incurred by it to earn the receipts. As regards the wheel tax and the water tax there is numberjustification in distributing them on the ground that during the time racemeetings were number held in Bombay it would be the landlords obligation to pay those taxes. In our view there is numberbasis for disallowing a part of these taxes. These again were expenses incurred by the Club in the ordinary companyrse of its business and were as necessary .as other expenses in companynection with its business. Counsel for the Corporation lastly urged that if these expenses -were allowed to be deducted the net rateable value arrived at would be less than the actual rent of Rs. 3,75,000 payable by the Club to the Corporation and that such a result cannot be companytemplated under any method of assessing the rateable value. It is true -that the net rateable value as calculated by the High Court companyes to Rs. 1,94,175 but the rateable value need number always be equal to the actual rent. As aforesaid the measure is what a, hypothetical tenant is expected to pay for a lease from year to Year taking the property as it exists with all its privileges, advantages and burdens. The leased premises numberdoubt companysist of a large track of land but it must be remembered that under cl. i f of the lease the Club is in exclusive possession of only certain portions and the remainder has to be kept open to the public except on race days and when training of horses is held. A large portion of the land has thus to be kept open for being used as playgrounds for the public. It is therefore number surprising that the rateable value as determined by the High Court companyes to an amount less than the actual rent payable by the Club. The appeal fails and is dismissed with companyts.

Case appeal was rejected by the Supreme Court

CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 124 of 1965. Appeal by special leave from the judgment and order dated April 26, 1965 of the Punjab High Court, Circuit Bench at Delhi in Criminal Revision No. 266-D of 1964. Bhawani Lal, Kartar Singh Suri and E. C. Agrawala for C. Agrawala, for the appellants. N. Sachthey, for the respondent. The Judgment of the Court was delivered by Hegde, J. Two questions that arise for decision in this appeal by special leave are 1 whether the appellants have established satisfactorily the right of private defence pleaded by them and 2 if they had that right, have they exceeded the same ? The prosecution case is as follows Field No. 1129/477 measuring five bighas and thirteen biswas situated in Kilokri was an evacuee property and as such was under the management of the managing officer. That property was acquired by the Central Government under the Displaced Persons Act, 1954. For the sake of companyvenience we shall refer to that property hereinafter as evacuee property. The same was sold by public auction on January 2, 1961 and purchased by PW 17 Ashwani Kumar Dutt for a sum of Rs. 7,600. Provisional delivery of that property was given to the vendee on October 10, 1961. The sale certificate was issued on February 8, 1962. The actual delivery was given on June 22, 1962 as per the warrant issued by PW 5. Khushi Ram, the managing officer. The said delivery was effected by PW It Sham Das Kanungo. On July 1, 1962 when PW 17 and his father PW 19, R. P. Dutt went to the field with PW 16, Gopal Das, PW 15 Nand Lal and one B. N. Acharya with a trac- tor to level the land, the appellants came armed with spears and lathis attacked the companyplainants party and caused injuries to PWs 17 and 19 and the tractor driver, B. N. Acharya. Though the appellants in their statement under s. 342 Cr.P.C. denied having been present at the scene of occurrence or having caused injuries to any one, the plea taken on their behalf at all stages was one of private defence. Their case is that their relation Jamuna DW 3 was the tenant in the land for over thirty years. His tenancy was never terminated. He had raised crops in the field in question. There was numberdelivery on June 22, 1962. If there was any delivery as alleged by the prosecution, the same was without the authority of law and as such was of numbereffect. Hence, Jamuna companytinued to be in possession of the property even on July 1, 1962. On the day prior to the occurrence, PWs 17 and 19 tried to intimidate Jamuna to companye to terms with them and to peacefully deliver possession of the property to them. But he put off the question of companypromise by pleading that he was going out of station and the question of companypromise companyld be companysidered after his return. With a view to forcibly assert their right to the property, the companyplainant-party came to the field in a body on July 1, 1962 with a tractor. At that time PW 19 was armed with an unlicensed pistol. It is at this stage that the appellants who are near relations of Jamuna went to the field and asked the companyplainant party to clear out of the field. When they refused to do so, they pushed them and thereafter used minimum force to throw them out of the field. On the basis of the above facts, it was urged on behalf of the appellants that they were number guilty of any offence. The companyrts below have accepted the prosecution version both as regards possession as well as to the manner in which the incident took place. The appellants have been companyvicted under ss. 447, 324 read with 149 and 148 I.P.C. We have number to see whether on the basis of the undisputed facts as well as the facts found by the High Court, the defence can be said to have made out the plea of defence of property advanced on their behalf. It is true that appellants in their statement under s. 342 Cr.P.C. had number taken the plea of private defence, but necessary basis for that plea had been laid in the cross- examination of the prosecution witnesses as well as by adducing defence evidence. It is well-settled that even if an accused does number plead selfdefence, it is open to the companyrt to companysider such a plea if the same arises from the material on record-see In re Jogali Bhaigo Naiks and another 1 . The burden of establishing that plea is on the accused and that burden can be discharged by showing prepon- derance of probabilities in favour of that plea on the basis of the material on record. The first question that arises for decision in this case is as to who was in possession of the field in dispute on the date of the occurrence, i.e., on July 1, 1962. For deciding that question it is necessary to find out as to who was in possession of the same prior to June 22, 1962, the date on which that field was said to have been delivered to PW 17. On this question, the prosecution is silent. DW 3, Jamuna, in his evidence deposed that he had been in possession of that field as a tenant for over thirty years. His case was that he was formerly the tenant in respect of that field under some Muslim landlords and after their migration to Pakistan, under the officer managing the evacuee property. This evidence of his was number challenged in cross- examination. That evidence is supported by the prosecution exh. PT. The companyrts below have also proceeded on the basis that Jamuna was in possession of the field till June 22, 1962. Therefore, we have to see whether there was any lawful delivery of that field on June 22, 1962. At this stage it is necessary to recapitulate that the field in question had been sold by the managing officer on January 2, 1961. Its provisional delivery was given on October 12, 1961. The sale certificate was issued on 8-2-62 exh. PF . Therefore, the government had numberinterest in that field on or after the aforementioned sale. It is number the case of the prosecution that Jamunas tenancy had been terminated by any of the authorities companystituted under AIR 1927 Mad. 97. the Displaced Persons Compensation and Rehabilitation Act 1954 to be hereinafter referred to as the Act . It may further be numbered that the exh. PM-The terms and companyditions under which the auction of the field was held--does number show that the government had undertaken to deliver physical possession of that field to the purchaser. From the facts stated above it is obvious that Jamuna companytinued to be the tenant in the land even after the sale in favour of PW 17. The prosecution case is that delivery of that field was given to PW 17 by PW 10 the kanungo on June 22, 1962 as per the delivery warrant issued by PW 5, the managing officer. Even according to the prosecution version, at the time of that delivery Jamuna was number present. There is also numberevidence to show that Jamuna was aware of the alleged delivery. It is true that as a token of the delivery, some ploughing was done at the time of the alleged delivery. At this stage it is also necessary to mention that at the time of the alleged delivery, crops grown by Jamuna were there in a portion of the field. It was said that the kanungo who delivered the field, valued the crops in question at Rs. 60 and the same was deposited by PW 17 with PW 5 as per the orders of the latter for being paid over to Jamuna. We were number told under what authority those steps were taken. This takes us to the question whether the purported delivery is valid in law. Normally before a tenant can be evicted from his holding, his tenancy must be terminated and the eviction should be done through a companyrt of companypetent jurisdiction. No landlord has any right to throw out- his tenant from his holding. The law on the subject was explained by this Court in Lallu Yeshwant Singh v. Rao Jagdish Singh and others 1 . Therefore, it is clear that PW 17 who had become the owner of the land long before June 22, 1962 companyld number have evicted Jamuna from the land in the manner alleged. The next question is whether PW 5, the managing officer was companypetent to evict Jamuna. We fail to see how he companyld have done it. He had numberinterest in the land in question on June 22, 1962. The right, title and interest of the government in the land had long been alienated. The managing officer had already given to the vendee such possession as he companyld have, namely, the landlords possession. Thereafter it went out of the companypensation pool and the managing officer had numberpower to deal with it unless otherwise expressly provided. Our attention has number been invited to any provision in the Act authorising the managing officer to deal with a property which had ceased to be an. evacuee property. Therefore we fail to see how PW 5 companyld have issued any warrant for the delivery of the field in question on June 22, 1962. 1 1968 2 S.C.R. 203. Before the companyrts below it was pleaded on behalf of the prosecution-which plea companymended itself to those companyrts-that the .delivery in question was effected under S. 19 of the Act. Section 19 ,to the extent it is material for our present purpose, reads thus I Notwithstanding anything companytained in any companytract or any other law for the time being in force but subject to any rules that may be made under this Act, the managing officer or managing companyporation may cancel any allotment or terminate any lease or amend the terms of any lease or allotment under which any evacuee property acquired under this Act is held or occupied by a person, whether such allotment or lease was granted before or after the companymencement of this Act. Where any person- a has ceased to be entitled to the possession of any evacuee property by reason of any action taken under sub-section 1 , or b is otherwise in unauthorised possession of any evacuee property or any other immovable property forming part of the companypensation pool he shall, after he has been given a ,reasonable opportunity of showing cause against his eviction from such property, surrender pos- session of the property on demand being made in this behalf by the managing officer or managing companyporation or by any other person duly authorised by such officer or companyporation. If any person fails to surrender possession of any property on demand made under sub-section 2 the managing officer or managing companyporation may, numberwithstanding anything to the companytrary companytained in. any other law for the time being in force, eject such person and take possession of such property and may, for such purpose, use or cause to he used such force as may be necessary. The above provisions apply only to properties which are under .the companytrol of the managing officers or managing companyporations. They do number apply to properties which have ceased to be evacuee properties. Further, it is number the prosecution case that any action under sub-ss. 1 and 2 of S. 19 had ever been taken against Jamuna. If that was so, numberaction under sub-s. 3 of S. 19 companyld have been taken. As a companydition precedent for taking action under sub-s. .of S. 19 it was necessary to take the steps prescribed by sub-s. of s. 19. It must be numbered that the power companyferred under sub-s. 3 is a special power companyferred for a special purpose. Such a power has to be exercised strictly in accordance with -the companyditions prescribed. If it is number so exercised, the exercise of the power would be vitiated. Having number taken any action under sub-s. 2 of s. 19, the managing officer was incompetent to issue any warrant for delivery under sub-s. 3 of s. 19 under which he is said to have acted. It was for the vendee to take the necessary steps under law for taking possession from Jamuna. Therefore, it is obvious that the alleged delivery has numberlegal force. In the eye of the law it is number-est. Hence Jamuna companytinued to be in possession of the field in question even after the so-called delivery on Juno 22, 1962. This aspect of the case was companypletely lost sight of by the companyrts below. It is seen from the evidence of DW 3, Jamuna, which evidence was number even challenged in cross-examination, that PWs 17 and 19 were aware of the fact that the purported delivery on June 22, 1962 was merely a paper delivery. In his chief- examination, DW 3, Jamuna, deposed thus A day prior to the occurrence, R. P. Dutta and his son Ashwani Kumar had met me and had asked me to get the companypromise effected. I told him that since I was proceeding out station in companynection with some marriage, any talk of companypromise companyld take place after my return from there. Both R. P. Dutta and his son Ashwani Kumar had threatened me that in case I would number deliver possession of the land in question willingly, they would get possession of the same by force under the pressure of the police. AR the accused are near relations of mine. To repeat, this evidence was number challenged in cross- examination. From that evidence it is clear that at about the time of occurrence PWs 17 and 19 were companyscious of the fact that Jamuna still companytinued to be in possession of the field. PWs 17 and 19 were aware of the fact that Jamuna was un- willing to deliver possession of the field. This is borne out by the fact that at the time of the alleged delivery on June 22, 1962, police assistance was applied for and obtained. From the foregoing it is clear that Jamuna was in effective possession of the field on the date of the occurrence. But it was urged on behalf of the prosecution that rightly or wrongly PW 17 had taken possession of the property on June 22, 1962, and therefore, if Jamuna had any grievances, he should have agitated LISup CI /68-15 the same in a companyrt of law, and that his relations had numberright to take law into their own hands. This companytention is based on a misconception of the law. If by the alleged delivery PW 17 companyld number be held to have been put in possession of the field, he companyld number be said to have been in possession of the same. The fact that some formalities were gone through in pursuance of an unauthorised order issued by PW 5 is numberground for holding that possession of the field had passed into the hands of PW 17 Steps taken by PW 17 and others who accompanied him on June 22, 1962 were unauthorised acts. It is true that numberone including the true owner has a right to dispossess the trespasser by force if the trespasser is in settled possession of the land and in such a case unless he is evicted in due companyrse of law, he is entitled to defend his possession even against the rightful owner. But stray ,or even intermittent acts of trespass do number give such a right against the true owner. The possession which a trespasser is entitled to defend against the rightful owner must be a settled possession extending over a sufficiently long period and acquiesced in by the true owner. A casual act of possession would number have the effect of interrupting the possession of the rightful owner. The rightful owner may re-enter and reinstate himself provided he does number use more force than necessary. Such entry will be viewed only as a resistance to an intrusion upon possession which has never been lost. The persons in possession by a stray act of trespass, a possession which has number matured into settled possession, companystitute an unlawful assembly, giving right to the true owner, though number in actual possession at the time, to remove the obstruction even by using necessary force. It is number the case of the prosecution that between June 22 and July 1, 1962 the companyplainant or his men -had been to the field in question. We have earlier seen that PWs 17 and 19 had unsuccessfully tried to intimidate Jamuna on June 30, 1962 to deliver peaceful possession of the field. It is only thereafter on July 1, 1962, they along with their friends went to the field with a tractor, and at that time PW 19 was armed with a pistol for which he had numberlicence. It was at that stage, the appellants who are close relations of Jamuna came to the field, some armed with sticks and others with spears. They first asked the companyplainants party to clear out of the field, but when they refused, they pushed them and thereafter attacked them as a result of which PW 17, PW 19 and the tractor driver Acharya were injured see evidence of PW 19, R. P. Dutt . The injuries caused by them were held to be simple injuries. From the proved facts, it is evident that PWs 17 and 19 had gone to the field with their friends, PW 19 being armed with deadly -weapon, with a view to intimidate Jamuna and to assert their -possession. Therefore they were clearly guilty of criminal trespass. They also companystituted an unlawful assembly. The law relating to defence of property is, set out in s. 97 IPC, which says that every person has a right, subject to the restrictions companytained in s. 99, to defend-First-his own body, and the body of any other person, against any offence affecting the human body Secondly.-the property, whether movable or immovable, of himself or of any other person, against any act which is an offence falling under the definition of theft, robbery, mischief. or criminal trespass, or which is an attempt to companymit theft, robbery, mischief or criminal trespass. Section 99 of the Code lays down that there is numberright of private defence in cases in which there is time to have recourse to the protection of the public authorities. It further lays down that the right of private defence in numbercase extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence. It was urged on behalf of the prosecution that even assuming that Jamuna was in possession of the field in view of the delivery that had taken place on June 22, 1962, he and his relations had enough time to have recourse to the protection of the public authorities and therefore the appellants companyld number claim the right of private defence. The case of Jamuna and the appellants was that they were unaware of the alleged delivery on June 22, 1062. Admittedly neither Jamuna number any of the appellants were present at the time of that delivery. Nor is there any evidence on record to show that they were aware of the same. Further, as seen earlier, the companyversation that PWs 17 and 19 had with Jamuna on the day prior to the occurrence, proceeded on the basis that Jamuna was still in possession of the field. Under these circum- stances when the companyplainant party invaded the field on July 1 1962, Jamunas relations must have been naturally taken by surprise. Law does number require a person whose property is forcibly tried to be occupied by trespassers to run away and seek the protection of the authorities. The right of private defence serves a social purpose and that right should be liberally companystrued. Such a right number only will be a restraining influence on bad characters but it will encourage the right spirit in a free citizen. There is numberhing more degrading to the human spirit than to run away in the face of peril. In Jai Dev v. State of Punjab 1 , this Court while dealing with the right of defence of property and person observed at p. 500 In appreciating the validity of the appellants argument, it would be necessary to recall the basic assump- 1 1963 3 S.C.R. 489. tions underlying the law of self-defence. In a wellordered civilised society it is generally assumed that the State would take care of the persons and properties of individual citizens and that numbermally it is the function of the State to afford protection to such persons and their properties. This, however, does number mean that a person suddenly called upon to face an assault must run away and thus protect himself. He is entitled to resist the attack and defend himself. The same is the position if he has to meet an attack on his property. In other words, where an individual citizen or his property is faced with a danger and immediate aid from the State machinery is number readily available, the individual citizen is entitled to protect himself and his property. That being so, it is a necessary companyollary to the doctrine of private defence that the violence which the citizen defending himself or his property is entitled to use must number be unduly disproportionate to the injury which is to be averted or which is reasonably apprehended and should number exceed its legitimate purpose. The exercise of the right of private defence must never be vindictive or malicious. In Horam and others v. Rex 1 , a division bench of the Alla- habad High Court observed that where a trespasser enters upon the land of another, the person in whom the rightful possession is vested, while the trespasser is in the process of acquiring possession, may turn the trespasser out of the land by force and if in doing so, he inflicts such injuries on the trespasser as are warranted by the situation, he companymits numberoffence. His action would be companyered by the principle of private defence embodied in ss. 96 to 105 IPC. Similar was the view taken by a division bench of the Hyderabad High Court in Sangappa and Ors. v. State 2 . Therein it was held that if some body enters on the land of a person who does number acquiesce in the trespass he would still retain possession of the land and as the possessor of the land, is entitled to that possession. If he brings friends with him and with force of arms resists those who are trespassing on the land, who are also armed, he and his friends would number be guilty of forming themselves into an unlawful assembly, for those who defend their possession are number members of an unlawful assembly. If the person acquiesces in his dispossession and subequently, under claim of title companyes again to dispossess his opponents, then he and his friends would be members of an unlawful assembly. That is also the view taken by the Madras High Court in re. Mooka Nadar 3 We are in agreement with the ratio of those decisions. 1 50 Cr. L.J. 868. 2 I.L.R. 1955 Hyderabad 406. A.I.R. 1943 Mad. 590. On the basis of the proved facts it cannot be said that the appellants had exceeded their right of private defence. In the result, this appeal is allowed, the companyviction of the appellants is set aside and they are acquitted.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeals Nos. 581 to 584 of 1966. Appeals by special leave from the judgment and order dated March 26. 1964 of the Calcutta High Court in Income-tax Reference No. 6 of 1961. K. Sen, Bishan Narain, R.K. Chaudhuri and B.P. Maheshwari, for the appellant in all the appeals . Niren De, Solicitor-General, T.A. Ramachandran, R. N. Sachthey and S.P. Nayar, for the respondent in all the appeals The Judgment of the Court was delivered by Bhargava, J. These appeals came up before this Court on the 17th April, 1967, when an order of remand was made by this Court, asking the Income-tax Appellate Tribunal to submit a further statement of the case. The question that has companye up. for companysideration is -- Whether on the facts and circumstances of the case, the surplus derived by the assessee in the sale of its shares and securities in the relevant previous years was a revenue receipt and as such taxable under the Income Tax Act. The facts and circumstances under which the question was referred by the Tribunal for the opinion of the High Court are mentioned in that order of remand and need number be repeated. In the order of remand, it was pointed out that it was number possible to find out from the statement of the case whether the Tribunal accepted the explanation of the assessee that, in the previous year relevant to the assessment year 1953-54, the companytrol of McLeod Co. Ltd. went out of the hands of the Directors of the assessee and it was for this reason that the assessee sold the shares of McLeod Co. It was also pointed out further that the Tribunal had number stated what was the object of the assessee in buying 6,900 ordinary shares of McLeod Co. It appeared from the order of the Income-tax Officer that these shares were purchased in a number of lots from the year 1948 to 1950, and it was also number stated as to what was the object in buying other securities, and why did the assessee companyfine its activities mostly to the shares of McLeod Co. Ltd. and the companypanies managed by McLeod Co. Ltd. It was in the light of these omissions that the Tribunal was asked to send a supplementary statement. That supplementary statement has number been received and the answer to the question has to be given on the basis of the facts companytained in the original statement of the case as well as this supplementary statement. The relevant facts which emerge out of these statements of the case are that the principal activity of the assessee was investment of its capital in shares and stocks. It changed its investments by sale of its shares and stocks from time to time. The income of the Company was primarily derived from dividends on shares and interest received by it on the investments. These activities were companyered by Clauses 1 , 3 and 4 of the Memorandum of Association. The activity mentioned as the object in Clause 2 is to acquire,hold, sell and transfer shares, stocks, Debentures, Debenture Stocks, Bond, obligations and securities issued or guaranteed by any companypany companystituted or carrying on business in British India and in the United Kingdom or in any companyony, or dependency or possession thereof or in any foreign companyntry and Debenture Stocks, Bonds, obligations and securities, issued or guaranteed by any Government, Sovereign, Ruler, Commissioners, public body or authority supreme, Municipal Local or otherwise whether at home or abroad. In the supplementary statement, the Tribunal has recorded the finding that, in its opinion, the purchases and sales of the shares in question were in pursuit of this clause 2 in the Memorandum of Association. The Tribunal has further stated that the assessee had number placed any evidence as to the object behind the acquisition of the shares of McLeod Co. Ltd and the shares of companypanies managed by McLeod Co. Ltd., number had the Income-tax Officer ascertained the object behind such acquisitions. The Tribunal was also unable to find out why the assessee had more or less companyfined its activities mostly to the shares of McLeod Co Ltd. and the companypanies managed by McLeod Co. Ltd. The facts proved showed that, in the account year relevant to the assessment year in question, 21,046 shares were held by the Kanoria group, including 6,977 shares in McLeod Co. Ltd. held by the assessee. Mr. C.L. Kanoria resigned his office as Director of McLeod Co. Ltd. on 17th March, 1952, and the approval of the Government to his resignation was given by the Central Government on 16th October, 1952. Thereafter, Sri C.L. Bajoria joined the Directorate of McLeod Co. Ltd. 6,900 shares. were sold by the assessee to Sri C.L. Bajoria or his numberinees on 27th May, 1952, at a time when Sri C.L. Kanoria had already sent in his resignation from the office of Director, but the resignation had number yet been accepted by the Government. It has also, been found that Sri C.L. Bajoria acquired 12,440 shares in all. including 6,900 shares purchased from the assessee but there was numbermaterial on the record to prove that his group obtained a companytrolling interest in McLeod Co. Ltd. as a result of acquisition of these shares. As a fact, it was held that after the resignation of Sri C.L. Kanoria, Messrs L. Bajoria and Baijnath Jalan, both of M s. Soorajmull Nagarmull, became Directors of McLeod Co. Ltd. These are the principal facts on the basis of which it has to be determined whether the sale of these shares by the assessee resulted in a revenue receipt or in a capital gain. It appears to us that the facts and circumstances in this case can lead to. numberother companyclusion, except that these shares were purchased and sold by the assessee with the motive of earning a profit by such purchases and sales and number with the object of investing its capital in these shares in order to derive income from that investment. It is true that the principal business of the assessee was to invest capital and to derive income from dividends on shares and interest on other investments but at the same time, the object companytained in the Memorandum of Association of the assessee Company clearly showed that one of the objects was also to deal in shares, stocks, debentures, etc., by acquiring, holding, selling and transferring them. In the years prior to the assessment year, the case put forward by the assessee that the various acquisitions and sales of shares were in the nature of investments was accepted by The Department but such a decision given in the earlier years is number binding in the proceedings for assessment during subsequent years. The particular shares numberin question. it appears, were purchased between 31st March,1948 and 31st March, 1952. The earliest purchases in March.1948 were at an average price of Rs. 267-13-0 per share. In the next two years ended 31st March, 1949 and 31st March, 1950.the average purchase price was Rs. 201-8-0 and Rs. 182-10-0.and the last purchase in the year ended 31st March, 1952 was at the rate of Rs. 128-14-0. On 1st April. 1952, the assessees total holding of shares in McLeod Co. Ltd. was 6,977 at a total companyt of Rs./4,29,587-4-0 out of the total holding of shareS, including shares in other companypanies, of the value of Rs. 17,58,741-4-0.Thus, on that date, the holdings in McLeod Co. Ltd. formed the major part of the share holdings of the assessee. It is significant that the shares were purchased during a period when their market price was companytinuously falling. The earliest purchases in the year ended 31st March, 1948 were at an average price Rs. 267-13- 0, while in the last of these three years ended 31st March 1952, the average price was Rs. 128-14-0. The largest block of 4,757 shares was purchased in the year ended 31st March, 1950, when the average price was Rs. 182-10-0. The assessment order of the Income-tax Officer also shows that the shares were number only purchased in a rapidly falling market, but, in order to make these purchases the assessee had taken loans amounting to about Rs. 8 lacs at interest varying from 31/2 to 5 . The dividend being declared was at a very low rate, so that the return on this investment, after taking into account the interest paid and super-tax to be paid, came to a very small percentage. being less than 1. This circumstance that the shares were purchased at a time when their prices were falling and the return on investments was number at all substantial while loans had been taken to purchase these shares strongly points to a companyclusion that the shares companyld number have been purchased as an investment to earn income from dividends and that the purchases of these shares were with the object of selling them subsequently at a profit. The shares were in fact, sold at companysiderable profit subsequently and that is how the question of charging that profit to tax as revenue receipt has arisen. The explanation sought to be given by the assessee that the shares were, in fact, being held as investment and were sold simply because the companytrol of McLeod Co. Ltd. went out of the hands of the Directors of the assessee has number been proved, according to the supplementary statement of the case submitted by the Tribunal. In fact, the Tribunal was number satisfied that even the purchasers, viz., the Bajoria group on buying these shares from the assessee acquired a companytrolling interest in McLeod Co. Ltd. or in the companypanies managed by that Company. The object of the sale as given by the assessee has therefore, remained unproved, whereas the fact that the purchases of the shares were made at a time when they were number expected to give a good return as investment and were actually sold at a very good profit leads to the reverse inference that the purchases and sales of these shares were an adventure in the nature of trade. Even the sequence of events does number bear out the companytention of the assessee. Sri C.L. Kanoria first resigned on 17th March, 1952 and he sold his shares while his resignation was still pending for approval by the Government. The sale took place on 27th May 1952, at a time when the resignation number having received the approval of the Government, the companytrol of McLeod Co. Ltd. group of companypanies was still with the Kanoria group. The resignation was accepted on 16th October, 1952, about five months after the sale of the shares. There is numberevidence. to show that, as a result this sale. the companytrol in the McLeod Co. group of companypanies passed to the Bajoria group though M s. C.L. Bajoria and Baijnath Jalan did subsequently loin the Directorate of McLeod Co. Ltd. On these facts, it is number possible to hold that the Tribunal was incorrect in recording it5 companyclusion that the sale of these shares by the assessee was number the result of companytrol of the McLeod Co. Ltd. passing from the. hands of Kanoria group to the Bajoria group. In fact the Kanoria group was holding a majority 21,046 shares out of 40,000 shares in McLeod Co. Ltd. even at the time when these shares were sold on 27th May, 1952. The assessee thus having failed to prove the object of the sale of these shares, the inference that the shares were sold with the sole object of earning profit is justified. This companyclusion is further strengthened by the companyduct of the assessee as found by the Tribunal in subsequent years. In the year ended 31st March, 1955, the assessee again purchased a large number of shares of McLeod Co. Ltd. These purchases were made between 23rd August, 1954 and 29th September, 1954. The first purchases were made at a rate of Rs. 150/- per share. and the purchases were companytinued even in the month of September when the rate rose to nearly Rs. 250/- per share. This purchase of shares of McLeod Co. Ltd. in the account year 1954-55. when there was a rising market and when the companytrol was numberlonger with the Kanoria group and having already passed to the Bajoria group, clearly shows that the Tribunal was number wrong in inferring that the purchases of shares of McLeod Co. Ltd. were number for the purpose of keeping companytrolling interest in that Company or for investment, but that the shares were being purchased and sold for earning profit, so that the transactions were an adventure in the nature of trade in these shares of McLeod Co. Ltd. In this companynection, Mr. A.K. Sen, learned companynsel for the appellant drew our attention to the following view expressed in the remand order -- We are unable to answer the question referred because the mere fact that an investment companypany periodically varies its investments does number necessarily mean that the profits resulting from such variation is taxable under the Income-tax Act. Variation of its investments must amount to dealing in investments before such profits can be taxed as income under the Income-tax Act. Reliance was also. placed on the observations of this Court in Bengal and Assam Investors Ltd. v. Commissioner of Income-tax, West Bengal 1 , which were quoted in the remand order and are as follows -- It seems to us that, on principle before dividends on shares can be assessed under section 10, the assessee, be it an individual or a companypany or any other entity, must carry on business in respect of shares that is to say, the assessee must deal in those shares. It is evident that if an individual person invests in shares for the purpose of earning dividend, he is number carrying on a business. The only way he can companye under section 10 is by companyverting the shares into stock-in-trade, i.e., by carrying on the business of dealing in stocks and shares as did the assessee in Commissioner of Income Tax v. Bai Shirinbai K. Kooka 2 . It was urged that, in this case, the Tribunal has recorded numberfinding at all that the shares in McLeod Co. Ltd. which were sold by the assessee were companyverted by it into stock-in-trade, number has it been held that the variation of its investments by the assessee amounted to dealings in investments. The facts that we found above show that, so far as the shares of McLeod Co. Ltd. and the allied companypanies which were sold by the assessee and the income from which has been taxed as revenue income are companycerned, the assessee, in fact, dealt with them as stock-in-trade. It 1 59 I.T.R. 547. 2 46 I.T.R. 86. is true that in the account books they were never shown as such but we have indicated how the evidence and the material in this case lead to the companyclusion that the shares were in fact purchased even initially number as investments, but for the purpose of sale at profit and that they were actually sold with the purpose of earning profit, so that the transactions amounted to an adventure in the nature of trade. Learned companynsel also referred ,to the decision of this Court in Ram Narain Sons Pr. Ltd. v Commissioner of Income-tax, Bombay 1 to urge that the principal companysideration in determining whether income from sale of shares is revenue income or capital gain, is to find out what was the purpose of purchase of those shares, and, if the purpose was investment, the fact that. in varying the investment, the sale of those shares resulted in a profit will number. make that profit revenue income. The principle is perfectly companyrect, but is number applicable to. the case before us on the finding mentioned by us above that even the initial purchase of these shares by the assessee was number for the purpose of investment for earning income from dividends, but was with a view to earn profit by resale of those shares.

Case appeal was rejected by the Supreme Court

CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 183 of 1967. Appeal by special leave from the judgment and order dated August 9, 1967 of the Patna High Court in Criminal Writ Jurisdiction Case No. 31 of 1967. C. Setalvad, R. L. Kohli and J. C. Talwar, for the appellant. P. Jha, for the respondent. The Judgment of the Court was delivered by Hidayatullah, J. The appellant Rameshwar Lal Patwari applied under Art. 226 of the Constitution and S. 491 of the Code of Criminal Procedure for a writ or order in the nature of habeas companypus for his release from detention in Bhagalpur Central Jail in pursuance of an order of detention passed by the Governor of Bihar on July 4, 1967 under s. 3 1 a iii of the Preventive Detention Act, 1950. He was arrested under the order on July 11, 1967 and was served on July 13, 1967 with a companyy of the grounds on which his detention was based to enable him to make a representation. He made a representation but his release was number recommended. His application in the High Court was also dismissed. He number appeals by special leave. The order of the Governor recites that it is necessary to make an order for his detention to prevent him from acting in any manner prejudicial to the maintenance of supplies and services essential to the companymunity. The grounds which were furnished to him were as follows - He is a prominent businessman of Dumka and with the association of Sarvashri Mulchand Choudhury, Kanhaiaya Choudhury, Fulchand Modi, Pir Mohammad Bengaria P.S. Shikaripara and others he indulges in black-marketing of foodgrains. He has four trucks, one jeep and a car which have been registered in the names of his relatives Truck No. BRL 1331 which is registered in the name of his brother-in-law sala . Sri Harichandra Agarwala was caught on 29th December, 1966 at Ranibabal near Mashanjor while carrying 95 bags of peddy for illegal trade. In this companynection a case under the Essential Commodities Act has been instituted. He is on bail in this case. His trucks always take to wicked routes to Saithia West Bengal and he himself pilots them. A businessman of Barahiya disclosed that he Rameshwar Lal Patwari visited Barahaiya on several occasions and purchased gram, gramdal under various names and smuggled them to West Bengal. On the night of 2-2-66, Sri R. S. Singh, 1st Class Magistrate along with Sub-Divisional Officer Sadar, other Magistrate and police officers, raided the house of Sri Rameshwar Lal Patwari and found aft kinds of foodgrains in huge quantity. His stock register was maintained in irregular way. fie companyld number produce the sale register and took the plea that it was produced before the Income Tax Officer. It was found that he has been dealing in foodgrains without any licence. A case has been instituted in this companynection in which he is on bail. Shri Babu Ram Bikaneria, owner of a Rice Mill at Saitha District Birbhum West Bengal visited Dumka on 26-11-66 and told him Sri Rameshwar Lal Patwari to supply gram and gramdal. He Sri Rameshwar Lal Patwari promised to supply gram and gramdal. On 7/8- 12-66 Sri Mulchand Choudhury of Rameshwar, who is his agent sent his truck No. BRJ 2029 load- ed with gram and gramdal to Saitha through Mahesh Kola Check post. His truck No. BRL 1366 and van BRL 2005 were found at Rameshwar on 7-12-1966 wherefrom he smuggles foodgrains to West Bengal. He purchases gram and gramdal through Gopal Mandal of Lakhisarai District Monghyr and smuggles them to West Bengal. In the circumstances, the State Government are satisfied that if Shree Rameshwar Lal Patwari is allowed to remain at large, he, will indulge in activities prejudicial to the maintenance of supplies and services essential to the companymunity. For prevention of such activities, the State Government companysider his detention necessary. Shri Rameshwar Lal Patwari is informed that he may make a representation in writing against the order under which he is detained. His representation, if any, may be addressed to the Under Secretary to Government, Poli- tical Special Department, Bihar, Patna and for-warded through the Superintendent of the Jail as soon as possible. By order of the Governor of Bihar. These grounds were challenged by the appellant in the High Court. According to him some of them did number exist in fact and others were vague or irrelevant. The High Court scrutinised them and came to the companyclusion that his companyplaint had numbersubstance. In this appeal he urges the same companytentions and submits that the High Court was in error in its companyclusion. Before we companysider these grounds in the light of arguments before us, we may say a few words about the Preventive Detention Act and the extent to which the exercise of powers under that Act can be questioned before companyrts. Article 22 1 and 2 of the Constitution lay down that numberperson who is arrested shall be detained in custody without being informed of the grounds for such arrest, number shall he be denied the right to companysult and to be defended by, a legal practitioner of his choice and further that the person arrested and detained in custody shall be produced before the nearest Magistrate within a period of twenty-four hours and numberperson shall be detained beyond that period excluding the time necessary for the journey to the companyrt of the Magistrate without the authority of the Magistrate. To this there is an exception in sub-cl. b of cl. 3 of the article. It says that these provisions shall number apply to any person who is arrested or detained under any law providing for preventive detention. There are, however, other safeguards. Clause 4 of the article provides that numberlaw providing for preventive detention shall authorise the ,detention of a person for a longer period than three months unless an Advisory Board has reported before the expiration of that period of three months that there is in its opinion sufficient cause for such detention. There are other provisions prescribing other checks with which we are number presently companycerned. In pursuance of this power Parliament has enacted the Preventive Detention Act, 1950. The Preventive Detention Act by its third section enables the Central Government or the State Government, if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the maintenance of supplies and services essential to the companymunity,-to make an order that such person be detained. There are other grounds on which the power to detain may also be exercised but they do number apply here. This power is also companyferred on some officers named in the section. When an officer makes an order he has to report to the State Government together with the grounds on which the order is based and in the like manner the State Government has to report to the Central Government. Section 11 then provides that where an Advisory Board reports sufficient cause for the detention of a person, Government may companyfirm the detention and companytinue it for such period as it thinks fit. If the Advisory Board reports that there is numbersufficient cause Government must revoke the order and release the detenu. Section 11 -A pow prescribes the maximum period of detention. It will thus be seen that the report of the Advisory Board plays ,in important part. In the present case the report of the Advisory Board has been produced. It reads In our opinion, the grounds of detention served on the detenu also are fairly particular and generally well founded. It cannot, therefore, be said that there is numbermaterial for his detention in the way in which he had been indulging in the transport of foodgrains from Bihar to West Bengal frequently. It cannot be held that the order of detention passed upon him is unreasonable. The order in his case also cannot be disturbed. Sd - S. C. Mishra 25-8-67. Sd - R. K. Choudhury. Sd - U. N. Sinha. The appellant companytends that the Advisory Board has failed to numberice also that the grounds furnished to him were vague and irrelevant and some of them did number exist in law. Now the law on the subject of, Preventive, Detention has been stated over and over again and it is number necessary to refer to all that has been decided by this Court on numerous occasions. We ,shall refer to what companycerns this case. The formation of the opinion about detention rests with the Government or the officer authorised. Their satisfaction is all that the law speaks of and the companyrts are number companystituted an appellate authority. Thus the sufficiency of the -rounds cannot be agitated before the companyrt. However, the detention of a person without a trial, merely on the subjective satisfaction of an authority however high, is a serious matter. It must require the closest scrutiny of the material on which the decision is formed, leaving numberroom for errors or at least avoidable errors. The very reason that the companyrts do number companysider the reasonableness -of the opinion formed or the sufficiency of the material on which it is based, indicates the need for the greatest circumspection on the part of those who wield this power over others. Since the detenu is number placed before a Magistrate and has only a right of being supplied the grounds of detention with a view to his making a representation to the Advisory Board, the grounds must number be vague or indefinite and must afford a real opportunity to make a representation against the detention. Similarly, if a vital ground is shown to be number-existing so that it companyld number have and ought number to have played a part in the material for companysideration, the companyrt may attach some importance to this fact. Thus it was in Shibban Lal Saksena v. U.P. 1 that when Government itself companyfirmed the order on one ground rejecting the other, the order was held unsustainable. This Court applied the case of the Federal Court in Keshav Talpade v. The King Emperor 2 and held that the detention on the ground which survived companyld number be .allowed to stand. The following observations may be quoted The detaining authority gave here two grounds for detaining the petitioner. We can neither decide whether these grounds are good or bad, number can we attempt 1 1954 1 S.C.R. 418. 2 1943 F.C.R. 88. to assess in what manner and to what extent each of these grounds operated on the mind of the appropriate authority and companytributed to the creation of the satisfaction on the basis of which the detention order was made. To say that the other ground, which still remains, is quite sufficient to sustain the order, would be to substitute an objective judicial test for the subjective decision of the executive authority which is against the legislative policy underlying the statute. In such cases, we think, the position would be the same as if one of these, two grounds was irrelevant for the purpose of the Act or was wholly illusory and this would vitiate the detention order as a whole. This case is strongly relied upon by Mr. Setalvad for reasons which will soon appear. The other side relies upon observations in Bhim Sen v. State of Punjab 1 where blackmarketing was companysidered a sufficient ground for detention. No doubt blackmarketing has at its base a shortening of supplies because blackmarket flourishes best when the availability of companymodities is rendered difficult. It has a definite tendency to disrupt supplies when scarcity exists or scarcity is created artificially by hoarding to attain illegitimate profits. Indulging in blackmarketing is companyduct which is prejudicial to the maintenance of supplies. It is hardly necessary to read supplies companyjunctively with services as was companytended although cases may exist where supplies and services may both be affected. The word and is number used companyjunctively but disjunctively. If sweepers strike, numberquestion of disrupting supplies arises but ser- vices essential to the life of the companymunity will certainly be disrupted. Looked at from this angle, can we say that the detenu was supplied grounds which were number vague or indefinite or irrelevant or number-existing? The grounds are five in number. Putting aside the first and fifth -rounds for the time, we may refer to the second, third and fourth grounds first. The second ground says that his trucks always take to wicked routes to Saithia West Bengal and he himself pilots them. This ground is extremely vague. It does number mention a single instance of a truck taking a particular route so that the detenu companyld prove to the satisfaction of the Advisory Board that the statement was false. In. Bhim Sens case the companyduct of the black--marketer was shown in an appendix. Here numberparticulars are furnished and beyond denying the allegation, the detenu cannot make effective representation. The details companyld number be such as were required to be companycealed in the public interest under s. 7 2 of the Act. The third ground that a businessman of Barahiya disclosed that he Rameshwarlal Patwari visited Barahiya on several occasions and purchased gram, gramdal under various 1 1952 S.C.R. 19. names and smuggled them to West Bengal is equally vague. Learned companynsel for the State admitted that some details were necessary to give the detenu an opportunity. It is obvious that without the names of shops, dates of purchase, etc. it is next to impossible to companytrovert such an allegation. The fourth ground speaks of a pending case in which the appellant is said to be on bail. The grounds were furnished in July 1967. The appellant was tried for the offence and acquitted as far back as February 1967. This ground discloses carelessness which is extremely disturbing. That the detaining authority does number know that the appellant was tried and acquitted months before, and companysiders the pendency of the case against him as one of the grounds of detention shows that due care and attention is number being paid to such serious matters as detention without trial. If the appellant was tried and acquitted, Government was required to study the judgment of acquittal to discover whether all these allegations had any basis in fact or number. One can understand the use of the case if the acquittal was technical but number when the case was held to be false. In any event, even if there was numberneed to companysider the result of the case the case companyld number be referred to as a pending case. What is still more disquieting is the attempt to avoid admitting frankly that there has been a mistake in including this ground. in the return this is what is said That the facts stated in paragraph 4 of the ground of detention are number number est. Those facts stated in paragraph 4 even existed after acquittal. In regard to the facts stated in paragraph 4 the prosecution failed to prove the prosecution case and, therefore, he was acquitted. The detenu had full knowledge of the facts that he was acquitted by the Court in regard to the facts stated in paragraph 4 of the grounds of detention and, therefore, he was number handicapped in making a representation to the Advisory Board. This means that anything wrong or even false may be stated in the grounds leaving the detenu to deny it and prove his version. The attempt to companyer up the mistake is as futile as it is disingenuous. This leaves over the first and fifth grounds The first charges the appellant with blackmarketing of foodgrains in companyjunction with certain named persons. No facts are mentioned and this part of the ground is equally vague. No incident is cited except one. The ground goes on to say that his trucks, jeep and car -Ire registered in the names of his relatives. One such truck is mentioned, namely, truck No. BRL 1331. It is said to be registered in the name of his brother-in-law and it is further stated that it was caught on December 29, 1966 at Ranibahal near Mashanjor while carrying 95 bags of paddy for illegal trade and that in this companynection a case under the Essential Commodities Act has been instituted against him. It is hot clear who is meant the appellant or his brother-in-law. In a numberice from the District Supply Officer, Dumka it was stated It was learnt from your driver that on 29-11-66 sic at 3.50 a.m., ninety five bags of paddy 190 mds. was companying from Ranibahal to Dumka in your truck BRL 1331 belonged to you. . . . The appellant has denied that the paddy belonged to him. He pointed out that in the numberice it was admitted that the paddy was being taken to Dumka in Bihar, while in the grounds it was stated that it was on its way to West Bengal and that carrying of goods from Ranibahal to Dumka both in Bihar was numberoffence. In his reply to the District Supply Officer the appellant had stated I am a retail dealer in food-grains holding foodgrain License No. 204 of 1966. The truck bearing No. BRL 1331 does number belong to me. The said 95 bags of paddy loaded on the said truck No. BRL 1331 does number belong to me. The fact is that the said 95 bags of paddy belong to Shri Prahlad Rai Giluka of village Banskuli, P. S. Ranishwar who is a cultivator which he had agreed to sell to me on companydition that the delivery of the said paddy will be made to me at Dumka. I therefore, request that the cause shown above be accepted and the proceedings, if any, may kindly be dropped. It appears that Prahlad Rai Giluka of Mouza Banskuli, P. S. Ranishwar companyfirmed this before the District Supply Officer by stating as follows - That your petitioner is a cultivator and owns more than 100 bighas of Dhani lands at Mouza Murgani Ranibahal and Kumnirdaha and other villages which are companytiguous villages. 2. That the petitioners son Prabhudayal Giluka is to start a business and as such there was necessary sic of fund and the petitioner proposed to sell 95 bags of paddy to one Rameshwar Lal Patwari of Dumka from his Murgani and Ranibahal land. That it was agreed that the paddy will be delivered at Dumka where the price will be paid. That the petitioner accordingly engaged the truck of one Haris Chandar Agarwala, his BRL 1331 and asked his Munshi Mahadev Pal to load 95 bags of paddy in the truck. 6. That when the paddy in question was in the process of loading at Ranibahal the paddy was seized by the District Supply Officer on 29-12-66. 8. 9. That the paddy in question is number involved in any offence the same should be released forthwith. When these documents came to be filed, the return of the State Government made the following reply and avoided the issue 4 It appears that the numberice was issued on the statement of the driver of the truck who stated that he was bringing 95 bags of paddy from Ranibahal to Dumka in the truck belonging to the appellant. The statement of the driver clearly shows that the truck belonged to the appellant. The driver did number tell anything about the facts stated in annexure D to special leave paper book Page 49 to 51 . This shows that there was numberinquiry at all. The alleged statement of the driver was accepted and it was assumed that the paddy was being taken to West Bengal. At least the explanation of the persons companycerned companyld have been obtained. This is clearly a case of jumping to a companyclusion which is being lamely justified, when it is questioned with written record. In these circumstances there is much reason to think that this ground probably did number exist although we are number in a position to say that it is number-existing. The fifth ground mentions that one Babu Ram Bikanaria wanted gram and gramdal at his Rice Mill at Saitha District Birbhum West Bengal and visiting Dumka companytacted the appellant. The latter promised to supply gram and gramdal. On 7/8 December 1966 one Mulchand Choudhury sent truck No. BRJ 2029 loaded with gram and gramdal to Saitha through Mahesh Kola checkpost. Further Mulchands truck No. BRL 1366 and van BRL 2005 were found at Raneshwar on December 7, 1966 from where he smuggles foodgrains to West Bengal. He pur- chases -ram and gramdal through Gopal Mandal of Lakhisarai Dist. Monghyr and smuggles them to West Bengal. It is again Sup.C1/68-2 number clear who this he is. The appellant has denied that he does in gram and gramdal and has any companynection with Gopal Mandal of Lakhisarai or knows him. He has denied all companytact with such persons. No reply to this was given in the return filed in this Court. It appears that there may be suspicion that the appellant may be companynected with some blackmarketing. We are number companycerned with the sufficiency or the reasonableness of the grounds. In this case at least two grounds are vague, one ground is found to be false -and of the remaining in one there is numberexplanation and in the -other there is a lame excuse that the driver of the truck did number furnish the full information. The case is thus companyered by our rulings that where some grounds are found to be number-existing or -are cancelled or given up, the detention cannot be justified. It is further companyered by our decisions that if the grounds are number sufficiently precise and do number furnish details for the purpose of making effective representation the detention can be questioned. This case displays both these defects and it is a matter of great regret that powers of detention without a trial, which should be ,exercised with the greatest care and attention have been exercised in this case with such disregard for truth and accuracy.

Case appeal was accepted by the Supreme Court

Rajasthan, 1965 1 S.C.R. 933, reversed. Per Subba, Rao, J., Shah, Sikri, Shelat and Vaidialingam, JJ. Fundamental rights are the primordial rights necessary for the development of human personality. They are the rights which enable a man to chalk out his own life in the manner he likes best. Our Constitution, in addition to the well-known fundamental rights, also included the rights of minorities and other backward companymunities in such rights. 789 E The fundamental rights are given a transcendental position under our Constitution and are kept beyond the reach of Parliament. At the same time Parts III and IV of the Constitution companystituted an integrated scheme forming a self companytained companye. The scheme is made so elastic that all the Directive Principles of State Policy can reasonably be enforced without taking away or-abridging the fundamental rights. While recognisingthe immutability of the fundamental rights, subject to social companytrol the Constitution itself provides for the suspension or the modification of fundamental rights under specific circumstances, as in Arts. 33, 34 and 35. The number-obstante clause with which the last article opens makes it clear that all the other provisions of the Constitution are subject to this provision. Article 32 makes the right to move the Supreme Court by appropriate proceedings for the enforcement of the rights companyferred by the said Parts a fundamental right. Even during grave emergencies Art. 358 only suspends Art. 19 and all other rights are untouched except those specifically suspended by the President under Art. 359. 789 H 790 D The Constitution has given a place of permanence to the fundamental freedoms. In giving to themselves the Constitution the people have reserved the fundamental freedoms to themselves. Art. 13 merely in-corporates that reservation. The Article is however number the source of the protection of fundamental rights but the expression of the reservation. The importance attached to the fundamental freedoms is so transcendatal that a bill enacted by a unanimous vote of all the members of both Houses is ineffective to derogate from its guaranteed exercise. It is number what Parliament regards at a given moment as companyducive to the public benefit but what Part III declarer. protected, which determines the ambit of the freedom. The incapacity of Parliament therefore in exercise of its amending power to modify, restrict, or imposefundamental freedoms in Part III arises from the scheme of theConstitution and the nature of the freedoms. 792 D-F K. Gopalan v. State of Madras, 1950 S.C.R.88, State of Madras v. Smt. Champakam Dorairajan, 1951 S.C.R. 525, Pandit M. S. M. Sharma v. Shri Sri Krishna Sinha, 1959 Supp. 1 S.C.R. 806 and Ujjam Bai v. State of Uttar Pradesh, 1963 1 S.C.R. 778, referred to. If it is the duty of Parliament to enforce directive principles it is equally its duty to enforce them without infringing the fundamental rights. The verdict of Parliament on the scope of the law of social companytrol of fundamental rights is number final but justiciable. If it were number so, the whole scheme of the Constitution would break. 815 H 816 A-B , Article 368 in terms only prescribes various steps in the matter of amendment. The article assumes the power to amend found else where. The companypletion of the procedural steps cannot be said to culminate in the power to amend for if that was so the Constitution makers companyld have stated that in the Constitution. Nor can the power be implied either from Art. 368 or from the nature of the articles sought to be amended the doctrine of necessary implication cannot be invoked if there is an express provision. There is numbernecessity to imply any such power as Parliament has the plenary power to make any law including the law to amend the Constitution subject to the limitations laid down therein 793 E-G The power of Parliament to amend the Constitution is derived from Arts. 245, 246 and 248 read with item 97 in List I. The residuary power of Parliament can certainly take in the power to amend the Constitution. 794 A-D Though a law made under Art. 245 is subject to the provisions of the Constitution it would be wrong to say that every law of amendment made under it would necessarily be inconsistent with the articles sought to be amended. It cannot reasonably be said that a law amending an article is inconsistent with it. The limitation in Art. 245 is in respect of the power to make a law and number of the companytent of the law made within the scope of its power. 794 E-F An order by the President under Art. 392 cannot attract Art 368 as the amendment companytemplated by the latter provisions can be initiated only by the introduction of a bill in Parliament. It cannot therefore be said that if the power of amendment is held to be a legislative power the President acting under Art. 392 can amend the Constitution in terms of Art. 368. 794 G-H The Constituent Assembly, it so minded, companyld certainly have companyferred an express legislative power on Parliament to amend the Constitution by ordinary legislative process. There is, therefore, numberinherent inconsistency between legislative process and the amending one. Whether in the field of a companystitutional law or statutory law amendment can be brought about only by law. 794 C-D Article 13 2 , for the purpose of that Article, gives an inclusive definition of law. It does number Prima facie exclude companystitutional law. The process under Art. 368 itself closely resemble the legislative process. Article 368 is number a companyplete companye in respect of the procedure of amendment. The details of procedure in respect of other bills have to be followed so far as possible in respect of a Bill under Art. 368 also, The rules made by the House of the People providing procedure for amendments lay down a procedure similar to that of other bills with the addition of certain special provisions. If amendment is intended to be Something other than law the companystitutional insistence on the said legislative process is unnecessary. The imposition of further companyditions is only a safeguard against the hasty action or a protection to the states but does number change the legislative character of the amendment 795 G 796 C Article 3 of the Constitution permits changes in States and their boundaries by a legislative process under Arts. 4 and 169 amendments in the Solution are made by law but by a fiction are deemed number to be amendments for the purpose of Art. 368. This shows that amendment is law and that but for the fiction it would be an amendment within the meaning of Art, 368. 796 C-F Therefore amendments either under Art. 368 or under other Articles are only made by Parliament following the legislative process and are law for the purpose of Art. 13 2 . 798 C Mccawley v. The king, 1920A.C., 691 and The Bribery Commissioner v. Pedrick Ransinghe, 1964 2 W.L.R. 1301, referred to. One need number cavil at the description of amending power as a sovereign power for it is sovereign only viithin the scope of the power companyferred by a particular Constitution which may expressly limit the power of amendment both substantive and procedural. If cannot therefore be said that amending power can have numberlimitations being a sovere4p power. 804 The argument that the amending process involves political questions and is therefore outside.the scope of judicial re- view cannot also be aeCePted- It may be.Parliament seeks to amend the Constitution for political reasons but the companyrt in denying that power will number be deciding a political question it will only be holding that Parliament has numberpower to armed Particular articles of the Constitution for any purpose whatsoever, be it political or otherwise. 804 E-G If power to abridge the fundamental rights is denied to Parliament revolution is number a necessary result. The existence of an all companyprehensive power cannot prevent revolution if there is chaos in the companyntry brought about by misrule or abuse of power. Such companysiderations are out of place in companystruing the provisions of the Constitution by a Court of law. 816 B-C While-ordinarily Court will be reluctant to reverse its previous decisions it is its duty in the companystitutional field to companyrect itself as early as possible, for otherwise the future progress of the companyntry and happiness of the people will be at stake. As it was clear that the decision in Sankari Prasads case was wrong, it was pre-eminently a typical case where this Court should overrule it. The longer it held the field the greater the scope for erosion of fundamental rights. As it companytained the seeds of destruction of the cherished rights of the people, the sooner it was overruled the better for the companyntry. 816 G-H The Superintendent and Legal Remembrancer Stale of West Bengal v.The Corporation at Calcutta, 1967 2 S.C.R., 170 relied on. The Constitution Seventeenth Amendment Act, 1964, inasmuch as it takes away or abridges fundamental rights was beyond the amending power of Parliament and void because of companytravention of Art. 13 2 . But having regard to the history of this and earlier amendment to the Constitution, their effect on the social and economic affairs of the companyntry and the chaotic situation that may be brought about by the sudden withdrawl at this stage of the amendments from the Constitution it was undesirable to give retroactivity of this decision. The present was therefore a fit case for the application of the doctrine of prospective. overruling, evolved by the companyrts in the United States of America. 805 E 807 E, G 808 C-D Great Northern Railway v. Sunburst Oil Ref. Co. 1932 287 U.S. 358 77 L. Ed. 360, Chicot County Drainage v. Baxter State Bank, 1940 308 U.S. 371, Griffin v. Illionis, 1956 351 U.S. 12, Wolf v. Colorado, 338 U.S. 25 193 L. Ed. 872, Mapp v. Ohio, 367 U.S. 643 6 L. Ed. 2nd Edn. 1081 and Link letter v. Walker, 1965 381 U.S. 618, referred to. ix , The doctrine of prospective overruling is a modern doctrine suitable for a fast moving society. It does number do away with the doctrine of state decision but companyfines it to past transactions. While in Strict theory it may be said that the doctrine involves the making of law, hat the companyrt really does is to declare the law but refuse to give retroactivity to it. It is really a pragmatic solution reconciling the two companyflicting doctrines, namely, that a companyrt finds the law and that it does make law It finds law but restricts its operation to the future. It enables the companyrt to bring about a smooth transition by companyrecting, its errors without disturbing the impact of those errors on past transactions. By the application of this doctrine the past may be preserved and the future protected. 913 A-C 814 E- Our Constitution does number expressly of by necessary implication speak against the doctrine of prospective overruling. Articles 32, 141 and 142 are designedly made companyprehensive to enable the Supreme Court to declare law and to give such directions or pass such orders as are necessary to do companyplete justice. The expression declared in Art. 141 is wider than the words found or made. The law declared by the Supreme Court is the law of the land If so, there is numberacceptable reason why 7 66 the Court, in declaring the law in supersession of the law declared by it earlier, companyld number restrict the operation of the law as declared to the future and save the transactions whether statutory or otherwise that were affected on the basis of the earlier law. 813 F-H As this Court for the first time has been called upon to apply the doctrine evolved in a different companyntry under different circumstances, it would like to move warily in the beginning and would lay down the following propositions The doctrine of prospective overruling can be invoked only in matters arising under our Constitution 2 it can be applied only by highest companyrt of the companyntry, ie. the Supreme Court as it has the companystitutional jurisdiction to declare law binding on all the Courts as it has India 3 the scope of the retrospective operation of the law declared by the supreme Court superseding its earlier decisions is left to its discretion to be moulded in accordance with- the justice of the cause or matter before it. 814 C-D Applying the doctrine of prospective overruling in the circumstances of the present case the Court declared that this decision would number affect the validity of the Constitution Seventeenth Amendment Act 1964, or other amendments to the Constitution taking away or abridge the fundamental rights. It further declared that in future Parliament will have numberpower to amend Part III of Abe Constitution so as to take away or abridge the fundamental rights. 814 F-G As according to the above decision the Constitution Seventeenth Amendment Act held the field the validity of the two impugned Acts, namely the Punjab Security of Land Tennures Act, 10 of 1953 and the Mysore Land Reforms Act, 10 of 1962, as amended by Act 14 of 1965, companyld, number be questioned on the ground that they offended Art 13, 14 or 31 of the Constitution. 815 E On the findings the following, questions did number fall to be companysidered Whether in the exercise of the power of amendment the fundamental structure of the Constitution may be changed or even destroyed or whether the power is restricted to making modification within the framework of the original instrument for its better effectuation ? Whether the amendment of fundamental rights is companyered by the proviso to Art. 368 ? To what extent can the provisions of die Constitution other than fundamental rights be amended ? To what extent can Part III be amended otherwise thin by taking away or abridging the fundamental rights ? Whether the impugned Act companyld be sustained under the provisions of the Constitution without the aid of Arts. 31A and 31B of the Schedule. Obiter If necessity to abridge the fundamental rights does arise the residuary power of Parliament may be relied upon to call for a companystituent bly for making a new Constitution or radically changing it. The recent Act providing for a poll in Goa, Daman and Diu was an instance of analogus exercise of such residuary power by the Parliament, 816 E-F Per Hidayatullah. J. i The scope of the amending power under the COnstitution is number to be determined by taking an apriori view of the omnicompetence of Art. 368. When there is companyflict between that Article and Art. 13 2 juridical hermeneutics requires the Court to interpret them by companybining them and number by destroying one with the aid of the other. No part in a Constitution is superior to another part unless the Constitution-itself says so and there is numberaccession of strength to any provision. by calling it a companye. It is, the companytext of the legal provisions that illustrates the meaning of the different parts so that among them and between them there should be companyrespondence and harmony. 857 H-858C It is wrong to think of the Fundamental Rights as within Parliaments giving or taking. They are secured to the people by Arts. 12, 13, 32, 136, 141,,144 and 226. The High Courts and finally this Court have been made the Judges of whether any lagislative or executive action on the part of the State, companysidered as companyprehensively as is possible,offends the Fundamental Rights and Art. 13 2 declares that legislation which so offends is to be deemed to be void. The general words of art. 368 cannot be taken to mean that by calling an Act an Amendment of the Constitution Act a majority of total strengths and a 2/3rds majority of the members presnt and voting in each House may remove number only any of the Fundamental Rights but the whole Chapter giving them. 860 A-D 867 FF In Britain there is numberdistinction between companystitutional law and ordinary law as to the procedure of their enactment. In our Constitution too in spite of the claim that Art. 368 is a Code Arts. 4, 11 and 169 show that the amendment of the Constitution can be by the ordinary law making procedure. By this method one of the legislative limbs in a State can be removed or created. This destroys at one stroke the claim that Art. 368 is a companye and. also that any special method of amendment of the Constitution is fundamentally necessary. 861 E-G The only difference between companystitutional law and ordinary law can, be said to arise from the fact that companystitutional laws are generally amend-able under a process which in varying degrees, is more difficult or elaborate. This may give a distinct character to the law of the Constitutionbut it does number serve to distinguish it from the other laws of the land for the purpose of Art. 13 2 . The Article itself does number exclude companystitutional law which companyld have been easily done had the companystitution makers. so intended. 862 B 866 B An amendment to the Constitution is number made under power derived from Arts. 245 or 248 of the Constitution read with entry 97 of List 1. The power of amendment is sui generis. 900 E A narrow view need number be taken of the word amendment By an amendment new matter may be added, old matter removed or altered. The power of amending the Constitution is however number intended to be used for experiments or as an escape, from restrictions against undue State action enacted in the Constitution itself. Nor is the power of amendment available for the purpose of remoing express or implied restrictions against the State. 862 F 863 B-C Coleman v. Milter, 307 U.S. 443 83 L. Ed. 1385 , Luther V. Borden,, 7 How. 1 12 L. Ed. 58 and Baker v. Carr, 369 U.S. 186 7 L. Ed. 2d., 633 , referred to. The State is numberdoubt supreme but in the supremacy of its powers it may create impediments on its own sovereignty. There is numberhing to prevent the State from placing certain matters outside the amending procedure. When this happens the ordinary procedure of amendment ceases to apply. Amendment can then only be by a freshly companystituted body To attempt to do this otherwise is to attempt revolution which is to alter the will of the people in an illegal manner. Courts can interfere to nullify the revolutionary change because there is an infraction of exiting legality. Democracy may be lost if there is numberliberty based on law and law based on equality. The protection of the fundamental rights is necessary so that we may number walk in fear of democracy itself. 863 G 864 A-C 865 A-D In Art. 13 2 the restriction is against the State. There is a difference between the State and its agencies such as Government, Parliament, the Legislature of the States, and the local and other authorities. The State means more than any of these or all of them put together. By making the State subject to Fundamental Rights it is clearly stated in Art. 13 2 that any of the agencies acting alone or all the agencies acting together are number above the Fundamental Rights. Therefore when the- House of the People or the Council of States introduces a Bill for the abridgement of the Fundamental Rights, it ignores the injunction against it and even if the two Houses pass the Bill the injunction is next operative against the President since the expression Government of India in the General Clauses Act means the President of India. Thus the injunction in Art. 13 2 is against the whole force of the State acting either in its executive or legislative capacity. 866 E-H It is wrong to invoke the Directive Principles as if there is some antinomy between them and the Fundamental Rights. The Directive Principles lay down the routes of State action but such action must avoid the restrictions stated in the Fundamental Rights. It cannot be companyceived that in following the Directive Principles the Fundamental Rights can be ignored. 867 G, 868 B Our Constitution has given a guaranteed right to the persons whose fundamental rights are affected to move the Court. The guarantee is worthless if the rights are capable of being taken away. This makes our Constitution unique and the American or other foreign precedents cannot be of much assistance. 875 H Hollingsworth v. Virginia, 3 Dall. 378, Leser v. Garnett, 258 U.S. 130, Dillon v. Gloss, 256 U.S. 368 and Texas v. White, 7 Wall, 700, referred to. It is number that Fundamental Rights are number subject to any change or modification. The Constitution permits a curtailment of the exercise of most of the Fundamental Rights by stating the limits of that curtailment. It permits the Fundamental Rights to be companytrolled but prohibits their erasure. 878 B Parliament today is number the companystituent body as the companystituent assembly was but a companystituted body which must bear true allegiance to the Constitution as by law established. To change the Fundamental Part of the individuals liberty is a usurpation of the companystituent functions because they have been placed outside the scope of the power of the companystituted Parliament. 870 B-D Our Constitution like some others has kept certain matters outside the amendatory process so that the their representatives. In Art. 35 obstante clause. They exclude Article under the proviso. It is therefore a great error to think of Art. 368 as a companye or as omnicompetent. 901 C-E 902 A-B Garnishee case, 46 C.L.R. 155, referred to. Article 368 cannot directly be amended by Parliament to companyfer power on itself over the fundamental rights, It would be against Art. 13 2 . Parliament cannot do indirectly what it cannot do directly. 878 H If it is desired to abridge the Fundamental Rights the legal method is that the State must reproduce the power which it has chosen to put under restraint. Parliament must amend Art. 368 to companyvoke another companystituent assembly, pass a law under item 97 of the List 1 of Schedule 7 to call a companystituent assembly, and then that assembly may be able to abridge or take away the fundamental rights. Any other method must be regarded as revolutionary. 878 D-E 879 B The various amendments that have been made by Parliament in Arts. 15, 16 and 19 did number abridge fundamental rights and were therefore valid. 879 C, 883 B Our Constitution accepted the theory that Right of Property is a fundamental right though perhaps it was an error to do so if socialisation was desired. It treated property rights as inviolable except through law for public good and on payment of companypensation. However the various amendments have significantly changed the position. As a result of them, except for land within the prescribed ceiling, all other land can be acquired or rights therein extinguished or modified without companypensation and numberchallenge to the law can be made under Arts. 14, 19 or 31 of the Constitution. 887 B 888 B-C 896 F-G As there is apprehension that the erosion of the right to property may be practised against other fundamental rights it is necessary to call a halt. An attempt to abridge or take away Fundamental Rights by a companystituted Parliament even through an amendment of the Constitution can I declared void. This Court has the power and the jurisdiction to do so. The opposite view expressed in Sajjan Singhs case was wrong 898 B-C The First, Fourth and Seventh amendments of the Constitution, cannot number be challenged because of long acquiescence. It is good sense and sound policy for the companyrts to decline to take up an amendment for companysideration after a companysiderable lapse of time when it was number challenged before or was sustained on an earlier occasion after challenge. 893 O, H 1902 D-E Lesser v. Garnett, 258 U.S. 130 1922 , referred to. In the Seventeenth Amendment, the extension of the definition of estate to include ryotwari and agricultural lands is an inroad into the Fundamental Rights but it cannot be questioned in view, of the existence of Art. 3 1A 1 a whose validity cannot number be challenged. The new definition of estate introduced by the amendment is beyond the reach of the Courts number because it is number law but because it is law and fills within that word in Art. 31 1 2 2A and Art. 3 1-A 1 . 899 C-G The third section of the Act is however invalid. It adds 44 State Acts to the ninth schedule. The Schedule is being used to give advance protection to-legislation which is known or apprehended to derogate,from the Fundamental Rights. The power under Art. 368 was number meant to give protection to State statute-, which offend the Constitution. The intent here is to silence the companyrts and number to amend the Constitution. 900 A-D The two impugned Acts namely the Punjab Security of Land Tenures Act, 1953 and the Mysore Land Reforms Act, 1962 as amended are valid under the Constitution number because they are included in Schedule 9 of the Constitution but because they are protected by Art. 3 1-A and the Presidents assent. 902 G-H Per Wanchoo, Bachawat, Ramaswami, Bhargava and Mitter, JJ. dissenting Article 368 carries the power to amend all parts of the Constitution including the fundamental rights in Part III of the Constitution. An amendment is number law for the purpose of Art. 13 2 and cannot be tested under that Article. Sri Sankari Prasad Singh Deo v. Union of India, 1952 C.R. 89 and Sajjan Singh v. State of Rajasthan, 1965 1 C.R. 933, reaffirmed. Per Wanchoo, Bhargava and Mitter, JJ.- i The Constitution provides a separate part headed Amendment of the Constitution and Art. 368 is the only article in that Part. There can therefore, be numberdoubt that the power to amend the Constitution must be companytained in Art. 368. If there was any doubt in the matter it is resolved by the words, namely, the Constitution shall stand amended in accordance with the terms of the bill. These words can only mean that the power is there to amend ,the Constitution after the procedure has been followed. 826 A-D While there is a whole part devoted to the amendment of the Constitution there is numberspecific mention of the amendment of the Constitution in Art. 248 or in any entry of List 1. It would in the circumstances be more appropriate to read the power in Art. 368 than in Art. 248 read with item 97 of List I. 826 H-827 A The original intention of the Constitution makers was to give residuary power to the States. The mere fact that during the passage of the Constitution by the Constituent Assembly residuary power was finally vested in the Union would number therefore mean that it includes the power to amend the Constitution. Moreover residuary power cannot be used to change the fundamental law of the Constitution because all legislation is under Art. 245 subject to the provisions of this Constitution. 827 B, H Mere accident of similarity of procedure provided in Art. 368 to that provided for ordinary legislation cannot obliterate the basic difference between companystitutional law and ordinary law. It is the quality and nature of what is done under Art. 368 and number its similarity to other procedure that should be stressed. What emerges after the procedure in Art. 368 has been followed is number ordinary law but fundamental law. 829 D 830 C-D The procedure under the proviso to Art. III cannot apply to a bill to amend the Constitution. If the President refused to, give his assent to such a bill-, the proposed amendment falls. In this respect at any rate the procedure under Art. 368 differs from, the ordinary legislative process. 831 B-E The word law has been avoided apparently with great care in Art.368. What emerges after the procedure has been followed is number an Act but the Constitution stands amended. After that the companyrts can only see whether the procedure in Art. 368 was followed. If it has been followed there is numberquestion of testing the amendment of the Constitution On the avail of fundamental rights or in any other way as in the case of ordinary legislation. 832 A-G To say that amendment in law only means a change which results in improvement would make amendment impossible for what is improvement is a matter of opinion. 834 B It may be open to doubt whether the power of amendment companytained in Art. 368 goes to the extent of companypletely abrogating the present Constitution and substituting I it by an entirely new one. But short of that the power to amend includes the power to add any provision to the Constitution to alter any provision and substitute any other provision in its place or to delete any provision. 834 F-G The seventeenth amendment is merely in exercise of the power of amendment as indicated above and cannot be struck down on the ground that it goes beyond the power companyferred by Parliament to amend the Constitution by Art. 368. 834 H There is numberexpress limitation on power of amendment in Art. 368 and numberlimitation can or should be implied therein. If the Constitution makers intended certain basic provisions in the Constitution, and Part III in particular, to be number amendable there is numberreason why it was number so stated in Art. 3 68. The acceptance of the principle that them is an implied bar to amendment of basic features of the Constitution would lead to the position that any amendment to any article would be liable to challenge before the companyrts on the ground that it amounted to amendment of a basic feature. Constituent power like that in Art 368 can only be subject to express limitations so far as the substance of the amendments is companycerned. 835 A 836 D, G For interpreting Art. 369 it is number permissible to read the speeches made in the Constituent Assembly. Historical facts namely what was accepted or what was number accepted or what was avoided in the Constituent Assembly can be looked into but in companynection with Art. 368 numberhelp can be got from the historical material available. 838 C Administrator General, of Bengal v. Prem Lal Mullick, 1895 XXII I.A- 107, Baxter v. Commissioner of Taxation, 1907 4 I.R. 1087, A. K. Gopalan v. State of Madras 1950 S.C.R. 88 and The Automobile Transport Rajasthan Ltd. v. State of Rajasthan, 1963 1 S.C.R. 491, referred to. The preamble to the Constitution cannot prohibit or companytrol in any way or impose any implied restrictions or limitations on the power to amend the Constitution companytained in Aft. 368. 838 H In re the Berubari Union and Exchange of Enclaves, 1960 3 C.R. 250, referred to. The word law in Art. 13 1 does number include. any law in the nature of a companystitutional.provision for numbersuch law remained in view of Art. 395 which provided that the Indian Independence Act, 1947 and the Government of India Act, 1935, together with all enactments amending or supplementing the latter Act, but number including the Abolition of Privy Council Jurisdiction Act, 1949, are hereby repealed. There is numberreason why if the word law in Art. 13 1 relating to past laws does number include any companystitutional provision the- word law in cl. 2 would take in an amount of the Constitution for it would be reasonable to read the word in the same sense in both the clauses. 839 D-F Article 13 2 when it talks of the State making any law, refers to the law made under the provisions companytained in Ch. 1 of Part XI of the Constitution beginning with Art. 245. It can have numberreference to the Constituent power of amendment under Art. 368. For it is somewhat companytradictory that in Art. 368 power should have been given to amend any provision of the Constitution without any limitations but indirectly that power should be limited by using words of doubtful import in Art. 13 25.841 The power companyferred by the words of Art. 368 being unfettered, inconsistency between. that power and the provision in Art. 13 2 must be avoided. Therefore in keeping with the unfettered power in Art. 368 the word law in Art. 13 2 must be read as meaning law passed under the ordinary legislative power and number a companystitutional amendment. The words in Art. 13 2 are number specific and clear enough to be regarded as an express limitation on Art. 368. 842 G-H Merely because there was some indirect effect on Art. 226 it was number necessary that the Seventeenth Amendment should have been ratified under the proviso to Art. 368. Art. 245 had number also been directly affected by the said Act and numberratification -as required on this ground either. 843 G-H 846 C The laws added to the Ninth Schedule by the Seventeenth Amendment Act had already been passed by the State Legislatures and it was their companystitutional infirmity, if any, which was being cured by the device adopted in Art. 31B read with the Ninth Schedule, the amendment being only of the relevant provisions of Part III which were companypendiously put in one place in Art. 31B. Parliament companyld alone do it under Art. 368 and there was numbernecessity for any ratification under the proviso, for amendment of Part HI is number entrenched in the proviso. 847 E In curing the infirmity of the said laws Parliament was number encroaching on the exclusive legislative powers of the States because only Partiament companyld card the infirmity. For the same reason the fact that the laws in question were State laws did. number make ratification obligatory 847 G A limited meaning cannot be given to Art, 368 because of the possibility of abuse of the power. The check is number in the companyrts but in the people who plect members of Parliament. 848 F The power of amendment companytained in a written federal companystitution is a safety valve which to a large extent provides for stable growth and makes violent revolution more or less unnecessary. The fact that in the last sixteen years a large number of amendments , companyld be made and have been made is due to the accident that one party has been returned by electors in sufficient strength to be able to companymand Special majorities which are required in Art. 368, number only at the Centre but in all the States. But that is numberground for limiting the clear words of Art. 368. 850 C- D, E Though the period for which Sankari Prasads case has stood unchallenged is number long, the effects which have followed on the passing of State laws on the faith of that decision, are so overwhelming that the decision should number be disturbed otherwise chaos will follow. This is the fittest possible case in which the principle of stare decisis should be applied 851 G Keshav Mills Company, Ltd V Commissioner of Income- tax,1965 2 S.C.R. 908, referred to. The doctrine of prospective overruling cannot be accepted in this companyntry. The doctrine accepted here is that companyrts declare law and that a declaration made by a companyrt is the law of the land and takes effect from the date the law came into force. It would be undesirable to give up that doctrine and supersede it with the doctrine of prospective overruling. 852,D-F Moreover a law companytravening Art. 13 2 is void ab initio as held by this Court in Deep Chands case and Mahendra Lal Jainis case. In the face of these decisions it is impowible to apply the doctrine of prospective overruling to ordinary laws. If companystitutional law is to be treated as ordinary law the same principle applies. If however it is number treated as law under Art. 13 2 then there is numbernecessity of applying the principle of prospective overruling for in that case the amendment under Art. 368 does number have to be tested under Art. 13 2 . 852 G-H 853 Deep Chand v. St ate of Uttar Pradesh, 1959 Supp. 2 S.C.R. 8 and Mahendra, Lal Jaini v. State of Uttar Pradesh, 1963 Supp. 1 S.C.R. 912, referred to. Per Bachawat J.- i Article 368 number only prescribes the procedure but also gives the power of amendment. It is because the power to amend is given by the article that by following its procedure the Constitution stands amended. The proviso is enacted on the assumption that the several articles mentioned in it are amendable but for the proviso they would have been amendable under the main part. There is numberother provision in the Constitution under which these articles can be amended. 904 D Articles 4, 169, Fifth Schedule Part D and Sixth Schedule Para 21 empower the Parliament to make amendments to certain parts of the Constitution by law, and by, express provision such law is deemed number to be amendment for the purpose of Art. 368. All other provisions of the Constitution can be amended by recourse to Art. 368 only. No other article companyfers the power of amending the Constitution. 904E-F The power to amend the Constitution cannot be said to reside in Art. 248 and List 1, item 97 because if amendment companyld be made by ordinary legislative process Art. 368 would be meaningless. Under the residual power the Parliament has numbercompetence to make any law with respect to any matter enumerated in Lists II and III of the 7th Schedule, but under Art. 368 even Lists 11 and III can be amended. Moreover a law passed by residual power is passed by virtue of Art. 245 and must be subject to the provisions of the Constitution so that it cannot derogate from the Constitution or amend it. Such a law would be void. 905 C- Article 368 gives the power of amending this Constitution. This Constitution means every part of the Constitution including Part ITT and Art. 13 2 . Thus Art. 13 2 is also within the reach of the amending power. Instead of companytrolling Art. 368 it is companytrolled by that Article. 906 C-D H The companytention that a companystitutional amendment under Art. 368 is a law within the meaning of Art. 13 must be rejected. The distinction between the Constitution and law is so fundamental that the Constitution is number regarded as a law or a legislative act. The Constitution mean-, the Constitution as amended. An amendment made in companyformity with Art. 368 is a part of the Constitution and is likewise number law. Save as expressly provided in Arts. 4, 169 Fifth Schedule Part D and Sixth Schedule para 21 numberlaw can amend the Constitution and a law which purports to make such an amendment is void. It is for this reason that Art. 368 avoids all reference to law making by the Parliament. There 3 Sup. CI./67-4 are. also material differences between the ordinary law making procedure and the procedure under the Article. 907 B-F 908 D-H If a companystitutional amendment creating a new fundamental rights and incorporating it in Part III were a law, it would number be open to the Parliament by a subsequent amendment to abrogate the new fundamental right for such an amendment would be repugnant to Part 111. But the companyclusion is absurd for the body which enacted the right can surely take it away by the same process. 909 E Marbury v. Madison, 1803 1 Cranch 137 2 L.Ed. 60 and Riley v. Carter, 88 A.L.R. 1008, referred to. There is numberconflict between Arts. 13 2 and 368. The two articles operate in different fields, the former in the field of law, the latter in that of companystitutional amendment. 910 B The number-obstante clause in Art. 35 does number show that the article is number amendable. The number-obstante clause is to be found also in, Arts. 258 1 . 364, 369, 370 and 371A. No one has suggested that these articles are number amendable. 910 D The words fundamental used in regard to rights in Part III and the word guaranteed in Art. 32 do number mean that the said rights cannot be amended. The companystitution is never at rest it changes with the progress of time. The scale of values in Parts III and IV is number immortal and these Parts being parts of the Constitution are number immune from amendment under Art. 368. 910 F-G The impugned amendments to be Constitution were made to meet the situations created by decisions of this Court and to carry out urgent agrarian reforms. If it is held that the rights, companyferred by Part III cannot be abridged or taken away by companystitutional amendments, all these amendments would be invalid. The Constitution makers companyld number have intended that the rights companyferred by Part III companyld number be altered for giving effect to the policy of Part. IV. Nor was it intended that defects in Part III companyld number be cured or that possible errors in judicial interpretations of Part III companyld number be rectified by companystitutional amendments. 913 D-E It cannot be said that the people in exercise of their sovereign power have placed the fundamental rights beyond the reach of the amending power. The people acting through the Constituent Assembly reserved for themselves certain rights and liberties and ordained that they shalt number be curtailed by ordinary legislation. But the people by the same Constitution also authorised the Parliament to make amendments to the Constitution. In exercise of the amending power the Parliament has ample authority to, abridge or take away the fundamental rights under Part III 915 B-C Merely because of possibility of abuse, the power cannot be denied. 916 H Webb v. Outrim, 1907 A.C. 81 and amalgamated Society of Engineers. The Adelaide Steamship Company Limited Ors. 28 C.L.R. 129, referred to. The main part of Art. 368 gives the power to amend or make changes in the Constitution. A change is number necessarily an improvement. Normally the change is made with the object of making an improvement but the experiment may fail to achieve the purpose. 916 A Livermore v. E. G. Waite, 102 Cal. 113-25 L.R.A. 312 and National Prohibition case. 253 U.S. 350, referred to. 77 5 The best exposition of the Constitution is that which it has received from companytemporaneous judicial decisions and enactments. No one in Parliament doubted the proposition that fundamental rights companyld be amended, when the First Amendment Act of 1951 was passed. The companycept of amendability was upheld in S. Krishnan Ors. v. State of Madras 1951 S.C.R. 621 decided in 1951,in Sankari Prasad decided in 1952 and Sajjan Singh decided in 1964. 918 C-D There is numberprovision in the Constitution for calling a companyvention for its revision or far submission of any proposal for amendment to the referendum. 918 G The impugned amendments affected Arts. 226 and 245 only indirectly and did number require ratification under the proviso to Art. 168. 919 D-H In validating the impugned laws Parliament was number encroaching on-.the State List. It was only validating the said laws and such companystitutional validating was within its companypetence. 920 C-E The abolition of Zamindari was a necessary reform. It is the First Constitution Amendment Act that made this reform possible., No legal argument can restore the outmoded feudal Zamindari system.What has been done cannot be undone. The battle for the put is lost. 921 B-C If the First Fourth, Sixteenth Seventeenth Amendments Acts are void they do number legally exist from their inception. They cannot be, valid from 1951 to 1967 and invalid thereafter. To say that they were valid in the past and Will be invalid in the future is to amend the.Constitution. Such a naked power of amendment is number given to the Judges and therefore the doctrine of prospective overruling cannot be, adopted. 921 D-E It is number possible to say that the First and Fourth Amendments though originally valid have number been validated by acquiescence. If they infringe Art. 13 2 they were void from their inception. If these ammendments are validated by acquiescence the Seventeenth Amendment is equally validated. 921 F 922 B The companytention that Dr. Ambedkar did number regard the fundamental rights as amendable is number supported by the speeches in the Constituent Assembly. 922 C-D Per Ramaswami J. i In a written Constitution the amendment of the Constitution is a substantive companystituent act which, is made in the exercise of the sovereign power through a predesigned procedure unconnected with ordinary legislation. The amending power in Art. 368 is hence sui generis and cannot be companypared to the law making power of Parliament pursuant to Art. 246 read with Lists II and Ill. It follows that the expression law in Art. 13 2 cannot be companystrued as including an amendment of the Constitution which is achieved by Parliament in exercise of its sovereign companystituent power but must mean law made by Parliament in its legislative capacity under Art. 246 read with I List I and III of the 7th Schedule. It is also clear on the same line of reasoning that law in Art. 13 2 cannot be companystrued so as to include law made by Parliament under Arts. 4, 169, 392, 5th Schedule Part 1 and 6th Schedule para 21. The amending power of Parliament exercised under these Articles stands on the same pedestal as the companystitutional amend ment made under Art. 368 so far as Art. 13 2 is companycerned. 930 H 931 E The language of Art. 368 is perfectly general and empowers Parliament to amend the Constitution without any exception whatsoever. The use of the word fundamental to describe the rights in Part III and the word guaranteed in Art. 32 cannot lift the fundamental rights above the Constitution itself 931 F, It is unreasonable to suggest that what Art. 368 provides is only the mechanics of the procedure for amendment and number the power to amend. The significant fact that a separate part has been devoted in the Constitution for amendment of the companystitution and there is only one Article in that Part shows that both the power and the procedure to amend are enacted in Art. 368. Again the words the Constitution shall stand amended in accordance with the terms of the Bill in Art. 368 clearly companytemplate and provide for the power to amend after the requisite procedure has been followed. 932 C-E The power of companystitutional amendment cannot fall within Arts. 246 and 248 read with item 97 of List I because it is illogical and a companytradiction in terms to say that the amending power can be exercised subject to the provisions of the Constitution as the power under these articles must be. 933 B There is numberroom for an implication in the companystruction ofArt. 368. If the Constitution makers wanted certain basic features to be unamendable they would have said so. 933 G-H State of West Bengal v. Union of India, 1964 1 S.C.R. 371 and In re The Berubari Union and Exchange of Enclaves 1960 3 S.C.R. 250, referred to. The companycepts of liberty and equality are changing and dynamic and hence the numberion of permanency or immutability cannot be attached to any of the fundamental rights. The adjustment between freedom and companypulsion, between the rights of individuals and the social interest and welfare must necessarily be a matter for changing needs and companyditions. The proper approach is therefore to look upon the fundamental rights of the individual as companyditioned by social responsibility, by the necessities of the society, by the balancing of interests and number as pre-ordained and untouchable private rights. 934 E-935 C It must number be forgotten that neither the rights in Art. 31 number those in Art. 19 are absolute. The purposes for which fundamental rights can be regulated which are specified in cls. 2 to 6 companyld number have been assumed by the Constitution makers to be static and incapable of expansion. It cannot be assumed that the Constitution makers intended to forge a political strait-jacket for generations to companye. Today at a time when absolutes are discredited, it must number be too readily assumed that there are basic features of the Constitution which shackle the amending power and which take precedence over the general welfare of nation and the need for agrarian and social reform. 936 B-937 C In companystruing Art. 368 it is essential to remember the nature and subject matter of that Article and to interpret it subjectae materies. The power of amendment is in point of quality an adjunct of sovereignty. It is in truth the exercise of the highest sovereign power in the State. if the amending power is an adjunct of sovereignty it does number admit of any limitations. 937 D If the fundamental rights are unamendable and if Art. 368 does number include any such power it follows that the amendment of, say, Art. 31 by insertions of Arts. 31A and 31B can only be made by a violent revolution. It is doubtful if the proceedings of a new Constituent Assembly that may be called will have any legal validity for if the Constitution provides its own method of amendment, any other method will be unconstitutional and void. 490 A-B George S. Hawke v. Harvey C. Smith, 64 L.Ed. 871 and Feigenspan v. Bodine, 264 Fed. 186, referred to. It is number permissible in the first place to assume that in a matter of companystitutional amendment there will be abuse of power and then utilise it as a test for finding out the scope of the amending power. In the last analysis political machinery and artificial limitations will number protect the people from themselves. 941 F-G State of West Bengal v. Union of India, 1964 1 S.C.R. 371 and American Federation of Labour v. American Sash Door Co. 335 U.S. 538, referred to. What the impugned Act purports to do is number to make any and legislation but to protect and validate the legislative measure passed by different State legislatures. This was within the legislative companypetence of Parliament. 942 F Leser v. Garnett, 258 U.S. 130, National Prohibition Cases. 253 U.S. 350 and United States v. Sprague, 282 U.S. 716, referred to. Articles 226 and 245. were number directly affected by the impugned Act and therefore numberratification by the State Legislatures was necessary. 942 D-H 945 D K. Gopalan v. State of Madras, 1950 S.C.R. 88, Ram Singh Ors. v. State of Delhi Anr., 1951 S.C.R. 451, Express Newspapers Pvt. Ltd. v. Union of India, 1959 C.R. 12, Atiabari Tea Co. Ltd. v. State of Assam, 1961 1 C.R. 809 and Naresh Shridhar Mirajkar v. State of Maharashtra 1966 3 S.C.R. 744, referred to. Even on the assumption that the impugned Act is unconstitutional the principle of stare decisis must be applied to the present case and the plea made by the petitioners for reconsideration of Sankari Prasads case and Sajjan Singhs case must be rejected. 948 D-E On the landings it was number necessary to express an opinion on the doctrine of prospective overruling of legislation. 948 G-H ORIGINAL JURISDICTION Writ Petition No. 153 of 1966. Under Article 32 of the Constitution of India for enforcement of the Fundamental Rights And Writ Petition No. 202 of 1966. Under Article 32 of the Constitution of India for enforce- ment of the Fundamental Rights And Writ Petition No. 205 of 1966. Under Article 32 of the Constitution of India for enforcement of the Fundamental Rights In Writ Petition No. 153 of 1966. V. S. Mani, S. K, Mehta and K. L. Mehta, for the petitioners. Niren,De, Additional Solicitor-General of India,and N. Sachthey, for the Respondents. Niren De, Additional Solicitor-General of India,G.Rajagopal, and R. H. Dhebar,for Intervener Ng. 1. D. Banerjee, Advocate-General for the State of West Bengal, Sen and P. K. Bose,for Intervener No.2. Lal Narain Sinha, Advocate-General for the State of Bihar, Bajrang Saha, M. M. Gajadhar, K. M. K. Nair, D. P. Singh, K. Ramamurthi, R. K. Garg, S. C Agarwala and G. D. Gupta, for Intervener No. 3. Mohan Kumaramangalam., Advocate-General for the State of Madras, B. Ramamurthi and A. V. Rangam, for Intervener No. D. Mahajan and R. H. Dhebar, for Intervener No., 5. L. Mishra, Advocate-General for the State of Uttar Pradesh, and O. P. Rana, for Intervener No., 6. A. Seyid Muhamad, Advocate-General for the State of Kerala, B. R. L. Iyengar, A. G. Pudissery, for Intervener No. 7. Naunit Lal, for Intervener No. 8. B. Mehta, for Intervener No. 9. Ram Reddy and T. V. R. Tatachari, for Intervener No. 10. C. Stealvad, B. R. L. Iyengar and R. H. Dhebar, for Inter-vener No. 11. Thiagarajan, for Intervener No. 12. N. Mukherjee, for Interveners Nos. 13 and 19 to 21. Udayairatnam, S. S. Dalal and D. D. Sharma, for Inter- veners Nos. 14 and 15. K Garg, D P. Singh, M. K. Ramamurthi, S. C. Agarwala, D. Gupta and K. M. K. Nair for Intervener No. 16. Parasaran and K. R. Chaudhuri, for Intervener No. 17. Basudev Prasad, K. Parasaran and K. R. Chaudhuri, for Intervener No. 18. Basudev-Prasad, K. Rajendra Chaudhuri, K. R. Chaudhuri and N. Prasad, for Interveners Nos. 22 to 24. in Writ Petition No. 202 of 1966. K. Nambyar, K. B. Jinaraja Hegde, N. A., Subramaniam, Bhuvanesh Kumari, O. C. Mathur, J. B. Dadachanji and Ravin- der Narain, for the Petitioner. R. Gokhale, B. P G. K. Achar, K. H. Dhebar, R. N. Sachthey and S. P. Nayyar, for Respondent No. 1. Niren De, Additional Solicitor-General, N. S. Bindra and N. Sachthey, for Respondent No. 2. K. Sen, F. S. Nariman, M. L. Bhakte, S. I. Thakere, J. B. Dadachanji, O. C. Mathur and Ravinder Narain, for Intervener No. 1. A. Palkhiwala, F. S. Nariman, M. L. Bhakte, D. M. Popat,0. P. Malhotra, J. B. Dadachanji, O. C. Mathur and Ravinder Narain, for Intervener No. 2. M., Parulekar B. Dutta, J. B. Dadachanji, O. C. Mathur and Ravinder Narain, for Intervener No. 3. In Writ Petition No. 205 of 1966. K. Nambyar, K. B. Jinaraja Hegde, N. A. Subramaniam, Bhuvanesh Kumari, O. C. Mathur, J. B. Dadachanji and Ravin- der Narain, for the Petitioner. R. Gokhale, B. R. G. K. Achar, R. H. Dhebar and S. P. Nayyar, for Respondent No. 1. G. Patwardhan, D. M. Parulekar, B. Dutta, S. K. Dhelika, B. Dadachanji, O. C. Mathur and Ravinder Narain, for the Intervener. The Judgment Of SUBBA RAO, C.J., SHAH, SIKRI, SHELAT and VAIDIALINGAM, JJ. was delivered by SUBBA RAO, C.I. According to this Judgment- i the power to amend the Constitution is number to be found in Art. 368 but in Arts. 245, 246 and 248 read with Entry 97 of List 1 ii the amending power can. number be used to abridge or take away the fundamental rights guaranteed in Part III of the Constitution iii a law amending the Constitution is Law within the meaning of Art. 13 2 and iv . the First, Fourth and Seventeenth Amendments though they abridged fundamental rights were valid in the past on the basis of earlier decisions of this Court and companytinue to be valid for the future. On the application of the doctrine of prospective over-ruling, as enunciated in the judgment, the decision will have only prospective operation and Parliament will have numberpower to abridge or take away Fundamental Rights from the date of the judgment. The Judgment of WANCHOO, BHARGAVA and MITTER, JJ. was delivered by WANCHOO, J. According to this Judgment i the power of amending the Constitution resides in Art. 368 and number in Arts. 245, 246 and 248, read with EntrY 97 of List 1 there, are numberrestrictions on the power if the procedure in Art. 368 is followed and all the Parts of the Constitution including Part III, can be amended, iii an amendment of the Constitution is number law under Art. 13 2 and iv the doctrine of prospective overruling cannot be applied in India. HIDAYATULLAH, J. delivered a separate judgment agreeing with SUBBA RAo, CJ. on the following two points i that the power to amend the Constitution cannot be used to abridge or take away fundamental rights and ii that a law amending the Constitution is law under Art. 13 2 . He agrees With WANCHOO, J. that the power to amend does number reside in Arts. 245 and 248 read wish Entry 97 of List 1. Art. 368, according to him, is sui generis and procedural and the procedure when companyrectly followed, results in an amendment. He does number rely on the doctrine of prospective overruling. As regards the First, Fourth and Seventh Amendments, these having long enured and been acquiesced in, he does number treat the question of their validity as being before him. As regards the Seventeenth Amendment he finds sufficient support for it in the Constitution as amended by the First, Fourth and Seventh Amendments and holds that the new definition of estate, introduced by the Amendment, though it is law under Art. 13 2 and is an inroad into fundamental rights, is beyond the reach of the companyrts because it falls within the word law in Arts. 31 1 , 2 , 2A and 31A 1 . He, however, declares section 3 of the Seventeenth Amendment Act ultra vires the amending process as an illegitimate exercise of the amending power. BACHAWAT and RAMASWAMI, JJ. delivered separate judgments companycurring with WANCHOO, J. Subbarao, C.J. These three writ petitions raise the important question of the validity of the Constitution Seventeenth Amendment Act, 1964. Writ Petition No. 153 of 1966, is filed by the petitioners therein against the State of Punjab and the Financial Commissioner, Punjab. The petitioners are the son, daughter and granddaughters of one Henry Golak Nath, who died on July 30, 1953. The Financial Commissioner, in revision against the order made by the Additional Commissioner, Jullundur Division, held by an order dated January 22, 1962 that an area of 418 standard acres and 9-1/4 units was surplus in the hands of the petitioners under the provisions of the Punjab Security of Land Tenures Act X of 1953, read with s. 10-B thereof. The petitioners, alleging that the relevant provisions of the said Act where under the said area was declared surplus were void on the ground that they infringed their rights under cls. f and g of Art. 19 and Art. 14 of the Constitution, filed a writ in this Court under Art. 32 of the Constitution for a direction that the Constitution First Amendment Act 1951, Constitution Fourth Amendment Act, 1955, Constitution Seventeenth Amendment Act, 1964, insofar as they affected their fundamental rights were unconstitutional and inoperative and for a direction that s. 10-B of the said Act X of 1953 was void as violative of Arts. 14 and 19 1 f and g of the Constitution. Writ Petitions Nos. 202 and 203 of 1966 were filed by different petitioners under Art. 32 of the Constitution for a declaration that the Mysore Land Reforms Act Act 10 of 1962 as amended by Act 14 of 1965, which fixed ceilings on land holdings and companyferred ownership of surplus lands on tenants infringed Arts. 14, 19 and 31 of the Constitution and, therefore, was unconstitutional and void. The States of Punjab and Mysore, inter alia, companytended that the said Acts were saved from attack on the ground that they infringed the fundamental rights of the petitioners by reason of the Constitution Seventeenth Amendment Act, 1964, which, by amending Art. 31-A of the Constitution and including the said two Arts in the 9th Schedule thereto, had placed them beyond attack. In Writ Petition No. 153 of 1966, 7 parties intervened. In Writ Petition No. 202 of 1966 one party intervened. In addition, in the first petition, numberice was given to the Advocates General of various States. A11 the learned companynsel appearing for the parties, the Advocates General appearing for the States and the learned companynsel for the interveners have, placed their respective viewpoints exhaustively before us. We are indebted to all of them for their thorough preparation and clear exposition of the difficult questions of law that were raised in the said petitions. At the outset it would be companyvenient to place briefly the respective companytentions under different heads 1 The Constitution is intended to be permanent and, therefore, it cannot be amended in a way which would injure, maim or destroy its indestructible character. 2 The word amendment implies such an addition or change within the lines of the original instrument as will effect an improvement or better carry out the purpose for which it was framed and it cannot be so companystrued as to enable the Parliament to destroy the permanent character of the Constitution. 3 The fundamental rights are a part of the basic structure of the Constitution and, therefore, the said power can be exercised only to preserve rather than destroy the essence of those rights. 4 The limits on the power to amend are implied in Art. 368, for the expression amend has a limited meaning. The wide phraseo-logy used in the Constitution in other Articles, such as repeal and re-enact indicates that art. 368 only enables a modification of the Articles within the framework of the Constitution and a destruction of them. 5 The debates in the Constituent Assembly, particularly the speech of Mr. Jawahar Lal Nehru, the first PA Minister of India, and the reply of Dr. Ambedkar, who piloted the Bill disclose clearly that it was never the intention of the makers of the Constitution by putting in Art. 368 to enable the Parliament to repeal the fundamental rights, the circumstances under which the amendment moved by Mr. H. V. Kamath, one of the members of Constituent Assembly, was withdrawn and Art. 368 was finally adopted, support the companytention that amendment of Part II, is outside the scope of Art. 368. 6 Part III of the Constitution is a self-contained Code. and its provisions are elastic enough to meet all reasonable requirements of changing situations. 7 The power to amend is sought to be derived from three sources, namely, i by implication under Art. 368 itself The procedure to amend culminating in the amendment of the Constitution necessarily implies that power, ii the power and ,the limits of the power to amend are implied in the Articles sought to be amended, and iii Art. 368 only lays down the procedure to amend, but the power to amend is only the legislative power companyferred on the Parliament under Arts. 245, 246 and 248 of the Constitution. 8 The definition of law in Art. 13 2 of the Constitution includes every branch of law, statutory, companystitutional, etc., and therefore, the power to amend in whichever branch it may be classified, if it takes away or abridges fundamental rights would be void thereunder. 9 The impugned amendment detracts from the jurisdiction of the High Court under Art. 226 of the Constitution and also the legislative powers of the States and therefore it falls within the scope of the proviso to Art. 368. The said summary, though number exhaustive, broadly gives the various nuances of the companytentions raised by the learned companynsel, who question the validity of the 17th Amendment. We have number numbericed the other arguments of Mr. Nambiar, which are peculiar to the Writ Petition No. 153 of 1966 as those questions do number arise for decision, in the view we are taking on the companymon questions. On behalf of the Union and the States the following points were pressed 1 A Constitutional amendment is made in exercise of the sovereign power and number legislative power of Parliament and,. therefore, it partakes the quality and character of the Constitution itself. 2 The real distinction is between a rigid and a flexible Constitution. The distinction is based upon the express limits of the amending power. 3 The provisions of Art. 368-axe clear and unequivocal and there is numberscope for invoking implied limitations on that power further the doctrine of impliedpower has been rejected by the American companyrts and jurists. 4 The object of the amending clause in a flexible Consetitution is to enable the Parliament to amend the Constitution in order to express the will of the people according to the changing companyrse of events and if amending power is restricted by implied limitations, the Constitution itself might be destroyed by revolution. Indeed, it is a safety valve and an alternative for a violent change by revolution. 5 There- are numberbasic and number-basic features of the Constitution everything in the Constitution is basic and it can be amended in order to help the future growth and progress of the companyntry. 6 Debates. in the Constituent Assembly cannot be relied upon for companystruing Art. 368 of the Constitution and even if-they can be, there is numberhing in the debates to prove, positively that fundamental rights were excluded from amendment. 7 Most of the amendments are made out of political necessity they involve, questions, such. as, how to exercise power,, how to make the lot of the citizens better and the like and, therefore, number being judicial questions, they are outside the companyrts jurisdiction. 8 The language of Art. 368 is clear, categorical, imperative and universal, on the other hand, the language of Art. 13 2 is such as to admit qualifications or limitations and, therefore, the Court must companystrue them in such a manner as that Article companyld number companytrol Art. 368. 9 In order to enforce the Directive Principles the Constitution was amended from time to time and the great fabric of the Indian Union has been built since 1950 on the basis that the Constitution companyld be amended and, therefore, any reversal of, the previous I decisions would introduce economic chaos in our companyntry and that, therefore, the burden is very heavy uponthe petitioners to establish that the fundamental rights cannot be amended under Art. 368 of the Constitution. 10 Art. 31- A and the 9th Schedule do number affect the power of the High Court under Art. 226 or the legislative power of the States though the area of their operation is limited and, therefore, they do number fall within the scope of the proviso to Art. 3 68. The aforesaid companytentions only represent a brief summary of elaborate arguments, advanced by learned companynsel. We shall deal in appropriate companytext with the other points mooted before US. It will be companyvenient to read the material provisions of theConstitution at. this stage. Article 13 1 The State shall number make any law which takes away or abridges the rights companyferred by this part and any law made in companytravention of this clause shall, toy the extent of the companytravention, be void. In this article, unless the companytext otherwise requires,- a law includes any Ordinance, order, bye-law, rule regulation, numberification, custom or usage having in the territory of India the force of law. Article 31-A 1 , Notwithstanding anything companytained in article 13, numberlaw providing for, a the acquisition by the State of any estate or of any rights therein or the extinguishment or modification of any such rights, shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights companyferred by article 14, article 19 or article 31. 2 a the expression estate shall, in relation to any local area, have the same meaning as that expression or its- local equivalent has in the existing law relating to land tenure in force in that area and shall also include, any land held under ryotwari settlement, any land held or let for purposes of agriculture or for purposes ancillary thereto Article 31-D. Without prejudice to the generality of the provisions companytained in article 31-A, numbere of the Acts and Regulations specified in the Ninth Schedule number any of the provisions thereof shall be deemed to be void, or ever to have become void, on the ground that such Act, Regulation or provision is inconsistent with, or takes away or abridges any of the rights companyferred by, any provisions of this Part, and number withstanding any judgment decree or order of any companyrt or tribunal to the companytrary, each of the said Acts and Regulations shall, subject to the power of any companypetent Legislature to repeal or amend it, companytinue in force. In the Ninth Schedule to the Constitution the Mysore Land Reforms Act, 1961, Mysore Act 10 of 1962 is included as item 51 and the Punjab Security of Land Tenures Act, 1953 Punjab Act 10 of 1953 is included as item 54. The definition of estate was amended and the Ninth Schedule was amended by including therein the said two Acts by the Constitution Seventeenth Amendment Act, 1964. The result of the said amendments is that both the said Acts dealing- with estates, within their wide definition introduced by the Constitution Seventeenth Amendment Act, 1964, having been included in the Ninth Schedule, are placed beyond any attack on the ground that their provisions are inconsistent with or take away or abridge any of the rights companyferred by Part III of the Constitution. It is companymon case that if the Constitution Seventeenth Amendment Act, 1964, was companystitutionally valid, the said Acts companyld number be impugned on any of the said grounds. The question of the amendability of the fundamental rights was companysidered by this Court earlier in two decisions, namely, Sri Sankari Prasad Singh Deo v. Union of India and State of Bihar 1 and in Sajjan Singh v. State of Rajasthan 2 In the former the validity of the Constitution First Amend- ment Act, 1951, which inserted, inter alia, Arts. 31-A and 31-B in the Constitution, was questioned. That amendment was made under Art. 368 of the Constitution by the Provisional Parliament. This Court held that Parliament had power to amend Part III of the Constitution. The Court came to that companyclusion on two grounds, namely, 1 the word law in Art. 13 2 was one made in exercise of legislative power and number companystitutional law made in exercise of companystituent power and ii there were two articles Arts. 13 2 and 368 each of which was widely phrased and, therefore, harmonious companystruction required that one should be so read as to be companytrolled and qualified by the other, and having regard to the circumstances mentioned in the judgment Art. 13 must be read subject to Art. 368. A careful perusal of the judgment indicates that the whole decision turned upon an assumption that the expression law in Art 13 2 does number include companystitutional law and on that assumption an attempt was made to harmonise Article 13 2 and 368 of the Constitution. The decision in Sajjan Singhs case 2 was given in the company- text of the question of the validity of the Constitution Seventeenth Amendment Act, 1964. Two questions arose in that case 1 Whether the amendment Act insofar it purported to take away or abridge the rights companyferred by Part III of the Constitution fell within the prohibition of Art. 13 2 and 2 Whether Articles 31-A and 31-B sought to make changes in Arts. 132, 136 or 226 or in any of the lists in the Seventh Schedule and therefore the requirements of the proviso to Article 368 had to be satisfied. Both the Chief Justice and Mudholkar, J. made it clear that the first companytention was number raised before the Court. The learned companynsel appearing for both the parties accepted the companyrectness of the decision in Sankari Prasads case 1 in that 1 1952 S.C.R. 89,105. 2 1965 1 S.C.R. 933, 946, 950, 959, 961, 963. regard. Yet Gajendragadkar, C.J. speaking for the majority ,agreed with the reasons given in Sankari Prasads case 1 on the first question and Hidayatullah and Mudholkar, JJ. expressed their dissent from the-said view. But all of them agreed, though for different reasons on the second question. Gajendragadkar, C.J. speaking for himself, Wanchoo and Raghubar Dayal, JJ. rejected the companytention that Art. 368 did number companyfer power on Parliament to take. away the fundamental rights guaranteed by Part III. When a suggestion was made that the decision in the aforesaid case should be reconsidered and reviewed, the learned Chief Justice though he companyceded that in a case- where a decision had a significant impact on the fundamental rights of citizens, the Court would be inclined to review its earlier decision in the interests of the public good, he did number find companysiderations of substantial and companypelling character to do so in that case. But after referring to the reasoning given in Sankari Prasads case 1 the learned Chief Justice observed In our opinion , the expression amendment of the, Constitution plainly and unambiguously means amendment of all the provisions of the Constitution. Referring, to Art. 13 2 , he restated the same reasoning found in, the earlier decision and added that if it was the intention of the Constitution-makers to save, fundamental rights from the amending,process they should have taken the precaution of making A-. clear provision in that regard. In short, the majority, speaking through Gajendragadkar, C.L agreed that numbercase had been made, out for reviewing the earlier decision and practically accepted the reasons given in the-earlier decision. Hidyatullah J. speaking for himself, observed But I make it clear that I must number be understood to have subscribed to the view that the word law in Art. 13 2 does number companytrol companystitutional amendments., I reserve my opinion on that case for I apprehend that it depends on how wide is the lawin that Article. After giving his reasons for doubting the companyrectness of the reasoning given in Sankari Prasads case 1 , the learned Judge companycluded thus I would require stronger reasons than those given in Sankari Prasads case 1 to make me accept the view that Fundamental Rights were number really fundamental but were intended to be within the powers of amendment in companymon with the other parts of the Constitution and without the companycurrence of the States. 1 1952 S.C.R. 89. The. learned Judge companytinued The Constitution gives so many assurances in Part III that it would be difficult to think that they were the playthings of a special majority. Mudholkar, J. was positive that the result of a legislative action of a legislature companyld number be other than law and, therefore, it seemed to him that the fact that the legislation dealt with the amendment of a provision of the Constitution would number make, its results anytheless a law. He further pointed out that Art. 368 did number say that whenever Parliament made an amendment to the Constitution it assumed a different capacity from that of a companystituent body. He also brought out other defects in the line of reasoning adopted in Sankari Prasads case 1 . It will, therefore,be seen-that the companyrectness of the decision in Sankari Prasads case 1 was number questioned in Sajjan Singhs case 2 Though it was number questioned, three of the learned Judges agreed with the view expressed therein, but two learned Judges were inclined to take a different view. But, as that question was number raised, the minority agreed with the companyclusion, arrived at by the majority on the question whether the Seventeenth Amendment Act was, companyered by the proviso. to Art. 368 of the Constitution. The companyflict between the majority and the minority in Sajjans Singhs case 1 falls to be resolved in this case. The said companyflict and, the great importance of the question raised is the justification for-the Constitution of the larger Bench., The decision in Sankri Prasads case 1 was assumed to be companyrect in subsequent decisions of this Court. See S. Krishnan v. State of Madras 1 , The State- of West Bengal Anwar All Sarkar 1 and Basheshar Nath v. The Commissioner of Income-tax, Delhi and Rajasthan 5 . But numberhing turns upon that fact, as the companyrectness of the derision was number questioned-. in those cases. A companyrect appreciation of the scope and the place of funda- mental rights in our Constitution will give its the right perspective for solving the problem presented before us, Its scope cannot be appreciated unless we have a companyspectus of the Constitution, its objects. and its machinery to achieve those object. The objective sought- to be achieved by the Constitution is declared in sonorous terms. in its preamble which reads We the people of India having solemnly resolved to companystitute India into a Sovereign, Democratic, Republic and to secure to all its citizens justice. liberty. equality. and fraternity-. 1 1952 S.C.R. 89 3 1951 S.C.R. 621 at page 652. 2 1965 1 S.C.R.933. 4 1952 S.C.R. 284, 366. 5 1959 Supp. 1 S.C.R. 528,563. It companytains in a nutshell, its ideals and its aspirations. The preamble is number a platitude but the, mode of its realisation is worked out in detail in the Constitution. The Constitution brings into existence different companystitutional entities, namely, the Union, the States and the Union Territories. It creates three major instruments of power, namely, the Legislature, the Executive and the Judiciary. It demarcates their jurisdiction minutely and expects them to exercise their respective powers without overstepping their limits. They should function within the spheres allotted to them. Some powers overlap and some are superseded during emergencies. The mode of resolution of companyflicts and companyditions for supersession are also prescribed. In short, the scope of the power and the-manner of its exercise are regulated by law. No authority created under the Constitution is supreme the Constitution is supreme and all the authorities function under the supreme law of the land. The rule of law under the Constitution has a glorious companytent. It embodies the. modem companycept of law evolved over the centuries. It empowers the Legislatures to make laws in respect of matters enumerated in the 3 Lists annexed to Schedule VII. In Part IV of the Constitution, the Directive Principles of State Policy are laid down. It enjoins it to bring about a social order in which justice, social. economic and political-shall inform all the institutions of national life. It directs it to work for an egalitarian society where there is numberconcentration of wealth, where there is plenty, where there is equal opportunity for all, to education, to work, to livelihood. and where there is social justice. But, having regard to the past history of our companyntry, it companyld number implicitly believe the representatives of the people, for uncontrolled and unrestricted power might lead to an authoritarian State. It, therefore, preserves the natural rights against the State encroachment and companystitutes the higher judiciary of the State as the sentinel of the said rights and the balancing wheel between the rights, subject to social companytrol. In short, the fundamental rights, subject to social companytrol, have been incorporated in the rule of law. That is brought about by an interesting process. In the implementation of the Directive Principles, Parliament or the Legislature of a State makes laws in respect of matter or matters allotted to it. But the higher Judiciary tests their validity on certain objective criteria, namely, i whether the appropriate Legislature has the legislative companypetency to make the law ii whether the said law infringes any of the fundamental rights iii even if it Infringement the freedoms under Art. 19, whether the infringement only amounts to reasonable restriction on such rights in public interest. By this process of scrutiny, the companyrt maintains the validity of only such laws as keep a just balance between freedoms and social companytrol. The duty of reconciling fundamental rights in Art. 19 and the laws of social companytrol is cast upon the companyrts and the touchstone or the standard is companytained in the said two expressions. The standard is an elastic one it varies with time, space and companydition. What is reasonable under certain circumstances may number be so under different circumstances. The companystitutional philosophy of law is reflected in Parts-1111 and IV of the Constitution. The rule of law under the Constitution serves the needs of the people without unduly infringing their rights. It recognizes the social reality and tries to adjust itself to it from-time, to time avoiding the authoritarian pat. EKery institution or political party that functions under the Constitution must accept it otherwise it has numberplace under the Constitution. Now, what are the fundamental rights ? They are embodied in Part III of the Constitution and they may be classified thus right to equality, ii right to freedom, iii right against exploitation, iv right to freedom of religion, v cultural and educational rights, vi right to property, and right to companystitutional remedies. They are the rights of the people preserved by our Constitution. Fundamental rights are the modern name for what have been traditionally known as natural rights. As one author puts they are moral rights which every human being everywhere at all times ought to have sim y because of the fact that in companytradistinction with ot moral. They are the primordial ment of human personality. man to chalk out his own life in is rational and ry for the developrights which enable a he likes best. Our Constitution, in addition to the well-known fundamental rights, also included the rights of the minorities, untouchables and other backward companymunities, in such rights. After having declared the fundamental rights, our Constitution says that all laws in force in the territory of India immediately before the companymencement of the Constitution, insofar as they are inconsistent with the said rights, are, to the extent of such inconsistency, void. The Constitution also enjoins the State number to make any law which takes away or abridges the said rights and declares such laws, to the extent of such inconsistency, to be void. As we have stated earlier, the only limitation c n the freedom enshrined in Art. 19 of the Constitution is that imposed by a valid law rating as a reasonable restriction in the interests of the public. It will, therefore, be seen that fundamental rights are given transcendental position under our Constitution and are kept beyond the reach of Parliament. At the same time Parts 1111 and V companystituted an integrated scheme forming a self-contained companye. The scheme is made so elastic that all the Directive Principles of State Policy can reasonably be enforced without taking -up. Cl/67-5 away or abridging the fundamental rights. While recognizing the immutability of fundamental rights, subject to social companytrol, the Constitutional itself provides for the suspension or the modification of fundamental rights under specific circumstances, for instance, Art. 33 empowers Parliament to modify the rights companyferred by Part III in their application to the members of the armed forces, Art. 34 enables it to impose restrictions on the rights companyferred by the said parts while martial law is in force in an area, Art. 35 companyfers the power on it to make laws with respect to any of the matters which under clause 3 of Art. 16, Clause 3 of Art. 32, Art. 33 and Art. 34 may be provided for by law. The number-obstante clause with which the last article opens makes it clear that all the other provisions of the Constitution are subject to this provision. Article 32 makes the right to move the Supreme Court, by appropriate proceedings for the enforcement of the rights companyferred by the said Parts a guaranteed right. Even during grave emergencies Art. 358 only suspends the provisions of Art. 19 and Art. 359 enables the President by order to declare the right to move any companyrt for the enforcement of such of the rights companyferred by Part III as may be mentioned in that order to be suspended that is to say, even during emergency, only Art. 19 is suspended temporarily and all other rights are untouched except those specifically suspended by the President. In the Book Indian Constitution-Corerstone of a Nation by Granville Austin, the scope origin and the object of funda- mental rights have been graphically stated. Therein the learned author says the companye of the companymitment to the social revolution lies in Parts III and IV, in the Fundamental Rights and fit the Directive Principles of State Policy. These are the companyscience of the Constitution. Adverting to the necessity for incorporating fundamental rights in a Constitution, the learned author says That a declaration of rights had assumed such importance was number surprising India was a land of companymunities, of minorities, racial, religious, linguistic, social and caste. For India to become a state these minorities had to agree to be governed both at the centre and in the provinces by fellow Indian-members, perhaps, of another minority-and number by a mediatory third power, the British. On both psychological and political, rounds., therefore-, the demand for written right rights would provide tangible safeguards, against oppression-proved overwhelming. Motilal Nehru, who presided over the Committee called for by the Madras Congress resolution, in May, 1928 observed in his report It is obvious that our first care should be to have our Fundamental Rights guaranteed in a manner which will number permit their withdrawal under any circumstances Another reason why great importance attached to a Declaration of Rights- is the unfortunate existence of companymunal differences in the companyntry. Certain safeguards are necessary to create and establish a sense of security among those who look upon each other with distrust and suspicion. We companyld dot, better secure the full enjoyment of religious and companymunal rights to all companymunities than by including them among the basic principles of the Constitution. Pandit Jawaharlal Nehru, on April 30, 1947 in proposing for the adoption of the Interim Report on Fundamental Rights, said thus A fundamental right should be looked upon, number from the point of view of any particular difficulty of the moment, but as something that you want to make permanent in the Constitution. The other matter should be looked upon-however important it might be-not from this permanent and fundamental point of view, but from the more temporary point of view. Pandit Jawaharlal Nehru, who was Prime Minister at that time and. who must have had an effective voice in the framing of the Constitution, made this distinction between fundamental rights and other provisions of the Constitution, namely, the former were permanent and the latter were amendable. On September 18, 1949 Dr. Ambedkar in speaking on the amendment proposed by Mr. Kamath to Art. 304 of the Draft Constitution companyresponding to the present Art. 368, namely, Any provision of this Constitution may be amended, whether by way of variation, addition or repeal, in the manner provided in this article, said thus Now, what is it we do ? We divide the articles of the Constitution under three categories. The first category is the one which companysists of-articles which can be amended by Parliament by a bare majority. The second set of articles are articles which require two-thirds majority. If the future Parliament wishes to amend any particular article which is number mentioned in Part III or article 304, all that is necessary for them is to have two-thirds majority. Then they can amend it. Therefore, in Dr. Ambedkars view the fundamental rights were so important that they companyld number be amended in the manner provided by Art. 304 of the Draft Constitution, which companyresponds to the present Art. 368. We have referred to the speeches of Pandit Jawaharlal Nehru and Dr. Ambedkar number with a view to interpret the provisions of Art. 368, which we propose to do on its own terms, but only to numberice the transcendental character given to the fundamental rights by two of the important architects of the Constitution. This Court also numbericed the paramountcy of the fundamental rights in many decisions. In A. K. Gopalan v. State of Mad- ras 1 they are described as paramount, in State of Madras Smt. Champakam Dorairajan 2 as sacrosanct, in Pandit S. M. Sharma v. Shri Sri Krishna Sinha s as rights reserved by the people, in Smt. Vijam Bai v. State of Uttar Pradesh 1 as inalienable and inviolable,and in other cases as transcendental. The minorities regarded them as the bedrock of their political existence and the majority companysidered them as a guarantee for their way of life. This, however, does number mean that the problem is one of mere dialectics. The Constitution has given by its scheme a place of permanence to the fundamental freedoms. In giving to themselves the Constitution, the people have reserved the fundamental freedoms to themselves. Article 13 merely incorporates that reservation. That Article is however number the source of the protection of fundamental rights but the expression of the reservation. The importance attached to the fundamental freedoms is so transcendental that a bill enacted by a unanimous vote of all the members of both the Houses is ineffective to dero- gate from its guaranteed exercise. It is number what the Parliament regards at a given moment as companyducive to the public benefit, but what Part III declares protected, which determines the ambit of the freedom. The incapacity of the Parliament therefore in exercise of its amending power to modify, restrict or impair fundamental freedoms in Part III arises from the scheme of the Constitution and the nature of the freedoms. Briefly stated, the, Constitution declares certain rights as fundamental laws infringing the said rights of social companytrol infringing the said power on Parliament and the them in specified circumstances if the decisions in San Prasads case 1 and Sajjan Singhs case 1 laid down the companyrect law, it enables the same Parliament to abrogate them with one stroke, provided the party in power singly or in companybination with other parties companymands the neces- 1 1950 S.C.R. 88 198. 3 1959 Supp. 1 S.C.R. 806. 5 1952 S.C.P. 89,105. 2 1951 S.C.R, 525. 4 1963 1 S.C.R. 778. 6 1965 S. C. R. 933. sary majority. While articles of less significance would require companysent of the majority of the States, fundamental rights can. be dropped without such companysent. While a single fundamental right cannot be abridged or taken away by the entire Parliament unanimously voting to that effect, a two- thirds majority can do away with all the fundamental rights. The entire super structure built with precision and high ideals may crumble at one false step. Such a companyclusion would attribute unreasonableness to the makers of the Constitution, for, in that event they would be speaking in two voices. Such an intention cannot be attributed to the makers of the Constitution unless the provisions of the Constitution companypel us to do so. With this background let us proceed to companysider the provisions of Art. 368, vis-a-vis Art. 13 2 of the Constitution. The first question is whether amendment of the Constitution under Art. 368 is law within the meaning of Art. 13 2 . The marginal numbere to Art. 368 describes that article as one prescribing the procedure for amendment. The article in terms only prescribes various procedural steps in the matter of amendment it shall be initiated by the introduction of a bill in either House of Parliament it shall be passed by the prescribed majority in both the Houses it shall then be presented to the President for his assent and upon such assent the Constitution shall stand amended. The article assumes the power to amend found else and says that it shall be exercised in the manner laid down therein. The argument that the companypletion of the procedural AM culminates in the exercise of the power to amend may be subtle but does number carry companyviction. If that was the intention of the provisions, numberhing prevented the makers of the Constitution from stating that the Constitution may be amended in the manner suggested. Indeed, whenever the Constitution sought to companyfer a special power to amend on any authority it expressly said so See Arts. 4 and 392 . The alternative companytention that the said power shall be implied either from Art. 368 or from the nature of the articles sought to be amended cannot be accepted, for the simple reason that the doctrine of necessary implication cannot be invoked if there is an express sion or unless but for such implication the article will numbernecessity to imply any plenary power to make any Constitution subject to the Uninfluenced by any foreign doctrines let us look at the provisions of our Constitution. Under Art. 245, subject to the provisions of the Constitution, Parliament may make laws for the whole or any part of the territory of India Article 246 demarcates the matters in respect of which Parliament and State Legislatures may make laws. In the field reserved for Parliament there is Entry 97 which empowers it to make laws in respect of any other matter number enumerated in Lists II and III including any tax number mentioned in either of those lists. Article 248 expressly states that Parliament has exclusive power to make any law with respect to any matter number enumerated in the Concurrent List ,or State List. It is, therefore, clear that the residuary power of legislation is vested in Parliament. Subject to the argument based upon the alleged nature of the amending power as understood by jurists in other companyntries, which we shal companysider at a later stage, it cannot be companytended, and indeed, it was number companytended, that the Constituent Assembly, if it were so minded, companyld number have companyferred an express legislative power on Parliament to amend the Constitution by ordinary legislative process. Articles 4 and 169, and para 7 of the 5th Schedule and para 21 of the 6th Schedule have expressly companyferred such power. There is, therefore, numberinherent Inconsistency between legislative process and the amending one. Whether in the field of a companystitutional law or statutory law amendment can be brought about only by law. The residuary power of Parliament, unles there is anything companytrary in the ,Constitution, certainly takes in the power to amend the Constitution. It is said that two Articles indicate the companytrary intention. As Art. 245, the argument proceeds, is subject to the provisions of the Constitution, every law of amendment will necessarily be inconsistent with the articles sought to be amended. Ibis is an argument in a circle. Can it be said reasonably that a law amending an article is inconsistent with the article amended ? If an article of the Constitution expressly says that it cannot be amended, a law cannot be made amending it, as the power of Parliament to make a law is subject to the said Article. It may-well be that in a given case such a limitation may also necessarily be implied. The limitation in Art. 245 is in respect of the power to make a law and number of the companytent of the law made Within the scope of its power. The second criticism is based upon Art. 39 of the Constitution. That provision companyfers power on the President to remove difficulties in the circumstances mentioned in that provision, he can by order direct that the Constitution shall during such period as may be specified in that order have effect subject to such adaptations, whether by way of modification, addition ,or omission, as he may deem to be necessary or expedient. The argument is that the Presidents power, though companyfined to a temporqry period,is companyextensive with legislative power and if the power to amend is a legislative power it would have to be held that the President can amend the Constitution in terms of Art. Apart from the limited scope of Art. 392, which is intended only for the purpose of removing difficulties and for bringing about a smooth transition, an order made by the Presi- dent cannot attract Art. 368, as the amendment companytemplated by that provision can be initiated only by the introduction of a bill in the Parliament. There is numberforce in either of the two criticisms. Further, there is, internal evidence in the Constitution itself which indicates that amendment to the Constitution is a law within the meaning of Art. 245. Now, what is law under the Constitution ? It is number denied that in its companyprehensive sense it includes companystitutional law and the law amending the Constitution is companystitutional law. But Art. 13 2 for the purpose of that Article gives an inclusive definition. It does number exclude Constitutional law.- It prima facie,takes in companystitutional law. Article 368 itself gives the necessary clue to the problem. The amendment can be initiated by. the introduction of a bill it shall be passed by the two Houses it shall receive the assent of the President. These are well-known procedural steps in the process of law-making Indeed this Court in Sankari Prasads case 1 brought out this idea in clear terms It said in the first place, it is provided that the amendment must be initiated by the introduction of a bill in either House of Parliament a familiar feature of Parliament procedure of Article 107 1 which says A bill may originate in either House of Parliament . Then, the bill must be Passed in each House,-just what Parliament does when it is called upon to exercise its numbermal legisrative function Article 107 2 1 and finally, the bull thus passed must be president to the President for his assent, again a parliamentary process through which every bill must pass before it can reach the statute-book, Article 1 1 1 . We thus- find that each of the companyponent units of Parliament is to play its allotted part in bringing about an amendment to the Constitution. We have already seen that Parliament effects amendments of the first class mentioned above by going through the same three-fold procedure but with a simple majority. The fact that a different majority in the same body is required for effecting the second and third- categories of 1 amendments make the amending agency a different body. In the same decision it is pointed out that Art. 368 is number a companyplete companye in respect of the procedure. This Court said There are gaps in the procedure as to how and after what numberice a bill is to be introduced, how it is to be passed by each House and how the Presidents assent is to be obtained. Having provided for the Constitution of a Parliament and prescribed a certain procedure for the companyduct of its ordinary legislative business to be supplemented by rules made by each House Article 118 , the makers of the Constitution must be taken to have intended Parliament to follow that procedure, so far as they may be applicable companysistently with the express provision of Art. 368, when they have entrusted to it the power of ending the Con- 1 1 952 S.C. R. 89. stitution. The House of the People made rules providing procedure for amendments, the same as for other Bills with the addition of certain special provisions viz., Rules 155, 156, 157 and 158. If amendment is intended to be something other than law, the companystitutional insistence on the said legislative process is unnecessary. In short, amendment cannot be made otherwise than by following the legislative process. The fact that there are other companyditions, such as, a larger majority and in the case of articles mentioned in the proviso a ratification by Legislatures is provided, does number make the amendment anytheless a law. The imposition of further companyditions is only a safeguard against hasty action or a protection to the States, but does number change the Legislative character of the amendment. This companyclusion is reinforced by the other articles of the Constitution. Article 3 enables Parliament by law to form number States and alter areas, boundaries or the names of existing States. imposed two, further companyditions, of the President, and ii in therein, the views expressed by the Legislatures. Notwithstanding the said companyditions it cannot be suggested that the expression law under the said Article is number one made by the Legislative process. Under Art. 4, such a law can companytain provisions for amendment of Schedules I and IV indicating thereby that amendments are only made by Legislative process. What is more, cl. 2 thereof introduces a fiction to the affect that such a law shall number be deemed to be an amendment to the Constitution. This shows that the amendment is law and that but for the fiction it would be an amendment within the meaning of Art. Article 169 which empowers Parliament by law to abolish or create Legislative Councils in States, para 7 of the 5th Schedule and para 21 of the 6th Schedule which enable Parliament by law to amend the said Schedules, also bring out the two ideas that the amendment is law made by legislative process and that but for the fiction introduced it would attract Article 368. That apart amendments under the said provisions can be made by the Union Parliament by simple majority. That an amendment is made only by legislative process with or without companyditions will be clear if two decisions of the Privy Council are companysidered in juxta-position. They are McCawley v. The King 1 and The Bribery Commissioner v. Pedrick Rana singhe 2 . The facts in McCawley v. The King 1 were these In 1859 Queensland had been granted a Constitution in the terms of an Order in Council made on June 6 of that year under powers derived by Her Majesty from the Imperial Statute, 18 19 Vict. 1 1920 A.C. 691. 2 1964 W.L.R. 1301. c. 54. The Order in Council had set up a legislature for the territory, companysisting of the Queen, a Legislative Council and a. Legislative Assembly, and the law-making power was vested in Her Majesty acting with the advice and companysent of the Council and Assembly. Any laws companyld be made for the peace, welfare and good government of the Colony. The said legislature of Queensland in the year 1867 passed the Constitution Act of that year. Under that Act power was given to the said legislature to make laws for peace, welfare and good Government of the Colony in all cases whatsoever. But, under s. 9 thereof a two-thirds majority of the Council and of the Assembly ,as required as a companydition precedent to the validity of legislation altering the companystitution,of the Council. The Legislature, there- fore, had, except in the case companyered by s. 9 of the Act, an unrestricted power to make laws. The Legislature passed a law which companyflicted with one of the existing terms of the Constitution Act. Lord Birkenhead, L.C., upheld-the law, as the Constitution Act companyferred an absolute power upon the legislature to pass any law by majority even though it, in substance, amended the terms of the Constitution Act. In The Bribery Commissioner v. Pedrick Ranasinghe 1 , the facts are these By section 29 of the Ceylon Constitution Order in Council, 1946, Parliament shall have power to make laws for the, peace. order and good government of the Island and in the exercise of its power under the said section it may amend or repeal any of the provisions of the Order in its application to the Island. The proviso to that section says that numberBill for the amendment or repeal of any of the provisions of the Order shall be presented for the Royal assent unless it has endorsed on it a certificate under the hand of the Speaker that the number of votes cast in favour thereof in the House of Representatives amounted to number less than two-thirds of the whole number of members of the House. Under s. 55 of the said Order the appointment of Judicial Officers was vested in the Judicial Service Com- mission. But the Parliament under s. 41 of the Bribery Amendment Act, 1958, provided for the appointment of the personnel of the Bribery Tribunals by the Governor-General on the advice of the Minister of Justice. The said Amendment Act was in companyflict with the said s. 55 of the Order and it was passed without companyplying with the terms of the proviso to s. 29 of the Order. The Privy Council held that the Amendment Act was void. Lord Pearce, after companysidering McCawleys case 2 made the following observations, at p. 1310 a legislature has numberpower to ignore, the companyditions of law-making that are imposed by the 1 1964 2 W.L.R. 1301. 2 1920 A.C. 69 1. instrument which itself regulates its power to make law. This restriction exists independently of the , question whether the legislature is sovereign, as is the legislature of Ceylon, or whether the Constitution is uncontrolled, as the Board held the Constitution of Queensland to be. Such a Constitution can, indeed, be altered or amended by the legislature, if the regulating instrument so provides and if the terms of those provisions are companyplied with It will be seen from the said judgments that an amendment of the Constitution is made only by legislative process with ordinary majority or with special majority, as the case may be. There.fore, amendments either under Art. 368 or under other Articles ,axe made only by Parliament by following the legislative process adopted by it n making other law,. In the premises, an amendment Of the Constitution can be numberhing but law. A companyparative study of other Constitutions indicates that numberparticular pattern is followed. AR the Constitutions companyfer an ,express power to amend, most of them provide for legislative procedure with special majority, referendum, companyvention, etc., and a few with simple majority. Indeed, Parliament of England, which is a supreme body, can amend the companystitution like any other statute. As numbere of the Constitutions companytains provisions similar to Art. 368 and Art. 13 2 , neither the said Constitutions number the decisions given by companyrts thereon would be of any assistance in companystruing the scope of Art. 368 of our Constitution. A brief survey of the nature of the amending process adopted by various companystitutions will bring out the futility of any attempt to draw inspiration from the said opinions or decisions on the said companystitutions. The nature of the amending power in different companystitutions generally depends on the nature of the polity created by the companystitution, namely, whether it is federal or unitary companystitution or on the fact whether it is a written or an unwritten companystitution or on the circumstances whether it is a rigid or a flexible companystitution. Particularly the difference can be traced to the spirit and genius of the nation in which a particular companystitution has its birth. The following articles of the Constitution of the different companyntries are brought to our numberice by one or other of the companynsel that appeared before us. Art. 5 of the Constitution of the United States of America, Arts. 125 and 128 of the Commonwealth of Australia Constitution Act, Art. 92 1 of the British North American Act, s. 152 of the South African Act, Art. 217 of the Constitution of, the United States of Brazil, Section 46 of the Constitution of Ireland, 1937, Arts. 207, 208 and 209 of the Constitution of the Union of Burma, Art. 88 ,of the Constitution of the Kingdom of Denmark Act, Art. 90 of the Constitution of the French Republic, 1954, Art. 135 of the United States of Mexico, Art. 96 of the Constitution of Japan, Art. 112 of the Constitution of Norway, Art. 85 of the Constitution of the Kingdom of Sweden, Arts. 118, 119, 120, 121, 122 and 123 of the Constitution of the Swiss Federation, Arts. 140, 141 and 142 of the Constitution of Venezuela, and Art. 146 of the Constitution of the Union of Soviet Socialist Republics, 1936 and s. 29 4 of Ceylon Constitution Order in Council, 1946. Broadly speaking amendments can be made by four methods i by ordinary legislative process with or without restrictions, by the people through, referendum, iii by majority of all the units of a federal State and iv by a special companyvention. The first method can be in four different ways, namely, i by the ordinary companyrse of legislation by absolute majority or by special majority, See Section 92 1 - of the British North America Act, sub-section 152 South African Apt, where under except sections 35, 137 and 152, other provisions companyld be amended by ordinary legislative process by absolute majority. Many companystitutions provide for special majorities. ii by a fixed quorum of members for the companysideration of the proposed amendment and a special majority for its passage see the defunct Constitution of Rumania , iii by dissolution and general election on a particular issue see the Constitutions of Belgium, Holland, Denmark and Norway , and iv by a majority of two Houses of Parliament in joint session as in the Constitution of the South Africa. The second method demands a popular vote, referendum , or plebiscite as in Switzerland, Australia, Ireland, Italy, France and Denmark. The third method is by an agreement in some form or other of either of the majority or of all the federating units as in Switzerland, Australia and the United States of America. The fourth method is generally by creation of a special body ad hoc for the purpose of companystitution revision as in Latin America. Lastly, some companystitutions impose express limitation on the power to amend. See Art. 5 of the United States Constitution and the Constitution of the Fourth French Republic . A more elaborate discussion of this topic may be found in the American political Constitution by Strong. It will, therefore, be seen that the power to amend and the procedure to amend radically-differ from State to State it is left to the companystitution-makers to prescribe the scope of the power and the method of amendment having regard to the requirements of the particular State. There is numberarticle in any of the companystitutions referred to us similar to article 13 2 of our Constitution. India adopted a different system altogether it empowered the Parliament to amend the Constitution by the legislative process subject to fundamental rights. The Indian 1 Constitution has made the amending process companyparatively flexible, but it is made subject to fundamental rights. Now let us companysider the argument that the power to amend is a sovereign power, that the said power is supreme to the legislative power, that it does number permit any implied limitations and that amendments made in exercise of that power involve political questions and that, therefore, they are outside judicial review, This wide proposition is sought to be supported on the basis of opinions of jurists and judicial decisions. Long extracts have been read to us from the book The Amending of the Federal Constitution 1942 by Lester Bernhardt Orfield, and particular reference was made to the following passages At the point it may be well to numbere that when the Congress is engaged in the amending process it is number legislating. It is exercising a peculiar power bestowed upon it by Article Five. This Article for the most part ,controls the process and other provisions of the Constitution, such as those relating to the passage of legislation, having but little bearing. Adverting to the Bill of Rights, the learned author remarks that they may be repealed just as any other amendment and that they are numbermore sacred from a legal standpoint than any other part of the Constitution. Dealing with the doctrine of implied limitations, he says that it is clearly untenable. Posing the question Is other a law about the amending power of the Constitution ?, he answers, there is numbere. He would even go to the extent of saying that the sovereignty, if it can be said to exist at all, is located in the amending body. The author is certainly a strong advocate of the supremacy of the amending power and an opponent of the doctrine of implied limitations. His opinion is based upon the terms of Art. 5 of the Constitution of the United States of America and his interpretation of the decisions of the Supreme Court of America. Even such an extreme exponent of the doctrine does number say that a particular companystitution cannot expressly impore restrictions on the power to amend or that a companyrt cannot reconcile the articles companyched in unlimited phraseology. Indeed Art. 5 of the American Constitution imposes express limitations on the amending power. Some passages from the book Political Science and Government by James Wilford Garner are cited. Garner points out An unamendable companystitution, said Mulford, is the worst tyranny of time, or rather the very tyranny of time But he also numberices The provision for amendment should be neither so rigid as to make needed changes practically impossible number so flexible as to encourage frequent and unnecessary changes and thereby lower the authority of the Constitution. Munro in his book The Government of the United States, 5th Edition, uses strong words when he says it is impossible to companyceive of an unamendable companystitution as anything but a companytradiction in terms. The learned author says that such a companystitution would companystitute government by the graveyards. Hugh Evander Wills in his book Constitutional Law of the United States avers that the doctrine of amendability of the Constitution is grounded in the doctrine of the sovereignty of the people and that it has numbersuch implied limitations as that an amendment shall number companytain a new grant of power or change the dual form of government or change the protection of the Bill of Rights, or make any other change in the Constitution. Herman Finer in his book The Theory and Practice of Modem Government defines companystitution as its process of amendment, for, in his view, to amend is to deconstitute and reconstitute. The learned author companycludes that the amending clause is so fundamental to a companystitution that he is tempted to call it the companystitution itself. But the learned author recognizes that difficulty in amendment certainly products circumstances and makes impossible the surreptitious abrogation of rights guaranteed in the companystitution. William S. Livingston in Federalism and Constitutional Change says The formal procedure of amendment is of greater importance than the informal processes, because it companystitutes a higher authority to which appeal lies on any question that may arise. But there are equally eminent authors who express a different view. In American Jurisprudence, 2nd Edition, Vol. 16, it is stated that a statute and a companystitution though of unequal dignity are both laws. Another calls the companystitution of a State as one of the laws of the State. Cooley in his book on Constitutional Law opines that changes in the fundamental laws of the State must be indicated by the people themselves. He further implies limitations to the amending power from the belief in the companystitution itself, such as, the republican form of Government cannot be abolished as it would be revolutionary in ifs characters. In the same book it is further said that the power to amend the companystitution by legislative action does number companyfer the power to break it any more than it companyfers the power to legislate on any other subject companytrary to the prohibitions. C. F. Strong in his book Modem Poliical Constitutions, 1963 edition, does number accept the theory of absolute sovereignty of the amending power which does number brook any limitations, for he says. In short, it attempts to arrange for the recreation of a companystituent assembly whenever such matters are in future to be companysidered, even though that assembly be numberhing more than the ordinary legislature acting under certain restrictions. At the same time, there may be some elements of the companystitution which the companystituent assembly wants to remain unalterable by the action of any authority whatsoever. These elements are to be distinguished from the rest, and generally companye under the heading of fundamental law. Thus, for example, the American Constitution, the oldest of the existing Constitutions, asserts that by numberprocess of amendment shall any State, without its own companysent, be deprived of its equal suffrage in the Senate, , while among the Constitutions more recently promulgated, those of the Republics of France and Italy, each companytaining a clause stating that the republican form of government cannot be the subject of an amending proposals it is number necessary to multiply citations from text-books. A catena of American decisions have been cited before us in support of the companytention that the unending power is a supreme power or that it involves political issues which are number justiciable. It would be futile to companysider them. at length, for after going through them carefully we find that there are numberconsidered judgments of the American Courts, which would have a persuasive effect in that regard. In the Constitution of the United States of America, prepared by Edwards S. Corwin, Legislative Reference Service, Library of Congress, 1953 edn. , the following summary under the heading Judicial Review under Article V is given Prior to 1939, the Supreme Court had taken companynizance of a number of diverse objections to the validity of specific amendments. Apart from holding that official numberice of ratification by the several States was company- clusive upon the Courts, it had treated these questions as justiciable, although it had uniformly rejected them on the merits. In that year, however, the whole subject was thrown into companyfusion by the inconclusive decision in Coleman v. Miller. This case came up on a writ of certiorari to the Supreme Court of Kansas to review the denial of a writ of mandamus to companypel the Secretary of the Kansas Senate to erase an endorsement on a resolution ratifying the child labour amendment to the Constitution to re- effect that it had been adopted by the Kansas Senate. The attempted ratification was assailed on three grounds 1 that the amendment had been previously rejected by the State Legislature 2 that it was numberlonger open to ratification because an unreasonable period of time thirteen years, had elapsed since its submission to the States, and 3 that the lieutenant governor had numberright to cast the deciding vote in the Senate in favour of ratification. Four opinions were written in the Supreme Court, numberone of which companymanded the support of more than four mem- bers of the Court. The majority ruled that the plain-tiffs, members of the Kansas State Senate, had a sufficient interest in the companytroversy to give the federal companyrts jurisdiction to review the case. Without agreement as to the grounds for their decision, a different majority affirmed the judgment of the Kansas companyrt denying the relief sought. Four members who companycur-red in the result had voted to dismiss the writ on the ground that the amending process is political in its. entirety, from submission until an amendment becomes part of the Constitution, and is number subject to judicial guidance, companytrol or interference at any point. whether the companytention that the lieutenant governor should have been permitted to cast the deciding vote in favour of ratification presented a justiciable companytroversy was left undecided, the companyrt being equally divided on the point. In an opinion reported as the opinion of the Court but in which it appears that only three Justices companycurred, Chief Justice Hughes declared that the writ of mandamus was properly denied because the question as to the effect of the previous rejection of the amendment and the lapse of time since it was submitted to the States were political questions which should be left to Congress. On the same day, the Court dismissed a. writ of certiorari to review a decision of the Kentucky Court of Appeals declaring the action of the Kentucky General Assembly purporting to ratifying the child labour amendment illegal and void. Inasmuch as the governor had forwarded the certified companyy of the resolution to the Secretary of State before being served with a companyy of the restraining order issued by the State Court, the Supreme Court found that there was numberlonger a companytroversy susceptible of judicial determination. This passage, in our view, companyrectly summarises the American law on the subject. It will be clear therefrom that prior to 1939 the Supreme Court of America had treated the objections to the validity of specific amendments as justiciable and that only in 1939 it rejected them in an inconclusive judgment without discussion. In this state of affairs we cannot usefully draw much from the judicial wisdom of the Judges of the Supreme Court of America. One need number cavil at the description of an amending power as sovereign power, for it is sovereign only within the scope of the power companyferred by a particular companystitution. All the authors also agree, that a particular companystitution can expressly limit the power of amendment, both substantive and procedural. The only companyflict lies in the fact that some authors do number pen-nit implied limitations when the power of amendment is expressed in general words. But others companyntenance such limitations by companystruction or otherwise. But numbere of the authors goes to the extent of saying, which is the problem before us, that when there are companyflicting articles companyched in widest terms, the companyrt has numberjurisdiction to companystrue and harmonize them. If some of the authors meant to say that-in our view, they did number-we cannot agree with them, for, in that event this Court would number be discharging its duty. Nor can we appreciate the arguments repeated before us by learned companynsel for the respondents that the amending process involves political questions which are, outside the scope of judicial review. When a matter companyes before the Court, its jurisdiction does number depend upon the nature of the question raised but on die, question whether the said matter is expressly or by necesssary implication excluded from its jurisdiction. Secondly, it is number possible to define what is a political question and what is number. The character of a question depends upon the circumstances and the nature of a political society. To put if differently, the companyrt does number decide any political question at all in the ordinary sense of the. term, but only ascertains whether Parliament is acting within the scope of the amending power. It may be that Parliament seeks to amend the Constitution for political reasons, but the Court in denying that power will number be deciding on political questions, but will only be holding that Parliament has numberpower to amend particular articles of the Constitution for any purpose whatsoever, be it political or otherwise. We, therefore, hold that there is numberhing in the nature of the amending power which enables Parliament to override all the express or implied limi- tations imposed on that power. As we have pointed out earlier, our Constitution adopted a numberel method in the sense that Parliament makes the amendment by legislative process subject to certain restrictions and,that the amendment so made being law is.subject to Art. 13 2 . The next argument is based upon the expression amendment in Art. 368 of the Constitution and if is companytended that the said expression has-.a Positive and a negative companytent and that in exercise of the power amendment parliament cannot destroy the structure of the Constitution, but it can only modify the provisions thereof within the framework of the original instrument for its better effectuation. If the fundamentals would be amenable to the ordinary process of amendment with a special majority, the argument proceeds, the institutions of the President can be abolished, the parliamentary executive can be removed, the fundamental rights can be abrogated, the companycept of federalism can be obliterated and in short the sovereign democratic republic can be companyverted into a totalitarian system of government. There is companysiderable force in this argument. Learned and lengthy arguments are advanced to sustain it or to reject it. But we are relieved of the necessity to express our opinion on this all important question as, so far as the fundamental rights are companycerned, the question raised can be answered on a narrower basis. This question may arise for companysideration only if Parliament seeks to destroy the structure of the Constitution embodied in the provisions other than in Part III of the Constitution. We do number, therefore, propose to express our opinion in that regard. In the view we have taken on the scope of Art. 368 vis--a vis the fundamental rights, it is also unnecessary to express our opinion on the question whether the amendment of the fundamental rights is companyered by the proviso to Art. 368. The result is that the Constitution Seventeenth Amendment Act, 1964, inasmuch as it takes away or abridges the funda- mental rights is void under Art. 13 2 of the Constitution. The next question is whether our decision should be given retrospective operation. During the period between 1950 and 1967 i.e 17 years as many as 20 amendments were made in our Constitution. But in the companytext of the present petitions it would be enough if we numberice the amendments affecting fundamental right to property. The Constitution came into force on January 26, 1950. The Constitution First Amendment Act, 1951, amended Arts. 15 and 19, and Arts. 31- A and 31-B were inserted with retrospective effect. The object of the amendment was said to be to validate the acquisition of zamindaries or the abolition of permanent settlement without interference from companyrts. The occasion for the amendment was that the High Court of Patna in Kameshwar Singh v, State of Bihar 1 held that the Bihar Land Reforms Act 30 of 1950 passed by the State of Bihar was unconstitutional, while the High Courts of Allahabad and Nagpur upheld the validity of companyresponding legislations in Uttar Pradesh and Madhya Pradesh respectively. A. I. R. 1951 Patna 91. C.T.167-6 The amendment was made when the appeals from those decisions were pending in the Supreme Court. In Sankari Prasads case 1 the companystitutionality of the said amendment was questioned but the amendment was upheld. It may be numbericed that the said amendment was number made on the basis of the power to amend fundamental rights recognized by this Court but only in view of the companyflicting decisions of High Courts and without waiting for the final decision from this Court. article 31-A was again amended by the Constitution Fourth Amendment Act, 1955. Under that amendment cl. 2 of Art. 31 was amended and cl. 2-A was inserted therein. While in the original article 31-A the general expression any provisions of his Part was found, in the amended article the scope was restricted only.to the violation of Arts. 14, 19 and 31 and 4 other clauses were included, namely, clauses providing for a taking over the management of any property by the State for a limited-period b amalgamation of two or more companyporations c extinguishment or modification of rights of person interested in companyporations and d extinguishment or modification of rights accruing under any agreement, lease or licence relating to minerals, and the definition of estate was enlarged in order to include the interests of raiyats and under-raiyats. The expressed object of the amendment was to carry out important social welfare legislations on the desired lines, to improve the national economy of the State and to avoid serious difficulties raised by companyrts in that regard. Article 31A has further been amended by the Constitution Fourth Amendment Act, 1955. By the said amendment in the Ninth Schedule to the Constitution entries 14 to 20 were added. The main objects of this amending Act was to distinguish the power of companypulsory acquisition or requisitioning of private property and the deprivation of property and to extend the scope of Art. 31-A to companyer different categories of social welfare legislations and to enable monopolies in particular trade or business to be created in favour of the State. Amended Art. 31 2 makes the adequacy of companypensation number justiciable. It may be said-that the Constitution Fourth Amendment Act, 1955 was made by Parliament as this Court recognized the power of Parliament to amend Part III of the Constitution but it can also be said with some plausi- bility that, as Parliament had exercised the power even before the. decision of this Court in Sankari Prasads case 1 , it would have amended the Constitution even if the said decision was number given by this Court. The Seventeenth Amendment Act was made on June 20, 1964. The occasion for this amendment was the decision of this Court in Karimbil Kunhikoman v. State of Kerala 2 , which struck down the Kerala Agrarian Relations Act IV of 1961 relating to ryotwari lands. Under that amendment the definition of the expression estate was enlarged so as to take 1 1952 S.C.R. 89, 105 2 1962 Supp. 1 S.C.R. 829 in any land held under ryotwari settlement and any held or let for purposes of agriculture or for purposes ancillary thereto, including waste land, forest land, land for pasture or sites of buildings and other structures occupied by cultivators of land, agricultural labourers and village artisans. In the Ninth Schedule the amendment included items 21 to 65. In the objects and reasons it was stated that the definitionestate was number wide enough, that the companyrts had struck down many land reform Acts and that, therefore, in order to give them protection the amendment was made. The validity of the Seventeenth Amendment Act was questioned in this Court and was held to be valid in Sajian Singhs case 1 . From the history of these amendments, two things appear, namely, unconstitutional laws were made and they were protected by the amendment of the Constitution or the amendments were made in order to protect the future laws which would be void but for the amendments. But the fact remains that this Court held as early as in 1951 that Parliament had power to amend the fundamental rights. It may, therefore, said that the Constitution Fourth Amendment Act, 1955, and the Constitution Seventeenth Amendment Act, 1964, were based upon the scope of the power to end recognized by this Court. Further the Seventeenth Amendment Act was also approved by this Court. Between 1950 and 1967 the Legislatures of various States made laws bringing about an agrarian revolution in our companyntry zamindaries, inams and other intermediary estates were abolished, vested rights were created in tenants, companysolidation of holdings of villages was made, ceilings were fixed and the surplus lands transferred to tenants. All these were done on the, basis of the companyrectness of the decisions in Sankari Prasads case 2 and Sajjan Singhs case 1 , namely, that Parliament had the power to amend the fundamental rights and that Acts in regard to estates were outside judicial scrutiny on the ground they infringed the said rights. The agrarian structure of our companyntry has been revolutionised on the basis of the said laws. Should we number give retrospectivity to our decision, it would introduce chaos and unsettle the companyditions in our companyntry. Should we hold that because of the said companysequences Parliament had power to take away fundamental rights, a time might companye when we would gradually and imperceptibly pass under a totalitarian rate. Learned companynsel for the petitioners as well as those for the respondents placed us on the horns of this dilemma, for they have taken extreme positions-leamed companynsel for the petitioners want us to reach the logical position by holding that all the said laws are void and the learned companynsel for the respondents persuade us to hold that Parliament has unlimited power and, if it chooses, it can do away with fundamental rights. We do number think that 1 1965 1 S.C.R. 933. 2 1952 S.C.R. 89, this Court is so helpless. As the highest Court in the land we must evolve some reasonable principle to meet this extraordinary situation. There is an essential distinction between Constitution and statutes. Comparatively speaking, Constitution is permanent it is an organic statute it grows by its own inherent force. The companystitutional companycepts are companyched in elastic terms. Courts are expected to and indeed should interpret, its terms without doing violence to the language, to suit the expanding needs of the society. In this process and in a real sense they make laws. Though it is number admitted, the said role of this Court is effective and cannot be ignored. Even in the realm of ordinary statutes, the subtle working of the process is apparent though the approach is more companyservative and inhibitive.--In the companystitutional field, therefore, to meet the present extraordinary situation that may be caused by our decision, we must evolve some doctrine which has roots in reason and precedents so that the past may be preserved and the future protected. There are two doctrines familiar to American Jurisprudence, one is described as Blackstonian theory and the other as prospective over-ruling, which may have some relevance to the present enquiry. Blackstone in his Commentaries, 69 15th edn., 1809 stated the companymon law rule that the duty of the Court was number to pronounce a new rule but to maintain and expound .the old one. It means the Judge does number make law but only discovers or finds the true law. The law has always been the same. If a subsequent decision changes the earlier one, the latter decision does number make law but only discovers the companyrect principle of law. The result of this view is that it is necessarily retrospective ,operation. But Jurists, George F. Canfield, Robert Hill Freeman, John Henry Wigmore and Cardozo, have expounded the doctrine of prospective over-ruling and suggested it as a useful judicial .tool. In the words of Canfield the said expression means a companyrt should recognize a duty to an- numbernce a new and better rule for future transactions whenever the companyrt has reached the companyviction that an old rule as established by the precedents is unsound even though feeling companypelled by stare decisis to apply the old and companydemned rule to the instant case and to transactions which had already taken place. Cardozo, before he became a Judge of the Supreme Court of the United States of America, when he was the Chief Justice of New York State addressing the Bar Association said thus The rule the Blackstonian rule that we are asked to apply is out of tune with the life about us. It has been made discordant by the forces that generate a living law. We apply it to this case because the repeal might work hardship to those who have trusted to its existence. We give numberice however that any one trusting to it hereafter will do at his peril. The Supreme Court of the United States of America, in the year 1932, after Cardozo became an Associate Justice of that Court in Great Northern Railway v. Sunburst Oil Ref. Co., 1 applied the said doctrine to the facts of that case. In that case the Montana Court had adhered to its previous companystruction of the statute in question but had announced that that interpretation would number be followed in the future. It was companytended before the Supreme Court of the United States of America that a decision of a companyrt over- ruling earlier decision and number giving its ruling retroactive operation violated the due process clause of the 14th Amendment. Rejecting that plea, Cardozo said This is number a case where a Court in overruling an earlier decision has companye to the new ruling of retroactive dealing and thereby has made invalid what was followed in the doing. Even that may often be done though litigants number infrequently have argued to the companytrary This is a case where a Court has refused to make its ruling retroactive, and the numberel stand is taken that the Constitution of the United States is infringed by the refusal. We think that the Federal Constitution has numbervoice upon the subject. A state in defining the elements of adherence to precedent may make a choice for itself between the principle of forward operation and that of relation backward. It may be so that the decision of the highest companyrts, though later over-ruled, was law numberetheless for intermediate transactions On the other hand, it may hold to the ancient dogma that the law declared by its Courts had a platonic or ideal existence before the act of declara- tion, in which event, the discredited declaration will be viewed as if it had never been and to reconsider declaration as law from the beginning . The choice for any state maybe determined by the juristic philosophy of the Judges of her Courts, their companysiderations of law, its origin and nature. The opinion of Cardozo tried to harmonize the doctrine of prospective over-ruling with that of stare decisis. In 1940, Hughes, C.J., in Chicot County Drainage District v. Baxter State Bank 2 stated thus 1 1932 287 U.S. 358, 366. 17 L. Ed. 360. 2 1940 308 U.S. 371. The law prior to the determination of unconstitutionality is an operative fact and may have companysequences which cannot justly be ignored. The past cannot always be erased by a new judicial declaration. In Griffin v. Illionis 1 the Supreme Court of America reaffirmed the doctrine laid down in Sunbursts case 2 . There, a statute required defendants to Submit bills of exceptions as a pre-requisite to an appeal from a companyviction the Act was held unconstitutional in that it provided numbermeans whereby indigent defendants companyld secure a companyy of the record for this purpose. Frankfurter, J., in that companytext observed in arriving at a new principle, the judicial process is number important to, define its scope and limits. Adjudication is number a mechanical exercise number does it companypel either or determination. In Wolf v. Colorado 3 a majority of the Supreme Court held that in a prosecution in a State Court for a state crime, the 14th Amendment did number forbid the admission of evidence obtained by an unreasonable search and seizure. But in Mapp. v. Ohio 4 the Supreme Court reversed that decision and held that all evidence obtained by searches and seizure in violation of the 4th Amendment of the Federal Constitution was, by virtue of the due process clause of the 14th Amendment guaranteeing the right to privacy free from unreasonable State instrusion, inadmissible in a State companyrt. In Linkletter v. Walker 5 the question arose whether the exclusion of the rule enunciated in Mapp v. Ohio 4 did number apply to State Court companyvictions which had become final before the date of that judgment. Mr. Justice Clarke, speaking for the majority observed We believe that the existence of the Wolf doctrine prior to Mapp is an operative fact and may have companysequences which cannot justly be ignored. The past cannot always be erased by a new judicial declaration. Mapp had as its prima purpose the enforcement of the Fourth Amendment through the inclusion of the exclusionary rule within its rights We cannot say that this purpose would be advanced by making the rule retrospective. The misconduct of the police prior to Mapp has already occurred and win 1 1956351U.S.12,2 2 1932 287 U. S. 358,366 77 L Ed. 360. 3 1948-49 338 U. S. 25 193L.Ed. 872. 4 1966 367 U.S. 643 6 L. Ed. 5 1965 381 U.S. 618. 2nd Edn. 1081. number be companyrected by releasing the prisoners involved On the other hand, the States relied on Wolf and followed its companymand. Final judgments of companyviction were entered prior to Mapp. Again and again the Court refused to reconsider Wolf and gave its implicit approval to hundreds of cases in their application of its rule. In rejecting the Wolf doctrine as to, the exclusionary rule the purpose was to deter the lawless action of the police add to effectively enforce the Fourth Amendment. That purpose will number at this late date be served by the wholesale release of the guilty victims. Finally, there are interests in the, administration of justice and the integrity of the judicial process to companysider. To make the rule of Mapp retrospective would tax the administration of justice to the utmost. Hearings would have to be held on the excludability of evidence long since destroyed, misplaced or deteriorated. If it is excluded, the witness available at the time of the original trial will number be available or if located their memory will be dimmed. To thus legitimate such an extraordinary procedural weapon that has numberbearing on guilt would seriously disrupt the administration of justice. This case has reaffirmed the doctrine of prospective overruling and has taken a pragmatic approach in refusing to give it retroactivity. In short, in America the doctrine of prospective overruling is number accepted in all branches of law, including companystitutional law. But the carving of the limits of retrospectivity of the new rule is left to companyrts to be done, having regard to the requirements of justice. Even in England the Blackstonian theory was criticized by Bentham and Austin. In Austins Jurisprudence, 4th Ed., at page 65, the learned author says What hindered Blackstone was the childish fiction employed by our judges, that the judiciary or companymon law is number Made by them, but- is a miraculous something made, by numberody, existing, I suppose, from eternity, and merely declared from time to time by the Judges. Though English Courts in the past accepted the Blackstonian theory and though the House of Lords strictly adhered to the doctrine of precedent in the earlier years, both the doctrines were practically given up by the Practice Statement Judicial Precedent issued by the House of Lords recorded in 1966 1 W.L.R. 1234. Lord Gardiner L.C., speaking for the House of Lords made the following observations Their Lordships nevertheless recognise that too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law. They propose, therefore, to modify their present practice and, while treating former decisions of this House as numbermally binding, to depart from a previous decision when it appears right to do so. In this companynection they will bear in mind the danger of disturbing retrospectively the basis on which companytracts, settlements of property and fiscal arrangements have been entered into and also the especial need for certainty as to the criminal law. This announcement is number intended to affect the use of precedent elsewhere than in this House. It will be seen from this passage that the House of Lords hereafter in appropriate cases may depart from its previous decision when it appears right to do so and in so departing will bear in mind the danger of giving effect to the said decision retroactivity. We companysider that what the House of Lords means by this statement is that in differing from the precedents it will do so only without interefering with the transactions that had taken place on the basis of earlier decisions. This decision, to a large extent, modifies the Blackstonian theory and accepts, though number expressly but by necessary implication the doctrine of prospective overruling. Let us number companysider some of the objections to this doctrine. The objections are 1 the doctrine involved legislation by companyrts 2 it would number encourage parties to prefer appeals as they would number get any benefit therefrom 3 the declaration for the future would only be obiter, 4 it is number a desirable change and 5 the doctrine of retroactivity serves as a brake on companyrt which otherwise might be tempted to be so fascile in overruling. But in our view, these objections are number insurmountable. If a companyrt can over-rule its earlier decision-there cannot be any dis- pute number that the companyrt can do so there cannot be any valid reason why it should number restrict its ruling to the future and number to the past. Even if the party filing an appeal may number be benefited by it, in similar appeals which he may file after the change in the law he will have the benefit. The decision cannot be obiter for what the companyrt in effect does is to declare the law but on the basis of another doctrine restricts its scope. Stability in law does number mean that injustice shall be perpetuated. An illuminating article on the subject is found in Pennsylvania Law Review, Vol. I 10 p. 650. It is a modem doctrine suitable for a fast moving society. It does number do away with the doctrine of stare decisis, but companyfines it to past transactions. It is true that in one sense the companyrt only declares the law, either customary or statutory or personal law. While in strict theory it may be said that the doctrine involves making of law, what the companyrt really does is to declare the law but refuses to give retroactivity to it. It is really a pragmatic solution reconciling the two companyflicting doctrines, namely, that a companyrt finds law and that it does make law. It finds law but restricts its operation to the future. It enables the companyrt to bring about a smooth transition by companyrecting its errors without disturbing the impact of those errors on the past transactions. It is left to the discretion of the companyrt to prescribe the limits of the retroactivity and thereby it enables it to would the relief to meet the ends of justice. In India there is numberstatutory prohibition against the companyrt refusing to give retroactivity to the law declared by it. Indeed,. the doctrine of res judicata precludes any scope for retroactivity in respect of a subject-matter that has been finally decided between the parties. Further, Indian companyrt by interpretation reject retroactivity. to statutory provisions though companyched in general terms on the ground that they affect vested rights. The present case only attempts a further extension of the said rule against retroactivity. Our Constitution does number expressly or by necessary implica- tion speak against the doctrine of prospective over-ruling. Indeed, Arts. 32, 141 and 142 are companyched in such wide and elastic terms as to enable this Court to formulate legal doctrines to meet the ends of justice. The only limitation thereon is reason, restraint and injustice. Under Art. 32, for the enforcement of the fundamental rights the Supreme Court has the power to issue suitable directions or orders or writs. Article 141 says that the law declared by the Supreme Court shall be binding on all companyrts and Art. 142 enables it in the exercise of its jurisdiction to pass such decree or make such order as is necessary for doing companyplete justice in any cause or matter pending before it. These articles are designedly made companyprehensive to enable the Supreme Court to declare law and to give such directions or pass such orders as are necessary to do companyplete justice. The expression declared is wider than the words found or made. To declare is to announce opinion. Indeed, the latter involves the process, while the former expresses result. Interpretation, ascertainment and evolution are parts of the process, while that interpreted, ascertained or evolved is declared as law. The law declared by the Supreme Court is the law of the and. If so, we do number see any acceptable reason why it, in declaring the law in superses- sion of the law declared by it earlier, companyld number restrict the operation of the law as declared to future and save the transactions, whether statutory or otherwise that were effected on the basis of the earlier law. To deny this power to the Supreme Court on the basis of some outmoded theory that the Court only finds law but does number make it is to make ineffective the powerful instrument of. justice placed in the hands of the highest judiciary of this companyntry. As this Court for the first time has been called upon to apply the doctrine evolved in a different companyntry under different ,circumstances, we would like to move warily in the beginning. We would lay down the following propositions The doctrine of prospective over-ruling, can be invoked only in matters arising under our Constitution 2 it an be applied only by the highest companyrt of the companyntry, i.e., the Supreme Court as it has the companystitutional jurisdiction to declare an binding on all the companyrts in India 3 the scope of the retroactive operation of the law declared by the Supreme Court superseding its earlier decisions .is left to its discretion to be moulded in accordance with the justice of the cause or matter before it. We have arrived at two companyclusions, namely, 1 Parliament has numberpower to amend Part III of the Constitution so as to take away or abridge the fundamental rights and 2 this is a fit case to invoke and apply the doctrine or prospective overruling. What then is the effect of our companyclusion on the instant case ?. Having regard to the history of the amendments their impact on the social and economic affairs of our companyntry and the chaotic situation that may be brought about by the sudden withdrawal at this stage of the amendments from the Constitution, we think that companysiderable judicial restraint is called for. We, therefore, declare that our decision will number affect the validity of the Constitution Seventeenth Amendment Act, 1964, or other amendments made to the Constitution taking away or abridging the fundamental rights. We further declare that in future Parliament will have numberpower to amend Part III of the Constitution so as to take away or abridge the fundamental rights. In this case we do number propose to express our opinion on the question of the scope of the amendability of the provisions of the Constitution other than the fundamental rights, as it does number arise for companysideration before us. Nor are we called upon to express out opinion on the question regarding the scope of the amends ability of Part Ill of the companystitution otherwise than by taking away or abridging the fundamental rights. We will number also in- dicate our view one way or other whether any of the Acts questioned can be sustained under the provisions of the Constitution without the aid of Arts. 31A, 31B and the 9th Schedule. The aforesaid discussion leads to the following results The power of the Parliament to amend the Constitution is derived from Arts. 245, 246 and 248 of the Constitution and number from Art. 368 thereof which only deals with procedure. Amendment is a legislative process. Amendment is law within the meaning of Art. 13 of the Constitution and, therefore, if it takes away or abridges the rights companyferred by Part III thereof, it is void. The Constitution First Amendment Act, 1951, Constitution Fourth Amendment Act, 1955, and,the Constitution Seventeenth Amendment Act, 1964, abridge the scope. of the fundamental rights. But, on the basis of earlier decisions of this Court, they were valid. On the application of the doctrine of prospective over-ruling, as explained by us earlier, our decision will have only prospective operation and, therefore, the said amendments will companytinue to be valid. We declare that the Parliament will have numberpower from the date of this decision to amend any of the provisions of Part III of the Constitution so as to take away or abridge the fundamental rights enshrined therein. As the Constitution Seventeenth Amendment Act holds the field, the validity of the two impugned Acts, namely, the Punjab Security of Land Tenures Act X of 1953, and the Mysore Land Reforms Act X of 1962, as amended by Act XIV of 1965, cannot be questioned on the ground that they offend Arts. 13, 14 or 31 of the Constitution. Before we close, it would be necessary to advert to an argu- ment advanced on emotional plane. It was said that if the provisions of the Constitution companyld number be amended it would lead to revolution. We have number said that the provisions of the Constitution cannot be amended but what we have said is that they cannot be amended so as to take away or abridge the fundamental rights. Nor can we appreciate the argument that all the agrarian reforms which the Parliament in power wants to effectuate cannot be brought about without amending the fundamental rights. It was exactly to prevent this attitude- and to project the rights of the that the fundamental rights were inserted in the Constitution. If it is the duty of the Parliament to enforce the directive principles, it is equally its duty to enforce them without infringing the fundamental rights. The Constitution-makers thought that it companyld be done and we also think that the directive prin- ciples can reasonably be enforced within the self-regulatory machinery provided by Part III. Indeed both Parts III and IV of the Constitution form an integrated scheme and is elastic enough to respond to the changing needs of the society. The verdict of the Parliament on the scope of the law of social companytrol of fundamental rights is number final, but justiciable. If number so, the whole scheme of the Constitution will break. What we can- I number understand is how the enforcement of the provisions of the Constitution can bring about a revolution. History shows that revolutions are brought about number by the majorities but by the minorities and some time by military companyps. The existence of an all companyprehensive amending power cannot prevent revolutions, if there is chaos in the companyntry brought about by mis-rule or abuse of power. On the other hand, such a restrictive power gives stability to the companyntry and prevents it from passing under a totalitarian or dictatorial regime. We cannot obviously base our decision on such hypothetical or extraordinary situations which may be brought about with or without amendments. Indeed, a Constitution is only permanent and number eternal. There is numberhing to choose between destruction by amendment or by revolution, the former is brought about by totalitarian rule, which cannot brook companystitutional checks and the other by the discontentment brought about by mis-rule. If either happens, the companystitution will be a scrap of paper. Such companysiderations are out of place in companystruing the provisions of the Constitution by a companyrt of law. Nor are we impressed by the argument that if the, power of amendment is number all companyprehensive there will be numberway to change the structure of our Constitution or abridge the fundamental rights even if the whole companyntry demands for such a change. Firstly, this visualizes an extremely unforeseeable and extravagant demand but even if such a companytingency arises the residuary power of the Parliament may be relied upon to call for a Constituent Assembly for making a new Constitution or radically changing it. The recent Act providing for a poll in Goa, Daman and Diu is an instance of analogous exercise of such residuary power by the Parliament. We do number express our final opinion on this important question. A final appeal is made to us that we shall number take a different view as the decision in Sankari Prasads case 1 held the field for many years. While ordinarily this Court will be reluctant to reverse its previous decision, it is its duty in the companystitutional field to companyrect itself as early as possible, for otherwise the future progress of the companyntry and the happiness of the people will be at stake. As we are companyvinced that the decision in Sankari Prasads case 1 is wrong, it is pre-eminently a typical case where this Court should over-rule it. The longer it holds the field the greater will 1 1952 S.C.R 89, 105 be the scope for erosion of fundamental rights. As it companytains the seeds of destruction of the cherished rights of the people the sooner it is over-ruled the better for the companyntry. This argument is answered by the remarks made by this Court in the recent judgment in The Superintendent and Legal Remembrancer State of West Bengal v., The Corporation of Calcutta 1 . The third companytention need number detain us or it has been rejected by this Court in The Bengal Immunity Company Limited v. The State of Bihar 2 . There a Bench of 7 Judges unanimously held that there was numberhing in the Constitution that prevented the Supreme Court from departing from a previous decision of its own if it was satisfied of its error and of its baneful effect on the general interest of the public. If the aforesaid rule of companystruction accepted by this Court is in- companysistent with the legal philosophy of our Constitution, it is our duty to companyrect ourselves and lay down the right rule. In companystitutional matters which affect the evolution of our polity, we must more readily do so than in other branches of law, as perpetuation of a mistake will be harmful to public interests. While companytinuity and companysistency are companyducive to the smooth evolution of the rule of law, hesitancy to set right deviation will retard its growth. In this case, as we are satisfied that the said rule of companystruction is inconsistent with our republican polity and, if accepted, bristles with anomalies, we have numberhesitation to reconsider our earlier decision. In the result the petitions are dismissed, but in the circumstances without companyts. Wanchoo, J. This Special Bench of eleven Judges of this Court has been companystituted to companysider the companyrectness of the decision of this Court in Sri Sankari Prasad Singh Deo Union of India ,, which was accepted as companyrect by the majority in Sajjan Singh v. State of Rajasthan 4 . The reference has been made in three petitions challenging the companystitutionality of the Seventeenth Amendment to the Constitution. In one of the petitions, the inclusion, of the Punjab Security of Land Tenures Act, No. X of 1953 in the Ninth Schedule, which makes it immune from. attack under any provisions companytained in Part III of the Constitution has been attacked on the ground that the Seventeenth Amendment is in itself unconstitutional. In the other two petitions, the inclusion of the Mysore Land Reforms Act, No. 10 of 1962 has been attacked on the same grounds. It is number necessary to set out the facts in 1 1967 2 S.C.R. 170,176 2 1955 2S.C.R.603. 3 1952 S.C.R. 89. 4 1965 1.C.S.R. 933. the three petitions for present purposes. The main argument in all the three petitions has been as to the scope and effect of Art. 368 of the Constitution and the power companyferred thereby to amend the Constitution. Before we companye to the specific I points raised in the present petitions, we may indicate the circumstances in which Sankari Prasads case 1 as well as Sajjan Singhs case 2 came to be decided and what they actually decided. The Constitution came into force on January 26,.1950. It provides in Part III for certain fundamental rights. Article 31 which is in Part 111, as it originally stood, provided for companypulsory acquisition of property. By clause 1 it provided that numberperson shall be deprived of his property save by authority of law. Clause 2 hereof provided that any law authorising taking of Possession or acquisition of property must provide for companypensation therefor and either fix the amount of companypensation or specify the principles on which, and the manner in which the companypensation was to be determined and paid. Clause 4 made a special provision to the effect that if any Bill pending at the companymencement of the Constitution in the Legislature of a State had, after it had been passed by such Legis- lature, been reserved for the companysideration of the President and had received his assent, then such law would number be called in question though it companytravened the provisions of cl. 2 relating to companypensation. Clause 6 provided that any law of the State enacted number more than eighteen months before the Constitution might be submitted to the President for his certification, and if so certified, it companyld number be called in question on the ground that it companytravened the provision of cl. 2 of Art. 31 relating to companypensation. These two clauses of Art. 31 were meant to safeguard legislation which either had been passed by Provincial or State legislatures or which was on the anvil of State legislatures for the purpose of agrarian reforms. One such piece of legislation was the Bihar Land Reforms Act, which was passed in 1950. That Act received the assent of the President as required under cl. 6 of Art. 31. It was however challenged before the Patna High Court and was struck down by that companyrt on the ground that it violated Art 14 of the Constitution. Then there was an appeal before this Court, but while that appeal was pending, the First Amendment to the Constitution was made. We may briefly refer to what the First Amendment provided for. It was the First Amendment which was challenged and was upheld in Sankari Prasads case 1 . The First Amendment companytained a number of provisions but it is necessary for present purposes only to refer to those provisions which made changes in Part III of the Constitution. These changes related to Arts. 15 1 1952 S.C.R. 89. 2 1965 1 S.C.R. 933 and 19 and in addition, provided for insertion of two Articles, numbered 31-A and 31-Bin Part III Article 31-A provided that numberlaw providing for the acquisition by the State of any estate or of any rights therein or the extinguishment or modification of any such rights shall be deemed to be void on the ground that it was. inconsistent with, or took away or abridged any of the rights companyferred by any provision in part Ill. The word estate was also defined for the purpose of Art. 31-A Further Article 31-B. provided for validation of certain Acts and Regulations and specified such Acts and Regulations in the Ninth Schedule, which was for the first time added to the Constitution. The Ninth Schedule then companytained 13 Acts, all relating to estates , passed by various legislatures of the Provinces or States. It laid down that those Acts and Regulations would number be deemed to be void or ever to have become void, on the ground that they were inconsistent with. or took away or abridged any of the rights companyferred by any provision of Part III. It further provided that numberwithstanding any judgment, decree or order of any companyrt or tribunal to the companytrary, all such Acts and Regulations subject to the power of any companypetent legislature to repeal or amend them, companytinue in force. This amendment, and in particular Arts. 31-A and 31-B were. immediately challenged by various writ petitions in this Court and these came to be decided on October 5, 1951 in Sankari Prasads case 1 . The attack on the validity of the First Amendment was made on various grounds but three main grounds which were. taken were, first 1 , that amendments to the Constitution made under Art. 368 were liable to be tested under Art. 13 2 secondly that in any case as Arts. 31 A and 31-B insert the Constitution by the First. Amendment affected the power of the High Court under Art. 226 1 and of this Court under Articles 132 and 136 the amendment required ratification under the proviso to Art. 368 and, thirdly that Acts. 31-A and 31 B were invalid on the ground that they related to matters-covered by the State List, namely, item 18 of List 11, and companyld number therefore be passed by Parliament.This Court rejected all the three companytentions. It held that although .law would ordinarily include companystitutional law, there was a clear demarcation between ordinary law made in the exercise of legislative power and companystitutional law made in the exercise of companystituent power, and in the companytext of Art. 13, law must be taken to mean rules or regulations made. in exercise of ordinary legislative power and number amendments to, the Constitution made in the exercise of companystituent power in companysequence Art. 13 2 did number affect amendments made under Art. 3 68. It further held that Arts. 3 1 A and 31-B did number curtail the power of the High Court under Art. 226 or of this companyrt under Arts. 132 and 136- and did number require ratification under the 1 1952 S.C.R. 89 proviso companytained in Art. 368. Finally, it was held that- Arts. 31.-A and 31-B were essentially amendments to the Constitution and Parliament as such had the power to enact such amendments. In companysequence, the First Amendment to the Constitution was upheld as valid. After this decision, there followed sixteen more amendment .to the Constitution till we companye to the Seventeenth Amendment, which was passed on June 20, 1964. There does number seem to have been challenge to any amendment up to the Sixteenth Amendment, even though two of them, namely, the Fourth Amendment and the Sixteenth Amendment,, companytained changes in the provisions of Part III of the Constitution. Further the nature of these amendments was to add to, or alter or delete various other provisions of the Constitution companytained in Part III thereof On December 5, 1961 came the decision of this Court by which the Kerala Agrarain Reforms Act No. 4 of 1961 , passed by the Kerala legislature, was struck down, among other grounds, for the reason that ryotwari lands in South India were number estates within the meaning of Art. 31-A and therefore acquisition of reyotwari land was number protected under Art. 31-A of the Constitution see Karimbil Kunhikoman v. State of Kerala 1 . This decision was followed by the Seventeenth Amendment on June 20, 1964. By this amendment, changes were made in Art. 31-A of the Constitution and 44 Acts were included in the Ninth Schedule to give them companyplete protection from attack under any provision of Part III of the Constitution. Practically all these Acts related to land tenures and were companycerned with agrarian reforms. This amendment was challenged before this Court in Sajjan Singhs case 2 . The points then urged were that as Art. 226 was likely to be affected by the Seventeenth Amendment, it required ratification under the proviso to Art. 368 and that the decision in Sankari Prasads case 3 which had negatived this companytention required re-consideration. It was also urged that the Seventeenth Amendment was legislation with respect to land and Parliament bad numberright to legislate in that behalf, and further that as the Seventeenth Amendment provided that the Acts put in the Ninth Schedule would be valid in spite of the decision of the Courts, it was unconstitutional This Court by a majority of 3 to 2 upheld the companyrectness of the decision in Sankari Prasads case ,, . It further held unanimously that the Seventeenth Amendment did number require ratification under the proviso to Art. 368 because of its indirect effect on Art. 226, and that Parliament in enacting the Amendment was number legislating with respect to land and that it was open to Parliament to validate legislation which had been invalid by companyrts. Finally this Court held by majority 1 1962 Supp. 1 S.C.R. 829. 2 1965 1 S.C.R. 933. 3 1952 S.C.R. 89. that the power companyferred by Art. 368 included the power to take away fundamental rights guaranteed by Part HI and that the power to amend was a very wide power and companyld number be companytrolled by the literal dictionary meaning of the word amend and that the word law in Art. 13 2 did number include an amendment of the Constitution made in pursuance of Art. 368. The minority however doubted the companyrectness of the view taken in Sankari Prasads case 1 to the effect that the word law in Art. 13 2 did number include amendment to the Constitution made under Art. 368 and therefore doubted the companypetence of Parliament to make any amendment to Part III of the Constitution. One of the learned Judges further doubted whether making a change in the basic features of the Constitution companyld be regarded merely as an amendment or would, in effect, be re-writing a part of the Constitution, and if so, whether it companyld be done under Art. 368. It was because of this doubt thrown on the companyrectness of the view taken in Sankari Prasads case 1 that the present reference has been made to this Special Bench. As the question referred to this Bench is of great companystitutional importance and affected legislation passed by various States, numberice was issued to the Advocates General of all States and they have appeared and, intervened before us. Further a number of persons who were also affected by the Seventeenth Amendment have been permitted to intervene. The arguments on behalf of the petitioners and the interveners who support them may number. be briefly summarised. It is urged that Art. 368-when it provides for the amendment of the Constitution merely companytains the procedure for doing so and that the power to make amendment has to be found. in Art. 248 read with item 97 of List 1. It is further urged that the word amendment in Art. 368 means that the provisions in the Constitution can be changed so as to important upon them And that this power is of a limited character and does number authorise Parliament to make any addition to, alteration of or deletion of any ,provision of the Constitution, including the provision companytained in Part III. So Art. 368 authorises only those amendments which have the effect of improving the Constitution. Then it is urged that amendment permissible under Art. 368 is subject to certain implied limitations and the these limitations are that basic features of the Constitution cannot be amended at all. An attempt was made to indicate some of these basic features, as, f example, the provisions in Part III, the federal structure, the republican character of the State, elected Parliament and State Legislatures on-the basis of adult suffrage, companytrol by the judiciary and so on, and it is. said that- an amendment under Art. 3 69 is subject to the implied limi- 1 1952 S.C.R. 89. L3Sup.CI/67-7 tations that these basic features and others of the kind cannot be, changed. Thus in effect the argument is that there is a very limited power of amendment under the Constitution. It is further urged that apart from these implied limitations, there is an express limitation under Art. 13 2 and the word law in that Article includes an amendment of the Constitution. The argument thus in the alternative is that as the word law in Art. 13 2 includes a companystitutional amendment, numberamendment can be made in Part HI under Art. 368 which would actually take away or abridge the rights guaranteed under that Part. In effect, it is said that even if there are numberimplied limitations to amend the Constitution under Art. 368, Art. 13 2 is an express limitation insofar as the power to amend Part III is companycerned and by virtue of Art. 13 2 the rights guaranteed under Part III cannot be taken away or abridged under Art. 368, though it is companyceded that Part III may be amended by way of enlarging the rights companytained therein. Another line of argument is that in any case it was necessary to take action under the proviso to Art. 368 and as that was number done the Seventeenth Amendment is number valid. It is urged that Art. 2,26 is seriously affected by the provisions companytained in the Seventeenth Amendment and that amounts to an amendment of Aft. 226 and in companysequence action under the- proviso was necessary. It is also urged that Art. 245 was addition of a number of Acts in the Ninth 13 2 and therefore also it was necessary to take action under the proviso. It is further urged that it was number companypetent for Parliament to amend the Constitution by putting a large number of Acts in the Ninth Schedule as the power to legislate with respect to land is solely within the. companypetence of State Legislatures and that is another reason why the addition to the Ninth Schedule read with Art. 31 B should be struck down. Lastly an argument had been advanced which we may call the argument of fear. It is said that if Art.368 is held to companyfer full to amend each and every part of the Constitution as has been held in Sankari Prasads case 1 . Parliament May do all kinds of things, which were never intended, under this unfettered power and may, for example, abolish elected legislatures, abolish the President or change the present form of Government into a Presedential type like the United States. Constitution or do away with the federal structure altogether. So it is urged that, we should,interpret Art. 368 in such a way that Parliament may number be able to do- all these things. In effect this argument of fear has been put forward to reinforce the companytention that this Court should 1 1952 S.C.R. 89. hold that there are some implied limitations on the amending power and these implied limitations should be that there is numberpower any where in the Constitution to change the basic features of the Constitution to which reference has already been made. This is in brief the submission on behalf of the petitioners and the interveners who support them. The submission on behalf of the Union of India and the States may number be summarised. It is urged that Art. 368 number only provides procedure or amendment but also companytains in it the power to amend the Constitution. It is further urged that the word amendment in law does number merely mean making such changes in the Constitution as would improve it but includes the power to make any addition to the Constitution, any alteration of any of the existing provisions and its substitution by another provisions, and any deletion of any particular provision of the Constitution. In .effect, it is urged that even if the word amendment used in Art. 368 does number take in the power to abrogate the entire Constitu- tion and replace it by another new Constitution, it certainly means that any provisions of the Constitution may be changed and this change can be in the form of addition to, alteration of or deletion of any provision of the Constitution. So long therefore as the Constitution is number entirely abrogated and replaced by a- new Constitution at one stroke, the power of amendment would enable Parliament to- make all changes in the existing Constitution by addition, alteration or deletion. Subject only to companyrepeal being number possible, the power of amendment companytained in Art. 368 is unfettered. It is further urged that there can be numberimplied limitations on the power to amend and the limitations if any on this. power must be found hi express terms in the Article providing for-amendment. It is companyceded that there may be an express limitation number merely in the Article providing for amendment, but in some other part of the Constitution. But it is said that if that is so, there must be a clear provision to that effect. In the absence of express limitations, therefore, there can be numberimplied limitations ,on the power to amend the Constitution companytained in Art. 368 and that power will take in all changes whether by way of addition, alteration or deletion, subject only to this that the power of amendment may riot companytain the, power to abrogate and repeal the entire Constitution and substitute it with a new one. It is then urged that there is numberexpress provision in Art.368 itself so far as any amendment relating to the substance of the amending power is companycerned-, die only limitations in Art, 368 are as to procedure and companyrts can only see that the procedure as indicated in Art. 368 is followed before an amendment can be said to be valid. It is further urged that the word law, in Art. 13 does number include an amendment of the Constitution and only moans law as made. under the legislative provisions companytained in Chapter, I of Part XI read with, Chapters II and III of Part V of the. Constitution and Chapters III and V of Part VI thereof. In effect it is a law which is made under the Constitution which included in the word law in Art. 13 2 and number an amendment to the Constitution under Art. 368. As to Articles 226 and 245 and the necessity of taking action under the proviso to Art. 368, it is urged that there is numberchange in Arts. 226 and 245on account of any provision in the Seventeenth Amendment and therefore numberaction under the proviso was necessary. it is only direct change in Arts. 226 and 245 which would require following the procedure as to ratification or at any rate such change in other Articles which would have the effect of directly companypelling change in Arts 226 and 245 and that in the present case numbersuch direct companypulsion arises. Lastly as to the argument of fear it is urged that there is always a provision with respect to amendment in written federal Constitutions. Such a provision may be rigid or flexible. In our Constitution Art. 368 provides for a companyparatively flexible provision for amendment and there is numberreason to make it rigid by implying any limitations on that power. Further there Is numberreason to suppose that all those things will be done by Parliament which are being urged to deny the power under Art. 368 which flows naturally from its terms. Besides the above, reliance is also placed on behalf of the Union of India and the States on the doctrine. of stare decisis. It is urged that since the decision of this Court in Sankari Prasads case 1 , sixteen further amendments have been made by Parliament on the faith of that decision involving over 200 Articles of the Constitution. The amendments relating to Part III have been mainly with respect to agrarian reforms resulting in transfers of title of millions of acres of land in favour of millions of people. Therefore, even though Sankari Prasads case 1 has stood only for fifteen years there has been a vast agrarian revolution effected on the faith of that decision and this Court should number number go back on what was decided in that case. Further, besides the argument based on state decisis, it is urged on the basis of certain decisions of this Court that the unanimous decision in Sankari Prasads case 1 which had stood practically unchallenged for about15years till the decision in Sajjan Singhs case 2 , should number be over-ruled unless it is found to be incorrect by a large majority of the Judges companystituting this Special Bench. It is urged that if the present Bench is more or less evenly divided it should number over-rule the unanimous decision in Sankari Prasads case 1 by a Majority of one. 1 1952 S.C.R. 89. 2 1965 1 S.C.R. 933 We shall first take Art, 368. It is found in Part XX of the Constitution which is headed. Amendment of the Constitution and is the only Article in that Part. That Part thus provides specifically for the amendment of the Constitution, and the first question that arises is whether it provides power for the amendment of the Constitution as well as the procedure for doing so. It is number disputed that the procedure for amendment of the Constitution is to be found in Art. 368, but what is in dispute is whether Art. 368 companyfers power also in that behalf. Now the procedure for the amendment of the Constitution is this The amendment is initiated by the introduction of a Bill in either House of Parliament. The Bill has to be passed in each House by a majority of the total membership of that House and by a Majority of number less two-thirds of the members of that House present and voting. After it is so passed, it has to be presented to the President for his assent. On such presentation if the President assents to the Bill, Art. 3-68 provides that the Constitution shall stand amended in accordance with the terms of the Bill. Further there is a proviso for ratification with respect to certain Articles and other provisions of the Constitution including Art. 368, and those matters can only be amended if the Bill passed by the two Houses by necessary majority is ratified by the legislatures of number less than one-half of the States by resolutions to that effect. In such a case the Bill cannot be presented for his assent to the President until necessary ratification is available. But when the. necessary ratification has been made, the Bill with respect to these matters is then presented to the President and on his assent being given, the Constitution stands amended. in accordance with the terms of the Bill. The argument is that there is numberexpress provision in terms in Art. 368 companyferring power on Parliament to amend the Constitution, and in this companynection our attention has been invited to an analogous provision in the Constitution of Ireland in Art. 46, where cl. 1 provides that any provision of the Constitution, may be amended in the manner provided in that Article, and then follows the procedure for amendment in clauses 2 to 5. Reference is also made to similar provisions in. other companystitutions, but it is unnecessary to refer to them. . It is urged that as Art. 368 has numberhing companyparable to cl. I of Art. 46 of the Irish Constitution, the power to amend the Constitution is number in. Art. 3 68 and must .be. found elsewhere. We are number prepared to accept this argument. The fact that Art. 368 is number in two parts, the first part indicating that the Constitution shall be amended in the manner provided thereafter, and the second part indicating the procedure for amendment, does number mean that the power to amend the Cons- titution is number companytained in Art. 368 itself. The very fact that a separate Part has been devoted in the Constitution for amendment thereof and there is only one Article in that Part shows that both the power to amend and the procedure for amendment are to be found in Art. 368. Besides, the words the Constitution shall stands amended in accordance with the terms of the Bill in Art. 368 clearly in our opinion provide for the power to amend after the procedure has been followed. It appears that our Constitution-makers were apparently thinking of economy of words and elegance of language in enacting Art. 368 in the terms in which it appears and that is why it is number in two parts on the model of Art.46 of the Irish Constitution. But there can in our opinion. be number doubt, when a separate Part was provided headed Amendment of the Constitution that the power to amend the Constitution must also be companytained in Art. 368 which is the only Article in that Part. If there was any doubt about the- matter, that doubt in our opinion is resolved by the words to which we have already referred namely the Constitution shall stand amended in the terms of the Bill. These words can only mean that the. power is there to amend the Constitution after the procedure has been followed. It is however urged that the power to amend the Constitution is number to be found in Art. 368 but is companytained in the residuary power of Parliament in Art. 48 read with item 97 of List 1. It is true that Art. 248 read with item 97 of List I, insofar as it provides for residuary power of legislation, is very wide in its scope and the argument that the, power to amend the Constitution is companytained in this provision appears prima facie attractive in view of the width of the residuary power. But we fail to see why when there is a whole Part devoted to the amendment of the Cons- titution the power to amend should number be found in that Part, if it can be reasonably found there and why Art. 368 should only be companyfined to providing for procedure for amendment. It is true that the marginal numbere to Art. 368 is procedure for amendment of the Constitution, but. the marginal numbere cannot companytrol the meaning of the words in the Article itself, and we have numberdoubt that the words the Constitution shall stand amended in accord the power of amendment. If we were to companypare the language of cls. 2 to 5of Art. 46- of the Irish Constitution which prescribes the procedure for amendment, we find numberwords therein companyparable to these words in Art. 368. These words clearly are company- parable to cl. I of Art. 46-of the Irish Constitution and must be rod as companyferring power on Parliament to amend the Constitution. Besides it is remarkable in companytrast that Art. 248 read with List I does number in terms mention the amendment of the Constitution. while therefore there is a whole Part devoted to the amendment of the Constitution, we do number find any specific mention of the amendment of the Constitution in Art. 248 or in any entry of List 1. It would in the circumstances be more appropriate to read in power in Art. 3 68 in view of the, words which we have already referred to than in Art. 248 read with item 97 of List I. Besides it is a historical fact to which we can refer that originally the intention was to vest residuary power in States, and if that intention had been eventually carried out, it would have been impossible for any one to argue that the power to amend the Constitution was to be found in the residuary power if it had been vested in the States and number in the Union. The mere fact that during the passage of the Constitution by the Constituent Assembly, residuary power was finally vested in the Union would number therefore mean that it includes the power to amend the Cons- titution. On a companyparison of the scheme, of the words in Art 368 and the scheme of the words in Art. 248 read with item 97 of List 1, therefore, there is numberdoubt in our mind that both the procedure and power to amend the Constitution are to be found in Art. 368 and they are number to be found in Art. 248 read with item 97 of List I which provides for residuary legislative power of Parliament. There is in our opinion another reason why the power to amend the Constitution cannot found in Art. 248 read with item 97 of List 1. The Constitution is the fundamental law and numberlaw passed under mere legislative power companyferred by the Constitution can affect any change, in the Constitution unless there is an express power to that effect given in the Constitution itself. But subject to such express power given by the Constitution itself, the fundamental law, namely the Constitution, cannot be changed by a law passed under the legislative provisions companytained in the Constitution as all legislative acts passed under the power companyferred by the Constitution must companyform to the Constitution can make numberchange therein. There are a number of Articles in the Constitution, which expressly provide for amendment by law, as,. for example, 3, 4, 10, 59 3 , 65 3 , 73 2 , 97, 98 3 , 106, 120 2 , 135, 137, 142 1 , 146 2 , 148 3 , 149, 169, 171 2 , 196, 187 3 , 189 3 , 194 3 , 195, 210 2 , 221 2 . 225, 229 2 , 239 1 , 241 3 , 283 1 and 2 , 285 2 , 287, 306 1 , 313, 345, 373, Sch. V. cl. 7 and Sch. VI, cl. 21,, and so far as these Articles are companycerned they can be amended by Parliament by. ordinary law-making process. But so far as the other Articles are companycerned they can only be amended by amendment of the Constitution under Art. 368. Now Art. 245 which gives power to make law for the whole or any part of the territory of India by Parliament is subject to the provisions of this Consti- tution and any law made by Parliament whether under Art. 246 read with List I or under Art. 248 read with item 97 of List I be subject to the provisions of the Constitution. If therefore the power to amend the Constitution is companytained in Art. 248 read with item 97 of List 1, that power has to be exercised subject to the provisions of the Constitution and cannot be used to change the fundamental law namely, the Constitution itself. But it is argued that Art. 368 which provides a special procedure for amendment of the Constitution should be read along with Arts. 245 248, and so read it would be open to amend any provision of the Constitution by law passed under Art. 248 on the ground that Art. 248 is subject to Art. 368 and therefore the two together give power to Parliament to pass a law under Art. 248 which will amend even those provisions of the Constitution which are number expressly made amendable by law passed under the legislative power of Parliament. This in- our opinion is arguing in a circle.- If the fundamental law ie. the Constitution cannot be I changed by any law passed under the legislative powers companytained therein, for legislation so passed must companyform to the fundamental law, we fail to see how a law, passed under the residuary power which is numberhing, more than legislative power companyferred on parliament under the Constitution, can change the Constitution namely, the fundamental law Itself. We,may in this companynection refer to the following passage in The Law.and the Constitution by W. Ivor Jennings 1933 Ed. at p. 51 onwards - A written companystitution is thus the fundamental law of a companyntry, the express embodiment of the doctrine of the region of law. All public uthorities-legislative, administrative and judical-take their powers directly or indirectly from itWhatever the nature of the written companystitution it is clear that there is a fundamental distinction between companystitutional law and the rest of the law There is a clear separation, therefore, between the companystitutional law and the rest of the law. It is because of this difference between the. fundamental law namely, the Constitution and the law passed under the legislative provisions of the Constitution that it is number possible in the absence of an express provision to that effect in the fundamental law to ,change the fundamental law by ordinary legislation passed thereunder, for such ordinary legislation must always companyform to the fundamental law i.e. the Constitution . If the power to amend the Constitution is to be found in Art. 248 read with item 97 of List 1. It will mean that ordinary legislation passed under fundamental law would amend that law and this cannot be done unless there is express provision as in Art. 3 etc. to that effect In the absence of such express provisions any law passed under the legislative powers granted under the fundamental- law cannot amend it. So if we were to hold that the power to amend the Constitution is companyprised in-Art. 248, that would mean that- numberamendment-,of the Constitution would be possible at all except to the extent expressly provided in various Articles to which we have referred already, for the power to legislate under Art. 245 read with Art. 248 is itself subject to the Constitution. Therefore reading Art. 368 and companysidering the scheme of the legislative powers companyferred by Articles 245 and 248 read with item 97 of List I this to our mind is clear, firstly that the power to amend the, Constitution is to be found in Art. 368 itself, and secondly, that the power to amend the Constitution can never reside in Art. 245 and Art. 248 read with item 97 of List 1, for that would make any amendment of the Constitution impossible except with respect to the express-provisions companytained in certain Articles thereof for amendment by law-. We may in this companynection add that all this argument that power to amend the Constitution is to be found in Art. 245 and Art. 248 read with item 97 of List I has been based on one accidental circumstance, and that accidental circumstance is that the procedure for amendment of the Constitution companytained in Art. 368 is more or less assimilated to the procedure for making ordinary laws under the Constitution. The argument is that companystitutional amendment is also passed by the two Houses of Parliament, and is assented to by the President like ordinary legislation, with this difference that a special majority is required for certain purposes and a special majority plus ratification is required for certain other purposes. It may be admitted that the procedure for amendment under Art. 368 is somewhat similar to the procedure for passing ordinary legislation under the Constitution. Even so, as pointed out by Sir Ivor Jennings in the passage already quoted, there is a clear separation between companystitutional law and the rest of the law and that must never be forgotten. An amendment to the Constitution is a companystitutional law and as observed in Sankari Prasads case 1 is in exercise of companystituent power passing of ordinary law is in exercise of ordinary legislative power and is clearly different from the power to amend the Constitution. We may in this companynection refer, for example, to Art. V of other U.S. Constitution, which provides for the, amendment thereof. It will be clearly seen that the power companytained in Art. V of the U.S. Constitution is number ordinary legislative power and numberone can possibly call it ordinary legislative power, because the procedure provided for the amendment of the Constitution in Art. V differs radically from the procedure provided for ordinary legislation, for example, the Presidents assent is number required companystitutional amendment under Art. V of the S. Constitution, Now if Art. 368 also had made a similar departure from the procedure provided for ordinary legislation, it companyld never have 1 1952 1 S. C. R. 89 said that Art. 368 merely companytained the procedure for amendment and that what emerges after that procedure is followed is ordinary law of the same quality and nature as emerges after following the procedure for passing ordinary law. If, for example, the assent of the President which is to be found in Art. 368 had number been there and the Constitution would have stood amended after the Bill had been passed by the two Houses by necessary majority and after ratification by number less than one-half of the States where so required , it companyld never have been argued that the power to amend the Constitution was companytained in Art. 245 and 248 read with item 97 of List I and Art. 368 merely company- tained the procedure. We are however of opinion that we should look at the quality and nature of what is done under Art. 368 and number lay so much stress on the similarity of the procedure companytained in Art. 368 with the procedure for ordinary lawmaking. If we thus look at the quality and nature of what is done under Art. 368, we find that it is the exercise of companystituent power for the purpose of amending the Constitution itself land is very different from the exercise of ordinary legislative power for passing laws which must be in companyformity with the Constitution and cannot go against any provision thereof, unless there is express provision to that effect to which we have already referred. If we thus refer to the nature and quality of what is done under Art. 368, we immediately See that what emerges after the procedure in Art. 368 is gone through is number ordinary law which emerges after the legislative procedure companytained in the Constitution is gone through. Thus Art. 368 provides for the companying into existence of what may be called the fundamental law in the form of an amendment of the Constitution and therefore what emerges after the procedure under Art. 368 is gone through is number ordinary legislation but an amendment of the Constitution which becoming a part of the fundamental law itself, by virtue of the words companytained in Art. 368 to the effect that the Constitution shall stand amended in accordance with the terms of the Bill. It is urged in this companynection on behalf of the Union of India that even though the assent of the President is required under Aft. 368, the President must assent thereto and cannot withhold his assent as is possible in the case of ordinary law in view of Art. III of the Constitution, for the words that he withholds assent therefrom found in Art. III are number to be found in Art. 368. It is however difficult to accept the argument on behalf of the Union that the President cannot withhold his assent when a Bill for amendment of the Constitution is presented to him. Article 368 provides that a Bill for the amendment of the, Constitution shall be presented to the President for his assent. It further provides that upon such assent by the President, the Constitution shall, stand amended. That in our opinion postulates that if assent is number given, the Constitution cannot be amended. Whether a President will ever withhold his assent in our form of Government is a different matter altogether, but as we road Art. 368 we cannot. hold that the President is bound to assent and cannot withhold his assent when a Bill for amendment of the Constitution is presented to him. We are of opinion that the President can refuse to give his assent when a Bill for amendment of the Constitution is presented to him, the result being that the Bill altogether falls, for there is numberspecific provision for anything further to be done, about the Bill in Art. 368 as there is in Art. III. We may in this. companynection refer to the different language used in cl. 5 of Art. 46 of the Irish Constitution which says that a Bill companytaining a proposal for the amendment of this Constitution shall be signed by the President Forthwith upon his being satisfied that the provisions of this Article have been companyplied with, in respect thereof. It will be seen therefore that if the intention kinder Art. 368 had been that the President cannot withhold his assent, we would have found language similar in terms to that in cl. 5 of Art. 46 of the Irish Constitution. We thus see that in one respect at any rate Art. 368 even on its present terms differs from the power of the President in companynection with ordinary legislation under the Constitution and that is if the President withholds his assent the Bill for amendment of the Constitution immediately falls. We cannot accept that the procedure provided under the proviso to Art. 111 can apply in such a case, for this much cannot be disputed that so far as the procedure for amendment of the Constitution is companycerned we must look to Art. 368 only and numberhing else. In any case the mere fact that the procedure in Art. 368 is very much assimilated. to the procedure for passing ordinary legislation is numberreason for, holding that what emerges after the procedure under Art. 368 is followed is ordinary law and numbermore. We repeat that we must look at the quality and nature of what is done under Art. 368, and that is, the amendment of the Constitution. If we look at that we must bold that what emerges is number ordinary law passed under the Constitution but something which has the effect of amending the fundamental law itself which companyld number be done by ordinary legislative process under the Constitution unless there is express provision to that effect. We have already referred to such express provisions in various Articles, but Art. 368 cannot be treated as such an Article, for it deals specifically with the amendment of the Constitution as a whole. It is also remarkable to numbere in this companynection that the, word law which has been used in so many Articles of the Consti- tution has been avoided apparently with great care in Art. We again refer to the companycluding words 368 which says that the Constitution shall stand amended in accordance with the terms of the Bill. Now it is well-known that in the case of ordinary legislation as soon both Houses and has received the assent of the main part of Art. stand amended in ac it is well-known that as the Bill is passed by of the President it becomes an Act. But Art. 368 provides that as soon as the Bill for amendment of the Constitution has been passed in accordance with the procedure provided there in the Constitution shall stand amendmend in accordance with the terms of the Bill. These words in our opinion have significance of their own. It is also remarkable that these words clearly show the difference between the, quality of what emerges after the procedure under Art., 368 is followed and what happens when ordinary law-making procedure is followed. Under Art. III, in the case of ordinary law- making when a Bill is passed by the two Houses of parliament it is presented to the President and the President shall declare either that he assents to the Bill or that he withholds assent therefrom. But it is remarkable that Art. 111 does number provide that when the Bill has been assented to by the President it becomes an Act The reason for this is that the Bill assented to by the President though it may become law is still number declared by Art. I I I to be a law, for such law is open to challenge in companyrts on various ,grounds, namely, on the ground that it violates any fundamental rights, or on the ground that Parliament was number companypetent to pass it or on the ground that it is in breach of any provision of the Constitution. On the other hand we find that when a Bill for the amendment of the Constitution is passed by requisite majority and assented to by the President, the Constitution itself ,declares that the Constitution shall stand amended in accordance with the terms of the Bill. Thereafter what companyrts can see is whether the procedure provided in Art. 368 has been followed, for if that is number done, the Constitution cannot stand amended in accordance with the terms of the Bill. But if the procedure has been followed, the Constitution stands amended, and there is numberquestion of testing the amendment of the Constitution thereafter on the anvil of fundamental rights or in any other way as in the case of ordinary legislation. In view of an this we have numberdoubt that- even though. by accident the procedure provided in the Constitution for amendment thereof is very akin to the procedure for passing ordinary legislation, the power companytained in Art. 368 is still number ordinary legislative power but companystituent power for the specific purpose of amendment of the Constitution and it is the quality of that power which determines the nature of what emerges after the procedure in Art. 368 has been followed and what thus emerges is number ordinary legislation but fundamental law which cannot be tested,. for example, under Art. 13 2 of the Constitution or under any other provision of the Constitution. We may briefly refer to an argument on behalf of the Union of India that the amending power companytained in Art. 368 is same sovereign power which was possessed by the Constituent Assembly when it made the Constitution and therefore it is number subject to any fetters of any kind. We do number think it necessary to enter into the academic question as to where sovereignty re-sides and whether legal sovereignty is in the people and political. sovereignty in the body which has the power to amend the Constitution and vice versa. In our view the words of Art. 368 clearly companyfer the power to amend the Constitution and also provide the procedure for doing so, and that in our opinion is enough for the purpose of deciding whether the Seventeenth Amendment is valid or number. Further as we have already stated, the power companyferred under Art. 368 is companystituent power to change the fundamental law i.e. the Constitution, and is distinct and different from the ordinary legislative power companyferred on Parliament by various other provisions in the Constitution. So long as this distinction is kept in mind Parliament would have the power under Art. 368 to amend the Constitution and what Parliament does under Art. 368 is number ordinary law-making which is subject to Art. 13 2 or any other Article of the Constitution. What is the extent of the power companyferred on Parliament and whether there are any limitations on it--express or implied-will be companysidered by us presently. But we have numberdoubt, without entering into the question of sovereignty and of whether Art. 368 companyfers the same sovereign power on Parliament as the Constituent Assembly had when framing the Constitution, that Art. 368 does companyfer power on Parliament subject to the procedure provided therein for amendment of any provision of-the Constitution This brings us to the scope and extent of the power companyferred, for amendment under Art. 368. It is urged that Art. 368 only gives power to amend the Constitution. Recourse is had on behalf of the petitioners to the dictionary meaning of the word, amendment. It is said that amendment implies and means improvement in detail and cannot take in any change in the basic features of the Constitution. Reference in this companynection may be made to- the following meaning of the word amend in the Oxford English Dictionary, namely, to make professed improvements in a, measure before Parliament formally, to after in detail, though practically it may be to alter its principle, so as to thwart . This meaning lit any rate does number support the case of the petitioners that amendment merely means such change as results in improvement in detail. It shows that in-law though amendment MAY professedly, be intended to make- improvements and to alter only in detail, in reality, it may make a radical change in the provision which is amended. In any case, as was pointed out in Sajjan Singhs case 1 the word amend or amendment is well under- 1 1965 1 S.C.R. 933. stood in law and will certainly include any change whether by way of addition or alteration or deletion of any provision in the Constitution. This is numberreason to suppose that when the word. amendment of the Constitution was being used in Art. 368, the intention was to give any meaning less than what we have stated above. To say that amendment in law only means a change which results in improvement would make amendments impossible, for what- is improvement of an existing law is a matter of opinion and what, for example, the legislature may companysider an improvement may number be so companysidered by others. It is therefore in our opinion impossible to introduce in the companycept of amendment as used in Art. 368 any idea of improvement as to details of the Constitution. The word amendment used in Art. 368 must therefore be given its full meaning as used in law and that .means that by amendment an existing Constitution or law can be changed and this change can take the form either of addition to the existing provisions, or alteration of existing provisions and their substitution by others or deletion of certain provisions. altogether. In this companynection reference has been made-to companytrast certain other provisions of the Constitution, where, for example the word amend has been followed by such words as by way of addition, variance or repeal see Sixth Schedule, paragraph 2-1 and more or less similar expressions in other Articles,of the Constitution. it is very difficult to say fact, that numbersuch words appear in Art. make any difference, for the meaning of the word why this was done. But the 368 does number in our, mind amendmend in law is clearly as indicated above by us and the presence or sense, of explanatory words of the nature indicated above do number in our opinion make any difference. The question whether the power of amendment given by Art. 368 also includes the power to abrogate the Constitution companypletely and to replace it by an entire new Constitution, does number really arise in the present case, for the Seventeenth Amendment has number done any such thing and need number be companysidered. It is enough to say that it may be open to doubt whether the power of amendment companytained in Art. 568 goes to the extent of companypletely abrogating the present Constitution and substituting it by an entirely new one. But short of that, we are of opinion that the power to amend includes the power to add any provision to the Constitution. to alter any provision and substitute any other provision in its place and to delete any provision. The Seventeenth Amendment is merely in exercise of the power of amendment a indicated above and cannot be struck down on the ground that it goes beyond the power companyferred on Parliament to amend the Constitution by Art. 368. The next question that arises is whether there is any limi- tation on the power of amendment as explained by us above. Limitations may be of two kinds, namely, express or implied. So far as express limitations are companycerned, there are numbere such in Art. 368. When it speaks of the amendment of this Constitution it obviously and clearly refers to amendment of any provision thereof, including the provisions companytained in Part III relating to fundamental rights. Whether Art. 13 2 is an express limitation on the power of amendment will be companysidered by us law, but so far as, Art. 368 is companycerned there are numberlimitation whatsoever in the matter of substance on the amending power and any provision of the Constitution, be it in Part III and any other Part, can be amended under Art. 368. The next question is whether there are any implied limita- tions on the power of amendment companytained in Art. 368, and this Wags us to the argument that there are certain basic features of the Constitution which cannot be amended at all and there is an implied limitation on the power of amendment companytained in Art. 5-68 so far as these basic features are companycerned. We may in this companynection refer to the view prevailing amongst jurists in the United States of America as to whether there are any plied limitations on the power of amendment companytained in Art. V of the U.S. Constitution. There are two lines of thought in this matter in the United States. Some jurists take the, view that there are certain implied limitations on the power to amend companytained in Art. V of the U.S. Constitution. These are said to be with respect to certain basic features, like, the republican character of Government, the federal structure etc. On the other hand, it is that the more prevalent view amongst jurists in the United States is that there are numberimplied limitations on the scope of the amending power in Art. V of the U.S. Constitution. Willis on the Constitutional Law of the United States of America 1936-Edition says that probably the companyrect position is that the amending power embraces everything in other words there are numberlegal limitations whatever on the power of amendment, except what is expressly provided, in Art. V see- discussion on pp. 1.22 to 127 . Even with respect to these express limitations, Munro in The Government of the United States Fifth Edition at p. 77 says that even these express limitations can be removed and one of the ways of doing so is to remove, the exception by a preliminary amendment and thus clear the way for further action. Besides, as a matter of fact there is numberdecision of the Supreme Court of the United States holding that there are implied limitations on the power of amendment companytained in Art. V of the U.S. Constitution and all amendments so far made in the United States have been upheld by the Supreme Court there in the few cases that have been taken to-it for testing the validity of the amendments. We have given careful companysideration to the argument that certain basic features of our Constitution cannot be amended under Art. 368 and have companye to, the companyclusion that numberlimitations can be and should be implied upon the power of amendment under Art. 368. One. reason for companying to this companyclusion is that if we were to accept that certain basic features of the Constitution cannot be amended under Art. 368, it will lead to the position that any amendment made to any Article of the Constitution would be liable to challenge before companyrts on the ground that it amounts to amendment of a basic feature. Parliament would thus never be able to know what amendments it can make in the Constitution and what it cannot for, till a companyplete catalogue of basic features of the Constitution is available, it would be impossible to make any amendment under Art. 368 with any certainty that it would be upheld by companyrts. If such an implied limitation were to be put on the power of amendment companytained in Art. 368, it would only be the companyrts which would have the power to decide what are basic features of the Constitution and then to declare whether a particular amendment is valid or number on the ground that it amends a particular basic feature or number. The .result would be that every amendment made in the Constitution would provide a harvest of legal wrangles so much so that Parliament may never know what provisions can be amended and what cannot. The power to amend being a companystituent power cannot in our opinion for these reasons be held subject to any implied limitations thereon on the ground that certain basic features of the Constitution cannot be amended. We fail to see why if there was any intention to make any part of the Constitution unamendable, the Constituent Assembly failed to indicate it expressly in Art. 368. If, for example, the Constitution-makers intended certain provisions in the Constitution, and Part III in particular, to be number amendable, we can see numberreason why it was number so stated in Art. 368. On the clear words of Art. 368 which provides for amendment of the Constitution which means any provision thereof,. we cannot infer an implied limitation on the power of amendment of any provision of the Constitution, be it basic or otherwise. Our companyclusion is that companystituent power, like that companytained,in Art. 368, can only be subject to express limitations and number to any implied limitations so,far as substance of the amendments are companycerned and in the absence of anything in Art. 368 making any provision of the Constitution unamendable, it Must be held that the power to. amend in Art. .3 68 reaches every provision of the Constitution and can be used to amend any provision thereof provided the procedure indicated, in Art. 368 is followed. Copious references were made during the companyrse of arguments to debates in Parliament and it is urged that it is open to this Court to look into the debates in order to interpret Art. 368 to find out the intention of the Constitution makers. We are of opinion that we cannot and should number look into the debates that took place in the Constituent Assembly to determine the interpretation of Art. 368 and the scope and extent of the provision companytained therein. It may be companyceded that historical background and perhaps what was accepted or what was rejected by the Constituent Assembly while the Constitution was being framed, may be taken into account in finding out the scope and extent of Art. 368. But we have numberdoubt that what was spoken in the debates in the Constituent Assembly cannot and should number be looked into- in order to interpret Art. 368. Craies on Statute Law Sixth Edition at p. 128 says that it is number permissible in discussing the meaning of an obscure enactment, to refer to parliamentary history of a statute, in the sense of the debates which took place in Parliament when the statute was under companysideration, and supports his view with reference to a large number of English cases. The same is the view in Maxwell on Interpretation of Statutes, 11th Edition p. 26. Crawford on Statutory Construction 1940 Edition at p. 340 says that resort may number be had to debates to ascertain legislative Intent though historical background in which the legislation came to be passed, can be taken into companysideration-. In Administrator General of Bengal v. Prem Lai Mullick 1 , the Privy Council held that proceedings of the legislature cannot be referred to as legitimate aids to the companystruction of the Act in which they result. In Baxter v. Commissioner of Taxation 2 , it was said that reference to historical facts can be made in order to interpret a statute. There was however numberreference to the debates in order to arrive at the meaning of a particular provision of the Constitution there in dispute. In A. K. Gopalan v. the State of Madras 3 , Kania C.J. re- ferring to the debates and reports of the Drafting Committee of the Constituent Assembly in respect of the words of Art. 21 observed at p. I 10 that they might number be read to companytrol the meaning of the Article. In that case all that was accepted was that due process of law which was a term used in the. U.S. Constitution, was number accepted for the purpose of Art. 21 which used the words 44 the procedure established by law. Patanjali Sastri J. at p. 202 also refused to look at the debates and particularly the speeches made in order to determine the meaning of Art. 21. Fazl Ali, J. at p. 158 was of opinion that the pro- 1 1895 22 LA. 107. 2 1907 4 C.L.R. 1087. 3 1950 S.C.R. 88. Sup.CI/67-8 ceedings and discuss ions In Constituent Assembly were number relevant for the purpose of companystruing the expressions used in Art. 2 1. Again in The Automobile Transport Rajasthan Limited v. the State of Rajasthan . , this Court looked into the historical background but refused to look into the debates in order to determine the meaning of the provisions of the Constitution in dispute in that case. We are therefore of opinion that it is number possible to read the speeches made in the Constituent Assembly in order to interpret An. 368 or to define its extent and scope and to determine what it,takes in and what it does number. As to this historical facts namely, what was accepted or what was avoided in the Constituent Assembly in companynection with Art. 368, it is enough to say that we have number been able to find any help from the material relating to this. There were proposals for restricting the power of amendment under Art. 368 and making fundamental rights immune from and there were companynter proposals before the Constituent assembly for making the power, of amendment all embracing They were all either dropped or negatived and in the circumstanses are of numberhelp in determining the interpretation of Art. 368 which must be interpreted on the words thereof as they finally found place in the Constitution, and on those words we have numberdoubt that there are numberimplied limitations of any kind on the power to amend given therein. An argument is also raised that limitations on the power to amend the Constitution can be found in the preamble to the Constitution. As to that we may refer only to in re the Berubari Union and Exchange of Enclaves 2 with respect to the value of the preamble to the Constitution and its importance therein. It was observed in that case unanimously by a Bench of nine judges that although it may be companyrect to describe the preamble as a key to the mind of the Constitution-makers, it form numberpart of the Constitution and cannot be regarded as the source of any substantive power which the body of the Constitution alone can companyfer on the Government , expressly or by implication. This is equally true to prohibitions and limitations. The Court there was companysidering whether the preamble companyld in any way limit the power of Parliament to cede any part of the national teritory and held that it was number companyrect to say that the preamble in any way limit the power of Parliament to cede parts of the national territory. On a parity, of reasoning we are of opinion that the preamble cannot prohibit or companytrol in any way or impose any implied prohibitions or limitations oft Me power to amend the Constitution companytained in Art. 368. 1 1963 1 S.C.R. 491. 2 1960 3 S.C.R. 250. This brings us to the question whether the word law in Art. 13 2 includes an amendment of the Constitution, and therefore there is an express provision in Art. 1 3 2 which at least limits the power of amendment under Art. 3 68 to this extent that by such amendment fundamental rights guaranteed by Part 111 cannot be taken away or abridged. We have already pointed out that in Sankari Prasads case 1 as well as Sajjan Singhs case 1 it has already been held, in one case unanimously and in the other by majority, that the word law in Art. 13 2 does number include an amendment of the Constitution, and it is the companyrectness of this view which is being imputed before this Bench, Article 13 is in three parts. The first part lays down that all laws in force in the territory of India immediately before the companymencement of this Constitution, insofar as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void. Further all previous companystitutional,provisions were repealed by Art. 395 which provided that the Indian Independence Act, 1947, and the Government of India Act, 1935, together with all enactments amending or supplementing the latter Act, but number including the Abolition of Privy Council Jurisdiction Act, 1949, are hereby repealed. Thus it is clear that the word law in Art. 13 1 does number include any law in the nature of a companystitutional provision, for numbersuch law remained after the repealin Art. 395. Then companyes the second part of Art. 13, which says that State shall number make any law which takes away or abridges the rights companyferred by this Part and any law made in companytravention of this clause shall, to the extent of the companytravention, be void. The third part defines the word law for the purpose of Art. 13 the definition is inclusive and number exhaustive. It is because of the definition in cl. 3- of Art. 13 being inclusive that it is urged that the word law in Art. 13 2 includes an amendment of the Constitution also. Now we see numberreason why if the word law in Art. 13 1 relating to past laws does number include any companystitutional provision the word law in cl. 2 would take in an amendment of the Constitution, for it would be reasonable to the word lawin Art. 13 2 includes an amendment of the 13. But apart from this companysideration, we are of opinion that the word law in Art 13 2 companyld never have been intended to take in an amendment of the Constitution. What Art. 13 2 means is that a law made under the companystitutional provisions would, be tested on the anvil of Part III and if it takes away or abridges rights companyferred by Part III it would be void to the extent of the companytraventions. There are many Articles in the Con- stitution, which directly for making law in addition to Articles 245, 246, 248, etc. and the three Lists and-Aft. 13 2 1 1952 S.C.R. 89. 2 1965 1 S.C.R 933. prohibits the State from making any law under these provisions. We see numberdifficulty in the circumstances in holding that Art. 13 2 when it talks of the State making any law, refers to the law made under the provisions companytained in Ch. I of Part XI of the Constitution beginning with Art. 245 and also other provisions already referred to earlier. Article 246 provides that Parliament may make laws for the whole or any part of the territory of India and the legislature of a State may make laws for the whole or any part of the State. Article 246 1 gives exclusive power to Parliament to make laws with respect to subjects enumerated in List 1. Article 246 3 gives exclusive power to State legislatures to make laws with respect to List II. Article 248 1 gives exclusive power to Parliament to make laws with respect to any matter number enumerated in the Concurrent List or the State List. We are referring to these provisions merely to show that the various provisions in Chapter I of Part XI provide for making laws,and these laws are all laws which are made under the legislative power companyferred on Parliament or on State legislatures under the Constitution. Therefore when in Art. 13 it is said that the State shall number make any law State there including Parliament and legislature of each State , its meaning companyld only take in laws made by Parliament and State legislatures under the powers companyferred under Chapter I of Part XI. and also other provisions already referred to earlier. We have already held that the power to amend the Constitution is to be found in Art. 368 along with the procedure and that such power is number to be found in Art. 248 read item 97 of List I. Therefore an amendment of the Constitution is number an ordinary law made under the powers companyferred under Chapter I of Part XI of the Constitution and cannot be subject to Art. 13 2 where the word law must be read as meaning law made under the ordinary legislative power. We have already referred to a large number of Articles where Parliament is given the power to make law with respect to those Articles. So far as this power of Parliament is companycerned it is ordi- nary legislative power and it will certainly be subject to Art. 13 2 . But there can in our opinion be numberdoubt that when Art. 13 2 prohibits the State from making any law which takes away or abridges rights companyferred by Part III, it is only referring to ordinary legislative power companyferred on Parliament and legislatures of States and cannot halve any reference to the companystituent power for amendment of the Constitution companytained in Art. 368. We have already pointed out that there are numberimplied limitative on the power to amend under Art. 368 and it is open to Parliament under that Article to amend any part of the Constitution, including Part M. It is worth remembering that a whole Part XX is devoted by the Constitution-makers to the subject of amendment of the Constitution. If it was their intention that Part III of the Constitution will number be liable to amendment by way of abridgement or abrogation under the amending power companytained in Art. 368 we see numberreason why an express provision to that effect was number made in Art. 368. We cannot see what prevented the Constituent Assembly from making that clear by an express provision in Art. 368. It is however said that it was number necessary to say so in Art. 368, because the provision was already made in Art. 13 2 . We are unable to accept this companytention, for we have numberdoubt that Art. 13 2 , when it refers to making of laws is only referring to the ordinary legislative power and number to the companystituent power which results in amendment of the Con- stitution. In any case it seems to us somewhat companytradictory that in Art. 368 power should have been given to amend any provision of the Constitution without any limitations but indirectly that power is limited by using words of doubtful import in Art. 13 2 . It is remarkable that in Art. 13 2 there is numberexpress provision that amendment of the Constitution, under Art. 368, would be subject thereto. It seems strange indeed that numberexpress provision was made in Part XX in this matter and even in Art. 13 2 numberexpress provision is made to this effect, and in both places the matter is left in a state of uncertainty. It is also remarkable that in Art. 368 the word law, which we find so often used in so many Articles of the Constitution is companyspicuously avoided, and it is specifically provided that after the procedure has been gone through the Constitution shall stand amended in accordance with the terms of the Bill. This language of Art. 368 is very significant and clearly makes a distinction between a companystitutional Amendment and an ordinary law passed as an Amending Act. The validity of a law has to be determined at the time when the Bill actually matures into an Act and number at the stage while it is still a Bill. The provision in Art. 368 has the effect that when a Bill amending the Constitution receives the assent of the President, the Constitution stands amended in accordance with the terms of the Bill. The Constitution thus stands amended in terms of the Bill if the Bill has been introduced, passed and assented to by the President in accordance with the procedure laid down in Art. 368 and number as a result of the Bill becoming an Amendment Act introducing amendment in the Constitution. The provision that the Constitution shall stand amended in terms of the Bill was thus clearly intended to indicate that the amendment of the Constitution is number dependent on the Bill being treated as a law or an Act duly passed by Parliament. Thus it is clear that by indicating that the Constitution is to stand amended in accordance with the terms of the Bill, Art. 368 clearly envisages that the power of amendment of the Constitution stands on an entirely different footing from an ordinary law made by Parliament in exercise of its legislative power. If We keep in mind this difference, between companystitutional amendment or companystitutional law and an ordinary amending Act or law, it should number be difficult to hold that when Art 13 2 , speaks of the St-ate making a law, it is referring to ordinary law made under the powers companyferred by Art. 245 etc read with various Lists and various provisions of the Constitution where express provision to that effect has been made and is number referring to the amendment of the Constitution which is made under the companystituent power. Once it is held that the power to amend is found in Art. 368 and is number to be found in Art. 248 read with item 97 of List I, it must follow that the power to amend the Constitution under Art. 368 is a different power namely, companystituent power and when Art. 13 2 speaks of making law, it can only refer to making ordinary law, particularly when we companypare the words of Art. 13 2 namely, the State shall number make any law and the words of Arts. 245, 248, and 250 which all speak of Parliament making law, State- legislatures making law, and so on . Lastly, as the power to amend is in Art. 368 and on the words, as they stand in that Article, that power is unfettered and includes the power to amend Part III, it is strange that that power should be limited by putting an interpretation on the word law in Art. 13 2 , which would include companystitutional law also. There is numberhing to suggest this even in the inclusive definition of the words law and laws in force in Art. 13 3 . Besides, it is companyceded on behalf of the petitioners that Art. 368 gives power to amend Part 111, but that power is only to amend one way, namely, towards enlargement of the rights companytained therein, and number the other way, namely, for, abridging or taking away the rights companytained therein. W.-, must say that it would require a very clear provision in the Constitution to read the power to amend the Constitution relating to Part III in this manner. We cannot find that clear provision in Art. 1 3 2 . We repeat that when the Constituent Assembly was taking the trouble of providing a whole Part for amendment of the Constitution and when the words in Art. 368 clearly give the power to amend the Constitution and are subject to numberimplied limitations and companytain numberexpress limitations, it is strange indeed that it should have omitted to provide in that very Article that Part III is number liable to amendment thereunder. In any case if the power of amendment companyferred by the words of Art. 368 is unfettered, we must avoid any inconsistency between that power and the provision companytained in Art. 13 2 . We avoid that in keeping with the unfettered power in Art. 368 by reading the word law in Art. 13 2 as meaning law passed under ordinary legislative power and thus number including an amendment of the Constitution therein. The words in Art.II 2 are in our opinion number specific and clear enough to take in the power of amendment under Art. 368 and must be companyfined only to the power of ordinary law-making companytained in Arts. 245 etc., and other provisions of the Constitution read with various Lists. We have therefore numberhesitation in agreeing with the view taken in Sankari Prasads case 1 which was upheld by the majority in Sajjan Singhs case 2 . The next argument is that action under the proviso to Art. 368 is necessary as the Seventeenth Amendment affects the power of the High Court companytained in Art. 226. It is said that by including various Acts in the Ninth Schedule and making them immune from challenge under the provisions companytained in Part III, the power of the High Court under Art. 226 is affected inasmuch as the High Court cannot strike down any of the Acts included in the Ninth Schedule on the ground that they take away or abridge the rights companyferred by Part III. So it is said that there has been a change in Art. 226 and it was necessary that the Seventeenth Amendment should have been ratified by more than half the States under the proviso. A similar argument was raised in Sankari Prasads case 1 and was turned down unanimously. The same argument was again raised in Sajjan Singhs case 2 and was also turned down. Now ratification is required under the proviso if the amendment seeks to make any change in various provisions mentioned therein and one such provision is Art. 226. The question therefore is whether the Seventeenth Amendment makes any change in Art. 226 and whether this change has to be a direct change in the words of Art. 226 or whether merely because there may be some effect by the Seventeenth Amendment on the, companytent of the power in Art. 226 it will amount to change in Art. 226. We are of opinion that when the proviso lays down that there must be ratification when there is any change in the entrenched provisions, including Art. 226, it means that there must be actual change in the terms of the provision companycerned. If there is numberactual change directly in the entrenched provision, numberratification is required, even if any amendment of any other provision of the Constitution may have some effect indirectly on the entrenched provisions mentioned in the proviso. But it is urged that there may be such a change in some other provision as would seriously affect an entrenched provision, and in such a case ratification should be necessary. This argument was also dealt with in the majority judgment in Sajjan Singhs case 2 where the doctrine of pith and substance was applied and it was held that where the amendment in any other Article so affects the entrenched Article as to amount to an amendment therein, then ratification may be necessary, even though the entrenched Article may number be directly touched. Perhaps the use of the doctrine of pith and substance 1 1952 S. C. R. 89. 2 1965 1 S.C.P. 933. in such a case is number quite apt. But what was meant in Sajjan Singhs case 1 was that if there is such an amendment of an unentrenched Article that it will directly affect an entrenched Article and necessitate a change therein, then recourse must be had to ratification under the proviso. We may illustrate this by two examples. Article 226 lays down inter alia that the High Court shall have power to issue writs for the enforcement of any of the rights companyferred by Part III and for any other purpose. Now assume that Part III is companypletely deleted by amendment of the Constitution. If that takes place, it will necessitate an amendment of Art. 226 also and deletion therefrom of the words for the enforcement of any of the rights companyferred by Part III. We have numberdoubt that if such a companytingency ever happens and Part III is companypletely deleted, Parliament will amend Art. 226 also and that will necessitate ratification under the proviso. But suppose Parliament merely deletes Part III and does number make the necessary companysequential amendment in Art. 226, it can then be said that deletion of Part III necessitates change in Art. 226 also, and therefore in such a case ratification is necessary, even though Parliament may number have in fact provided for amendment of Art 226. Take another example. Article 54 is an entrenched Article and provides for the election of the President. So is Art. 55 which provides for the manner of election. Article 52 which lays down that there shall be a President is on the other hand number an entrenched Article. It is said that Art. 52 may be altered and something else may be substituted in its place and that would number require ratification in terms as Art. 52 is number among the entrenched Articles. But we are of opinion that if Parliament amends Art. 52, it is bound to make companysequential amendments in Arts. 54 and 55 which deal with the election of the President and the manner thereof and if it is so the entire amendment must be submitted for ratification. But suppose Parliament merely amends Art. 52 and makes numberchange in Arts. 54 and 55 a supposition which is impossible to visualise . In that case it would in our opinion be right to hold that Art. 52 companyld number be altered by abolition of the office of the President without necessi- tating a change in Arts. 54 and 55 and in such a case if Art. 52 alone is altered by Parliament, to abolish the office of President, it will require ratification. These two examples will show where alteration or deletion of an unentrenched Article would necessitate amendment of an entrenched Article, and in such a case if Parliament takes the incredible companyrse of amending only the unentrenched Article and number amending the entrenched Article, companyrts can say that ratifi- 1 1965 1 S.C.R. 933. cation is necessary even for amending the unentrenched Article, for it directly necessitates, a change in an entrenched Article. But short of that we are of opinion that merely because there is some effect indirectly on an entrenched Article by amendment of an unentrenched Article it is number necessary that there should be ratification in such circumstances also. Besides, let us companysider what would happen if the argument on behalf of the petitioners is accepted that ratification is necessary whenever there is even indirect effect on an entrenched Article by amending an unentrenched Article. Take the case of Art. 226 itself It gives power to the High Court number only to issue writs for the enforcement of fundamental rights but to issue them for any other purpose. Writs have thus been issued by High Courts for enforcing other rights companyferred by ordinary laws as well as under other provisions of the Constitution, like Arts. 301 and On this argument if any change is made in Arts. 301 and 311 there is bound to be an effect on Art. 216 and therefore ratification would be necessary, even though both Arts. 301 and 311 are number entrenched in the proviso. Further, take an ordinary law which companyfers certain rights and it is amended and those rights are taken away. Article 226 would be clearly affected. Before the amendment those rights may be enforced through Art. 226 while after the amendment the rights having disappeared there can be numberenforcement thereof. Therefore, on this argument even if there is amendment of ordinary law there would be an effect on Art. 226 and it must therefore be amended every time even when ordinary law is changed and the entire procedure under Art. 368 must be gone through including ratification under the proviso. It is however said that when ordinary law is amended, rights disappear and therefore there is numberquestion of enforcement thereof if that is companyrect with respect to ordinary law, it is in our opinion equally companyrect with respect to the amendment of an unentrenched provision of the Constitution. The answer given in Sankari Prasads case 1 to this argument was that Art. 226 remained just the same as it was before, and only a certain class of cases had been excluded from the purview of Part III and the companyrts companyld numberlonger interfere, number because their powers were curtailed in any manner or to any extent, but because there would be numberoccasion thereafter for the exercise of their power in such cases. We respectfully agree with these observations and are of opinion that merely because there is some indirect effect on Art. 226 it was number necessary that the Seventeenth Amendment should have been ratified by more than one half of the States. It is only in the extreme case, the examples of which we have given above, that an amendment of an unentrenched Article without amendment of entrenched Article 1 1952 S.C.R. 89. might be had for want of ratification, and this is what was intended- by the majority judgment in Sajjan Singhs case 1 , when it applied the doctrine of pith and substance in these circumstances. The argument that ratification is necessary as Art. 226 is indirectly affected has therefore numberforce and must be rejected. This is equally true with respect to the power of this Court under Arts. 132 and 136. Then it is urged that Art. 245 is enlarged by the Seventeenth Amendment inasmuch as State legislatures and Parliament were freed from the companytrol of Part III in the matter of certain laws affecting, for example. ryotwari lands, and therefore as Art. 245 is an entrenched Article there should have been ratification under the proviso. This argument in our opinion is of the same type as the argument with respect to the effect on Art. 226 and our answer is the same, namely, that there is numberdirect effect on Art. 245 by the amendment and the indirect effect, if.-any, does number require that there should have been ratification in the present case. It is then urged that ratification is necessary as Art. 31-B deals with State legislation and in any case Parliament cannot make, any law with respect to Acts which were put in the Ninth Schedule and therefore Parliament companyld number amend the Constitution in the manner in which it was done by making additions in the Ninth Schedule, both for want of ratification and for want of legislative companypetence. The answer to this argument was given in Sahkari Prasads case 2 and it was observed there that- Article 31-A and 31-B really seek to save a certain class of laws and certain specified laws already passed from the companybined operation of Art. 13 read with other relevant Articles of Part III. The new Articles being thus essentially amendments of the Con- stitution, Parliament had the power of enacting them. That laws thus saved relate to matters companyered by List II does number in any way affect the position. It was said that Parliament companyld number validate a law which it had numberpower to enact. The proposition holds good where. the validity of the impugned provision turns on whether the subject matter, falls within or without the jurisdiction of the legislature which passed it But to make a law which companytravenes the Constitution, companystitutionally valid is a matter of companystitutional amendment and as such it falls within the exclusive power of Parliament. 1 1965 1 S.C.R. 933. 2 1952 S.C.R. 89. We respectfully agree with these observations. They succinctly put the legal and companystitutional position with respect to the validity of Arts, 3 1 A and 3 1 B. It seems to us that Art. 3 1 B in particular is a legislative drafting device which companypendiously puts in one place amendments which would otherwise have been added to the Constitution under various Articles in Part III. The laws in the Ninth Schedule have by the device of Art. 3 1 B been excepted from the various provisions in Part III, which affected them and this exception companyld only be made by Parliament. The infirmity in the Arts put in the Ninth Schedule was apprehended to be a companystitutional infirmity on the ground that those laws might take away or abridge rights companyferred by Part HI. Such a companystitutional infirmity companyld number be cured by State legislatures in any way and companyld only be cured by Parliament by companystitutional amendment. What Parliament in fact did by including various Acts in the Ninth Schedule read with Art. 3 1 B was to amend the various provisions in Part III, which affected these Acts by making them an exception to those provisions in Part III. This companyld only be done by Parliament under the companystituent power it had under Art. 368 and there was numberquestion of the application of the proviso in such a case, for Parliament was amending Part III only with respect to these laws. The laws had already been passed by State legislatures and it was their companystitutional infirmity, if any, which was being cured by the device adopted in Art. 3 1 B read with the Ninth Schedule, the amendment being only of the relevant provisions of Part III which was companypendiously put in one place in Art. 3 1 B. Parliament companyld alone do it under Art. 368 and there was numbernecessity for any ratification under the proviso, for amendment of Part III is number entrenched in the proviso. Nor is there any force in the argument that Parliament companyld number validate those laws by curing the companystitutional infirmity because they dealt with land which is in List 11 of the Seventh Schedule to the Constitution over which State Legislatures have exclusive legislative power. The laws had already been passed by State legislatures under their exclusive powers what has been done by the Seventeenth Amendment is to cure the companystitutional infirmity, if any, in these laws in relation to Part III. That companyld only be done by Parliament and in so doing Parliament was number encroaching on the exclusive legislative power of the State. The States had already passed the laws and all that was done by the Seventeenth Amendment was to cure any companystitutional infirmity in the laws by including them in the Ninth Schedule read with Art. 31-B. We must therefore reject the argument that the Seventeenth Amendment required ratification because laws put in the Ninth Schedule were State law-,. We must equally reject the argument that as these laws dealt with land, which is in the- exclusive legislative power of State legislature, Parliament companyld number cure the companystitutional infirmity, if any, in these laws by putting them in the Ninth Schedule. We number companye to what may be called the argument of fear. It is urged that if Art. 368 companyfers companyplete power to amend each and every provision of the Constitution as we have held that it does-frightful companysequences will follow on such an interpretation. If Parliament is clothed with such a power to amend the Constitution it may proceed to do away with fundamental rights altogether, it may abolish elected legislatures, it may change the present form of Government, it may do away with the federal structure and create a unitary state instead, and so on. It is therefore argued that we should give a limited interpretation to the power of amendment companytained in Art. 368, as otherwise we shall be giving power to Parliament to destroy the Constitution itself. This argument is really a political argument and cannot be taken into account in interpreting Art. 368 when its meaning to our mind is clear. But as the argument was urged with a good deal of force on behalf of the petitioners and was met with equal force on behalf of the Union and the States, we propose to deal with it briefly. Now, if this argument means that Parliament may abuse its power of amendment companyferred by Art. 368, all that need be said in reply is that mere possibility of abuse cannot result in companyrts withholding the power if the Constitution grants it. It is well-settled so far as ordinary laws are companycerned that mere possibility of abuse will number induce companyrts to hold that the power is number there, if the law is valid and its terms clearly companyfer the power. The same principle in our opinion applies to the Constitution. If the Constitution gives a certain power and its terms are clear, there is numberreason why that power should be withheld simply because of possibility of abuse. If we may say so, possibility of abuse of any power granted to any authority is always there and if possibility of abuse is a reason for withholding the power, numberpower whatever can ever be companyferred on any authority, be it executive, legislative or even judicial. Therefore, the so-called fear of frightful companysequences, which has been urged on behalf of the Petitioners if we hold, as we do, that the power to amend the Constitution is unfettered by any implied limitations , is numberground for withholding the power, for we have numberreason to suppose that Parliament on whom such power is ,conferred will abuse it. Further even if it abuses the power of companystitutional amendment under Art. 368 the check in such circumstances is number in companyrts but is in the people who elect members of Parliament. The argument for giving a limited meaning to Art. 368 because of possibility of abuse must therefore be rejected. The other aspect of this argument of fear is that we should number make the Constitution too flexible so that it may be open to the requisite majority with the requisite ratification to make changes too frequently in the Constitution. It is said that the Constitution is an organic document for the governance of the companyntry and it is expected to endure and give stability to the institution which it provides. That is undoubtedly so and this is. very true of a written federal Constitution. But a perusal of. various Constitutions of the world shows that there are usually provisions for amendment of the Constitution in the Constitution itself. This power to amend a Constitution may be rigid or flexible in varying degrees. Jurists have felt that where the power to amend the Constitution is made too rigid and the people outgrow a particular Constitution and feel that it should be amended but cannot do so because of the rigidity of the Constitution, they break the Constitution, and this breaking is more often than number by violent revolution. It is admitted by even those writers on the United States Constitution who are of the view that there are certain basic features which cannot be amended and who would thus make the U. S. Constitution even more rigid than it is that howsoever rigid the Constitution may be its rigidity will number stop the people from breaking it if they have outgrown it and this breaking is, generally speaking, by violent revolution. So, making our Constitution rigid by putting the interpretation which the petitioners want us to put on it will number stop the frightfulness which is companyjured up before us on behalf of the petitioners. If anything, an interpretation which will make our Constitution rigid in the manner in which the petitioner want the amending power in Art. 368 to be interpreted will make a violent revolution, followed by frightfulness of which the petitioners are afraid, a nearer possibility than an interpretation which will make it flexible. It is clear that our Constitution-makers wanted to avoid making the Constitution too rigid. It is equally clear that they did number want to make an amendment of the Constitution too easy. They preferred an intermediate companyrse which would make,the Constitution flexible and would still number allow it to be amended too easily. That is why Art. 368 provides for special majorities of the two Houses for the purpose of amendment of the Constitution. Besides it also provides for ratification by more than half the States in case of entrenched Provisions in the proviso. Subject to these limitations, the Constitution has been, made moderately flexible to allow any change when the people feel that change is necessary. The necessity for special majorities in each House separately and, the necessity for, ratification by more than half the States in certain cases appear to us to be sufficient safeguards to prevent too easy change in the Constitution without making it too rigid. But it is said that, in the last sixteen Years, a large number of amendments have been made to the companystitution and that shows that the power to amend is much too easy and should be restricted by judicial interpretation. Now, judicial interpretation cannot restrict the power on the basis of a political argument. It has to interpret the Constitution and finds it on the basis of well-known,canons of companystruction,and on the terms of Art. 368 in particular. If on those terms it is clear we think it is-that power to amend is subject to numberlimitations except those to be expressly found in the Constitution, companyrts must give effect to that. The fact that m the last sixteen years a large number of amendments companyld be made and have been made is in our opinion due to the accident that one party has been returned by electors in sufficient strength to be able to companymand the special majorities which are required under Art. 368, number only at the Centre but also in all the Stites. It is because of this circumstance that we have had so many amendments in the companyrse of the last sixteen years. But that in our opinion is numberground for limiting the clear words of Art. 368. The power of amendment companytained in a written federal Con- stitution is a safety valve which to a large extent provides for stable growth and makes violent revolution more or less unnecessary. It has been said by text-book writers that the power of amendment, though it allows for change, also makes a Constitution long lived and stable and serves the needs of the people from time to time. If this power to amend is made too rigid it loses its value as a safety valve. The more rigid a Constitution the more likely it is that people will outgrow it and throw it over-board violently. On the other hand, if the Constitution is flexible though it may number be made too easy to modify it the power of amendment provides for stability of the Constitution itself and for ordered progress of the nation. If therefore there had to be a choice between giving an interpretation-to Art. 368 which would make our Constitution rigid and giving an interpretation which would make it flexible, we would prefer to make it flexible, so that it may endure for a long period of time and may, if necessary, be amended from time to time in accordance with the progress in the ideas of the people for whom it is meant. But we feel that it is number necessary to go to this extent, for that would be entering into the field of politics. As we see the terms of Art. 368, we are clearly Df opinion that the Constitutionmakers wanted to make our Constitution reasonably flexible and ,.that the interpretation that we have given to Art. 368 is in companysonance with the terms thereof and the intention of those who made it. We therefore reject the argument of fear altogether. This brings us to the argument of stare decisis raised on behalf of the Union of India and the States. The argument is put thus. After the decision of the Patna High Court invalidating the Bihar Land Reforms Act, 1950, Parliament passed the First Amendment to the Constitution. That Amendment was challenged in this Court by a number of writ petitions and was upheld in Sankari Prasads case - in 1951. That case practically stood unchallenged till Sajjan Singhs case 2 in 1964 after the Seventeenth Amendment was passed. Thus in the companyrse of these fifteen years or so a large number of State Acts were passed on the basis of the First Amendment by which in particular Arts. 31-A and 31-B were introduced in the Constitution. It is said that though Sankari Prasads case 1 has stood for less than 15 years there have been so many laws dealing with agrarian reforms passed on the basis of the First Amendment which was upheld by this Court that the short period for which that case has stood should number stand- in the way of this Court acting an the principle of, stare decisis. The reason for this is that an agrarian revolution, has taken place all over the companyntry after the First Amendment by State laws passed on the faith of the decision of this Court in Sankari Prasads case 1 . This agrarian revolution has led to millions of acres of land having changed hands and millions of number titles having been created. So it is urged that the un- animous decision in Sankari Prasads case 2 , which was challenged when the Seventeenth Amendment was passed and was upheld by majority in Sajjan Singhs case 2 should number number be disturbed as its disturbance would create chaos in the companyntry, particularly in the agrarian- sector which companystitutes the vast majority of the population in this companyntry. We are of opinion that there is force in this argument . Though the period for which Sankari Prasads case 1 has stood unchallenged is number long, the effects which have followed in, the passing of State laws on the faith of that decision, are so overwhelming that we should number disturb the decision in that case. It is number disputed that millions of acres of land have changed hands and millions of new titles in agricultural lands have been created and the State laws dealing with Agricultural land which have been passed in the companyrse of the last fifteen years after the decision in Samkari Prasads case 1 have brought about an agrarian revolution. Agricultural population companystitutes a vast majority of the population in this companyntry. In these circumstances it would in our opinion be wrong to hold number that 1 1952 S.C.R. 89. 2 1965 1 S.C.R. 933. Sankari Prasads case 1 was number companyrectly decided and thus disturb all that has been done during the last fifteen years and create chaos into the lives of millions. of our companyntrymen who have benefited by these laws relating, to agrarian reforms. We would in the circumstances accept the argument on behalf of the Union of India and the States that this is the fittest possible case in which the principle of stare decisis should be applied. On this basis also, apart from our view that Sankari Prasads case 1 was in fact rightly decided, we would number interfere with that decision number. But it is urged that instead of following the principle of stare decisis which would make die decision in Sankari Prasads case 1 good for all times., we should follow the doctrine of prospective over-ruling, which has been evolved by some United States companyrts so that everything that has been done up to number, including the Seventeenth Amendment would be held good but in future it would number be open to Parliament to amend Part III by taking away or abridging any of the rights companyferred thereby and, if the argument as to implied limitations on the power to amend is accepted, further limit the power of Parliament to amend what may be called basic features of the Constitution. We must say that we are number prepared to accept the doctrine of prospective over-ruling. We do number know whether this doctrine which it is urged should be applied to companystitutional amendment would also be applied to amendments of ordinary laws. We find it difficult to visualise what would be the effect of this doctrine if it is applied to amendment of ordinary laws. We have so far been following in this companyntry the well-known doctrine that companyrts declare law and that a declaration made by a companyrt is the law of the land and takes effect from the date the law came into force. We would on principle be loath to change that well-known doctrine and supersede it by the doctrine of prospective over-ruling. Further it seems to us that in view of the provisions of Art. 13 2 it would be impossible to apply the doctrine of prospective over- ruling in our companyntry, particularly where a law infringes fundamental rights. Article 13 2 lays down that all. laws taking away or abridging fundamental rights would be void to the extent of companytravention. It has been held by this Court in Deep Chand v. The State of Uttar Pradesh 2 that a law made after the Constitution came into force which infringes fundamental rights is a stillborn law and that the prohibition companytained in Art. 13 2 went to the root of the State power of legislation and any-law made in companytravention of that provision was void ab initio. This case has been followed in Mahendra Lal Jaini v. The State of Uttar Pradesh 3 . In the face of these 1 1952 S.C.R. 89. 2 1959 Supp. 2 S.C.R. 8. 3 1963 Supp. 1. S.C.R. 912. decisions it is impossible to apply the principle of prospective over-ruling in this companyntry so far as ordinary laws are companycerned. Further, if the word law in Art. 13 2 includes an amendment of the Constitution, the same principle will apply, for that amendment would be stillborn if it infringes any fundamental rights companytained in Part III. In these circumstances, it would be impossible to apply the principle of prospective over-ruling to companystitutional amendments also. On the other hand, if the word law in Art. 13 2 does number include an amendment of the Constitution, then there is numbernecessity of applying the principle of prospective over-ruling, for in that case unless some limitations on the power of amendment of the Constitution are implied the amendment under Art. 368 would number be liable to be tested under Art. 13 2 . We are therefore unable to apply the doctrine of prospective over- ruling in the circumstances. Further as we are of opinion that this is the fittest possible case in which the prin- ciple of stare decisis applies,we must uphold Sankari Prasads case 1 for this reason also. Lastly we would refer to the following observations in Sajjan Singhs case 2 at pp. 947-48 with respect to over- ruling earlier judgments of this Court and specially those which are unanimious like Sankari Prasads case 1 - It is true that the Constitution does number place any restriction on our powers to review our earlier decisions or even to depart from them and there can be numberdoubt that in matters relating to the decision of companystitutional points which have a significant impact on the fundamental rights of citizens, we would be prepared to. review our earlier decisions in the interest of public good Even so, the numbermal principle that judgments pronounced by this Court would be final, cannot be ignored and unless companysiderations of a substantial and companypelling character make it necessary to. . do so, we should be slow to doubt the companyrectness of previous decisions.or to depart from them. It is universally recognised that in regard to a large number of companystitutional problems which are brought before this Court for its decision, companyplex and difficult questions arise and on many of such questions two views are possible. Therefore, if one view has been taken. by this Court after mature deliberation, the fact that another Bench is inclined to take a different-view may number justify the Court in reconsidering the earlier decision or in departing from, it Even so, the Court should be re- 1 1952 S.C.R. 89. 2 1965 1 S.C.R. 933. CI/67-9 luctant to accede to the suggestion that its earlier decisions should be light-heartedly reviewed and departed from. In such a case the test should be is it absolutely necessary and essential that the question already decided should be reopened The answer to this question would depend on the nature of the infirmity alleged in the earlier decision, its impact on public good, and the validity and companypelling character of the companysiderations urged in support of the companytrary view. If the said decision has been followed in a large number of cases, that again is a factor which must be taken into account. A similar view was taken in the Keshav Mills Company Limited Commissioner of Income-tax, 1 where it was observed that- before a previous decision is pronounced to be plainly erroneous, the Court must be satisfied with a fair amount of unanimity amongst its members that a revision of the said view is fully justified. These principles were applied in Sajjan Singhs case 2 and it was observed that if Sankari Prasads case 3 were to be overruled, it would lead to the inevitable companysequence that the amendments made in the Constitution both in 1951 and 1955 would be rendered invalid and a large number of decisions dealing with the validity of the Acts included in the Ninth Schedule which have been pronounced by, different High Courts ever since the decision of this Court in Sankari Prasads case 3 was declared, would also be exposed. to serious jeopardy. The majority in that case therefore was number in favour of reviewing Sankari Prasads case . even so in View of the argument raised and the importance of the question it companysidered the arguments against that decision and came to the companyclusion its that that case was rightly decided We may add that besides so many cases in the High Courts there have been a large number of cases in this Court to which it is unnecessary to refer where on the faith of various amendments made in the Constitution, particularly the First, the Fourth and the Sixteenth, amending fundamental rights, this Court has upheld the, validity of various Acts on the basis of these amendments. Further we would be very reluctant to over-rule the unanimous decision in Sankari Prasads case. 3 or any other unanimous decision by the slender majority of one in a larger Bench companystituted for the purpose. We say this with great respect and would hold that apart from the principle of stare decisis we should number say that the 1 1965 2 S.C.R. 908. 2 1965 1 S.C.R. 933 3 1952 S.C.R. 89 unanimous judgment in Sankari Prasads case , was wrongly decided by such a slender majority in this Special Bench. We therefore hold that Sankari Prasads cases 1 was companyrectly decided and that the majority,in Sajjan Singhs case 2 WAS Correct in following that decision. We would follow the decision in Sankari Prasads case 1 even number as in our opinion it was companyrectly decided. Following that decision we hold that the Seventeenth Amendment is good. In view of this decision it is unnecessary to refer to other arguments raised with respect to the two petitions challenging the Mysore Land Reforms Act. In our view therefore all the three petitions should fail and we would dismiss them. In the circumstances we would pass numberorder as to companyts. Hidayatulla. J In these three writ petitions, the facts of which appear in the two judgment just delivered, the validity of the Punjab Security of Land Tenures Act, 1953 and the Mysore Land Reforms Act, 1953, is principally involved. Since these Acts are protected by the Constitution Seventeenth Amendment Act, 1964, the validity of the companystitutional amendment is also questioned. Therefore, a much larger field must be traversed because of the claim of the State that numberpart of the Constitution from the Preamble to the Ninth Schedule, is beyond the provision for amendment companytained in Art. 368. The article, forms the Twentieth Part of the Constitution and is said to be a companye by itself in which reposes a sovereign power, transcending anything elsewhere in the Constitution. The State submits that except as stated in the article there are numberlimitations on the amending power and denies that there are any implied restrictions. It claims, therefore, that an amendment of the Constitution Or of any of its part can never be a justiciable issue if the procedure for amendment has been duly followed. In this claim numberexception is made- the Preamble, the Fundamental Rights, the guaranteed remedy to uphold them all of them severally and together are said to be capable of being Partially or wholly abrogated by an amendment. Looked at from, this Point of view the Seven- teenth Amendment Act number only must be valid but also beyond the Power of the companyrts to question. The petitioners, on the other hand, companytend that this is to deny the real importance and inviolability of the Fundamental Rights which the Constitution itself, paramount even to Art., 368 companysideration. before we can Acts are valid or number. 1 1952 S.C.R. 89. 2 1965 1 S.C. R.933. The same questions were before this Court on two earlier occasions. They arose for the first time immediately after the Constitution First Amendment Act, 1951 was adopted and became the subject of a decision of this Court reported in Sri Sankari Prasad Singh Deo v. Union of India 1 . There Patanjali Sastri J. speaking for Harilal Kania C.J., Mukherjea, Das and Chandrasekhara Aiyar, JJ.and himself upholds the First Amendment on the grounds that the power companyferred by Part XX is companystituent, paramount and sovereign and is, therefore, number subject to Art. 13 2 which prohibits the making of ordinary laws tending to abridge or take away Fundamental Rights.The questions were again before the Court in sajjan Singh c. State of Rajasthan 2 when the Seventeenth Amendment was impugned. The authority of Sankari Prasads case 1 was the ministry ofof the argument in support of the validity of the new amendment. This time the Court was number unanimous although the Court as aas a whole did number strike down the Act. Three opinions weredelivered by Gajendragadkar, C.J. on behalf of Wanchoo and Raghubar Dayal, JJ. and himself, by Mudholkar, J. and by me. I found the reasoning in Sankari Prasads case 1 to be unaccept- able, although for reasons which I shall give, I refrained from expressing a final opinion. Mudholkar, J. in his opinion supported me with additional and forceful reasons but he also did number express himself finally on the broader question. I closed my opinion with the following observations -- I would require stronger reasons than those given in Sankari Prasads case 1 to make me accept the view that Fundamental Rights were number really fundamental but were intended to be within the powers of amendment in companymon with the other parts of the Constitution and without the companycurrence of the States. No doubt Art. 19 by clauses numbered 2 to 6 allows a curtailment of rights in the public interest. Ibis shows that Part III is number static. It Visualises changes and progress but at the same time it preserves the individual rights. There is hardly any measure of reform which cannot be introduced reasonably, the guarantee of individual liberty numberwithstanding. Even the agrarian reforms companyld have been partly carried out without Article 31-A and 31-B but they would have companyt more to the public exchequer. the rights of society are made paramount and they ire placed above those of the individual. This is as it should be. But restricting the Fundamental Rights by resort to cls. 2 to 6 of Mt. 19 is 1 1952 S.C.R. 89. 2 1965 1 S.C.R. 933. one thing and removing the rights from the Constitution or debilitating them by an amendment is quite another. This is the implication of Sankari Prasads case 1 . It is true that such things would never be, but one is companycerned to know if such a doing would be possible. The Constitution gives so many assurances in Part III that it would be difficult to think that they were the playthings of a special majority. To hold this would prima facie that the most solemn parts of our Constitution stand on the same footing as any other provision and even on a less firm ground than one on which the articles mentioned in the proviso stand. The anomaly that Art. 226 should be somewhat protected but number Art. 32 must give us pause. Article 32 does number erect a shield against private companyduct but against state companyduct including the legislatures See Art. 12 . Can the legislature take away this shield ? Perhaps by adopting a liberal companystruction of Art. 368 one can say that. But I am number inclined to play a grammarians role. As at present advised I can only say that the power to make amendments ought number ordinarily to be a means of escape from absolute companystitutional restrictions. My opposition lest one misunderstands its veridical charac- ter appears to be cautious and even timid but this was because it was attended by an uneasy feeling that I might have missed some immanent truth beyond what was said in Sankari Prasads case 1 . The arguments then were extremely brief. After hearing full arguments in this- case, which have number added to the reasoning of the earlier cases, I am number satisfied that the reasons are companyent enough for me to accept them. I say it with respect that I felt then, as I do so even more strongly number, that in the two earlier cases, the result was reached by a mechanical juris prudence in which harmonious companystruction was taken to mean that unless Art. 368 itself made an exception the existence of any other provision indicative of an implied limitation on the amending power, companyld number be companysidered. This was really to refuse to companysider any argument which did number square with the a priori view of the omnicompetence of Art. 368. Such reasoning appears to me to be a kind of doctrinaire companyceptualism based on an and textual approach supplemented by one companycept that an amendment of the Constitution is number an exercise of legislative 1 1952 S.C.R. 89. power but of companystituent Dower and, therefore, an amendment of the Constitution is number law at all as companytemplated by Art. 13 2 . I. am reminded of the. words of. Justice Holmes that we ,must think- things and number words. The true principle is that if there are two provisions in the Constitution which seem to be hostile, juridical hermeneutics requires the Court to interpret them by companybining them and number by destroying one with the aid of the other. No part in a Constitution is superior to another part unless the Constitution itself says so and there is numberaccession of strength to any provision by calling it a companye. Portalis, the great. French Jurist . who helped in the making of the Code Napole on supplied the companyrect principle when he said that it is the companytext of the legal provisions which serves to illustrate the meaning. of the different parts, so that among them and between them there should be companyrespondence and harmony. We have two provisions to reconcile. Article 368 which says that the Constitution may be amended by, following this and this. procedure, and Art. 13 2 which says, the State shall number make any law which takes away or abridges the rights companyferred by Part III and that any law made in companytravention of the clause shall, to the extent of the companytravention, be void. The question, therefore, is does- this create any limitation upon the amending process ? On the answer to this question depends the solution of all the problems in this case. It is an error to view our Constitution as if it were a mere organisational document by which the people established the atructure and the mechanism of their Government. Our Constitution is intended to be much more because it aims at being a social document In which the relationship of society to the indiVidual and of Government to both and the rights of the minorities and the backward classes are clearly laid down. This social document is headed by a Preamble which epitomizes the principles on which the Government is intended to function and these principles are later expanded into Fundamental Rights in Part III and the Directive Principles of Policy in Part TV. The former are protected but the latter are number. The former represent the PREAMBLE WE THE PEOPLE OF INDIA having solemnly Resolved to .constitute India into a SOVEREIGN DEMOCRATIC REPUBLIC and to secure all Its citizens JUSTICE, social, economic and political EQUALITY of status and of opportunity and to promote among them.all FRATERNITY assuring the, dignity of the individual and.the unity of Nation IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November,1949,do HEREBY ADOPT,ENACT AND GIVE TO OURSELVES THIS CONSTffUTION. limits of State action and the latter are the obligations and the duties of the Government as a good and social Government. Why was it necessary to have the Fundamental Rights at all and make them justiciable ? As we seem to be forgetting our own history so soon let me say that the answer lies there the Nationalist Movement and the birth of the Indian National Congm in 1885 were the direct result of the discriminatory treatment of the Indians in their own companyntry. The demand for the guarantee of Fundamental Rights had unfortunately to be made. then to a foreign ruler and it appeared in the Constitution of India Bill framed by the Indian National Congress ten years later. All that is valuable to an Individual in civilized society, including free speech, imprisonment only by a companypetent authority, free law education, etc. were claimed therein. Resolutions of the Congress since then reiterated this demand and the securing of Fundamental Rights in any future Constitution became one of the articles of faith. To cut the narration short, the main steps may only be mentioned. Mrs. Besants Commonwealth of India Bill 1925 with its seven fundamental rights the precursor of Art. 19 , the Madras Congress Resolution of 1927--a companystitution on the basis of declaration of rights-- the Nehru Report--it is obviour, that our first care should be to have the Fundamental Rights guaranteed in a manner which will number permit their withdrawal in any circumstancees--, the draft article in the Nehru Constitution No person shall be deprived of his liberty, number shall his dwelling or property be entered, requisitioned or companyfiscated save in accordance with law-, the Independence Resolution of 26th January, 1930--We believe that it is the inalienable right of the Indian people, as of any other people, to have freedom and to enjoy the fruits of their toil and have the necessities of life, so that they may have full opportunities of growth the Karachi Resolution on Fundamental Rights, Economic and Social Change 1931 , the Sapru Report 1945 which for the first time distinguished between justiciable and number- ,justiciable rights, the Suggestion of the Cabinet Mission for the companystitution of an Advisory Committee on Fundamental and Minority Rights, and, lastly the Committee on Fundamental Rights of the Constituent Assembly, are just a few of the steps to be remembered. The Fundamental Rights and the Directive Principles were the result. Fundamental laws are needed to make a Government of laws and number of men and the Directive Principles are needed to lay down the objectives of a good Government. Our Constitution was number the cause but the result of political and personal freedom. Since Dicey had said that the proclamation . in a Constitution or Charter of the right to personal freedom, or indeed of any other right, gives of itself but slight security that the right has more than a numberinal existence, 1 provision had to be made for guaranteeing them andto make them justiciable and enforceable. This result is reachedby means of Arts. 12, 13, 32, 136, 141, 144 and 226. The The High Courts and finally this Court have been made the Judges of whether any legislative or executive action on the part oft the State companysidered as companyprehensively as is possible, offends the Fundamental Rights and Art. 13 2 declares that legislation which so offends is to be deemed to be void. It is thus that Parliament cannot today abridge or take away a single Fundamental Right even by a unanimous vote in both the Chambers. But on the argument of the State it has only to change the title of the same Act to an Amendment of the Constitution Act and then a majority of the total strength and a 2/3rds majority of the members present and voting in each House may remove number only any of the Fundamental Rights, but the whole Chapter giving them. And this is said to be possible because of Art. 368 and its general language which, it is claimed, makes numberexception in its text and, therefore, numberexception can be implied. It is obvious that if an Act amending the Constitution is- treated as a law it must also be subject to the provisions of Art. 13 2 . Since the definition of the word law, makes numberexception a strenuous eeffort is made on the basis of argument and authority to establish that a companystituent power does number result in a law in the ordinary sense. Distinction is thus made between laws made ordinarily that is to say, from day to day by ordinary majority and laws made occasionally for the amendment of the Constitution by a slightly enhanced majority. In our Constitution this distinction is number valid in the eye of Art. 13 2 . It is number essential,, of companyrse, that a difference must always exist in the procedure for the exercise of companystituent and ordinary, legislative power. One has number to go far to find the example of a companyntry in which companystitutional law as such may be made by the same agency which makes ordinary laws. The most outstanding, example is that of England about which de Tocqueville observed. the Parliament has an acknowledged right to modify the Constitution as, therefore, the Constitution may undergo perpetual changes, it does number in reality exist the Parliament is at once a legislative and a companystituent assembly 2 of companyrse, the dictum of de Tocqueville that the English Constitution elle nexiste point it does number exist is far from accu- Dicey Law of the Constitution 10th Edn. p. 207. Introduction to the Study of the Law of the Constitution V. Dicey Tenth Edn p. 88 quoting from OEuvres companypletes 14th ed.,1864 Democratie en Amerique , pp. 166, 167. rate. There is a vast body of companystitutional laws in England which is written and statutory but it is number all found in one place and arranged as a written Constitution usually is. The Act of Settlement 1701 , the Act of Union with Scotland 1707 , the Act of Union with Ireland 1800 the Parliament Act 1911 the Representation of the Peoples Acts of 1832, 1867, 1884, 1918, 1928 and 1948, the Ballot Act 1872 , the Judicature Acts 1873, 1875 and 1925, the Incitement to Disaffection Act 1934 , His Majestys Declaration of Abdication Act 1936 , the Regency Act 1937 and the various Acts setting up different ministries are examples of what will pass for companystitutional law under our system 1 . The Bill of Rights 1689 lays down the fundamental rule in England that taxation may number be levied without the companysent of Parliament which in our Constitution has its companynterpart in Art. 265. In our Constitution also the laws relating to delimitation of companystituencies or allotment of seats to such companystituencies made or purporting to be made under Art. 327 or Art. 328, by reason of the exclusion of the powers of the companyrts to question them, are rendered companystitutional instruments. Other examples of companystitutions which, in addition to companystitution proper, companytain certain ordinary legislation, having companystitutional qualities, also exist. 2 What then is the real distinction between ordinary law and the law made in the exercise of companystituent power? I would say under the scheme of our Constitution numbere at all. This distinction has been attempted to be worked out by several authors. It is number necessary to quote them. Taking the results obtained by Willoughby 3 it may be said that the fact that a Constitution is written as a Constitution is numberdistinction because in Britain companystitutional law is of both kinds and both parts companyxist. The test that the Constitution requires a different kind of procedure for amendment, also fails because in Britain Parliament by a simple majority makes laws and also amends companystitutional statutes. In our Constitution too, in spite of the claim that Art. 368 is a companye whatever is meant by the word ,code, here , Arts. 4, 11 and 169 show that the amendment of the Constitution can be by the ordinary law making procedure. By this method one of the legislative limbs in a State can be removed or created. This destroys at one stroke the claim that Art. 368 is a companye arid also that any special method of amendment of the Constitution is fundamentally necessary. The list is raken from K. C. Wheares The Statute of Westminster and Dominion Status 4th Edn p. 8. Dicey and others give different list. See Constitutions of Austria, Honduras, Nicaragua Peru, Spain and Sweden among others. The Constitution of Spain, in particular is in several Instruments. The Constitution of Austria A-t. 149 makes special mention of these companystitutional instruments. Tagore Law Lectures 1924 p. 83. The next test that the companyrts must apply the Constitution in preference to the ordinary law may also be rejected on the ansalogy of the British practice. There, every statute has equal standing. Therefore, the only difference can be said to arise from the fact that.constitutional laws are generally amendable under a process which in varying degrees, is more difficult or elaborate. This may give a distinct character to the law of the Constitution but it does number serve to distinguish it from the other laws of the land for purposes of Art. 13 2 . Another difference is that in the written companystitutions the form and power of Government alone are to be found and number rules of private law as is the case with ordinary laws. But this is also number an invariable rule. The Ame Constitution and our Constitution itself are outstanding examples There are certain other differences of degree, such as that nary legislation may be tentative or temporary, more detailed or secondary, while the Constitution is intended to be permanent, general and primary. Because it creates limitations on the ordinary legislative power, companystitutional law in a sense is fundamental law, but if the legislative and companystituent processes can become one, Ls there any reason why the result should be regarded as law in the one case and number in the other ? On the whole, therefore, as observed in the American Jurisprudence It should be numbericed however that a statute and a companystitution, though of unequal dignity are both laws and each rests on the will of the people A Constitution is law which is intended to be, for all time and is difficult to change so that it may number be subject to impulses ofmajority temporary excitement and popular caprice or passion 2 . I agree with the authors cited before us that the power of amendment must be possessed by the State. I do number take a narrow view of the word amendment as including only minor changes within the general framework. By an amendment new matter may be added, old matter removed or altered. I alm companycede that the reason for the amendment of the Constitution is a political matter although I do number go as far as some Justice of the Supreme companyrt of the United States did in Coleman v. Miller 3 that the whole process is political in its entirely from submission until an Amendment becomes part of the Constitution and is number subject to judicial guidance, companytrol or interference at any point. There are fundamental differences between our Con- American Jurispruence Vol. II Section 3. Amendment is expressly called a legislative process in the Constitutions of Colombia, Costa Rica, Hungary, Panama and Peru In Portugal the ordinary legislatures enjoy companystituent powers every 10 years. 3 3 7 U.S. 443 83 L. Ed. 1385 . stitution and the Constitution of the United States of America Indeed this dictum of the four Justices based upon, the case of Luther v. Borden 1 has lost some of its force after Baker v. Carr 2 A Republic must, as says Story, 8 possess the means for altering and improving the fabric of the Government so as, to promote the happiness and safety of the people. The power is also needed to disarm opposition and prevent factions over the Constitution. The power, however, is number intended to be used for experiments or as an escape from restrictions against undue state action enacted in the Constitution itself. Nor LS the power of amendment available for the purpose of removing express or fmplied restrictions against the State. Here I make a difference between Government and State which I shall explain presently. As Willoughby 4 points out companystitutional law ordinarily limits Government but number the State because a companystitutional law is the creation of the State for its own purpose. But there is numberhing to prevent the State from limiting itself. The rights and duties of the individual and the manner in which such rights are to be exercised and enforced ire ordinarily to be found in the laws though some of the Constitutions also fix them. It is number customary to have such rights guaranteed in the Constitution. Peaslee, 5 writing in 1956 says that about 88 of the national Constitutions companytain clauses respecting individual liberty and fair legal process 83 respecting freedom of speech and the press 82 respecting property right 80 respecting rights of assembly and association 80 respecting rights of companyscience and religion 79 res- pecting secrecy of companyrespondence and inviolability of domi- cile 78 respecting education 73 respecting equality 64 respecting right to petition 56 respecting labour 51 respecting social security 47 respecting rights of movement within, and to and from the nation 47 respecting health and motherhood and 35 respecting the number- retroactivity of laws. In some of the Constitutions there is an attempt to put a restriction against the State seeking to whittle down the rights companyferred on the individual. Our Constitution is the most outstanding example of this restriction which is to be found in Art. 13 2 . The State is numberdoubt legally supreme but in the supremacy of its powers it may create, impediments on its own sovereignty. Government is always bound by the restrictions created in favour of fundamental Rights but the State may or may number be. Amendment may be open to the State according to the procedure laid 1 7 How. 1 12 L. Ed. 58 . 2 369 U. S. 186 7 L. Ed. 2d 633 . Commentaries on the Constittition of the United States 1833 Vol. III pp 686-687. Tagore Law Lectures, p. 84. Constitutions of Nations, Vol. I 2nd Edn. p. 7. stitution and the Constitution of the United States of America.this dicttan of the four Justices based upon, the case of Luther v. Borden 1 has lost some of its force after Baker v. Carr 2 . A Republic must, as says Story,- ,, ssess the means for ai andimproving the fabric of tc Government so as, to promote the happiness and safety, of the people. The power, is dw needed to disarm opposition and prevent factions over theThe power, however, is number intended to be used for experiments or as an escape from restrictions against undue state action enacted in the Constitution itself. Nor is the power of amendment available for the purpose of removing express or implied restrictions against the State. Here I make a difference between Government and Statewhich I shall explain presently. As Willoughby 4 points out wmtitutional law ordinarily limits Government but number the State because a companystitutional la, is the creation of the State for its own pu, se. But there is numberhing to prevent the State from rpo limiting itself. The rights and duties of the individual and the. manner in which such rights are to be exercised and enforced are ordinarily to be found in the laws though some of the Constitutions also fix them. It number customary to have such rights guaranteed in the Constitution. Peaslee, 5 writing in 1956 says that about 88,Yo of the, national Constitutions companytain clauses respecting individual liberty and fair legal process 83 respecting freedom of speech and the press 82 respecting property right 80 respecting rights of assembly and association 80 respecting rights of companyscience and religion 79 respecting secrecy of companyrespondence and inviolability of domicile 78 respecting education 73 respecting equality .64 respecting right to petition 56 respecting labour 51 respecting social security 47 respecting rights of movement within, and to and from the nation 47 respecting health and motherhood and 35 respecting the number-retroactivity of laws. In some of the Constitutions there is an attempt to put a restriction Against the State seeking to whittle down the rights companyferred on the individual. Our Constitution is the most outstanding i6xample of this restriction Which is to be found in Art. 1.3 2 . ,Tbe State is numberdoubt legally supreme but in the supremacy of its powers it may creat-e- impediments on its OIM sovereignty. Govent is always bound by the restrictions created in favour of Fundamental Rights but the State may or may number be. Amendment may be open to the State according to the procedure lai r 1 7 How. 1 12 L. Ed. 58 . 2 369 U. S. 186 7 L. Ed. 2d 633 . Commentaries on the Constitution of the United, States 1 833 Vol. III PP, 686-687. Tagore Law Lectures, p. 84. Constitutions of Nations, Vol. I 2nd Edn. p. 7. down by the Constitution. There is numberhing, however, to prevent the State from placing certain matters outside the amending procedure . Examples of this exist in several Constitutions of the world see Art. 5 of the American Constitution Art. 95 of -the Constitution of France, Art. 95 of the Constitution of Finland Art. 97 of the Constitution of Cambodia Art. 183 of the Constitution of Greece Art. 97 of the Japanese Constitution Art. 139 of the Italian Constitution, to mention only a few. When this happens the ordinary procedure of amendment ,ceases to apply. The unlimited companypetence the kompetenz- kompetenz of the Germans does number flow from the amendatory process. Amendment can then be by a fresh companystituent body. To attempt to do this otherwise is to attempt a revolution. I do number known why the word revolution, which I have used before, should evoke in some persons an image of violence and subversion. The whole American Constitution was the result of a bloodless revolution and in a sense so was ours. The adoption of the whole Constitution and the adoption of an amendment to the Constitution have much in companymon. An amendment of the Constitution has been aptly called a Constitution in little and the same question arises whether it is by a legal process or by revolution. There is numberthird alternative. An amendment, which repeals the earlier Constitution, unless legal, is achieved by revolution. As stated in the American Jurisprudence An attempt by the majority to change the fundamental law in violation of self-imposed restrictions is unconstitutional and revolutionary. There are illegal and violent revolutions and illegal and peaceful revolutions. Modification of Constitution can only be by the operation of a certain number of wills acting on other wills. The pressure runs through a broad spectrum, harsh at one end and gentle at the other. But whatever the pressure may be, kind or cruel, the revolution is always there if the change is number legal. The difference is one of method, number of kind. Political thinking starts from the few at the top and works downward more often than in the reverse direction. It is wrong to think that masses alone, called the people after Mazini, or the proletariate after Marx, begin a revolutionary change. Political changes are always preceded by changes in thought in a few. They may be outside the In the Constitution of Honduras, partial amendment only is possible. For a companyplete amendment a Constituent Assembly has to be companyvoked. In the Constitution of Brazil, the Constitution cannot be amended when there is a state of seige our emergency . In Turkey an amendment of Article 1 cannot even be proposed. Vol. 12, Section 25 pp. 629-630. Government or in it. It is a revolution nevertheless, if an attempt is made to alter the will of the people in an illegal manner. A revolution is successful only if there is companysent and acquiescence and a failure if there is number. Courts can interfere to nullify the revolutionary change because in all cases of revolution there is infraction of existing legality. It is wrong to classify as revolution some thing companying from outside the Government and an illegality companymitted by the Government against the Constitution as evolution. I am mindful of the observations of Justice Holmes, that- We need education in the obvious to learn to transcend our own companyvictions and to leave room for much that we hold dear to be done away with short of revolution, by the orderly change of law. 1 But the problem we are faced with is number an orderly change of law but of a claim to a revolutionary change against the vitals of the Constitution. In such a case the apprehension is that democracy may be lost if there is numberliberty based on law and law based on equality. The protection of the fundamental Rights is necessary so that we may number walk in fear of democracy itself. Having assumed the distinction between Government and State let me number explain what I mean by that distinction and what the force of Art. 13 2 in that companytext is. I shall begin first by reading the pertinent article. Article 13 2 , which I quoted earlier, may again be read here The State shall number make any law which takes away or abridges the rights companyferred by this Part and any law made in companytravention of this clause shall, to the extent of companytravention, be void. The definition of the State in Art. 12 reads In this Part, unless the companytext otherwise requires, the State includes.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 companytrol of the Government of India. The State is the sum total of all the agencies which are also individually mentioned in Art. 12 and by the definition all the parts severally are also included in the prohibition. Now see how law is defined The Mind and Faith of Justice Holmes p. 390. In this article, unless the companytext otherwise requires,- a law includes any ordinance, order, bye-law, rule, regulation, numberification, custom or usage having in the territory of India the force of law In Sajjan Singhs case 1 I said that if amendments of the companystitution were meant to be excluded from the word law it was the easiest thing to add to the definition the further words but shall number include an amendment of the Constitution. it LS argued number before us that this wag number necessary because Art. 368 does number make any exception. This argument came at all stages like a refrain and is the real cause of the obfuscation in the opposite view. Those who entertain this thought do number pause to companysider why make a prohibition against the State? As Cooley said there never was a republican Constitution which delegated to functionaries all the latent powers which lie dormant in every nation and are boundless in extent. and incapable of definition., If the State wields more power than the functionaries there must be a difference between the. State and its agencies such as Government, Parliament, the Legislatures of the States and the local and other authorities. Obviously, the State means more than any of there or all of them put together. By making the State subject to Fundamental Rights it is clearly stated in Art. 13 2 that any ,of the agencies acting alone or all the agencies, acting together are number above the Fundamental Rights. Therefore, when the House .of the People or the Council of States introduces a Bill- for the abridgement of the Fundamental Rights, it ignores the injunction against it and even if the two Houses pass the Bill the injunction is next operative against the President since the expression Government of India in the General Clauses Act means the President of India. This is equally true of ordinary laws and laws seeking to amend the Constitution. The meaning of the word State will become clear if I draw attention at this stage to Art. 325 of the Constitution of Nicargua, which reads as follows- The agencies of the Government, jointly or separately, are, for-bidden to suspend the Constitution or to restrict she rights granted by it, except in the cases provided therein. In our Constitution the agencies of the State are companytrolled jointly and separately and the prohibition is against the whole force of 1 1965 1 S.C.R. 933. the State acting either in its executive or legislative capacity. Ile of the Executive is more important than even the Legislature. In modem politics run on parliamentary democracy the Cabinet attains a position of dominance over the Legislature. The Executive, therefore, can use the Legislature as a means of securing changes in the laws which it desires. It happened in Germany under Hitler. The fact has been numbericed by numerous writers. for example, Wade and Philips 1 , Sir Ivor Jennings 2 , Dawson 3 , Keith 4 and Ramsay Muir 5 . Dawson in particular said that a Cabinet is numberlonger responsible to the Commons but the Commons has become instead responsible to the Government. Ivor Jennings added that if a Government had majority it companyld always secure the legislation. The others pointed out that the position of the Cabinet towards Parliament tends to assume more or less dictatorial powers and that was why people blamed Government, this is to say, the Cabinet rather than Parliament for ineffective and harsh laws. This is true of our companyntry also regarding administration and Station. Fortunately, this is avoided at least in so far as the Fundamental Rights are companycerned. Absolute, arbitrary power in defiance of Fundamental Rights exist numberhere under our Constitution, number even in the largest majority. The peoples representatives have, of companyrse, inalienable and undisputable right to alter, reform or abolish the Government in any manner they think fit, but the declarations of the Fundamental Rights of the citizens are the inalienable rights of the people. Ile extent of the power of the rulers at any time is, measured by the Fundamental Rights. It is wrong to think of them as rights within the Parliaments giving or taking. Our Constitution enables an individual to oppose successfully the whole companymunity and the State and claim his rights. This is because the Fundamental Rights are I so safe-guarded that within the limits set by the Constitution they are inviolate. The Constitution has itself said what protection has been created round the person and property of the citi- zens and to what extent this protection may give way to the general good. it is wrong to invoke the Directive Principles as if there is some antinomy between them and the Fundamental Rights. The Directive Principles lay down the routes of State but such action must avoid the restrictions stated in the Fundamental Rights. Prof. Anderson 6 taking the companystitutional amendments, as they have been in our companyntry, companysidered the Directive principles to be more potent than the Fundamental Constitutional Law, 6th Edn. p. 27. Parliament 1957 pp. 11-12. Government of Canada 1952 Chapter XIX. An Introduction to British Constitutional Law 1931 P. 48, How Britain is Governed P. 5,6. Changing Law in Developing Countries, pp. 88, 89. Rights. That they are number, is clear when one takes the Fundamental- Rights. with- the guaranteed remedies. The Directive Principles are number justiciable but the Fundamental Rights are made justiciable. This gives a judicial companytrol and check over State action even within the four companyners of the Directive Principles. It cannot be companyceived that in following the Directive Principles the Fundamental Rights say for example, the equality clause can be ignored. If it is attempted, then . the action is capable of being struck down. In the same way, if an amendment of the Constitution is law for the reasons explained by me, such an amendment is also open to challenge under Art. 32, if it offends against the Fundamental Rights by abridging or taking them away. Of companyrse, it is always open to better Fundamental Rights. A law or amendment of the Constitution would offend the Fundamental Rights only when it attempts to abridge or take them away. The importance of Fundamental Rights in the world of today cannot be-lost sight of. On December 10, 1948, the General. Assembly of the United Nations adopted the Universal Declaration of Human Rights without a dissent. This draft was made after the Third Committee of the United Nations had devoted 85 meetings to it. The Declaration represents the civil, political and religious liberties for which men have struggled through the centuries and those new social and economic rights of the Individual which the Nations are increasingly recognising in their Constitutions. Some of these were proclaimed during the French Revolution and areincluded in the declarations of Nations taking pride in the dignity and liberty of the Individual. They are epitomized in the Preamble, and more fully expressed in Parts III and IV of our Constitution. These Declarations wherever found are intended to give a key to social progress by envisaging rights to work, to education and tosocial insurance. The Nations of the world are number in the second stage, where Covenants are being signed on the-part of the States to respect such rights. United Nations Human Rights Commission has worked to produce two drafts-one dealing, with civil and political rights and the other with economic, social and cultural rights., The third stage is still in its infancy in which it is hoped to provide for the enforcement of these rights on an international basis. The Regional Charter of the Human Rights under which there is established already a European Commission of Human Rights to investigate and report on violations of Human Rights, is a significant step in that direction. After 1955 the European Commission has become companypetent to receive companyplaints from individuals although the enforceability of Human Rights on an international basis is still far from being achieved. If one companypares the Uni versal Declaration with Parts III and IV of our Constitution one finds remarkable similarity in the two. It is significant that our Committee on Fundamental Rights was deliberating when the This Committee of the United Nations was deliberating on the. Universal Declaration of Human Rights. Both are manifestos of mans inviolable and fundamental freedoms. While the world is anxious to secure Fundamental Rights in- ternationally, it is a little surprising that some intellectuals in our companyntry, whom we may call classe number classe after Hegel, think of the Directive Principles in our Constitution as if they were superior to Fundamental Rights. As a modern philosopher 1 said such people do lip service to freedom thinking all the time in terms of social justice with freedom as a by-product. Therefore, in. their scheme of things Fundamental Rights become only an epitheton ornans. One does number know what they believe in the companymunistic millennium of Marx or the individualistic Utopia of Bastiat. To them an amendment of the Fundamental Rights is permissible if it can be said to be within a scheme of a supposed socioeconomic reform, however, much the danger to liberty, dignity and freedom of the Individual. There are others who hold to liberty and freedom of the. Individual under all companyditions. Compare the attitude of Middleton Murray who would have Communism provided there was universal freedom of speech, of association, of elections and of Parliament To such the liberty and dignity of the Individual are inviolable. Of companyrse, the liberty of the individual under our Constitution, though meant to be fundamental, is subject to such restrictions as the . needs of society dictate. These are expressly mentioned in the Constitution itself in the hope that numberfurther limitations would require to be imposed at any time. I do number for a moment suggest that the question about reasonableness, expediency or desirability of the amendments of the Constitution from a political angle is to be companysidered by the companyrts. But what I do say is that the possession of the necessary majority does number put any party above the companystitutional limitations implicit in the Constitution. It is obvious that the Constituent Assembly in making the Fundamental Rights justiciable was number justisfied with reliance on the sense of self-restraint or public opinion 2 on which the majority in Sajjan Singhs 3 case does. This is number argument of fear The question to ask is can a party, which enjoys 2/3rds majority today, before it Benedetto Croce. Sir Robert Peel calls it that great companypound of foiiy, weakness, prejudice, wrong feeling, right feeling, obstinacy and newspaper paragraphs 3 1965 1 S.C.R. 933. CI/67-10 loses it, amend Art. 368 in such wise that a simple majority would be sufficient for the future amendments of the companystitution ? Suppose it did so, would there be any difference between the companystitutional and the Ordinary laws made thereafter ? The liberty of the Individual has to be fundamental and it has been so declared by the people. Parliament today is number the companystituent body as the Constituent Assembly was, but is a companystituted body which must bear true, allegiance to the Constitution as by law established. To change the Fundamental part of the Individuals liberty is a usurpation of companystituent functions be-cause they have been placed outside the scope of the- power of companystituted. Parliament. It is obvious that Parliament need number number legislate at all. It has spread the umbrella of Art. 31-B and .has only to add, a clause that all legislation involving Fundamental Rights would be deemed to be within that protection hereafter. Thus the only palladium against legislative dictatorship may be removed by a 2/3rds majority number only in praesanti but, defuturo. This can hardly be open to a companystituted Parliament. Having established, that there is numberdifference between the ordinary legislative and the amending processes in so far as cl. 2 of Aft. 13 is companycerned, because both being laws in their true character, companye within the prohibition created, by that, clause against the State and that the Directive Principles cannot be invoked to destroy Fundamental Rights. I proceed number to examine whether the English and Amercan precedents lay down any principle applicable to amendments of our Constitution. In, Britain the question whether a companystitutional amendment is valid or number at arise because the companyrts are powerless Parliamentary Sovereignty under the English Constitution means that Parliament enjoys the right to make or unmake any law whatever and numberperson or body has any right to question the legislation. The utmost and absolute despotic power belongs to Parliament. It make, companyfirm, enlarge, restrain, abrogate, repeal, revise and expand law companycerning matters of all possible denominations. What Parliament does, numberauthority on earth can undo. The The Queen, each House of Parliament the companystituencies and the law companyrts have in the past claimed independent legislative powers but these claims are unfounded. It is impossible to companypare the Indian Parliament with the Brittsh Parliament as the former company- companyedly in the ordinary legislation is subject to judicial review, both on the ground of companypetence arising from a federal structure And the existence of Fundamental Rights. The question of companypetence in the matter of amendment of the Constitution depends upon, firstly, companypliance with the procedure laid down in Art. 368 and, secondly, upon the question whether,the.process is in any manner restricted by the Fundamental -Rights. Such questions cannot obviously arise in the British Parliament . The example of the Constitution of the United States cannot also serve any purpose although the greatest amount of support was sought to be derived from the decisions of the Supreme Court and the institutional writings in the United States. The power of amend in the United States Constitution flows from Art. V. 1 . It must be numbericed that the power is clearly number made equal to ordinary legislative process. One salient point of difference is that the President is numberhere in this scheme because his negative does number run. The amendment is thus number of the same quality as ordinary legislation. The Supreme Court of the United States has numberdoubt brushed aside objections to amendments of the Constitution on the score of incompetence, but has refrained from giving any reasons. In the most important of them, which questioned the 18th Amendment, the Court only stated its companyclusions. After recalling the texts of the Article under which Amendments may be made and of the 18th Amendment proposed by the Congress in 1917 and proclaimed as ratified by the States in 1919, the Court announced The prohibition of the manufacture, sale, trans- portation, importation, and exportation of intoxicating liquors for beverage purposes, as embodied in the 18th amendment, Is within the power to amend reserved by Art. 5 of the Constitution. emphasis supplied 4 One would have very much liked to know why this proposition was laid down in the terms emphasised above if the effective exercise of the. power depended upon a particular procedure which was immaculately followed. The silence of the Court about its reasons has been numbericed in the same judgment by Mr. Justice Dicey gives three supposed limitations on the power of Parliament. Of these one that language has been used in Acts of Parliament which implies that one Parliament can make laws which cannot be touched by any subsequent Parliament, is number true. The best examples are Act of treaties with Scotland and Ireland but these same Acts have been amended later. Francis Bacon found this claim to be -untenable. See Dicey The Law of the Constitution pp. 64, 65. Article V. The Congress, whenever two-thirds of both houses shall deem it necessary, shall propose -amendments to this Constitution, or, on the application of the legislatures of two-thirds of the several States, shall call a companyvention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three-fourths of the several States, or by companyventions in three-fourths thereof, as the one or the other mode of ratification may be proposed by the Congress, provided that numberamendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article and that numberState, without its companysent, shall be deprived of its equal suffrage in the Senate. Hollingsworth v. Virginia 3 Dall. 378. National Prohibition Cases, 253 U.S. 350. Mckenna. In feser v. Garnett 1 the Court was hardly more expressive. The only question companysidered by the Court was The first companytention is that the power of amendment companyferred by the Federal Constitution, and sought to be exercised, does number dxtend to this Amendment, because of its character. emphasis supplied . This was repelled by Brandeis, J on behalf of the unanimous companyrt on the grx und that the- Amendment was in character and phraseology similar to the 15th Amendment and was adopted by following the same method. As the,lsth Amendment had been accepted for half a century the suggestion that it was number in accordance with law, but as a war measure validated by acquiescence was number accepted. It is significant, however, that at the time of the 18th Amendment, the arguments were a that amendment was limited to the companyrection of error in the framing of the Constitution, b Article V did number companyprehend the adoption of additional or supplementary provisions, c ordinary legislation companyld number be embodied. in the companystitutional amendment, and d Congress companyld number propose amendment which pared the sovereign power of the States. None of these at I guin ents was accepted. At the time of the 19th Amendment, which increased the franchise in the States, the narrow ground was that a State which had number ratified the Amendment would be, deprived of its equal suffrage in the Senate because its representatives in that body would be persons number of its choosing, i.e. persons,chosen by voters whom the State itself had number authorised to vote for Senators. This argument was rejected. However, in Dillion Gloss 2 the Supreme Court held that Congress had the, power to a time limit for ratification because Art. V implied that application must be within some reasonable time after. the proposal. The fixation of 7 years was held by the Court to be reasonable. In 1939 came the case of Coleman v. Miller 3 which dealt with the Child Labour Amendment. Such a law was earlier re- jected by the Kansas Leizislature. Later the State ratified the amendment after a lapse of 13 years by the casting vote of the Lt. Governor. Mandamus was asked against the Secretary of Kansas Senate to erase the endorsement of ratification from its record and it was denied. The Supreme Court of Kansas refused to review this denial on certiorari. The Supreme Court of the United States in an opinion, in which number more than 4 Justices 1 258-U.S. 130. 2 256 U.S. 368. 3 307 U.S. 443. took any particular view,. declined to interfere. Majority affirmed the decision of Supreme Court of Kansas. Four Justices companysidered that the question was political from start to finish and three Justices that the previous rejection of the law and the extraordinary time taken to ratify were political questions. Although the Supreme Court has scrupulously refrained from passing on the ambit of Art. V it has numberhere said that it will number take jurisdiction in any case involving the amending process. 1 In Hollingsworth v. Virginia 2 the supreme Court assumed that the question was legal. The Attorney General did number even raise an objection. In Luther Borden the matter was finally held to be political which opinion prevailed unimpaired till some doubts have arisen after Baker v. Carr 4 . In the case the Court remarked- We companyclude that the number-justiciability of claims resting on the guarantee clause which arises from the embodiment of questions that were thought Political can have numberbearing upon the justiciability of the, equal protection claim presented in this case We ernphasise that it is the involvement in guarantee clause claims of the elements thought to define political questions and numberother feature, which companyld render them number- justiciable. specifically, We have said that such claims are number held number-justiciable because they touch matters of State governmental Organisation. It would appear that the Equal Protection Clause was held to supply a guide for examination of apportionment methods better than the Guarantee Clause. Although there is numberclear pronouncement, a great companytro- versy exists whether questions of substance can ever companye before the Court and whether there are any implied limitations upon the amendatory Power. In the cases above numbered, the other articles particularly the Bill of Rights were number read as limitations and numberlimitation outside the amending clause was implied. In the two cases inwhich the express limitation of Equal suffrage Clause was involved the Court did number enter the question. Thus the 15th and, on its strength, the 19th Amendments were upheld. In Coleman v. Miller 5 the political question doctrine brought the support of only four Justices and in Baker v. Carr 4 the Federal, Courts were held to have jurisdiction to scrutinise the fairness of legislative apportionment, under the 14th Amendment and to take steps to assure that serious inequities were wiped out The See Rottschaeffer Handbook of American Constitutional Law 1939 pp. 397, 398, though the authors opinion is that it will deny jurisdiction. 2 3 Dall. 378. 3 12 L. Ed. 58. 4 369 U.S. 186. 5 307 U. S. 443 companyrts have thus entered the political thicket.The question of delimitation of companystituencies cannot, of, companyrse, arise before companyrts under our Constitution because of Art. 329. Baker v. Carr 1 makes the Court sit in judgement over the possession and distribution of politcal power which is an essential part of a Constitution. The magical formula of political questions is losing ground and it is to be hoped that a change may be Soon. companying. Many of the attacks on the amendments were the result of a misunderstanding that the Constitution Was a companypact between States and that the allocation of powers was number to be changed at all. This was finally decided by Texas v. White 2 as far back as 1869. The main question of implied limitations has evoked a spate of writings. Bryce s , Weaver 4 , Mathews 5 , Burdick 6 , Willoughby 7 , Willis 8 , Rottshaefer 9 , Orfield 10 to name only a few are of the opinion that there are number implied limitations, although, as Cooley points out, it is sometimes expressly declared-what indeed is implied without the declaration that everything in the declaration of rights companytained is excepted out of the general powers of Government, and all laws companytrary thereto shall be void 11 . Ex-press checks there are only three. Two temporary checks were operative till 1808 and dealt with interference with importation of slaves and the levying of a direct tax without apportionment among then States according to population. Permanent check that number remains is equality of representation of States in the Senate. Some writers suggest that this, check may also be-removed in two moves. By the- first the Article can be, amended and by the second the equality removed. When this happens it will be seen whether the Supreme Court invokes any doctrine such as achieving. indirectly what cannot be done directly. It will, of companyrse, be companypletely out of place in a judgment to discuss the. views of the several writers and so I shall companyfine myself to the observation of Orfield to whom again and again companynsel for the State turned either for support or inspiration. Accord. ing to him, there are numberimplied limitations unless the Courts adopt 1 369 U.S. 186. Wall.700. The American Commonwealth Vol. I. Constitutional law and its Administration 1946 . American Constitutional System 2nd Edn. p. 43-45. The Law of the American Constitution 7th Imp. p. 45. Tagore Law Lectures 1924 . 8 companystitutionaI Law of United States 1936 . Handbook of American Constitutional Law. The Amending of the Federal Constitution Constitutional Limitations Vol. I, 8th Edn. pp. 95, 96. that view and therefore numberlimitations on the substance of the amendments except the Equality Clause. His view is that when Congress is in the amending process, it is number legislating but exercising a peculiar power bestowed by Art. I have already shown that under our Constitution the amending process is a legislative process, the only difference being a special majority and the existence of Art. 13 2 . Orfield brushes aside the argument that this would destroy the very companycept of the Union which, as Chief Justice. Marshall had said, was indestructible. Orfield faces boldly the question whether the whole Constitution can be overthrown by an amendment and answers yes. But he says that the amendment must number be in violation of the Equality Clause. This seems to be a great companycession. He makes this exception but Munro - , who finds it difficult to companyceive of an unamendable companystitution suggests that it should be possible to begin with that clause and then the door to amendments would be wide open. Of companyrse, the Supreme, Court has number yet faced an amendment of this. character and it has number yet denied jurisdiction to itself. In the. United States the Constitution works because, as observed by Willis, the Supreme Court is allowed to do the work of remolding the Constitution to keep it abreast with new companyditions and new times, and to allow the agencies expressly endowed with the amending process to act only in extraordinary emergencies or when, the general opinion disagrees with the opinion of the Supreme Court. In our companyntry amendments, so far have bean made only with the object of negativing the Supreme Court,decisions, but more of it later. I have referred to Orfield although there are greater names than his expounding the same views. I have refrained from referring to the opposite view which in the words of Willoughby has been strenuously argued by reputable writers although Willis discourteously referred to them in his book. My reason for number doing so is plainly this. The process of amendment in the United States is clearly number a legislative process and there is numberprovision like Art. 13 2 under which laws abridging or taking away Fundamental Rights can be declared void. Our liberal Constitution has given to the Individual all that he should have-freedom of speech, of association, of assembly, of religion, of motion and locomotion, of property and trade and profession. In addition it has made the State incapable of abridging or taking away these rights to the extent guaranteed, and has itself shown how far the enjoyment of those rights can be curtailed. It has given a guaranteed right to the person affected to move the Court.-, I-le guarantee is worthless if the rights are capable of being taken away. This makes our Constitution unique and the American precedents cannot be of much assistance. The Govenment of the United States 5th Edn. p. 77. The Advocate General of Madras relied upon Vedel. 1 According to Vedel, a prohibition in the Constitution against its own amendment has a political but number juridical value, and from the juridical point of view, a declaration of absolute companystitutional immutability cannot be imagined. The companystituent power being supreme, the State cannot be fettered even by itself. He numberices, however, that the Constitution of 1791 limited the power of amendment revision for a certain time and that of 1875 prohibited the alteration of the Republican form of Govermment. He thinks that this hindrance can be removed by a two step amendment. He companycludes that the companystituent of today cannot bind the nation of tomorrow and numberConstitution can prohibit its amend- Of companyrse, the French have experimented with over a dozen Constitutions, all very much alike, while the British have slowly changed their entire structure from a monarchical executive to an executive from Parliament and have reduced the power of the House of Lords. Cambell-Bannerman former Prime Minister of England summed up the difference to Ambassador M. de Fleurian thus Quand numbers faisons une Revolution, numbers ne ditruisons pas numberre maison, numbers en companyservons avec soin la facade, et, derriere cette facade, numbers reconstruisons une numbervelle maison. Vous, Francais, agissez autrement vous jetez bas le vieil edifice et vous reconstruisez la mime maison avec une autre facade et sous un number different. When we make a Revolution we do number destroy an house, we save with care the facade and behind companystruct a new house. You, Frenchmen, act differently. You throw down the old edifice and you reconstruct the same house with a different facade and under a different name . M.de Fleurian agreed that there was a lot of truth in it ll ya du vrai dans cette boutade 2 . But of companyrse to a Frenchman brought up in a legal system in which the Courts do number declare even an ordinary statute to be invalid, the idea of the unconstitutionality of a companystitutional amendment does number even occur. France and Belgium have created numbermachinery for questioning legislation and rely on moral and political sanctions. Even an English lawyer and less so an American lawyer find it difficult to understand how the legality of an amendment of the Constitution can ever be questioned. It Mannual Elementaire da Droil Constitutional Sirey p 117. Recounted by M. de Fleuriau in the Preface to J. Magnan de Bornier, LEmpire Britannique, son evolution politique et companystitutionnelle p. 6, quoted in Wheare The Statute of Westminster and Dominion status, P. 9-10. appears to them that the procedure for the amendment being gone through there is numberone to question and what emerges is the Constitution as valid as the old Constitution and just as binding. The matter, however, has to be looked at in this way. Where the Constitution is overthrown and the Courts lose their position under the old Constitution, they may number be able to pass on the validity of the new Constitution. This is the, result of a revolution pure and simple. Where the new Constitution is number accepted and the people have number acquiesced in the change and the companyrts under the old Constitution function, the companyrts can declare the new Constitution to be void. Perhaps even when the people acquiesce and a new Government companyes into being, the companyrts may still declare the new Constitution to be invalid but only if moved to do so. It is only when the companyrts begin to function under the new Constitution that they cannot companysider the vires of that Constitution because then they owe their existence to it. I agree with Or field in these observations taken from his book. He, however, does number include amendments of the Constitution in these remarks and expressly omits them. His opinion seems to indicate that in the case of amendments companyrts are companypletely free to see that the prescribed companystitutional mode, of alteration is companyplied with and the alteration is within the permissive limits to which the Constitution wishes the amendments to go. This is true of all amendments but particularly of an amendment seeking to repeal the companyrts decision and being small in dimension, leaves the companyrts free to companysider its validity. The companyrts derive the power from the existing terms of the Constitution and the amendment fails if it seeks to overbear some existing restriction on legislation. What I have said does number mean that Fundamental Rights are number subject to change or modification. In the most inalienable of such rights a distinction must be made between possession of a right and its exercise. The first is fixed and the latter companytrolled by justice and necessity. Take for example Art. 21 No person shall be deprived of his life or personal liberty except according to procedure established by law. Of all the rights, the right to ones life, is the most valuable. This article of the Constitution, therefore, makes. the right fundamental. But the inalienable right is curtailed by a murderers companyduct as viewed under law. The deprivation, when it takes place, is number of the right which was immutable but of the companytinued exercise of the right. Take a Directive Principle which is number enforceable at law but where the same result is reached. The right to employ- ment is a directive principle. Some companyntries even view it as a Fundamental Right. The exercise, however, of that right must depend upon the capacity of Society to afford employment to all and sundry. The possession of this right cannot be companyfused with its exercise. One right here is positive and can be enforced although its, exercise can be curtailed or taken away, the other is a right which, the State must try to give but which cannot be enforced. The Constitution permits a curtailment of the exercise of most of the Fundamental Rights by stating the limits of that curtailment. But this power does number permit the, State itself, to take away or abridge the right beyond the limits set by the Constitution. It must also be remembered that the rights of one individual are often opposed by the rights of another individual and thus also become limitative. The Constitution in this way permits the Fundamental Rights to be companytrolled in their exercise but prohibits their erasure. It is argued that such approach makes Society static and robs the State of its sovereignty. It is submitted that it leaves revolution as the holy alternative if change is necessary. This is number right. The whole Constitution is open to amendment only two dozen articles are outside the reach of Art. 368. That too because the Constitution has made them fundamental. What is being suggested by the companynsel or the State is itself a revolution, because as things are that method of,amendment is illegal. There is a legal method. Parliament must act in a different way reach the Fundamental Rights. The State must reproduce the power which it has chosen to put under a restraint. Just as the French or the Japanese,etc. cannot change the articles of their Constitution which are, made free, from the power of amendment and must call a companyvention or a companystituent body, so also we India cannot abridge or take away the Fundamental Rights by the ordinary amending process. Parliament must amend Art. 369 to companyvoke another Constituent Assembly pass a law under item 97 of the First List of Schedule VII to call a Constituent Assembly and then that assembly may be able to abridge or take away the Fundamental Rights if desired. It cannot be done otherwise. The majority in Sajjan Singhs case 1 suggested bringing Art. 32 under the Proviso to improve protection to the Fundamental Rights. Article 32 does number stand in need of this Protection. To abridge or take away that article and the same is true of all other Fundamental Rights a companystituent body and number a companystituted body is required. Parliament today is a companystituted body with powers of legislation which include amendments of the Constitution by a special majority but only so far as Art. 13 2 allows. To bring into existence a companystituent body is number impossible as, I had ventured to suggest during the hearing and which I have number more fully explained here.It may be said that. this is number necessary because Art. 368 can be amended by Parliament to companyfer on itself companystituent powers over the Fundamental Rights. This would he wrong and against- Art. 13 2 . Parliament cannot. increase its 1 1965 1 S.C.R. 933. powers in this way and do indirectly which it is intended number to de. directly. The State does number lose its sovereignty. but as it has chosen. to create, self-imposed restrictions through one companystituent body those restrictions cannot be ignored by a companystituted body which makes laws. Laws so made can affect those parts of the Constitution which are outside the restriction in Art. 13 2 but anylaw legislative or mendatory passed by such a body must companyform to that article. To be able to abridge, or take away the Fundamental Rights which give so many assurances and guarantees a fresh Constituent Assembly must be, companyvoked. Without such action the protection of the Fundamental Rights must remain immutable and any attempt to abridge or take them away in any other way must be regarded as revolutionary. I shall number companysider the amendments of the Fundamental Rights made since the adoption of the Constitution, with a view to illustrating my meaning. Part III is divided under different headings. They are a , General b Right to Eqility c Right to Freedom d Right against exploitation Right to Freedom of Religion f Cultural and Educational Rights g Right to Property h Right to Constitutional Remedies. I shall first deal with amendments of topics other than the topic g - Right to Property. The articles which are amended in the past are Art 15 and 19 by the 1st Amendment 18th June 1951 and Art, 16 by the 7th Amendment 19th October 1956 . The 16th Amendment added the words the sovereignty and integrity of India to some clauses. As that does number abridge or take away any Fundamental Right, I shall number refer to the 16th Amendment hereafter. That Amendment was valid. The changes so made may be summarized. In Art. 15, which deals with. prohibition or discrimination on the ground of religion, race, caste, sex or place of birth, clause 3 allowed the State to make special provision for women and children. A new clause was added which reads Nothing in this article or in clause 2 of article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes. It is argued by companynsel for the State that by lifting the ban to make special- provision for backward classes of citizens, there is discrimination against the higher classes. This is the view which classes in a privileged position who had discriminated against the backward ,classes for centuries, might indeed take. But I cannot accept this companytention. The Constitution is intended to secure to all citizens Justice, social, economic and political and Equality of status and opportunity vide the Preamble and the Directive Principles include Art. 38 which provides .lm15 38 The State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life. To remove the effect of centuries of discriminatory treatment and to raise the down-trodden to an equal status cannot be regarded ,as discriminatory against any one. It is numberdoubt true that in State of Madras v Champakam 1 the reservation of seats for Backward Classes, Scheduled Castes and Tribes in public educational institutions was companysidered invalid. Articles 16 4 and 340 had already provided for special treatment for these backward ,classes and Art. 46 had provided that the State shall promote, with special care their educational and economic interests. With all ,due respects the question of discrimination hardly arose because in view of these provisions any reasonable attempt to raise the status of the backward classes companyld have been upheld on the principle of classification. In any event, the inclusion of this clause to Art. 16 does number abridge or take away any ones Fundamental Rights unless the view be taken that the backward classes for ever must remain backward. By the First Amendment the second and the sixth clauses of Art. 19 were also amended. The original cl. 2 was substituted by a new clause and certain words were added in clause 6 . The changes may be seen by companyparing the unamended and the amended clauses side by side 19 1 All citizens shall have the right- a to freedom of speech and expression 2 Before Amendment After Amendment Nothing in sub-clause a of clause 1 , Nothing in sub- clause a of clause 1 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 libel, slander, defamation, companytempt of Court or any matter which offends against decency or morality or which undermines the security or tends to overthrow, the State. shall affect the operation of any existing law, or prevent the State from making any law. in so far as such law imposes reasonable restrictions on the exercise of the right companyferred by the said sub- clause in the interest of the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to companytempt of companyrt, defamation or incitement to an offence, The amendment was necessary because in Romesh Thapar v State of Madras 2 it was held that disturbances of public tranquallity did number companye within the expression undermines the secu- 1 1951S.C.R.525. 2 1950 S.C.R. 594. rity of the State. Later the Supreme Court itself observed in the State of Bihar v. Shailabala Devi 1 that this Court did number intend to lay down that an offence against public order companyld number in any case companye within that expression. The changes related to a friendly relations with foreign States, b public order and c incitement to an offence and the words .undermines the security of the State or tends to, overthrow the State. were replaced by the words in the interests of the security of the State. This change companyld be made in view of the existing provisions of the clause as the later decision of this Court above cited clearly show that public order and incitement to offence were already companyprehended. The amendment was within the permissible limits as it did number abridge or take away any Fundamental Right. The Amending Act passed by Parliament also included a sub- section which read No law in force in the territory of India, immediately before the companymencement of the Constitution which is companysistent with the provisions of article 19 of the Constitution as amended by sub-section 1 of this section shall be deemed to be void, or ever to have become void, on the ground only that being a law which takes away or abridges the right companyferred by sub-clause a of clause I of the said article, its operation was number saved by clause 2 of that article as originally enacted. Explanation.-In this sub-section, the expression law in force has the same meaning as in clause 1 of article 1 3 of this Constitution. This sub-section was number included in the Constitution. That device was followed in respect of certain State statutes dealing with property rights by including them in a number Schedule. It did number then occur to Parliament that the laws companyld be placed. under a special umbrella of companystitutional protection. Perhaps it was number companysidered necessary because Art. 19 2 was retrospectively changed, and the, enactment of this sub-section was an ordinary legislative action. If the amendment had failed, the second subsection of section 3 would number have availed at all. Tuming number to clause 6 , we may read the original and the amended clause side by side 19 1 All citizens shall have the right g to practise any profession, or to carry on any occupation, trade or business. 1 1952 S.C.R. 654. 6 Before, Amendment 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 companyferred by the said sub-clause, and, in particular numberhing in the said sub-clause, shall affect the operation of any existing law in so far as it prescribes or empowers any authority to prescribe, or prevent the State from making any law prescribing or empowering any authority to prescribe, the professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business. After Amendment 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 companyferred by the said sub-clause, and, in particular, numberhing 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,- the professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business, or the carrying on by the State, or a companyporation owned or companytrolled by the State, of any trade, business, industry or service, whether to the exclusion, companyplete or partial, of citizens or otherwise, The first change is in the verbiage and is number one of substance. It -only removes some unnecessary words. The new sub-clause is innocuous except where it provides for the exclusion of citizens. It enables nationalisation of industries and trade. Sub-clause g to the generality of which the original clause 6 created some exceptions allowed the State to make laws imposing, in the interests of the general public, reasonable restrictions on the exercise of the right companyferred by the sub-clause. A law creating restrictions can, of companyrse, be made outside the Constitution or inside it. If it was companysidered that this right in the state was required in the interests of the general public, then the exercise of the right to practise profession or to carry on an occupation, trade or business companyld be suitably curtailed. It cannot be said that nationalisation is never in the interest of the general public. This amendment was thus within the provision for restricting the exercise of the Fundamental Right in sub-cl. g and was perfectly in order. The Seventh Amendment introduced certain words in Art. 16 3 . numberclauses may be, companypared 16. 3 Before Amendment Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an office under any State specified in the First Schedule or any local or other authority within its territory, any requirement as to residence within the State prior to such employment or appointment. After Amendment Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an office under the Government of, or any local authority within, a State or Union territory, any requirement as to residence within that State or Union territory prior to such employment or appointment. The change, is necessary to include a reference to Union territory. It has numberbreaking upon Fundamental Rights., and, neither abridges number, takes away any of them. In the result numbere of the, amendments, of the article. in parts other than that dealing with Right to property is, outside the amending process because Art. 13 2 is in numbermanner breached. This brings me, to the main question in this case,, It is whether the amendments of the part Right to Property in Part, III of the Constitution were legally made or number. To understand this part of the case I must first begin by discussing what property rights mean and how they were safeguarded by the Constitution as it was originally framed. Right to Propertyin Part III was originally the subject of one article, namely, Art. 31. Today there are three articles 3 1, 3 1 A and 31-B and the Ninth Schedule. The original thirty-first article read 31 Compulsory acquisition of property. Nov person shall be deprived of his property save by authority of law. No property, movable or immovable, including any interest in or in any companypany owning, any companymercial or industrial undertaking, shall be taken possession of or acquired for public purposes under any law authorising the taking of such possession or such acquisition, unless the law provides for companypensation for the property taken possession of or acquired and either fixes the amount of the companypensation, or specifies the principle on which, and the manner. in which, the companypensation is, to be determined and given. No such law as is referred to in clause. 2 made by the Legislature of the State shall have effect unless such law, having been reserved for the companysideration of the President, has received his assent. If any Bill pending at the companymencement of this Constitution in the Legislature of a State has, after it has been passed by such Legislature, been reserved for the companysideration of the President and has received his assent, then, numberwithstanding anything in this companystitution, the law so assented to shall number be Called in question in any, companyrt on the ground that it companytravenes the provisions of clause 2 . Nothing in clause 2 shall affect- a the provisions of any existing law other than a law to which the provisions of clause 6 apply,.or b the provisions of any law which the State may hereafter make- for the ,purpose of imposing or levying any tax or penalty, or for the promotion of public health or the prevention of danger to life or property, or in pursuance of any agreement entered into between the Government of the Dominion of India or the Government of India and the Government of . any other companyntry, or otherwise, with respect to property declared by law to be evacuee property. Any law of the State enacted number more than eighteen months before the companymencement of this Constitution may within three months from such companymencement be submitted to the President for his certification and thereupon, if the President by public numberification so certifies, it shall number be called in question in any companyrt on the ground that it companytravenes the provisions of clause 2 of this article or has companytravened the provisions of sub-section 2 of section 299 of the Government of India, Act, 1935. The provisions of this article are intended to be read with Art. 19 1 f which reads 19 1 All citizens shall have the right- f to acquire, hold and dispose of property. Article 19 1 f is subject to clause 6 which I have already set out elsewhere and companysidered. Ownership and exchange of property are thus recognised by the article. The word property is is number defined and I shall presently companysider what may be included in property. Whatever the nature of property, it is clear that by the first clause of Art. 3 1 the right to property may be taken away under authority of law. This was subject to one companydition under the original Art. 3 1, namely, that the law must either fix the companypensation for the deprivation or specify the principles on which and the manner in which companypensation was to, be determined and given. This was the heart of the institution of property as understood by the Constituent Assembly. The rest of the article only gave companystitutional support against the second clause, to legislation already on foot in the States. This created a Fundamental Right in property. The question may number be 885, asked,why- was it necessary to make such a Fundamental Right at all ? There is numbernatural right in property and as Burke said in his Reflections, Government is number made in virtue of natural rights, which may and do exist in total independence of it. Natural rights embrace activity outside the status of citizen. Legal rights are required for free existence as a social being and the State undertakes to protect them. Fundamental Rights are those rights which the State enforces against itself. Looking at the matter briefly but historically, it may be said that the Greeks were number aware of these distinctions for as Gierke 1 points out they did number distinguish between personality as a citizen and personality as a human being. For them the Individual was merged in the citizen and the citizen in the State. There was personal liberty and private law but there was numbersharp division between the different kinds of laws. The Romans evolved this gradually number when the Roman Republic existed, but when the numberion of a Fiscus developed in the Empire And the legal personality of the Individual was separated from his membership of the State. It was then that the State began to recognize the rights of the Individual in his dealings with the State. It was Cicero 2 who was the first to declare that the primary duty of the Governor of a State was to secure to each individual in the possession of his property. Here we may see a recognition of the ownership of property as a Fundamental Right. This idea wasso engrained in early social philosophy that we find Locke opining in his Civil Government Ch. 7 that Government has numberother end but the preservation of property. The companycepts of liberty, equality and religious freedom were well-known. To them was added the companycept of property rights. Later the list included equalitas, libertas ius securitatis, ius defensionis and ius puniendi. The companycept of property right gained further support from Bentham and Spencer and Kant and Hegel 3 . The term property in its pristine meaning embraced only land but it soon came to mean much more. According to Noyes 4 Property is any protected right or bundle of rights interest or thing with direct, or indirect regard to any external object i.e. other than the person himself which is material or quasi material i.e. a protected ,process and which the then and there Organisation of Society permits to be either private or public, which is companynoted by the legal companycepts of occupying, possessing or, using. Das Doutscheg Genossenschaftrecht III, 10 . De Off. The Offices It Ch. XXI Everyman p. 105. W. FriedmanLegal Theory 4th Edn. see pp. 373-376. The Institution of Property 1936 p. 436. L3Sup CI/67-11 The right is enforced by excluding entry or interference by a per. son number legally entitled. The position of the State vis a vis the individual is the subject of Arts. 19 and 31, 31-A and 31-B. Now in the enjoyment, the ultimate right may be an interest which is companynected to the object through a series of intermediaries in which each holder from the last to the first holds of the holder before him. Time was when there was a lot of free property which was open for appropriation. As Noyes puts it, all physical manifestations capable of being detected, localised and identified can be the objects of property. One exception number made by all civilized nations is that humanbeings are numberlonger appropriable. If any free property was available then it companyld be brought into possession and ownership by mere taking. It has been very aptly said that all private property is a system of monopolies and the right to monopolise lies at the foundation of the institution of property. Pound - in classifying right in rem puts private property along with personal integrity right against injury to life, body and health bodily or mental , personal liberty free motion and locomotion , Society and companytrol of ones family and dependents. An extremely valuable definition of ownership is to be found in the Restatement of the Law of Property where it is said It is the totality of rights as to any specific objects which are accorded by law, at any time and place, after deducting social reservations. This is the companye from which some rights may be detached but to which they must return when liberated. The right to property in its primordial meaning involved the acquisition, of a free object by -possession and companyversion of this possession into ownership by the protection of State or the ability to exclude interference. As the numberion of a State grew, the right of property was strong or we according to the force of political opinion backing it or the legislative support of the State. The English companysidered the right as the, foundation of society. Blackstone explained it on religious and social ground claiming universality for it and called it the right of the English people. William Paley 4 ,although he thought the institution paradoxical and unnatural found it full of advantage and Mackintosh in his famous diatribe against the French Revolution described it as the sheet-anchorof society. This institution appeared in the Magna Carta, in the American Declaration of Independence and the French Declaration of Rights of Man. Later we find it in many The Institution of Property 1936 p. 438. Readings p. 420. Commentaries. Moral Philosophy. Constitutions described as Fundamental, general and guaran- teed 1 . Our Constitution accepted the theory that Right of Property is a fundamental right. In my opinion it was an error to place it in that category. Like the original Art. 16 of the Draft Bill of the Constitution which assured freedom of trade, companymerce and intercourse within the territory of India as a fundamental right but was later removed, the right of property should have been placed in a different chapter. Of all the fundamental rights it is the weakest. Even in the most democratic of Constitutions, namely, the West German Constitution of 1949 there was a provision that lands, minerals and means of production might be socialised or subjected to companytrol. Art. 31, if it companytemplated socialization in the same way in India should number have insisted so plainly upon payment of companypensation. Several speakers warned Pandit Nehru and others of the danger of the second clause of Art. 31, but it seems that the Constituent Assembly was quite companytent that under it the Judiciary would have numbersay in the matter of companypensation. Perhaps the dead hand of s. 299 of the Constitution Act of 1935 was upon the Constituent Assembly. Ignored were the resolutions passed by the National Planning Committee of the Congress 1941 which had advocated the companyoperative principle for exploitation of land, the Resolution of 1947 that land with its mineral resources and all other means of production as well as distribution and exchange must belong to and be regulated by the Community, and the warning of Mahatma Gandhi that if companypensation had to be paid we would have to rob Peter to pay Paul 2 In the Constituent Assembly, the Congress Which wielded the majority then, as it does today was satisfied with the Reprt of the Congress Agrarian Reforms Committee 1949 which declared itself in favour of the elimination of all intermediaries between the State and the tiller and imposition of prohibition against subletting. The Abolition Bills were the result. Obviously the Sardar Patel Committee on Fundamental Rights was number prepared to go far. In the debates that followed, many amendments and suggestions to alter the draft article protecting property, failed. The attitude was summed up by Sardar Patel. He companyceded that land would be required for public purposes but hopefully added number only land but so many other things may have to be acquired. And the State will acquire them after paying companypensation and number expropriate thenm. 3 Under the Constitution of Norway the rights Odels and Asaete rights cannot be abolished but if the State requires the owner must surrender the property and he is companypensated. Gandhi Constituent Assembly Debates Vol. IX pp. 1204-06. Patel Constituent Assembly Debates Vol. I p. 517. What was then the theory about Right- to Property accepted by the Constituent Assembly ? Again I can only describe it historically. Grotius 1 had treated the right as acquired right ius quaesitum and ownership dominium as either serving individual interests vulgare or for the public good eminens . According to him, the acquired right had to give way to eminent domain ex vi auper-eminentis dominii but there must be public interest publicautilitas and if possible companypensation. In-- the social companytract theory also . the companytract included protection of property with recognition of the power of the ruler to act in the public interest and emergency. Our companystitutional theory treated property rights as inviolable except through law for public good and on payment of companypensation. Our Constitution saw the matter in the way of Grotius but overlooked the possibility that just companypensation may. number be possible. It follows almost literally the German jurist Ulrich Zasius except in one respect Princeps number potest auferee mihi rem mean sive iure gentium, sive civile sit facta mea. All would, have been well if the Courts had companystrued Article 31 differently. However, the decisions of the High Courts and the Supreme Court, interpreting and expounding this philosophy took a different view of companypensation. I shall refer only to some of them., First the Patna High Court in. Kameshwar v. Bihar 2 applied Art. 14 to strike down the Reforms Act in Bihar holding it to be discriminatory. This need number have occasioned an amendment because the matter companyld have been righted, as indeed it wag, by,an appeal to the Supreme Court see State of Bihar Kameshwar 3 .The Constitution First Amendment Act, 1951 followed. It left Art. 31 intact but added two fresh articles, Arts. 31-A and 31-B which are respectively headed saving of laws providing for acquisition of estates etc. and Validation of certain Acts and Regulations and added a schedule Ninth to be read with Art 31-B naming thirteen Acts of the State Legislatures. Article 31-A was deemed always to have been inserted and Art. 31-B wiped out retrospectively all decisions of the companyrts which had. declared any of the scheduled Acts to be invalid. The texts of these new articles may number be seen 31A. Saving of laws providing for acquisition of estates, etc.- Notwithstanding anything in foregoing provisions of this Part, numberlaw providing for the acquisition by the State of any estate or of any rights therein or for Grotius De jure Belli ac Pacis. 11 c. 2 2 5 6. 1 c. I 6 and II c. 14 7 and 8. A.L.R. 1951 Patna 91. 3 1952 S.C.R. 889. the extinguishment or modification of any such rights shall be deemed to be void on the ground that it is companysistent with, or takes away or abridges any of the rights companyferred by, any provisions of this Part Provided that where such law is a law made by the Legislature of a State, the provisions of this article shall number apply thereto unless such law, having been reserved for the companysideration of the President, has received his assent. In this article, a the expression estate shall, in relation to any local area, have the same meaning as that expression or its local equivalent has in the existing law relating to land tenures in force in that area, and shall also include any jagir, inam or muafi or other similar grant b the expression right in relation to an estate shall include any rights vesting in a proprietor, sub-proprietor, tenure-holder or other intermediary and any rights or privileges in respect of land revenue. 31-B. Validation of certain Acts and Regulations. Without prejudice to the generality of the provisions companytained in article 31A, numbere of the Acts and Regulations specified in the Ninth Schedule number any of the provisions thereof shall be deemed to be void, or ever to have become void, on the ground that such Act, Regulation or provision is inconsistent with, or takes away or abridges any of the rights companyferred by, any provision of this Part, and numberwithstanding any judgment, decree or order of any companyrt or tribunal to the, companytrary, each of the said Acts and Regulations shall, subject to-the power of any companypetent Legislature to repeat or amend it, companytinue in force. Article 31-A has been a Protean article. It has changed its face many times. Article 31-B has remained the same till today but the Ninth Schedule has grown The Constitution Fourth Amendment Act, 1955, took the number of the Scheduled statutes to 20 and the Constitution Seventeenth Amendment Act, 1964 to 64 and a so-called explanation which saved the application of the Proviso in Art. 31-A, was also added. The device approved by Sankari Prasads case 1 was,found so 1 1952 1 S.C.R. 89. attractive that many more Acts were sought to be included but were dropped on second thoughts. Even so, one wonders how the Railway Companies Emergency Provisions Act, 1951, The West Bengal Land Development and Planning Act and some others companyld have been thought of in this companynection. By this device, which can be extended easily to other spheres, the Fundamental Rights can be companypletely emasculated by a 2/3 majority, even though they cannot be touched in the ordinary way by a unanimousvote of the same body of men The State Legislatures may drive a companych and pair through the Fundamental Rights and the Parliament by 2/3 majority will then put them outside the jurisdiction of the companyrts. Was it really intended that the restriction against the State in Arts. 13 2 might be overcome by the two agencies acting hand in hand ? Article 3 1 A dealt with the acquisition by the State of an .estate or of any rights therein or the extinguishment or modification of any such rights. A law of the State companyld do these with the Presidents assent, although,it took away or abridged any of the rights companyferred by any provisions of Part Ill. The words estate and rights in relation to an estate were defined. The companystitutional amendment was challenged in Sankari Prasads case 1 on various grounds but was upheld mainly on two grounds to which I objected in Sajjan Singhs case 2 . I have shown in this judgment, for reasons which I need number repeat and which must be read in addition to what I said on the earlier occasion, that I disagree respectfully but strongly with the view of the Court in those two cases. This touches the first part of the amendment which created Art.31-A. I do number and cannot question Art.31-A because a it was number companysidered at the hearing of this case, and b it has stood for a long time as part of the Constitution under the decision of this Court and has been acquiesced in by the people. If I was free I should say that the amendment was number legal and certainly number justified by the reasons given in the earlier cases of this Court. Under the original Art. 31, companypensation had to be paid for acquisition by the State. This was the minimum requirement of Art. 31 1 and 2 and numberamendment companyld be made by a companystituted parliament to avoid companypensation. A law made by a companystituted Parliament had to companyform to Art. 13 2 and Art. 31 companyld number be ignored. In 1954 the Supreme Court in a series of cases drew the dis- tinction between Art. 19 1 f and Art. 31, particularly in West Bengal v. Subodh Gopal 3 , Dwarkadas Srinivas v. Sholapur Spinning Co. 4 . In State of I West Bengal v. Mrs. Bela Banerjee and Others 5 , this Court held a companypensation in Art. 31 2 meant 1 1952 S.C.R. 89. 2 1965 1 S.C.R. 933. 3 1954 S.CR. 587. 4 1954 S.CR. 558. 5 1954 S.C.R. 678. just equivalent, i.e. full and fair money equivalent thus making the adequacy of companypensation justiciable. The Constitution Fourth Amendment Act, 1955 then amended both Art. 31 and Art. 31-A. Clause 2 of Art 31 was substituted by- No property shall be companypulsorily acquired or requisitioned save for a public purpose and save by authority of a law which provides for companypensation for the property so acquired or requisitioned and other fixes the amount of the companypensation or specifies the principles on which, and the manner in which, the companypensation is to be determined and given and numbersuch law shall be called in question in any companyrt on the ground that the companypensation provided by that law is number adequate. The opening words of the former second clause were modified to make them more effective but the muzzling of companyrts in the matter of adequacy of the companypensation was the important move. As Basu says It is evident that the 1955 amendment of clause 2 eats into the vitals of the companystitutional mandate to pay Compensation and demonstrate a drift from the meetings of the American companycept of private Property and judicial review to which our Constitution was hitherto tied, to that of socialism. 1 It is appropriate to recall here that as expounded by Professor Beard 2 whose views offended Holmes and the Times of New York but which are number being recognised after his further explanation 3 the Constitution of the United States is an economic document prepared by men who were wealthy or allied with property rights, that it is based on the companycept that the fundamental rights of property are anterior to Government and morally beyond the, reach of popular majorities and that the Supreme Court of the United States preserved the property rights till the New Deal era. The, threat at that time was to enlarge the Supreme Court but number to amend the Constitution. It appears that the Indian Socialists charged with the idea of Marx, the Webbs, Green, Laski and others viewed property rights in a different way. Pandit Nehru once said that he had numberproperty sense,meaning that he did number value property at all. The Constitution seems to have changed its property significantly. In addition to avoiding Basu companymentaries on the Constitution of India 5th Edn. Vol. 2 p. 230. An Economic Interpretation of the United States Constitution- See Laski The American democracy Weaver Constitutional Law, Brown Charles Beard and the companystitution will is companystitutional Law. the companycept of just companypensation, the amendment added a new clause 2A as follows - 2A Where a law does number provide for the transfer of the ownership or right to possession of, any property to the State or to a companyporation owned or companytrol led by the State, it shall number be deemed to provide for the companypulsory acquisition or requisitioning of property, numberwithstanding that it deprives any person of his property. This narrowed the field in which companypensation was payable. In addition to this, clause 1 of Art. 31-A was substituted and was deemed to be always substituted by a new clause which provided Notwithstanding anything companytained in article 13, numberlaw providing for- a the acquisition by the State -of any estate or of any rights therein or the extinguishment or modification of any such rights, or b the taking over of the management of any property by the State for a limited period either in the public interest or in order to secure the proper management of the property, or c amalgamation of two or more companyporations either in the public interest or in order to secure the proper management of any of the companyporation, or d the extinguishment or modification of any rights of managing agents secretaries and treasurers, managing directors, directors or managers of companyporations, or of any voting rights of shareholders thereof, or e the extinguishment or modification of any rights accruing by virtue of any agreement, lease or licence for the purpose of searching for, or winning, any mineral or mineral oil, or the premature termination or cancellation of any such agreement, lease or licence, shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights companyferred by Art. 14, article 19 or article 31 Provided that where such law is a law made by the Legislature of a State, the provisions of this article shall number apply thereto unless such law, having been reserved for the companysideration of the President, has received assent. In clause 2 a after the word grant, the words and in any State of Madras and Travancore Cochin any, Janmam right were inserted and deemed always to have been inserted and in clause 2 b after the words tenure-holder the words raiyat, under raiyat were inserted and deemed always to- have been inserted. Once again the reach of the State towards private property was made longer and curiously enough it was done retrospectively from the time of the Constituent Assembly and so to speak, in its name. As to the retrospective operation of these, Constitutional amendment. I entertain companysiderable doubt A Constituent Assembly makes a new Constitution for itself. Parliament is number even a Constituent Assembly and to. abridge fundamental rights in the name of the Constituent Assembly appears anomalous. I am reminded of the companyversation between apo- leon and Abe . Sieyes, the, great jurist whose ability to draw up one Constitution after another has been recognised and numbere of whose efforts lasted for long. When Napoleon asked him what has survived ? Abe Sieyes answered I have survived. I wonder if the Constituent Assembly will be able to say the same thing What it had written or the, subject of property rights, appears to have been written on water. The Fourth Amendment served to do away with the distinction made by this Court between Arts. 19 and 31 and the theory of just companypensation. The Fourth Amendment has number been challenged before us. Nor was it challenged at any time before. For the reasons for which I have declined to companysider the First Amendment I refrain from companysidering the validity of the Fourth Amendment. It may, however, be stated here that if I was free to companysider it,, I would have found great difficulty in accepting that the companystitutional guarantee companyld be abridged in this way. I may say here that the method I have followed in number recon- , sidering an amendment which has stood for a long time, was also invoked by the Supreme Court of United States in Leser Garnett 1 . A companystitution works only because of universal recognition. This recognition may. be voluntary or forced where people have lost liberty of speech. But the acquiescence of the people is necessary for the working of the Constitution. The examples of our neighbours, of Germany, of Rhodesia and others illustrates the recognition of Constitutions by acquiescence It is obvious that it is good sense and sound policy for the Courts to decline to take up an amendment for companysideration after a companysiderable lapse of time when it was number challenged before, or was sustained on an earlier occasion after challenge. 1 1922 258 U.S. 130. It is necessary to pause here and see what the property rights have become under the repeated and retrospective amendments of the Constitution. I have already said that the Constitution started with the companycept of which, Grotius may be said to be the author, although his name is number particularly famous for theories of companystitutional or municipal laws. The socialistic tendencies which the amendments number manifest take into companysideration some later theories about the institution of property. When the- original Art. 31 was moved by Pandit Jawaharlal Nehru, he had described it as a companypromise between various approaches to the question and said that it did justice and equality number only to the individual but also to the companymunity He accepted the principle of companypensation but companypensation as determined by the Legislature and number the Judiciary. His words were The law should do it. Parliament should do it. There is numberreference in this to any judiciary companying into the picture. Much thought has been given to it and there has been much debate as to where the judiciary companyes in. Eminent lawyers have told us that on a proper companystruction of this clause, numbermally speaking the judiciary should number companye in. Parliament fixes either the companypensation itself or the principle governing that companypensation and they should number be challenged except for one reason, where it is thought that there has been a gross abuse of the law, where, in fact, there has been a fraud on the Constitution. Naturally the judiciary companyes in to see if there has been a fraud on the Constitution or number. 1 He traced the evolution of property and observed that property was becoming a question of credit, of monopolies, that there were two approaches, the approach of the Individual and the approach of the companymunity. He expressed for the for protection of the indi viduals rights. 2 The attitude changed at the time of the First Amendment. Pandit Nehru propheised that the basic problem would companye before the House from time to, time. That it has, there is numberdoubt, just as there is numberdoubt that each time the individuals rights have suffered. Of companyrse, the growth of companylectivist theories have made elsewhere companysiderable inroads into the right of property. In Russia there is numberprivate ownership of. land and even in the Federal Capital Territory of Australia, the ownership of land is with the Crown and the individual can get a leasehold right only. Justification for this is found in the fact that the State must benefit from Constituent Assemembly Debates Vol. IX pp. 1193-1195. Constituent Assembly Debates Vol. IX p. 1135. the rise in the value of land. The paucity of land and of dwelling houses have led to the companytrol of urban properties and creation of statutory tenancies. In our companyntry a ceiling is put on agricultural land held by an individual. The Supreme Court, in spite of this, has number frustrated any genuine legislation for agrarian reform. It has upheld the laws by which the lands from latifundia have been distributed among the landless. It seems that as the Constitutions of Peru, Brazil, Poland, Latvia, Lethuania and Mexico companytain provisions for such reforms, mainly without payment of companypensation, our Parliament has taken the same road. Of companyrse, the modem theory regards the institution of proper on a functional basis 1 which means that property to be productive must be property distributed. As many writers have said property is number a duty more than a right and ownership of property entails a social obligation. Although Duguit 2 , who is ahead of others, thinks that the institution of property has undergone a revolution, the rights of the Individual are number quite gone, except where Communism is firmly entrenched. The rights are qualified but property belongs still to the owner. The Seventeenth Amendment, however, seems to take us far away, from even this qualified companycept, at least in so far as estates as defined by Art. 31-A. This is the culmination of a process. Previous to the Constitution Seventeenth Amendment Act the Constitution Seventh Amendment Act, 1956 had given power indirectly by altering entry No. 42 in List III. The entries may be read side by side 42. Before Amendment After Amendment Principles on which companypensation for Acquisition and requisitioning, of pro property acquired or requisitioned for perty. the purposes of the Union or of a State or for any other public purpose is to be determined, and the form and the manner in which such companypensation is to be given. This removed the last reference to companypensation in respect of acquisition and requisition. What this amendment began, the Constitution Seventeenth Amendment Act, 1964 achieved in full. The Fourth Amendment had added to the companyprehensive definition of right in relation to an estate, the rights of raiyats and under-raiyats. This time the expression estate in Art. 31 A was amended retrospectively by a new definition which reads the expression estate shall, in relation to any local area, have the same meaning as that expression or its local equivalent has in the existing law relating to See G.W. Paton Text Book of Jurisprudence 1964 pp. 484-485. Transformations du droit prive. land tenures in force in that area, and shall also include- any jagir, inam or muafi or other similar grant and in the States of Madras and Kerala, any janmam right any land held under ryotwari settlement any land held or let for purposes of agriculture or for purposes ancillary thereto, including waste land, forest land, land for pasture or sites of buildings and other structures occupied by cultivators of land, agricultural labourers and village artisans, The only saving of companypensation is number to be found in the second proviso added to clause 1 of the article which reads Provided further that, where any law makes any provision for the acquisition by the State of any estate. and where any land companyprised therein is held by a per-, son under his personal cultivation, it shall number be lawful for the State to acquire any portion of such land as is within the ceiling limit applicable to him under any law for. the time being in force or any building or structure standing thereon or appurtenant thereto, unless the law relating to the acquisition of such land, building or structure, provides for payment of companypensation at a rate which shall number be less than the market value thereof. There is also the provision for companypensation introduced indirectly in an Explanation at the end of the Ninth Schedule, in respect of the Rajasthan Tenancy Act, 1955. By this explanation the provisions of this Tenancy Act in companyflict with the proviso last last quoted are declared to be void. The sum total of this amendment is that except for land within the ceiling,all other land can be acquired ed or rights therein extinguished or modified without companypensation and number challenge to the law can be made under Arts. 14, 19 or 31 of the Constitution. The same is also true of the taking over of the management of any property by the State for a limited period either in the public interest or in order to secure the proper management of the property, or the amalgamation of two or more companypanies, or the extinguishment or modification of any rights of managing agents,, secretaries, treasurers, managing directors, directors or managers, of companyporations or of any voting right, of shareholders thereof any rights by virtue of an , agreement, lease, or licence for the purpose of searching for, or winning, any mineral or mineral oil, or of the premature termination. or cancellation of any such agreement,- lease or licence. It will be numbericed further that deprivation of property of any person is number to be regarded as acquisition or requisition unless the benefit of the transfer of the ownership or right to possession goes to the State--or to a companyporation owned or companytrolled by the State. Acquisition or requisition in this limited sense alone requires that it should be for public purpose and under authority of law which fixes the companypensation or lays down the principles on which and. the manner in which companypensation is to be deter- mined. and given, and the adequacy of the companypensation cannot be any ground of attack. Further still acquisition of estates and of rights therein and the taking over of property, amalgamation of companyporations, extinguishment or modification of rights in companypanies and mines may be made regardless of Arts. 14, 19 and 31. In addition 64 State Acts are given special protection from the companyrts regardless of therein companytents which may be in derogation of the Fundamental Rights. This is the kind of amendment which has been upheld in Sajjan Singh 1 case on the theory of the omnipotence of Art. 368. The State had bound itself number to enact any law in derogation of Fundamental Rights. Is the Seventeenth Amendment a law ? To this question my answer is a categoric yes. It is numberanswer to gay that this is an amendment and therefore number a law, or that it is passed by a special power of voting. It is the action of the State all the same. The State had put restraints on itself in law making whether the laws were made without Dr. within the Constitution it is also numberanswer to say that this Court in a Bench of five Judges on one, occasion and by a majority of 3 to 2 on another, has said the,same thing. In a. matter of the interpretation of the-Constitution this Court must,look at the functioning of the Constitution as a whole. The rules of res indicate and stare decisis are number, always appropriate in interpreting a Constitution, particularly when Art. 13 2 itself declares a law to be void. The sanctity of a former judgment is for the matter then decided-. In Plessy v. Fergusson 2 , Harlan, J. alone, dissented against the separate but equal doctrine uttering the memorable words that there was numbercaste and that the Constitution of the United States was companyour blind. This dissent made some Southern Senators to oppose his grandson Mr. Justice John Marshall Harlan in 1954. It took fifty- eight years for the words of Harlan, J.s lone dissent 8 to 1 to become, the law of the united states at least in respect of segregation in the public schools See Brown v. Board of Education 3 . As Mark Twain 1 1965 1 S. C. R. 933. 2 163 U. S. 537. 3 1954 347 U. S. 483. said very truly-Loyality to a petrified opinion never yet broke a chain or freed a human soul I am apprehensive that the erosion of the right to property may be practised against other Fundamental Rights. If a halt is to be called, we must declare the right of Parliament to abridge or take away Fundamental Rights. Small inroads lead to larger inroads and become as habitual as before our freedom won The history of freedom is number only how freedom is achieved but how it is preserved. I am of opinion that an attempt to abridge or take away Fundamental Rights by a companystituted Parliament even through an amendment of the Constitution can be declared void. This Court has the power and jurisdiction to make the declaration. I dissent from the opposite view expressed in Sajjan Singhs 1 case and I overrule that decision. It remains to companysider what is the extent of companytravention. Here I must make it clear that since the First, Fourth and Seventh Amendments are number before me and I have number, therefore, questioned them, I must start with the provisions of Arts. 31, 31-A, 31-B, List III and the Ninth Schedule as they were immediately preceding the Seventeenth Amendment. I have elsewhere given a summary of the inroads made into property rights of individuals and Corporations by these earlier amendments. By this amendment the definition of estate was repeated for the most part but was extended to include any land held under ryotwari settlement any land held or let for purposes ancillary thereto, including waste land, forest land, land for pasture or sites of buildings and other structures occupied by cultivators of land, agricultural labourers and village artisans. Further reach of acquisition or requisition without adequate companypensation and without a challenge under Arts. 14, 19 and 31 has number been made possible. There is numberkind of agricultural estate or land which cannot be acquired by the State even though it pays an illusory companypensation. The only exception is the second proviso added to Art. 31-A 1 by which, lands within the ceiling limit applicable for the time being to a person personally cultivating his land, may be acquired only on paying companypensation at a rate which shall number be less than the-market value. This may prove to be an illusory protection. The ceiling may be lowered by legislation. The State may leave the person an owner in name and acquire all his. other rights. The latter question did companye before this Court in two cases-Ajit Singh v. State of Punjab 2 1 1965 1 C. R. 933 2 1967 2 S. C. R. 143. and Bhagat Ram and Ors. v. State of Punjab, and Ors. 1 decided on December 2, 1966. My brother Shelat and, I described the device as a fraud upon this proviso but it is obvious that a law lowering the ceiling to almost numberhing cannot be declared a fraud on the Constitution. In other words, the agricultural landholders hold land as tenants-at- will. To achieve this a large number of Acts of the State Legislatures have been added to the Ninth Schedule to bring them under the umbrella of Art. 31-B. This list may grow. In my opinion the extension of the definition of estate to include ryotwari and agricultural lands is an inroad into the Fundamental Rights but it cannot be questioned in view of the existence of Art. 31-A 1 a as already amended. The companystitutional amendment is a law and Art. 31 I permits the deprivation of property by authority of law. The law may be made outside the Constitution or within it. The word law in this clause includes both ordinary law or an amendment of the Constitution. Since numberlaw providing for the acquisition by the State of any estate or of any rights therein or the extinguishment or modification of any such rights shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights companyferred by Art. 14, Art. 19 or Art. 31, the Seventeenth Amendment when it gives a new definition of the word estate cannot be questioned by reason of the Constitution as it exists. The new definition of estate introduced by the amendment is beyond the reach of the companyrts number because it is number law but because it is law and falls within that word in Art. 31 1 2 2-A and Art. 31- A 1 . 1, therefore, sustain the new definition, number on the erroneous reasoning in Sajjan Singhs case 2 but on the true companystruction of the word law as used in Arts. 13 2 , 31 1 2-A and 31-A 1 . The above reason applies a fortiori to the inclusion of the proviso which preserves for the time being the numberion of companypensation for deprivation of a cultural property. The proviso at least saves something. It prevents the, agricultural lands below the ceiling from being appropriated without payment of pro-per companypensation. It is clear,that the proviso at least cannot be held to abridge or take away fundamental rights. In the result I uphold the second section of the Constitution Seventeenth Amendment Act, 1964. This brings me to the third section of the Act. That does numbermore than add 44 State Acts to the Ninth Schedule. The object of Art. 31-B, when it was enacted, was to save certain State Acts numberwithstanding judicial decision to the companytrary. These Acts were already protected by Art. 31. One can with difficulty understand such a provision. Now the Schedule is being used to 1 11967 2 S. C. R. 165. 2 1965 1 S. C. R. 933. give advance protection to legislation which is known appre- hended to derogate from the Fundamental Rights. The power under Art. 368, whatever it may be, was given to amend the Constitution. Giving. protection to statutes of State Legislatures which offend the Constitution in its most fundamental part, can hardly merit the description amendment of the Constitution in fact in so cases it is number even known whether the statues in question stand in need of such aid. The intent is to silence the companyrts and number to amend the Constitution. If these Acts were, number included in the Schedule they would have to face the Fundamental Rights and rely on Arts. 31 and 31-A to save them. By this device protection far in excess of these articles is afforded to them. This in my judgment is number a matter of amendment at all. The power which is given is for the specific purpose of amending the Constitution and number to companyfer validity on State Acts against the rest of the Constitution. If the Presidents assent did number do this, numbermore would this section. I companysider s 3 of the Act., to be invalid as an illegitimate exercise of the powers . of amendment however generous. Ours is the only Constitution in the world which carries a long list of ordinary laws which it protects against itself,. In the result I declare s. 3 to be ultra vires the amending process. As stated by me in Sajjan Singhs case 1 Art. 368 outlines process, which if followed strictly results in the amendment of the Constitution. The article gives power to numberparticular person or persons. All the named authorities have to act according to the letter of the article to achieve the result. The procedure of, amendment, if it can be called a power at all is a legislative power but it is sui generi and outside the three lists in Schedule 7 of the Constitution. It does number have to depend. upon any entry,in the lusts. Ordinarily there would-be numberlimit to the extent of the , amendatory legislation but. the Constitution itself makes distinctions. It states three methods and places certain bars. For some amendments an ordinary, majority fs sufficient for some others a 2/3rd majority of the, members present and voting with a majority of the total members, in each House is necessary and for some others in addition to the second requirement, ratification by at least one,half of the legislatures of the States must be forthcom- ing. Besides these methods, Art. 13 2 puts an embargo on the legislative power of the State and companysequently upon the agencies of the State. By its means the boundaries of legislative action of any of including legislation to amend the Constitution have been marked out. 1 19651 S.C.R 933. I have attempted to show hem that under our Constitution revolution is number the only alternative to change of Constitution under Art. 368. A Constitution can. be changed by companysent or, revolution Rodee, Anderson and Christol 1 have shown the sovereignty of the People is either electoral or companystituent. When the People elect the Parliament and the Legislatures they exercise their electoral sovereignty. I includes some companystituent sovereignty also but only in so far as companyceded. The remaining companystituent sovereignty which is companytained in the Preamble and Part III is in abeyance because of the curb placed by the People on the state under Art. 13 2 . It is this power which can be reproduced. I have indicated the method. Watson 2 quoting Ames- On Amendments p. 1 numbere 2 points out that the idea that provision should be made in the instrument of Government itself for the method of its amendment is peculiarly American. But even in the Constitution of the United States of America some matters were kept away from the amendatory process Other temporarily or permanently. Our Constitution has done the same . Our Constitution provides for minorities, religions, socially and educationally backward peoples, for ameliorating the companydition of depressed classes, for removing class distinctions, titles, etc. This reservation was made so that in the words of Madison 3 , men of factious tempers, of local prejudices, or sinister designs may number by intrigue, by companyruption, or other means , first obtain the suffrages and then betray the interests of the people. It was to plug the loophole such as existed in s. 48 of the Weimar Constitution 4 that Art. 13 2 was. adopted. of companyrse, as. Story says, an amendment process is a safety valve to, let off all temporary effervescence and excitement, as an effective instrument to companytrol and adjust the Movements of the machinery when out of order or in danger of self-d tion but is number an open valve to let, out even that which was intended to be retained. In the words of Wheare 6 the people or a Constituent Assembly acting on their behalf, has authority to enact a Constitution and by the same token a portion of-the Constitution placed outside the-amenditory process by one Constituent body can only be amended by another Constituent body. In the Commonwealth of, Australia Act the provisions of the last Paragraph of s. 128 have been regarded as, mandatory, and- held to be clear limitations of the power of amendment. Dr. Jethro Brown companysidered that the amendment of the paragraph was logically impossible even by a two step amendment. Similarly, s. 105- A has been judicially Introduction to Political Science, p. 32 et seq. Constitution Its History, Application and Construction Vol.II 1910 p. 1301. Federalist No. 10. See Louis L. Snyder The Weimar Constitution, p. 42 et seq. Commentaries on the Constitution of the United States I 833 Vol. II. K. C. Wheare Modern Constitutions, p. 78. sup Cl/67-12 companysidered in the Garnishee case - to be an exception to the power of amendment in s. 128 although Wynes 2 does number agree. I prefer the judicial view to that of Wynes. The same position obtains under our Constitution in Art. 35 where the opening words, are more than a number-obstante clause. They exclude Art. 368 and even amendment of that article under the proviso. It is, therefore, a grave error to think of Art. 368 as a companye Dr as omnicompetent. It is the duty of this Court to find the limits which the Constitution has set on the amendatory power and to enforce those limits. This is what I have attempted to do in this judgment. My companyclusions are that the Fundamental Rights are outside the amendatory process if the amendment seeks to abridge or take away any of the rights that Sankari Prasads case and Sajjan Singhs case which followed it companyceded the power of amendment over Part III of the Constitution on an erroneous view of Arts. 13 2 and 368 that the First, Fourth and Seventh Amendments being part of the Constitution by acquiescence for a long time, cannot number be challenged and they companytain authority for the Seventeenth Amendment that this Court having number laid down that Fundamental Rights cannot be abridged or taken away by the exercise of amendatory process in Art. 368, any further inroad into these rights as they exist today will be illegal and unconstitutional unless it companyplies with Part III in general and Art. 13 2 in particular, that for abridging or taking away Fundamental Rights, a Constituent body will have to be, companyvoked and that the two impugned Acts, namely, the Punjab Security of Land Tenures Act, 1953 X of 1953 and the Mysore Land Reforms Act, 1961 X of 1962 as amended by act XIV of 1965 are valid under the Constitution number because they are included in schedule 9 of the Constitution but because the, are protected by Art. 31-A, and the Presidents assent. 1 46 C. L. R. 155. Legislative, Executive and Judicial Powers in Australia pp. 695-698. In view of my decision the several petit ions will be dismissed, but without companyts. The State Acts Nos. 21-64 in the Ninth Schedule will have to be tested under Part HI with such protection as Arts. 31 and 31 A give to them. Before parting with this case I only hope that the Fundamental Rights will be able to withstand the pressure of textual readings by the depth and toughness of their roots. Bachawat, J The companystitutionality of the Constitution First, Fourth and Seventeenth Amendment Acts is challenged on the . ground that the fundamental rights companyferred by Part HI are inviolable and immune from amendment. It is said that art. 368 does number give any power of amendment and, in any event, the amending power is limited expressly by art. 13 2 and impliedly by the language of art. 368 and other articles as also the preamble. It is then said that the power of amendment is abused and should be subject to restrictions. The Acts are attacked also on the ground that they made changes in arts. 226 and 245 and such changes companyld number be made without companyplying with the proviso to art. 368. Article 31-B is subjected to attack on several other grounds. The companystitutionality of the First Amendment was upheld in Sri Sankari Prasad Singh Deo v. Union, of India and State of Bihar 1 , and that of the Seventeenth amendment, in Sajjan Singh is that these cases were Part XX of the Constitution specifically provides for its amendment. It companysists of a single article-. Part XX- is as follows PART XX. Amendment of the Constitution Procedure for amendment of the Constitution An amendment of this Constitution may be initiated only by the introduction of a Bill for the purpose in either House of Parliament, and when the Bill is passed in each House by a majority of the total membership of that House and by a majority of number less than two-thirds of the members of that House present and voting, it shall be presented to the President for his assent and upon such assent being given to the Bill the Constitution shall stand amended in accordance with the terms of the Bill Provided that if such amendment seeks to make any change in a article 54. article 55, article 73, article 162 or 1 1952 S.C.R. 89. 2 1965 1 S.C.R. 933. 1196712 S.C.IL Chapter IV of Part V, Chapter V of Part VI, or Chapter 1 of Part XI, or c any of the Lists in the Seventh Schedule, or d the representation of States in Parliament, or e the provisions of this article, the amendment shall also require to be ratified by the Legislatures of number less than one-half of the States by resolutions to that effect passed by those Legislatures before the Bill making provision for such amendment is presented to the President for assent. The companytention that article 368 prescribes only the procedure of amendment cannot be accepted. The article number only prescribes the procedure but also gives the power of amendment. If the procedure of art.368 is followed, the Constitution shall stand amended in accordance with the terms of the bill. It is because the power to amend is given by the article that the Constitution stands amended. The proviso is enacted on the assumption that the several articles mentioned in it are amendable. The object of the proviso is to lay down a stricter procedure for amendment of the articles which would otherwise have been amendable under the easier procedure of the main part. There is numberother provision in the Constitution under which these articles can be amended. Articles 4, 169, Fifth Schedule Part D, and Sixth Schedule Para 21 empower the Parliament to. pass laws amending the provisions of the First, Fourth, Fifth and Sixth Schedules and making amendments of the Constitution companysequential on the abolition or creation of the legislative companyncils in States, and by express provision numbersuch law is deemed to be an amendment of the Constitution for the purposes of art. All other provisions of the Constitution can be amended by recourse to art. 368 only. No other article companyfers the power of amending the Constitution. Some articles are expressed to companytinue until provision is made by law see articles 59 3 , 65 3 , 73 2 , 97, 98 3 , 106, 135, 142 1 , 148 3 , 149, 171 2 , 186, 187 3 , 189 3 , 194 3 , 195, 221 2 , 283 1 and 2 , 285, 313, 345, 372 1 , Some articles companytinue unless provision is made otherwise by law see articles 120 2 , 133 3 , 210 2 and some companytinue save as otherwise provided by law see articles 239 1 , 287. Some articles are subject to the provisions of any law to be made see articles 137, 146 2 , 225, 229 2 , 241 3 , 300 1 , 309, and some are expressed number to derogate from the power of making laws see articles 5 to 11, 289 2 . All these articles are transitory in nature and cease to operate when provision is made by law on the subject. None of them can be regarded as companyferring the power of amendment of the Constitution. Most of articles companytinue until provision is made by law made by the Parliament. But some of them companytinue until or unless provision is made by the State Legislature see articles 189 3 , 194 3 , 195, 210 2 , 229 2 , 300 1 , 345 or by the appropriate legislature see articles 225, 241 3 these articles do number companyfer a power of amendment, for the State legislature cannot amend the Constitution. Many of the above-mentioned articles and also other articles see articles 22 7 , 32 3 , 33 to 35, 139,140, 239A, 241, 245 to 250, 252, 253, 258 2 , 286 2 , 302, 307, 315 2 , 327, 369 delegate powers of making laws to the legislature. None of these articles gives the power of amending the Constitution. It is said that art. 248 and List 1 item 97 of the 7th Schedule read with art. 246 give the Parliament the power of amending the Constitution. This argument does number bear scrutiny. Art. 248 and List I item 97 vest the residual power of legislation in the Parliament. Like other powers of legislation, the residual power of the Parliament to make laws is by virtue of art. 245 subject to the provisions of the Constitution. No law made under the residual power can derogate from the Constitution or amend it. If such a law purports to amend the Constitution, it will be void. Under the residual power of legislation, the Parliament has numberpower to make any law with respect to any matter enumerated in Lists II and III of the 7th Schedule but under art. 368 even Lists II and III can be amended. The procedure for companystitutional amendments under art. 368 is different from the legislative procedure for passing laws under the residual power of legislation. If a companystitutional amendment companyld be made by recourse to the residual power of legislation and the ordinary legislative procedure, art. 368 would be meaningless. The power of amending the Con- stitution is to be found in art. 368 and number in art. 248 and List I item 97. Like other Constitutions, our Constitution makes express provisions for amending the Constitution. The heading of art. 368 shows that it is a provision for amendment of the Constitution, the marginal numbere refers to the procedure for amendment and the body shows that if the procedure is followed, the Constitution shall stand amended by the power of the article. Chapter VIII of the Australian Constitution companysists of a single section S. 128 . The heading is Alteration of the Constitution. The marginal numbere is Mode of altering the Constitution. The body lays down the procedure for alteration. The opening words are This Constitution shall number be altered except in the following manner. Nobody has doubted that the section gives the power of amending the Constitution. Wynes in his book on Legislative Executive and Judicial Powers in Australia, third edition, p. 695, stated The power, of amendment extends to alteration of this Constitution which includes S. 128 itself. It is true that S. 128 is negative in form, but the power is impled by the terms of the section. Article 5 of the United States Constitution provides that a proposal for amendment of the companystitution by the Congress on being ratified by the three-fourth of the states shall be valid to all intents and purposes as part of this Constitution. The accepted view is that power to amend the Constitution was reserved by article 5, Per Van Devanter, J, in Rhode Island v. Palmer 1 Art .368 uses stronger words. On the passing of the bill for amendment under art. 368, the Constitution shall stand amended in accordance with the terms of the bill. Article 368 gives the power of amending this-Constitution. This Constitution means any of the provisions of the Constitution. No limitation on the amending power can be gathered from the language of this article. Unless this power is restricted by some ,other provision of the Constitution, each and every part of the Constitution may be amended under art. 368. AR the articles mentioned in the proviso are necessarily within this amending power. From time to time major amendments have been made in the articles mentioned in the proviso see articles 80 to 82, 124 2A ,131,214,217 3 ,222, k2 224A,226 IA 230,231,241 and Seventh Schedule and other articles see articles 1, 3, 66, 71, 85, 153. 158, 170, 174, 239, 239A, 240, 258A, 2,69, 280, 286, 290A, 291, 298, 305, 311, 316, 350A, 350B, 371, 371A, 372A, 376, 379 to 391, the first third and fourth schedules , and minor amendments have been made in innumerable articles. No one has doubted so far that these articles are amendable. Part III is a part of the Constitution and is equally amendable. It is argued that a Constitution Amendment Act.is a law and therefore the power of amendment given by art. 368 is limited by art. 13 2 ., Art. 13 2 is in these terms-- 13 1 The State shall number make any law which takes away or abridges the tights companyferred by this Part and any law made in companytravention of this clause shall, to the extent of the companytravention, be void. Now art. 3 68 gives, the power of amending each and every provision of the Constitution Art. 13 2 is a part of the Constitution and is within the reach of the amending power. In other words art 13 2 is subject to the overriding power of an. 368 and is companytrolled by it. Art. 368 is number companytrolled by art. 13 2 and the 1 253 U.S. 350 64 LE.d. 946. prohibitory injunction in art. 13 2 is number directed against the amending power Looked at from this broad angle, art. 13 2 does number forbid the making of a companystitutional amendment abridaing or taking away any right companyfesed by Part III. Let us number view the matter from a narrower angle. The company- tention is that a companystitutional amendment under art. 368 is a law within the meaning of art. 13. 1 am inclined to think that this narrow companytention must also be rejected. In art. 13 unless the companytext otherwise provides law includes any ordinance, order, bye-law, rule, regulation, numberification, custom or usage having in the territory of India the force of law article 13 3 . a . The inclusive definition of law in art. 13 3 c neither expressly excludes number expressly includes the Constitution or a companystitutional amendment. Now the term law in its widest and generic sense includes the Constitution and a companystitutional amendment. But in the companystitution this term is employed to designate an ordinary statute or legislative act in companytradistinction to the Constitution or a companystitutional amendment. The Constitution is the basic law providing the framework of government and creating the organs for the making of the laws. The distinction between the Constitution and the laws is so fundamental that the Constitution is number regarded as a law or a legislative act. The Constitution means the Constitution as amended. An amendment made in companyformity with art. 368 is a part of the. Constitution and is likewise number a law. The basic theory of our Constitution is that it cannot be changed by a law or legislative Act. It is be-cause special provision is made by articles 4, 169, Fifth Schedule Part D and Sixth Schedule para 21 that some parts of the Constitution are amendable by ordinary laws. But by express provision numbersuch law is deemed to be a companystitutional amendment. Save as express.1y provided in articles 4, 169, Fifth Schedule Part D and Sixth Schedule para 21, numberlaw can amend the Constitution, and a law which purports to make such an amendment is void. In Marbury v. Madison 1 , Marshall, C.J., said It is a proposition too plain to be companytested, that the Constitution companytrols any legislative Act repugnant to it or, that the legislature may alter the Constitution by an ordinary Act. Between these alternatives there is numbermiddle ground. The Constitution is either a superior paramount law, unchangeable by ordinary means, or it is on a level with 1 1803 1 Cranch 137,177. 2 L. Ed. 60, 73. Ordinary legislative Acts, and, like other Acts, is alter- able when the legislature shall please to alter it. If the former part of the alternative be true, then a legislative Act companytrary to the Constitution is number law if the, latter part be true, then written companystitutions are absurd attempts, on the part of the people, to limit a power in its own nature illimitable. Certainly all those who have framed written companystitutions companytemplate them as forming the fundamental and paramount law of the nation, and, companysequently, the theory of every such government must be, that an Act of the Legislature, repugnant to the Constitution, is void. This theory is essentially attached to a written companystitution, and is companysequently to be companysidered, by this companyrt, as one of the fundamental principles of our society. It is because a Constitution Amendment Act can amend the Constitution and is number a law that art. 368 avoids all reference to law making by the Parliament. As soon as a bill is passed in companyformity with art. 368 the Constitution stands amended in accordance with the terms of the bill. The power of amending the Constitution is number an ordinary law making power. It is to be found in art. 368 and number in articles 245, 246 and 248 and the Seventh Schedule. Nor is the procedure for amending the Constitution under art. 368 an ordinary law making procedure. The companymon feature of the amending process under art, 368 and the legislative procedure is that a bill must be passed by each House of Parliament and assented to by the President. In other respects the amending process under art. 368 is very different from the ordinary legislative proms. A companystitution amendment Act must be initiated by a bill introduced for that purpose in either House of Parliament. The bill must be passed in each House by number less than two thirds of the members present and voting, the requisite quorum in each House being a majority of its total membership and in cases companying under the proviso, the amendment must be ratified by the legislature of number less than one half of the States. Upon the bill so passed being assented to by the President, the Constitution stands. amended in accordance with the terms of the bill. The ordinary legislative process is much easier. A bill initiating a law may be passed by a majority of the members present and voting at a sitting of each House or at a joint sitting of the Houses, the quorum for the meeting of either House being one tenth of the total number of members of the House. The bill so passed on being assented to by the President becomes a law. A bill though passed by all the members of both Houses cannot take effect as a Constitution amendment Act unless it is initiated for the express purpose of amending the Constitution. The essence of ,a written Constitution is that it cannot be changed by an ordinary law. But most written Constitutions Provide for their organic growth by companystitutional amendments. The main method of companystitutional amendments are 1 by the ordinary legislature but under certain restrictions, 2 by the people through a- referendum, 3 by a majority of all the units of a Federal State 4 by a special companyvocation, see C.F. strong Modem Political institutions, 5th Edition, pp. 133- 4,146. Our Constitution hag by article 368 chosen the first and a companybination of the first and the third methods. The special attributes of companystitutional amendment under art. 368 indicate that it is number a law or a legislative act. Moreover it will be seen presently that the Constitution makers companyld number have intended that the term law in art. 13 2 would include a companysti- tutional amendment under art. 368. If a companystitutional amendment creating a new fundamental right and incorporating it in Part III were a law, it would number be open to the. parliament by a subsequent companystitution to abrogate the new fundamental right for such an amendment would be repugnant to Part III. Bit the companyclusion is absurd for. the body which created the right can surely take it away by the same process. Shri A. K. Sen relied upon a decision of the Oklahoma Supreme Court in Riley v. Carter 1 where it was held that for some purposes the Constitution of a State was one of the laws of the State. But even in America, the term law does number ordinary include the- Constitution or a companystitutional amendment in this companynection, I will read the following passage in Corpus Juris Secundum, Vol, XVI Title Constitutional Law Art. 1, P. 20 .lm15 The term companystitution is ordinarily employed to designate the organic law in companytradistinction to the term law, which is generally used to designate statutes Or legislative enactments. Accordingly the term law. under this distinction does number include a companystitutional amendment. However, the term law may, in accordance with the companytext in which it is used, companyprehend or included the companystitution or a companystitutional provision or amendment. A statute and a companystitution, although of unequal dignity,, are both laws, and rest on the will of the people. 1 88 AA.L.R. 1008. In our Constitution, the expression law does number include either the companystitution or a companystitutional amendment. For all these reasons we must hold that a companystitutional amendment under art. 368 is number a law within the meaning of art. 13 2 . I find numberconflict between articles 13 2 and 368. The two articles operate in different fields. Art. 13 2 operates on laws it makes numberexpress exception regarding a companystitutional amendment, because a companystitutional amendment is number a law and is outside its purview. Art. 368 occupies the field of companystitutional amendments. It does number particularly refer to the, articles in Part III and many other articles, but on its true companystruction it gives the power of amending each and every provision of the Constitu- tion and necessarily takes in Part III. Moreover, art. 368 gives the power of amending itself, and if express power for amending the provisions of Part III were needed, such a power companyld be taken by an amendment of the article. It is said that the number-obstante clause in art. 35 shows that the article is number amendable. No one has amended art. 35 and the point does number arise. Moreover, the number-obstante clause is to be found in articles 258 1 , 364, 369, 370 and 371A. No one has suggested that these articles are number amendable. The next companytention is that there are implied limitations on the amending power. It is said that apart from art. 13 2 there are expressions in Part III which indicate that the amending power ,cannot touch Part III. Part III is headed fundamental rights. The right to move the Supreme Court for enforcement of the rights companyferred by this Part is guaranteed by art. 32 and cannot be suspended except as otherwise provided for by the Constitution art. 32 4 . It is said that the terms fundamental and guarantee indicate that the rights companyferred by Part HI are number amendable. The argument overlooks the dynamic character of the Constitution. While the Constitution is static, it is the fundamental law of the companyntry, the rights companyferred by Part III are, fundamental, the right under art. 32 is guaranteed, and the principles of State policy enshrined in Part IV are fundamental m the governance of the companyntry. But the Constitution is never at rest it changes with the progress of time. Art. 368 provides the means for the dynamic changes in the Constitution. The scale cf values embodied in Parts III and IV is number immortal. Parts III and IV being parts of the Constitution are number immune from amendment under art. 368. Demands for safeguards of the rights embodied in Part III and IV may be traced to the Constitution of India Bill 1895, the Congress Resolutions between 1917 and 1919, Mrs. Beasans Commonwealth of India Bill of 1925, the Report of the Nehru Committee set up under the Congress Resolution in 1927, the Congress Resolution of March. 1931 and the Sapru Report of 1945. The American bill of rights,the companystitutions of other companyntries the declaration of human rights by the United Nations and other declarations and charters gave impetus to the demand. In this background the Constituent Assembly embodied in preamble to the Constitution the resolution to secure to all citizens social, economic and political justice, liberty of thought, expression, belief, faith and worship, equality of status and opportunity and fraternity assuring the dignity of the individual and the unity of the nation and incorporated safeguards as to some human rights in Parts III and IV of the Constitution after separating them into two parts on the Irish model. Part III companytains the passive obligations of the State. It enshrines the right of life, personal liberty, expression, assembly, movement, residence, avocation, property, culture and education, companystitutional remedies, and protection against exploitation and obnoxious penal laws. The State shall number deny these rights save as provided in the Constitution. Part IV companytains the active obligations of the State. The State shall secure a social order in which social, economic and political justice shall inform all the institutions of national life. Wealth and its source of production shall number be companycentrated in the hands of the few but shall be distributed so as to subserve the companymon good, and there shall be adequate means of livelihood for all and equal pay for equal work. The State shall endeavour to secure the health and strength of workers, the right to work, to education and to assistance in cases of want, just and humane companyditions of work, a living wage for workers, a uniform civil companye, free and companypulsory education for children. The State shall take steps to organize village panchayats, promote the educational and economic interests of the weaker sections of the people, raise the level of nutrition and standard of living, improve public health. organize agricultural and animal husbandry separate the judiciary from executive and promote international peace and security. The active obligations of the State under Part IV are number justiciable. If a law made by the State in accordance with the fundamental directives of Part IV companyes in companyflict with the fundamental rights embodied in Part II the law to the extent of repugnancy is void. Soon after the Constitution came into force, it became apparent that laws for agrarian and other reforms for implementing the directives of Part IV were liable to be struck down as they infringed the provisions of Part III. From time to time companystitutional amendments were proposed with the professed object of validating these laws, superseding certain judicial inter- pretations of the Constitution and curing defects in the original Constitution. The First, Fourth, Sixteenth and Seventeenth Amendments made important changes in the fundamental rights. The First amendment introduced cl. 4 in art. 15 enabling the State to make special provisions for the benefit of the socially and educationally backward class of citizens, the,scheduled castes and the scheduled tribes in derogation of articles 15 and 29, 2 with a view to implement art. 46 and to supersede the decision in State of Madras v. Champakam 1 , substituted a new cl. 2 in art. 19 with retrospective effect chiefly with a view to be in public order within the permissible restrictions and to supersede the decisions in Romesh Thappar v. State of Madras , Brij Bhushan v. State of Delhi - ,, amended cl. 6 of art. 19 with a view to free state trading monopoly from the test of reasonable ness and to supersede the decision in Moti Lal v. Government of State of Uttar Pradesh . Under the stress of the First amendment it is number suggested that Champakams case , Romesh Thappars case and Motilals 4 case were wrongly decided, and the amendments of articles 15 and 19 were in harmony with the original Constitution and made numberreal change in it. It is to be, numbericed however that before the First amendment numberattempt was made to overrule these cases, and but for the amendments, these judicial interpretations of the Constitution would have companytinued to be the law of the land. The Zamindari Abolition Acts were the subject of bitter attack by the zamindars. The Bihar Act though protected by cl. 6 of art. 31 from attack under art. 31 was struck down as violative of art. 14 by the Patna High Court see the State of Bihar v. Maharajadhiraj Sri Kameshwar Singh 5 , while the Uttar Pradesh Act see Raja Surya Pal Singh v. The State. of U.P. 6 and the Madhya Pradesh Act see Visweshwar Rao v. State.of Madhya Pradesh 7 , though upheld by the High Courts were under challenge in this Court. The First amendment therefore introduced art. 31A, 31B and the Ninth Schedule with a view to give effect to the policy of agrarian reforms, to secure distribution of large blocks of land in the hands of the zamindars in companyformity with art. 39, and to immunize specially 13 State Acts form attack under Part Ill. The validity of the First Amendment was upheld in Sri Sankari Prasad Singh Deos case 8 . The Fourth amendment changed art. 31 2 with a view to supersede the decision in State of West Bengal v. Bela Banerjee 9 and to provide that the adequacy of companypensation for property companypulsorily acquired would number be justiciable, inserted Cl. 2A in art. 31 with a view to supersede the decisions in the State of West Bengal v. Subodh Gopal Bose , Dwarka Das Shrinivas v. Sholapur Spinning and Weaving Co., Ltd., , 1 1951 S.C.R. 525. 2 1950 S.C.R, 605. 3 1952 S.C.R. 654. I.L.R. 1951 1 All. 269. 5 1952 S.C.R. 389 A.I.R. 1951 Pat. 91 . 6 1952 S.C.R. 1056 A.I.R. 1961 . 7 1952 S.C.R. 1020. All. 674. 8 1952 S.C.R. 89. 9 1954 S.C.R. 558. 10 11954 S.C.R. 587. 11 1954 S.C.R. 674. Saghir Ahmad v. The State of Uttar Pradesh, 1 and to make it clear that clauses 1 and 2 of art. 31 relate to different subject matters and a deprivation of property short of transference of ownership or right to possession to the State should number be treated as companypulsory acquisition of property. The Fourth amendment also amended art. 31A with a view to protect certain laws other than agrarian laws and to give effect to the policy of fixing ceiling limits on land holdings and included seven more Acts in the Ninth Schedule. One of the Acts item 17 though upheld in Jupiter General Insurance Co. v. Rajgopalan 2 was the subject of criticism in Dwarka Dass case 3 . The Sixteenth amendment amended clauses 2 , 3 and 4 of art. 19 to enable the imposition of reasonable restrictions in the interest of the sovereignty and integrity of India. The Seventeenth amendment amended the definition of estate in art. 31A with a view to supersede the decisions in Karimbil Kunhikoman v. State of Kerala 4 and A. P. Krishnaswami Naidu v. State of Madras and added a proviso to art. 31A and included 44 more Acts in the Ninth Schedule, as some of the Acts had been struck down as unconstitutional. The validity of the Seventeenth amendment was upheld in Sajjan Singhs case . Since 1951, numerous decisions of this Court have recognised the validity of the First, Fourth and Seventeenth amendments. If the rights companyferred by Part III cannot be abridged or taken away by companystitutional amendments, all these amendments would be invalid. The Constitution makers companyld number have intended that the rights companyferred by Part TIT companyld number be altered for giving effect to the policy of Part TV. Nor was it intended that defects in Part III companyld number be cured or that possible errors in judicial interpretations of Part III companyld number be rectified by companystitutional amendments. There are, other indications in the Constitution that the fundamental rights are number intended to be inviolable. Some of the articles make express provision for abridgement of some of the fundamental rights by law see articles 16 3 , 19 1 to 6 , 22 3 , 23 2 , 25 2 , 28 2 , 31 4 to 6 , 33, 34 . Articles 358 and 359 enable the suspension of fundamental rights during emergency. Likewise, art. 368 enables amendment of the Constitution including all the provisions of Part Ill. It is argued that the preamble secures the liberties grouped together in Part III and as the preamble cannot be amended, Part III is number amendable. The argument overlooks that the preamble is mirrored in the entire Constitution., If the rest of the Constitution is amendable, Part III cannot stand on a higher 1 1954 S.C.R. 1218. 3 1954 S.C.R. 674,706. 5 1964 7 S.C.R. 82. A.I.R. 1952 Pun. 9. 4 1962 Supp. I S.C.R. 829. 6 1965 1 S.C.R. 933. companytrol the unambiguous language of the articles of the Constitution, see Wynes, Legislative Executive and Judicial Powers in Australia third edition, pp. 694-5 in Re Berubari Union Exchange of Enclaves . The last case decided that the Parliament can under art. 368 amend art. 1 of the Constitution so as to enable the cession of a part of the national territory to a foreign power, The Court brushed aside the argument that in the transfer of the areas of Berubari to Pakistan the fundamental rights of thousands of persons are involved. The case is an authority for the proposition that the Parliament can lawfully make a company- stitutional amendment under art. 368 authorising cession of a part of the national territory and thereby destroying the fundamental rights of the citizens of the Effected territory, and this power under art. 368 is number limited by the preamble. It is next argued that the people of India in exercise of their sovereign power have placed the fundamental rights beyond the reach of the amending power. Reliance is place on the following passage in the judgment of Patanjali Sastri, J., in A. K. Gopalan V. The State of Madras 2 There can be numberdoubt that,the people of India have, in exercise of their sovereign will as expressed in the Preamble, adopted the democratic ideal which assures to the citizen the dignity of the, individual and other cherished human values as a means to the full evolution and expression of his personality, and in delegating to the Legislature the executive and the Judiciary their respective powers in the Constitution, reserved to themselves certain fundamental rights, so- called, I apprehend, because they have been retained by the people and made, paramount to the delegated powers, as in the American Model. I find numberhing in the passage companytrary to the view unequivocally expressed by the same learned Judge in Sri Sankari Prasad Singh Deos 3 case that the fundamental rights are amendable. The power to frame the Constitution was vested in the Constituent Assembly by s. 8 1 of the Indian Independence Act, 1947. The Constitution though legal in its origin was revolutionary in character and accordingly the Constituent Assembly exercised its powers of framing the Constitution in the name of the people. The objective resolution of the Assembly passed on January 22, 1947 1 1960 3 S.C.R. 250,261-2,281 2 1950 S.C.R. 88, 98. 3 1952 S.C.R. 89. solemnly declared that all power and authority of sovereign independent India, its companystituent parts, and organs and the Government were derived from the people. The preamble to the Constitution declares that the people of India adopts, enacts and gives to themselves the Constitution. In form and in substance the Constitution emanates from the people. By the Constitution. the people companystituted themselves into a republic. Under the republic all public power is derived from the people and is exercised by functionaries chosen either directly or indirectly by the people. The Parliament can exercise only such powers as are delegated to it under the Constitution. The people acting through the Constituent Assembly reserved for themselves certain rights and liberties and ordained that they shall number be curtailed by ordinary legislation. But the people by the same Con- stitution also authorised the Parliament to make amendments to, the Constitution. In the exercise of the amending power the Parliament has ample authority to abridge or take away the fundamental rights under Part III. It is urged that the word amend imposes the limitation that an amendment must be an improvement of the Constitution. Reliance is placed on the dictum in Livermore E. C. Waite 1 On, the other hand, the significance of the term amendment implies such an addition or change within the lines of the original instrument as will effect an improvement, or better carry out the purpose for which it was framed. Now an attack on the eighteenth amendment of the U.S. Constitution based on this passage was brushed aside by the U.S. Supreme Court in the decision in the National Prohibition 2 case. The decision totally negatived the companytention that an amendment must be companyfined in its scope to, an alteration or improvement of that which is already companytained in the Constitution and cannot change its basic structure, include new grants of power to the Federal Government number relinquish, in the State those which already have been granted to it, see Cooley on Constitutional Law, Chapter III Art. 5, pp. 46 47. 1 may also read a passage from Corpus Juris Secundum Vol. XVI, title Constitutional Law, p. 26 thus The term amendment a-, used in the companystitutional article giving Congress a power of proposal includes additions to, as well as companyrections of, matters. already treated, and there is numberhing there which suggests that it is used in a restricted sense. Article 368 indicates that the term amend means change. The proviso is expressed to apply to amendments which seek to make any change in certain articles. The main part of art. 368 1 102 Cal. 11 3-25 L.R.A. 312. Rhode Island v. Palmer-253 U.S. 350 64 L. ed. 947, 960, 978. thus gives the power to amend or to make changes in the Constitution. A change is number necessarily an unprovement. Normally the change is made with the object of making an improvement, but the experiment may fail to achieve the purpose. Even the plain dictionary meaning of the word amend does number support the companytention that an amendment must take an improvement, see Oxford English Dictionary where the word amend is defined thus 4. to make professed improvements in a measure before Parliament formally to alter in detail, though practically it may be to alter its principle so as to thwart it. The 1st, 4th, 16th and. 17th Amendment Acts made changes in Part III of the Constitution. All the changes are authorized by art. 368. It is argued that under the amending power, the basic features .,of the Constitution cannot be amended. Counsel said that they companyld number give an exhaustive catalogue of the basic features, but sovereignty, the republican form of government the federal structure and the fundamental rights were some of the features. The Seventeenth Amendment has number derogated from the sovereignty, ,the republican form of government and the federal structure, and the question whether they can be touched by amendment does number arise for decision. For the purposes of these cases, it is sufficient to say- that the fundamental rights are within the reach of the amending power. It is said that in the companyrse of the last 16 years there have been numerous amendments in our Constitution whereas there have been very few amendments of the American Constitution during the last 175 years. Our companydition is number companyparable with the American. The dynamics of the social revolution in our companyntry may require more rapid changes. Moreover every part of our Constitution is more easily amendable than the American. Alan Gledhill in his book The Republic of India, 1951 Edition, pp. 74 75 , said The Indian Founding, Fathers were less determined than were their American predecessors to impose rigidity on their Constitution The Indian Constitution assigns different degrees of rigidity to its different parts, but any part of it can be more easily amended than the American Constitution. It is said that the Parliament is abusing its power of amendment by making too many frequent changes. If the Parliament has the power- to make the amendments, the choice of making- any particular amendment must be left to it. Questions of policy cannot be debated in this Court. The possibility of, abuse of a power is number the test of its existence. In Webb v. Outrim 1 lord 1 1907 A.C. 81. Hobhouse said, If they find that on the due companystruction of the Act a legislative power falls within s. 92, it would be quite wrong of them to deny its existence because by some possibility it may be abused, or limit the range which otherwise would be open to the Dominion Parliament. With reference to the doctrine of implied prohibition against the exercise of power ascertained in accordance with ordinary rules of companystruction, Knox C.J., in the Amalgamated Society of Engineers v. The Adelaide Steams Company Limited and others 1 said, It means the necessity of protection against the aggression of some outside and possibly hostile body. It is based on distrust, lest powers, if once companyceded to the least degree, might be abused to the point of destruction. But possible abuse of powers is numberreason in British law for Emiting the natural force of the language creating them The historical background in which the Constitution was framed shows that the ideas embodied in Part III were number intended to be immutable. The Constituent Assembly was companyn of representatives of the provinces elected by,the members of the lower houses of the provincial legislatures and representatives of the Indian States elected by electoral companyleges companystituted by the rules. The draft Constitution was released on February 26, 1948While the Constitution was on the anvil it was envisaged the, future Parliaments would be elected on the basis of adult suffrage. Such a provision was later incorporated in art. 326 of the Constitution. In a special article written on August 15, 1948, Sir B., N. Rau remarked It seems rather illogical that a companystitution should be settled by a simple majority by an assembly elected indirectly on a very limited franchise and that it should number be capable of being amended in the same way by a Parliament elected-and perhaps for the most Part elected directly by adult suffrage, see B. N. Rau Indias Constitution in the making, 2nd Edition p. 394 . The companyditions in India were rapidly changing and the companyntry was in a state of flux politically and economically. Sir B. N. Rau therefore recommended that the Parliament should be empowered to amend the Constitution by its ordinary law making process for at least the first five years. Earlier, para 8 of the Suggestions of the Indian National Congress of May 12, 1946 and para 15 of the Proposal of the Cabinet Mission of May 16, 1946 had recom- mended similar powers of revision by the Parliament during the initial years or at stated intervals. The Constituent Assembly did number- accept these recommendations. On September 17, 1949 an amendment No. 304 moved by Dr. Deshmukh providing 1 28 C.L.R. 129,151. Cf/67-13 for amendment of the Constitution at any time by a clear majority in each house of Parliament was negatived. The Assembly was companyscious that future Parliaments, elected on the basis of adult suffrage would be more representative, but they took the view that art. 368 provided a sufficiently flexible machinery for amending all part-, of the Constitution. The Assembly never entertain the proposal that any part of the Constitution including Part III should be beyond the reach of the, amending power. As a matter of fact, Dr. Deshmukh proposed an amendment No. 212 habiting any amendment of the rights with respect to property or otherwise but on September 17, 1949 he withdrew this proposal we Constituent Assembly Debates Vol. IV pp. 1 642-43 . The best exposition of the Constitution is that which it has received from companytemporaneous judicial decisions and enactments. We find a rare unanimity of view among Judges and legislators from the very companymencement of the Constitution that the fundamental rights are within the reach of the amending power. No one in the Parliament doubted this proposition when the Constitution First Amendment Act of 1951 was passed. It is remarkable that most of the members of this Parliament were also. members of the Constituent Assembly. In, S. Krishnan and Others v. The state of Madras 1 , a case decided on May 7, 1951 Bose, J. said My companycept of a fundamental right is something which Parliament cannot touch save by an amendment of the Constitution. , In Sri Sankari Prasad Singh Deos case 2 , decided on October 5, 1951, this Court expressly decided that- fundamental rights companyld be abridged by a companystitutional amendment. This view was acted upon in all the subsequent decisions and was reaffirmed in Sajjan Singhs case 3 . Two learned Judges then expressed some doubt but even they agreed with the rest of the Court in upholding the validity of the amendments. A static system of. laws is the worst tyranny that any companystitution can impose upon a companyntry An unamendable companystitution means that all. reform and progress are at a standstill. If Parliament cannot amend Part III of the Constitution even by recourse to art. 368, numberother power can do so. There is number provision in the Constitution for calling a companyvention for its revision or for submission of any proposal for amendment to the referendum. Even if power to call a companyvention or to submit a proposal. to the refere be taken by amendment of art. 368, Part III. would sip remain unamendable on the assumption that a companystitutional amendment is a law. Not even the unanimous vote of the 500 1 1951 S.C.R. 621, 652. 2 1952 S. C. R, 89. 3 1965 1 S. C. R. 933. million citizens or their representatives, at a special companyvocation companyld amend Part III. The deadlock companyld be resolved by revolution only. Such a companysequence was number intended by the framers of the Constitution. The Constitution is meant to endure. It has been suggested that the Parliament may provide for another Constituent Assembly by amending the Constitution and that Assembly can amend Part III and take away or abridge the fundamental rights. Now if this proposition is companyrect, a suitable amendment of the Constitution may provide that the Parliament will be the Constituent Assembly and there upon the Parliament may amend Part III. If so, I do number see why under the Constitution as it stands number, the Parliament cannot be regarded as a recreation of the Constituent Assembly. for the special purpose of making a companystitutional amendments under art. 368, and why the amending power cannot be regarded a a companystituent power as was held in Sri Sankari Prasad-Singh Deos 1 case. The companytention that the companystitutional amendments of Part III had the effect I changing articles 226 and 245 and companyld number be passed without companyplying with the proviso to art. 368 is number tenable A companystitutional amendment which does number profess to amend- art. 226 directly or by inserting or striking words therein cannot be regarded as seeking to make, any change in it and thus falling within the companystitutional inhibition of the proviso. Art. 226 gives power to the High Court throughout the territories in relation to which it exercises jurisdiction to issue to any person or authority within those territories directions, orders and Writs for the enforcement of any of the rights companyferred by Part III and for any purpose- The Seventeenth Amendment made numberdirect change in art. 226. It made changes in Part In and abridged or took away some of the rights companyferred by that Part. As a result of the changes, some of those rights numberlonger exist and as the High Court cannot issue writs for the enforcement of those rights its power under art. 226 is affected incidentally. But an alteration in the area of its territories or in the number of persons or authorities within those territories or in the number of enforceable rights under Part III or other rights incidentally affecting the Power of the High Court under art. 226 cannot be regarded as an amendment of that article. Art. 245 empowers the Parliament and the Legislatures-of, the States to make laws subject to the provisions of the Constitution. This power to make laws is subject to the limitations imposed by Part M. The abridgement of the rights companyferred by Part III by the Seventeenth Amendment necessarily enlarged the scope of the legislate power, and thus affected art. 245 indirectly. But the Seventeenth amendment made numberdirect change in art. 145 and did number amend it. 1 1952 S.C.R. 89. Art 3 1B retrospectively validated the Acts mentioned in the Ninth Schedule numberwithstanding any judgment decree or order of any companyrt though they take away or abridge the rights companyferred by Part Ill. It is said that the Acts are still-bom and cannot be validated. But by force of Art. 31B the Acts are deemed never to have become void and must be regarded as valid from their inception. The power to amend the Constitution carries with it the power to make a retrospective amendment. It is Said that art. 3 1B amends art. 141 as it alters the law declared by this Court on the validity of the Acts. This argument is baseless. As the Constitution is amended retrospectively, the basis upon which the judgments of this Court were pronounced numberlonger exists, and the law declared by this Court can have numberapplication. It is said that art. 3 1B is a law with respect to land and other matters within the companypetence of the State Legislature, and the Parliament has numberpower to enact such a law. The argument is based on a misconception. The Parliament has number passed any of the Acts mentioned in the Ninth Schedule. Art. 3 IB removed the companystitutional bar on the making of the Acts. Only the Parliament companyld remove the bar by the Constitution amendment. It has done so by art. 3 1 B. The Parliament companyld amend each article in Part III separately and provide that the Acts would be protected from attack under each article. Instead of amend- ing each article separately, the Parliament has by art. 3 1 B made a companyprehensive amendment of all the articles by providing that the Acts shall number be deemed to be void on the ground that they are inconsistent with any of them. The Acts as they stood on the date of the Constitution Amendments are validated. By the last part of Art. 31B the companypetent legislatures will companytinue to the power to repeal or amend the Acts. The subsequent repeals and amendments are number validated. If in future the companypetent legislature passes a repealing or amending Act which is inconsistent with Part III it will be void. I have, therefore, companya to the companyclusion that the First, Fourth, Sixteenth and Seventeenth Amendments are companystitutional and am number void. If so, it is companymon ground that these petitions must be For the last 16 years the validity of companystitutional amendments of fundamental rights have been recognized by the people and all the organs of the government including the legislature, the judiciary and the executive. Revolutionary, social and economic changes have taken place on the strength of the First, Fourth and Seventeenth Amendments. Even if two views were possible on the question of, the validity of the amendments, we should number number reverse our previous decisions and pronounce them to be invalid. Having heard lengthy arguments on the question I have companye to the companyclusion that the validity of the companystitutional amendments was rightly upheld in Sri Sankari Prasad Singh Deos 1 and Sajjan Singhs 2 cases and I find numberreason for over-ruling them. The First, Fourth and Seventeenth amendment Acts are sub- jected to bitter attacks because they strike it the entrenched property rights. But the abolition of the zemindari was a necessary reform. It is the First Constitution Amendment Act that made this reform possible. No legal argument can restore the outmoded feudal zemindari system. What has been done cannot be undone. The battle for the past is lost. The legal argument necessarily shifts. The proposition number is that the Constitution Amendment Acts must be recognized to be valid in the past but they must be struck down for the future. The argument leans on the ready made American doctrine of prospective overruling. Now the First, Fourth, Sixteenth and Seventeenth Amendment Acts take away and abridge the rights companyferred by Part M. If they are laws they are necessarily rendered void by art. 13 2 . If they are void, they do number legally exist from their very inception. They cannot be valid from 1951 to 1967 and invalid thereafter. To say that they were valid in the past and will be invalid in the future is to amend the Constitution. Such a naked power of amendment of the Constitution is number given to the Judges. The argument for the petitioners suffers from a double fallacy, the first that the Parliament has numberpower to amend Part III so as to abridge or take away the entrenched property rights, and the second that the Judges have the power to make such an amend- ment. I may add that if the First and the Fourth amendments are valid, the Seventeenth must necessarily be valid. It is number possible to say that the First and Fourth amendments though originally invalid have number been validated by acquiescence. If they infringed art. 13 2 ,t they were void from their inception. Referring to the 19th amendment of the U.S. Constitution, Brandeis, J. said in Leser v. Garnett 3 This Amendment is in character and phraseology precisely similar to the 15th. For each the same method of adoption was pursued. One cannot be valid and the other invalid. That the 15th is valid, although rejected by six states, including Maryland, has been recognized and acted on for half a century The suggestion that the 15th was incorporated in the Constitution, 1 1952 S.C.R. 89. 2 1965 1 S.C.R. 933. 3 258 US 130 66 L.Ed 505, 51 1. number in accordance with law, but practically as a war measure, which has been validated by acquiescence, cannot be entertained. Moreover the Seventeenth amendment has been acted upon and its validity has been upheld by this Court in Sajjan Singhs case. If the First and the Fourth Amendments are validated by acquiescence, the Seventeenth is equally validated. Before companycluding this judgment I must refer to some of the speeches made by the members of the Constituent Assembly in the companyrse of debates on the draft Constitution. These speeches cannot be used as aids for interpreting the Constitution. See State of Travancore-Cochin and others v. The Bombay Co. Ltd. - . Accordingly, I do number rely on them as aids to companystruction. But I propose to refer to them, as Shri A K. Sen relied heavily on the speeches of Dr. B. R. Ambedkar. According to him, the speeches of Dr. Ambedkar show that he did number regard the fundamental rights as amendable. This companytention is number supported by the speeches. Sri Sen relied on the following passage in the speech of Dr. Ambedkar on September 17, 1949 We divide the articles of the Constitution under three categories. The first category is the one which companysists of articles which can be, amended by Parliament by a bare majority. The second set of articles are articles which require two-thirds majority. If the future Parliament wishes to amend any particular article .which is number mentioned in Part III or- art. 304, all that is necessary for them is to have two-thirds majority. They can amend it. Mr. President Of Members present. Yes. Now, we have numberdoubt put articles in a third .category where for the purposes of amendment the .mechanism is somewhat different or double. It requires two thirds majority plus ratification by the, States. 2 I understand this passage to mean that according to Dr. Am- bedkar an amendment of the articles mentioned in Part. III and 368 requires two-thirds majority plus ratification by the States He seems to have assumed as reported that the provisions of Part III fall within the. proviso to art. 368. But he never said that part III was s number amendale. He maintained companysistently that all the articles of the Constitution are amendable under art. 368 On November 4, 1948, be. said The second means adopted to avoid rigidity and legalism is the provision for facility with which the 1 1952 S.C.R. 1112. Constituent Assembly Debat Vol. IX p. 1661. Constitution companyld be amended. The provisions of the Constitution relating to the amendment of the Constitution divide the Articles of the Constitution into two groups. In the one group are placed Articles relating to a the distribution of legislative powers between the Centre and the States, b the representation of the States in Parliament, and c the powers of I the Courts. All other Articles are placed in another group. Articles placed in the second group companyer a very large part of the Constitution and can be amended by Parliament by a double majority, namely, a majority of number less than two-thirds of the members of each House present and voting and by a majority of the total membership of each House. The amendment of these Articles does number require ratification by the States. It is only in those Articles which are placed in group one that an additional safeguard of ratification by the States is introduced. One can therefore safely sky that the Indian Federation will number suffer from the faults of rigidity or legalism. Its distinguishing feature is that it is a flexible Federation. The provisions relating to amendment of the Constitution have companye in for a virulent attack at the hands of the critics of the Draft Constitution. it is said that the provisions companytained in the Draft make amendment difficult. It is proposed that the Constitution should be amendable by a simple majority at least for some. years. The argument is subtle and ingenious. It is said that this Constituent Assembly is number elected on adult suffrage while the future Parliament will be elected on adult suffrage and yet the former has been given the right to pass the Constitution by a simple majority while the latter has been denied the same right. It is paraded as one of the absurdities of the Draft Constitution. I must repudiate the charge because it is without foundation. To know how simple are the provisions of the Draft Constitution in respect of amending the Constitution one has only to study the provisions for amendment companytained in the American and Australian Constitutions. Compared to them those companytained in the Draft Constitution will be found to be the simplest. The Draft Constitution has eliminated the- elaborate and difficult procedures such as a decision- by a companyvention or are ferenduni. The Powers of amendments left with the Legislatures Central and Provincial. It is only, for amendment-, or specific matters-and they are only few, that the ratification of the State Legislatures is required. All other Articles of the Constitution are left to be amended by Parliament. The only limitation is that it shall be done by a majority, of number less than two-thirds of the members of each House present and voting and a majority of the total membership of each House. It is difficult to companyceive a simpler method of amending the Constitution. , On December 9, 1948 , Dr. Ambedkar said with reference to art. 32 The Constitution has invested the Supreme Court with these rights and these writs companyld number be taken away unless and until the Constitution itself is amended by means left open to the legislature. 2 On November- 25, 1949, Dr. Ambedkar strongly refuted the suggestion that fundamental rights should be absolute and unalterable. He said The companydemnation of the Constitution largely companyes from-two quarters, the Communist Party and the Socialist Party The second thing that the Socialists want is that the Fundamental Rights mentioned in the Constitution must be absolute and without any limitations so that if their Party companyes into power, they would have the unfettered freedom number merely to criticize, but also to overthrow the State Jefferson, the great American statesman who played so great a part in the making of the American Constitution, has expressed some- very weighty views which makers of Constitution can never afford to ignore. In one place, he has said- We may companysider each generation as a distinct nation, with a right, by the will of the majority, to bind themselves, but numbere to bind the succeeding generation, more than the inhabitants of another companyntry. In another place, he has said The idea that institutions established for the use of the nation cannot be touched or modified, even to make them answer their end, because of rights gratuitously supposed in those employed to manage the min the trust for the public, may perhaps be a Salutary provision against the abuses of a monarch, but is most absurd against the nation itself. Yet our lawyers and priests generally inculcate this doctrine, and suppose that preceding generations held the earth more freely than we do had a right to impose laws on us, unalterable by ourselves, and Constituent Assembly Debates Vol. 7, pp. 35-6, 43-4. Constituent Assembly Debates Vol. 7, 953. that we, in the like manner, can make laws and impose burdens on future generations, which they will have numberright to alter in fine, that the earth belongs to the dead and number the living. I admit that what Jefferson has said is number merely true, but is absolutely true. There can be numberquestion about it. Had the Constituent Assembly departed from this principle laid down by Jefferson it would certainly be liable to blame, even to companydemnation. But I ask, has it? Quite the companytrary. One has only to examine the provision relating to the amendment of the Constitution. The Assembly has number only refrained from putting a seal of finality and infallibility upon this Constitution by denying to the people the right to amend the Constitution as in Canada or by making the amendment of the Constitution subject to the fulfilment of extraordinary terms and companyditions as in America of Australia but has provided a most facile procedure for amending the Constitution. I challenge any of the critics of the Constitution to prove that any Constituent Assembly anywhere in the world has, in the circumstances in which this companyntry finds itself, provided such a facile procedure for the amendment of the Constitu- tion. If those who are dissatisfied with the Constitution have only to obtain a 2/3 majority and if they cannot obtain even a two- thirds majority in the parliament elected on adult franchise in their favour, their dissatisfaction with the Constitution cannot be deemed to be shared by the general public. 1 On November 11, 1948, Pandit Jawahar Lal Nehru said And remember this, that while we want this Constitution to be as solid and as permanent a structure as we can make it, nevertheless there is numberpermanence in Constitutions. There should be a certain flexibility. If you make anything rigid and permanent, you stop a Nations growth, the growth of living vital organic people. Therefore it has to be flexible. 2 The views of Jefferson echoed by Ambedkar and Nehru were more powerful expressed by Thomas Paine in 1791 There never did, there never will, and there never can, exist a parliament, or any description of men, or any generation of men, in any companyntry, possessed of the Constituent Assembly Debates Vol. I 1, pp. 975-6. Constituent Assembly Debates Vol. 7, p. 322. right or the power of binding and companytrouling posterity to the end of time, or of companymanding for ever how the world. shall be governed, or who shall govern it-, and therefore all such clauses, acts or declarations by which the makers of them attempt to do what they have neither the right number the power to do, number take power to execute, are in themselves null and void. Every age and generation must be as free to act for itself in all cases as the ages and generations which preceded it. The vanity and presumption of governing beyond the grave is the most ridiculous and insolent of all tyrannies. Man has numberproperty in man neither has any generation a property in the generations which are to follow. The parlia- ment of the people of 1688 or of any other period, had numbermore right to dispose of the people of the present day, or to bind or to companytroul them in any shape whatever, than the parliament or the people of the present day have to dispose of, bind or companytroul those who are to live a hundred or a thousand years hence. Every Generation is, and must be, companypetent to all the purposes which its occasions require. It is the living, and number the dead, that are to be accommodated. When man ceases to be, his power and his wants cease with him and having numberlonger any participation in the companycerns of this World, he has numberlonger any authority in directing who shall be its governors, or how its government shall be organized, or how administered. See Rights of Man by Thomas Paine, unabridged edition by H. B. Bonner, pp. 3 4 . For the reasons given above, I agree with Wanchoo, J. that the writ petitions must be dismissed. In the result, the writ petitions are dismissed without companyts. Ramaswami, J. I have perused the judgment of my learned Brother Wanchoo, J. and I agree with his companyclusion that the Constitution Seventeenth Amendment Act, 1964 is legally valid, but in view of the importance.of the companystitutional issues raised in this case I would prefer to state, my own reasons in a separate judgment. In these petitions which have been filed under Art. 32 of the Constitution, a companymon question arises for determination, viz.,. whether the Constitution Seventeenth Amendment Act, 1964 which amends Art. 31 A and 3 1 B of the Constitution is ultra vires- and unconstitutional, . The petitioners are affected either by the Punjab Security of Land Tenures Act, 1954. Act X of 1953 or by the Mysore Land Reforms Act Act 10 of 1962 as amended by Act 1 1965 which were added to the 9th Schedule of the Constitution by the impugned Act and, their companytention is that the impugned Act being unconstitutional and invalid , the validity of the two Acts by which they are affected cannot be saved. The impugned Act companysists of three sections. The first section. gives its short title. Section 2 i adds a proviso to Cl 1 of Art 3 I-A after the existing proviso. This proviso reads, thus Provided further that where any law makes any provision for the acquisition by the State of any estate and where any land companyprised therein is held by a person under his personal cultivation, it shall number be lawful for the State to acquire any portion of such land as is within the ceiling limit applicable to him under any law for the time being in force or any building or structure standing thereon or appurtenant thereto, unless the law relating to the acquisition of such land, building or structure, provides for payment of companypensation at a rate which shall number be less than the market value thereof. Section 2 ii substitutes the following sub- clause for sub-cl. a of cl. 2 of Art. 31-A a the expression estate shall, in relation to any local area, have the same meaning as that expression or its local equivalent-has in the existing law relating force in that area and all to land tenures in also include- any jagir, inam or muafi or other similar grant and in the States-of Madras and Kerala, any ianmam right any land held under ryotwari settlement any land held or let for purposes of agriculture or for purposes ancillary there to, including wast land, forest land, land for posture or ones of buildings and other structures occupied by cultivators of land, agricultural labourers and village artisans Section 3 amends the 9th Schedule by adding 44 entries to it. In dealing with the question about the validity of the im- pugned Act, it is necessary to companysider the scope and effect of the provisions companytained in-Art. 368 of the Constitution, because the main companytroversy in the present applications turns uponthe- decision of the question as to what is the companystruction of that Article. Article 368 reads as follows An amendment of this Constitution may be initiated only by the introduction of a Bill for the-purpose in either House of Parliament, and when the Bill is passed in each House by a majority of the total membership of that House and by a majority of number less than two-thirds of the members of that House present and voting, it shall be presented to the President for his assent and upon such assent being given to the Bill, the Constitution shall stand amended in accordance with the terms of the Bill . Provided that if such amendment seeks to make any change Article 5, article 55, article, 73, article 162 or article 241, or Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part XI, or c any of the Lists in the Seventh Schedule, or d the representation of States in Parliament, or e the provisions of this article, the amendment shall also require to be ratified by the Legislatures of number less than one-half of the States by resolutions to that effect passed by those. Legislatures before the Bill making provision for such amendment is presented to the President for assent. It is necessary at this stage to set out briefly the history of Arts. 31-A and 31-B. These Articles were added to the Constitution with retrospective effect by s. 4 of the Constitution First Amendment Act, 1951. Soon after the promulgation of the Constitution, the political party in power, companymanding as it did a majority of votes in the several State legislatures as well as in Parliament, carried out radical measures of agrarian reform in Bihar, may be referred to as Zamindari Abolition Acts. Certain zamindars, feeling themselves aggrieved, attacked the validity of those Acts in companyrts of law on the ground that they companytravened the fundamental rights companyferred on them by Part III of the Constitution. The High Court of Patna held that the Act passed iii Bihar was unconstitutional while the High Courts of Allahabad and Nagpur upheld the validity of the companyresponding legislation in Uttar Pradesh and Madhya Pradesh respectively See Kameshwar Uttar Pradesh and Madhya Pradesh by enacting legislation which State of Bihar 1 and Surya Pal v. U.P. Government 1 . The parties aggrieved by these respective decisions had filed appeals by special leave before this Court.At the same time petitions had also been preferred before this Court under Art. 32 by certain other Zamindars, seeking the determination of the same issues It was atstage that the Union Government, with a view to put an endall this litigation and to remedy what they companysidered to be certain defects brought to light in the work of the Constitution, brought forward a bill to amend the Constitution, which,. after undergoing amendments in various particulars, was passed by the require majority as the Constitution First Amendment Act, 1951 by which Arts. 31-A and 31-B were added to the Constitution. That was the first step taken by Parliament to assist the process of legislation to bring about agrarian reform, by introducing Articles 31-A and 31- The second step in the same direction was taken by Parliament in 1955 by amending Art. 31-A by the Constitution Fourth Amendment Act, 1955 The object of this amendment was to widen the scope of agrarian reform and to companyfer on the legislative measures adopted in that behalf immunity from a possible attack that they companytravened the fundamental rights of citizens. In other words, the amendment Protected the legislative measures in respect of certain other items of agrarian and social welfare legislation, which affected the proprietary rights of certain citizens. At the time when the first amendment was made, Art. 31-B expressly provided that numbere, of the, Acts and Regulations specified in the 9th Schedule, number any of the provisions thereof, shall be deemed to be void or ever to have become void on the ground that they were inconsistent with or took away or abridged any of the rights companyferred by Part III, and it added that numberwithstanding any judgment, decree or order of any Court or tribunal to the companytrary, each of the said Acts and Regulations shall subject to the power of any companypetent legislature to repeal or amend, companytinue in force. At this time, 19 Acts were listed in Schedule 9, and they were thus effectively validated. One more Act was added to this list by the Amendment Act of 1955, so that as a result of the second amendment, the Schedule companytained 20 Acts which were validated. It appears that numberwithstanding these amendments, certain other legislative measures adopted by different States for the purpose of giving effect to the agrarian policy of the party in power, were effectively challenged. For instance, the Karimbil Kunhikoman v. State of Kerala 3 , the validity of the Kerala Agrarian Relations Act IV of 1961 was challenged by writ petitions filed under Art. 32, and as a result of the majority decision of this Court, the whole Act was struck down. The decision of this A-I-R. 1951 Pat. 91 2 A.I.R. 1951 All. 674. 3 1962 Supp. 1 S.CR. 829 Court was pronounced on December 5, 1961. In A. P. Krishna- swami Naidu v. The State of Madras 1 the companystitutionality of the Madras Land Reforms Fixation of Ceiling on Land Act 146. 58 of 1961 was the subject matter of debate, and by the decision of this Court pronounced, on March 9, 1964, it was declared that the whole Act was invalid. It appears that the Rajas than Tenancy Act III of 1955 and the Maharashtra Agricultural Lands Ceiling and Holdings Act 27 of 1961 had been similarly declared invalid, and in companysequence, Parliament thought it necessary to make a further amendment in Art 31-B so as to gave the validity of these Acts which had been struck down and of other similar Acts which were likely to be challenged. With that object in view, the impugned Act has enacted S. 3 by which 44 Acts have been added to Schedule 9. It is therefore clear that the object of the First, Fourth and the Seventeenth Amendments of the Constitution was to help the State Legislatures to give effect to measures of agrarian reform in a broad and companyprehensive sense in the interests of a very large section of Indian ,citizens whose social and economic welfare closely depends on the persuit of progressive agrarian policy. The first question presented for determination in this case is whether the impugned Act, in so far as it purports to take away or abridge any of the fundamental rights companyferred by Part III .or the Constitution,falls within the prohibition of Art. 13 2 which provides that the State, shall, number make any law which takes away or abridges the rights companyferred by this Part and any law made in companytravention of this clause shall to the extent of the Contravention, be void. In other words, the argument, of the petitioners was that the law to which Art, 13 2 applies, would include a law passed by Parliament by virtue of its companystituent power to amend the Constitution, and so, its validity will have. to be tested by Art. 13 2 itself. It was companytended that the State includes Parliament within Art. 12 and law must include, a companystitutional amendment. It was said that it was the deliberate intention of the framers of the Constitution, who realised the sanctity of the fundamental rights companyferred by Part III, to make them immune from interference number only by ordinary laws passed by the legislatures in the companyntry but also from companystitutional amendments. In my opinion, there is numbersubstance in this argument.- Although law must ordinarily include companystitutional law, there is a juristic distinction between ordinary law made in exercise of legislative power and companystitutional law which is Made in exercise of companystituent power. In a written federal form of Constitution there is a clear and well-known distinction between the law of the Constitution and ordinary law made by the legislature on the basis of separation of powers and 1 19647 S.C.R.82. pursuant to the power of law-making companyferred by the Consti- tution See Dicey on Law of the Constitution, Tenth Edn. p. 110, Jennings, Law and the Constitution pp. 62-64, and American Jurisprudence, 2nd Edn. Vol. 16, p. 181 . In such a written Constitution, the amendment of the Constitution is .a substantive, companystituent act which is made in the exercise, of the sovereign power which created the Constitution and which is effected by a special means, namely, by a predesigned fundamental procedure unconnected with ordinary legislation. The amending power under Art. 368 is hence sui generis and cannot be, companypared to the law- making power of Parliament pursuant to Art. 246 read with List I and 111. It follows that the expresSion law in Art. 13 2 of the Constitution cannot be companystrued as including an amendment of the Constitution which is by Parliament in exercise of, its sovereign companystituent power, but must mean law made by Parliament in its legislative capacity pursuant to the powers of law-making given by the Constitution itself under Art. 246 read with Lists I and In of the 7th Schedule. It is also clear, on the same line of reasoning, that law in Art. 13 2 cannot be companystrued so as to include law made by Parliament under Arts. 4, 169, 392, 5th Schedule Part D and 6th Schedule para 2 1. The amending power of Parliament exercised under these Articles stands on the same as the companystitutional amendment made under Art. U8 so far as Art. 13 2 is companycerned and does number fall within the definition of law within the meaning of this last article. It is necessary to add that the definition of law in Art. 13 3 does number include in terms a companystitutional amendments though it includes any Ordinance,, order, bye-law, rule, regulation, numberification, custom or usage . It should be numbericed that The language. of Art. 3 6 8 is perfectly general and empowers Parliament to amend the Constitution without any exception Whatsoever. H I ad it been intended by the Constitution-makers that the fundamental rights guaranteed under Part III should be companypletely outside the scope of Art. 368, it is reasonable to assume that they would have made an express provision to that effect. It was stressed by the petitioners during the companyrse of the, argument that Part III is headed as Fundamental Rights and that Art. 32 guarantees the right to move the Supreme Court by appropriate proceedings for enforcement of rights companyferred by Part M. But the expression fundamental in the phrase Fundamental Rights means that such rights are fundamental vis-a-vis the laws of the legislatures and the acts of the executive authorities mentioned in Art. 12. It cannot be suggested, that the expression fundamental lifts the fundamental rights above the Constitution itself. Similarly, the expression guaranteed in Art. 32 1 and 32 4 means that the right to move the Supreme Court for enforcement of fundamental rights without exhausting the, numbermal channels through the High Courts or the lower companyrts is guaranteed. This expression also does number place the fundamental rights above the Constitution. I proceed to companysider the next question arising in this case, the scope of the amending power under Art. 368 of the Constitution. It is companytended on behalf of the petitioners that Art. 368 merely lays down the procedure for amendment and does number vest the amending power as such in any agency companystituted under that article. I am unable to accept this argument as companyrect Part XX of the Constitution which companytains only Art. 368 is described as a Part dealing with the Amendment of the Constitution and Art. 368 which prescribes the procedure for amendment of the Constitution, begins by saying that an amendment of this Constitution may be initiated in the manner therein indicated. In MY Opinion, the expression amendment of the Constitution in Art. 368 plainly and unambiguously means amendment of all the provisions of the Constitution. It is unreasonable to suggest that what Art. 368 provides is only the mechanics of the procedure to be followed in amending the Constitution without indicating which provisions of the Constitution can be amended and which cannot. Such a restrictive companystruction of the substantive part of Art. 368 would be clearly untenable. The significant fact , that a separate Part has been devoted in the Constitution for amendment of the Constitution and there is only one Article in that Part shows that both the power to amend and the procedure to amend are enacted in Art. 368. Again, the words the Constitution shall stand amended in accordance with the terms of the Bill in Art. 368 clearly companytemplate and provide for the power to amend after the requisite procedure has been followed. Besides, the words used in the proviso unambiguously indicate that the substantive part of the article applied to all the provisions of the Constitution. It is on that basic assumption that the proviso prescribes a specific procedure in respect of the amendment of ,the articles mentioned in cls. a to e thereof. Therefore it must be held that when Art. 368 companyfers on Parliament the right to amend the Constitution the power in question can be exercised over all the provisions of the Constitution. How the power should be exercised, has to be determined by reference to the question as to whether the proposed amendment falls under the substantive part of Art. 368, or whether it attracts the procedure companytained in the proviso. It was suggested for the petitioners that the power of amendment is to be found in Arts. 246 and 248 of the companystitution read with item 97 of List I of the 7th Schedule. I do number think that it is possible to accept this argument. Article 246 stats that Parliament has exclusive power to make laws with respect to matters enumerated in List I in the Seventh Schedule, and Art. 248, similarly, companyfers power on Parliament to make any law with respect to any matter number enumerated in the Concurrent List or State List. But the power of law-making in Arts. 246 and 248 is subject to the provisions of this Constitution. It is apparent that the power of companystitutional amendment cannot fall within these Articles, because it is illogical and a companytradiction in terms to say that the amending power can be exercised and at the same time it is subject to the provisions of, the Constitution. It was then submitted on behalf of the petitioners that the amending power under Art. 368 is subject to the doctrine of implied limitations. In other words, it was companytended that even if Art. 368 companyfers the power of. amendment, it was number a general but restricted power companyfined only to the amendable provisions of the Constitution, the amendability of such provision being determined by the nature and character of the respective provision. It was argued, for instance, that the amending power cannot be used to abolish the companypact of the Union or to destroy the democratic character of the Constitution teeing individual and minority rights. It was said that the Constitution was a permanent companypact of the States, that the federal character of the States was individual, and that the existence of any. of the States as part of the federal Compact Cannot4be put an end to by the power of amendment. It was also said that the chapter of fundamental rights of the Constitution cannot be the subject-matter of any amendment under Art. 368. It was companytended that the preamble to the Constitution declaring that India was a sovereign democratic republic was beyond the scope of the amending Power. it, was suggested that other basic, features of the Constitution were the Articles relating to. distribution of legislative powers, the Parliamentary form of Government and the establishment of Supreme Court and the High, Courts in the various States. . I am unable to accept this argument as companyrect. If the Constitution-makers companysidered that there were certain basic features of the Constitution which were permanent it. is must unlikely that they should number have expressly said in Art 368 that these basic features were. number amendable. On the companytrary, the Constitution-makers have expressly provided. that Art. 368 itself should be amendable by the process indicated in the proviso to that Article. This cir- cumstance is significant and suggests. that all the articles of the Constitution are amendable either under the proviso to Art. 368 or under the main part of that Article. In MY opinion, there is numberroom for an. implication in the companystruction of Art. 368. So far as the federal character of the Constitution is companycerned, it was held by this Court in State of West Bengal v. Union of Cl/67-14 India 1 that the federal structure is number an essential pan of our Constitution and there is numbercompact between the States and them is numberdual citizenship in India. It was pointed out in that case that there was numberconstitutional guarantee against the alteration of boundaries of the States. By An. 3 the Parliament is by law authorised to form a new State by redistribution of the territory of a. State or by uniting two or more States or parts of States or by uniting any territory to a part of any State, to increase the area of any State, to diminish the area of any State to alter the boundaries of any State, and to alter the name of any State. In In Re The Berubari Union and Exchange of Enclaves 2 it was argued that the Indo-Pakistan agreement with regard to Berubari companyld number be implemented even by legislation under Art. 368 because of the limitation imposed by the preamble to the Constitution and that such an agreement companyld number be implemented by a referendum. The argument was rejected by this Court and it was held that the preamble companyld number, in i any way, limit the power of Parliament to cede parts of the national territory. On behalf of the petitioners the argument was s that the chapter on fundamental rights was the basic feature, of the Constitution and cannot be the subject of the amending power under Art 368. It was argued that the freedoms of democratic life are secured by the chapter on fundamental rig its and dignity of the individual cannot be preserved if any of the fundamental rights is altered or diminished. It is number possible to accept this argument as companyrect. The companycepts of liberty and equality are changing and dynamic and hence the numberion of permanency or immutability cannot be attached to any of the fundamental rights. The Directive Principles of Part IV are as fundamental as the companystitutional rights embodied in Part III and Art. 37 imposes a companystitutional duty upon the States to apply these principles in making laws. Reference should in particular be made to Art. 39 b which enjoins upon the State to direct its policy towards securing that the ownership and companytrol of the material resources of the companymunity are so distributed as best to subserve the companymon good. Art. 3 8 imposes a duty upon, the State to promote the welfare of the people by securing and protecting as effectively as it may, a social order in which justice, social, economic and political, shall inform all the institutions of the national life. I have already said that the language of Art. 368 is clear and unambiguous in support of, the view that there is numberimplied limitation on the amending power. In Principle also it aPPears unreasonable to suggest that the Constitution-makers wanted to provide that the fundamental rights guaranteed by the Constitution should never be touched by way of, amendment. In modern democratic thought I there are two main trends-- the liberal idea of individual rights 1 1964 1 S.C.R. 371 p 405. 2 1960 3 S.C.R. 250. protecting the individual and the democratic idea proper pro claiming the equality of rights and popular sovereignty . The gradual extension of the idea of equality from political to economic and social fields in the modern State has led to the problems of social security, economic planning and industrial welfare legislation. The implementation and harmonisation of these. somewhat companyflicting principles is a dynamic task. The adjustment between freedom and companypulsion, between the rights of individuals and the social interest and welfare must necessarily be a matter for changing needs and companyditions. The proper approach is therefore to look upon the fundamental rights of the individual as companyditioned by the social responsibility, by the necessities of the Society, by the balancing of interests and number as pre-ordained and untouchable private rights. As pointed out forcefully by Laski The struggle for freedom is largely transferred from the plane of political to that of economic rights. Men become less interested in the abstract fragment of politi- cal power an individual can secure than in the use of massed pressure of the groups to which they belong to secure an increasing share of the social Product. Individualism gives way before socialism. The roots of liberty are held to be in the ownership and companytrol of the instruments of production by the state, the latter using its power to distribute the results of its regulation with increasing approximation to equality. So long, as there is inequality, it is argued, there cannot be liberty. The historic inevitability of this evolution was seen a century ago by de tocqueville. It is interesting to companypare his insistence that the democratization of political power meant equality and that its absence would be regarded by the masses as oppression with the argument of Lord Action that liberty and equality are antitheses. To the latter liberty was essentially an autocratic ideal democracy destroyed individuality, which was the very pith of liberty, by seeking identity of companyditions. The modem emphasis is rather toward the principle that material equality is growing inescapable and that the affirmation of personality must be effective upon an immaterial plane. it is found that doing as one likes, subject only to the demands of peace, is incompatible with either international or municipal necessities. We pass from companytract to relation as we have passed from status to companytract. Men are so involved in intricate networks of relations that the place for their liberty is in a sphere where their behaviour does number impinge upon that self-affirmation of others which is liberty. Encyclopaedia of the Social Sciences, Vol. IX, 445. . It must number be forgotten that the fundamental right guaran- teed- by Art. 31, for. instance. is number absolute. It should be number that cl. 4 of that Article, provides an exception to the requirements of cl. 2 . Clause 4 relates to Bills- of a State Legislature relating to public acquisition which were pending at the-commencement of fhe Costitution. If such a Bill has been passed and assented to by the President, the Courts shall have numberjurisdiction to question the validity of such law on the of companytravention of cl. 2 , ie., on the ground that it does number- provide for companypensation or that it has been enacted without a public purpose. Clause 6 of the, Article is another exception to cl. 2 and provides for ouster of jurisdiction of the Courts. While cl. 4 relates to Bills pending in the State Legislature at the encement of the Consistitution, cl. 6 relates to Bills enacted by the State within IS I months before companymencement of the Constitution i.e., Acts providing for public acquisition which were enacted number earlier than July 26, 1948. If the President certifies such an Act within 3 months from the companymencement of the Constitution, the Courts shall have numberjurisdiction to invalidate that Act on the ground of companytravention of cl. 2 of that Article Similarly, the scheme of Art 19 indicates that the fundamental rights guaranted by sub-cls. a to g of cl, 1 can be validly regulated in the light of the provisions companytained in cls. 2 to 6 of Art. 19. In other words, the scheme of Art.19 is two-fold the fundamental rights of the citizens are of paramount importance, but even the said fundamental rights can be regulated to serve the interests of the general public or other objects mentioned respectively in cls. 2 to 6 of Art. 19. It is right to state that the purposes for which fundamental rights can be regulated which are s specified in cls. 2 to 6 , companyld number have been assumed by the Constitution-makers to be static and incapable of expansion. It cannot be assumed that the Constitution-makers intended to forge a political strait jacket for generations to companye. The Constitution- makers , must have anticipated that in dealing with, socioeconomic problems which the 1egislatures may have to face from time to time, the companycepts of public interest and other important companysiderations which are the basis of cls. 2 to 6 , may change and may even expand. As Holmes J. has said in Abrams v. United States 1 the .,Constitution is an experiMent, as all life is- an experiment. It is therefore legitimate to assume that the Constitution-makers 1 250 U.S. 616, 630. intended that Parliament should be companypetent to make amend- ments in these rights so as to meet the challenge of the problems which may arise in the companyrse of socioeconomic progress and development of the companyntry. I find it therefore difficult to accept the argument of the petitioners thal the Constitution-makers companytemplated that fundamental rights enshrined in Part III were finally and immutably settled and determined once and for all and these rights are beyond the ambit of any future amendment. Today at a time when absolutes are discredited, it must riot be too readily assumed that there are basic features of the Constitution which shackle the amending power and which take precedence over the general welfare of the nation and the need for agrarian and social reform. In companystruing Art. 368 it is moreover essential to remember the nature and subject-matter of that Article and to interpret it subjectae materies. The power of amendment is in point of quality an adjunct of sovereignty. It is in truth the exercise of the highest sovereign power in the State. If the amending power is an adjunct of sovereignty it does number Admit of any limitations. This view is expressed by Dicey in Law of the Constitution, 10th Edn., at page 148 as follows Hence the power of amending the companystitution has been placed, so to speak, outside the companystitution, and that the legal sovereignty of the United States resides in the States governments as forming one aggregate body represented by three-fourths of the several States at any time. belonging to the Union. A similar view is stated by Lord Bryce in The American Commonwealth, Vol. 1, ch. XXXII, page 366. Lester Bernhardt Orfield states,as follows in his book he Amending of the Federal Constitution In the last analysis, one is brought to the companyclusion that sovereignty in the United States, if it can be said to exist at all, is located in the amending body. The amending body has often beep referred to as the sovereign, because it meets the fest of the location of sovereignty. As Willoughby has said In all those cases in which, owing to the distribution of governing power, there is doubt as to the political body in which the Sovereignty rests, the test to be applied is the determination of which authority has, in the last instance, the legal power to determine its own companypetence as well as that of others. Applying the criteria of sovereignty which were laid down at the beginning of this chapter, the amending, body is sovereign as a matter of both law and fact. Article Five expressly creates the amending body. Yet in a certain manner of speaking the amending body may be said to exist as a matter of fact since it companyld proceed to alter Article Five or any other part of the Constitution. While it is true that the sovereign cannot act otherwise than in companypliance with law, it is equally true that it creates the law in accordance with which it is to act. In his book Constitutional Law of the United States, Hugh Evander Willis says that the doctrine of amendability of the Constitution is based on the doctrine of the sovereignty of the people ,and that-it has numbersuch implied limitations as that an amendment shall number companytain a new grant of , power number be in the form of legislation, number change our dual form of government number change the protection of the Bill of Rights, number make any other change in the Constitution. James G. Randall also enunciates the proposition that when a companystitutional amendment is adopted it is done number by the general government, but by the supreme sovereign power of the nation i.e., the people, acting through State Legis- latures or State companyventions and that the amending power is equivalent to the Constitution-makin power and is wholly above the authority of the Federal Government- Constitutional Pro Under Lincoln, p. 395 . , The legal position is summarised by Burdick at page 48 of his treaties The Law of the American Constitution as follows The result of the National Prohibition Cases 253 U.S. 350 seems to be that there is numberlimit to the power to amend the Constitution, except that a State may number without its companysent be deprived of its equal suffrage in the Senate. To out the case most extremely, this means that by action of two-third, of both Houses of Congress and of the, legislatures in three-fourths , of the states all of the powers of the national- government companyld be surrendered to the States, or all of the reserved powers of the States companyld be transferred to the federal government. It is only public opinion acting upon these agencies which places any check upon the amending power. But the alternative to this result would be to recognize- the power of the Supreme Court to veto the will of the people expressed in a companystitutional amendment without any possibility of the reversal of the companyrts action except through revolution. The matter has been clearly put by George Vedel in Manuel Elementaire De Droit Constitutionnel Recueil Sirey at page 117 as follows Truly speaking numberconstitution prohibits for ever its amendment or its amendment in all its aspects. But it can prohibit for example, the amendment revision during a certain time the Constitution of 1791 or it can prohibit the amendment revision on this or that point as in the Constitution of 1875 which prohibits amendment of the republican form of Government and the present Constitution follows the same rule. But this prohibition has only a political but numberjuridical value. In truth from the juridical viewpoint a declaration of absolute , companystitutional immutability cannot be imagined. The Constituent power being the supreme power in the state cannot be fettered, even by itself. For example,article 95 of our companystitution stipulates, The republican form of Government cannot be the subject of a proposal for amendment. But juridically the obstacle which this provision puts in the way of an amendment of the republican form of government can be lifted as follows. It is enough to abrogate, by way of amendment revision the article 95 cited, above. After this, the obstacle being removed, a second amendment can deal with the republican form of Government. In practice, this companyresponds to the idea that the companystituent assembly of today cannot bind the nation of tomorrow. the argument of implied limitation was advanced by Mr. N. C. Chatterji and it was companytended that item No. 3 of the Indo- Pakistan Agreement providing for a division of Berubari Union between India and Pakistan was outside the power of companystitutional amendment and that the preamble to the, Constitution did number permit the dismemberment of India but preserved the integrity of the territory of India. The argument was rejected by this Court and it was held that Parliament acting under Art. 368 can make a law to give effect to and implement the Agreement in question or to pass a law amending Art. 3 so as to companyer cases of cession of the territory of India and thereafter make a law under the amended Art. 3 to implement the Agreement. 1 1960 3 S.C.R. 250. There is also another aspect of the matter to be taken into account. If the fundamental rights are unamendable and if Art. 368 does number include any such power it follows that the amendment of, say, Art. 31 by insertion of Arts. 31-A and 31-B can only be made by a violent revolution. It was suggested for the petitioners that an alteration of fundamental rights companyld be made by companyvening a-new Constituent Assembly outside the frame-work of the present Constitution, but it is doubtful if the proceeding,., of the new Constituent Assembly will have, any legal validity, for the reason is that if the Constitution provides its own method of amendment, any other method of amendment of the Constitution will be unconstitutional and void. For instance, in George S. Hawke v. Harvey C. Smith, as Secretairy of State of Ohio 1 it was held by the Supreme Court of the U.S.A. that Referendum provisions. of State Constitutions and statutes cannot be applied in the ratification or rejection of amendments to the Federal Constitution without violating the requirements of Article 5 of such Constitution and that such ratification shall be by the legislatures of the-several states, or by companyventions therein, as Congress shall decide. It was held in that case that the injunction was properly issued against the calling of a referendum election on the act of the legislature of a State ratifying an amendment to the Federal Constitution. If, therefore, the petitioners are right in their companytention that Art. 31 is number amendable within the frame-work of the present Constitution, the only other recourse for making the amendment would, as I have already said, be by revolution and number through, peaceful means, It cannot be reasonably supposed. that the Constitution-makers companytem- plated that Art. 31 or any other article on fundamental rights should be altered by a-violent revolution and number by peaceful change. It was observed in Feigenspan v. Bodine 2 If the plaintiff is right in its companytention of lack of power to insert the Eighteenth Amendment into the United States Constitution because of its subject matter. it follows that there is numberway to incorporate it and others of like character into the national organic law, except, through revolution. This, the plaintiff companycedes, is the inevitable companyclusion of its companytention. This is so starting a proposition that the judicial mind may be pardoned for number readily acceding to it, and for insisting that only the most companyvincing reasons will justify its acceptance. I am, therefore, of the opinion that the petitioners Are unable to make good their argument on this aspect of the case. It was then companytended for the petitioners,that there would be anomalies if Art. 368 is interpreted to have numberimplied limita- 1 64 L. Ed. 871. 2 264 Fed. 186. tions. It was said that the more important articles of the Constitution can be amended by the procedure mentioned in the substantive part of Art. 368 but the less important articles would require ratification by the legislatures of number less than half of the States under the proviso to that Article. It was argued that the fundamental rights and also Art. 32 companyld be amended by the majority of two-thirds of the members of Parliament but Art. 226 cannot be amended unless there was ratification of the legislatures of number less than half- of the States, It was pointed out that Arts. 54 and 55 were more difficult to amend but number Art. 52. Similarly, Art. 162 required ratification of the States but number Art. 163 which related to the Council of Ministers to aid and advise the Governor in the exercise of his functions. In my opinion the argument proceeds on a misconception. The scheme of Art. 368 is number to divide the Articles of the Constitution into two categories, viz., important and number so important Article. It was companytemplated by the Constitution-makers that the amending power in the main part of Art. 368 should extend to each and every article of the Constitution but in the case of such articles which related to the federal principles or the relation of the States with the Union, the ratification of the legislatures of at least half the States should be obtained for any amendment. It was also companytended that if Art. 368 was companystrued without any implied limitation the amending power under that Article companyld be used for subverting the Constitution. Both Mr. Asoke, Sen and Mr. Palkiwala resorted to the method of reduction ad absurdem MI pointing out the abuses that might occur if there were numberlimitations on the power to amend. It was suggested that Parliament may, by a companystitutional amendment, abolish the parliamentary system of government or repeal the chapter of fundamental rights or divide India into. two States, or even reintroduce the rule of a monarch. It is inconceivable that Parliament should utilise the amending power for bringing about any of these companytingencies. It is, however, number permissible, in the first place, to assume that in a matter of companystitutional amendment there will be abuse of power and then utilise it as a test for finding out the scope of the amending power. This Court has declared repeatedly that the possibility of abuse is number to be used as a test of the existence or extent of a legal power See for example, State of West Bengal v. Union of India 1 , at page 407. In the second place, the amending power is a power, of an altogether different kind from the ordinary governmental power and if an abuse occurs,, it occurs at the hands of Parliament and the State Legislatures representing an extraordinary majority of the people, so that for all practical purposes it may be said to be the people, or at least. the highest agent of the people, and one exercising sovereign powers. It is therefore 1 19641 S.C.R. 371. anomalous to speak of abuse of a power of this description. In the last analysis, political machinery and artificial limitations will number protect the people from themselves. The perpetuity of our democratic institutions will depend number upon special mechanisms or devices, number even upon any particular legislation, but rather upon the character and intelligence and the good companyscience of our people themselves. As observed by Frankfurter, 1. in American Federation of Labour v. American Sash Door Co. 1 But a democracy need rely on the companyrts to save it from its own unwisdom. If it is alert-and without alertness by the people there can be numberenduring democracy unwise or unfair legislation can readily be removed from the statute books. It is by such vigilance over its representatives that democracy proves itself I pass on to companysider the next objection of the petitioners that the true purpose and object of the impugned Act was to legislate in respect of land and that legislation 1n respect of land falls within the jurisdiction of State legislatures under Entry 18 of List 11, and the argument was. that since the State Legislatures alone can make laws in respect of land, Parliament had numberright to pass the impugned Act. The argument was based on the assumption that the impugned Act purports to be, and in fact is, a piece of land legislation. It was urged. that the scheme of Arts. 245 and 246 of the Constitution clearly showS that Parliament has numberright to make a law in respect of land, and since the impugned Act is a legislative measure in relation to land, it is in Valid. In my opinion, the argument is based upon a misconception. Whet the impugned Act purports to do is number to make any land legislation but to protect and validate the legislative measures in respect of agrarian reforms passed by the different State Legislatures in the companyntry by granting them immunity from attack based on the plea that they companytravene fundamental rights. The impugned Act was passed by Parliament in exercise of the amending power companyferred by Art. 368 and it is impossible to accept the argument that the companystitutional power of amendment can be fettered by Arts. 245 and 246 or by the legislative Lists. It was argued for, the petitioners that Parliament cannot validate a law Which it has numberPower to enact. The proposition holds good where the validity on impugned Act turns on whether the subject-matter falls within or without the jurisdiction of the legislature which passed it. But to make a law which companytravenes the Constitution companystitutionally valid is a matter of companystitutional amendment, and as such it falls within the exclusive power of Parliament and within the amending power companyferred by Art. 368. I am accordingly of the opinion that the petitioners are unable to 1 335 U.S. 538,556. substantiate their argument on this aspect of the case. I should like to add that in Lesser v. Garnett 1 , in National Prohibition Cases 2 and in United States v. Sprague 3 , a similar argument Was advanced to the effect that a companystitutional amendment was number valid if it was in the form of legislation. But the argument was rejected by the Supreme Court of the U.S.A. in all the three cases. It remains to deal with the objection of the petitioners that the newly inserted articles 31-A and 31-B require ratification of the State legislatures under the proviso to Art. 368 of the Constitution because these articles deprive the High Courts of the power to issue appropriate writs under Art. 226 of the Constitution. I do number think there is any substance in this argument. The impugned Act does number purport to change the provisions of Art. 226 and it cannot be, said even to have that effect directly or in any substantial measure. It is manifest that the newly inserted articles do I number either in terms or in effect seek to make any change in Art. 226 of the Constitution. Article 31-A aims at saving laws providing for the companypulsory acquisition by the State of a certain kind-of property from the operation of article 1 3 read with other relevant articles in Part III, while article 31-b purports to validate certain specified Acts g Regulations, already passed, which, but for such a provision , would be liable to be impugned under Art. 13 It is therefore number companyrect to say that the powers of High Courts to issue writs is, inany way, affected. The jurisdiaction of the High Courts remains just the same as it Was before. Onlya certain category-of cases has been excluded from the purview of Part III and the High Courts can numberlonger intervene, number because their Jurisdiction or powers have been curtailed in any manner or to. any but because there would be numberoccasion hereafter for the exercise of their power in such cases. As I have already said, the effect of the impugned Act on the jurisdiction of the High Courts under Art. 226 of the, Con- stitution is number direct but only incidental in character and therefore the companytention of the petitioners on this point against the validity of the impugned Act must be rejected. It is well-settled that in examining a companystitutional question of this character, it is legitimate to companysider whether the impugned legislation is a legislation directly in respect of the subject-matter companyered by any particular article of the Constitution or whether touches the said articles only incidentally or indirectly. In A. K. Gopalan The State of Madras 4 , kania , C.J., had occasion to companysider the validity of the argument that, the Preventive detention order resulted in the detention of the applicant in a cell, and so, it companytravened his fundamental rights guaranteed by 1 258 U. S. 130. 2 253 U.S. 350. 3 282 U.S. 716. 4 1950 S.C.R 88- 101. Art. 19 1 a , b , c , d , e and g ., Rejecting this argument, the learned Chief Justice observed that the true approach in dealing with such a question was only to companysider the directness of the legislation and number what will be the result of the detention otherwise valid, on the mode of the detenus life. On that ground alone, he was inclined to reject the companytention that the order of detention.contravened the fundamental rights guaranteed to the petitioner under Art. 19 1 . At page 100 of the report, Kania, C.J., stated as follows As the preventive detention order results in the detention of the applicant in a cell it was companytended on his behalf that the rights specified in Article 19 1 a , b , c , d , e and g have been infringed. It was argued that because of his detention he cannot have a free right to speech as and where he desired and the same argument was urged in respect of the rest of the rights mentioned in sub-clauses b , c , d e and g . Although this argument is advanced in a case which deals with preventive detention, if companyrect, it should be applicable in the case of punitive detention also to any one sentenced to a term of imprisonment under the relevant section of the Indian Penal Code. So companysidered, the argument must clearly be rejected. In spite of the saving clauses 2 to 6 , permitting abridgement of the rights companynected with each of them, punitive detention under several sections of the Penal Code, i.e., for theft, cheating, forgery and even ordinary assault, will be illegaL Unless such companyclusion necessarily follows from the article, it is obvious that such companystruction should be avoided. In my opinion, suc h result is. clearly number the outcome of the Constitution. The article has to be read without any pre-conceived numberions. So read, it clearly means that the legislation to be examined must be directly in respect of one of the rights mentioned in the sub-clauses. If there is a legislation directly attempting to companytrol a citizens freedom of speech or ex- pression, or his right to assemble peaceably and without arms, etc., the question whether that legislation is saved by the relevant saving clause of article 19 will arise. If, however, the legislation is number directly in respect of any of these subjects but as a, result of the operation of other legislation, for instance, for punitive or preventive detention, his right under any of these sub- clauses is abridged, the question of the application of article 19 does number arise. Me true approach is only to companysider the direct- ness of the legislation and number what will be the result of the detention otherwise valid, on the mode of the detenus life. On that , short ground, in my opinion, this argument about the infringement of the rights mentioned in article 19 1 generally must fail. Arty other companystruction put on the article, it seems to me , will be unreason- It is true that the opinion thus expressed by Kania, C.J. in the case of A. K. Gopalan v. The State of Madras - did number receive, the companycurrence of the other learned Judges who heard the said case. Subsequently, however, in Ram Singh Others v. The State of Delhi Anr. 2 the said observations were cited with approval by the Full Court. The same. principle was accepted by this Court in Express Newspapers Pvt. Ltd. v. The Union of India , in the majority judgment in Atiabari Tea Co. Ltd. v. The State of Assam 4 and in Naresh Shridhar Mirajkar v. The State of Maharashtra ,. Applying the same principle to the present case, companysider that the effect of the impugned Act on the powers of the High Court under Art. 226 is indirect and incidental and number direct. I hold that the impugned Act falls under the substantive part of Art. 368 because the object of the impugned Act is to amend the relevant Articles in Part III which companyfer fundamental rights on citizens and number -to change the power of the High Courts under Art. 226. In this companynection I should like to refer to another aspect of the matter. The question about the validity of the Constitution First Amendment Act has been companysidered by, this Court in Sri Sankari Prasad Singh Deo v. Union of India and State of Bihar 6 . In that case, the validity of the said Amendment Act was challenged, firstly, on the ground that the newly inserted Arts. 31 -A and 31-B sought to make changes in Arts. 132 and 136 in Ch. IV of Part V and Art. 226 in Ch. V of Part VI. The second ground was that the amendment was invalid because it related to legislation in respect of land. It was also urged, in the third place, that though it may be open to Parliament to amend the provisions in respect of fundamental rights companytained in Part ITT, the amendment made in that behalf would have to be tested in the light of provisions of Art. 13 2 of the Constitution. The argument was that the law to which Art. 13 2 applied would include a law passed by Parliament by virtue of its companystituent power to amend the Constitution, and so, its validity will have to be tested by Art. 13 2 itself. All these arguments were rejected by this Court and it was held in that case that the Constitution First Amendment Act was legally valid. The same question arose for companysideration in Sajjan Singh v. State of Rajasthan 7 with regard to the validity of the Constitution Seventeenth Amendment Act, 1964. In that case, the petitioners in their 1 1950 S.C.R. 88. 2 1951 S.C.R. 451,456. 3 1959 S.C.R. 12,129-30. 4 1961 1 S.C.R. 809, 864. 5 1966 3 S.C.R. 744. 6 1995 1 S.C.R. 89. 7 1963 1 S.C. R. 933. Writ Petitions in this Court companytended that the Constitution Seventeenth Amendment Act was companystitutionally invalid since the powers Prescribed by Art. 226 which is in Ch. V, Part VI of the Constitution Were likely to be affected by the Seventeenth Amendment, and therefore the special procedure laid down under Art. 368 should have been followed. It was further companytended in that case that the decision of this companyrt in Sankari Prasads 1 case should be reconsidered. Both the companytentions were re-, rejected by this Court by a majority Judgment and it was held that the Constitution Seventeenth Amendment Act amended the fundamental rights solely with the object of assisting the State Legislatures to give effect to the socioeconomic policy of the party inpower and its effect on Art. 226 was incident and insignificant and the impugned Act therefore fell under the substantive part of Art. 368 and did number attract the proviso to that article. It was further held. by this Court that there Was numberjustification for re- companysidering Sankari Prasads 1 case. On behalf of the respondents it was submitted by the Additional Solicitor- Generat that this was a very strong case for the application of the principle of stare decisis. In my opinion, this companytention must be accepted as companyrect.If the arguments urged by the petitioners are to prevail it would leadto the inevitable companysequence that the amendments made to the Constitution both in 1951 and in 1955 would be rendered invalid and. a large number of decisions dealing with the validity of the Acts included in the 9th Schedule which were pronounced by this Court ever since, the decision in Sankari Prasads 1 case was dec- lared, would also-have to be overruled. It was also pointed out that Parliament, the Government and the people have acted on the, faith of the decision of this Court in Sankari Prasads 1 case and titles to property have been transferred, obligations have been incurred and rights have been acquird in the implementation of the legislation included in the 9th Schedule. The, effect of land reform legislation has been clearly summarised in ch. VIII of Draft Outline on Fourth Plan as follows Fifteen years ago when the First Plan was being formulated, intermediary tenures like zamindaris, jagirs and inams companyered more than 40 per cent of the area. There were large disparities in the ownership of land held under ryotwari tenurer which companyered the other 60 per cent area and a substantial portion of the land was cultivated through tenants at- will and share-croppers-who paid about one half the produce as rent. Most holdings were small and fragmented. Besides, there was a large population of landless agricultural labourers. In these companyditions, the, principal. measures recommended for securing the objec- 1 1952 S.C.R. 89.- tives of the land policy were the abolition of intermediary tenures, reform of the tenancy system, including fixation of fair rent at one-fifth to one-fourth of the grossproduce, security of I tenure for the tenant, bringing tenants into direct relationship with the State and investing in them ownership of land. A ceiling on land holding was also recmmended so that some surplus land, may be made available for redistribution to the landless agricultural workers. Another important part of, the progamme was companysolidation of agricultural holdings and increse in the size- of the operational unit to an economic scale through companyperative methods. Aboiition of Intermediaries.-During the past 15 years, progress has been made in several directions. Theprogramme for the abolition of intermediaries has been carried out practically all over, the companyntry. About 20 million tenants of former intermediaries came into direct relationship with the State and became owners of their holdings. State Governments are number engaged in the assessment and payment of companypensation. There were some initial delays but a companysiderable progress hag been made in this direction in recent years and it is hoped that the issue of companypensatory bonds will be companypleted in another two years. Tenancy Reform.-TO deal with the problem of tenants-at-will in the ryotwari areas and of sub-tenants in the zamindari areas, a good deal of legislation has been enacted. . Provisions for security of tenure, for bringing them into direct relation with the State and companyverting them into owners havebeen made in several States. As a result, about 3 million tenants and share- croppers have acquired ownership of More than 7 million acres. Ceiling on Holdings. Laws imposing ceiling on agri,cultural holdings bave been enacted in all- the States.In the former Punjab area, however the State Government has the power to settle tenants on land in excess of the permissible limit although it has number set a ceiling on ownership. According to available reports over 2 million acres of surplus areas in excess of the ceiling limits have, been declared or taken possession of by Government. It is true that the principle of stare decisis may number strictly apply to, a decision on a companystitutional point. There is numberrestriction in the Constitution itself which prevents this Court from reviewing its earlier decisions or even to depart from them in the interest of public good. It is true that the problem of companystruing companystitutional provisions cannot be adequately solved by merely adopting the literal companystruction of the words used in, the various articles. The Constitution is an organic document and it is intended to serve as a guide to the solution of changing problems which the Court may have to face from time to time. It is manifest that in a progressive and dynamic society the character of these problems is bound to change with the inevitable companysequence that the relevant words used in the Constitution may also change their meaning and significance. Even so., the Court is reluctant to accede to, the suggestion that its earlier decisions should be frequently reviewed or departed from. In such a case the test should be what is the nature of the error alleged in the earlier decision, what is its impact on the public good and what is the companypelling character of the companysiderations urged in support of the companytrary view. It is also a relevant factor that the earlier decision has been followed in, a large number of cases, that titles to property have passed and multitude of rights and obligations have been created in companysequence of the earlier decision. I have already dealt with the merits of the companytention of the petitioners with regard to the validity of the impugned Act and I have given reasons for holding that the impugned Act is companystitutionally valid and the companytentions ,of the petitioners are unsound. Even on the assumption that it is possible to take a different view and to hold that the impugned Act is unconstitutional I am of opinion that the principle of state decisis must be applied to the present case and the plea made by the, petitioners for reconsideration of Sankari Prasad 1 case and the decision in Sajjan Singh v. State of Rajasohan 2 is wholly unjustified and must be rejected. In Writ Petition No. 202 of 1966, it was companytended by Mr. Nambyar that the companytinuance of the Proclamation of Emergency under Art. 352 of the Constitution was a gross violation of power because the emergency had ceased to exist.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 1080 of 1965. Dipak Dutta Chaudhuri and R. N. Sachthey, for the appellants. D. Garg, for the respondent. The Judgment of the Court was delivered by Shelat, J. This appeal by certificate granted by the Punjab High Court raises the following question - Where the sales tax authority is number satisfied with the returns filed by a registered dealer and issues a numberice under s. 11 2 of the Punjab General Sales Tax Act, 1948 before the expiry of three years from the termination of the period for furnishing returns but finalises the assessment order after three years from the aforesaid date, whether such an assessment order can be said to be time barred and, therefore, without jurisdiction. A few facts for understanding this question may first be. stated. The respondent is a partnership firm registered under the Act and was at the material time carrying on business in vegetable ghee, sugar and other companymodities. The assessment year in question companymenced from April 1, 1955 and. ended on March 31, 1956. The dealer furnished four quarterly returns as required by the Rules framed under the Act. viz,., for the period April to June, 1954 on October 1, 1954 July to September, 1954 on December 16, 1954 October to December, 1954 on March 12, 1955 and for January to March, 1955 on June 16, 1956. Though these returns were number filed within 30 days after expiry of each of the quarters as required by the Rules, numberobjection was taken by the Assessing Authority. The firm deposited three sums at the time of filing the returns aggregating to Rs. 10,649-4-0. Subsequently, it paid a further sum of Rs. 14,477 on the basis of those returns. Not satisfied with these returns, the Assessing Authority issued a numberice under S. 1 1 2 in form S.T. XIV which is a companyprehensive form and which admittedly was served on the dealer on January 11, 1957, i.e before three years expired from each of the respective dates for filing of the said returns. This is clear from the fact that the date for filing the first return would be July 30, 1954 and the date for filing the last return would be April 30, 1955. On July 5, 1960, the Assessing Authority examined Tara Chand, a partner in the firm but did number finalise the assessment order on that day as he wanted to make further enquiries and passed the assessment order impugned in this appeal on August 11, 1960. The Assessing Authority disbelieved the accounts produced by Tara Chand and added sales of Rs. 4,00,000 in the gross turnover shown in the returns and assessed the firm on the turnover of Rs. 16,92,148-1-0 to a tax of Rs. 33,127-1-6. After giving credit of the said two sums deposited by the dealer the balance of Rs. 8,000 and odd remained payable by the firm. The firm filed a writ petition in the High Court challenging the validity of the assessment order on the ground that as it was made after three years from the dates when the said returns had to be furnished, it was without jurisdiction. The department on the other hand urged 1 that the order was made under S. 11 3 which provided numberlimitation and 2 that assuming that the order was passed under S. 11 4 or S. 11 5 proceedings in respect thereof having companymenced on the issuance of the said numberice dated January 11, 1957 which was within time, numberquestion of the order being time barred would arise. These were the only companytentions raised before the High Court and as numbercontention regarding the merits of the order was raised, the High Court did number enter into that question. We need number also go into the merits of the assessment and we will companysider only the question whether the order was invalid on the ground taken by the dealer in the High Court. The High Court following its earlier decision in Mis. Rameshwar Lai Sarup Chand v. The Excise and Taxation Officer 1 , held that the order was an assessment on best judgment basis under S. 11 4 and as it was made after three years after the close of the assessment year it was without jurisdiction. For the reasons which we shall presently set out, the question whether the assessment order was passed under s. 11 3 or s. 11 4 or 5 does number need any answer as it makes numberdifference so far as this case is companycerned whether it was made under one or the other sub-section. However, the mere fact that the Assessing Authority mentioned that he made the order on the best judgement. basis cannot be companyclusive, for, by merely calling it as the best judgment assessment, the order does number become one. Section 10 of the Act provides that the tax payable shall be paid in the manner thereinafter provided and at such intervals as may be prescribed. Rule 20 of the Punjab General Sales Tax Rules, 1949 provides that every registered dealer, other than those referred to in rules 17, 18 and 19 with whom we are number presently companycerned shall furnish returns quarterly within 30 days from the expiry of each quarter. Rule 25 provides that all returns which are required to be furnished under these rules, 1 1963 P.L.R. 768. shall be signed by the registered dealer or his agent and shall be sent to the appropriate Assessing Authority together with the Treasury or the Bank receipt as proof of the payment of the tax due. Rule 40 provides that a dealer and his partner or partners shall be jointly and severally responsible for payment of the tax, and that every dealer liable to pay the tax shall pay it quarterly unless directed otherwise by the appropriate Assessing Authority. Sub-rule 3 provides that the tax due for any quarter shall be paid before furnishing the return for that quarter. Rule 32 provides that every assessment order shall be recorded in writing and, where the Assessing Authority determines the turnover of a dealer at a figure different from that shown in the return submitted under the provisions of these rules, the order shall state briefly the reasons therefore. Rule 33 provides that when it appears to the appropriate Assessing Authority to be necessary to make an assessment under s. 1 1 in respect of a dealer, he shall serve a numberice in form S.T. XIV on him calling upon him to produce books of accounts and other documents and stating the period or the return period or periods in respect of which assessment is proposed. He shall fix a date ordinarily number less than after 10 days from the date of the numberice for companysidering any objection which the dealer may prefer. Section 11 1 provides that if the Assessing Authority is satisfied without requiring the presence of the registered dealer or the production by him of any evidence that the returns furnished in respect of any period are companyrect and companyplete, he shall assess the amount of tax due from the dealer on the basis of such returns. Sub-section 2 provides that if the Assessing Authority is number satisfied without requiring the presence of the registered dealer who furnished the returns or production of evidence that the returns furnished in respect of any period are companyrect or companyplete, he shall serve on such dealer a numberice in the prescribed manner requiring him at a date and at place specified thereunder either to attend in person or to produce or to cause to be produced any evidence on which such dealer may rely in support of such returns. Sub-section 3 provides that on the day specified in the numberice or as soon afterwards as may be, the Assessing Authority shall, after hearing such evidence as the Assessing Authority may require on specified points assess the amount of tax due from the dealer. Sub- section 4 provides that if a registered dealer having furnished returns in respect of a period, fails to companyply with the terms of a numberice issued under sub-section 2 , the Assessing Authority shall within three years after the expiry of such period, proceed to assess to the best of his judgment the amount of the tax due from the dealer. Sub- section 5 provides that if a registered dealer does number furnish returns in respect of any period by the prescribed date, the Assessing Authority shall within three years after the expiry of such period, after giving the dealer a reasonable opportunity of being heard, proceed to assess to the best of his judgement amount of tax, if any, due from the dealer. Sub-section 6 deals with a case where a dealer has failed to apply for registration, in which case the Assessing Authority is empowered within the prescribed period to assess such a dealer to the best of his judgment. Since the firm in the instant case was duly registered, the question of appli- cation of sub-section 6 does number arise. Section 11 envisages the following cases Where the dealer duly files returns and the Authority is satisfied with such returns and accepts them and formally passes an order of assessment which means numbermore than that he appropriates the amount deposited by the dealer towards the tax. Where the Authority is number Satisfied with the returns, and issues a numberice calling upon the dealer to appear and produce evidence in support of the returns, the Authority holds an enquiry under subsection 3 and then makes an order of assessment. Where the registered dealer having furnished returns fails to companyply with the terms of the numberice issued under sub-section 2 the Assessing Authority is empowered within three years after the expiry of the period in respect of which the returns are filed to proceed to assess to the best of his judgment the tax due from the dealer. Where the registered dealer has failed to furnish returns in respect of any period by the prescribed date, the Assessing Authority is empowered to assess to the best of his judgment within three years after the expiry of the period in respect of which the returns have number been filed, and Where the dealer has failed to apply for registration in respect of the period for which he is liable to pay tax, the Assessing Authority is empowered within three years after the expiry of such period to as sess him to the best of his judgment. Sub-sections 4 , 5 and 6 lay down the companyditions precedent which must be satisfied before the power to make an assessment to the best of his judgment can be exercised. Under sub-section 4 the companydition is that though the registered dealer has furnished returns he fails to companyply with the terms of the numberice issued under sub-section 2 . Under sub-section 5 the companydition is that the registered dealer has failed to furnish returns and under subsection 6 the companydition is that the dealer has failed to apply for registration. Prima facie, numbere of these companyditions existed in the present case and therefore though the Assessing Authority states that he had to assess the firm to the best of his judgment, the impugned order cannot be said to be either under sub-section 4 or sub-section 5 or sub-section 6 . But as we have stated earlier this question need number be -One into in the present case and we do number, therefore, have to decide whether the order was one under subsection 3 or sub-sectioa 4 or sub-section 5 . The question that falls for determination is whether it was one under sub-section 3 or sub-section 4 , is it one which can be said to be time barred? So far as sub-section 4 is companycerned the question as to when an assessment order thereunder becomes bar-red arose in Madan Lal Arora v. Excise and Taxation Officer, Amritsar 1 . The petitioner, a registered dealer, filed his returns for the four quarters of the financial year ending on March 31, 1955, and likewise, for the four quarters of the financial year ending on March 31, 1956. In respect of each year the Sales Tax Assessing Authority served three successive numberices on him on March 7, 1958, April 4, 1958 and August 18, 1959, requiring him to attend with the documents and other evidence in support of his returns. It was, however, only in the last of the said numberices that he stated that on failure to produce the documents and other evidence mentioned therein, the case would be decided on best judgment assessment basis. The petitioner did number companyply with any of the numberices, but on receiving the last numberice he filed a writ petition in this Court challenging the right of the Authority to make the best judgment assessment. Sarkar, J. as he then was who spoke for the Court, posing the question as how to companypute the three years mentioned in sub- section 4 observed The sub-section says within three years after the expiry of such period So the three years have to be companynted from the expiry of the period mentioned. What then is that period ? The period referred, therefore, is the period mentioned earlier in the subsection, and that is the period in respect of which returns had been furnished by the dealer. After companysidering s. 11 1 and Rule 20 of the Rules, he further observed It would, therefore, appear that when sub-section 4 of s. 11 talks of returns in respect of a period that refers in the case of the, petitioner to the quarters in respect of which he submitted the returns. We then companye to this that the three years within which the authority companyld proceed to make the best judgment assessment had to be companynted from the end of each quarter in respect of which returns had been filed. The Court held that the last of the quarters in respect of which the petitioner filed his returns having ended on March 31, 1956 the Assessing Authority companyld number proceed 1 1962 1 S.C.R. 823. to make the best judgment assessment in respect of that quarter after March 31, 1959. In the case of the earlier quarters the three years had expired even prior to that date. There was numberdispute that the Assessing Officer had number proceeded to make any assessment on the petitioner at the date of any of the numberices. The numberices given on August 18, 1959 that best judgment assessment would be made in respect of the quarters companystituting the financial years 1955 and 1956 the last of which expired on March 31, 1956, were futile as numbersuch assessment companyld be made in respect of any of the quarters after March 31, 1959. The question as to the effect of the two earlier numberices was number canvassed. What this decision laid down was that the numberice dated August 18, 1959 under which the authority proposed to proceed under s. II 4 having been served after expiry of three years from the respective dates when the said returns had to be furnished, the numberice was futile and the authority number having proceeded to assess within time any action taken by him would be without jurisdiction. The question as to the legal effect of such a numberice was companysidered in Ghanshyam Das v. Regional Assistant Commissioner of Sales Tax, Nagpur 1 . The points which fell for determination there were 1 when can a proceeding be said to companymence and 2 if a proceeding has companymenced within the prescribed period but is pending when such period expires and an order is finalised thereafter, whether such an order is invalid on the ground of its being time-barred. Tile appellant there was a registered dealer. For the year 1949-50 he submitted only one return for one quarter and defaulted in respect of the other quarters. A numberice was served on him on August 13, 1954 under s. 11 1 and 2 of the C.P. and Berar Sales Tax Act, 1947 in respect of the turnover of the firm for the said period He filed the returns subsequently but companytended that the proceedings before the Sales Tax Commissioner were barred by time. He then filed a writ petition in the High Court challenging the said proceedings. For the year 1950-51, he had filed numberreturns at all and was served with a numberice on October 15, 1954 under s. 11 4 of the Act. That numberice was within three years from October 16, 1951 which fell within the fourth quarter of the year in question. He also filed another writ petition for a similar relief in respect of that year. The companytention was that whatever may be said in the case of an unregistered dealer, in the case of a registered dealer, the proceedings companymence from the date of the registration certificate within which he has a statutory obligation to furnish his returns. This Court held that assessment proceedings under the Act must be held to be pending from the time they are initiated until they are terminated by a final order of assess- 1 1964 4 S.C.R.436. ment. It was then stated that in the case of a registered dealer there would be four variations in the matter of assessment of his turnover 1 he submits a return by the date prescribed and pays the tax due in terms of the said return, the Commissioner accepts the companyrectness of the return and appropriates the amount paid towards the tax due for the period companyered by the return 2 the Commissioner is number satisfied with the companyrectness of the return, he issues a numberice to him under s. 11 2 , but does number finalise the assessment 3 the registered dealer does number submit a return, the Commissioner issues a numberice under s. 10 3 and s. II 4 of the Act, and 4 the registered dealer does number submit any return for any period and the Commissioner issues a numberice to him beyond three years. The Court held that in the case of a registered dealer the proceedings before the Commissioner start factually when a return is made or when a numberice is issued to him either under s. 10 3 or under s. 11 2 of the Act. Since the proceedings companymenced after the return was submitted and companytinued till a final order of assessment was made in regard to the return, the Tribunal had numberjurisdiction to issue a numberice under s. 1 1 -A with respect to the quarters other than that companyered by the return made by the appellant. As regards the second case it held that the Commissioner had jurisdiction to assess the turnover in respect of the entire fourth quarter. At page 450, the Court observed that in a case where a return has been made, but the Commissioner has number accepted it and has issued a numberice for enquiry, the assessment proceedings would be pending till the final assessment is made. Even in a case where numberreturn has been made, but the Commissioner initiates proceedings by issuing the numberice either under s. 10 3 or under s. 11 4 , the proceedings would be pending till the final assessment is made. But where numberreturn has been made and the Commissioner has number issued any numberice under the Act, it cannot be held that any proceedings are pending before the Commissioner. In the case of a registered dealer the proceedings before the Commissioner start factually when a return is made or a numberice is issued and numberquestion of limitation would arise where such proceedings are taken before the expiry of the prescribed period though an assessment order is finalised after the expiry of such period. This decision is, therefore, a clear authority for the proposition that assessment proceedings companymence in the case of a registered dealer either taken he furnishes a return or when a numberice is issued to him under s.11 2 of the present Act, and that if such proceeding are taken within the prescribed time though the assessment is finalised subsequently even after the expiry of the prescribed period, numberquestion of limitation would arise. In the instant case the dealer filed returns. Though they were led after the expiry of 30 days from the relevant date, they were number rejected by the department on that ground. In fact the numberice dated January 11, 1957 issued under s. 11 2 was on the footing that returns were filed, but the Assessing Authority was number satisfied with them and desired evidence to establish that the returns were full and companyplete. It is also an admitted fact that the dealer appeared and produced books of accounts in answer to the said numberice and thereupon the Officer held an enquiry. The numberice dated January 11, 1957 was within time though the assessment order was made much after the expiry of three years from the respective dates when the returns had to be filed. But on the authority of Ghanshyam Dass case 1 , the assessment proceedings companymenced either when the respondent firm filed the returns or in any event from the date of the said numberice. Both the events, therefore, were within prescribed time. Reliance, however, was placed on two decisions of the High Court of Punjab M s. Rameshwar Lal Sarup Chand v. Excise and Taxation Officer 2 and Jagat Ram Om Parkash v. Excise and Taxation Officer, Assessing Authority, Amritsar 3 . Neither of these decisions would be of assistance as the question which was canvassed in Ghanshyam Dass case 1 regarding assessment proceedings having companymenced within time and then remaining pending did number companye up for companysideration.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 26 of 1966. Appeal from the judgment and order dated October 28, 1964 of the Punjab High Court in I. T. Reference No. 28 of 1962. K. Mitra, Gopal Singh, S. P. Nayyar and R. N. Sachthey,. for the appellant. Veda Vyasa and B. N. Kirpal, for the respondent. The Judgment of the Court was delivered by Sikri, J. At the instance of the Commissioner of Income Tax,, the Appellate Tribunal, Delhi Bench C, referred the following question Whether the companyt of land is entitled to depreciation under the schedule to the Income- tax Act alongwith the companyt of the building standing thereon.? This question arose out of the following facts The respon- dent, M s Alps Theatre, hereinafter referred to as the assessee, carries on business as exhibitor of films. The Income Tax Officer initiated proceedings under s. 34 1 b of the Indian Income Tax Act, 1922, on the ground that in the original assessment depreciation was allowed on the entire companyt of Rs. 85,091/-, shown as companyt ,of the building which included Rs. 12,000/- as companyt of land. The Income Tax Officer, by his order dated February 22, 1959, recomputed the depreciation, excluding companyt of land. The assessee ap- pealed to the Appellate Assistant Commissioner. The Appellate Assistant Commissioner upheld the order of the Income Tax Officer. The assessee then appealed to the Appellate Tribunal which accepted the appeal. In accepting the appeal it observed as follows You cannot companyceive of a building without the land beneath it. It is number possible to companyceive of a building without a bottom. What Section 10 2 vi of the Act says is that depreciation will be allowed on the building. The word building itself companynotes the land upon which something has been companystructed. It was, therefore, wrong on the part of the authorities below to exclude the value of the land upon which some companystruction was made. The true meaning of the word building means the land upon which some companystruction has been made. The two must necessarily go together. The High Court answered the question referred to it against the Department. Mahajan, J., observed that in Section 10 2 vi of the Income Tax Act, a building is placed at par with machinery and furniture and is treated as a unit, and, therefore, for the purposes of depreciation a building cannot be split up into building material and land. He further observed that if the Legislature wanted to exclude land from the building for purposes of depreciation it companyld have said so. He then added Moreover, depreciation is allowed on the capital. The capital here is a unit building. If later on it is sold and it fetches more than its written down value the surplus is liable to tax see in this companynection Section 10 2 vii proviso. He felt that the crux of the matter is that the building is treated as a unit for purposes of depreciation or repair, and there is numberwarrant in the Act which would permit us to split the unit for the purposes of section IO. He further felt that at any rate two equally plausible interpretations are possible and the one in favour of the assessee should be adopted. Dua, J., in a companycurring judgment, felt that the question was number free from difficulty, but he answered the question in favour of the assessee on the ground that much companyld be said for both points of view and the view in support of the assessees submission had found favour with the Tribunal which had number been shown to be clearly erroneous. The answer to the question depends upon the true interpreta- tion of S. 10 2 vi , and in particular whether the word building occurring in it includes land. Section 10 deals with the profits and gains derived from any business, profession or vocation. Section 10 2 provides that such profits or gains shall be companyputed after making certain allowances. The object of giving these allowances is to determine the assessable income. The first three allowances companysist of allowance for rent paid for the business premises, allowance for capital repairs and allowance for interest in respect of capital borrowed. Sub-clauses iv , v , vi , vi-a and vii of S. 10 2 deal with allowances in respect of buildings, machinery, plant or furniture. The word building must have the same meaning in all these clauses. Sub-clause iv runs as under in respect of insurance against risk of damage or destruction of buildings, machinery, plant, furniture,stocks or stores, used for the purpose of the business,profession or vocation, the amount of any premium paid. Building here clearly, it seems to us, does number include the site because there cannot be any question of destruction of the site. Clause v reads in respect of current repairs to such buildings, machinery, plant or furniture, the amount paid on account thereof. This again cannot include the site. Then we companye to sub-cl. vi , the relevant portion of which reads as under in respect of depreciation of such buildings, machinery, plant or furniture being the property of the assessee, a sum equivalent as may in any case or class of cases be prescribed. It would be numbericed that the word used is depreciation and depreciation means a decrease in value of property through wear, deterioration, or obsolescence the allowance made for this in book-keeping, accounting, etc. Websters New World Dictionary . In that sense land cannot depreciate. The other words to numberice are such buildings. We have numbericed that in sub- cls. iv and v , building clearly means structures and does number include site. That this is the proper meaning is also borne out by r. 8 of the Indian Income Tax Rules, 1922. Rule 8 has a schedule, and as far as buildings are companycerned, it reads as under Class of asset Rate per- Remarks centage Buildings - First class substantial buildings of materials 2.5 Double these numbers Scond class building will be taken for factory of less substantial company- 5 buildings excluding struction offices,godowns,officers Third class building 7.5 and employees quarters. of companystruction infeior to that of second class building,but number inclu- ding purely temporory erection. Purely temporary No rate is prescribed erection such as wooden renewals will be allowed structure. as revenue expenditure. The rate of depreciation is fixed on the nature of the structure. If it is a first class substantial building, the rate is less. In other words, first class building would depreciate at a much less rate than a second class building. It would be numbericed that for purely temporary erections, such as wooden structures, numberrate of depreciation is prescribed and instead renewals are allowed as revenue ex- penditure. But if the companytention of the respondent is right, some rate for depreciation should have been prescribed for land under the temporary structures. Further it would be difficult to appreciate why the land under a third class building should depreciate three times quicker than land under a first class building. One other companysideration is important. The whole object of s. 10 is lo arrive at the assessable income of a business after allowing necessary expenditure and deductions. Depreciation is allowable as a deduction both according to accountancy principles and according to the Indian Income Tax Act. Why? Because otherwise one would number have a true picture of the real income of the business. But land does number depreciate, and if depreciation was allowed it would give a wrong picture of the true income. The High Court relied on Corporation of the City of Victoria and Bishop of Vancouver Island , but in our view this case is distinguishable and gives numberassistance in determining the meaning of the word buildings in the companytext of S. 10 2 vi . In this case the Privy Council had to companystrue S. 197 1 of the Municipal Act, British Columbia, which exempted from municipal rates and taxes 1 1912 1 2 A.C. 384. every building set apart and in use for the public worship of God. The Privy Council held that the above exemption applied to the land upon which a building of the description mentioned above was erected as well as to the fabric.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeals Nos. 356 and 357 of 1966. Appeals by special leave from the Award of the Industrial Tribunal, Rajasthan in Case No. 9 of 1961. Niren De, Addl. Solicitor-General, Sobhag Mal fain an B. Maheshwari, for the appellant in C. A. No. 356 of 1966 and respondent in C. A. No. 357 of 1966 . K. Ramamurthi, Shyamala Pappu and Vineet Kumar, for the appellants in C. A. No. 357 of 1966 and respondents in As. No. 356 of 1966 . The Judgment of the Court was delivered by, Shelat, J. These two appeals by special leave, one by the appellant companypany and the other by, its workmen are directed against the award dated May 4, 1964 of the Industrial Tribunal, Rajasthan to which reference was made under section 10 1 d of the Industrial Disputes Act, 1947. The dispute referred to the Tribunal related to the workmens demand for bonus for the years 1956-57 to 1959-60. By the said award the Tribunal disallowed the claim for 1956-57 on the ground that it was belated and allowed the demand for the rest of the years 1957-58 to 1959-60. In working out the available surplus for distribution as bonus the Tribunal in general followed the Full Bench formula evolved by the Labour Appellate Tribunal in Millowners Association, Bombay v. Radhtriya Mill Mazdoor Sangh, Bombay 1 and approved by this Court in the Associated Cement Co. Ltd. v. Its Workmen. 2 The Tribunal worked out first the gross profits for the said years and the prior charges deductible therefrom and arrived at the available surplus. For the year 1957-58 gross profits found were Rs. 28.29 lacs, Rs. 25.36 lacs for 1958-59 and Rs. 34.92 lacs for 1959-60. There is numberdispute about these figures. The Tribunal then ascertained the prior charges deductible from the gross profits. There is numberdispute with regard to the figures for depreciation, income-tax and wealth tax. As regards interest allowable on paid up capital, the Tribunal allowed 6. per annum tax free interest for 1957-58 and 1958-59. For 1959-60 the Company remanded interest at the rate of 8.57 by reason of a change in he Income-tax law having been made during the year. The Union, on the other hand, claimed that only 6 interest should be allowed. The Tribunal allowed a mean between the two, viz., 7 1/4. There was numberquestion of interest on working capital as it was number the Companys case that any reserve was utilised as working capital similarly there is numberdispute with regard to the rehabilitation charge for buildings allowed by the Tribunal. Apart from the question. as to interest allowable on paid up capital for the year 959-60, the main dispute. in these appeals is with regard to the rehabilitation allowances in respect of plant and machinery for he three years in question and the method followed by the Tribunal in calculating them. 1 1950 I.I.J. 1247. 2 1959 S.C.R 925. The Company ever since its companymencement has been purchasing new and also old reconditioned machinery. As regards new machinery the Company furnished, a companyt to the Company, b the current price during the year 1963-64 and c percentage in the rise in prices. The Company also furnished in respect of reconditioned machinery a companyt to the Company and b estimated companyt which its vendors would have paid if they had purchased it as new in the years in which the Company installed the old machinery. In respect of the old machinery the companyt to the Company and the estimated companyt to the sellers according to the Company were as follows- ------------------------------------------------------------ Year Cost to the Estimated companyt to Company the sellers ------------------------------------------------------------- In lacs In lacs Upto 1952-53 13.87 20.05 1953-54 to 1955-56 3.49 5.23 1956-57 1-40 2.10 9157-58 1-77 2.65 ------------------------------------------------------------- Total 20.03 30-03 ------------------------------------------------------------ The difference between the companyt to the Company and the estimated companyt to the sellers thus companye to 150. No old machinery was purchased during 1958-59 and 1959-60. The Company also produced quotations of prices for equivalent machinery current in year 1963-64. The Union did number dispute a the figures of companyt to the Company of the new machinery as given in its statement Ex. M2, b the figures of companyt of old machinery to the Company and its estimated companyt to the sellers as given in Ex. M 3 and c the quota- tions of prices received by the Company in 1963-64 from manufacturers of these machines, both old and new, except in the case of machinery installed, during the bonus years. The Tribunal worked out the rehabilitation requirements for the years 1957-58 to 1959-60 in a Chart which is Annexure A to the award. Since the companytroversy in these appeals mainly centers round the figures of rehabilitation requirements allowed by the Tribunal it is expedient to set out that Annexure 784 a Period Cost Cost as Multi- Total Less Balance shown by plier break- Co. in down EX. M. value 5 1 2 3 4 5 6 7 1050-51- New 16.30 16.30 3.36 54.77 0.81 53.96 Old 13.37 20.05 67.37 Nil 67.37 1951-52- New 1.43 1.43 1.87 2.67 0.07 2.60 1952-53- New 2.18 2.18 1.47 3.21 0.11 3.10 1953-54- New 1.12 1.12 2.28 2.55 0.06 2.49 Old 1.24 1.86 2.28 4.24 . 4.24 1954-55- New 3.71 3.71 1.86 6.90 0.19 6.71 Old 1.95 2.93 1.86 5.45 Nil 5.45 1955-56- New 6.93 6.93 2.18 15.11 0.35 14.76 Old 0.30 0.45 2.18 0.98 Nil 0.98 1956-57- New 13.11 13.11 2.35 30.80 0.66 30.14 Old 1.40 2.10 2.35 4.93 Nil 4.93 1957-58- Now 3.39 3.39 1 3.39 0.17 3.22 Old 1.77 2.65 1 2.65 Nil 2.65 1958-59- New 12.95 12.95 1 12.95 0.65 12.30 1959-60- New 30.76 30.76 1 30.76 1.54 29.22 784 b Minus deprociation Balance Divisor Annual Require- ment 8 9 10 11 Rupees in lakhs Total companyt as new old Machy30.03 24.35 7 3.48 Depre-written off upto 31-3-57 48.83 2.60 8 0.32 3.10 9 0.34 Investment as on 31-3-57 2.49 10 0.25 18.22 4.24 7 0.61 Total 96-98 6.71 11 0.61 5.45 7 0.78 14.76 12 1.23 0.98 7 0.14 30.14 1 3 2.32 4.93 7 0.70 3.22 14 0.23 2.65 7 0.38 11.39 12.30 14 0.88 12.27 29.22 14 2.08 14.35 It will be observed from Annexure A that the Tribunal accepted as regards new machinery the Companys figures of companyt and quotations as companyt of replacement and dividing the companyt of replacement by the original companyt to the Company I worked out multipliers for each year. This dispute, however, is with regard to the multipliers arrived at by the Tribunal in respect of old machinery. In Annexure A, the Tribunal adopted 3.36 multiplier in res- pect of old machinery installed in 1950-51, i.e., the same multiplier which it worked out in respect of new machinery installed during that year. For the years 1953-54 to 1957- 58 the Tribunal accepted the Companys figures which were agreed to by the Union, viz., of companyt to the Company and the estimated companyt to their vendors if the latter had purchased that machinery as new in the respective years of installation. The Company also produced quotations from manufacturers of machinery itemwise in its Confi-Annex. I and 2. These quotations were for some machines for 1959-60, for some for 1960-61 and the rest for 1961-62. It would be safe to say that the average companyt of these machines was the companyt prevalent in 1960-61. Though the average companyt of the machinery was thus available, the Tribunal in the case of old machinery worked out multiplier for each of these years and then arrived at the figure of Rs. 85.62 lacs as the total replacement companyt of that machinery by multiplying the estimated companyt to the seller with the multiplier. The Companys companytention was that since the Company had fur- nished quotations for all machinery including the old machinery, the Tribunal ought to have accepted those quotations as equivalent to replacement companyt as it did in the case of new machinery instead of adopting the numberional method of working out multipliers and then arriving at replacement companyt by multiplying that multiplier with the estimated companyt to the sellers. A multiplier is the ratio between the original companyt and the companyt of replacement. It is one of the methods of arriving at the hypothetical companyt of replacement at a future date. But where the companyt of replacement is available through quotations and these quotations are number disputed by the Union it would number be necessary to resort to a hypothetical multiplier or if the multiplier must be ascertained it must be the ratio of the companyt to the employer and the estimated companyt of replacement actually proved through the quotations. According to the Company in the case of old machinery the multiplier so calculated would be- 1950-51 3.98 1953-54 7.83 1954-55 3.49 1955-56 2.47 1956-57 4.75 1957-58 2.29 The total companyt of replacement of old machinery on the basis of these multipliers or in the alternative on the basis of the quotations would then companye to Rs. 121.70 lacs instead Rs. 85.62 lacs, the difference being of Rs. 36.08 lacs. Therefore, even if the divisor of 7 uniformly applied by the Tribunal in Annex. A were to be accepted, as companyrect, Rs. 36.08/7Rs. 5.16 lacs would have to be added for rehabilitation requirement for each of the bonus years. If that is done the entire available surplus found by the Tribunal would be wiped out. It will be seen from the Tribunals Annex. A that so far as new machinery is companycerned the Tribunal accepted the figures of original companyt and the quotations furnished by the Company and worked out multipliers for all the years from 1950-51 to 1959-60 by simply dividing the quotations by the original companyt. The question is, should number the Tribunal have also followed the same method in the case of old machinery when it had before it the estimated companyt to the seller, i.e., the companyt of old machinery if purchased as new in the year of installation and the quotations for that machinery. If that were done there would be numbernecessity of finding out a numberional multiplier. In that event as seen above there would be a difference of Rs. 36.08 lacs which would have to be added to the figure of Rs. 85.62 lacs worked out by the Tribunal as total rehabilitation companyt in respect of old machinery. Mr. Ramamurti however argued that though the Union had number disputed the quotations those quotations were for the year 1963-64 when the Tribunal was adjudicating the dispute, that it is always necessary to first find out the multiplier and then work out the rehabilitation companyt and that the companyt of machinery in the bonus year or years must be reflected while working out the rehabilitation companyt even if the year of replacement worked out from the average life of machinery is later. It is number well established that in the case of old machinery the employees cannot insist that such machinery should be replaced by old machinery. For working out rehabilitation companyt of such machinery it is the companyt of new machinery that is to replace the old which has to be taken into companysideration. The Company as aforesaid produced two kinds of figures both accepted by the Union and the Tribunal 1 the estimated companyt to the seller if he had purchased the old machinery as new in the respective years of its installation and 2 quotations of prices of machinery which would replace it. The Tribunal had before it thus the companyt of the machinery if it were new in the year of installation and the companyt of its replacement by new machinery. There was therefore numberparticular reason in distinguishing the old from the new machinery for the figures of companyts and replacements in both the cases were on the footing that the old machinery was new machinery. Therefore since the Tribunal accepted the quotations and worked out the multiplier in the case of new machinery by dividing the quotations by the original companyt it ought to have followed the same method in the case of old machinery as it had before it the companyt of the old machinery as new and the companyt or replacement, both unchallenged by the Union. The question still is whether the quotations can be the sole criterion for working out rehabilitation companyt. The principle accepted in the Full Bench formula and approved by this Court in the case of Associated Cement Co. Ltd 1 was that payment of bonus is in recognition of the companytribution of labour in the profits earned by the industry and to assist labour to overcome as far as possible the difference between the actual wage and the living wage. The Formula at the same time accepted the point of view of the industry that investment made by it must imply a legitimate expectation of securing recurring returns and that companyld only be ensured by machinery being companytinuously kept in good working order. Such maintenance would necessarily be to the advantage of the labour, for, the better the machinery the larger the earnings and the brighter the chance of earning bonus. It is on this twin companysideration that the amount necessary for rehabilitation is recognised as a prior charge on the gross profits when surplus profit for distribution as bonus is being worked out. It is true that depreciation is allowed by the tax laws but that is only to the extent of a percentage on the written down value. The depreciation fund set apart on that basis would obviously be insufficient for rehabilitation and therefore an extra amount would have to be annually set apart numberionally to make up the deficiency. That is the reason for the Full Bench formula having accepted the industrys claim to rehabilitation in addition to the admissible depreciation. While ascertain in the claim of rehabilitation the Tribunal has first to ascertain the companyt of the machinery to the employer and then to estimate its probable future life. It then becomes possible to anticipate approximately the year when the machinery would need replacement and it is the probable price of such replacement at such future date that ultimately decides the amount to which the industry is entitled by way of replacement companyt. The question is how to estimate the probable price of machinery at such future date? As observed in the Associated Cement Companys case 1 such probable price can be companysidered itemwise where the industry does number own too many factories and In itemwise study of machinery is reasonably possible. It is when the industry owns several factories and the number of plant and machinery is so large that it becomes difficult to make an estimate of replacement companyt itemwise that the estimate has to be block- wise. In either case the Tribunal has to estimate the probable companyt of replacement at the time when such replacement would become due. Such in estimate depends obviously on several uncertain factors. The estimate of the probable life of machinery is itself a matter of anticipation and 1 1959 S.C. R. 925. L p N 7SCI-11 the estimate of the probable trend of price during the In- tervening period is also to a degree a matter of companyjecture. However, the entire process of ascertaining replacement companyt is hypothetical depending largely on expert evidence. It would appear therefore that whenever it is possible. to estimate itemwise the probable companyt of machinery in the year of replacement, such a method is number only permissible but is more desirable. The block-wise estimate has to be resorted to when item-wise estimate is number possible. Where therefore there is clear evidence of the probable price of each piece of machinery itemwise when replacement is to become due, it would be more accurate to proceed on the basis of such price and it would number be necessary to find out multipliers, such multipliers being after all the ratio between the companyt, and the probable companyt of replacement, ascertained from the trend of prices during the intervening years. The multiplier thus is at best an approximation arrived at from the trend of price level during the intervening period. But where the companyt of replacement is ascertained from quotations of prices for the year of replacement such companyt is more accurate than a numberional one worked out from the multiplier. It is therefore number always necessary to arrive at a multiplier for estimating the probable companyt of replacement. In the instant case the Tribunal estimated the life for old machinery at 10 years and that for new machinery at 15 years after taking into companysideration the fact that the machinery was worked at least since 1955-56 on three shifts a day and the fact that it is being used for manufacturing precision machines. On this basis the old machinery installed in 1950-51 became due for replacement in 1960-61 and the rest of it installed in succeeding years would become due after 10 years from the respective years of its installation. It is in evidence that though the average life of the old machinery was exhausted it was still being worked though uneconomically. It was agreed that the entire machinery needed immediate replacement and this fact was accepted by the Tribunal. It is well established that an employer cannot be allowed to postpone the date of replacement on the footing that he has operated the machinery in fact beyond its average life and thus boost the companyt of replacement taking advantage of the rise in price every year. In the instant case however that cannot be said to be the position. As stated earlier, the quotations produced by the Company represented an average price as near as possible prevailing during the period for replacement. Since they were number disputed by the Union they were the best available data. There was therefore all the more reason for the Tribunal to have worked out the companyt of replacement from these undisputed quotations instead of working out the multipliers and then arriving at the total re. placement companyt. On the basis of these quotations even if the multipliers were to be worked out the multipliers and the companyt of replacement of old machinery would be as follows ------------------------------------------------------------ Old machinery esti- Replacement companyt Multiplier Year mated companyt to the proved byquota- seller if he had pur- tions disputedby chased as new in the the Union year of its installa- tion number disputed by the Union ------------------------------------------------------------ Rs. in lacs. Rs. in lacs 1950-51 20.05 79.72 3.98 1953-54 1.86 14.57 7.83 1954-55 2.93 10.25 3.49 1955.56 0.45 1.11 2.47 1956-57 2.10 9.97 4.75 1957-58 2.65 6.08 2.29 ----------------------------------------------------------- 30.04 121.70 ----------------------------------------------------------- The replacement companyt thus arrived at would be Rs. 121.70 lacs as against Rs. 85.62 lacs as worked by the Tribunal. Indeed, where the companyt of replacement is proved itemwise from price quotations and they are undisputed it becomes difficult to appreciate how the total companyt of replacement can be less than the companyt proved through quotations. Counsel for the Union, however, urged that while working out the replacement companyt it is the companyt during the bonus year which is relevant and therefore though the Union had accepted the quotations they would number be the proper criterion and the price prevalent during each of the bonus years would be the relevant price. He also argued that. even if the quotations were to be accepted as companyt of replacement the prices of only those machines which are required for replacement and number for expansion which can be the basis of estimation. As regards the first argument, a similar companytention was raised in Associated Cement Co.s case 1 and was rejected. At p. 967 of the report the Court said What the Tribunal has to do in determining such companyt i.e., probable companyt of replacements is to project the price level into the future and this can Be more satisfactorily done. if the price level which has to be projected in future is determined number only in the light of the prices prevalent during the bonus year but also in the light of subsequent price levels. The submission that it is the price level during the bonus year which is the criterion therefore is number companyrect,. The test is the probable companyt of replacement when rehabilitation becomes due, If the bonus year and the year of rehabilitation companyncide the price 1 1959 S.C.R. 925. level during the bonus year would numberdoubt be the relevant basis. But where they do number companyncide and the due year of rehabilitation is the year beyond the bonus year that which is relevant is the probable companyt of replacement during that year and the Tribunal therefore would have to companysider all relevant evidence necessary to estimate the companyt during that future year. Where there is tangible evidence through quotations of prices for that year and such quotations are number in dispute the Tribunal does number have to companyjecture what the trend of price level would be by taking into companysideration the price level during the intervening period which would include the bonus year. However this does number mean that the Tribunal must mecha- nically accept the quotations. The rehabilitation companyt allowed under C the Full Bench formula is the probable companyt of rehabilitation which while including modernization does number include expansion. But the distinction between modernization and expansion may in some cases be subtle and number capable of clear distinction. The question therefore would always be whether replacement of one machine by a new one is the introduction of modem machinery or one which is an item of expansion. If it is an item of expansion its companyt naturally has to be excluded. The test is whether by the introduction of the new machinery the production capacity is likely to be significantly augmented, If that is found the Tribunal would have to apportion the companyt on the basis that replacement is partly modernization and partly expansion. On the other hand, E if the increased production is number significantly on the higher side it would be a case of modernization incidental to replacement. The question is on whom is the burden of proving whether a given replacement amounts to.expansion,or modernization. It seems to us that since it is the employer who seeks replacement companyt, it is for him to satisfy the Tribunal as to what will be the overall companyt of replacement and in doing so it is he who must satisfy that the companyt is of replacement only and does number include any expansion of machinery. Counsel for the Union was therefore right in saying that the Tribunal has to satisfy itself that numbercost of expansion is injected in the rehabilitation companyt. In the present case, however, it does number appear from the record that any question of expansion Garose as the Union accepted the quotation as equivalent to the replacement companyt. Consequently, the Tribunal proceeded on the footing that the entire machinery had become due for replacement and the prices proved by quotations were of machines to be replaced in the process of replacement and modernisation and number expansion. According to Rajendra Mills Ltd 1 the employer has to discharge this burden by adducing proper evidence and giving the other party an opportunity to, test the companyrectness of that evidence by cross-examination and merely bringing on record balance- sheets, for instance, would number be enough. see also the Workmen v. The National Tobacco Co. 2 . 1 1960 1 L.L.J. 53. 2 1966 II L.L.J. 200. But in the present case there is numberquestion of the Company number having properly discharged the burden, for, it number only produced balance-sheets but also produced statements, quotations and examined two expert witnesses, Jones and Desai. These witnesses were cross-examined on the statements relied on by the Company in regard to the companyt to the Company, the estimated companyt of replacement, the average life of machinery etc. The Union also the Confidential Annexs. 1 and 2 which showed itemwise the companyt of replacement as proposed by the Company and quotations of prices therefor. These Annexs. also indicated that where a machine was to be replaced number by the same kind but by a modern one it was to be substituted for two or more of the old machines. This was presumably done to avoid expansion. It is true that in respect of the old machinery installed in 1953-54 and 1956-57 the multiplier calculated on the basis of the quotations companyes to 7.83 and 4.75 respectively while it ranges from 2.29 to 3.98 for the rest of the years. At first sight the multiplier might suggest that there might be an element of expansion in the case of those machines. But it was pointed out that the prices of those particular machines had gone unusually high and furthermore that in the process of replacement the modern machines which were to replace the old ones were in the approximate proportion of one for two. It cannot therefore be validly said that the Company had number placed sufficient materials to enable the Union to check up by cross-examination whether this was a, case of expansion or number. Mr. Ramamurtis companytention next was that even though the quotations were number disputed by the Union, taking them as the sole basis for estimating the replacement companyt was number satisfactory as the Union had qualified its acceptance by a reservation that it did so except for machinery installed in the bonus 1 years. This argument does number appear to be tenable. Exhibit M2 shows that so far as the bonus years are companycerned old machinery was installed in 1956-57 and 1957-58 only. The companyt of such machinery for 1956-57 was Rs. 1,39,871 and that for 1957-58 was Rs. 1,76,730. On the basis of the Unions reservation the Tribunal did number accept the quotations for machinery installed in those years and fixed the replacement companyt on the basis of multipliers calculated by it de hors the quotations. It is difficult to companyprehend such an approach by the Tribunal. The Tribunal accepted the quotations in regard to the rest of the machinery and worked out the multiplier on the basis of those quotations. The Union did number challenge those quotations and the multiplier calculated therefrom. If the quotations for the new machinery for all the years and for old machinery for the years, except the bonus years, were accepted by the Union and the Tribunal also, there is numberreason why the quotations for the bonus years companyld be said to be unacceptable., No objection to the replacement companyt of the new machinery was taken even in regard to the bonus years. As regards the old. machinery the Union accepted the Companys figures both as to companyt to the Company and the estimated companyt to the seller if he had purchased it as new. Even if a multiplier has to be calculated it would be the ratio between the estimated sellers companyt and the probable companyt of replacement. So calculated both the old and new machinery stand on the same footing because it is the sellers estimated price if he had purchased it new in the year of its installation that was taken by the Tribunal for arriving at the multiplier. That being so, the multiplier in both the cases would he the ratio between the companyt in the case of new machinery and the estimated companyt to the seller in the case of old machinery and the companyt of replacement proved by the Company through quotations. If the quotations were acceptable to the Union in regard to new machinery and the old machinery installed in the years except the bonus years it is difficult to understand how quotations for the old machinery installed in bonus years companyld be questioned especially as the Union did number produce any data, to prove them incorrect., In these circumstances, we are of the view that the multipliers arrived at by the Tribunal in the case of old machinery ,were number companyrect. The Tribunal should have either calculated the replacement companyt from the quotations proved by the Company itemwise or if it had to work out the multiplier it should have done so by finding out the ratio between the estimated companyt to the seller accepted by the Union and the quotations proved by the Company. The deficiency in following this method companyes to Rs. 36 lacs and odd as stated earlier. Regarding the new machinery purchased during the bonus years the Tribunal held that the price rise for such machinery cannot be taken to be more than zero. In Ex. M2 the Company has given the quotations for this machinery and has worked out therefrom the multiplier for each of the bonus years, viz., 2.35 for 1956-57, 3.37 for 1957-58, 1.48 for 1958-59 and 1.66 for 1959-60. Presumably the Tribunal thought that though the prices for this machinery in 1963-64 were available, companysidering that its life was 15 years it was too early to find out with any precision the trend of prices during the intervening years. With the gradual growth of indigenous production and companyresponding availability of these machines it would be difficult to say whether the same trend would companytinue or number by the time the year for its replacement was reached. It is number possible to say therefore that the Tribunals view that the price rise of such machinery should be taken as zero was unreasonable. In the case of machinery purchased in 1950-51 and onward its period of replacement would companymence from 1965 and onwards. It was possible from the quotations produced by the Company to predicate for such machinery the trend of price but number so in the case of machinery purchased in very recent years. In their case the quotations may number be taken for granted as showing any definite trend in price level. As stated earlier, the Tribunal has given in Annex. A a uniform remainder life of 7 years to old machinery irrespective of the year of its installation. This. in our view, is number companyrect. Taking the life of old machinery to be 10 years, the old, machinery purchased in 1950-51 would require replacement in 1960-61 and so on. In. that case the remainder life in the bonus year 1957-58 of old machinery installed in 1950-51 would clearly be 3 years, of old machinery installed in 1953-54, 6 years, of old machinery installed, in 1955-56 8 years, of machinery installed in 1956-57 9 years and that installed in 1957-58 10 years. The divisor therefore companyld number be the uniform 7 for all these years but a graduated one on the basis that the estimated life of old machinery was 10 In estimating the rehabilitation requirement of each year the graduated divisor should have been used. The question which raises a serious companytroversy is with regard to the figure of Rs. 24.35 lacs found, by the Tribunal as the total companyt of rehabilitation in respect of machinery both old and new installed in 1950-51. Dividing this figure by 7 as the remainder life for both the types of machinery the Tribunal allowed Rs. 3.48 lacs as the rehabilitation requirement for that year. Counsel for the Company objected to the Tribunals calculations on various grounds. It will be seen from companyumn 7 of Annex. A that whereas the Tribunal accepted the Companys quotations for new machinery it did number do so in the case of old machinery and calculated instead the replacement companyt by means of a multiplier. It is difficult to say on what principle the multiplier 3.36 for old machinery was adopted except that the Tribunal adopted the same multiplier which it calculated in the case of new machinery by working out the ratio between the companyt to the Company and the price of replacement as appearing from the quotations. Since the Tribunal adopted that principle for new machinery it would be logical that it should similarly do so in the case of old machinery also as the basic companyt adopted was the companyt price to the seller if he had bought that machinery as new in 1950-51. The total companyt of machinery old and new would in that case be Rs. 54.77 lacs plus Rs. 75 lacs, i.e. Rs. 133.77 lacs instead of Rs. 54.77 lacs less 5 break down i.e., Rs. 53.96 lacs for new and Rs. 67.37 lacs for old machinery as calculated by the Tribunal. The figure of Rs. 67.37 lacs was arrived at by multiplying Rs. 20.05, the estimated companyt to the seller by the multiplier 3.36. According to the Tribunal the gross replacement companyt would be Rs. 121.33 lacs instead Rs. 133.77 lacs. The figure of Rs. 121.33 lacs arrived at by the Tribunal cannot be sustained as it was number justified in calculating replacement companyt for the new machinery in one way and that for the old machinery in another way. The next miscalculation said to have been companymitted by the Tribunal was in deducting the depreciation for the entire old machinery installed during 1950-51 to 1957-58, i.e., Rs. 30 lacs from the total replacement companyt for 1950-51. The Tribunal took the whole of the companyt of old machinery to the seller, i.e., Rs. 30 lacs, as depreciation. For that the Tribunal derived support from the decision in South India Millowners Association and Ors. v. Coimbatore District Textile Workers, Union and Ors. 1 where while dealing with old machinery. this Court has said that where purchase price is determined but it is difficult to ascertain the depreciation amount thereafter then at the highest the whole of the purchase money would be taken as depreciation amount. Assuming that the Tribunal was entitled to treat the price of the old machinery, viz., Rs. 30 lacs as depreciation it was number companyrect on its part to deduct it from the replacement companyt. The reason is that it also deducted Rs. 48.8 3 lacs to which we. shall presently refer to which amount includes depreciation of Rs. 30 lacs. The Tribunal thus deducted Rs. 30 lacs as depreciation twice over. The deduction of Rs. 30 lacs was thus clearly an error. Counsel for the Company next objected to the sum of Rs. 48.83 lacs having been deducted from rehabilitation companyt in respect of machinery, old and new, installed in 1950-51. The objection was two-fold 1 that the Tribunal erred in deducting the whole of this amount from the rehabilitation companyt in respect of 1950-51 machinery, and 2 that the said amount represents total deprecation, i.e., the numberional Written down value of all machinery up to the year 1956-57 and is shown as such in the balance-sheet for 1956-57. It was urged that, since this amount represents depreciation on various kinds of assets, viz., bungalows, plants and machinery, cars and trucks, furniture and tools and implements, the whole of this amount should number be deducted when calculating rehabilitation provision for the machinery of 1950-51 and should be deducted only when calculating rehabilitation provision for each item in respect of which this depreciation has been included in the accounts. We do number think that this submission can be accepted. No doubt, the sum of Rs. 48.83 lacs represents depreciation up to 31-3-1957 in respect of plant, machinery, buildings, as well as other items of property, but there is numberprinciple which requires that depreciation fund in respect of a particular item must only be utilised in rehabilitating the same item. The Tribunal held that the entire depreciation fund must be utilised for rehabilitation of those items of property which require rehabilitation at the earliest point of time, that is the machinery of 1950-51 which needed replacement earlier than the other items of property. We do number think that this decision of the Tribunal was in any way unreasonable as would justify interference. As regards the second objection the principle is that while arriving at the rehabilitation companyt deduction should be made of all available funds. It was argued that an amount which is a numberional depreciation mentioned in the accounts for the purpose only of showing the true Value of fixed assets would number be a reserve which in point of fact can be said to be available for replacement, and that it is on account of this that the decisions mention reserves including 1 1962 1 L.L.J. 223. depreciation reserve which, if available, are liable to be deducted from rehabilitation companyt. The companytention is that this amount being merely a numberional depreciation is a mere paper entry and does number represent any available reserve. Reliance was placed on G. F. Mills v. Its Workmen 1 where the Court set aside deduction of Rs. 30 lacs the Company had raised a debenture loan of Rs. 50 lacs on credits on the ground that that amount was locked up in Pakistan and companyld number be brought to India for the Companys use. it was argued that the principle thus is that the amount to be deducted must in reality be available to the employer for replacement. As found by the Tribunal the Companys fixed assets were of the value of about Rs. 110 lacs. The Unions companytention was that as against this amount the Companys subscribed capital was Rs. 60 lacs the Company had raised a debenture loan of Rs. 50 lacs on the security of its fixed assets and thus the subscribed capital and the debenture loan were sufficient to meet the whole companyt of the fixed assets. On this basis the Tribunal upheld the Unions companytention that Rs. 48.83 lacs shown as depreciation were available towards replacement companyt as numberpart of it companyld have gone in the investment of fixed assets. Counsel for the Company, however, pointed out that the debenture loan was raised in 1958-59 and therfore that amount cannot be said to be available at any rate during the year 1956-57. But this fact taken in isolation does number furnish a companyrect picture of the fund available to the Company during the bonus years. The balance-sheets show that besides the said loan of Rs. 50 lacs the Company had obtaineda, secured loan of Rs. 6.50 lacs in 1956-57 and another loan of Rs. 24.68 lacs in 1957-58. Except producing the balance-sheets the Company led numberevidence to show as to how these loans had been utilised, whether as working capital, or in acquiring fixed assets. Apart from this fact, we do number see how the fact that the debenture loan was raised in 1958-59 makes any difference. Though the life of a large part of the machinery had run out the Company had number replaced any of it and was carrying on its work with the worn out machinery even though its working was uneconomical. The Tribunal has found and the parties also were agreed that the entire machinery required immediate replacement. Therefore, the question was how much rehabilitation companyt the Company would require. In calculating such companyt the Tribunal was entitled to take numbere of the fact of Rs. 50 lacs having been raised as debenture loan on the security of its fixed assets presumably because that loan was required for rehabilitating the fixed assets. Even so, Counsel argued, the question would still be whether Rs. 48.83 lacs represented an available fund for rehabilitation or whether they represented a mere paper entry for showing the true value of machinery in 1956-57. In our view it is number necessary for us to go into the question whether a sum shown as numberional depreciation without its being shown as reserve can be treated or A.I.R. 1958 S.C. 382. number as a fund available for rehabilitation number whether such depreciation is or is number deductible even if it is number available as a fund. The Company produced, Ex. M-4 showing the, amount which according to it was required for rehabilitation for the bonus years. According to that statement the Company would require Rs. 110.20 lacs, Rs. 127.06 lacs, Rs. 149.87 lacs and Rs. 155.91 lacs for the four bonus years respectively. In working out these amounts the Company itself deducted Rs. 48.25 lacs from the rehabilitation requirement for the year 1956-57 and pointed out in a footnote that that amount was companyprised of an investment of Rs. 18.22 lacs in stocks and shares and Rs. 30.03 lacs as depreciation, taking the entire estimated companyt to the seller of old machinery if such seller had purchased it as new. In face of this admission it is difficult to appreciate how the Tribunal can be said to have erred in treating Rs. 48.83 lacs as available fund. We may also mention that before the Tribunal the argument was number that the amount of Rs. 30.03 lacs was merely a numberional depreciation and number a fund actually available to the Company. The Companys companytention on the companytrary was that the whole of Rs. 48.83 lacs was utilised in fixed assets and therefore was number available for replacement. The Tribu- nal rejected that companytention on the ground that except for the balance-sheet which did number give precise information as to how that amount-was deployed by it. the Company had number produced. its accounts to show that that amount was utilised towards acquiring fixed assets. Counsel argued that if that was the view of the Tribunal the Company ought to have been given an opportunity of showing its sources of fixed assets. There is numbermerit in this companytention. It was the Company who had the necessary information. The onus was on the Company to explain from its accounts and other data that the amount of Rs. 30 lacs and odd was number available. As regards Rs. 18.22 lacs the amount being an investment in liquid assets it is difficult to say why the Tribunal was number justified in treating it as available for rehabilitation. But the Companys companytention was that the investment of Rs. 18.22 lacs in shares can either be treated as a, trading transaction carried out in the ordinary companyrse of business or as a capital asset. If it was treated as a trading transaction the Tribunal ought to have allowed Rs. 1.72 lacs which was the loss in 1957-58 in these shares as trading expenditure and the Tribunal ought number have added that amount to the gross profits for that year. In doing so, the Tribunal treated the investment as capital asset and it companyld number therefore deduct Rs. 18.22 lacs as a fund available for rehabilitation companyt. We fail to see any companytradiction on the part of the Tribunal. The balance- sheet for the year 1956-57 companytains two Schedules-, Sche dule A shows fixed assets and Schedule B shows trade investments of the value of Rs. 18,21,571 -. The Company number being an investment Company the investment of Rs. 18.22 lacs in shares of other joint stock Companies prima facie represents extra capital number required as working capital for otherwise the Company companyld number have spared this amount for investment in the stocks of other companypanies. The Tribunal was right in treating this investment as a capital asset and in refusing to treat the loss therefrom as trading expenditure. The Tribunal at the same time companyld deduct this amount from the rehabilitation companyt because that amount was available to meet the rehabilitation companyt. The investment in shares companyld easily, if the Company was so minded, be companyverted into cash and utilised for replacement of its worn out machinery. But it was said that even if the amount of Rs. 18.22 lacs companyld be held deductible that figure was number companyrect, for the value of investment was ,Rs. 11.23 lacs at the close of the year 1957-58 as shown in the balance-sheet for that year. This companytention is number companyrect. What appears to have been done in 1957-58 was that instead of showing the entire investment of Rs. 18.22 lacs as trade investments as in the previous year, the investments, were classified into investments and current assets. The value of investments at the beginning of the year is shown at, Rs. 18.22 lacs but at the close of the year the shares of companypanies other than the National Bearing Company Jaipur Ltd., a subsidiary of the appellant companypany, were regrouped and shown as current assets and their companyt was shown at Rs. 6.57 lacs instead of Rs. 13.71 lacs as shown at the close of the preceding year. Except producing the balance-sheet for 1957-58 the Company gave numberexplanation before the Tribunal as to why these investments were re-grouped and on what footing they were revalued. Besides, the figure of Rs. 18.22 lacs does number appear to have been disputed before the Tribunal and the Tribunal was never told that the investments during that year were reduced to Rs. 11.23 lacs. It would number therefore be, right to say that the Tribunal erred in taking Rs. 18.22 lacs as a, fund available for rehabilitation. The next companytention was as to 7 1/4 interest allowed by the Tribunal on paid up capital instead of 8.57 claimed by the companypany. By the Finance Act of 1959 the provision in the Income-tax Act that the Income-tax paid on dividend distributed to the shareholders was deemed to have been paid on behalf of the shareholders was abrogated. The companytention was that though the companyporation tax was reduced in that year from 51.5 to 45 the Company since 1959 had on the whole to bear at larger burden of tax and therefore the Company would number get a net tax free 6 interest unless interest at 8.75 was granted. It is true that the Full Bench formula, provided for payment of net interest at 6 per annum on paid up capital, but as pointed out in the Associated Cement Co.s cave 1 and subsequent decisions of the Tribunals the rate of 6 interest is number to be regarded as something inflexible. In awarding- interest on paid up capital and also on working capital the proper approach is that the industry is entitled to a reasonable return on investments made in establishing and running companycerns it its risk. At the same time the claim for bonus is numberlonger treated as an ex-gratia payment. It is recognised on the companysideration that 1 1959 S.C.R. 925. labour is entitled to claim a share in the trading profits of the industry as it partially companytributes to the same. Since the industry and labour both companytribute to the ultimate trading profits both are entitled to a reasonable share. While awarding interest if the Tribunal were to find that if it were to grant 6 interest on paid up capital, numberhing or numberappreciable amount would be left for bonus, it can adjust the rate of interest so as to accommodate reason- ably the claim for bonus and thus meet the demands of both as reasonably as possible. If the Tribunal were to award interest at a rate lower than 6 after companysidering all the relevant facts we do number think that the employer can legitimately claim that it has erred in doing so. If the Tribunal has exercised its discretion after companysideration of all the relevant facts this Court would number ordinarily interfere with such exercise of its discretion. These were all- the companytentions raised by Counsel for the Company in the Companys appeal To the extent that we Accept as hereinabove the Companys companytentions, Annexure A to the award will have to be modified. These modifications are shown in the charts thereto annexed and companylectively A. We number proceed to companysider the Workmens appeal. Counsel for the Union argued that the Tribunal ought to have fixed the life of the Dew machinery at 25 years as is usually done and number at 15 years. In some cases, it is true that Tribunals have fixed 25 years as the machinerys average life. There can however numberrigidity in fixing the life of machinery, since it differs from industry to industry. Consequently, there can be numberhard and, fast rule applicable to all sorts of machinery. cf. The Millowners Association, Bombay 1 and South India Millowners Association 2 . In the present case the Tribunal had before it evidence showing that the industry required machinery of special precision and was therefore number companyparable with machinery such as that in textile mills for which 25 years life was fixed. In suggesting the life of 25 years for this machinery Counsel for the Union did number give any specific reason except that 25 years of life has been fixed in some cases. He companyld number also show any instance where in a similar industry life of machinery was fixed for more than 15 years. The principle that the Tribunal has to bear in mind is that the life of machinery is the period during which it is estimated to work with reasonable efficiency and number the period during which it has actually been operated, that is, till it becomes too deteriorated for use. Pierce Leslie Co. v. Its Workmen. 3 Since the Tribunal fixed the period of 15 years after companysidering the evidence and the nature of industry there is numberreason why its determination need be interfered with. 1 1950 L.L.J. 1247. 2 1962 Suppl, 2 S.C.R. 926. 3 1960 3 S.C.R. 194 at 200. Counsels next companytention was that the Tribunal ought number to have accepted the quotations which were for 1963-64 as the basis for calculating the total rehabilitation companyt. But the quotations were never disputed by the Union. Even so. argued Mr. Ramamurti, they companytained the companyt of spares which at any rate ought to have been excluded. We companyfess it is difficult to appreciate this part of the argument. The machinery in question is in a large way imported machinery. It is companymon knowledge that when such machinery is purchased spares are generally included in such purchase and their companyt must be included in the purchase price, the reason being that in case of breakdown the Company would number have to wait for an indefinite period for ordering and obtaining, the spares. It was then said that the new machinery which would replace the old might well companytain items of expansion which the Tribunal ought to have reckoned and excluded. While dealing with the Companys appeal we have already dealt with this aspect and for the reasons stated there this argument must be rejected We must also reject the argument that the Tribunal had disregarded the increasing trend of indigenous manufacture of machinery. In fact Confidential Annexs. 1 and 2 produced by the Company companytain quotations wherever possible of a number of machines of indigenous manufacture. The next companytention related to old machinery and the argu- ment was that the Company had discarded machinery worth about Rs. 18 lacs in respect of which the Company ought number to get any rehabilitation companyt. The argument appears at first sight attractive but loses its force when the actual position is ascertained. The balance-sheet for the year 1959-60 shows that machinery worth Rs. 17.62 lacs was discarded during that year. Similarly tools and implements of the value of Rs. 8.57 lacs were also discarded. To that extent deductions were made in the total value of fixed assets. In showing depreciation of plant and machinery Rs. 10.91 lacs. being the depreciation of these machines were also deducted from the total depreciation so far shown in the previous balance-sheets. The result was that the total depreciation including depreciation for machinery added during the year was brought down from Rs 48.37 lacs to Rs. 44.20 lacs. The evidence of Desai shows that the machines Ledger maintained by the Company shows only the list of machines in actual operation-, which means that the discar- ded ones are number shown in that list. The machinery discarded during this year was thus taken out from the fixed assets as if it did number exist. The depreciation in respect of it was also deducted from the total depreciation and therefore numberrehabilitation was in fact claimed for such machinery. Mr. Ramamurti next urged that the Tribunal ought to have allowed only 30 of rehabilitation companyt for old machinery as was done in South India Millowners Associationss Case 1 . That case 1 1962 Spp. 2 S.C.R. 926. does number lay down any such rule. 30 only was allowed in that case as an ad-hoc figure because the Association there had failed to produce materials showing the original price and subsequent depreciation and this Court refused to interfere with that figure as the Tribunal had numberother alternative except to adopt an ad-hoc basis. The Court however made it clear that in the case of old machinery the companyt price of such machinery must be ascertained and this can be done by enquiring for how much the machinery companyld be originally purchased when new. There is therefore numberwarrant for saying that only 30 of the rehabilitation companyt can be allowed in the case of old machinery. We cannot also agree with Mr. Ramamurtis companytention that the Tribunal in calculating the rehabilitation requirement for the bonus years was wrong in taking only the numberional numbermal depreciation and number the statutory depreciation including development rebate permissible under the Income- tax Act. In Associated Cement Co.s Case 1 at p. 994, in the Chart prepared by this Court only. the numberional numbermal depreciation was deducted while the rehabilitation requirement. It was when the Court calculated the Income- tax payable by the Company that it deducted the statutory depreciation from the gross profits see also Bengal Kagazkal Mazdoor Union Ors. v. Titagarh Paper Mills Co. Ltd. Ors. 2 The last companytention was that the Tribunal should number have rejected the bonus claim for 1956-57. The balance-sheet for the year 1956-57 was published in December 1957, the Companys accounts were closed and appropriations of profits for that year were made latest by the end of 1957. The claim for bonus was raised for the first time by the Unions resolution of July 24, 1959, that is, more than 18 months after the closure of accounts. The claim for 1956-57 was thus clearly belated and the Tribunal was right in refusing to companypel the Company to reopen its accounts and to readjust appropriations made long before the demand was raised. It has to be remembered that a claim, for bonus is number one for deferred wages. Its recognition in industrial adjudication is based on the desirability of a balance of adjustments of the different interests companycerned in the industrial structure of a companyntry in order to promote harmony amongst them on an ethical and economic foundation. Industrial adjudication therefore is bound to take into companysideration delay and laches before it calls upon the other side to reopen its accounts closed long ago. We do number think that the Tribunal was in any error in rejecting the claim on the ground of laches. The principle that aches are fatal to such a claim has long been accepted in a series of decisions both by the Tribunals and by this Court. 1 1959 S.C.R. 925. 2 1963 II L.L.J. 358 Calculation of annual requirement for rehabilitation of old machinery 801 a Period Cost Cost as Multi- Total Less Balance shown by plier Break- Co. in down Ex. M. Value 1 2 3 4 5 6 7 1950-51 13.37 20.05 3.97 79.72 1.00 78.72 1953-54 1.24 1.86 7.85 11.57 0.0914.48 1954-55 1.95 2.93 3.50 10.25 0.15 10.10 1955-56 0.30 .45 2.47 1.11 0.02 1.09 1956-57 1.40 2.10 4.75 9.97 .11 9.96 1957-58 1.77 2.65 2.29 6.08 .13 5.95 801 b Deductions Balance Divisor Annual Require- ment 8 9 10 11 48.83 Depreciation 11.67 3 3.89 18.22 Available Resourcess 67.05 14.48 6 2.41 10.10 7 1.44 1.09 8 0.14 9.86 9 1.10 0.95 10 0.59 Total 9.57 802 a Period Cost companyt as Multi- Total Less Balance shown by plier Break Co.in down Ex.M. value 1 2 3 4 5 6 7 1950-51 16.30 16.30 3.36 54.77 0.81 53.96 1951-52 1.43 1.43 1.87 2.67 0.07 2.60 1952-53 2.18 2.18 1.47 3.21 0.11 3.10 1953-54 1.12 1.12 2.28 2.55 0.06 2.49 1954-55 3.71 3.71 1.96 6.90 0.19 6.71 1955.56 6.93 6.93 2.18 15.11 0.35 14.76 1956.57 13.11 13.11 2.35 30.80 0.66 30.14 1957-58 3.39 3.39 1 3.39 0.17 3.22 1958-59 12.95 12.95 1 12.95 0.65 12.30 1959-60 30.76 30.76 1 30.76 1.54 29.22 802 b Deductions Balance Divisor Annual Require- ment 8 9 10 11 53.96 8 6.75 2.60 9 0.29 3.10 10 0.31 2.49 11 0.23 6.71 12 0.56 14.76 13 1.14 30.14 14 2.15 3.22 15 0.21 12.30 15 0.82 29.22 15 1.95 802 c TOTAL ANNUAL, REQUIREMENT FOR OLD AND NEW MACHINERY Old New Total 1957-58 9.57 11.64 21.21 1958-59 additional 0.82 22.03 1959-60 additional 1.95 23.98 803 a Years Machinery Building Total 1957-58 21.21 0.72 21.93 1958-59 22.03 0.77 22.80 1959-60 23.98 0.82 24.80 803 b Figures in lacs National Normal Depre- Balance to be provided ciation allowed during out of profits the year to be deducted 9.10 12.83 9.00 13.80 10.83 13.97 803 c Detailed Calculations of available surplus for the three bonus years Figures in lacs 1957-58 1958-59 1959-60 Gross Profits 28.34 25.36 34.92 Less Notional Normlal Depreciation 9.10 9.00 10.83 19.24 16.36 24.09 Less Income tax 8.18 7.48 7.31 11.06 8.88 16.78 Less Wealth Tax 0.28 0.29 10.78 8.59 16.78 Less return on paid up capital 3.60 3.60 4.35 7.18 4.99 12.43 Less additional provision for rehabilitation for plant, machinery and buildings 12.8313-8013.97 vailable Surplus Nil Nil Nil The, Chartst showing calculations of available surplus for the A three bonus years show that in all these years numbersurplus remains available for distribution of bonus after making provision for rehabilitation. As a result, the appeal by the Company must be allowed and the direction made by the Tribunal for payment of bonus for these three years has to be set aside. In the circumstances of this case, the parties will bear their own companyts. The appeal by the Union is dismissed.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 990 of 1964. Appeal from the judgment and decree dated April 15, 1963 of the Allahabad High Court, Lucknow Bench in First Appeal from Order No. 30 of 1960. C. Misra and C. P. Lal, for the appellant. K. Chatterjee, for respondent No. 1. P. Sinha and P. K. Chatterjee, for respondent No. 2. The Judgment of the Court was delivered by Wanchoo, J. This is an appeal on a certificate granted by the Allahabad High Court and arises in the following circumstances. On May 20, 1965, an agreement was entered into between the appellant and the respondents referring certain differences between them to the arbitration of three persons. On January 19, 1956, an award was made, signed by two out of the three arbitrators as the third arbitrator had refused to sign the award. The award was filed in companyrt on September 7, 1957 and the respondents prayed for a decree in accordance with the award. Notice of filing of the award was issued to the appellant and was served upon him on September 30, 1957. On November 3, 1957, the appellant filed an objection in the nature of a written statement. By this objection the appellant attacked the validity of the award on various grounds. But the objection did number companytain any prayer at the end, number did it indicate what relief the appellant desired, though there were as many as 43 paragraphs therein. When the matter came to be heard in the trial companyrt, the respondents companytended that the so-called objection was in the nature of an application to set aside the award and companytained grounds companying under s. 30 of the Arbitration Act, No. 10 of 1940, hereinafter referred to as the Act . Therefore, as the objection was filed more than 30 days after the numberice was served on the appellant, it was barred by limitation under Art. 158 of the Indian Limitation Act, No. 9 of 1908. The trial companyrt held that the appellants objection was number maintainable, as his remedy was to apply under s. 33 of the Act, if he wanted the award to be set aside on the grounds raised in the objection. As he had number done so and as the objection was itself filed more than 30 days after the service of numberice on him, he was barred from raising any ground for setting aside the award which fell under S. 30 of the Act. The trial companyrt also held that the objection companyld number be treated as an application under s. 33 of the Act in view of the fact that it was beyond 30 days as required by Art. 158 of the Limitation Act. The trial companyrt therefore passed a decree in terms of the award. The appellant then went in appeal to the High Court, and the main question urged there was whether the appellant companyld maintain his objection when he had failed to make an application under s. 33 of the Act for setting aside the award on grounds companytained in the objection. It seems that there were other points. also before the High Court, but the High Court held that if the main question was answered against the appellant it would number be necessary to go into other points. It seems therefore that other points were number pressed before the High Court. The High Court came to the companyclusion that the award companyld number be set aside on grounds which fell under s. 30 of the Act, except on an application under s. 33 of the Act within thirty days of the service of numberice of filing of the award as required by Art. 158 of the Limitation Act. The High Court further held that the objection of the appellant companyld number be treated as an application under s. 33, as, if it was treated as such application, it would be barred by time. The High Court therefore dismissed the appeal, but granted a certificate to the appellant to appeal to this Court. We have heard learned companynsel for the appellant on the main. question raised in the High Court. We may add that learned companynsel wanted to raise other points which were number pressed before the High Court, but we have number permitted him to do so. We are of opinion that this appeal must fail. The Act was passed in 1940 and as the long title shows it is an Act to companysolidate and amend the law relating to arbitration. Before 1940, the law relating to arbitration was mainly companytained in the Second Schedule to the Code of Civil Procedure, which was repealed by the Act which is number a self-contained companye in the matter of arbitration. The scheme of the Act is to divide arbitration into three classes. The first companysists of arbitration without intervention of a companyrt and is companytained in Chap. 11 of the Act which has 17 sections from s. 3 to s. 19. The second companysists of arbitration with intervention of a companyrt where there is numbersuit pending, which is in Chap. III of the Act, and there is only one section s. 20 therein, as sub-s. 5 thereof applies the other provisions companytained in the Act to this type of arbitration also so far as they can be made applicable. The third type of arbitration is companytained in Chap. IV, namely, arbitration in suits. This chapter companytains 5 sections, and s. 25 thereof applies the other provisions of the Act so far as they can be made applicable. Chapter 11 makes various provisions with respect to arbitrations of the first type. Reference may be made to a few which are material for our purpose. Section 5 lays down that the authority of an appointed arbitrator or umpire shall number be revocable except with the leave of the companyrt, unless a companytrary intention is expressed in the arbitration agreement. Section 8 gives power to companyrt to. appoint an arbitrator or umpire in certain circumstances. Section 11 gives power to companyrt to remove an arbitrator or umpire in certain circumstances and s. 12 gives companysequential power to companyrt to appoint persons to fill vacancies which may have arisen. Section 13 provides for powers of the arbitrators and s. 14 provides for the award to be signed and filed. When the award is filed the companyrt has to give numberice to the parties of the filing of the award under s. 14 2 . Under s. 15, the companyrt is given power to modify or companyrect an award and under s. 16 the companyrt can remit the award for reconsideration. Section 17 provides for judgment in terms of the award and reads thus - Where the companyrt sees numbercause to remit award on any of the matters referred to arbitration for reconsideration or to set aside the award, the companyrt shall, after the time for making an application to set aside the award has expired, or such application having been made, after refusing it, proceed to pronounce judgment according to the award, and upon the judgment so pronounced a decree shall follow and numberappeal shall lie from such decree except on the ground that it is in excess of, or number otherwise in accordance with, the award. Section 19 gives power to the companyrt to supersede the arbitration agreement in certain circumstances. This analysis of the relevant provisions of the Act companytained in Chapter 11 which apply mutates mutandis to arbitrations of the other two types shows that the companyrt has to pronounce judgment in accordance with the award if it sees numbercause to remit the award or any of the matters referred to arbitration for reconsideration, or if it sees numbercause to set aside the award. The companyrt has to wait for the time given to a party to make an application for setting aside the award and where such an application has been made the companyrt has to decide it first and if it rejects it the companyrt proceeds to pronounce judgment according to the award. It is clear therefore from s. 17 that an application to set aside the award is companytemplated therein and it is only when numbersuch application has been made within the time allowed or if such an application has been filed and has been rejected that the companyrt proceeds to pronounce judgment in terms of the award. The Act therefore companytemplates the making of an application to set aside an award and the grounds on which such an application can be made are to be found in s. 30. The grounds on which an application can be made for setting aside the award are- a that an arbitrator or umpire has misconducted himself or the proceedings, b that an award has been made after the issue of an order by the companyrt superseding the arbitration or after arbitration proceedings have be-come invalid under s. 35, or c that an award has been improperly procured or is otherwise invalid. These are the only grounds on which an award cat be set aside under s. 30 and it will be seen that if a party wants an award to be set aside on any of these grounds it has to make an application. Thus any party wishing to have an award set aside on the ground that it was improperly procured or otherwise invalid has to make an application. We may also refer to s. 32 which lays down that numberwithstanding any law for the time being in force, numbersuit shall lie on any ground whatsoever for a decision upon the existence, effect or validity of an arbitration agreement or award, number shall any arbitration agreement or award be set aside, amended, modified or in any way affected otherwise than as provided in this Act It is clear therefore from the scheme of the Act that it a party wants an award to be set aside on any of the grounds mentioned in S. 30 it must apply within 30 days of the date of service of numberice of filing of the award as provided in Art. 158 of the Limitation Act. If numbersuch application is made the award cannot be set aside on any of the grounds specified in s. 30 of the Act. It may be companyceded that there is numberspecial form prescribed for making such an application and in an appropriate case an objection of the type made in this case may be treated as such an application, if it is filed within the period of limitation. But if an objection like this has been filed after the period of limitation it cannot be treated as an application to set aside the award, for if it is so treated it will be barred by limitation. It is number in dispute in the present case that the objections raised by the appellant were companyered by S. 30 of the Act, and though the appellant did number pray for setting aside the award in his objection that was what he really wanted the companyrt to do after hearing his objection. As in the present case the objection was filed more than 30 days after the numberice it companyld number be treated as an application for setting the award, for it would then be barred by limitation. The position thus is that in the present case there was numberapplication to set aside the award as grounds mentioned in S. 30 within the period of limitation and therefore the companyrt companyld number set aside the award on those grounds. There can be numberdoubt on the scheme of the Act that any objection even in the nature of a written-statement which falls under s. 30 cannot be companysidered by the companyrt unless such an objection is made within the period of limitation namely, 30 days , though if such an objection is made within limitation that objection may in appropriate cases be treated as an application for setting aside the award. Learned companynsel for the appellant however urges that S. 17 gives power to the companyrt to set aside the award and that such power can be exercised even where an objection in the form of a written statement has been made more than 30 days after the service of the numberice of the filing of the award as the companyrt can do so suo motu.He relies in this companynection on Hastimal Dalichand Bora v. Hiralal Motichand Mutha 1 and Saha Co. v. Ishar Singh Kripal Singh 2 . Assuming that the companyrt has power to set aside the award suo motu, we are of opinion that power cannot be exercised to set aside an award on grounds which fall under s. 30 of the Act, if taken in an objection petition filed more than 30 days after service of numberice of filing of the award, for if that were so the limitation provided under Art. 158 of the Limitation Act would be companypletely negatived. The two cases on which the appellant relies do number in our opinion support him. In Hastimars case 1 it was A.I.R. 1954 Bom. 243. A.I.R. 1956 Cal. 321. observed that if the award directs a party to do an act which is prohibited by law or if it is otherwise patently illegal or void it would be open to the companyrt to companysider this patent defect in the award suo motu, and when the companyrt acts suo motu numberquestion of limitation prescribed by Art. 158 can arise. These observations only show that the companyrt can act suo motu in certain circumstances which do number fall within s. 30 of the Act. Saha Co.s case 1 was a decision of five Judges by a majority of 3 2 and the majority judgment is against the appellant. The minority judgment certainly takes the view that the number-existence or invalidity of an arbitration agreement and an order of reference to arbitration may be raised after the period of limitation for the purpose of setting aside an award because they are number grounds for setting aside the award under s. 30. It is number necessary in the present case to resolve the companyflict between the majority and the minority Judges in Saha Co.s case 1 , for even the minority judgment shows that it is only where the grounds are number those falling within s. 30, that the award may be set aside on an objection made beyond the period of limitation, even though numberapplication has been made for setting aside the award within the period of limitation. Clearly therefore where an objection as in the present case raises grounds which fall squarely within s. 30 of the Act that objection cannot be heard by the companyrt and cannot be treated as an application for setting aside the award unless it is made within the period of limitation. The Saha Co.s case - therefore also does number help the appellant. Learned companynsel for the appellant also relies on Mohan Das Kessumal 2 . In that case the objection which was made more than 30 days after the service of numberice was that the award had been filed by a person number authorised by the arbitrator to do so.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 87 of 1966. Appeal by special leave from the judgment and order dated November 20, 1963 of the Bombay High Court in Special Civil Application No. 1886 of 1963. It. Gokhale and R. Gopalakrishnan, for the appellant. The respondent did number appear. The Judgment of the Court was delivered by Bachawat, J. On March 19, 1963 respondent No. 1 on behalf of 36 employees of the Lonand Grampanchayat applied to the Authority appointed under s. 20 1 of the. Minimum Wages Act, 1948 for a direction upon the Grampanchayat to pay to the employees overtime wages and damages. A number of employees claimed overtime wages from October 23, 1960 for a period of two years two months, and nine days. One employee claimed wages for a period of seven years and nine months, one claimed wages for six years and ten months and another claimed wages for three years. By an order dated September 18, 1963 the Authority held that the application should be entertained in respect of the claims for the period subsequent to January 1, 1961 as the employees had sufficient cause for number making the application within the prescribed period of six months. A petition challenging this order under Art. 227 of the Constitution was summarily dismissed by the Bombay High Court. From the order of the High Court, the present appeal has been filed by special leave. An application for a direction on the employer to pay minimum wages and other amounts payable under the Minimum Wages Act may be made under s. 20 2 of the Act to the Authority appointed under s. 20 1 . The first proviso to s. 20 2 requires that every such application shall be presented within six months from the, date on which the minimum wages or other amount became payable The second proviso to s. 20 2 is in these terms Provided further that any application may be admitted after the said period of six months when the applicant satisfies the Authority that he had sufficient cause for number making the application within such period. The Authority has a discretion to companydone the delay in pre- senting the application provided sufficient cause for the entire delay is shown to its satisfaction. This discretion like other judicial discretion must be exercised with vigilance and circumspection I according to justice, companymonsense, and sound judgment. The discretion is to know through law what is just, see Keighleys case 1 . The wording of the second proviso is similar to the provisions, of s. 5 of the Indian Limitation Act. In Krishna v. Chathappan 2 the Madras High Court indicated in the following passage how the discretion under s. 5 should be exercised We think that section 5 gives the Courts a discretion which in respect of jurisdiction is to. be exercised in the way in which judicial power and discretion ought to be 1 10 Cokes Rep. 139, 14077 E. R. 11 34, 1136. L9Sup CI/67- 5 I. L. R. 13 Mad. 269- 7 76 exercised upon principles which are well understood the words sufficient cause receiving a liberal companystruction so as to advance substantial justice when numbernegli- gence number inaction number want of bona fides is imputable to the appellant. This decision received-the approval, of this Court in Dinabandhu Sahu v. Jadumoni Mangaraj and others 1 and Ramlal, Motilal and Chhotetal v. Rewa Coalfields Ltd. 2 . The words sufficient cause in the second proviso to s. 20 2 should receive a similar liberal companystruction. No appeal lies from an order of the Authority, under s. 20. But the High Court is vested with the power of judicial superintendence over the tribunal under Art. 227 of the Constitution. This power is number,greater than the power under Art. 226 and is limited to seeing that the tribunal functions within the limits of its authority, see Nagendra Nath Bora and another v. The Commissioner of Hills Division and Appeals, Assam, and others 3 . The High Court will number review the discretion of the Authority judicially exercised, but it- may interfere if the exercise of the discretion is capricious or perverse or ultra vires. In Sitaram Ramcharan, etc. v. M. N. Nagarshana and others 4 this Court held that a finding of fact by the authority under the similarly worded second proviso to s. 15 2 of the Payment of Wages Act 1936 companyld number be challenged in a petition under Art. 227. The High Court may refuse to interfere. ,under Art. 227 unless there is grave miscarriage age of justice. In the, present case, the Authority found that since January 2, 1961 the employees were making companyplaints to the government authorities,regarding number-payment of overtime wages. On January 2, 1961 the employees wrote to the Inspector, Minimum Wages, government labour office, Sangli, companyplaining of overtime work and asking for directions on the appellant to companyply with the provisions of the Minimum Wages Act. A reminder was sent to him on January 11, 1961. On January 18, 1961 the Inspector wrote that the matter was being followed up. On April 22, 1961 the Inspector visited Lonand and directed the appellant to companyply with the provisions of the Minimum Wages Act and the rules made -thereunder. On April 26, 1961 the Inspector companymunicated this direction to the employees. On January 1, 1962 the employees lodged a companyplaint of- overtime work with the Commissioner, Poona Division, and asked for a direction for payment of the arrears of overtime wages. On January 3, 1962 the Commissioner wrote to the employees that the matter was receiving attention and their application had been sent to the, Collector of Satara for disposal. Later in August September 1962 and early 1963-the 1 1955 1 S. C. R. 140, 146. 3 1958 S. C. R. 1240, 1272. 2 1962 2 S. C. R. 762, 767. 4 1960 1 S. C. R. 875, 884. Block Development Officer came to Lonand and made inquiries. The. revenue officers appointed as inspectors under the government numberification dated May 4,,1955 are under the administrative companytrol of Commissioner and Collector. The inspectors have numberpower to give relief under s. 20 2 but they have large powers of supervision and companytrol under s. 19 of the Act. The employees relied upon the assurances of the inspectors and their superiors that proper steps would, be taken for the remedy of their grievances and relying upon those assurances, they refrained from taking steps under s 20 2 of the Minimum.Wages Act Having regard to all the circumstances of the case, the employees were number guilty of inaction or negligence and the entire delay in presenting the application was due to their honest though mistaken belief that the relief of, overtime wages would be granted to them through the intervention of the inspectors and their superior officers. It is number shown that in companydoning the delay the Authority acted, arbitrarily or capriciously or in excess of its jurisdiction or that it companymitted any error apparent on the face of the record. In the application under 20 2 some of the employees claimed overtime wages for periods prior to January 1, 1961. The Authority declined to companydone the delay in respect of claims for the period prior to January 1, 1961. On a careful companysideration of the relevant materials, the Authority companydoned the delay in respect of claims subsequent to January 1, 1961 only. The Court cannot interfere merely because it might take a different view of the facts and exercise the discretion differently. it is number shown that the impugned order led to grave miscarriage of justice. The High Court refused to interfere under Art. 227. We think that this is number a fit case for interference by us under Art. 136. The appeal is dismissed.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 1040 of 1965. Appeal by special leave from the judgment and order dated November 11, 1963 of the Allahabad High Court in First Appeal No. 60 of 1960. B. Agarwala and 0. P. Rana, for the appellant. P. Goyal and Raghunath Singh, for the respondents. The Judgment of the Court was delivered by Hegde, J. This appeal by the Collector of Varanasi by special leave under Art. 136 of the Constitution, is directed against the decision dated 11-11-1963 of the High Court of Judicature at Allahabad, in First Appeal No. 60 of 1960 on its file, which in its turn arose from the award made by Shri S. B. Malik, District Judge, Varanasi, in certain land acquisition proceedings under cl. b of sub-s. 1 of s . 19 of the Defence of India Act, 1939 to be hereinafter referred to as the Act . Before companysidering the companytentions urged on behalf of the parties, it is necessary to set out the salient facts. For the purpose of companystructing the Babatpur aerodrome near Varanasi, the Government acquired in the year 1946 about 500 acres of land. Compensation in respect of most of the lands acquired was settled by agreement. But in respect of the lands with which we are companycerned in this appeal, 48.01 acres in extent, numbersettlement was arrived at. Therefore, the question of companypensation in respect of those lands was referred to the arbitration of Shri S. B. Malik under cl. b of sub-s. 1 of s. 19 of the Act. In view of s. 19 1 e , the claimants were entitled to get as companypensation the market value of those lands as on the date of acquisition. Before the arbitrator as well as the High Court, the parties were agreed that on the material on the record, the market value in question had to be fixed either on the basis of the sale deeds produced by the claimants or by capitalising the annual profits accruing from those lands. The arbitrator rejected the sale deeds produced before him. He adopted the method of capitalising the annual profits. On the question of annual profits also he rejected the evidence adduced on behalf of the claimants. He determined the same on the basis of the revenue records for Fasli 1355 read with the evidence of the Naib Tehsildar, Jawal Prasad. Aggrieved by the decision of the arbitrator, the claimants went up in appeal to the High Court of Allahabad under s. 19 1 f . The High Court differed from the arbitrator as to the value to be attached to the sale deeds produced. It opined that the sale deeds produced were reliable and that they evidenced genuine transactions. The High Court fixed the companypensation payable on the basis of Exh. A 42 dated 3-4-1951. The arbitrator had fixed the companypensation at Rs. 26,454-12-0. The High Court enhanced the same to Rs. 90,446-3-0. It is against that decision that the Collector of Varanasi has filed this appeal after obtaining special leave from this Court under Art. 186. Shri Goyal, learned companynsel for the respondents has raised the preliminary objection that numberspecial leave companyld have been granted by this Court under Art. 136 as the judgment appealed against was neither that of a companyrt number of a tribunal. According to him, the High Court while acting under s. 19 1 f was a persona designata and number a companyrt or a tribunal. His argument on this question proceeded thus Sec. 19 1 b of the Act empowers the Central Government to appoint as arbitrator a person qualified to be appointed a judge of the High Court Shri Malik who possessed the required qualifications was appointed by the Central Government to act as an arbitrator it is true that Shri Malik was District Judge of Varanasi at the time of his appointment, but in law it was number necessary that the person appointed should have been a District Judge, and much less the District Judge of any particular District therefore, Shri Malik acted as a designated person and number as a companyrt hence, the award given by him cannot be companysidered either as a judgment or as a decree or order it was merely an award when the matter was taken up in appeal to the High Court, the proceedings did number cease to be arbitration proceedings its original character companytinued even before the High Court therefore, the decision made by the High Court should also be companysidered as an award and further the High Court in making that award should be companysidered as having functioned as an arbitrator. In this case, it is number necessary to go into the question whether the decision of the High Court is a decree, judgment or final order. Even according to Shri Goyal, the decision of the High Court is a determination as companytemplated in Art. 136. That position he had to companycede in. view of the decision of this Court in Engineering Mazdoor Sabha and another v. The Hind Cycles Ltd. 1 . In support of his companytention that the High Court while acting under s. 19 1 f was number functioning as a companyrt, he placed strong reliance on the decision of this Court in Hanskumar Kishanchand v. Union of India 2 . That case dealt with two cross appeals arising from a decision of the Nagpur High Court under s. 19 1 f . Those appeals were brought on the strength of the certificates issued 1 1963 Supp. 1 S.C.R. 625 2 1959 S.C.R. 1177. by the High Court on 25th August 1949 under ss. 109 and 110 of the Civil Procedure Code. In those cases it was company- tended that the appeals were number maintainable for two reasons viz. a the decision appealed against is neither a decree judgment or final order and b the decision in question was number that of a companyrt. This Court upheld both these companytentions. On the second ground taken, Venkatarama Aiyar, J., who spoke for the Court, observed thus Under the law numberappeal would have lain to the High Court against the decision of such an arbitrator. Thus, the provision for appeal to the High Court under s. 19 1 f can only be companystrued as a reference to, it as an authority designated and number as a companyrt. If the companyclusion that the appeal under s. 19 1 f is only a reference to an authority designated and number an appeal to a companyrt is companyrect then there is numberdoubt that this Court companyld number have granted special leave under Art. 136. Therefore the real question is whether that decision lays down the law companyrectly when it stated that a High Court while acting under s. 19 1 f is number functioning as a companyrt. There was numberdispute that the arbitrator appointed under s. 19 1 b was number a companyrt. The fact that he was the District Judge, Varanasi, was merely a companyncidence. There was numberneed to appoint the District Judge of Varanasi or any other District Judge as an arbitrator under that provision. Sec. 19 1 f provides for an appeal against the order of the arbitrator. The section reads An appeal shall lie to the High Court against an award of an arbitrator excepting in cases where the amount thereof does number exceed an amount prescribed, in this behalf by rule made by the Central Government. It is number in dispute, that in the instant case, the amount fixed by the arbitrator exceeded the amount prescribed by the rules and therefore the claimants had a right to go up in appeal to the High Court. We were informed that neither the Act number the rules framed thereunder, prescribe any special procedure for the disposal of appeals under s. 19 1 f . Appeals under that provision have to be disposed of just in the same manner as other appeals to the High Court. Obviously after the appeal had reached the High Court it had to be determined according to the rule of practice and procedure of that Court. The rule is well settled that when a statute directs that an appeal shall lie to a companyrt already established, then that appeal must be regulated by the practice and procedure of that companyrt. This rule was stated by Viscount Haldane L. C. in National Telephone Co., Ltd. v. Postmaster-General 1 thus When a question is stated to be referred to an established Court without more, it, in my opinion, imports 1 1913 A.C. 546. that the ordinary incidents of the procedure of that Court are to attach, and also that any general right of appeal from its decision likewise attaches. This statement of the law was accepted as companyrect by this Court in National Sewing Thread Co., Ltd., v. James Chadwick and Bros. Ltd. 1 . It may be numbered that the appeal provided in s. 19 1 f is an appeal to the High Court and number to any Judge of the High Court. Broadly speaking, Court is a place where justice is judicially administered. In Associated Cement Companies Ltd. v. P. N. Sharma and another 2 Gajendragadkar, C.J., speaking for the majority observed The expression companyrt in the companytext denotes a tribunal companystituted by the State as a part of the ordinary hierarchy of companyrts which are invested with the States inherent judicial powers. A sovereign State discharges legislative, executive and judicial functions and can legitimately claim companyresponding powers which are described as legislative, executive and judicial powers. Under our Constitution, the judicial functions and powers of the State are primarily companyferred on the ordinary companyrts which have been companystituted under its relevant provisions. The Constitution recognises a hierarchy of companyrts and to their adjudication are numbermally entrusted all disputes between citizens and citizens as well as between the citizens and the State. These companyrts can be described as ordinary companyrts of civil judicature. They are governed by their prescribed rules of procedure and they deal with questions of fact and law raised before them by adopting a process which is described as judicial process. The powers which these companyrts exercise., are judicial powers, the functions they discharge are judicial functions and the decisions they reach and pronounce are judicial decisions. The hierarchy of companyrts in this companyntry is an organ of the State through which its judicial power is primarily exercised. The fact that the arbitrator appointed under s. 19 1 b is either a designated person or a tribunal-as to whether he is a person designated or a tribunal we express numberopinion--does number in any way bear on the question whether the High Court referred to under s. 19 1 f is a companyrt or number. Our statutes are full of instances where appeals or revisions to companyrts are provided as against the decisions of designated persons and tribunals. See for example, Advocates Act, Trade Marks Act. Reference in this companynection may usefully be made to the decisions in National 1 1953 S.C.R. 1028, 2 1965 2 S.C.R. 366, Sewing Thread Co., Ltd. v. James Chadwick and Bros., Ltd. 1 and the Secretary of State for India in Council v. Chelikani Rama Rao and others 2 Prima facie it appears incongruous to hold that the High Court is number a companyrt. The High Court of a State is at the apex of the States judicial system. It is a companyrt of record. It is difficult to think of a High Court as anything other than a companyrt. We are unaware of any judicial power having been entrusted to the High Court except as a companyrt. Whenever it decides or determines any dispute that companyes before it, it invariably does so as a companyrt. That apart, when s. 19 1 f specifically says that an appeal against the order of an arbitrator lies to the High Court, we see numberjustification to think that the legislature said something which it did number mean. We may number turn our attention to the decision of this Court in Hanskumar Kishanchand v. Union of India 3 on which, as mentioned earlier, Shri Goyal placed a great deal of reliance in support of his preliminary objection. The principal question that arose for decision in that case was whether the decision rendered by the High Court under S. 19 1 f was a judgment, decree or final order within the meaning of those words found in S. 109 of the Code of Civil Procedure. The Court accepted the companytention of the Solicitor General appearing for the respondent, the Union of India, that it was number a judgment, decree or final order, and that being so, numbercertificate under ss. 109 and II 0 of the Code of Civil Procedure to appeal to the Federal Court companyld have been given by the High Court. In that case this Court was number called upon to companysider the scope of Art. 136. Therefore, it did number go into the question whether the decision appealed against companyld be companysidered as a determination falling within the scope of Art. 136. In arriving at the companyclusion that the decision in question is number a judgment, decree or final order, this Court relied on the decisions in Rangoon Botatoung Co. v. The Collector, Rangoon 4 , Special Officer, Salsette Building Sites v. Dossabhai Bazonji Motiwala 5 . Manavikraman Tirumalpad v. Collector of Nilgris 6 , and Secretary of State for India in Council v. Hindustan Co-operative Insurance Society Limited 7 . The effect of those decisions is summed up in that very judgment at pp. 1186 and 1187, and this is how it is put The law as laid down in the above authorities may thus be summed up It is number every decision given by a Court that companyld be said to be a judgment, decree or order within the provisions of the Code of Civil Procedure or the Letters Patent. Whether it is so or number will depend on whether the proceeding in which it was given came before 1 1966 S.C.R. 1028. 2 43 I.A. 192 3 1959 S.C.R. 1177. 4 39 I.A. 197 5 17 C.W.N. 421. 6 I.L.R. 41 Mad. 943. 7 58 IA. 259. the Court in its numbermal civil jurisdiction, or dehors it as a persona designata. Where the dispute is referred to the Court for determination by way of arbitration as in Rangoon Botatoung Company v. Collector, Rangoon 39 I.A 197 , or where it companyes by way of appeal against what is statedly an award as in The Special Officer Salsette Building Sites Dossabhai Bezonji ILR 37 Bom. 506 , Manavikraman Tirumalpad v. The Collector of the Nilgris ILR 41 Mad. 943 , and the Secretary of State for India in Council v. Hindustan Co-operative Insurance Society Limited 58 IA 250 , then the decision is number a judgment, decree or order under either the Code of Civil Procedure or the Letters Patent. The decisions relied on by this Court merely lay down the proposition that the decision given by the High Court in an appeal against an award is neither a decree, judgment or final order. None of the aforementioned decisions lays down the proposition that the High Court while exercising its appellate power did number function as a companyrt. The observation in this Courts judgment that the provision for appeal to the High Court under s. 19 1 f can only be companystrued as reference to it as an authority designated and number as a companyrt, does number receive any support from those decisions. Nor do we find any sound basis for that companyclusion. With respect to the learned Judges who decided that case, we are unable to agree with that companyclusion. In our judgment, while acting under s. 19 1 f , the High Court functions as a companyrt and number as a designated person. Our companyclusion in this regard receives support from the decision of the Judicial Committee in Secretary of State for India in Council v. Chelikani Rama Rao 1 and others referred to earlier. Dealing with the ratio of its decision in Rangoon Botatoung Co. case 2 , this is what Lord Shaw of Dunfermline observed at p. 198 of the report It was urged that the case of Rangoon Botatoung Co. v. The Collector, Rangoon 2 enounced a principle which formed a precedent for excluding all appeal from the decision of the District Court in such cases as the pre- sent. Their Lordships do number think that that is so. In the Rangoon Case a certain award had been made by the Collector under the Land Acquisition Act. This award was affirmed by the Court, which under the Act meant a principal civil Court of original jurisdiction. Two judges sat as the Court and also as the High Court to which the appeal is given from the award of the Court. The proceedings were however, from beginning to end ostensibly and actually arbitration proceedings. In view of the nature of the question to be tried and the pro- 1 43 I.A. 192. 2 39 I.A. 197. visions of the particular statute, it was held that there was numberright to carry an award made in an arbitration as to the value of land further than to the Courts specifically set up by the statute for the determination of that value. We have already companye to the companyclusion that the decision rendered by the High Court under s. 19 1 f is a determination. Hence, it was within the companypetence of this Court to grant special leave under Art. 136. But then it was urged on behalf of the respondents that in view of r. 2, 0.13 of the Rules of this Court, as it stood at the relevant point of time, this Court companyld number have granted special leave as the appellant had number applied for necessary certificate under Art. 133 of the Constitution. In support of this companytention, reliance was placed on the decision of this Court in Management of the Hindustan Commercial Bank Ltd., Kanpur v. Bhagwan Dass 1 . Under Art. 133, a certificate can be asked for filing an appeal against the judgment, decree or final order of a High Court. As seen earlier, this Court ruled in Hanskumar Kishanchand v. Union of India 2 that the decision rendered by the High Court under s. 19 1 f is number a decree, judgment or final order. Hence, the provisions of Art. 133 are number attracted to the present case. Consequently, this case is taken outside the scope of the aforementioned r. 2 of Order 13. As a measure of abundant caution, the appellant has filed CMP 2325 of 1967, praying that this Court may be pleased to excuse him from companypliance with the requirements of 0.13, r. 2. In view of the decision of this Court in Hanskumar Kishanchand v. Union of India 2 , numberuseful purpose would have been served by the appellants applying for a certificate under Art. Hence, even if we had companye to the companyclusion that the case falls within the scope of 0. 1 3, r. 2, we would number have had any hesitation in exempting the appellant from companypliance with the requirement of that rule. This takes us to the merits of the case. The grievance of the appellant is that the High Court erred in law in awarding companypensation on the basis of Exh. 42. The sale evidenced by that deed was effected in the year 1951, nearly five years after the acquisitions with which we are companycerned in this case were effected. The sale in question cannot be companysidered as a companytemporaneous transaction. The arbitrator has found that after the close of the second world war, the price of landed property had gone up steeply. This finding does number appear to have been challenged before the High Court. Further, under the deed in question, the land sold was .26 acres in extent. The price fetched by such a tiny bit of land is of numberassistance in determining the value of the lands acquired. On behalf of the respondents, we were asked to determine the companypensation of the lands acquired on the basis of sale deed Exh. 35 which relates to a sale that took place on 10-6-1947 1 1965 2 S.C.R. 265. 2 1959 S.C.R. 1177. which according to the respondents can be companysidered as a companytemporaneous sale. We are unable to accept this companytention. Exh. 35 relates to the sale of land measuring .28 acres. The vendee under that deed is one of the claimants. There is numberevidence as to the nature of the land sold under that deed. Under these circumstances, very little value can be attached to that document. We are also of the opinion that numbere of the sale deeds produced in this case can afford any assistance in determining the companypensation payable to the respondents. They do number evidence sales of lands similar to the acquired lands, at about the time of the acquisition. The High Court did number address itself to the oral evidence adduced in this case for finding out the annual profits for the purpose of capitalisation. It rejected the evidence of the Naib- Tehsildar. For reasons number disclosed. the village papers of 1354 fasli were number produced by the appellant. On the other hand, the village papers of 1355 fasli were produced. In the first place, those records do number show the rent payable in the year in which the acquisitions took place. The acquisitions in question were made in fasli 1354. For the reasons mentioned in its judgment, the High Court felt un- able to place reliance on the village papers of fasli 1355. We do number think that this Court should scan the evidence afresh for determining the just companypensation payable. to the respondents. That question has to be gone into by the fact finding companyrt. All that we need say is that the High Court was number right in determining the companypensation payable to the respondents on the basis of Exh. 42. Hence its decision cannot be sustained. For the reasons mentioned above, we allow this appeal and set aside the decision of the High Court and remit the case back to that Court for disposal according to law. Before deciding the case afresh the High Court will permit the parties, to adduce additional evidence on the question of companypensation in particular, they will be allowed to produce and prove companytemporaneous sale deeds and the revenue records relating to fasli 1354. Costs of this appeal shall be companyts in the cause.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 1128 of 1965. Appeal by special leave from the judgment and order dated December 17, 1962 of the Bombay High Court in Letters Patent Appeal No. 29 of 1960. T. Desai, R. Ganapathy Iyer and S. P. Nayyar, for the appellants. Hans Raj Sawhney, P. C. Bhartari and 0. C. Mathur, for the respondents. The Judgment of the Court was delivered by Ramaswami, J. This appeal is brought, by special leave, from the judgment of the Bombay High Court dated December 17, 1962 in Letters Patent Appeal No. 29 of 1960. Respondent No. 2, the firm of Chandmal Manmal was in debted to the 1st respondent, Central Bank of India, Aurangabad branch. On March 11, 1955 the first respondent filed a suit being Civil Suit No. 28/1 of 1955 against the second respondent for recovering a sum of Rs. 14,541/- and odd in the Court of Subordinate Judge at Aurangabad. On the application of the first respondent an order for interim injunction was passed in respect of certain properties belonging to the second respondent. The Court had ordered the second respondent to furnish security for the amount of the decree which may be passed against the firm in the suit. On April 28, 1955 Jogilal Mulchand, one of the partners of the second respondent furnished security by creating a charge on his immovable property, which was a house at Aurangabad. After the security bond was furnished, the attachment was released. The security bond furnished by Jogilal Mulchand read as follows I, the Defendant No. 2 therefore stand as a surety and declare that if the Honble Court decides the suit against the Defendants, he will abide by every order passed by the Court and if he fails to do so, then I. defendant No. 2 stand as surety to the extent of Rs. 20,000/- Rupees Twenty thousand in O.S. companyns and declare that I shall pay the amount of security into Court and for fulfilling the same I create a charge on my one pucca two storied house possessed by me known as Chandi Posh bearing No. 167 situate at Kasba and Taluka Vijapur, District Aurangabad of the value of Rs. 25,000/ If I fail to pay the amount of the security, the Court will then be entitled to recover the amount of the security from the property hereby charged On April 30, 1955 the Subordinate Judge granted a decree against the 2nd respondent for a sum of Rs. 14,541/- and odd. The 1st respondent filed an application for execution of the decree Linder s. 145 of the Civil Procedure Code. In the execution of the decree the house which was charged under the security bond was sold and one Girdhardas purchased it in auction sale which was companyfirmed by the Court on August 14, 1958 and the sale proceeds thereof were deposited by the said Girdhardas in the executing Court. On August 17, 1958 the Sales Tax Officer, Aurangabad Circle wrote a letter to the District Judge, Aurangabad pointing out that a sum of Rs. 9,672/- and odd was due to the Government from the second respondent on account of arrears of sales-tax for the years 1950-51 to 1955-56. On September 23, 1958 the District Judge sent a letter to the Subordinate Judge asking him number to pay the sale proceeds of the house to the decree bolder i.e., the first respondent. Subsequently, the Collector of Aurangabad made an order on November 20, 1958, distraining the amount of Rs. 9,672/- out of the sale proceeds under s. 119 of the Hyderabad Land Revenue Act Hyd. Act VIII of 1317F. . The order of the Collector stated as follows Sanction is therefore accorded under Section 119 of Hyderabad Land Revenue Act to attach the amount of Rs. 9,672-1-0 out of the sale proceeds realised from the auction sale of the defaulter Shri Chandmals property and deposited with the Court of Sub-Judge, Aurangabad, towards satisfaction of the Decree No. 28/1 of 1955 passed against Shri Chandmal Manmal. The amount should be remitted to the Sales Tax Officer, Aurangabad. Thereupon the 1st respondent made an application to the trial companyrt challenging the validity of the order of the Collector. The Subordinate Judge held that the Civil Court had numberjurisdiction to set aside, revise or modify the order of the Collector and it companyld be done only by the Superior Revenue Authorities. From the order of the Subordinate Judge the 1st respondent preferred an appeal being First Appeal No. 341 of 1959 in the Bombay High Court The appeal was heard by Naik, J. who by his judgment dated June 22, 1960 held that in view of the provisions companytained in ss. 104 and It 9 of the Hyderabad Land Revenue Act the Gov- ernment was entitled to priority for the arrears of sales- tax due from the second respondent over the claim of the 1st respondent The learned Judge accordingly dismissed the First Appeal. From the judgment of Naik, J. the 1st respondent took the matter in appeal under the Letters Patent. A Division Bench companysisting of Patel and K. K. Desai, JJ. allowed the appeal by their judgment dated December 17, 1962 holding that S. 119 of the Hyderabad Land Revenue Act applied only to property which was in the custody and possession of the judgment-debtor and number in the custody or possession of a Court. It was observed by the Division Bench that the provisions of the Hyderabad Land Revenue Act companytained in ss. 104, 116, 117 and 144 made it abundantly clear that the priority applied only in respect of land revenue and number in respect of other taxes. It was further held that the 1st respondent as a decree-holder had a prior charge as the quality of his debt was number the same as that of the debt due to the Government and therefore in respect of the sales-fax, the State bad numberpriority. The first question to be companysidered in this appeal is whether the order of distraint dated November 20, 1958 made by the Collector of Aurangabad is legally valid. The order of the Collector was made under S. 13 2 of the Hyderabad General Sales Tax Act read with ss. 116 and 119 of the Hyderabad Land Revenue Act. Section 13 of the Hyderabad General Sales Tax Act Hyd. Act No. XIV of 1950 provides as follows 13. 1 The tax assessed under this Act shall be paid in such manner, in such instalments, if any, and within such time, number being less than fifteen days from the date of service of the numbericed of assessment, as may be specified in such numberice. In default of such payment, a penalty number exceeding the tax remaining unpaid may be imposed and the total amount due, including the penalty, if any, may be recovered as if it were an arrear of land revenue. Section 116 of the Hyderabad Land Revenue Act Hyderabad Act VIII of 1317 F states An arrear of land revenue may be recovered by the following measures and as far as possible, the measures shall be employed in the order mentioned below - a by issuing a numberice to the defaulter under section 11.8 b by distraint and sale of the defaulters movable property under section 119 c by distraint and sale of the defaulters immovable property under section 120 d by arrest and detention of the defaulter under section 122 e by forfeiture of the right of occupancy in respect of which the arrear is due under section 124 f by temporary attachment of a number-khalsa village or part of such village in respect of which the arrear is due under section 125. Section 119 of the same Act is to the following effect The Tahsildar may distrain and sell the defaulters movable property. Such distraint shall be made by officers or clerks appointed by him for this work. The High Court has taken the view that s. 119 can only apply to property which is in the custody and possession of the judgmentdebtor and number in the custody and possession of a Court. In our opinion, the companystruction put by the High Court on the language of s. 119 of the Hyderabad Land Revenue Act is number companyrect and is number warranted by the language of the section or the companytext in which it is placed. The section empowers the Tahsildar to distrain and sell the defaulters movable property and such distraint shall be made by officers or clerks appointed by him for this work. The language of the section is general and there is numberreason why any restriction should be put on the power of distraint companyferred upon the Tahsildar with regard to the defaulters movable property. In the present case, the Collector of Aurangabad sent the order of distraint to the Subordinate Judge requesting him to remit to the Sales Tax Officer the amount of Rs. 9,672/- out of the amount of sale proceeds deposited in his Court. We are of the opinion that the procedure followed by the Collector is justified by the provision of s. 119 and there is numberhing in the language or companytext of the section which prohibits tile Collector from making an order of distraint with regard to tile movable property in the custody and possession of a Court. We accordingly reject the argument of respondent No. 1 on this aspect of the case. We proceed to companysider the next question arising in this appeal, viz., whether the debt due to the Government in respect of arrears of sales-tax has priority over the dues of respondent No. 1. It appears that the sales-tax was due for the years 1950 - 51 to 1955-56, i.e., for a period of six years. It was submitted on behalf of the appellants that since s. 13 2 of the Hyderabad General Sales Tax Act makes a provision for recovery of the sales-tax due as arrears of land revenue and since priority as to the land revenue is provided under the Hyderabad Land Revenue Act, the arrears of sales-tax also must be granted priority over other demands whether in respect of debts or mortgage or based on a decree or attachment of a Court. The argument of the appellants is based upon ss. 104, 116, 119 and 144 of the Hyderabad Land Revenue Act. Section 104 provides as follows .lm15 The demand on any land, for its land revenue shall have priority over other demands whether in respect of debts or mortgage or based on a decree of or attachment by a Court, and if the title to any land on which such Government demand is due is transferred, such land or its transferer shall number be discharged from such demand. If the demand for land revenue which cannot be recovered from the title to or existing produce of that land is due from a person, the liability for the payment of the land revenue shall have precedence over debt or decree of a Court also on his property other than the land on which the demand is due provided that such property before it is forfeited for recovery of the said demand, is number sold or mortgaged or given as a gift or otherwise -transferred or hypothecated or attached. Section 144 is to the following effect All the Government sums under the following heads may be recovered under the provisions of this Chapter Land revenue. Quit-rent. Nazrana. Peshkesh. Taxes. Local cess. Fine and penalties. Income from lands. Rusum. Fees. Charges. Penal interest. Lease money. Moneys recoverable from sureties. Taccavi loans. All sums in respects of which provision has been made in this Act or in any other Act that they be recovered as arrears of land revenue. Section 144 enumerates the nature of taxes in respect of which the provision under the Land Revenue Act companyld be adopted for recovery. But the language of s. 104 makes it clear that the priority specified in that section applies only in respect of land evenue and number in respect of other taxes. In respect of other Axes, we companysider that only the procedure for recovery under s. 16 applies and number the substantive, law of -priority under s. 104 of he Land Revenue, Act. In our opinion, Counsel for the appelants has number been able to make good his argument on this aspect of the case. We pass on to companysider the next question arising in this case, lamely, whether the appellants are entitled to claim priority towards payment of sales-tax according to the Common Law doctrine of Priority of Crown debts quite apart from the provisions of the Hyderabad Land Revenue Act. The Common Law doctrine was evolved in the English Law as part of the Crown prerogative. which is described by Halsbury as follows - The royal prerogative may be defined as being that pre-eminence which the Sovereign enjoys over and above all other persons by virtue of the companymon law, but out of its ordinary companyrse, in right of her regal dignity, and companyprehends all the special dignities, liberties, privileges, powers and royalties allowed by the companymon law to the Crown of England. The question about the applicability of the priority of Crown debts was companysidered by the Bombay High Court in 1868 in Secretary of State in Council for India v. Bombay Landing Shipping Co. Limited 1 , in which it was held that a judgment debt due to the Crown was in Bombay entitled to the same precedence in execution as a like judgment debt in England, if there is numberspecial legislative provision affecting that right in the particular case. The same view has been taken by the Bombay High Court in a later case-Bank of India v. John Bowman 2 -in which Chagla, C.J., pointed out that the priority given to the Crown was number on the basis of its debt being a judgment-debt or a debt arising out of statute, but the principle was that if the debts were of equal degree and the Crown and the subject were equal, the Crowns right would prevail over that of the subject. The same view has been adopted by a Full Bench of the Madras High Court in Manickam Chettiar v. Income-tax Officer, Madura 3 , in which it was held that the income-tax debt had priority over private debts and the companyrt had inherent power to make an order for payment of moneys due to the Crown. A similar view has been expressed by the High Court in Kaka Mohamed Ghouse Sahib Co. v. United Commercial Syndicate 4 . All these authorities have been quoted with approval by this Court in Halsburys Laws of England, 3rd Edn., Vol. 7, page 221. 1 1868-69 5 Bom. H.C.R. 23 3 1938 6 I.T.R. 180. A.I.R. 1955 Bom. 305. 4 49 I.T.R. 824. Builders Supply Corporation v. Union of India 1 , in which it was held that the Government of India was entitled to claim priority for arrears of income-tax due to it from a citizen over debts from him to unsecured creditors and that the English companymon law doctrine of the priority of Crown debts has been given judicial recognition in the territory known as British India prior to 1950 in regard to the recovery of tax dues in priority to other private debts of the tax-payer. It was pointed out therefore that the English Common Law doctrine having been incorporated into Indian law, was a law in force in the territory of India, and, by virtue of Art. 372 1 of the Constitution of India, it companytinued to be in force in India until it was validly altered, repealed or amended. It was, however, argued for the respondents that the authority of the decision of this Court in Builders Supply Corporation v. Union of India 1 has been affected to some extent by the later decision of a larger Bench of this, Court in The Superintendent Remembrancer of Legal Affairs, West Bengal v. The Corporation of Calcutta, 2 in which it was held that the rule of English Common law that the State was number bound by the provisions of a statute unless it was expressly named or brought in by necessary implication, was number accepted as a rule of companystruction throughout India and therefore it has number become law of the land. It was further held that even on the assumption that At was accepted as a rule of companystruction throughout India, it was only a rule of companystruction and number a rule of substantive law and therefore cannot be said to be a law in force within the meaning of Art. 372. Lastly, this Court expressed the view that the rule of companystruction was incongruous in a democratic republic and it was inconsistent with the rule of law based on the doctrine of equality and therefore the said canon of companystruction should number be applied for companystruing statutes in India. In our opinion, there is numberhing in this judgment which affects the authority of the previous decision of this Court in Builders Supply Corporation v. Union of India l . On the other hand, the majority judgment of the learned Chief Justice has referred to the decision in ff. Snowden Marshall v. People of the State of New York 1 which lays down a similar doctrine, namely, that the State of New York has the companymon law prerogative right of priority over unsecured creditors, and distinguished the case on the ground that it had numberhing to do with the rule of companystruction but was based upon the companymon law prerogative of the Crown. We are, however, unable to apply the English Common Law doctrine of priority of Crown debts in this case, because there is numberproof that the doctrine was given judicial recognition in the 1 56 1. T. R. 91 2 19671 2 C.R. 170. 3 1920 65 Law.Ed. 315. territory of Hyderabad State prior to January 26, 1950 when the Constitution was brought into force. We granted time to Counsel for the appellants to ascertain whether there were any reported decisions recognising such a doctrine in the Hyderabad State, but Sufficient material has number been placed before us in this case to show that the doctrine was given judicial recognition in the Hyderabad State before its incorporation into the Indian Republic. For these reasons we hold that the judgment of the Bombay High Court dated December 17, 1962 in Letters Patent Appeal No. 29 of 1960 must be affirmed and this appeal must be dismissed with companyts.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 998 of 1965. Appeal from the judgment and order dated February 24, 25, 1964 of the Bombay High Court, Nagpur Bench in Special Civil Application 459 of 1963. K. Sanghi, G. L. Sanghi and 0. C. Mathur, for the appellant. Niren De, Addl, Solicitor-General, N. S. Bindra and R. H. Dhebar, for the respondents. The Judgment of the Court was delivered by Subba Rao, C. J. This appeal by certificate raises the quest on whether the search of the premises of the appellant and the seizure of the articles and the documents found therein were valid. The relevant facts are as follows The appellant is a mining proprietor and holds several manganese mines in different States. He has also been doing business in many articles apart from being an exporter of manganese ore. On information alleged to have been received to the effect of that the appellant was in possession of a large quantity of undeclared gold the Assistant Collector of Customs and Central Exercise Raipur issued an authorization under r. 126 L 4 2 of the Defence of India Amendment Rules, 1963 Gold Control Rules hereinafter called the Rules, for searching the premises of the appellant. Pursuant to that authorization, the appellants premises were searched and as a result of the search gold and other articles, foreign currency and other documents. were seized. The appellant filed a petition under Art. 226 of the Constitution in the High Court of Bombay Nagpur Bench challenging the validity of the said search and the seizure of the articles and documents belonging to him. The petition was heard along with similar petitions filed by other persons whose premises were likewise searched and goods and documents seized therefrom. The High Court dismissed all the petitions. The several petitioners before the High Court, along with the appellant, preferred appeals to this Court and the an appeals other than that filed by the appellant were heard by this Court See Durg Prasad v. H.R. Gomes, Superintendent Prevention , Central Exercise Nagpur 1 . Therein this Court companysidered the various companytentions raised by them and dismissed the same. For one reason or other, this appeal was number heard along with them. Obviously the points companyered by that judgment cannot be permitted to be reagitated in this appeal. Accepting that position, learned companynsel for the appellant raised before us only the questions that were number decided by the said judgment. We shall number proceed to companysider the questions that are peculiar to this appeal. The companytention that the Assistant Collector and the officer authorized by him to make the search acted with mala fides has numbersubstance. The High Court companysidered the evidence and rejected it. We do number see any justification to take a different view on the material placed before us. The second companytention is that under s. 105 of the Customs Act, hereinafter called the Act, the Assistant Collector shall have reason to believe that some goods are secreted before he can authorize any officer of Customs to search for them or the relevant documents, but the authorization given by the Assistant Collector to the Customs Officer did number say that he had reason to believe so. The relevant part of the authorization reads thus Whereas information has been laid before me of the suspected companymission of offence under section 11 read with section 111 of the Customs Act 1962 52 of 1962 and it has been made to appear that the production of companytraband goods and documents relating thereto are essential to the enquiry about to be made in the suspected offence Though the words reason to believe are number in terms embodied in the authorisation, the phraseology used in effect and substance meant the same thing. , The next companytention is that on a reasonable companystruction of the said provision it should be held that the Assistant Collector of Customs should number only give reasons for his belief but also the particulars of the nature of the goods and of the documents, for, if the reasons and the particulars are number given the officer authorized may make a roving search of the house which is number in the companytemplation of the said section. This argument may be dealt with in two parts. In terms S. 105 of the Act does number say that the Assistant Collector shall give reasons. The power companyferred on him under S. 105 is number subject to any such companydition. Though he cannot make a search or authorize any officer to make a search A.I.R. 1966 S.C. 1209. unless he has reason to believe the existence of the facts mentioned in the section, the section does number companypel him to give reasons. While it may be advisable, and indeed proper, for him to give reasons, the number-mention of reasons in itself does number vitiate the order. Nor can we agree with the appellant that the particulars of the nature of the goods and of the documents should be given in the authorization. Obviously, numberquestion of giving of parti- culars arises if he himself makes the search, but if he authorizes any officer to do so, he cannot give the particulars of the documents, for they will be known only after the search is made. Doubtless he has to indicate broadly the nature of the documents and the goods in regard to which the officer authorized by him should make a search, for without that his mandate cannot be obeyed. The autho- rization issued by the Assistant Collector of Customs in this case clearly mentioned that on information received it appeared that the appellant was in possession of companytraband goods and documents relating thereto and also described the office and the residential premises wherein those goods and documents would be found. In the circumstances of the case we are satisfied that the specifications are sufficient to enable the officer authorized to make the search. The next argument is based upon the provisions of s. 110 of the Act. Under s. 110 3 of the Act only a proper officer can seize any documents or goods which in his opinion will be useful for or relevant to any proceedings under the Act. Proper officer has been defined by s. 2 34 of the Act thus Proper Officer, in relation to any functions to be performed under this Act, means the officer of customs who is assigned those functions by the Board or the Collector of Customs. it is companytended that, on a true companystruction of s. 2 34 of the Act the Collector of Customs should himself seize the goods, that he has numberpower to authorize another to do so and that in this case the Collector of Customs did number make the seizure. This argument turns upon the terms of the said provision. It is said that the Board only can assign functions to another officer and that the Collector of Customs cannot assign but can function personally. The companytroversial expression in s. 2 34 is by the Board or the Collector of Customs. The clause who is assigned those functions, the argument proceeds, refers only to the Board and number to the Collector. A fair reading of the provision, in our view, is that the preposition by refers both to the Board and the Collector. Both the Board and the Collector of Customs can assign functions to an officer of Customs. It is then companytended that the search made was void inasmuch as in making the search the relevant provisions of Code of Criminal Procedure had number been companyplied with. This argument is based upon S. 105 2 of the Act. It reads The provisions of the Code of Criminal Procedure, 1898, relating to searches shall, so far as may be, apply to searches under this section subject to the modification that sub- section 5 of section 165 of the said Code shall have effect as if for the word Magistrate, wherever it occurs, the words Collector of Customs were substituted. Now, if we look at the Code of Criminal Procedure, s. 165 deals with searches. The relevant part of that section reads Whenever an officer in charge of a police station or a police-officer making an investigation has reasonable grounds for believing that anything necessary for the purposes of an investigation into any offence which he is authorised to investigate may be found in any place within the limits of the police-station of which he is in charge, or to which he is attached, and that such thing cannot in his opinion be otherwise obtained without undue delay, such officer may, after recording in writing the grounds of his belief and specifying in such writing, so far as possible, the thing for which search is to be made, search, or cause search to be made, for such thing in any place within the limits of such station. 2 If he is unable to companyduct the search in person, and there is numberother person companypetent to make the search present at the time, he may after recording in writing his reasons for so doing require any officer subordinate to him to make the search, and he shall deliver to such subordinate officer an order in writing specifying the place to be searched and so far as possible, the thing for which search is to be made and such subordinate officer may thereupon search for such thing in such place. The provisions of this Code as to search-warrants and the general provisions as to searches companytained in section 102 and section 103 shall, so far as maybe, apply to a search made under this section. Copies of any record made under subsection 1 or sub-section 3 shall forthwith be sent to the nearest Magistrate empowered to take companynizance of the offence and the owner or occupier of the place searched shall on application be furnished with a companyy of the same by the .Magistrate. The argument is that the expression so far as may be in s. 105 2 of the Act attracts s. 165 1 of the Code of Criminal Procedure and under that section, as the police-officer has to record in writing the grounds of his belief the Assistant Collector of Customs shall also in authorizing the search record his reasons for doing so. But, in our view, s. 105 of the Act and s. 165 1 of the Code of Criminal Procedure are intended to meet totally different situations. While under s. 105 of the Act the Assistant Collector of Customs either makes the search personally or authorizes any officer of Customs to do so, if he has reason to believe the facts mentioned therein, under s. 165 1 of the Code of Criminal Procedure the recording of the reasons for believing the facts is only to enable him to make a search urgently in a case where search warrants in the ordinary companyrse cannot be obtained. It is, therefore, number possible to invoke that companydition and apply it to a situation arising under s. 105 of the Act. It is number necessary in this case to particularize which of the other clauses or part of the clauses of that section can be applied to a search under s. 105 of the Act. We, therefore, reject this companytention also. Then it is companytended that s. 105 of the Act companyfers an unguided and arbitrary power on the Assistant Collector of Customs to make a search,. the only companydition being that he has reason to believe in the existence of the facts mentioned therein. It is said that the said belief is practically a subjective satisfaction and the section neither lays down any policy number imposes any effective companytrol on his absolute discretion. So stated the argument is attractive, but a deeper scrutiny of the provisions indicates number only a policy but also effective checks Oil the exercise of the power to search by the Assistant Collector of Customs. The object of the section is to make a search for the goods liable to be companyfiscated or the documents secreted in any place. which are relevant to any proceeding under the Act. The legislative policy reflected in the section is that the search must be in regard to the two categories mentioned therein, namely, goods liable to be companyfiscated and documents relevant to a ding under the Act. No doubt the power can be abused. at is companytrolled by other means. Though under the section the Assistant Collector of Customs need number give the reasons, if the existence of belief is questioned in any companylateral proceedings, he has to produce relevant evidence to sustain his belief. That apart, under s. 165 5 of the Code of Criminal Procedure, read with s. 105 2 of the Act, he has to send forthwith to the Collector of Customs a companyy of any record made by him. The Collector would certainly give necessary directions if the Assistant Collector went wrong, or if his act was guided by mala fides. But the more effective companytrol on him is found in s. 136 2 of the Act. It reads If any officer of customs a requires any person to be searched for goods liable to companyfiscation or any document relating thereto, without having reason to believe that he has such goods or documents secreted about this person or b arrests any person without having reason to believe that he has been guilty of an offence punishable under section 135 or c searches or authorises any other officer of customs to search any place without having reason to believe that any goods, documents or things of the nature referred to in section 105 are secreted in that place, he shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both. No doubt he can be prosecuted only with the previous sanction of the Central Government, but his liability to criminal prosecution for dereliction of duty under S. 105 of the Act is certainly an effective companytrol on his arbitrary acts. It is, therefore, clear that number only a policy is laid down in S. 105, but also that the acts of the Assistant Collector are effectively companytrolled in the manner stated above. We cannot, therefore, say that s. 105 offends Art. 14 of the Constitution. Lastly, it is companytended that the Assistant Collector of Customs in fact has number placed any material before the High Court to sustain his reasonable belief. The High Court, on the material placed before it, held that the Assistant Collector had acted with reasonable belief in the facts mentioned in that section. There is numberjustification for our interference with the findings of the High Court. In the result, the appeal fails and is dismissed with companyts. It is represented to us that three years have elapsed since the documents were seized and it appears that numberhing further has been done in the matter.

Case appeal was rejected by the Supreme Court

Rajasthan Ltd., v. State-of Rajasthan, 1963 1 S.C.R. 491, referred to. The differential treatment of factories producing sugar by means of vacuum pans, khandsari units producing sugar by the open pan process and canegrowers using cane for the manufacture of jaggery is reasonable and has a rational relation to the object of the Act. There is thus numberviolation of Art. 14 of the Constitution. 720 G-H. Nor does discrimination result from the exemption under s. 21 3 of factories which are new or which in the opinion of the Government have substantially expanded. The exemption is based on legitimate legislative policy. The question whether the exemption should be granted to a factory and if so for what period and the question whether a factory has substantially expanded and if so the extent of such expansion have to be decided with reference to the facts of each individual case. It is number possible for the State Legislature to examine the merits of individual cases and the function was properly delegated to the State Government. The legislature was number obliged to prescribe a more rigid standard for the guidance of Government. 721 A-C. ORIGINAL JURISDICTION Writ Petitions Nos. 53, 100, 101, 105 and 106 of 1967. Petitions under Art. 32 of the Constitution of India for the enforcement of the fundamental rights. C. Setalvad, A. V. Koteswara Rao, K. Rajendra Chaudhuri and K. R. Chaudhuri, for the petitioners in W. P. No. 53 of 1967 . C. Chatterjee, A. V. Koteswara Rao, K. Rajendra Chau- dhuri and K. R. Chaudhuri, for the petitioners in W.P. No. 100 of 1967 . V. Koteswara Rao, K. Rajendra Chaudhuri and, K. R. Chaudhuri, for the petitioners in W.P. No.101 of 1967 . R. Chaudhuri and K. Rajendra Chaudhuri, for the peti- tioners in W.P. Nos. 105 and 106 of 1967 . K. Daphtary, Attorney-General and A. V. Rangam, for he respondents in W.P. No. 53 of 1967 . Ram Reddy and A. V. Rangam, for the, respondents in V. Ps. No. 100, 101, 105 and 106 of 1967 . Sachin Chaudhury, G. L. Sanghi and O. C. Mathur, for the intervener in W.P. No. 53 of 1967 . The Judgment of the Court was delivered by-- Bachawat, J. In all these writ petitions under Art. 32 of the the petitioners ask for an order declaring that s. 21 of the Andhra Pradesh Sugarcane Regulation of Supply and Purchase Act, 1961 Andhra Pradesh Act No. 45 of 1961 is unconstitutional and ultra vires and a direction prohibiting the respondents from levying tax under S. 21 and to refund the tax already companylected. Section 21 of the Act is in these terms 21 1 The Government may, by numberification, levy a tax at such rate number exceeding five rupees per metric tonne as may be prescribed on the purchase of cane required for use, companysumption or sale in a factory. The Government may, by numberification, remit in whole or in part such tax in respect of cane used, or intended to be used in a factory for any purpose specified in such numberification. The Government may, by numberification, exempt from the payment of tax under this section-- a any new factory which, in the opinion of the Government has substantially expanded, to the extent of such expansion, for a period number exceeding two years from the date of companypletion of the expansion. P N 7SCI--6 The tax payable under sub-section 1 shall be levied and companylected from the occupier of the factory in such manner and by such authority as may be prescribed. Arrears of tax shall carry interest at the rate of nine per cent per annum. If the tax under this section together with the interest, if any, due thereon, is number paid by the occupier of a factory within the prescribed time, it shall be recoverable from him as an arrear of land revenue. Section 2 1 defines a factory which means any premises including the precincts thereof, wherein twenty or more workers are working or were working on any day during the preceding twelve months and in any part of which any manufacturing process companynected with the production of sugar by means of vacuum pans in being carried on or is ordinarily carried on with the aid of mechanical power. Section 2 m defines the occupier of a factory. B Ordinance No. 1 of 1967 which was replaced by Act No. 4 on 1967, the following new sub- section I-A was inserted and other companysequential amendments were made in S. 21 of the principal Act 1-A The Government may, by numberification, levy a tax at such rate, number exceeding three. rupees and fifty paise per metric tonne, as may be prescribed on the purchase of cane required for use, companysumption or sale in a khandsari unit. Also the following sub-sections kk and kkk were inserted in s. 2 of the principal Act kk khandasari sugar means sugar produced by open-pan process in a khandasari unit from sugarcane juice, or from rab or gur or both, companytaining more than eighty per cent sucrose kkk khandasari unit means a unit engaged or ordinarily engaged in the manufacture of khandasari sugar and includes a bel It may be mentioned that sales and purchases of sugarcane a exempt from tax under the Andhra Pradesh General Sales Tax Act, 1957. The petitioners own sugar factories as defined in 2 1 . Their agents are the occupiers of the factories as defined in S. 2 m . They purchased cane from canegrowers within their respective factory zones. The State Government had issued numberifications levying tax under s. 21. For the last several years the petitioners have paid the tax on their purchases of sugarcane and further demands are being made on them for payment of the tax They challenge the vires and the , companystitutionality of S. 21 of various grounds. The principal submissions were made by M. M. C. Setalvad who appeared in Writ Petition No. 53 of 196 and his arguments were adopted by companynsel appearing in the other petitions. Mr. N. C. Chatterjee who appeared in Writ Petition No. 100 of 1967 raised a few additional companytentions. The submission of Mr. Setalvad is that s. 21 so far as it levies a tax on the purchases of sugarcane by or on behalf of the petitioners from the canegrowers in their respective factory zones is ultra vires the powers of the legislature under Entry No. 54, List 11, Sch. VII of the Constitution in the light of the decision in State of Madras v. Gannon Dunkerley Co. 1 . Now, in Gannon Dunkerleys case 1 , the actual decision was that the legislature had numberpower under List II, Entry 48, Sch. VII of the Government of India Act, 1935 to impose a tax on the supply of materials under an entire and indivisible companytract for companystruction of buildings. But the Court also held that the phrase sale of goods in the Entry must be interpreted in the legal sense which it had in the Indian Sale of Goods Act, that the Provincial Legislature had numberpower to tax a transaction which was number a sale of goods in that sense and that in order to companystitute a sale there must be an agreement for sale of goods for a price and the passing of property therein pursuant to such an agreement. Ventakarama Aiyar, J. laid at pp. 397-398 Thus, according to the law both of England and of India, in order to companystitute a sale it is necessary that there should be an agreement between the parties for the purpose of transferring title to goods which of companyrse presupposes capacity to companytract, that it must be supported by money companysideration, and that as a result of the transaction property must actually pass in the goods. Unless all these elements are present, there can be numbersale. in the light of this decision, the expression sale of goods in Entry 54, List II, Sch. VII of the Constitution must be given the ame interpretation. On a parity of reasoning, to companystitute a purchase of goods within this Entry, there must be an agreement for purchase of goods and the passing of property therein pursuant to such an agreement. The question, therefore, is whether the purchases by or on behalf of the petitioners from the cane- growers in their respective factory zones were made under agreements of purchase and, sale. It appears that the Cane Commissioner is empowered under s.15 of Act No. 45 of 1961 to declare any area as the factory one for the purpose of supply of cane to a factory during a particular crushing season. Under S. 16 1 , on the declaration of the factory zone the occupier of the factory is bound to purchase such quantity of cane grown in that area and offered for sale to the factory 1 1959 S.C.R. 379. as may be determined by the Cane Commissioner in accordance with the provisions of the schedule. Section 16 2 prohibits the the canegrowers in a factory zone from supplying or selling cane to any factory or other person otherwise than in accordance with the provisions of the schedule. Section 28 2 1 empowers the Government to make rules providing for the form of agreement to be entered into under the provisions of the Act. Rule 20 of the Andhra Pradesh Sugarcane Regulation of Supply and Purchase Rules, 1951 framed under the Act provides that a canegrower or a canegrowers companyoperative society may within 14 days of the order declaring an area as the factory zone or such extended time as may be fixed by the Cane Commissioner, offer in Form No. 2 to supply cane grown in that area to the occupier of the factory and such occupier of the factory within 14 days of the receipt of the offer shall enter into an agreement in Form No. 3 or Form No. 4 with the canegrower or the canegrowers companyoperative society as the case may be for the purchase of the cane offered. Form No. 3 is the statutory form of agreement with a canegrower. By the agreement in Form No. 3 the occupier of the factory agrees to buy and the canegrower agrees to sell during the crushing season certain sugarcane crop grown in the area at the minimum price numbericed by the Government from time to time upon the terms and companyditions mentioned in the agreement. The agreement companytains an arbitration clause and is signed by or on behalf of the occupier of the factory and the canegrower. The agreement in Form No. 4 with a canegrowers companyoperative society is on the same lines. All the terms and companyditions of the agreements and the mode of their performance are fixed and regulated by the Act, the Rules and orders made under the Act. Contravention of the provisions of the Act or of any rule or order made under the Act is punishable under S. 23. The minimum price of sugarcane is fixed under the Sugarcane Control Order, 1966. The learned Attorney and Mr. Ram Reddy attempted to argue that the occupier of the factory has some option of number buying from the canegrower and some freedom of bargaining about the terms and company- ditions of the agreements. But after having read all the relevant provisions of the Act and the Rules, they did number pursue this point. We are satisfied that under the provisions of Act No. 45 of 1961 And the Rules framed thereunder, a canegrower in a factory zone is free to sell or number to sell his sugarcane to the factory. He may companysume it or may process it into jaggery and then sell the finished product. But if he offers to sell his cane, the occupier of the factory is bound to enter into an agreement with him on the prescribed terms and companyditions and to buy cane pursuant to he agreement in companyformity with the instructions issued by the Cane Commissioner. The submission of the petitioners is that as ,hey or their agents are companypelled by law to buy cane from the canegrowers their purchases are number made under agreements and are number taxable under Entry No. 54, List 11 having regard to Gannon Dunkerleys case 1 . This companytention requires close examination. Under s. 4 1 of the Indian Sale of Goods Act, 1930, a company- tract of sale of goods is a companytract whereby the seller transfers or agrees to transfer the property in goods to the buyer for a price. By s. 3 of this Act, the provisions of the Indian Contract Act, 1872 apply to companytracts of sale of goods save in so far as they are inconsistent with the express provisions of the later Act. Section 2 of the Indian Contract Act provides that when one person signifies to another his willingness to do or to abstain from doing anything with a view to obtaining the assent of the other to such act or abstinence, he is said to make a proposal. When the person to whom the proposal is made signifies his assent thereto, the proposal is said to be accepted. A proposal when accepted becomes a promise. Every promise and every set of promises forming the companysideration for each other is an agreement. There is mutual assent to the proposal when the proposal is accepted and in the result an agreement is formed. Under S. 10, all agreements are companytracts if they are made by the free companysent of parties companypetent to companytract for a lawful companysideration and with a lawful object and are number by the Act expressly declared to be void,. Sec- tion 13 defines companysent. Two or more persons are said to companysent when they agree upon the same thing in the same sense. Section 14 defines free companysent. Consent is said to be free when it is number caused by companyrcion, undue influence, fraud, misrepresentation or mistake as defined in ss. 15 to Now, under Act No. 45 of 1961 and the Rules framed under it, the canegrower in the factory zone is free to make or number to make an offer of sale of cane to the occupier of the factory. But if he makes an offer, the occupier of the factory is bound to accept it. The resulting agreement is recorded in writing and is signed by the parties. The companysent of the occupier of the factory to the agreement is number caused by companyrcion, undue influence, fraud, mis- representation or mistake. His companysent is free as defined in s. 14 of the Indian Contract Act though he is obliged by law to enter into the agreement. The companypulsion of law is number companyrcion as defined in S. 15 of the Act. In spite of the companypulsion, the agreement is neither void number voidable. In the eye of the law, the agreement is freely made. The parties are companypetent to companytract The agreement is made for a lawful companysideration and with a lawful object and is number void under any provisions of law. The agreements are enforceable by law and are companytracts of sale of sugarcane as defined in S. 4 of the Indian Sale of Goods Act. The purchases of sugarcane under the agreement can be taxed by the State legislature under Entry 54, List 11. 1 1959 S.C.R. 379. Long ago in 1702, Holt, C.J. said in Lane v. Cotton 1 When a man takes upon himself a public employment, he is bound to serve the public as far as this employment goes, or an action lies against him for refusing. The doctrine that one who takes up a public employment is bound to serve the public was applied to innkeepers and companymon carriers. Without lawful excuse, an innkeeper cannot refuse to receive guests at his inn, and a companymon carrier cannot refuse to accept goods offered to him for carriage. See Halsburys Laws of England, 3rd Edn., Vol. 4, art. 375 and Vol. 21, art. 938. A more general application of the doctrine was arrested by the growth of the principle of laissez faire which had its heyday in the. midnineteenth century. Thereafter, there has been a gradual erosion of the laissez faire companycept. It is number realised that in the public interest, persons exercising certain callings or having monopoly or near monopoly powers should sometimes be charged with the duty to serve the public, and, if necessary, to enter into companytracts. Thus, S. 66 of the Indian Railways Act, 1890 companypels the railway administration to supply the public with tickets for travelling on the railway upon payment of the usual fare. Section 22 of the Indian Electricity Act, 1910 companypels a licensee to supply electrical energy to every person in the area of supply on the usual terms and companyditions. Cheshire and Fifoot in their Law of Contract, 6th Edn., p. 23 observe that for reasons of social security the State may companypel persons to make companytracts. One of the objects of Act No. 45 of 1961 is to regulate the purchase of sugarcane by the factory owners from the canegrowers. The canegrowers scattered in the villages had numberreal bargaining power. The factory owners or their companybines enjoyed a near monopoly of buying and companyld dictate their own terms. In this unequal companytest between the canegrowers and, the factory owners, the law stepped in and companypelled the factory to enter into companytracts of purchase of cane offered by the canegrowers on prescribed terms and companyditions. In The Indian Steel Wire Products Ltd. v. The State of Madras 2 , the Court held that. sales of steel products authorised by the Controller under cls. 4 and 5 of the Iron and Steel Control of Production and Distribution Order, 1941 were eligible to tax under Entry 54, List 11. The Court found that the parties had entered into companytracts of sale though in view of the Order the area of bargaining between the buyer and the seller was greatly reduced. Hegde, J. speaking for the Court said that as a result of economic companypulsions and changes in of the political outlook the freedom to companytract was number being companyfined gradually to narrower and narrower limits. We have here a case where one party 1 , 1 Ld. Raym. 646 91 E.R. 17 2 1968 1 S.C.R. 479. to a companytract of sale is companypelled to enter into it on rigidly prescribed terms and companyditions and has numberfreedom of bargaining. But the companytract, numberetheless, is a companytract of sale. In Kirkness v. John Hudson Co. Ltd., 1 the House of Lords by a majority held that a companypulsory vesting of title of the companypanys railway wagons in the British Transport Commission under s. 29 of the Transport Act, 1947 was number a sale within the meaning of the phrase is sold in S. 17 of the Income- tax Act, 1945. Under S. 29, there was a companypulsory taking of property. The assent of the companypany to the taking was number required by statute. By force of law, the property of the companypany was taken without its assent. There was numberoffer, numberacceptance and numbermutual assent and numbercontract resulted. The House of Lords held that mutual assent was an element of a transaction of sale. In Gannon Dunkerleys case 1 , the Court approved of this principle and rejected the argument of companynsel that an involuntary transfer of title as in Kirknesss case 2 was a sale within the meaning of the legislative Entry. But the Court did number say that if one party was free to make an offer of sale and the other party was obliged by law to accept it and to enter into an agreement for purchase of the goods, a companytract of sale did number result. In the present case, the seller makes an offer and the buyer accepts it. The parties then execute and sign an agreement in writing. There is mutual assent and a valid companytract, though the assent of the buyer is given under companypulsion of statute. Mi. Setalvad relied on the following passage in the Law of Contract by G.H. Treitel, at p. 5 Where the legislation leaves numberchoice at all to one party, the transaction is number a companytract. But the author does number cite any authority in support of the proposition., He adds that even a companypulsory disposition of property may be treated as companytract for the purpose of a particular statute and cites the case of Ridge Nominees v. I.R.C. 3 . There, the Court distinguishing Kirknesss case 3 held that the companypulsory transfer of shares of a dissenting shareholder by a person authorised to make the transfer on his behalf under s. 209 of the Companies Act, 1948 companyresponding to S. 395 of our Companies Act, 1956 was having regard to the machinery created by the section a companyveyance on sale within s. 54 of the Stamp Act, 1 91. The Lord Justices gave separate opinions. It is worthwhile quoting the opinion of Donovan, L. J. who said- When the legislature, by section 209 of the Companies Act, 1948, empowers the transferee companypany to appoint an agent on behalf of a dissenting shareholder for the purpose of executing a transfer of his shares 1 1955 A.C. 696. 2 1959 S.C.R. 379. 3 1962 2 W.L.R. 3. against a price to be paid to the transferor companypany and held in trust for the dissenting shareholder, it is clearly ignoring his dissent and putting him in the same position as if he had assented. For the purpose of companysidering whether this results in a sale, one must, I think, bear that situation in mind, and regard, the dissent of the shareholder as overridden by an assent which the statute imposes upon him, fictional though this may be. Thus. in the companytext of section 209 the transfer becomes in law a companyveyance on sale. This companyclusion, in my opinion, does number run companynter to what was said in the House of Lords in Kirkness Inspector of Taxes v. John Hudson Co. Ltd., 1 , where, in terms of the statute there under companysideration, property belonging to other persons was declared to vest on a specified date in the Transport Commission against payment of companypensation. This may be numbermore than a difference of machinery, but machinery may make the very difference between a sale and a mere expropriation against companypensation. Lord Simonds, I venture to think, implies as much when he says he gets numberassistance from the cases decided under the Stamp Acts. In M s. New India Sugar Mills Ltd., v. Commissioner of Sales Tax, Bihar 2 , the Court by a majority held that the supply of sugar by a sugar factory to a Provincial Government in obedience to the directions of the Sugar Controller given under the Sugar and Sugar Products Control Order, 1946 was number a sale taxable under List II, Entry 48, Sch. VII of the Government of India Act, 1935. Mr. Setalvad placed strong reliance on the fol- lowing passage in the judgment of Shah, J. at pp. 469-470 A companytract 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 number the result of any such companytract of sale. It is companymon 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 number act as an agent of the State to purchase goods he acted in exercise of his statutory authority. There was mani- festly numberoffer to purchase sugar by the Province, and numberacceptance of any offer by the manufacturer. The manufacturer was under the Control Order left numbervolition he companyld number decline to carry out the order if he 1 1955 A.C. 696. 2 1963 Supp. 2 S.C.R. 459, 469. did so he was liable to be punished for breach of the order and his goods were liable to be forefeited. The Government of the Province and the manufacturer had numberopportunity to negotiate, and sugar was despatched pursuant to the direction of the Controller and number in acceptance of any offer by the Government. Divorced from the companytext, this passage gives some support to the companytention that there can be numbercontract if the acceptance of the offer is made under companypulsion of a direction given by a statutory authority. But the passage must be read with the facts of the case. By cl. 3 of the Sugar and Sugar Products Control Order, 1946, producers of sugar were prohibited from disposing of sugar except to persons specially authorised in that behalf by the Controller to acquire sugar on behalf of certain Governments. Clause 5 required every producer or dealer to companyply with the directions issued by the Controller regarding production, sales, stocks and distribution of sugar. Clause 6 authorised the Controller to fix the price of sugar. Clause 7 1 authorised the Controller to allot quotas of sugar for any Province and to issue directions to any producer or dealer for the supply of the sugar specifying the price, quantity and type or grade of the sugar and the time and manner of supply. Contravention of the directions entailed forfeiture of stocks under cl. 11 of the Order and was punishable under r. 81 4 of the Defence of India Rules, 1939. The admitted companyrse of dealings between the parties was that the Governments of the companysuming States used to intimate to the Sugar Controller their requirement of sugar and the factory owners used to send to him statements of their stocks of sugar. On a companysideration of the requisitions and the statements of stock, the Controller used to make allotments. The allotment order used to be addressed by the Controller to the factory owner, directing him to supply sugar to the Government in question in accordance with the latters despatch instructions. A companyy of the allotment order used simultaneously to be sent to the Government companycerned and the latter then used to send to the factory detailed despatching instructions In these circumstances, Kapur and Shah, JJ. Hidayatullah, J. dissenting held that by giving intimation of its requirement of sugar to the Controller and applying for allotment of sugar, the Government of Madras did number make any offer to the manufacturer. The direction of the Controller to the manufacturer to supply sugar to the Government was given in the exercise of his statutory authority and was number the companymunication of any offer made by the Government. The despatch of the goods in companypliance with the directions of the Controller was number the acceptance by the manufacturer of any offer, number companyld it be deemed to be an offer by the manufacturer to supply goods. On the, special facts of that case, the majority decision was that there was numberoffer and acceptance and numbercontract resulted. That decision should number be treated as an authority for the proposition that there can be numbercontract of sale under companypulsion of a statute. It depends upon the facts of each case and the terms of the particular statute regulating the dealings whether the parties have entered into a companytract of sale of goods. Under Act No. 45 of 1961, a canegrower makes an offer to the occupier of the factory directly and the latter accepts the offer. The parties then make and sign an agreement in writing. There is thus a direct privily of companytract between the parties. The companytract is a companytract of sale and pur- chase of cane, though the buyer is obliged to give his assent under companypulsion of a statute. The State Legislature is companypetent to tax purchases of canes made under such a companytract. Mr. Setalvad submitted that there-can be numberlevy of a pur- chase tax with reference to the tonnage of the cane. We cannot accept this companytention. Usually the purchase tax is levied with reference to the price of the goods. But the legislature is companypetent to levy the tax with reference to the weight of the goods purchased. The companytention of Mr. Chatterjee that a purchase tax must be levied with reference to the turnover only is equally devoid of merit. Where the purchase tax is levied on a dealer, the levy is usually with reference to his turnover, which numbermally means the aggregate of the amounts of purchase prices. But the tax need number necessarily be levied on a dealer or by reference to his turnover. It may be levied on the occupier of a factory by reference to the weight of the goods purchased by him. Mr. Chatterjee next submitted that a purchase tax must be levied on goods generally, and there can be numberpurchase tax with reference to their subsequent use, companysumption or sale. He based his argument on paragraphs 17 to 20. Chap. III, Vol. III of the Report of the Taxation Enquiry Committee. There, the Committee while discussing the companyparative merits of sales tax in relation to customs, excise and octroi, pointed out that sales tax was a major source of revenue and companyld be applied to the generality of goods, while customs, excise and octroi companyld be applied to only a limited portion of the industrial output of the companyntry. The Committee did number express any opinion on the scope of List II, Entry 54. Under that Entry, the State legislature is number bound to levy a tax on all purchases of cane. It may levy a tax on purchases of cane required for use, companysumption or sale in a factory. The legislature is companypetent to tax and also to exempt from payment of tax sales or purchases of goods required for specific purposes. Other instances of special treatment of goods required for particular purposes may be given. Section 6 and Sch. 1, item 23 of the Bombay Sales Tax Act, 1946 levy tax on fabrics and articles for personal wear. Section 2 j a ii of the C.P and Berar Sales Tax Act, 1947 exempts sales of goods intended for use by a registered dealer as raw materials for the manufacture of goods. Mr. Chatterjee submitted that the tax levied under s. 21 was a use tax and referred to McLeod v. Dilworth Co. 1 and C. Naidu Co. The State of Madras 2 . He argued that the State legislature companyld number levy a use tax which was essentially different from a purchase tax. The assumption of companynsel that S. 21 levies a use tax is number well-founded. The taxable event under S. 21 is the purchase of goods and number the use or enjoyment of what is purchased. The companystitutional implication of a use tax in American law is entirely irrelevant. The observation in the Madras case that the Explanation to Art. 286 1 a of the Constitution companyferred, a power on the State legislature to levy a use tax is erroneous. The Explanation fixed the situs of certain sales. It did number companyfer upon the legislature any power to levy a use tax. To appreciate another argument of Mr. Chatterjee, it is necessary to refer to a few facts. It appears that paragraph 21 of the Bill published in the Gazette on March 3, 1960 preliminary to the passing of Act No. 45 of 1961 provided for a levy of a cess on the entry of cane into the premises of a factory for use, companysumption or sale therein. On December 13, 1960, this Court in Diamond Sugar Mills Ltd. and Another v. The State of Uttar Pradesh and Another 3 struck down a similar provision in the U.P. Sugarcane Cess Act, 1956 on the ground that the State legislature was number companypetent to enact it under Entry 52, List II as the premises of a factory was number a local area within the meaning of the Entry. Having regard to this decision, paragraph 21 of the Bill was amended and s. 21 in its present form was passed by the State Legislature. The Act was published in the Gazette on December 30, 1961. Mr. Chatterjee submitted that in this companytext the levy under s. 21 was really a levy on the entry of goods into a factory for companysumption, use or sale therein. We are unable to accept this companytention. As the proposed tax on the entry of goods into a factory was unconstitutional, paragraph 21 of the original Bill was amended and s. 21 in its present form was enacted. The tax purchase of goods. The taxable event is the purchase of cane for use, companysumption or sale in a factory and number the entry of cane into a factory. As the tax is number on the entry of the cane into a factory, it is number payable on cane cultivated by the factory and entering the factory premises. Mr. Setalvad submitted that s. 21 impeded free trade, company- merce and intercourse and offended Art. 301 of the Constitu- tion and relied on the decision in Firm A. T. Mehtab Majid 1 322 U.S. 327 88 L. Ed. 1305. A.I.R. 1953 Mad. 116, 127-128, 3 1961 3 S.C.R. 242. Co. v. State of Madras 1 . In that case, the Court held that r. 16 2 of the Madras General Sales Tax Turnover and Assessment Rules, 1939 discriminated against imported hides or skins which had been purchased or tanned outside the State by levying a higher tax on them and companytravened Art. 304 a of the Constitution. At p. 442, Raghubar Dayal, J. said It is therefore number well settled that taxing laws can be restrictions on trade, companymerce and intercourse, if they hamper the flow of trade and if they are number what can be termed to be companypensatory taxes or regulatory measures. Sales tax of the kind under companysi- deration here, cannot be said to be a measure regulating any trade or a, companypensatory tax levied for the use of trading facilities. Sales tax, which has the effect of discriminating between goods of one State and goods of another, may affect the free flow of trade and it will then offend against Art. 301 and will be valid only if it companyes within the terms of Art. 304 a . That case decides that a sales tax which discriminates against goods imported from other States may impede the free flow of trade and is then invalid unless protected by Art. 304 a . But the tax levied under S. 21 does number discriminate against any imported cane. Under S. 21, the same rate of tax is levied on purchases of all cane required for use, companysumption or sale in a factory. There is numberdiscrimination between cane grown in the State and cane imported from outside. As a matter of fact, under the Act the factory can numbermally buy only cane grown in the factory zone. A number-discriminatory tax on goods does number offend Art. 301 unless it directly impedes the free movement or transport of the goods. In Atiabari Tea Co. Ltd., v. The State of Assam and others 2 . Gajendragadkar, J. speaking for the majority said We are, therefore, satisfied that in determining the limits of the width and amplitude of the freedom guaranteed by Art. 301 a rational and workable test to apply would be Does the impugned restriction ope- rate directly or immediately on trade or its movement?. It is the free movement of the transport of goods from one part of the companyntry to the other that is intended to be saved, and if any Act imposes any direct res- trictions on the very movement of such goods it attracts the provisions of Art. 301, and its validity can be sustained only if it satisfies the requirements of Art. 302 or Art. 304 of Part XIII. 1 1963 Supp. 2 S.C.R. 435. 2 1961 1 S.C.R. 809, 860-861. This interpretation of Art. 301 Was number dissented from in Automobile Transport Rajasthan Ltd. v. State of Rajasthan 1 . Normally, a tax on sale of goods does number directly impede the free movement or transport of goods. Section 21 is numberexception. It does number impede the free movement or transport of goods and is number violative of Art. 301. Mr. Setalvad next submitted that s. 21 offended Art. 14 of the Constitution in several ways. It was argued that s. 21 read with s. 2 e discriminated between producers of sugar using the vacuum pan and open pan processes. Under s. 2 1, as it stood before its amendment by Act No. 4 of 1967 tax was levied on purchases of cane by factories producing sugar by means of vacuum pans but purchases of cane by khandasari units producing khandasari sugar by the open pan process were entirely exempt from the tax. Even the amended s. 21 levies a lower rate of tax on the purchases of cane by khandsari units. It was also argued that there was discrimination in favour of producers of jaggery by exempting their purchases of cane from payment of the tax. But the affidavits filed on behalf of the respondents show that factories producing sugar by means of vacuum pans and khandasari units producing sugar by the open pan processes form distinct and separate classes. The industry using the vacuum pan process is in existence since 1932-33. No tax was levied on this industry until 1949. In 1949 when the industry became well established, tax was levied on it for the first time by s. 14 of the Madras Sugar Factories Control Act, 1949. The khandasari units carry on a small scale industry. They are of recent origin in the State of Andhra Pradesh. Until 1967, this industry was exempt from the levy. When the industry came to be somewhat established by 1967 a smaller rate of tax was levied on it. In 1965-66, factories adopting the vacuum pan process bought over 32 lakh tonnes of cane while the khandasari sugar units in the State bought about 2.70 lakh tonnes of cane. The manufacture of jaggery has numberresemblance to the manufacture of sugar by the vacuum pan or the open pan system. It is a companytage industry wherein individual canegrowers process their cane into jaggery and market it as a finished product. Having regard to the affidavits, we are satisfied that the differential treatment of the factories producing sugar by means of vacuum pans, khandasari units producing sugar by. the open pan process and cane growers using cane for the manufacture of jaggery is reasonable and has a rational relation to the object of taxation. There are marked differences between the three classes of users of cane and their capacity to pay the tax. The legislature companyld reasonably treat the three sets of users of cane differently for purposes of levy. 1 1963 1 S.C.R. 491, 533. It was next argued that the power under s. 21 3 to exempt new factories and factories which in the opinion of the Government have substantially expanded was discriminatory and violative of Art. 14. We are unable to accept this companytention. The establishment of new factories and the expansion of the existing factories need encouragement and incentives. The exemption in favour of new and expanding factories is based on legitimate legislative policy. The question whether the exemption should be granted to any factory, and if so, for what period and the question whether any factory has substantially expanded and if so, the extent of such expansion have to be decided with reference to the facts of each individual case. Obviously, it is number possible for the State legislature to examine the merits of individual cases and the function was properly delegated to the State Government. The legislature was number obliged to prescribe a more rigid standard for the guidance of the Government. We hold that S. 21 does number violate Art. 14. The petitioner in Writ Petition No. 101 of 1967 raised the companytention that it was a new factory and that the Government of Andhra Pradesh should have exempted it from payment of tax under s. 21 3 a . The companytention was companytroverted by the respondents. The affidavits do number give sufficient materials on the point, number is there any prayer in the petition for the issue of a mandamus directing the State Government to grant the exemption. In the circumstances, we do number think it fit to express any opinion on the matter. It will be open to the petitioner in Writ Petition No. 101 of 1967 to raise this companytention in other proceedings.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 92 of 1966., Appeal from the order dated May 30, 1963 of the Punjab High Court in Letters Patent Appeal No. 148 of 1963. V. S. Mani and M. L. Agarwal, for the appellants. Dipak Dutt Chaudhuri and R. N. Sachthey, for the respon- dents. K. Mehta, and K. L. Mehta, for the interveners. The Judgment of the Court was delivered by Shelat, J. The appellants are members of a Hindu undivided family of which the first appellant is the Karta. Prior to August 21, 1956, the family owned 64.35 standard acres of land in village Kurali, District Patiala. The land stood in the revenue records in the name of the first appellant. On December 23, 1957, the first appellant transferred 26 standard acres to one Babu Singh by a registered deed. According to them, they had Planted an orchard in 10 acres of land. Their companytention was that the said 26 standard acres and the said 10 standard acres companyld number be taken into account while ascertaining surplus land under the Pepsu Tenancy and Agricultural Lands Act, XIII of 1955. Both these claims were rejected by the authorities. By his order dated January 20, 1961, respondent No. 3 declared 34.35 standard acres out of the said 64.35 standard acres as Surplus land. The appeal filed by the appellants against the said order was rejected. They then filed a revision application before respondent No. 1. While that was pending they filed a writ petition in the High Court. During the pendency of that writ petition. the Punjab Legislature passed the Amendment Act, XVI of 1962 inserting S. 32-KK in the principal Act. The learned Single Judge,. who heard the writ petition, held 1 that the finding that the appellants had number planted the said orchard within the statutory period was one of fact and companyld number be challenged in the writ petition and 2 that the said transfer of 26 standard acres was hit by S. 32-FF and therefore was rightly ignored while ascertaining the surplus land. The main companytention urged before the High Court, however, was that each of the three appellants who companystituted the said family was entitled to ,retain 30 standard acres, that as the total holding was only 64.35 standard acres, there was numbersurplus land liable to be acquired under the Act and, therefore, the order declaring 34.35 Standard acres, as surplus land was illegal. The High Court following its earlier decision in Bhagat v. State of Punjab 1 missed the writ petition. A Letters Patent Appeal against that judgment was dismissed in limine. The present appeal by certificate is directed against the dismissal of the said writ petition. Mr. Manis companytentions were 1 that under Hindu Law every companyarcener in a Hindu undivided family acquires right in the property of such companyarcenery on birth and is entitled to a right of joint possession and enjoyment of its entire property, that S. 32KK deprives such a companyarcener of his rights of property in that that it takes away the rights of the descendants of the landowner to claim for themselves the permissible area and vest them in the head of the family alone so that there is number only an infringement of the right to hold property under Art. 19 1 f but also dis- crimination in favour of the head of the family infringing thereby Art. 14 2 that the effect of s. 32-KK is that where an undivided family is possessed of land, instead of each of the descendants getting a ceiling area of 30 standard acres, the head of the family alone gets 30 standard acres and therefore the section is violative of Art. 31 3 that the section, being applicable only to Hindu undivided families infringes Art. 15 1 inasmuch as it discriminates by reason only of religion such families as against other undivided families in Punjab amongst companymunities other than Hindus and 4 that the section cannot be said to be legislation whose object is agrarian reform and, therefore, is number protected by Art. 31 A. Section 32-KK, the validity of which is impeached in this appeal, reads as follows - Notwithstanding anything companytained in this Act or in any other law for the time being in force - a where, immediately before the companymencement of this Act, a landowner and his descendants companystitute a Hindu undivided family, the land owned by such family shall, for the purposes of this Act, be deemed to be the land of that landowner and numberdescendant shall, as member of such family, be entitled to claim that in respect of his share of such land he is a landowner in his own right. The section first lays down a fiction and then its result. The fiction is that where a landowner and his descendants form a Hindu undivided family, the land owned by such a family shall be, deemed to be. the land of that landowner. The fiction so en- I.L.R. 1963 16 1 Punjab 5O. 6O6 -acted is limited only for the purposes of the Act. The result of the fiction again for the purposes of the Act is that numberdescendant shall, as a member of such family, be entitled to claim that in respect of his share of such land he is a landowner in his own right. There is numberdoubt that the section has a direct adverse ,effect on the rights of the descendants of a landowner. It treats such a family as one unit equating the landowner and his descendants with an individual landowner depriving by such equation the descendant of the right to hold a ceiling area for himself. Prima facie, such a provision would infringe Art. 19 1 f and Art. 31 and would be hit by Art. 13. Article 31-A, however, provides that numberwithstanding anything companytained in Art. 13, numberlaw providing for the acquisition by the State of any ,estate or of any rights therein or the extinguishment or modification of any such rights shall be deemed to be void on the ground that it is inconsistent with or takes away or abridges any of the rights companyferred by Arts. 14, 19 or 31. If, therefore, S. 32-KK falls within the scope of Art. 31-A, it is obviously protected there under and the validity of the section is placed beyond any ,challenge on the ground of its infringing any of the rights under Arts. 14, 19 or 31. In K. K. Kochuni v. The State of Madras 1 , this Court laid ,down that Art. 31-A properly companystrued envisages agrarian reform and provides for the acquisition, extinguishment or modification of proprietary and various other kinds of subordinate rights in a tenure called the estate solely for that purpose and must be limited to it. The Court held that the Act impugned there did number ,contemplate any agrarian reform or seek to regulate the rights inter se between the landlords and tenants or modify or extinguish any of the rights appertaining to janmam right leaving all the characteristics intact and, therefore, did number companye within the purview of Art. 31-A. In Ranjit Singh v. The State Punjab 2 , this Court companysidered the scope of that decision and held that the Word estate in Art. 31 -A should be given a liberal meaning and that the changes proposed by the Punjab Consolidation Acts passed since 1948 and onwards were included in the general scheme of planning of rural areas and the productive utilisation of vacant and waste lands, that if agrarian reforms were to succeed, mere distribution of land to the landless was number enough, that there should be a proper planning of rural economy and companyditions and that a scheme which makes villages self- sufficient cannot but be regarded as part of larger reforms which companysolidation ,of holdings, fixing of ceilings on lands, distribution of surplus lands and utilising of vacant and waste lands companytemplate. It is number necessary to refer to other decided cases as this decision clearly points out that the fixing of ceiling on lands and provisions 1 1960 3 S.C.R. 887. 2 19651 S.C.R. 82. relating to it would form part of and companystitute agrarian reform and, therefore, such provisions would have the protection of Art. 3 1 -A. A brief outline of the provisions of the Act will show the objects and the policy the legislature had in mind in passing the Act and while amending it from time to time. The Act declares that it was passed to amend and companysolidate law relating to tenancy and agricultural lands and to provide for certain measures of land reforms. Section 3 defines permissible limit as meaning 30 standard acres of land. Section 5 entitles ,very landowner owning land exceeding the permissible limit to select for personal cultivation from the land held by him any parcel or parcels of land number exceeding in aggregate the permissible area. Chapter III provides for the rights of tenants and section 7 therein lays down that numbertenancy shall be terminated except in accordance with the provisions of the Act or except on any of the grounds therein set out. Section 7-A lays down additional grounds for termination of tenancy in cases such as where the land companyprising the tenancy has been reserved by the landowner for his personal cultivation or where the landowner owns 30 standard acres or less of land and the land falls within the permissible limit. Section 9 provides the maximum amount of rent payable by a tenant. Chapter IV deals with acquisition or proprietary rights by a tenant on such tenant paying companypensation determined in accordance with the principles set out in section 26. Chapter IV-A, which was added by Act 15 of 1956, deals with ceiling on lands and acquisition and disposal of surplus land. Section 32-A provides that numberperson shall be entitled to own or hold as landowner or tenant land exceeding the permissible limit. Section 32-B obliges a person owning or holding as landowner or tenant land which exceeds the permissible limit to furnish to the Collector a return giving particulars of all his land and stating therein his selection of land number exceeding the permissible limit which he desires to retain and of lands in respect of which he claims exemption from the ceiling. Section 32-D directs the Collector to prepare a draft statement on the basis of the information given in the said returns showing the total area of land owned or held by such person and the land selected by him by way of permissible limit the exemption claimed by him and the surplus area. Section 32-E provides that in the case of surplus area of a landowner or a tenant which is number included within the permissible limit such area shall on the date on which possession thereof is taken by the State Government, be deemed to have been acquired by the State Government for a public purpose. Section 32-F authorises the Collector to direct the landowner or the tenant in possession of the surplus area to deliver possession thereof within the prescribed time. Section 32-FF provides that numbertransfer or other disposition of land made after August 21, 1956 shall affect the right of the State Government to the surplus area to which it would be entitled to but for such transfer or disposition. Section 32-G lays down principles on which companypensation in respect of surplus area is to be determined. Section 23-J deals with disposal of such surplus area. Section 32-KK already recited above was inserted in the Act by Punjab Act XVI of 1962. It is clear from these provisions that the objects of the Act are a to secure the rights of tenants, b to provide for acquisition of proprietary rights in the land,to the tenant, c to provide for permissible limit of 30 standard acres, d to acquire surplus areas and distribute them amongst certain classes of persons including landless persons, and e to provide for companypensation at prescribed rates payable by tenants and by Government on its acquiring surplus land. The principle laid down by the, Act is that numberperson, whether a landowner or tenant, should hold land more than the permissible area so that the surplus land can be distributed amongst the more needy sections of society. In following this principle the Act lays down two companyollaries, namely, 1 number to recognise any transfer or disposition made by a landowner after a certain date as otherwise the scheme of distribution of surplus land would be frustrated, and ii to equates an individual landowner and a Hindu undivided family companysisting of a landowner and his descendants so that both the units are entitled to hold only the permissible area of 30 standard acres. In our view, it cannot be gainsaid that section 32-KK deals with an estate within the meaning of Art. 31-A and is companycerned with agrarian reform. The decision in Kochunis case 1 cannot, therefore, avail the appellants. In Pritam Singh v. The State of Punjab 2 , this Court up- held the validity of s., 32-FF and held that that section was protected by Art. 31-A against any challenge under Art. If a transfer or a disposition of land can validly be ignored under s. 32FF for the purpose of ascertaining surplus land and acquisition of such surplus land by the State and that section is protected by Art. 31-A, it is difficult to say why s. 32-KK which, as aforesaid, equates a Hindu undivided family with an individual landowner for the limited purpose of the Act without affecting the other rights of its members is number equally protected by that Article. The object of enacting s. 32-KK was to prevent the landowner and his descendants by reason of their companystituting a Hindu undivided family from each of them claiming in his own right the permissible area from the joint holding of the family and thus retain for themselves in the aggregate area larger than 30 standard acres and preventing thereby distribution of surplus area. As to 1 1960 3 S.C.R. 887. 2 1967 2 S.C.R. 536. the pros and companys of such a provision much can be said on either side. The appellants companyld have perhaps companytended that such a provision amounted to an unreasonable restriction. But such a companytention is debarred by Art. 31 A an d a challenge to the validity of that Article is numberlonger possible in view of the recent decision in 1. C. Golak Nath v. The State of Punjab 1 . The companytention that the section is number one relating to agrarian reform is hardly sustainable in view of the above- mentioned objects of the Act in general and of S. 32-KK in particular. Similarly, the companytention that the section has the affect of defeating the rights of a member of a Hindu undivided family from the family property also cannot be sustained because his rights in the permissible area retained by the landowner and his right to companypensation in respect of the surplus area are number touched by the section. Nor is it possible to say that the section results in the transfer of rights of the descendants of a landowner in the permissible or surplus area in favour of such landowner. The section does number effect any change in the rights of the descendants as members of a Hindu undivided family or the relationship of the family inter se except to the extent of depriving the descendants of their right to claim the ceiling area for each of them. The companytention as to the validity of S. 32-KK, therefore, must fail. The next companytention was that the section infringes Art. 15 inasmuch as by limiting it only to Hindu undivided families it discriminates against descendants forming such families on the ground of religion only. It was argued that the customary law in Punjab recognises joint and undivided families amongst number-Hindu persons also and since the section affects only the Hindu undivided families, it violates Art. 15. In support of this companytention passages from Rattigans Digest of Customary Law, 14th Ed. pp. 35 to 36 were relied on to show that the institution of undivided family exists amongst certain classes of Muslims in certain districts of Punjab. Support was also sought from the decisions in Banarsi Das v. Wealth Tax Officer. 2 and Mammad Kevi v. Wealth Tax Officer 3 . The former was companycerned with the question whether a Hindu undivided family is embraced within the term individuals in Entry 56 of List 1 of the Seventh Schedule to the Constitution for purposes of the Wealth Tax Act, 1957. The latter decision does number touch the question under Art. 15. Neither of the two decisions, therefore, can assist. On the other hand, in the case of Bhagat v. State of Punjab 4 the High Court of Punjab has held that section 32-KK does number create any discrimination on the ground of religion. In the present case, it is number possible to give 1 1967 2 S.C.R. 762. 3 1966 50 I.T.R. 737. L7Sup.Cl/67-9 2 1965 56 I.T.R. 224. I.L.R. 1963 16 1 Punj. 500. any companycluding answer to the companytention raised by Mr. Mani firstly because such a point was number raised in the writ petition and secondly because the appellants have number placed before us sufficient data to enable us to go into the question. We, therefore, refrain from examining that companytention.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 71 of 1965, Appeal from the judgment and decree dated February 1, 1962, of the Calcutta High Court in Appeal No. 65 of 1959, P. Das, M. G. Poddar and V. N. Poddar, for the appellants.- N. Sinha and S. N. Mukherjee for the respondents. The Judgment of the Court was delivered by Shah, J. A building in the town of Calcutta belonging to the the Chitpore Golabari Company Private Ltd. was let out undeia Written lease for a period of twelve years companymencing from January 1, 1939, to Messrs Allen Berry Co. Ltd.- liereinafteicalled Allen Berry. Under the terms of the lease sub-letting or parting with the possession of the deiiiised premises or any part thereof by the tenants without the previous companysent in writing of the landlord was expressly prohibited. After the vxpiry of the period Allen Berry companytinued to hold over the premises. On August 12, 1953. Allen Berry served a numberice in writin , upon the landlord intimating their intention to vacate the premises oil August 31, .1953, at 3-30 P.m. and requested the landlord to arrange to take delivery of possession. 13y letter dated August 1953. Allen Berry informed the landlord that they did number intented to vtcate the premises on August 31, 1953, as originilly intimated or at all, and that the numberice dated August 12 , 1953, be treated as cancelled. By letter dated August 28, 1953, attorney of the landlord informed Allen Berry that the earlier, numberice, dated August 12, 1953, companyld number be withdrawn except by mutual companysent, and since the landlord had a-reed to lease the premises to Messrs. lop Rubber Co. India Ltd. with effect from September, 1953, the landlord was unable to give his companysent to such withdrawal, and that it would insist upon Allen Berry vacatin the premises as already intimated. Allen Berry addressed a letter to the landlord on September 14, 1.953, intimating that they were holding over the premises on the expiry of the lease according to the provisions of the Rent Control Act. On February -IO, 1954, the landlord called upon Allen Berry to vacate and deliver possession of the premises, on the expiry of March 31, 1954. Allen Berry failed to carry out the requisition, and on May 7, 1954, they sub-let a part of the ground floor measuring approximately 2100 sq. ft. to Happy Homes P Ltd.-respondent in this appeal. The landlord then instituted a suit against Allen Berry claiming a decree in ejectment in respect of the demised premises -,Ind for mesne profits and other reliefs. This suit was settled on March 28, 1955 and a companysent decree was passed. The important recitals in the decree were that 1 Allen Berry had surrendered the tenancy by numberice dated August 12, 1953-, 2 that they had hander over possession of the portion of the in their occupation to the landlord 3 that the landlord will be it liberty either to retain the sub-tenant or to eject him and 4 that the sub-tenancy lad been created without the ledge and companysent of the landlord. The landlord then sued Messrs Happy Homes P hereinafter called the respondent in the High Court of Calcutta for a decree for possession of the premises in its occupation and for mesne profits. The suit was resisted by the respondent principally on two grounds i that the tenancy of Allen Berry was number determined before the sub-letting in their favour Lind ii that even if it be held that the tenancy of Allen Berry was determined before May 7, 1954, by virtue of the provisions of the West Bengal. Rent Control Temporary Provisions Act, 1950, the respondent became a direct tenant of the landlord and was entitled to the benefits of that Act. P. Mitra, J., decreed the claim of the landlord for possession of the premises in the occupation of the respondent and for mesne profits at the rate of Rs. 495/- per month from March 1, 1955 till delivery of possession. During the pendency of the appeal against the decree passed by S. P. Mitra, J., the landlord transferred the premises to Messrs Calcutta Credit Corporation Ltd. The landlord and the trans- feree will companylectively be, referred to hereinafter as the landlords. A Division Bench of the, High Court reversed the decree passed by S. P. Mitra, J., and ordered that the claim of the landlords be dismissed. Whether the tenancy of Allen. Berry stood determined by the numberice dated August 12, 1953, may first be companysidered. Allen Berry were tenants holding over in respect of the demised premises after the expiry of the period of the original lease. By their numberice dated August 12, 1953, they intimated their intention to vacate the premises on August 31, 1953, at 3.30 P.M. They thereafter withdrew this intimation by letter dated August 25, 1953. The landlord did number agree to the withdrawal of the numberice dated August 12, 1953, and insisted that possession of the demised pre- mises be delivered. By cl. h of s. 11 1 of the Transfer of property Act, 1882, a lease of immovable property is determined on the expiration of a numberice to determine the lease, or to quit, or of intention to quit, the property leased, duly given by one party to the other. It was urged on behalf of the landlord that the numberice of intention to quit the property leased and to determine the lease given by the tenant to the landlord companyld number be withdrawn, and the rotation of landlord and tenant may be restored only if by mutual agreement between the landlord and tenant a fresh tenancy was created. Reliance in support of this companytention was placed upon the observations made in Foas General Law of Landlord Tenant, 8th Edn., at P. 613 A numberice to quit cannot be waived for once a valid numberice is liven, the tenancy will inevitably be deter-mined upon its expiration. But though the parties cannot waive the numberice, they may nullify its operation as to quitting by agreeing upon a new tenancy, whether on the terms of the former or number, to companymence from the time of its expiration. and upon similar observations in Woodfall on Landlord and Tenant, Vol. 1, 26th Edn., Art. 2114, at p. 973 and upon the judment of the Court of Exchequer in Tayleur v. Wildin Counsel for the respondent companytended that the rights and obligations of the parties are governed by the provisions companytained in s. 113 of the Transfer of Property Act, and that it is open to a tenant to withdraw the numberice of intention to quit before the expiry of the period thereof. Counsel also companytended that the tenancy was number determined, because the numberice served by Allen Berry was number a numberice duly given within the meaning of s. 1ll of the Transfer of Property Act. Section 113 of the Transfer of Property Act provides 1 1867-68 L. R. 3 Ex. Cases 303. A numberice under section 111, clause h , is waived, with the express or implied companysent of the person to whom it is given, by any act on the part of the person giving it showing an intention to treat the lease as subsisting. Clearly s. 113 companytemplates waiver of the numberice by any act on the part of the person giving it, if such an act shows an intention to treat the lease as subsisting and the other party gives his companysent-express or implied thereto. The law under the Transfer of Property Act on the question in hand is number different from the law in England. Once a numberice is served determining the tenancy or showing an intention to quit on the expiry of the period of the numberice, the tenancy is at an end, unless with the companysent of the other party to whom the numberice is given the tenancy is agreed to be treated as subsisting. It was held in Tayleur v. Wildin 1 that a numberice determining a tenancy cannot be withdrawn. In Tayleur v. Wildin 1 an annual tenancy of a farm under a written lease companymencing on Lady Day, i.e., March 25, was determined by a numberice by which the landlord called upon the tenant to quit the farm at the expiration of the current years tenancy. Before the expiry of the year of tenancy, the arrears of rent were paid up by the tenant, and the numberice was withdrawn and the tenant companytinued in occupation of the farm under the terms of the original agreement. It was held by the Court of Exchequer that the tenancy was determined by the numberice to quit, and a surety for payment of rent under the original lease was number liable for rent falling due after the expiry of the numberice. Kelly C. B., observed that whether the numberice is given by the landlord or the tenant, the party to whom it is given is entitled to insist upon it, and it cannot be withdrawn without the companysent of both. The companysent of the parties makes a new agreement, and the rent became, due under a new agreement. ln our judgment, that principle applies to the law of landlord tenant in India. Therefore on the expiration of the period of numberice dated August 12, 1953, the tenancy of Allen Berry stood determined. But, it was companytended, the numberice intimating an intention to quit at 3-30 P.m. on August 31, 1953, was number a numberice duly given within the meaning of s. 111 h of the- Transfer of Property Act. It is number necessary to decide for the purpose of this case whether the month of the tenancy of Allen Berry expired on the midnight of the first day of every calendar month for, in our judgment, a numberice which is defective may still determine the tenancy, if it is accepted by the landlord. A numberice which companyplies with the requirements of s. 106 of the Transfer of Property Act operates to terminate the tenancy, whether or number the party 1 1867-68 L.R. 3 Ex. Cases 303. served with the numberice assent, thereto. A numberice which does number companyply with the requirements of S. 106 of the Transfer of Property Act in that it does number expire with the end of the month of the tenancy, or the end of the year of the tenancy, as the case may be, or of which the duration is shorter than the duration companyemplated by S. 106, may still be accepted by the party served with the numberice and if that party accepts and acts upon it, the part. , serving the numberice will be estopped from denying its validity. The defect in the numberice served by one, party may undoubtedly be relied upon by the other party and he may plead that the tenancy does number stand determined but after the numberice is accepted by the other party who acts upon it, the party serving the numberice cannot companytend that the numberice served by him was defective, and on that account the tenancy was number determined., The reason of the rule is clear. A tenancy is determined by service of the numberice in the manner prescribed by S. 111 h read with S. 106 of the Transfer of Property Act. If the numberice is duly given, the tenancy stands determined on the expiry of the period of the tenancy. Even if the party served with the numberice does number assent thereto, the numberice takes effect. If the numberice is defective, it does number operate to terminate the tenancy by force of the statute. But a tenancy is founded in companytract, and it is always open to the parties thereto to agree that the tenancy shall be determined otherwise than by numberice served in the manner provided by S. 106 of the Transfer of Property Act, or by a numberice of a duration shorter than the period provided by the Act. If the parties so agree, the tenancy will companyic to an end. The landlord according to the terms of the agreement by its letter dated August 28, 1953, informed Allen Berry that it did number agree to the withdrawal of the numberice, since it had already agreed to lease out the premises to Messrs Dunlop Rubber Co. India Ltd. with effect from September 1, 1953. The companytent,,, of the letter clearly prove, in the absence of any evidence to the companytrary, that the offer to terminate the tenancy on August 31. 1953, was accepted by the landlord and the landlord had acted upon that offer. The tenancy stood determined as proposed by Allen Berry. Allen Berry companyld number thereafter claim, in the, absence of a fresh agreement, that there was a subsisting companytractual tenancy. We are unable to agree with companynsel for the respondent that in order to determine a tenancy under the Transfer of Property Act at the instance of a tenant. There must be actual delivery of possession before the tenancy is effectively determined. That companytention is companytrary to the plain terms of S. 111 h of the Transfer of Property Act. We are therefore of the opinion that by virtue of the numberice dated August 12, 1953, and acceptance L 10 Sup CI/68-3 thereof by the landlord, the tenancy of Allen Berry was determined at 3-30 P.m. on August 31, 1953. It is unnecessary in that view to companysider whether the numberice dated February 20, 1954, requiring Allen Berry to vacate and deliver possession of the premises to the landlord on expiry of March 31, 1954, was a valid numberice. Counsel for the respondent urged that granting that the tenancy of Allen Berry stood determined by the numberice dated August 12, 1953, and acceptance thereof by the landlord, Allen Berry acquired the status of statutory tenants and companyld claim protection of the West Bengal Premises Rent Control Temporary Provisions Act 17 of 1950, and were companypetent by virtue of the provisions of that Act to sub-let the premises in their occupation. In Anand Nivas- Private Ltd. v. Anandji Kalyanji Pedhi Ors. 1 , this Court in dealing with the analogous provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, explained the nature -of the right and interest of a statutory tenant in premises in his occupation. It was observed at p. 908 by the majority of the Court A person remaining in occupation of the premises let to him after the determination of or expiry of the period of the tenancy is companymonly, though in law number accurately, called a statutory tenant. Such a person is number a tenant at all he has numberestate or interest in the premises occupied by him. He has merely the protection of the statute in that he cannot be turned out so long as he pays the standard rent and permitted increases, if any, and performs the other companyditions of the tenancy. His right to remaining possession after the determination of the companytractual tenancy is personal it is number capable of being transferred or assigned, and devolves on his death only in the manner provided by the statute. In Solomon v. Orwell 2 , Denning L. J., in dealing with the provisions of the Landlord and Tenant Rent Control Act, 1949, spoke as follows When a statutory tenant sub-lets a part of the premises, he does number thereby companyfer any estate or interest on the sub-tenant. A statutory tenant has numberestate or interest himself, and he cannot carve something out of numberhing. The sub-tenant, like the statutory tenant, has only a personal right or privilege. The question is 1 1964 4 S.C.R. 892. 2 1954 1 All E.R. 874. What is the position of the sub-tenant when the statutory tenancy companyes to an end ? A statutory tenancy may, of companyrse, companye to an end without a numberice to quit, e.g. by death if there are numberentitled relatives o r by the delivery up of the premises to the landlord. When the statutory tenancy companyes to an end, the subtenants right automatically companyes to an end unless there is some statutory protection afforded to him. It was urged that the West Bengal Premises Rent Control Temporary Provisions Act 17 of 1950 expressly companyferred upon a statutory tenant the right to sub-let the premises and a sub-tenant inducted into the premises by the statutory tenant acquires, on the determination of the tenancy of the statutory tenant, the rights of a tenant of the premises under the landlord. Reliance in that behalf was placed upon the definition of tenant in s. 2 II and, ss. 12 13 of the Act. The expression tenant is defined in s. 2 II as, meaning any person by whom rent is, or but for a special companytract would be, payable for any premises, and includes any person who is liable, to be sued by the landlord for rent. Section 12 grants protection to tenants against eviction. By sub-s. 1 , insofar as it is material, it is provided Notwithstanding anything to the companytrary in any other Act or law, numberorder or decree for the recovery of possession of any premises shall be made by any companyrt in favour of the landlord against a tenant, including a tenant whose lease has expired Provided that numberhing in the sub-section shall apply to any suit for decree for such recovery of possession, a against a tenant who has transferred his tenancy right in whole or in part with possession otherwise than by sub-lease b against such transferee c against a tenant who has sub-let the whole or a major portion of the premises for more than seven companysecutive months Provided that if a tenant who has sublet major portion of the premises agree to possess as a tenant the portion of the premises number sub-let on payment of rent fixed by the Court, the Court shall pass a decree for ejectment from only a portion of the premises sub-let and fix proportionately fair rent for the portion kept in possession of such tenant which portion shall thenceforth companystitute premises under clause 8 of section 2 and the rent so -fixed shall be deemed standard rent fixed under section 9, and the rights and obligations of the sub-tenants of the portion from which the tenant is ejected shall be the same as of sub-tenants under the provisions of section 13 Section 12 1 companyfers protection to a tenant-which expression includes a tenant whose lease has expired-against eviction by any order or decree of the Court. But that protection is lost in cases companytemplated by cls. a to i of sub-s. 1 . If a tenant has sub-let the premises let to him in its entirety, lie loses the protection of s. 12. If he has sub- let a major portion of the premises for more than seven companysecutive months, he also loses the protection. It is implicit that if the tenant has sub-let only a small portion of the premises occupied by him does number lose the protection. The tenancy companytinues, and the subtenant of such a small portion would, it is apprehended be entitled to remain in possession. Where, however, a major portion of the premises has been sub-let, it would be open to the tenant to offer to possess as a tenant the portion of the premises number sub-let by him. In that case the sub-tenants would have the same rights and privileges as are companyferred by s. 13. Section 13 provides Notwithstanding anything companytained in this Act, or in any other law for the time being in force, if a tenant inferior to the tenant of the first degree sublets a whole or in part the premises. let to him except with the companysent of the landlord and of the tenant of a superior degree above him, such sub-lease shall number be binding on such number-consenting landlord, or on such number-consenting tenant. Explanation.-In this sub-section- a a tenant of the first degree means a tenant who does number hold under any other tenant b a tenant inferior to the tenant of the first degree means a tenant holding immediately or mediately under a tenant of the first degree c landlord means the landlord of a tenant of the first degree. Where any premises or any part thereof have been orhas been sub-let by a tenant of the first degree or by a tenant inferior to a tenant of the first degree, as defined in explanation to sub-section 1 , and the sub- lease is binding on the landlord of such last mentioned tenant, if the tenancy of such tenant in either case is lawfully determined otherwise than by virtue of a decree in a suit obtained by the landlord by reason of any of the, grounds specified in clause h of the proviso to sub-section 1 of section 12, the sub-lessee shall be deemed to be a tenant in respect of such premises or part, as the case may be, holding directly under the landlord of the tenant whose tenancy has been determined, on terms and companyditions on which the sub- lessee would have held under the tenant if the tenancy of the latter had number been so determined Provided We are number directly companycerned in the present -case with sub- s. 1 of s. 13. That sub-section only deals with sub-letting by a tenant inferior to the tenant of the first degree. In the present case, Allen Berry were direct tenants from the landlord and initially were tenants of the first degree. Sub-section 2 deals with cases of sub-letting by tenants of the first degree or by a tenant inferior to the tenant of the first degree as defined in the Explanation to sub-s. 1 , and such sub-lease is binding on the landlord of such last mentioned tenant. It is provided thereby that if the tenancy of such tenant is lawfully determined otherwise than for personal occupation, the sub-leasee will be deemed to be a tenant in respect of such premises or part thereof and will hold directly under the landlord of the tenant whose tenancy has been determined. Counsel for the respondent companytended that a sub-tenant of a statutory tenant is entitled to the protection of s. 13 2 of Act 17 of 1950, and relied upon the following observations made by this Court in Indra Kumar Karnani v. Atul Chandra Patitundi and Anr. 1 Section 13 2 refers to both the classes of subleases and states that if the sub-lease has been made by a tenant of the first degree, the sub-lessee shall be deemed to be a tenant in respect of the premises demised to him if the tenancy of such tenant is lawfully determined under the provisions of the Act otherwise than by virtue of a decree in a suit obtained by the landlord by reason of any of the grounds specified in cl. h of the proviso to sub- section 1 of section 12. . . . . . . . . . . . . It follows that in the case of sub-letting by a tenant of the first degree numberconsent of the landlord to subletting is required as a companydition precedent for acquisi- 1 1965 3 S.C.R. 329. tion by the sub-lessee of the tenants right but in the case of sub-letting by a ten-ant inferior to the tenant of the first degree the companysent of the landlord and also of the tenant of the superior degree above him- to -the sub- letting is necessary if the sub-lessee is to acquire the rights of the tenant companytemplated by S. 13 2 . But the Court decided in Indra Kumar Karnants case 1 that a companyenant in the lease prohibiting a tenant from sub- letting, in respect of premises governed by the West Bengal Premises Rent Control Temporary Provisions Act 17 of 1950 does number prevent the sub-tenant under a companytractual tenant from setting up the claim that he has become entitled under s. 13 2 of the Act to the rights of the tenant in respect of the premises or part thereof sub-let to him. The case is number an authority for the proposition that a tenant whose tenancy is determined, and who companytinues to remain in occupation merely by virtue of the protection companyferred upon him by the statute is entitled to sub-let. Counsel then companytended that the Legislature has, numberwith- standing the disabilities of the, statutory tenant, by express enactment companyferred upon him the privilege of inducting into the premises held by him a sub-tenant, who would be entitled to claim the rights of a companytractual tenant against the landlord in the events mentioned in the proviso to S. 12 1 c and s. 13 2 . Relying upon the definition of tenant in s. 2 11 of the Act, companynsel argued that in s. 12 the expression tenant includes a statutory tenant as well as a companytractual tenant, and that if a sub- tenant in respect of a part of the premises is -protected by the express provision companytained in the provision 12 1 c , a sub-tenant of the entire premises whether the tenant is a companytractual tenant or a statutory tenant is entitled to protection of the Act. According to companynsel ss. 12 1 c proviso and 13 2 are parts of a single scheme, and the expression tenant in both the sections includes a statutory tenant, and sub-tenants inducted by the statutory tenants in the premises are entitled to the protection of the Act. Reliance in support of this companytention was placed upon a Full Bench judgment of the Calcutta High Court in Krishna Prosad Bose v. Smt. Sarajubala Dassi and Anr. 2 wherein it was held that a tenant under the -Act includes an extenant, that is, a tenant whose companytractual tenancy has companye to an end, but who is still in possession occupation - actual or companystructive-of the premises and such a tenant who companytinues in possession by virtue of protection against eviction under the West Bengal Premises Rent Control Temporary Provisions Act, 1950, is entitled to sub-let the premises and the sub-tenant may claim the benefit and protection of S. 13 2 . 1 1965 3 S.C.R. 329. A.I.R. 1961 Cal. 505. We are unable to agree with the companytention raised by companynsel for the respondent. In our view, since--a statutory tenant has merely a personal right to protect his possession, and has numberestate or interest in the premises occupied by him, he cannot companyvey an estate or interest which he does number possess. A statutory tenant by parting with possession forfiets the protection of the Act, and unless the statute expressly provides or clearly implies otherwise, the person inducted by cannot claim the protection of the Act. In our judgment, cl. c of S. 12 1 applies only to a case in which the tenant has an interest in the estate which he companyld sub-let. Similarly, s. 13 companytemplates a case in which a companytractual tenant has sub-let the premises. If it be held that the expression tenant in s. 13 2 and in cl. c of s. 12 1 includes a statutory tenant, an estate or an interest in the demised premises would be companyferred by him upon a transferee which the tenant himself does number possess, and that a tenant who has acted companytrary to the provisions of cls. m , o p of s. 108 of the Transfer of Property Act, or has used the property for immoral or illegal purposes, or has companymitted acts of negligence and default which may materially deteriorate the companydition of the premises, or has otherwise been guilty of companyduct which is a nuisance or annoyance to occupiers of adjoining or neighbouring premises including the landlord, or has failed to pay rent exceeding two months and has thereby incurred liability to forfeit the protection of the statute granted to him by s. 12 1 and whose right has been forfeited by due numberices, may still sub-let the premises and the sub-lessee would then be entitled to claim the right under s. 13 2 on the determination of the tenancy of the tenant. Considered in the light of the scheme and object of the Act, the expression tenant in cl. c of s. 12 1 or in s. 13 2 must, in our judgment, mean a companytractual tenant alone and number a statutory tenant. The definition in s. 2 1 1 of the expression tenant includes a statutory tenant. But the definition does number apply if there is anything repugnant in the, subject-or companytext. A statutory tenant has numberinterest or estate in the premises occupied by him, and we are unable to hold that the Legislature without making an express provision to that effect intended to invest him with power to induct into the premises in his occupation a person who would be entitled to claim the right and interest of a companytractual tenant. If the view which has appealed to the High Court of Calcutta be accepted, a statutory tenant whose right of occupation is determined by a numberice to quit, because of companyduct which entails forfeiture of the protection of the Act, may induct a sub-tenant so as to defeat the claim of the landlord, and presumably a tenant sued in ejectment may also exercise that privilege, for the fight if granted would enure till a decree in eject- ment is passed. The Legislature has number made any such express provision, and numberprovision to that effect which makes the right of the landlord companyferred by the Act to obtain a decree in ejectment against his tenant wholly illusory may be implied. The appeal is therefore allowed and the decree passed by the trial Court restored with the modification that mesne profits will be payable from September 1, 1953 at the rate of Rs. 495/per month till delivery of possession. The landlords will be entitiled to their companyts in this,Court and before the, Division Bench of the High Court.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 339 of 1966. Appeal by special leave from the judgment and order dated December 12, 1962 of the Bombay High Court in First Appeal No. 436 of 1967. L. Sanghi, and A. G.Ratnaparkhi, for the appellants. T. Desai and I. N. Shroff, for the respondents. The Judgment of the Court was delivered by Ramaswami, J. This appeal is brought by special leave from the judgment of the Bombay High Court dated 12th December, 1962 in First Appeal No. 436 of 1958 by which the High Court dismissed the appeal and allowed the cross-objections filed by the respondents in the said appeal. The relationship of the parties will appear from the following pedigree Neneppa Gowdwppa1. Kashibai ApparayaSidgangawa II Sigangawa I died on Widows of Gowdappa 20-12-53 wife of Apparaya time of Apparaya Gangabai Neneppa II Neneppa II Revgowda Subhadra- widoed daughter adopted in Sidgangawa bai daug- of Gowdappa 1930 died in III wife of Reveg- ter of Appellant No. 1944 owda Respodent No. Apparaya 5in 1944 2 Appellant No. 3. NeelagangawaMudigowda daughter of alleged to Neneppa II have been Ramchandra adopted Appellant No. adopted by to Revegowda by Gowdappa in Sidgangawa III 1948 and became Respodent No. the husband of 1. since deceased. Neelagangawa Appellant No.1. Goudappa had one daughter by name Gangabai, while Apparaya had three children i Nenappa II, ii Ravagowda and iii Subhadrabai.In 1930 Nenappa 11 was given in adoption to Goudappa. He had two wives Kashibai and Sidgangawa. Revagowda Married another Sidgangawa. In 1938 Revagowda was murdered. Thereafter Goudappa and Apparaya purported to effect a partition between themselves. At the time of the death of Nenappa 1, six plots of lands belonged to the joint family. Five of these plots are survey Nos. 43, 59, 65, 66 and 69 measuring 137 acres and 15 gunthas and assessed at Rs. 126/12/- and are located in Borgi Khurd. The other plot survey No. 77 which was in Borgi Budruk measured 14 acres and 24 gunthas and was assessed at Rs. 16/14/-. The total area of the ancestral lands was, therefore, 151 acres and 27 gunthas assessed at Rs. 143/. Between 1911 and 1940, 12 other pieces of lands in both these villages measuring 137 acres and 39 gunthas and assessed at Rs. 18/10/- were acquired in various names. After Nenappa II was murdered in 1944, both the brothers denied his adoption by Goudappa and purported to effect a partition on 28th April, 1944. After the partition deed was executed various alienations were made by the two. brothers. On 25th September, 1944 by Ex. 161 Goudappa gifted S. Nos. 61 and 62 of Borgi Budruk and Survey No. 45 of Borgi Khurd to defendant No. 4, Subhadrabai. By Ex. 162, dated 1st October, 1946 Goudappa made a gift of plot survey Nos. 62 and 63 of Borgi Khurd and Survey No. 11/3 of Borgi Budruk to defendant No. 3 who is the daughter of Nenappa H. On 20th April, 1948 by Ex. 159 Apparaya sold survey Nos. 77 and 43 to defendant No. 3 for a sum of Rs. 50001. On the same day by Ex. 160 Goudappa sold survey No. 79 for Rs. 1,000/- to Apparaya. Again on 17th May, 1948, by Ex. 158 Goudappa made a gift of plot survey Nos. 59 and 60 of Borgi Khurd to defendant No. 3. By Ex. 117, dated 7th December 1948 Gou- dappa by a Vardi transferred survey No. 66 of Borgi Khurd, to defendant No. 6 his widowed daughter. On 15th December, 1948 Goudappa gave a portion of plot No. 96 to Sidgangawa, wife. of Apparava for maintenance By Ex. 166, dated 25th May, 1950, Goudapa and defendant No. 1 together sold to defendant No 5 portion of survey No. 23 for a sum of Rs. 3,000/. Finally on 19th November, 1953, Apparaya executed his last will which is Ex. 168 whereby he bequeathed survey No. 79 to, defendant No. 4 and one house to his daughter defendant No. 4. The plaintiff claimed to be the adopted son of Revagouda and brought the present suit on 10th June, 1954 challenging the partition deed as fraudulent. He alleged that it was intended to defeat the rights of the widows, that it was never acted upon and that the family companytinued to be joint. The defendants companytested the suit on the ground that the partition deed Ex. 157 was a genuine transaction and was acted upon, that Apparaya and Goudappa became separate in status and managed their properties separately. The defendants supported all the alienations as being genuine and effective. The trial companyrt came to the companyclusion that the 12 pieces of lands which were acquired between 1911 and 1940 formed part of the joint family properties, that the partition deed Ex. 157 was number intended to be acted upon but was executed to defeat the rights of the widows. The trial companyrt held that numbere of the alienations except the sale deed Ex. 159 executed by Apparaya in respect of survey plots Nos. 43 and 77 in favour of defendant No. 3 was binding on the plaintiff. The trial companyrt accordingly made a decree for partition with appropriate directions. The defendants took the matter in appeal to the High Court. The plaintiff also filed a cross.-objection with regard to the sale-deed Ex. 159. By its judgment dated 12th December, 1962, the High Court dismissed the appeal of the defendants and allowed the cross-objection of the. plaintiff holding that the sale-deed Ex. 159 regarding survey plots Nos. 43 and 77 was also number binding upon the plaintiff. The first question to be companysidered-in this appeal is whether the partition. deed executed by Goudappa and Apparaya on 28th April, 1944 was a sham transaction and number intended to be effective. Both the trial companyrt and the High Court have reached a companycurrent finding after an elaborate examination of the evidence that the partition deed was number genuine, and that it was effected for an ulterior purpose in order to defeat the rights of the widows in the joint family. It is manifest that the finding of the lower companyrts upon this question is essentially a finding upon a question of fact, and in an appeal by special leave it is the numbermal practice of this Court to accept such a companycurrent finding of fact as companyrect. It was, however, companytended by Mr. sanghi that the finding of the lower companyrts is vitiated in law because there was numberevidence in support of that finding. In our opinion, there is numberjustification for this argument. In the partition deed it is recited that the lands were partitioned with the help of Panchas but the names of Panchas are number mentioned in the document and numbere of the Panchas has signed it. As to the division of the- properties, Goudappa has been given 101 acres and 39 gunthas while Apparaya has been given 50 acres and 10 gunthas only. The total assessment of lands given to Goudappa is Rs. 82/3/- while the assessment of the lands given to Apparaya is Rs. 61/7/-. There appears to be numberdivision of the house at all, since numberhing is mentioned in the partition deed about the house. The unequal division of the lands in the so called partition deed is a strong circumstance which indicates that the transaction was number genuine. It should also be numbericed that at the time of the partition deed there were widows of two sons in the family, Nenappa the second and Revagouda. At about this time, after Nenappas death, the adoption of Nenappa by Goudappa was denied. The scheme of the partition was, therefore, to deprive the two widows of any claim for maintenance out of the joint family properties but to limit their rights to about 50 acres of land given to Apparaya. There is also evidence that after the partition deed, the two brothers companytinued to be in joint possession of the lands and they lived joint in the same house as before. It appears that the two brothers had a joint mess even after the date of partition. It was companytended by Mr. Sanghi that there,was numberevidence that the two brothers companytinued to be in joint possession of the lands. But if is number possible to accept this argument as companyrect. On a perusal of the evidence it is apparent that Ws. 1 to 4 all supported the case of the joint possession of the two brothers and their evidence has been believed by both the lower companyrts. There is another circumstance which strongly lends support of the plaintiffs case on this point. It was at one time supposed that the doctrine of Mitakshara law was that if the last surviving companyarcener died and the property passed to his heir, such as a widow or a companylateral, the power of the widow of a predeceased Sup. CI/69-17 companyarcener to. adopt was at an end. Chandra v. Gojarabai and Adivi Suryapnakasarao v. Nidamarty Gangaraju 2 . The cases on this point were companysidered in 1936 by the Full Bench of the Bombay High Court in Balu Sakharam Powar v. Lahoo Sambhaji Tetgura 3 . It was held in that case that where a companyarcenary exists at the date of the adoption the adopted son becomes a member of the companyarcenary, and takes his share in the joint property, but where the partition takes place after the termination of the companyarcenary by the death, actually or fictionally, of the last surviving companyarcener, the adoption by a widow of a deceased companyarcener has number the effect of reviving the companyarcenary and does number divest property from the heir of the last surviving companyarcener other than the widow or those claiming through him or her. But the decision of the Full Bench of the Bombay High Court was expressly over-ruled by the Judicial Committee in Anant V. Shankar 4 It was held that the power of a Hindu widow does number companye to an end on the death of the sole surviving companyarcener. Neither does it depend upon the vesting or divesting of the estate, number can the right to adopt be defeated by partition between the companyarceners. The rights of the adopted son relate back to the date of the adoptive I fathers death and the adopted son must be deemed by a fiction of law to have been in existence as the son of the adoptive father at the time of the latters death. If, therefore, there was a companyarcenary in existence when the adoptive father then whether it came to an end by the death of the last surviving companyarcener or by subsequent partition among the remaining members, an adoption validly made by the widow of the deceased companyarcener would have the effect of divesting the estate in the hands of the heir to the last surviving companyarcener in the first case and of putting an end to the partition in the second case and enabling the adopted son to claim a share in the family properties as if they were still joint. The decision of the Judicial Committee in Anant v. Shankar 4 was unexpected and revolutionary in character. It is likely that in view of the fluid and un- certain state of the law on this point the two brothers Goudappa and Apparaya decided to execute a bogus deed of partition in order to avoid any legal companysequence which may follow if either of the widows should take a son in adoption. We are accordingly of the view that there is proper evidence to support the companycurrent finding of the lower companyrts and there is numberreason to disturb that finding. it was also companytended on behalf of the appellants that even though the partition deed was bogus there was in law a severance of joint family status and the family companyld number companytinue to be joint I.L.R. 14 Bom. 463. 3 A.I.R. 1937 Bom. 279. I.L.R. 33 Mad. 228. 4 A.T.R. 1943 P.C. 196. after 20th April, 1944 which was the date of the partition deed. In other words, the argument was that there was a declaration by the companyarceners of their intention to separate and that declaration was sufficient to put an end to the joint family. status of the two brothers. In our opinion, there is numbersubstance in this argument. It is number well established that an agreement between all the companyar- ceners is number essential to the disruption of the joint family status, but a definite and unambiguous indication of intention by one member to separate himself from the family and to enjoy his share in severalty will amount in law to a division of status. It is immaterial in such a case whether the other members assent or number. Once the decision is unequivocally expressed, and clearly intimated to his company sharers, the right of the companyarcener to obtain and possess the share to which he admittedly is entitled, is unimpeach- able. But in order to operate as a severance of joint status, it is necessary that the expression of intention by the member separating himself from the joint family must be definite and unequivocal. If, however., the expression of intention is a mere pretence or a sham, there is in the eye of law numberseparation of the joint family status. See for instance the decision of the Judicial Committee in Merla Ramanna v. Chelikani Jagannadha Rao Ors. 1 . We pass on to companysider the next question arising in this appeal,, viz. whether the High Court was right in holding that the 12 pieces of lands were joint family properties and were number the self acquisition of Goudappa. The case of the appellants was that these lands were self-acquisition of Goudappa, but the respondents companytended that they were joint family properties. The law on this aspect of the case is well settled. of companyrse there is numberpresumption that a Hindu family merely because, it is joint, possesses any joint property. The burden of proving that any particular property is joint family property, is, therefore, in. the first instance upon the person who claims it as companyarcenary property. But if the possession of a nucleus of the joint family property is either admitted or proved, any acquisition made by a member of the joint family is presumed to be joint family property. This is. however, subject to the limitation that the joint family property must be such as with its aid the property in question companyld have been acquired. It is only after the possession of an adequate nucleus is shown, that the onus shifts on to the person who claims, the property as self acquisition to affirmatively make out that the property was acquired without any aid from the family estate. In Appalaswami v. Suryanarayanamurti 2 , Sir John Beaumont observed as follows The Hindu law upon this aspect of the case is well settled. Proof of the existence of a joint family does A.I.R. 1941 P.C. 48. I.L.R. 1948 Mad440. P.C. number lead to the presumption that property held by any member of the family is joint, and the burden rests upon anyone asserting that any item of property was joint to establish the fact. But where it is established that the family possessed some joint property which from its nature and relative value may have formed the nucleus from which the property in question may have been acquired, the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family property. See Babubhai Girdharlal v. Ujamlal Hargovandas 1 , Venkataramayya v. Seshamma 2 and Vythianatha v. Varadaraja 3 . In the present case, both the lower companyrts have found that there was an adequate nucleus of joint family properties from which the acquisitions companyld have been made. It is admitted that when Nenappa I died, the joint family was possessed of 151 acres and 27 gunthas of land assessed at Rs. 143. It is further admitted by defendant No. 1 that out of the four ancestral lands, one land was Bagayat land. Witnesses on behalf of the plaintiff assessed the income between Rs. 5,000 to Rs. 6,000 before the first world war. It is also companyceded that the family had between 8 to 12 bullocks for the purposes of cultivation and most of the lands were cultivated personally by-the family members. Between 1911 and 1940 12 other pieces of lands measuring 137 acres and 39 gunthas assessed at Rs. 18/10/- were acquired in various names. The total price of the sale deeds is Rs. 4800 spread over a period of 30 years. In view of this evidence, we see numberreason to differ from the finding of the lower companyrts that the income from the nucleus was more than sufficient for the purchase on the different dates. The respondents alleged that these properties belonged to the joint family, and unless it is shown by the appellants that Goudappa carried on any other business and that these pro- perties were acquired out of that income, the appellants must fail. The case of defendant N6. 1 was that Goudappa made these acquisitions out of his business. D.W. 1 did number however state the nature of the business. In cross- examination he said that Goudappa was trading in companyton and this information he had got from Goudappa after his adoption. D.W. 1 was however unable to say with whom Goudappa had dealings in companyton. If Goudappa was doing companyton business it should number have been difficult for the ,defendants to have produced more direct evidence of persons with whom he had business dealings. The High Court has rejected the evidence of D.W. 3, Imamsaheb as worthless. It is manifest that there is numberproof that Goudappa had any separate income of his I.L.R. Born.708. 2 I.L.R.1937 Mad. 1012. I.L.R. 1938 Mad. 696. own out of which he companyld have acquired the 12 pieces of land. Me lower companyrts were, therefore,right in reaching the companyclusion that the 12 pieces of lands belonged to joint family and that the plaintiff was entitled to a share thereof in the partition. It was lastly companytended on behalf of the appellants that in any case the High Court should number have allowed the cross- objection of the respondents with regard to survey plots Nos. 43 and 77. Reference was made to paragraph 5 of the plaint in which there was numberspecific mention of the sale deed executed by Apparaya in favour of defendant No. 3 of survey plots Nos. 77 and 43. But paragraph 4 should be read along with paragraph 7 of the plaint in which the plaintiff challenged the alienations made-in favour of the several parties to the suit and had claimed relief in respect of all the lands mentioned in the schedule to the plaint. Survey plots Nos. 77 and 43 are expressly mentioned in the schedule. It is, therefore, number possible to accept the companytention of the appellants that the plaintiff had number challenged the sale deed Ex. 159 with respect to survey plots Nos. 77 and 43. The High Court has pointed out that defendant No. 3 was a minor at the time of sale, that Goudappa had acted as her guardian and that defendant No. 3 had numberproperty of her own. The High Court therefore rightly held that the sale must be held to be without companysideration and number genuine and was, therefore, number binding on the plaintiff. For these reasons we hold that the, judgment of the Bombay High Court dated 12th December, 1962 is companyrect and this appeal must be dismissed with companyts.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 1564 of 1968. Appeal under s. 116-A of the Representation of the People Act, 1951 from the judgment and order dated May 23, 1968-of the Allahabad High Court in Election Petition No. 40 of 1967. Danial Latifi, S. J. Hyder, Rajindra Singh and M. I. Khowaja, for the appellant. Veda Vyasa, K. K. Jain, H. K. Puri, G. N. Dikshit, R. N. Dikshit, S. N. Sinha, K. C. Sharma and M. K. Garg, for the respondent. The Judgment of the Court was delivered by Hegde, J. This appeal under s. 116A of the Representation, of the People Act, 1951 arises from the decision in Election Petition No. 40 of 1967 on the file of the High Court of Judicature at Allahabad. In that petition the appellant challenged the election of the respondent to the U.P. Legislative Assembly from Iglas Constituency in the general election held in February 1967. In that election the appellant, the respondent and four others companytested. The respondent secured 10,705 votes more than the appellant. Other candidates secured less votes than the appellant. The appellant challenged the election of the respondent on various grounds, most of which were given up either in the trial companyrt or in this Court. The High Court dismissed the election petition. Against that order the appellant has companye up in appeal. Before going into the merits of the appeal, it is necessary to deal with the preliminary objections to the appeal, taken by the respondent. The first objection taken was that the petition was number maintainable as it was number properly presented. The second objection was that the petition ceased to be maintainable as a result of the dissolution of the U.P. Legislative Assembly as per the Presidents Proclamation of April 15, 1968 under Art. 356 1 of the Constitution. That Proclamation was issued during the pendency of this election petition before the High Court. The High Court rejected both those companytentions but those companytentions were again pressed for acceptance at the hearing of this appeal. The High Court has found as a fact that the election petition was presented to the registry by an advocates clerk in the immediate presence of the petitioner. Therefore, in substance though number in form, it was presented by the petitioner himself. Hence the requirement of the law was fully satisfied. We are unable to accept the companytention of Mr. Veda Vyasa, learned Counsel for the respondent that the petition must be held to have become infructuous in view of the dissolution of the assembly. In this proceeding we are companysidering the validity of the election of the respondent and number whether he is companytinuing as a member. If the companytention of the appellant that the respondent was guilty of companyrupt practices during the election is found to be true then number only his election will be declared void, he is also liable to incur certain electoral disqualifications. The purity of elections is of utmost importance in a democratic set-up. No one can be allowed to companyrupt the companyrse of an election and get away with it either by resigning his membership or because of the fortuitous circumstance of the assembly having been dissolved. The public are interested in seeing that those who had companyrupted the companyrse of an election are dealt with in accordance with law. That purpose will stand defeated if we accept the companytention of Mr. Veda Vyasa. The election petitions in this companyntry are solely regulated by statutory provisions. Hence unless it is shown that some statutory provision directly or by necessary implication prescribes that the pending election petitions stand abated because of the dissolution of the Assembly, the companytention of the respondent cannot be accepted. Section 80 provides that numberelection shall- be called in question except by an election petition presented in accordance with the provisions of the Act. Section 81 1 says that an election petition calling in question any election may be presented on one or more of the grounds specified in sub-s. 1 of S. 100 and s. 101 to the High Court, by any candidate at such election or any elector. Section 84 prescribes that a petitioner may, in addition to claiming a declaration that the election of all or any of the returned candidate is void, claim a further declaration that he himself or any other candidate has been duly elected. Chapter III of Part VI deals with the trial of election petitions. Section 86 1 prescribes that the High Court shall dismiss an election petition which does number companyply with the provisions of s. 81 or s. 82 or s. 117. Section 87 1 says that subject to the provisions of the Act and of any rules made thereunder, every election petition shall be tried by the High Court, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908 to the trial of suits. Section 97 1 provides for filing recrimination. Section 98 reads At the companyclusion of the trial of an election petition the High Court shall make an order a dismissing the election petition or b declaring the election of all or any of the returned candidates to be void or c declaring the election of all or any of the returned candidates to be void and the petitioner or any other candidate to have been duly elected. Section 99 1 is important for our present purpose. It says At the time of making an order under s. 98 the High Court shall also make an order a where any charge is made in the petition of any companyrupt practice having been companymitted at the election, recording- a finding whether any companyrupt practice has or has number been proved to have been companymitted at the election and the nature of that companyrupt practice and the names of all persons, if any, who have been proved at the trial to have been guilty of any companyrupt practice and the nature of that practice emphasis supplied . Chapter IV of Part VI deals with withdrawal and abatement of election petitions. Section 109 stipulates that an election petition may be withdrawn only by the leave of the High Court and where an application for withdrawal is made numberice thereof fixing a date for the hearing of the application shall be given to all other parties to the petition and shall be published in the official gazette. Section 112 says An election petition shall abate only on the death of a sole petitioner or of the survivor of several petitioners. Where an election petition abates under sub-s. 1 the High Court shall cause the fact to be published in such manner as it may deem fit. Any person who might himself have been a petitioner may, within fourteen days of such publication, apply to be substituted as petitioner and upon companypliance with the companyditions, if any, as to security, shall be entitled to be so substituted and to companytinue the proceedings upon such terms as the High Court may deem fit. Section 1 1 6 reads If before the companyclusion of the trial of an election petition, the sole respondent dies or gives numberice that he does number intend to oppose the petition or any of the respondents dies or gives such numberice and there is numberother respondent who is opposing the petition, the High Court shall cause numberice of such event to be published in the Official Gazette, and thereupon any person who might have been a petitioner may, within fourteen days of such publication, apply to be substituted in place of such respondent to oppose the petition, and shall be entitled to companytinue the proceedings upon such terms as the High Court may think fit. From the above provisions it is seen that in an election petition, the companytest is really between the companystituency on the one side and the person or persons companyplained of on the other. Once the machinery of the Act is moved by a candidate or an elector, the carriage of the case does number entirely rest with the petitioner. The reason for the elaborate provisions numbericed by us earlier is to ensure to the extent possible that the persons who offend the election law are number allowed to avoid the companysequences of their misdeeds. The law relating to withdrawal and abatement of election petitions is exhaustively dealt with in Chapter IV of Part VI of the Act. In deciding whether a petition has abated or number we cannot travel outside the provisions companytained in that Chapter. There is numberprovision providing for the dropping of an election petition for any reason other than those mentioned therein. The act does number provide for the abatement of an election petition either when the returned candidate whose election is challenged resigns or when the assembly is dissolved. As the law relating to abatements and withdrawal is exhaustively dealt with in the Act itself numberreliance can be placed on the provisions of the Civil Procedure Code number did the learned Counsel for the respondent bring to our numberice any provision in the Civil Procedure Code under which the election petition clan be held to have abated. In support of his companytention that the petition has abated great deal of reliance was placed by Mr. Veda Vyasa on the decision in ,Carter and Anr. v. Mills 1 . Therein a pending election petition was allowed to be withdrawn on the dissolution of the Parliament. In doing so Coleridge, C.J. observed thus I am of opinion that this application should be granted. The Queen having been pleased to dissolve Parliament, of which fact the Court must take judicial companynizance, a case has arisen number expressly provided for in the Act and under these circumstances we must guide our proceedings by the old parliamentary practice on the subject. It is companymon knowledge, that according to the old practice the petition abated or dropped in such a case. We think the result is the same number, and that we therefore have authority, and ought to make an order for the return of the deposit. 1 9, Common Pleas p. 117. Keating, J., the other judge agreed with the learned Chief justice. We do number know the facts of that case. It is number known whether the election of the returned candidate was challenged on the ground of any companyrupt practice. The decision in that case rested solely on the old parliamentary practice on the subject. We have numbersuch practice in this companyntry. That being so that decision is of numberassistance for our present purpose. In Ghasi Ram v. Dal Singh and Others 1 this Court proceeded on the basis that the dissolution of the assembly does number put an end to the election petition. For the reasons already mentioned we think that the High Court was right in its companyclusion that the election petition had number abated. This takes us to the merits of the case. As mentioned earlier the election of the respondent was challenged on numerous grounds. On the pleadings as many as 10 issues were raised. At present we are companycerned only with issues Nos. 7, 8 and 10. The only question arising under issue No. 7 is whether Exh. 7, was got printed and published by the respondent. So far as the question of getting it prepared and printed is companycerned, the evidence principally relied on is that of W. 16 Mohan Singh. We are in agreement with the High Court that Mohan Singh is a wholly unreliable witness. According to him he was a signatory to that pamphlet and he took active part in getting it printed which means that he was a party to the publication of false statement. He appears to have been on the side of the respondent at one stage and walked over to the side of the appellant at a later stage, number uncommon during election time. His evidence does number carry companyviction. On his own showing he can be a stooge. In support of the evidence of P.W. 16 reliance was placed on Exh. D-23, one of the vouchers submitted by the respondent along with his return of election expenses. That voucher relates to the printing of two pamphlets on behalf of the respondent. It shows that one of the pamphlet mentioned therein was printed on both sides of the paper. Exh. 7 is also printed on both sides of a paper. From that we are asked to companyclude that the voucher in question refers to printing of pamphlets like Exh. 7. Such an inference would be a far fetched one. According to the respondent D-23 relates to pamphlets similar to Exh. A-154 and A-155. The High Court has number accepted that companytention. The basis on which the High Court rejected that companytention does number appear to us to be companyrect. It is number necessary to go into that question as we are of opinion that there is numbersatisfactory evidence to show that any entry in Exh. D-23 relates to pamphlets similar to Exh. 7. We are also unable to attach any weight to Exh. 3, the companyplaint given by the appellant to the Returning Officer. The appellant 1 1968 3S.C.R 102. has companysiderable experience of filing election petitions. This was. the third election petition filed by him. Even as the election was going on he appears to have been preparing for the election petition. The evidence of P.W. 7, Narayan Singh Bodh throws a great deal of light on this aspect. Large number of witnesses were examined to show that either respondent himself distributed pamphlets like Exh. 7 or he got them distributed through others. Their evidence has been companysidered by the High Court in detail and rejected. We have been taken through that evidence and we were number impressed by the same. We are satisfied that the High Court has companyrectly assessed, that evidence. Generally, this Court accepts the findings of fact arrived at by the High Court. Election petitions are tried by experienced judges of the High Court. They had the benefit of observing the witnesses when they gave evidence. Hence their appreciation. of evidence is entitled to great weight. We have number been shown any good reason for departing from that rule. Now companying to issue No. 8 which relates to the companyplaint of the appellant that the respondent, his agents and workers had hired several vehicles for companyveyance of the voters to and from the polling stations. In the petition, particulars of as many as twelve vehicles which were said to have been used for companyveying voters. were given. But the appellants learned Counsel companyfined his arguments to three vehicles only i.e. Truck No. USK 503, Bus. No. RJL 9729 and a Tractor. So far as Truck No. USK 503 is companycerned, the witnesses. who were examined are P.Ws. 37, 40, 41, 45 and 48. Among them the most important witness is P.W. 45 Sukhbir Singh. He claims to have worked for the respondent and transported voters to the polling station in the truck in question. Further he deposed that he hired that truck from Achaltar truck operators Union Hathras. It is number definitely established and that evidence was. number challenged before us that in Hathras there was numberconcern bearing that name. Hence it is obvious that the evidence of this witness is wholly false. We are unable to accept the companytention of Mr. Latifi, learned Counsel for the appellant that the name of companycern in question was wrongly mentioned by the witness due to some companyfusion. The fact that P.W. 45 at one stage worked for the respondent is number of much significance. Changing sides during election is numberhing unusual. Once the evidence of P.W. 45 is proved to be false very little basis remains for the evidence of other witnesses who spoke to the user of a truck in question. It is companymon knowledge that in the trial of election petitions there would be numberdearth of witnesses. The faction spirit generated during election projects itself during the trial of election petition that follows. Much value cannot be attached to the companyplaint given by the appellants agent to the polling officer Exh. 18 . That document has several suspicious features which were numbericed ,by the High Court. Now companying to the tractor, its registration No. was number spoken to by any witness. There is numberevidence about its hiring. The witnesses who- speak to its user are P.Ws. 33 and 34. The evidence of P.W. 33 is extremely vague. He deposed that a worker,of the respondent Sita Ram carried the voters from the villages to the election booth. He is unable to give the details of the tractor. P.W. 34 is an omnibus witness. The evidence relating to owner ,of that tractor is companyflicting. The evidence of P.Ws. 33 and 34 does number carry companyviction. It was rightly number relied on by the High Court. Now companying to the hiring of Bus RJL 9729, according to the petition that bus was owned by one Babu Lal of Jaipur. That Babu Lal has number been examined. The evidence of P.Ws. 30, 31 and 32 who speak to the companyveyance of the voters in that bus to the polling stations is far from satisfactory. Their evidence did number ,commend itself to the trial companyrt. We agree with the High Court that it is unsafe to rely on their evidence. This takes us to issue No. 10 which relates to the companyplaint of the appellant that the election expenses incurred by the respondent had exceeded the prescribed limit. In this companynection various items of expenses said to have been omitted in the return were particularised in the petition but most of them were number pressed at the hearing. The evidence relating to the expenses said to have been incurred in procuring and hiring vehicles for companyveying voters to the polling booths has to be rejected in view of our earlier findings. Large number of witnesses were examined to show that companysiderable quantity of wheat, atta, sugar and ghee had been purchased by the respondent for feeding his workers and the expenses incurred for that purpose had number been included in the return of expenses. Their evidence has number been believed by the trial companyrt. We have been taken through the evidence and we do number think it is creditworthy number are we able to place any reliance on the documents produced in that companynection. In the result this appeal fails and the same is dismissed with companyts.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeals Nos. 452 and 453 of 1966. Appeals by special leave from the judgment and order, dated July 4, 1964 of the Gujarat High Court in Second Appeals Nos. 33 and 34 of 1964. A. Mehta, B. K. Mehta, K. L. Hathi and Atiqur Rehman, for the appellant in both the appeals . N. Shroff, for respondent No. 1 in both the appeals . L. Anand and K. B. Mehta, for respondent No. 2 in both the appeals . The Judgment of the Court was delivered by Ramaswami, J. The appellant, the Sihor Electricity Works Ltd., is a public limited companypany carrying on the business of generating and distributing electrical energy under the licence granted to it under the Indian Electricity Act, 1910, having its supply area within the limits of Sihor Town situated in the district of Bhavnagar in Saurashtra. The first respondent is the Gujarat Electricity Board which is a Corporation companystituted under the Electricity Supply Act, 1948 for the purposes of generation, supply and distribution of electricity in the State. of Gujarat. The second respondent is the Saurashtra Electrical and Metal In- dustries Private Ltd., a private limited companypany carrying on the business of manufacturing electrical accessories etc. and having its factory at Sihor within the area of supply of the appellant companypany. The appellant companypany was originally generating and distributing electricity but at the relevant time it was a distributing licensee distributing the energy purchased in bulk from the first respondent within its area of supply. The appellant brought a suit against the respondents in the Court of Civil Judge Junior Division of Sihor being Civil Suit No. 45 of 1960 to obtain a declaration that the decision of the first respondent as companytained in its letters dated 3rd June, 1960 and 24th October, 1960 to give direct supply to the factory of the second respondent within the area of supply of the appellant and without its companysent was illegal and ultra vires its powers under the Electricity Supply Act, 1948 Act No. 54 of 1948 hereinafter called the Act , and for a permanent injunction restraining the first respondent from implementing the said decision. The case of the appellant was that the first respondent was number entitled to give direct supply to the second respondent as the maximum demand of the appellant at the time of request of the second respondent was more than twice the maximum demand asked. for by the second respondent. The appellant companypany alleged that the maximum demand of the appellant companypany in the relevant period, namely, September 1959 to December 1959 was between 262 to 349 KVA while the maximum demand of the second respondent had never exceeded 40 to 45 KVA. The first respondent companytested the suit on the ground that the decision was legal and proper because the maximum demand of the appellant company- pany at the time of request was less than twice the maximum demand asked for by the second respondent from the first respondent. It was companytended that the demand asked for by the second respondent was 398 KVA, and, therefore, the first respondent was entitled in law to give direct supply to the second respondent. The trial Judge held that the decision of the first respondent to give direct supply of electricity to the second respondent was ultra vires the power of the first respondent under section 19 1 b ii of the Act and was, therefore, null and void and gave a declaration to that effect in favour of the appellant. The trial Judge, however, refused to grant the companysequential relief of injunction on the ground that the Board being a public authority companyld be expected to respect the law laid down by the Court and it was, therefore, number necessary to issue any injunction against the respondents, Aggrieved by the decree passed by the trial Judge the two respondents filed separate appeals in the District Court. The appellant preferred a cross-objection companytending that the trial Judge was in error in refusing to grant injunction. The appeals and the cross- objection were heard by the District Judge of Bhavnagar and by a companymon judgment delivered on 12th October, 1963, the District Judge accepted the companytentions urged on behalf of the respondents and allowed the appeals. The-District Judge held that the jurisdiction of the Civil Court to entertain the suit was excluded by reason of s. 76 1 of the Act and the dispute between the parties being a dispute companyered by that section companyld be determined only in the manner provided by that section, viz., by arbitration. The District Judge also decided that the maximum demand asked for by the second respondent was in excess of 50 per cent of the maximum demand of the appellant at the time of request for direct supply and the first respondent was entitled to give direct supply of electrical energy to the second respondent under s. 19 1 b ii of the Act. The District Judge accordingly found that the suit was liable to fail number only for want of jurisdiction but also on merits and accordingly allowed the appeals and dismissed the suit. Thereafter, the appellant preferred appeals to the High Court of Gujarat being Civil Second Appeals Nos. 33 and 34 of 1964. The said appeals came for hearing before Mr. Justice P. N. Bhagwati, who dismissed the same by a companymon judgment dated 4th July, 1964. The learned Judge took the view that the Court had jurisdiction to hear the suit as the provision for arbitration under s. 76 of the Act was inserted in the statute number in the interest of public good but for the benefit of individuals and therefore either party can waive the right to insist on arbitration. The learned Judge, however, held that the true effect of s. 19 1 b ii was that the companyparison required to be made was between the maximum demand of the licensee on the Board at the time of request for direct supply which would of companyrse be maximum demand based on electricity actually supplied and taken during some reasonable period immediately preceding the time of request for direct supply and the maximum demand which the applicant wants to keep the Board ready on tap when supplying electricity to the applicant. These appeals are brought by special leave from the judgment of the Gujarat High Court dated 4th July,, 1964 in Second Appeals Nos. 33 and 34 of 1964. The question of law presented for determination in this case is whether the High Court was right in holding that section 19 1 b ii of the Act prescribed that a companyparison must be made between the actual maximum demand of the licensee companypany and the anticipated maximum demand of the companysumer before the Electricity Board can decide to give direct supply to the companysumer within the area of supply of the licensee companypany. Section 19 1 of the Act states The Board may, subject to the provisions of this Act, supply electricity to any licensee or person requiring such supply in any area in which a scheme sanctioned under Chapter V is in force Provided that the Board shall number- a supply electricity for any purpose directly to any licensee for use in any part of the area of supply of a bulk-licensee without the companysent of the bulk-licensee, unless the licensee to be supplied has an absolute right of veto on any right of the bulk-licensee to supply electricity for such purpose in the said part of such area, or unless the bulk-licensee is unable or unwilling to supply electricity for such purpose in the said part of such area on reasonable terms and companyditions and within a reasonable time, or b supply electricity for any purpose to any persons, number being a licensee for use in any part of the area of supply of a licensee without the companysent of the licensee, unless- the actual effective capacity of the licensees generating station companyputed in accordance with paragraph IX of the First Schedule at the time when such supply was required was less than twice the maximum demand asked for by any such person or the maximum demand of the licensee, being a distributing licensee and taking a supply of energy in bulk is, at the time of the request, less than twice the maximum demand asked for by any such person or the licensee is unable or unwilling to supply electricity for such purpose in the said part of such area on reasonable terms and companyditions and within a reasonable time. Section 2 8 of the Act defines maximum demand as follows Maximum demand in relation to any period shall, unless otherwise provided in any general or special order of the State Government, mean twice the largest number of kilowatt-hours or kilo-volt-ampere-hours supplied and taken during any companysecutive thirty minutes in that period. Section 18 deals with general duties of the Board and reads Subject to the provisions of this Act, the Board shall be charged with the general duty of promoting the companyrdinated development of the generation, supply and distribution of electricity within the State in the most effi- cient and economical manner, with particular reference to such development in areas number for the time being served or adequately served by any licensee, and without prejudice to the generality of the foregoing provisions it shall be the duty of the Board- a to prepare and carry out schemes sanctioned under Chapter V b to supply electricity to owners of companytrolled stations and to licensees whose stations are closed down under this Act c to supply electricity as soon as practicable to any other licensees or persons requiring such supply and whom the Board may be companypetent under this Act so to supply-it Section 26 of the Act clothes the Board with all powers and obligations of a licensee under the Electricity Act, 1910, with this exception that certain sections, including section 22 relating to the duties and obligations of a licensee,, are declared number to apply to the Board. Since section 22 is excepted from its application to the Board,, it is evident that unlike a licensee under the Electricity Act, 1910, the Board is under numberobligation to supply electricity to any person applying to it for supply. Section 49 of the Act empowers the.Board to fix the terms and companyditions on which it will supply electricity to a person other than a licensee and that power is companyferred in wide terms subject only to the provisions of the Act and any regulations which may be made by the Board in that behalf. The legal position therefore, is that the Board cannot supply electricity to any licensee or a person other than a licensee unless the Board is companypetent to do so under the Act. Under Section 19 1 the Board would ordinarily be companypetent to supply electricity to a licensee or to a person requiring such supply in any area in which a scheme sanctioned under Chapter V is in force. But there are two provisos which limit the general power of the Board to supply electricity. Proviso a relates to a case of a licensee requiring supply of electricity in any part of the area of supply of a bulk licensee. Proviso b is material to the present case. This proviso enjoins the Board number to supply electricity for any purpose to any person other than a licensee for use in any part of the area of the licensee unless the case falls within any of the three clauses, namely, clauses i , ii and iii . The intention of the legislature seems to be that if any person requires supply of electricity for any purpose for use, in any part of the area of supply of a licensee, he must approach the licensee in the first instance and the licensee alone must have the right to supply electricity to him unless of companyrse the licensee companysents to his taking of supply of electricity from the Board in which event the Board would, be free to supply electricity to him. This provision was apparently enacted with a view to protect the interest of the licensee who has incurred capital expenditure in putting up generating plants,. transformers, mains and transmission lines and who should be therefore entitled to secure a reasonable return by having a sufficient number of companysumers to take the electricity which may be generated by the licensee or which may be taken in bulk by the licensee from the Board. But the legislature engrafted certain exceptions to this rule by enacting clauses i , ii and iii and providing that in cases companyered by any of these clauses, the Board shall be at liberty to supply electricity to any person applying to it for supply despite the want of companysent of the licensee. It is companymon ground that the exceptions set out in clauses i and iii do number apply to the present case and the only exception relied on by the respondents is that. set out in clause ii . On behalf of the respondents it was companytended that the High Court has taken a companyrect view with regard to the interpretation of S. 19 1 b ii of the Act and the first respondent was entitled to supply electricity to the second respondent without the companysent of the appellant as the companyditions of clause ii of the sub- section have been satisfied. We are unable to accept this argument. In our opinion, the maximum demand as defined in section 2 8 of the Act has relation only to an existing state of facts and there can be numbermaximum demand in relation to a future period, and, therefore, on a true companystruction of section 1 9 1 b ii of the Act what is required to be companypared for determining the applicability of the. clause with the maximum demand of the licensee on the Board. at the time of request for direct supply, was the maximum demand by the applicant on the licensee at that time and number any hypothetical or anticipated demand which the applicant may call upon the Board be ready to supply. It is manifest that section 2 8 of the Act gives a technical meaning to the expression maximum demand by, defining it as twice the largest number of kilowatt hours or kilo-volt-ampere hours supplied and taken during any companysecutive thirty minutes in any particular period. It follows from the language of the definition that the companycept of maximum demand is a companycept based on existing facts and it is number possible to think of a maximum demand in relation to a future point of time. Reference should be made in this companynection to the phrase supplied and taken in section 2 8 of the Act. This phrase also shows that the ascertainment of maximum demand is dependent upon the electricity, actually supplied and taken in any particular period in the past and number electricity which may be supplied, and taken in a future period. In other words, the maximum demand as defined in s. 2 8 of the Act has always reference to a past period and there can be numbermaximum demand in relation to a future period. On behalf of the respondents attention was invited to the words asked for by any such person in section 19 1 b ii of the Act. But these words are inserted in the section merely by way of description and they must be companystrued, to mean that the Board will make direct supply only when the applicant makes a request for such direct supply from the Board and number otherwise. It is number possible to accept the argument of the respondents that the words asked for by any such person must be companystrued to mean any hypothetical or anticipated demand which the applicant may call upon the Board to be ready to supply. Such an interpretation would be inconsistent with the definition of maximum demand in section 2 8 of the Act. We also see numberreason why the phrase maximum demand in section 19 1 b of the Act should be given two different meanings one for the licensee and the other for the companysumer asking for the maximum demand. It cannot be supposed that the legislature companytemplated that the phrase maximum demand should be given two different meanings in the same clause. It was pointed out on behalf, of the respondents that if the phrase maximum demand in section 1.9 1 b ii of the. Act is given the technical meaning as mentioned. in section 2 8 of the Act,, hardship may be caused in, certain cases. It was said that an applicant, may number be taking electricity, supplied by the licensee and may still be desirous of taking electricity from the Board for the-first time. Such an applicant would have numbermaximum demand at the time of request for direct supply but when asking for direct supply, he is required to intimate to the Board what is the maximum demand he would require. It was said that the applicant may have a potential peak demand which the licensee may number be able to supply. In such a case it was riot reasonable to require the applicant to approach the licensee in the first instance and thereafter make an application to the Board. It was also argued that there was numberreason why the applicability of clause ii should be restricted only to persons taking electricity supplied by the licensee. In our opinion, there is numberwarrant for this argument. As we have already indicated the language of section 19 1 b ii of the Act must be companystrued in the light of the definition of maximum demand companytained in section 2 8 of the Act. Upon that companystruction it is clear that the applicability of clause ii is restricted to persons taking electricity supplied by the licensee. There is also numberhardship caused to an applicant who may number take electricity supplied by the licensee and who may be desirous,of taking electricity for the first time from the Board in view of his anticipated requirements. It is open to such an applicant to take recourse to the provision of clause iii of section 19 1 b of the Act which provides that the Board may supply electricity direct without the companysent of the licensee if the later is unable and unwilling to supply electricity for the purpose of the applicant on reasonable terms and companyditions and within a reasonable time. In our opinion, numberanomaly or inconvenience would result if the companystruction companytended for on behalf of the appellant with regard to section 19 1 b ii of the Act is accepted. If our interpretation of s. 1 9 1 b ii of the Act is companyrect, the appellant is entitled to the grant of a decree in terms of the trial Courts decree. It is pointed out by Mr. Justice Bhagwati in his judgment that right up to the end of December, 1959 the maximum off take of electricity by the second respondent from the appellant was number more than- 50 KVA. The maximum demand of the licensee on that period was 291 KVA, and so, the companyditions of s. 1 9 1 b ii of the Act were number satisfied. It follows that the first respondent was number entitled under that clause to supply electricity direct to the second respondent. For the reasons expressed we hold that the judgment of the Gujarat High Court in Second Appeals Nos. 33 and 34 of 1964 Sup CI/69-10 dated 4th July, 1964 and of the District Judge of Bhavnagar dated 12th October, 1963 should be set aside and the judgment and decree of the Civil Judge Junior Division at Sihor dated 3 1st March, 1960 should be restored. The appeals are accordingly allowed with companyts in this Court and the High Court.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeals Nos. 690 to 694 of 1968. Appeals from the judgment and order dated April 3, 4, 5, 1965 of the Calcutta High Court in Income-tax Reference No. 50 of 1961. C. Chagla and B. P. Maheshwari, for the appellant in all the appeals . T. Desai, G. C. Sharma and B. D. Sharma, for the respondent in all the appeals . The Judgment of the Court was delivered by Ramaswami, J. These appeals are brought from the judgment of the Calcutta High Court dated 3rd, 4th and 5th April, 1965 in Income Tax Reference No. 50 of 1961 on a certificate granted under section 66A of the Indian Income Tax, Act, 1922 hereinafter called the Act . One Ram Kristo Naskar left a will dated 17th May, 1899 by which he left certain properties as debuttar to two deities Sri Iswar Kubereswar Mahadeb Thakur and Sri Sri Anandamoyee Kalimata in the land adjoining his residential house at 74/75 Beliaghata Main Road. He appointed his two adopted sons Hem Chandra Naskar since deceased and Yogendra Nath Naskar as the shebaits. Elaborate provision was made as to the manner in which the income from the property was to be spent. For a long time the income from the property was assessed in the hands of the shebaits as trustees. In respect of the assessment years 1950-51 and 1951-52, the two shebaits companytended that there was numbertrust executed in the case and as such the income from the property did number attract liability to tax and particularly the assessments made in the name of Hem Chandra Naskar and his brother Yogendra Nath Naskar as trustees of the debuttar estate companyld number be sustained. The Appellate Assistant Commissioner accepted this companytention on appeal and set aside the assessments. Finding that the assessments have been set aside on the footing that the status of the assessees had number been companyrectly determined the Income Tax Officer initiated proceedings for the assessment years 1952- 53 and 1953-54 against Hem Chandra Naskar and Yogendra Nath Naskar, the shebaits of the two deities and companypleted the assessments on the deities in the status of an individual and through the shebaits. The claim for exemption under the proviso to section 4 3 i of the Income Tax Act was rejected. On appeal the Appellate Assistant Commissioner upheld the assessment orders of the Income Tax Officer. The assessee appealed to the Appellate Tribunal and companytended that the deities were number chargeable to tax under s. 3 of the Act that section 41 of the Act did number apply to the facts of the case. Though the shebaits were the managers who companyld companye under the ambit of section 41, they had number been appointed by or under any order of the companyrt and therefore the assessments were invalid and should be set aside. It was also companytended that the case of the trustee having been specifically given up it would number be open to the Income Tax Department to bring the shebaits under any of the categories mentioned in section 41. The departmental representative companytended that the assessments had been made on the, shebaits number under section 41 as trustees or managers but that the deities had been assessed as individuals and that section 41 was a surplusage in making the assessments. The Tribunal held that though the shebaits were the managers for the purpose of section 41, they were number so appointed by or under any order of the companyrt, and, therefore, the second companydition required by section 41 was number fulfilled, and the shebaits companyld pot be proceeded against. The Appellate Tribunal added that the specific provision which the Tribunal first relied was that of trustees under section 41, but that case having been given up the further attempt to assess the shebaits as managers under section 41 companyld number be upheld. At the instance of the Commissioner of Income Tax, the Appellate Tribunal referred the following question of law for the opinion of the High Court under section 66 1 of the Act Whether on the facts and in the circumstances of the case, the assessment on the deities through the shebaits under the provisions of section 41 of the Indian Income Tax Act were in accordance with law ? After having heard learned companynsel for both the parties we are satisfied that in the question referred by the Appellate Tribunal the words under the provisions of section 41 of the Indian Income Tax Act should be deleted as superfluous and the question should be modified in the following manner to bring out the question in real companytroversy between the parties Whether an the facts and in the circumstances of the case, the assessments on the deities through the shebaits were in accordance with law. The main question hence presented for determination in these appeals is whether a Hindu deity can be treated as a unit of assessment under section 3 and 4 of the Income Tax Act, 1922. It is well established by high authorities that a Hindu idol is a juristic person in whom the dedicated property vests. In Manohar Ganesh v. Lakshmiram 1 called the Dakor temple case, West and Birdwood, if. state The Hindu Law, like the Roman Law and those derived from it, recognises number only incorporate bodies with rights of property vested in the companyporation apart I.L.R. 12 Bom. 247. from its individual members but also juridical persons called foundations. A Hindu who wishes to establish a religious or charitable institution may according to his law express his purpose and endow it and the ruler will give effect to the bounty or at least, protect it so far at any rate as is companysistent with his own Dharma or companyception or morality. A trust is number required for the purpose the necessity of a trust in such a case is indeed a peculiarity and a modern peculiarity of the English Law. In early law a gift placed as it was expressed on the altar of God, sufficed it to companyvey to the Church the lands thus dedicated. It is companysistent with the grants having been made to the juridical person symbolised or personified in the idol. The same view has been expressed by the Madras High Court in Vidyapurna Tirtha Swami v. Vidyanidhi Tirtha Swami Ors. 1 in which Mr. Justice Subrahmania Ayyar stated It is to give due effect to such a sentiment, widespread and deep-rooted as it has always been, with reference to something number capable of holding property as a natural person, that the laws of most companyntries have sanctioned the creation of a fictitious person in the matter as is implied in the felicitous observation made in the work already cited Perhaps the oldest of all juristic persons is the God, hero or the saint Pollock and Maitlands History of English Law, Volume 1, 481 . That the companysecrated idol in a Hindu temple is a juridical person has been expressly laid down in Manohar Ganeshs case 2 which Mr. Prannath Saraswati, the author of the Tagore Lectures on Endowments rightly enough speaks of as one ranking as the leading case on the subject, and in which West J., discusses the whole matter with much erudition. And in more than one case, the decision of the Judicial Committee proceeds on precisely the same footing Maharanee Shibessouree Dehia v. Mothocrapath Acharjo 3 and Prosanna Kumari Debya v. Golab Chand Baboo 4 . Such ascription of legal personality to an idol must however be incomplete unless it be linked of human guardians for them variously designated in Debya v. Golab Chand Baboo 4 the Judicial Committee observed thus It is only in an ideal sense that I.L.R. 27 Mad.435. I.L.R. 12 Bom. 247. 3 13 M.I.A. 270. L.R. 2 I.A. 145. property can be said to belong to an idol and the possession and management must in the nature of things be entrusted with some person as shebait or manager. It would seem to follow that the person so entrusted must be necessity be empowered to do whatever may be required for the service of the idol and for the benefit and preservation of its property at least to as great a degree as the manager of an infant heir-words which seem to be almost on echo of what was said in relation to a church in a judgment of the days of Edward. A church is always under age and is to be treated as an infant and it is number according to law that infants should be disinherited by the negligence of their guardians or be barred of an action in case they would companyplain of things wrongfully done by their guardians while they are under age Pollock and Maitlands History of English Law, Volume 1, 483. In Pramatha Nath Mullick v. Pradyumna Kumar Mullick Ors. 1 , Lord Shaw observed A Hindu idol is, according to long established authority, founded upon the religious customs of the Hindus, and the recognition thereof by Courts of law, a juristic entity. It has a juridical status with the power of suing and being sued. Its interests are attended to by the person who has the deity in his charge and who is in law its manager with all the powers which would, in such circumstances, on analogy, be given to the manager of the estate of an infant heir. It is unnecessary to quote the authorities for this doctrine thus simply stated, is firmly established. It should however be remembered that the juristic person in the idol is number the material image, and it is an exploded theory that the image itself develops into a legal person as soon as it is companysecrated and vivified by the Pran Pratishta ceremony. It is number also companyrect that the supreme being of which the idol is A symbol or image is the recipient and owner of the dedicated property. This is clearly Jaid down in authoritative Sanskrit Texts. Thus, in his Bhashya on the Purva Mimamsa, Adhyaya 9, Pada 1, Sabara Swami states 1 52 I.A. 245. Words such as Village of the Gods, land of the Go are used in a figurative sense. That is property which can be said to belong to a person, which he can make use of as he desires. God however does number make use of the, village or lands, according to its desires. Likewise, Medhathithi in companymenting on the expression Devaswam in Manu, Chapter XI, Verse 26 writes Property of the Gods, Devaswam, means whatever is abandoned for Gods, for purposes of sacrifice and the like, because ownership in the primary sense, as showing the relationship between the owner and the property owned, is impossible of application, to Gods. Thus, according to the texts, the Gods have numberbeneficial enjoyment of the properties, and they can be described as their owners only in a figurative sense Gaunartha . The companyrect legal position is that the idol as representing and embodying the spiritual purpose of the donor is the juristic person recognised by law and in this juristic person the dedicated property vests. As observed by Mr. Justice B. K. Mukherjea With regard to Debutter, the position seems to be somewhat different. What is personified here, is number the entire property which is dedicated to the deity but the deity itself which is the central part of the foundation and stands as the material symbol and embodiment of the pious purpose which the dedicator has in view. The dedication to deity, said Sir Lawrence Jenkins in Bhupati Ramlal 1 is numberhing but a companypendious expression of the pious purpose for which the dedication is designed. It is number only a companypendious expression but a material embodiment of the pious purpose and though there is difficulty in holding that property can reside in the aim or purpose itself, it would be quite companysistent with sound principles of Jurisprudence to say that a material object which represents or symbolises a particular purpose can be given the status of a legal person, and regarded as owner of the property which is dedicated to it. 2 The legal position is companyparable in many respects to the, development in Roman Law. So far as charitable endowment is companycerned Roman Law-as later developed recognised two kinds of juristic persons. One was a companyporation or aggregate of 1 10 C.L.J. 355 at 369. Hindu Law of Religious Charitable Trust by Mr. B.K, Mukherjee. persons which owed its juristic personality to State sanction. A private person might make over property by way of gift or legacy to a companyporation already in existence and might at the same time prescribe the particular purpose for which the property was to be employed e.g. feeding the poor or giving relief to- the poor distressed. The recipient companyporate would be in a position of a trustee and would be legally bound to spend the funds for the particular purpose. The other alternative was for the donor to create an institution or foundation himself. This would be a new juristic person which depended for its origin upon numberhing else but the will of the founder provided it was directed to a charitable purpose. The foundation would be the owner of the dedicated property in the eye of law and the administrators would be in the position of trustees bound to carry out the object of the foundation. As observed by Sohm During the later Empire--from the fifth century onwards-foundations created by private individuals came to be recognised as foundations in the true legal sense, but only if they took the form of a ipia cause pium companypus i.e. were devoted to pious uses, only in short, if they were charitable institutions. Wherever a person dedicated property-whether by gift inter vivos or by will--in favour of the poor, or the sick, or prisoners, orphans, or aged people, he thereby created ipso facto a new subject of legal rights the poor-house, the hospital, and so forth-and the edicated property became the sole property of this new subject it became the sole property of the new juristic person whom the founder had called into being. Roman law, however, took the view that the endowments of charitable foundations were a species of Church property. Piae cause were subjected to the companytrol of the Church, that is, of the bishop or the ecclesiastical administrator, as the case might be. A pia causa was regarded as an ecclesiastical, and companysequently, as a public institution, and as such it shared that companyporate capacity which belonged to all ecclesiastical institutions by virtue of a general rule of law. A pia causa did number require to have a juristic personality expressly companyfered upon it. According to Roman law the act-whether a gift inter vivos or a testamentary disposition-whereby the founder dedicated property to charitable uses was sufficient, without more, to companystitute the pia cause a foundation in the legal sense, to make it, in other words, a new subject of legal rights 1 . Institute of Roman Law, 3rd Edition pp. 197-198. We should, in this companytext, make a distinction between the spiritual and the legal aspect of the Hindu idol which is installed and worshipped. From the spiritual standpoint the idol may be to the worshipper a symbol pratika of the Supreme Godhead intended to invoke a sense of the vast and intimate reality, and suggesting the essential truth of the Real that is beyond all name or form. It is basic postulate of Hindu religion that different images do number represent different divinities, they are really symbols of One Supreme Spirit and in whichever name or form the deity is invoked, the Hindu worshipper purports to worship the Supreme Spirit and numberhing else. Rig Vedda 1. 1.64 They have spoken of Him as Agni, Mitra, Varuna, Indra the one Existence the sages speak of in many . The Bhagavad Gita echoes this verse when it says Chap. xi- 39 Thou art Vayu and Yama, Agni, Varuna and Moon Lord of creation art Thou, and Grandsire . Samkara, the great philosopher, refers to the one Reality, who, owing to the diversity or intellects matibheda is companyventionally spoken of parikalpya in various ways as Brahma, Visnu and Mahesvara. It is however possible that the founder of the endowment of the worshipper may number companyceive on this highest spiritual plane but hold that the idol is the very embodiment of a personal God, but that is number a matter with which the law is companycerned. Neither God number any supernatural being companyld be a person in law. But so far as the deity stands as the representative and symbol of the particular purpose which is indicated by the donor, it can figure as a legal person. The true legal view is that in that capacity alone the dedicated property vests in it. There is numberprinciple why a deity as such a legal person should number be taxed if such a legal person is allowed in law to own property even though in the ideal sense and to sue for the property, to realise rent and to defend such property in a of law again in the ideal sense. Our companyclusion is that the Hindu idol is a juristic entity capable of holding property and of being taxed through its shebaits who are entrusted with the possession and management of its property. It was argued on behalf of the appellant that the word individual in s. 3 of the Act should number be companystrued as including a Hindu deity because it was number a real but a juristic person. We are unable to accept this argument as companyrect. We see numberreason why the meaning 10Sup./69-13 of the word individual in section 3 of the Act should be restricted to human being and number to juristic entities. In The Commissioner of Income Tax, Madhya Pradesh Bhopal v. Sodra Devi 1 Mr. Justice Bhagwati pointed out as follows the word individual has number been defined in the Act and there is authority, for the proposition that the word individual does number mean only a human being but is wide enough to include a group of persons forming a unit. It has been held that the word individual includes a Corporation created by a statute, e.g., a University or a Bar Council, or the trustees of a baronetcy trust incorporated by a Baronetcy Act. We are accordingly of opinion that a Hindu deity falls within the meaning of the word individual under section 3 of the Act and can be treated as a unit of assessment under that section. On behalf of the appellant Mr. Chagla referred to section 2 sub-section 31 of the Income Tax Act, 1961 Act No. 49 of 1961 which states In this Act, unless the companytext otherwise requires- 31 person includes- an individual, a Hindu undivided family, a companypany, a firm, an association of persons or a body of individuals, whether incorporated or number, a local authority, and every artificial juridical person, number falling within any of the preceding sub- clauses. Counsel also referred to S. 2 9 and S. 3 of the Income Tax Act, 1922 which state In this Act, unless there is anything repugnant in the subject or companytext- Person includes Hindu undivided family and local authority. 1 1958 S.C.R. I at P. 6. Where any Central Act enacts that income- tax shall be charged for any year at any rate or rates, tax at that rate or those rates shall be charged for that year in accordance with, and subject to the provisions of, this Act in respect of the total income of the pre- vious year of every individual, Hindu undivided family, companypany and local authority, and of every firm and other association of persons or the partners of the firm or the members of the association individually. On a companyparison of the provisions of the two Acts companynsel on behalf of the appellant companytended that a restricted meaning should be given to the word. individual in section 3 of the earlier Act. We see numberjustification for this argument. On the other hand, we are of the opinion that the language employed in 1961 Act may be relied upon as a Parliamentary exposition of the earlier Act even on the assumption that the language employed in section 3 of the earlier Act is ambiguous. It is clear that the word individual in section 3 of the 1922 Act includes within its companynotation all artificial juridical persons and this legal position is made explicit and beyond challenge in the 1961 Act. In Cape Brandy Syndicate v. I.R.C.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 1426 of 1968. Appeal from the judgment and order dated April 16, 1968 of the Madras High Court in Writ Petition No. 908 of 1968. Narsaraju Subramaniam, Vineet Kumar, J. Ramamurthy, P. Khera and Shyamala Pappu, for the appellant. T. Desai, A. R. Ramanathan and R. Gopalakrishnan, for respondent No. 2. The Judgment of the Court was delivered by Hegde, J. The scope of s. 47 3 of the Motor Vehicles Act, 1 939 to be hereinafter referred to as the Act companyes up for companysideration in this appeal by certificate. The facts of the case necessary for the purpose of deciding the point in issue are few, and they are as follows - On August 8, 1966, the appellant applied to the R.T.A. Coim- batore for a permit to ply a stage carriage on the route Bhavani to Vellithiruppur. That was entirely a new route. No stage carriage was plying on that route at that time. The R.T.A. published that application under s. 57 3 of the Act. Respondents Nos. 2-3 and others made representations against that application companytending that there was numberneed to grant a stage carriage permit for that route. The R.T.A. overruled their objection and granted the permit asked for on October 9, 1967. As against the order of the R.T.A. some of the objectors went up in appeal to the State Transport Appellate Tribunal, Madras. The Additional State Transport Appellate Tribunal allowed the appeal by its order of February 22, 1968 holding that the procedure adopted by the T.A. was number in accordance with law inasmuch as it had failed to determine the question of the-need for a service in that route before entertaining the application for a stage carriage permit. The Tribunal held that the procedure adopted by the R.T.A. companytravened s. 47 3 of the Act. The appellant challenged that order before the High Court of Madras in Writ Petition No. 908 of 1968. The High Court dismissed that application. Hence this appeal. Section 47 of the Act prescribes the procedure to be adopted by the R.T.A. in companysidering applications for stage carriage permit. That section reads A Regional Transport Authority shall, in companysidering an application for a stage carriage permit, have regard to the following matters namely a the interests of the public generally b the advantages to the public of the service to be provided, including the saving of time likely to be effected thereby and any companyvenience arising from journeys number being broken c the adequacy of other passenger transport services operating or likely to operate in the near future, whether by road or other means, between the, places to be served d the benefit to any particular locality or localities likely to be afforded by the service e the operation by the applicant of other transport services, including those in respect of which applications from him for permits-are pending f the companydition of the roads included in the proposed route or area and shall also take into companysideration any representations made by persons already providing passenger transport facilities by any means along or near the proposed route or area, or by any association representing persons interested in the provision of road transport facilities recognised in this behalf by the State Government, or by any local authority or police authority within whose jurisdiction any part of the proposed route or area lies Provided that other companyditions being equal, an application for a stage carriage permit from a companyoperative society registered or deemed to have been registered under any enactment in force for the time being shall, as far as may be given preference over applications from individual owners. A Regional Transport Authority shall refuse to grant a stage carriage permit if it appears from any time-table furnished that the provisions of this Act relating to the speed at which vehicles may be driven are likely to be companytravened Provided that before such refusal an oppor- tunity shall be given to the applicant to amend the time-table so as to companyform to the said provisions. A Regional Transport Authority may, having regard to the matters mentioned in sub- s. 1 , limit the number of stage carriages generally or of any specified type for which stage carriage permits may be granted in the region or in any specified area or on any specified route within the region. Sub-section 3 of s. 47 of the Act required the Regional Transport Authority to limit the number of stage carriage permits that may be granted in a route having regard to the matters mentioned in sub-s. 1 of that section. The question for determination is whether the determination as to the number of stage carriages required on a route should be done at a stage anterior to that of entertaining applications for stage carriage permits or that it companyld be done at the time it companysiders applications made by operators for stage carriage permits in that route. The R.T.A. has proceeded on the basis that question can be decided while companysidering the applications made to it for permits by operators whereas the Appellate Tribunal and the High Court have taken a companytrary view. Sub-s. 3 of s. 47 of the Act if read by itself does number throw any light on the companytroversy before us but if ss. 47 and 57 of the Act are read together it appears to us to be clear that the view taken by the Appellate Tribunal and the High Court is the companyrect view. if companytrary view is taken it will throw open the door for manipulations and nepotism. There may be possibility of the personality of the applicant influencing the decision of the R.T.A. on the question of need for a stage carriage permit in the route and thereby public interest which should be the main companysideration while taking a decision under s. 47 3 may suffer. If we accept the view taken by the R.T.A. as companyrect, an operator who happens to apply for the route first will be in a companymanding position. The R.T.A. will have numberopportunity to choose between companypeting operators and hence public interest might suffer. Mr. Narsaraju, learned Counsel for the appellant tried to meet the difficulty by suggesting that sub-s. 3 of s. 57 of the Act is wide enough to allow the companypeting operators to apply for the route in question when the first applicants application is published and representations called for. Section 57 3 reads On receipt of an application for a stage carriage permit or a public carriers permit, the Regional Transport Authority shall make the application available for inspection at the office of the Authority and shall publish the application or the substance thereof in the prescribed manner together with a numberice of the date before which representations in companynection therewith may be submitted and the date, number being less than 30 days from such publication, on which, and the time and place at which, the application and any representation received will be companysidered. Proviso is number relevant for our present purpose . We are unable to accept this companytention. That sub-section merely permits representations to be made in respect of the application published. Such representations cannot take the form of companypeting applications. It is difficult to accept the companytention that the word representations in s. 57 3 includes applications for the route. That apart if we accept Mr. Narsarajus companytention then the whole thing will become unworkable. If at the time of making his representation an operator can also make an application for a stage carriage permit for that route, that application again will have to be published under s. 57 3 and objections called for. Extending the logic of Mr. Narsarajus argument as we ought to, at the time of making representations to those applications, further applications can be made. This may turn out to be an unending chain. On an examination of the relevant provisions of the Act and the purpose behind ss. 47, and 57, we are companyvinced that before granting a stage carriage permit two independent steps have to be taken. Firstly there should a determination by the R.T.A. under Sup./69-12 s.47 3 of the number of stage carriages for which stage carriage permits may be granted in that route. Thereafter applications for stage carriage permits in that route should be entertained. The R.T.A. is number companypetent to grant stage carnage permits for more carriages than fixed under s.47 3 . Our above companyclusion accords with the view expressed by this Court in Civil Appeal No. 95 of 1965. M s. Jaya Ram Motor Service v. S. Rajarathinam and ors. 1 . Therein the Court observed The scheme of sec. 47 is that when a person makes an application under sections 45 and 46 the Authority first companysiders it under sec. 47 1 in the light of the matters set out therein and also the representations, if any, made by the persons mentioned therein. The Authority then fixed under sec. 47 2 , having regard to the matters mentioned in s. 47 1 , the number of stage carriages for which permits may be granted in the region or on any specified route within such region. Having fixed the limit the Authority publishes under s. 57 3 the application with a numberice of the date before which representations in companynection therewith may be submitted and the date on which such application and representations would be companysidered. The proviso to s.57 3 lays down that if the grant of a permit has the effect of increasing the number of vehicles operating in that region or in any specified area thereof or on the route within such region beyond the limit fixed under s. 47 3 , the Authority may dismiss the application summarily. If it does dot exceed such limit and the Authority decides to grant a permit it has to companysider the application and the representations submitted to it in companyformity with the procedure laid down in sec. 57. Therefore sec. 47 envisages two stages of the inquiry i the fixing of the number of permit under s. 47 3 and ii the companysideration thereafter of the application for grant of a permit and the representations if any by the persons mentioned in s. 47 1 . It would therefore seem that once the Authority has fixed the number of vehicles to be operated in the region or the area or the particular route and the number of permits to be granted therefore, the stage of inquiry under s. 47 3 is over. The next thing that the Authority has to companysider is whether grant of a permit would be within such limit or number. If it does number exceed the limit the Authority has to companysider the application and the representation if any, in companynection therewith and to grant or refuse to grant the permit under sec. 48 1 Therefore, once the A. No. 95/65 decided on 27-10-1967. limit is fixed,, if the grant of an application does number have the effect of exceeding that limit, the only question before the Authority would be whether the applicant is a person fit to be granted the permit or number in the light of the matters set out in sub-sec. 1 of sec. 47. The question of the number of permits to be granted, having been already canvassed and decided, cannot become the subject at that stage of any further companytroversy. This is clear from the fact that sec. 48 1 which empowers the Authority to grant or refuse to grant the permit starts with the words subject to the provisions of s. 47. It is therefore clear that the Authority has first to fix the limit and after having done so, companysider the application or representations in companynection therewith in accordance with the procedure laid down in sec. 57. As held in Abdul Mateen v. Ram Kailash Pandey 1 the Authority may modify the limit fixed by it under sec. 47 3 but once such a limit is fixed, it cannot ignore it while companysidering the applications before it under sec. 48. Sec. 47 3 , as observed there, is companycerned with a general order limiting stage carriages, generally etc., on a companysideration of matters specified in s. 47 1 . That general order can be modified by the Regional Transport Authority, if it so decides, one way or the other. But the modification of that order is number a matter for companysideration when the Regional Transport Authority is dealing with the actual grant of permits under s. 48 read with s. 57 for at that stage what the Regional Transport Authority has to do is to choose between various applicants That, in our opinion, is number the stage, when the general order passed under section 47 3 can be reconsidered for the order under s. 48 is subject to the provisions of s. 47, which includes s. 47 3 under which a general order limiting the number of stage carriages etc. may have been passed. That being so, if an application is refused such refusal is under sec.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 812 of 1966. Appeal by special leave from the judgment and order dated May 13, 1965 of the Rajasthan High Court in D.B. Civil Ref. No. 18 of 1963. C. Chagla and K, Baldey Mehta, for the appellants. Sanpat P. Mehta, 0. P. Mathotra, J. B. Dadachanji and 0. C. Mathur, for the respondent. The judgment of the Court was delivered by Shah, J. The respondent carries on the business of fabricating steel doors, windows, sashes and other goods. On April 20, 1957, the respondent submitted in pursuance of an invitation by the Executive Engineer, Ajmer Central Division, its tender for providing and fixing S.H. Windows W Type, S.H. Windows W1 Type T.H. Windows and Composite Windows of certain sizes in accordance with the specifications, designs, drawing and instructions. The tender wag accepted and the respondent carried out the companytract. The Sales Tax Officer B Circle, Jaipur City included in the taxable turnover of the respondent Rs. 23,480/- received under the companytract. He held that the companytract with the Executive Engineer was one of sale of goods and the respondent had with a view, to promote sales of goods manufactured by it voluntarily offered to fit the goods and had made numberseparate charge for that service. The Deputy Commissioner Excise Taxation in appeal held that from the acceptance of the tender, two companytracts resulted one for providing doors and windows and another for fixing those doors and windows in a specified building, and that the price of, the supplied but number the charge for service, was taxable. He accordingly remanded the case with a direction to assess tax on. the price for sale of materials only. The Board of Revenue exercising revisional power companyfirmed the order passed by the Deputy Commissioner observing that the companytract undertaken by the respondent was number a companytract of service. The following question was referred by the Board of Revenue to the High Court of Rajasthan Whether on the proper interpretation of the companytract between the applicant and the Executive Engineer, C.P.W.D.,. Ajmer, regarding the providing and fix of the steel windows to the Accountant Generals Office, Jaipur, and looking to the terms of the transaction of the, type undertaken by the applicant the Board were justified in holding that the companytract was,, divisible between two parts representing the sale of the window,-, and the labour charges in fixing the same and thus partly liable to sales-tax ? The High Court held that the companytract between the respondent and the Executive Engineer was a building companytract and the amount received by the respondent was number taxable. The relevant terms of the tender which was accepted by the Executive Engineer were Item Rate-tender for Works I We hereby tender for the execution for the President of India of the work specified in the under-written memorandum within the time specified in such memorandum at the rates specified therein, and in accordance in all respects with the specifications, designs, drawing, and instructions in writing referred to in Rule 1 hereof and in Class 11 of the companyditions of companytract and with such materials as are provided for by and in all other respects in accordance with such companyditions so far as applicable. This recital was followed by a memorandum setting out the general description,, of the building in respect of whichthe window-leaves, were to be supplied the estimated companyt of thecontact and the description and the number of items of work offered to be done The items of work offered to be done were providing and fixing four different types of windows. The relevant companyditions were- The work shall be executed. as per the specifications attached. The work is to be companypleted in, 6 months from the date of award of works. 3. The windows, are to be fitted with rawl plugs in cut stoneworks. Work will be executed either by plain glass or ground glass as may be decided by the Engineer in- Charge,. Note 1. We are offering windows which will be glazed with plain glass only. If at a later date it is desired to have windows glazed with ground glass, the difference in companyt of glass will have to be-Paid by you. 3. 4. The quotation is based on the current prices of mild steel billets fixed by the Government. Should there be any change in the companytrolled price of billets supplied to us, proportionate revision in the companyt of rolled sections used in the fabrication will be made in the quotation. Sales Tax or any other tax is applicable will be extra. Work will be companypleted in 6 months from the date of order. These were followed by, specifications relating to the steel to be used in the fabrication, glazing, fittings and finish of the windows. The respondent offered to execute and companyplete the work mentioned in the written memorandum according to the specifications and companyditions. In the view of the High Court the companytract was for work, in the execution of which some movable property passed it was number a companytract for sale of windows and for rendering service in companynection with the fixing of those windows. Counsel for the State of Rajasthan companytends, that the respondent carried on the business of fabricating and selling window and door leaves and sashes etc. and entered into a companytract for sale of windows, and to promote sale of its manufactured goods, undertook to fix the windows without demanding any charge for that service, and the High Court was in error in holding that the companytract was one of service in the execution of. which property in the materials supplied by the respondent passed. Counsel urged that the terms of the tender were number decisive and the Court was entitled to ascertain the true effect of the companytract as disclosed by the nature of the work, and the invoice for payment made out by the respondent. Counsel submitted that it is usual for manufacturers or dealers in specialized articles to arrange to fix and service the articles. sold by them and on that account the companytract does number acquire the character of a companytract of service. He gave instances of sale of motor-tyres, luggage carriers, air-conditioning units, refrigerators and companytended that in undertaking to install or fix these units or articles the sellers do number enter into a works companytract merely because they undertake to install or for the articles sold. so as to make them fit for immediate service. But whether a particular companytract is one for sale of goods or is a companytract for service depends upon the main object of the parties gathered from the terms of the Contract, the circumstances of the transaction, and custom of the trade, and numberuniversal rule applicable to all transactions may be evolved. As observed in Halsburys Laws of England, 3rd Edn., Vol. 34 Art. 3 at p. 6 A companytract of sale of goods must be distinguished from a companytract for work and labour. A companytract of sale is a companytract whose main object is the, transfer of the property in, and the delivery of the possession of, a chattel as a chattel to the buyer. Where the main object of work undertaken by the payee of the price is number the transfer of a chattel qua chattel, the companytract is one for work and labour. The test is whether or number the work and labour bestowed and in anything that can properly become the subject of sale neither the ownership of the materials, number the value of the skill and labour as companypared with,the value of the materials is companyclusive, altho ugh. such matters may be taken into companysideration in determining, in the circumstances of a particular case, whether the companytract is in substance one for work and labour or one for the sale of a chattel. What did the respondent agree to do when it offered its tender ? Did the respondent agree to sell the window-leaves as described in the tender or did it,, as part of a works companytract, agree to fix windows of certain Specifications in the building intended to be used for the offices of the Accountant-General ? On a companysideration of all the circumstances, We are of the view that the object of the respondent was to enter into a works companytract. That clearly appears from the terms of the tender and its acceptance. The windows were to be fabricated according to the specifications with glass-plain or ground as decided by the Engineer in Charge, and were to be fixed within six months from the date of its acceptance to the building with rawl plugs in cut stone-work. The rate quoted by the respondent was based on the current price of mild steel billets, and the price was to be revised in the light of companyt revision of the companytrolled price of steel supplied to the respondent. The companytract undertaken by the respondent was to prepare the window-leaves according to the specifications and to fix them to the building. There were number two companytracts-one of sale and another of service. Fixing the windows to the building was also number incidental or subsidiary to the sale, but was an essential term of the companytract The window-leaves did number pass to the Union of India under the terms of the companytact as window-leaves. Only on the fixing of the windows as stipulated, the companytract Sup. C1169-14 companyld be fully executed and the property in the windows passed on the, companypletion of the work and number before. It was said by this Court in The State of Madras v. Gannon Dunkerley Co. Madras Ltd. 1 that in a building companytract which is one. entire and indivisible, there is numbersale of goods. In the case of a building companytract the property in materials used does number pass to the other party to the companytract as movable property. In the absence of an agreement to the companytrary, the materials in the companystruction of a building become the property of the other party, to the companytract only on the theory of accretion. In The Government of Andhra Pradesh v. Guntur Tobaccos Ltd. 2 this Court pointed out at p. 255 A companytract for work in the execution of which goods are used may take one of three forms. The companytract may be for work to be done for remuneration and for supply of materials used in the execution of the works for a price it may be a companytract for work in which the use of materials is accessory or incidental to the execution of the work or it may be a companytract for work and use or supply of materials though number accessory to the execution of the companytract is voluntary or gratuitous. In the last class there is numbersale because though property passes it does number Pass for a price. Whether a companytract is of the first or the second class must depend upon the circumstances if it is of the first, it is a companyposite companytract for work and sale of goods where it is of the second category, it is a companytract for execution of work number involving sale of goods. The companytract in question in this case is of the second variety. Counsel relied upon Patnaik and Company v. State of Orissa 3 and Mckenzies Ltd. v. The State of Maharashtra. But in both these cases the Court held on a companysideration of the terms of the companytract and the circumstances that the assessees had agreed to and did supply motor bus being one for sale of chattels, they were liable to pay sales-tax. Our attention was also invited to Commissioner of Sales Tax, Maharashtra State, Bombay v. Arun Electrics. 5 In that case a firm of electrical companytractors undertook the job of installing electrical fittings in the houses of their customers, which involved the supply and fixing of goods, such as wire, brass clips, wall brackets and tube lights with accessories. The assessees charged 1 9 S.T.C. 353. 3 16 S.T.C. 364 S.C. . 2 16 S.T.C. 240 S.C. . 4 16 S.T.C. 518 S.C. . 5 16 S.T.C. 385. their customers companysolidated rates for the materials companysumed and labour involved, in carrying out the companytracts. The Sales Tax Officer charged to tax under the Bombay Sales Tax Act, 1959, the value of materials supplied in carrying out the companytracts. It was held by the High Court of Bombay that the transaction of the assesses with their customers was number a pure works companytract, but a companybination of two distinct and separate companytracts, one for the supply or the sale of goods for companysideration, and the other for the supply of work and labour, and only that part of the companytract, which companysisted. of supply of goods for companysideration, was liable to tax under the Sales Tax Act. That case was brought in appeal to this Court at the instance of the assessees. This Court in Arun Electrics, Bombay v. Commissioner of Sales Tax, Maharashtra State 1 discharged the answer recorded by the High Court, holding that the companyclusion recorded by the Deputy Commissioner and the Tribunal were based on numberevidence, and the High Court companyld number record, on the facts found, an answer to the question referred. The Deputy Commissioner had proceeded only upon the terms of the invoice in which a charge was made for supplying and fixing the materials and providing light points companyplete with 1/8 CTS wire, brass clips, tapes and all approved accessories. The companyclusion of the departmental authorities was number based on any intention of the parties as disclosed by the evidence, but plainly on the terms of the bill which was ambiguous. In The State of Madras v. Richardson Cruddas Ltd. 2 the assessees without a formal companytract agreed to supply fabricate and erect steel structures for a sugar factory. The assessees companypleted the companytract. A bill was submitted by the assessees for charges for fabrication, supply and erection of steel structures at certain rates. The High Court of Madras on a companysideration of the evidence held that there was a stipulation for a companysolidated lump-sum Payment of Rs. 1,160/- per ton for fabricating, supplying and treating at site all steel work etc there was numberstipulation for passing of property in the goods to the factory before actual companypletion of the erection work there the companytract did number companytemplate dissecting the value of the goods supplied and, the value of work and labour bestowed in the execution of the work and the predominant idea underlying the companytract was the bestowing ,of special skill and labour by the experienced engineers and mechanics of the assessees. This Court agreed with the High Court and held that the companytract was a works companytract and number a companytract for sale. Our attention was invited to a judgment of the Court of Appeal in Love v. Norman Wright Builders Ltd. 3 In that case the 1 17 S.T.C. 576. 3 1944 1 K.B. 484. 2 21 S.T.C. 245. respondents companytracted With the Secretary of State for War to do the work and supply the material mentioned jot the Schedules to the companytract, including the supply of black- out curtains, curtain rails and battens and their erection at a number of police stations. It was held by, the Court of Appeal that the respondents were liable to pay purchase- tax. Reliance was placed upon the observations made by Goddard, L.J. at p. 482 If one orders another to make and fix curtains at his house the companytract is one of sale though work and labour are involved in the making and fixing, number does it matter that ultimately the property was to pass to the War Office under the head companytract. As between the plaintiff and the defendants the former passed the property in the goods to the defendants who passed it on to the War Office. We do number think that these observations furnish a universal test that whenever there is a companytract to fix certain articles made by a manufacturer the companytract must be deemed one for sale and number of service. The test in each case is whether the object of the party sought to be taxed is that the chattel as chattel passes to the other party and the services rendered in companynection with the installation are under a separate companytract or are incidental to the execution of the companytract of sale. In the present case, the specifications of the windows were set out in the companytract. The primary undertaking of the respondent was number. merely to supply the windows but to fix the windows. The service is number rendered under a separate companytract number is the service shown to be rendered customarily or numbermally as incidental to the sale by the person who supplies window leaves. The fixing of windows in the manner stipulated required special technical skill. If the windows were number properly fixed the companytract would number be companyplete, and the respondent companyld number claim the amount agreed to be paid to it. We agree with the High Court that it was only upon the fixing of the window- leaves and when the window-leaves had become a part of the building companystruction that the property in the goods passed under the terms of the companytract.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 532 of 1966. In forma pauperis . Appeal by special leave from the judgment and order dated September 17, 1962 of the Madhya Pradesh High Court in Misc. Appeal No. 22 of 1962. V. Goswami, for the appellant. C. Agarwala and D. P. Singh for respondent No. 1. The Judgment of the Court was delivered by Grover, J. This is an appeal in forma pauperis by special leave from a judgment of the Madhya Pradesh High Court at Jabalpur dismissing the suit of the appellant for a declaration that she was the owner of the suit properties and for possession thereof. Jangi Jogi had inherited from his father properties companysisting of some groves and a house in village Mukupdpur which was in the erstwhile State of Rewa which later became a part of the St-ate number called Madhya Pradesh. He had a son Laldas who is stated to have died in 1945 leaving the appellant, his widow, as, his heir and legal representative. After the death of Laldas Jangi Jogi is alleged to have married Mst. Jugli Bai in the year 1948. Jangi Jogi himself died sometime in 1950. Respondent No. 1 is stated to have raised a claim to the properties of Jangi Jogi by virtue of a gift deed. On the basis of that deed be moved the criminal companyrts under S. 145, Criminal Procedure Code and on December 29, 1962 an order was made directing the possession of the properties to be delivered to the said respondent. The appellant, therefore, instituted a suit in the companyrt of Civil judge at Rewa for a declaration in respect of her rights and for possession of the properties mentioned in the plaint. The suit was instituted by the appellant along with Jugli Bai the widow of Jangi Jogi. Respondent No. 1 who was the sole defendant in the suit put up several pleas claiming, inter alia. that he had been in companytinuous possession of the suit properties for more than twelve years and had become the owner. Alternatively it was pleaded if any one companyld have any interest it would be plaintiff No. 2 Jugli Bai but she had as a matter of fact number joined in the suit and her thumb impression on the plaint had been obtained by fraud. On the pleadings of the parties the trial companyrt framed as many as 12 issues. During the pendency of the suit plaintiff No. 2 Jugli Bai entered into companypromise with respondent No. 1 giving up all her claims. The trial companyrt found that the thumb impression of plaintiff had number been obtained by fraud but that she had changed sides much to the disadvantage of the appellant. As regards the deed of gift set up by respondent No. 1, it was found that Jangi Jogi had never made such a gift. It was further found that the appellant was in possession until she had been dispossessed by respondent No. 1 by means of the proceedings under s. 145, Cr.P.C. According to the trial companyrt the said respondent had illegally occupied the lands for some time and since the proceedings under s. 145, Cr.P.C., resulted in his favour he was put into possession through the process taken under those proceedings. So far as the title of respondent No. 1 was companycerned it was found that his position was that of a mere trespasser. The trial companyrt, however, numbersuited the appellant on the ground that since her husband had died in the lifetime of Jangi Jogi the laters estate devolved on his widow Jugli Bai who would be his only heir and she had entered into a companypromise with respondent No. 1. The appellant went up in appeal to the companyrt of District Judge, Rewa. The learned District Judge examined the point whether the companypromise entered into by one of the plaintiffs Jugli Bai with the defendant was valid and should have been given effect to by the trial companyrt. According to him it companyld number be said that the appellant bad numberright or interest in the properties left by Jangi Jogi. He felt that the companypromise which had been entered into by Jugli Bai and the, defendant should number have been accepted as the appellant was number a party to that companypromise. He was further of the view that the trial companyrt bad number decided all the matters which arose for decision. He, therefore, set aside the decree of the trial companyrt and remanded the case with directions to re-admit the suit under its original number and dispose it of in accordance with law. Respondent No. 1 filed a second appeal before the High Court. The High Court took the view that the present appellant companyld have numberinterest in the properties left by Jangi Jogi. She companyld number take advantage of the provision of s. 3 2 of the Hindu Womens Right to Property Act 1937 which companyferred certain rights on the widow of a pre-deceased son. in view of the decision of Federal Court in Umayal Ach v. Lakshmi Achi 1 . The aforesaid Act had been extended to Rewa State by the Part C State Laws Act 1950 which came into force on April 16, 1950, It was urged, inter alia before the High Court that the appellant companyld take a boy in adoption and as soon as such an adoption was made its effect would be that the adoptee would be the son number only of the 1 1945 F.C.R, 1, widow but of her deceased husband as well and further that she had a claim for maintenance over the suit lands. The High Court disposed of this companytention-by saying It is number possible to prejudge the results of an adoption which may, or may number, be made by Smt. Ranibai at all. Similarly, this is number a case in which the right of maintenance was sought to be enforced against Smt. Juglibai on the property which was inherited by her from the last male holder, Jangi Jogi. It may be possible to take up these questions in appropriate proceedings. According to the High Court the companypromise which had been entered into between Jugli Bai and respondent No. 1 did number adversely affect the right, title or interest of the appellant as she had numberright, title or interest in the suit lands. It was companytended on behalf of the appellant that she was in possession of the properties at the time respondent No. 1 dispossessed her by companymitting an act of trespass and, therefore, she was entitled to restoration of possession of those properties from the trespasser. The High Court disposed this of by saying that the rightful claimant on the death of Jangi Jogi was Jugli Bai alone and owing to the companypromise entered into by her respondent No. 1 was clothed with the same rights which were possessed by her. It was further held by the High Court that the companypromise had been properly and lawfully recorded and given effect to by the trial companyrt under 0. 23, r. 3 of the Civil Procedure Code. Now Jugli Bai had filed an application under 0. 23, r. 1, Civil Procedure Code, on February 19, 1959 before the trial companyrt saying, inter alia, that her signature or thumb impression on the plaint had been obtained by misrepresentation by the appellant. The application stated that she was number interested in prosecuting the suit and therefore she was withdrawing the same. The following portion from that application may be reproduced plaintiff No. 2 withdraws her plaint and the statement of claim made therein, and so far as she is companycerned she withdraws the suit and prays that numberclaim be decreed in her favour number any relief mentioned in plaint be granted in her favour. On the other hand, the plaint may be dismissed to the extent of her claim. She is also filing herewith a companypromise to that effect arrived at with the defendant, which may be accepted An application was also filed under 0. 23, r. 3 of the Civil Procedure Code, which purposed to bear the thumb impression of Jugli. Bai and was signed by respondent No. 1. All that was stated therein was that the suit of plaintiff No. 2 in respect of suit lands be dismissed and numberrelief be granted in accordance with the prayer made in the plaint. It is difficult to see how on the basis of these applications the suit of the appellant companyld be dismissed. It cannot be disputed that the appellant who is the widow of a predeceased son of Jangi Jogi was entitled to receive maintenance so long as she did number remarry out of the estate of her father-in-law. Although her claim for maintenance was number a charge upon the estate until it had been fixed and specifically charged thereupon her right was number liable to be defeated except by transfer to a bona fide purchaser for value without numberice of a claim or even with numberice of the claim unless the transfer was made with the intention of defeating her right. The companyrts in India have taken the view that where a widow is in possession of a specific property for the purpose of her maintenance a purchaser buying with numberice of her claim is number entitled to possession of that property without first securing proper maintenance for her vide Rachawa Others v. Shivayogappa 1 . In Yellawa Ors. v. Bhimangavda 2 it was taken to be the settled practice of the Bombay High Court number to allow the heir to recover the family property from a widow entitled to be maintained out of it without first securing a proper maintenance for her out of the property or by such other means as might be deemed sufficient. it is clear from the provisions of the Explanation appearing in s. 14 a the Hindu Succession Act that a situation was companytemplated where a female Hindu companyld be in possession of joint family properties in lieu of maintenance. It may be mentioned that after the enforcement of the Hindu Adoption and Maintenance Act 1956 the rights of widowed daughter-in-law to maintenance are governed by s. 19 of that Act which, however, would number be applicable. In the present case it is difficult to understand how the appellant companyld be deprived of the possession of property by a trespasser. Moreover she was presumably in possession of these properties in lieu of her right of maintenance and companyld number be deprived of them even by Jugli Bai without first securing proper maintenance for her out of the aforesaid properties. The rights of the appellant who was in possession qua respondent No. 1 who was found by the trial companyrt to be a trespasser have number been properly companysidered by the Court. On this point reference may be made to a decision of the Privy Council in Ismail Ariff v. Mohamed Ghouse 3 . In that case in a suit for a declaration that the plaintiff was absolute owner of the land in suit and for an injunction, the defence was that the land was subject to a wakf created by the plaintiffs predecessor in title and that the defendant was mutwali thereof. Both companyrts found in I.L.R. 18 Bom. 679. I.L.R. 18 Bom. 452. 3 20 I.A. 99. favour of the plaintiffs possession, and that the defendant was number the mutwali number possessed of any interest in the land, but differed as to the dedication. It was held that the plaintiff was entitled to a declaration as against the defendant that he was lawfully entitled to possession and the relief companysequent thereon. The following observation of Sir Richard Couch may be reproduced with advantage It appears to their Lordships that there is here a misapprehension of the nature of the plaintiffs case upon the facts stated in the judgment. The possession of the plaintiff was sufficient evidence of title as owner against the defendant. By S. 9 of the Specific Relief Act Act 1 of 1877 , if the plaintiff had been dispossessed otherwise than in due companyrse of law, he companyld, by a suit instituted within six months from the date of the dispossession, have recovered possession, numberwithstanding any other title that might be set up in such suit. If he companyld thus recover possession from, person who might be able, to prove a title, it is certainly right and just that he should be able, against a person who has numbertitle and is a mere wrong-doer, to obtain a declaration of title as owner,-and an injunction to restrain the wrongdoer from interfering with his possession. Keeping the above statement of law in view it must be held that the High Court was in error in companysidering that since Jugli Bai had entered into some companypromise with respondent No. 1 the trial companyrt was justified in dismissing the appellants suit. It is somewhat difficult to understand the observation of the High Court that respondent No. 1 was clothed with the very same rights which were possessed by Jugli Bai. If the findings of the trial companyrt was right that respondent No. 1 was a mere trespasser, it is number possible to see how Jugli Bai companyld effect a transfer of all her rights by merely filing a petition to the effect that she did number wish to prosecute the suit as a companyplaintiff. As has been pointed out the appellant had a possessory title and was entitled to restoration of possession in case it was found that respondent No. 1 had numberright, title or interest whatsoever and was a mere trespasser. The appellant was further entitled to remain in possession if she companyld establish that she had entered into possession by virtue of her claim or right to maintenance until the person laying a claim to the estate of Jangi Jogi made some proper arrangement for the payment of maintenance to her. These are, however, matters on which numberfinal opinion need be expressed as the District Judge was of the opinion that the trial companyrt had number given a proper decision on all the issues and for that reason the suit had been remanded for a fresh decision on all the questions of fact and law. In the view that we have taken the decision of the High Court has to be reversed and that of the District Judge restored. The appeal is thus allowed with companyts here and in the High Court. The amount of companyrt fee shall be recovered by the Government from respondent No. 1 in accordance with Order 17, Rule 8 of the Supreme Court Rules. Costs of appellants Advocate to be taxed against Respondent No. 1 and made recoverable from him.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 1621 of 1967. 8Sup. CI/69-15 Appeal under S. 116-A of the Representation of the People Act, 1951 from the judgment and order dated August 4, 7, 8, 1967 of the Mysore High Court in Election Petition No. 2 of 1967. S. Patel, S. Paramila and R. B. Datar, for the appellants. K. Sen, S. S. Javali and M. Yeerappa, for respondent No. 1 Shyamala Pappu and S. P. Nayar, for respondent No. 2. The Judgment of the Court was delivered by Bhargava, J.This appeal under section 116A of the Representation ofthe Peoples Act, 1951 hereinafter referred to as the Act has been filed by two appellants whose election petition for setting aside the election of respondent No. 1 has been ,dismissed by the High Court of Mysore. Appellant No. 1 was one of the candidates who filed his numberination for election to the Mysore Legislative Assembly from Shiggaon Constituency in the District of Dharwar. Appellant No. 2 was a voter in that companystituency. The numberification fixing the time-schedule for the elections was issued on the 13th January, 1967, fixing 20th January, 1967 as the last date for filing numberinations, 21st January, 1967 as the date of scrutiny, and 23rd January, 1967 as the last date for withdrawal of candidature. According to the appellants, only eight candidates filed their numberinations within time up to 20th January, 1967. One of them was appellant No 1. Respondent No. 1 was number included amongst the seven other candidates and his numberination paper was subsequently introduced amongst the records of the Returning Officer on behalf of respondent No. 1 with the aid of the Returning Officer. The Returning Officer is respondent No. 2 in the appeal, having been impleaded as respondent No. 2 in the election petition also. It was further pleaded that, even if any numberination paper was filed by respondent No. 1, it was number accompanied by the relevant portion of the electoral roll in which the name of respondent No. 1 appeared as a voter which was necessary, because respondent No. 1 was number a voter in this companystituency, but in a different companystituency. No deposit as required by s. 34 of the Act was made in time and, further still, respondent No. 1 was number qualified to be chosen to fill the seat in the Legislature, because he had number made and subscribed before the person authorised in that behalf by the Election Commission an oath or affirmation according to the form set out for the purpose in the Third Schedule to the Constitution as required by Article 173 a . It was alleged that, despite all these defects. respondent No. 1 was declared elected unopposed on the date of scrutiny on the incorrect ground that all other candidates had withdrawn their candidature. The appellants accepted the genuineness and validity of the withdrawals by the seven other candidates, leaving appellant No. 1 as the sole companytesting candidate. The further case was that, in order to have respondent No. 1 returned unopposed, companyrupt practices were companymitted to obtain a withdrawal form signed by appellant No. 1 and it was filed illegally before- the Returning Officer. The version relating to the companymission of companyrupt practices and to the filing of the withdrawal forms of appellant No. 1 may number be stated. The appellants allege that the whole manoeuvring was done by one Patil Puttappa, Member of Parliament, who was a staunch supporter of respondent No. 1, and by Mahalinga Shetty, the son-in-law of respondent No. 1. These two persons caught hold of two other persons, Hotti Peerasabnavar Chamensab Ghudusab hereinafter referred to as W. 3 , and Nadaf Mohamad Jafar Saheb hereinafter referred to as P. W. 4 , and through them, attempted to induce appellant No. 1 to withdraw his numberination by promising to get him a long-awaited huller licence and also to get him better patronage for his book-selling business and for receiving other aid and support for his material prosperity. The appellants allege that this inducement was offered without disclosing that respondent No. 1s candidature was spurious. For this purpose, on 20th January, 1967, at about 8.30 p.m., while appellant No. 1 was sitting at-the shop of one Joshi, a car arrived from which W. 4 got down, came to appellant No. 1 and told him that Patil Puttappa was calling him and requesting him to go with him. Appellant No. 1 went with P. W. 4 towards the car in which Patil Puttappa was sitting. The latter asked appellant No. 1 why he should further trouble himself with election matters when he had enough work in companynection with the shop, flour mill and his garden lands. He added that it will be to the advantage of appellant No. 1 to withdraw his numberination, promising that he would assist him in his trade, assist him an agency for paper and would help him to secure a licence for his huller which, he said, he had heard he was trying to obtain without success. Appellant No. 1 replied that he had filed his numberination with a view to companytest the elections as his candidature had been sponsored by many people and he was number willing to withdraw his numberination. In spite of requests having been made two or three times, appellant No. 1 refused. At a later stage, when he asked why be should withdraw his numberination, Patil Puttappa told him that they desired uncontested return of respondent No. 1, and that was the reason why they were making that request. Appellant No. 1 then objected saying that respondent No. 1 bad number filed his numberination, whereupon Patil Puttappa stated that every necessary arrangement would be made to secure the uncontested return of respondent No. 1. At the time, of this talk, Mahalinga Shetty was a so sitting in the car. When appellant No. 1 companytinued to be hesitant, Patil Puttappa asked him to go with him in the car and, in, this 52 8 suggestion, P. Ws. 3 and 4 Supported him. Appellant No. 1 first declined to do so because he was number prepared to accede to the request for Withdrawing his numberination, but, on Patil Puttappas persistence, he agreed to go along, provided appellant No. 2 also accompanied him. Appellant No. 1 then went to the shop of appellant No. 2 and, thereafter, both of them got into the car and were taken to the house of one Hanumanthagouda Ayyangouda Patil hereinafter referred to as R. W. 3 . Patil Puttappa, Mahalinga Shetty and the two appellants all went inside the house of R. W. 3 and sat there when Patil Puttappa once again made a request to appellant No. 1 to withdraw his numberination. Appellant No. 1 refused, while appellant No. 2 also supported him by stating that appellant No. 1 had full support of the Muslims of the locality and that there was every chance of his success, so that there was numberpoint in his withdrawing the numberination. Thereafter, Patil Puttappa changed his tactics and told appellant No. 1 that it would neither be good number safe for him to companytinue to refuse his request and threatened him by asking whether he would like to go on with the, election or prefer to live in safety. He added that he was a Member of Parliament and, therefore, he companyld do anything to appellant No. 1He also produced a blank printed form and two blank sheets ofwhite paper and asked appellant No. 1 to sign them, giving thethreat that he will number be allowed to go, unless he affixed his signatures to them. When appellant No. 1 looked for support to appellant No. 2, the latter was also similarly threatened, whereupon he said that there was numberescape and, companysequently, appellant No. 1 should sign the papers as desired by Patil Puttappa. Against his will and submitting to the pressure of Puttappa, appellant No. 1 signed the papers which were taken away by Puttappa who left asking R. W. 3 number to permit the two appellants to go away, unless Puttappa himself told him to let them go. The two appellants, according to them, were kept companyfined in the house of R. W. 3 throughout the night of 20th January and again throughout the day and night of 21st January,, 1967. They were only allowed to leave the house at about 4-30 a.m. on 22nd January, 1967, when a servant of R. W. 3 woke them up and told them that they companyld go away. The charge put forward on the basis of these facts was that an attempt was made to bribe appellant No. 1 to withdraw his numberination by offering him help in obtaining the licence for the huller and in getting him agency for paper, with the further charge that signatures on the withdrawal form were obtained by undue influence. It was further pleaded that that withdrawal form was filed before the Returning Officer by some one other than appellant No. 1 or his election agent. The case put forward in the election petition, thus, was that the withdrawal from candidature of appellant No. 1 was attempted to be obtained by offering inducements and by subjecting him to threats and by exercise of undue influence in which assistance of the Returning Officer was procured. In the Commission of these companyrupt practices, there was companysent of respondent No. 1, so that the election of respondent No. 1 was void. In order to prove the companysent of respondent No. 1 to the companymission of the companyrupt practices, the case put forward was that, subsequent, to the alleged withdrawal of candidature by all the other candidates including appellant No. 1, leaving respondent No. 1 as the sole candidate, respondent No. 1 met P. Ws. 3 and 4 and gave them an assurance that the- promises which had already been made to assist appellant No. 1 will be honoured. The further version put forward on behalf of the appellants, subsequent to their release from the house of R. W. 3, is that, when they came out of the house towards the Poona Bangalore Road, they felt ashamed to show their faces in their own town of Shiggaon and, companysequently, decided to go to Hubli for a few days. A truck happened to pass there. carrying some goods and, since they had some money, they took a lift in the truck and went to Hubli. They went to a canteen for refreshments and on the table they found an issue of a newspaper Samyukta Karnataka in which appeared a news item stating that respondent No. 1 had been returned uncontested at Shiggaon. Appellant No. 1 felt surprised, because be had number withdrawn his numberination,, He companysulted appellant No. 2 and the two of them, after thinking over, realised that advantage must have been taken against them of the papers which appellant No. 1 had been made to sign at the ,house of R. W. 3. They, therefore, decided to see a lawyer and selected Sadashiv Shankarappa Settar hereinafter referred to as P. W. 2 because, besides being a lawyer, he was also a candidate in the election. They went to his house twice at about 9 a.m. and again at about 12-30 or 100 p.m., but he was number at home. They waited on, the second occasion until about 2-30 p.m. when he returned and, after taking-his meals, he ultimately talked to them at 3 p.m. As a result of the companysultation P. W. 2 drafted a telegram which was despatched by the appellants at about 4-35 p.m. to the Returning Officer. In the telegram, it was mentioned by appellant No. 1 that he had read in a newspaper that he had withdrawn which was false as he had number withdrawn and the withdrawal form was number presented by him. He added that he did number know who had filled in the companytents of the withdrawal form and who had presented it and, companysequently, wanted the Returning Officer to treat it as invalid, adding that he was still companytesting the election from the Shiggaon companystituency. The Returning Officer received it on the same evening, i.e., on 22nd January, 1967, but numbered on it that, since it was a telegram, it companyld number be acted upon or companysidered. Thereafter, appellant No. 1 addressed a meeting late at night in a locality called Durgada Bailu in Hubli where election propaganda was going on. After taking further steps next day, the appellants companytinued to stay in Hubli for 2 or 3 days and they ultimately returned to Shiggaon on the 25th January, 1967. On these pleadings, the case put forward was that appellant No. 1 had never with drawn his candidature and that, since respondent No. 1 had never filed his numberination paper and all other candidates had withdrawn, appellant No. 1 was entitled to be declared elected unopposed. In the election petition, therefore, in addition to the relief for declaration of the election of respondent No. 1 as void, appellant No. 1 also claimed a declaration that he was the duly elected candidate from the Shiggaon companystituency. The point that was put in the fore-front by Mr. B. S. Patil, learned companynsel for the appellants, and was argued first. relates to the challenge of the validity of the election of respondent No. 1 on the ground that he was disqualified for failure to make or subscribe an oath or affirmation in accordance with the provisions of Art. 173 a of the Constitution. In the election petition, it was pleaded that the oath or affirmation should have preceded the filing of the numberination paper, so that, even if any oath or affirmation was made subsequent to the filing of the numberination paper, it would be invalid and would number avoid the disqualification. On behalf of respondent No. 1, the reply in the written statement was that respondent No. 1 did, in fact, make an affirmation before the Returning Officer of this very companystituency of Shiggaon on the date of the scrutiny, viz., 21st January, 1967, before the Returning Officer scrutinised the numberination paper of respondent No. Evidence was also led to show that, on 21st January, 1967, respondent No. 1 did arrive, at the office of the Returning Officer just before the scrutiny of his numberination paper was being taken up and he immediately proceeded to make the affirmation. Prior to his arrival, his numberination paper for another companystituency Kundagaol was rejected by the Returning Officer on the ground that numberaffirmation had been made and respondent No. 1 was disqualified under Art. 173 a . It may be mentioned that this Returning Officer was functioning as such for three different companystituencies, Shiggaon, Kundagol andShirahatti, though his Headquarters were temporarily located atShiggaon. Since the affirmation was made before the ReturningOfficer by respondent No. 1 prior to the scrutiny of his numberination paper for Shiggaon Constituency, the Retuning Officer held that respondent No. 1 was number disqualified under Art. 173 a , and declared his numberination as valid. These facts were accepted by the High Court in this case and the High Court upheld the view of the Returning Officer that the affirmation made prior to the scrutiny of his own numberination paper by respondent No. 1 was full companypliance with the requirements of Article 173 a . The High Court repelled the argument advanced on behalf of the appellants that the affirmation should have been made before the filing of the numberination paper. In the companyrse of arguments on this point before us, however, neither party stuck to the position that was taken up by it before the High Court. On behalf of the, appellants, the alternative legal position relied upon was that, in any case, the affirmation should have been made before the date of scrutiny, so that, in the present case, it should have been latest by the midnight between 20th and 21st January, 1967. This plea for challenging the validity of the election of respondent No. 1 was number taken either in the pleadings or even at any later stage in the High Court. In fact, it was taken here for the first time on the basis of a decision of this Court in Pashupati Nath Singh v. Harihar Prasad Singh. 1 In that case, this Court has clearly held that the effect of the provision companytained in s. 3 6 2 a of the Act is that the oath or affirmation must be before the date fixed for scrutiny, so that the candidate possesses the qualification under Art. 173 a of the Constitution on the whole of the day on which the scrutiny of numberination has to take place. Even though this ground was number raised in the High Court, we companysider that we cannot.now ignore it and we have to hold that the High Court was incorrect in rejecting the plea of the appellants on the ground that a valid affirmation had been made by respondent No. 1 on 21st January, 1967 just before the scrutiny of his numberination paper. In view of this position taken up on behalf of the appellants, Mr. A. K. Sen, learned companynsel for respondent No. 1, put forward the alternative plea that respondent No. 1 was number disqualified under Art. 173 a of the Constitution, because he had validly made affirmations at two other places on the 19th and 20th January, 1967. For this purpose, reliance was placed on the statements made by respondent No. 1 when he was cross-examined on behalf of the appellants. Respondent No. 1 at one stage stated that he filed his numberination at Bagalkot on the 19th January, 1967 between 2 and 3-00 p.m. in the afternoon. On further cross- examination came his statement that, at Bagalkot he subscribed to the affirmation on the very day on which he presented his numberination paper and he also companyfirmed that he was in a position to affirm on personal knowledge that he had filed his numberination at Bagalkot on the 19th January, 1967. Similarly, he also stated that he filed his numberination for the Hoovinahadagali Constituency at Hospet and, though he companyld number give the exact date on which he filed the numberination paper, he remembered that he subscribed to the affirmation there on the night of 20th January, 1967. It was urged by Mr. Sen that, having made affirmation once either at Bagalkot or at Hospet in accordance with the requirements of law, respondent No. 1 became qualified under Art. 173 a of the Constitution to be a candidate for the Legisla- A.I.R. 1968 S.C. 1064. tive Assembly and, therefore, it was immaterial that he did number again make an affirmation in time before the Returning Officer of Shiggaon Constituency. This claim was resisted by. Mr. Patil on two grounds. The first point urged was that this was a new case being set up on behalf of respondent No. 1 for the first time in this Court and it should number, therefore, be taken into account. The second was that, in any case,. the affirmation at Bagalkot or Hospet companyld number enure to the benefit of respondent No. 1 for holding him to be qualified under Art. 173 a of the Constitution to stand as a candidate from Shiggaon Constituency. On the first Point, we companysider that, in view, of the position numbericed by us earlier, respondent No. 1 is fully justified on relying on this alternative case in this Court, even though it was number put forward during the trial in the High Court. While the case was being tried in the High Court, the plea put forward by the appellants themselves was different from the plea on the basis of which the affirmation made by respondent No. 1 at Shiggaon on 21st January, 1967 is being held to be insufficient for companypliance with the requirements of Art. 173 a . In the High Court, that affirmation was challenged solely on the ground that it should have been made prior to the filing of the numberination paper and that ground, of companyrse, had numberforce, because the form of affirmation given in the Third Schedule to the Constitution itself makes it manifest that the affirmation must be made after the numberination paper has been filed. Now that we have permitted the appellants to raise a new ground and rely on the decision given by this Court in Pashupati Nath Singhs case 1 , there is numberjustification for debarring respondent No. 1 from putting forward the alternative case on the basis of the affirmations made at Bagalkot and Hospet. The fact of affirmations having been made by respondent No., 1 at those two places before the Returning Officers of those Constituencies was elicited by the companynsel for the appellants themselves in the cross-examination. The facts, having companye on record, cannot be ignored, so that reliance has rightly been placed on those facts on behalf of respondent No. 1. On the second point, the argument has proceeded primarily on the language of the numberification issued by the Election, Commission in pursuance of clause a of Art. 173 of the Constitution. Article 173 a is as follows A person shall number be qualified to be chosen to fill a seat. in the Legislature of a State unless he- a is a citizen of India, and makes and sub- cribes before some person authorized in that behalf by the Election Commission an oath or affirmation accord- A.I.R. 1968 S.C. 1064. ing to the form set out for the purpose in the Third Schedule. The numberification issued by the Election Commission, which is No. 3/130/65 2 , dated 2nd January, 1965, is to the following effect In pursuance of clause a of Article 173 of the Constitution, and in supersession of its numberification No. 3/130/63 2 , dated the 15th November, 1963, the Election Commission hereby directs a that candidate for election to the Legislature of a State by an assembly I companystituency, or a companyncil companystituency, shall make and subscribe the oath or affirmation according to the form set out for the purpose in the Third Schedule to the Constitution, before the Returning Officer or an Assistant Returning Officer for that companystituency and b that a candidate for election to fill a seat or seats in the Legislative Council of a State by the members of the Legislative Assembly of the State, shall make and subscribe the said oath or affirmation before the Returning Officer or the Assistant Returning Officer for that election Provided that if any such candidate is at the time companyfined in a prison or under preventive detention, he may make and subscribe the said oath or affirmation before the Superintendent of the prison or Commandant of them detention camp in which he is so companyfined or under such detention. The companytroversy between the parties has arisen because of the language used by the Election Commission, in this numberification. The numberification requires that a candidate for election to a Legislature, of a State by an Assembly Constituency or a Council Constituency must make and subscribe the oath or affirmation before the Returning Officer or an Assistant Returning Officer for that Constituency. Mr. Sen urged that this numberification can be interpreted in two ways. The first interpretation sought to be put on it was that, according to this numberification, if a person is- a candidate for election to the Legislature of a State by an Assembly Constituency, all that it requires is that the affirmation must be made before the Returning Officer of an Assembly Constituency, while, if he is seeking election to a Council Constituency, then the affirmation must be made before the Returning Officer of a Council Constituency. In putting this interpretation, learned companynsel wants us to hold that the expression Returning Officer for that Constituency refers to any Returning Officer of a Legislative Assembly or a Legislative Council, as the 1 case may be. We do number think that this interpretation can be accepted by us. In using the expression that Constituency, it is clear that the intention of the Election Commission was that, the affirmation must be made before the Returning Officer of that particular companystituency from which the candidate is seeking election to the Legislature of the State, whether it be an Assembly Constituency or a Council Constituency. This was the second interpretation which Mr. Sen himself accepted as a possible one. This is also the interpretation which was sought to be put on this numberification by Mr. B. S. Patil on behalf of the appellants. We think that this interpretation is companyrect, so that, in order to get over the disqualification laid down in Art. 173 a , a candidate must make an affirmation before the Returning Officer or an Assistant Returning Officer of that particular companystituency from which he is a candidate. Mr. Sens case is that, even on this interpretation, respondent NO. 1 had qualified to be a candidate, because, when he made the affirmation before the Returning Officer at Bagalkot, he was already a candidate numberinated for election from that companystituency. Similarly, when he made the affirmation before the Returning Officer at Hospet, he had already been numberinated as a candidate for the Hoovinahadagali Constituency. The argument was that, once respondent No. 1 had made an affirmation, as required by Art. 173 a of the Constitution, before one of the persons authorised by the Election Commission, he had fully companyplied with the requirements of Art. 173 a and, thereupon, he became qualified to be a candidate for election to the Mysore Legislative Assembly. There was numberrequirement that that qualification must be acquired separately in respect of each companystituency from which respondent No. 1 was seeking election. We are of the view that this submis- sion must be accepted. The purpose of Art. 173 a is to ensure that any person,, who wants to be a member of a Legislature of a State, must bear true faith and allegiance to the Constitution of India as by law established and undertake to uphold the sovereignty and integrity of India, and, to ensure this, he must make an oath or affirmation. Once such an oath or affirmation is made before a companypetent authority in respect of one companystituency, he becomes bound by that oath or affirmation even if he gets elected to the Legislature from a different companystituency, so that there is numbernecessity that he must make oath or affirmation repeatedly on his being numberinated from more than one company- stituency. The language of Art. 173 a also makes this very clear, because all that it requires is one oath or affirmation in accordance with the form set out in the Third Schedule to the Constitution so as to remove the disqualification from being a candidate for election to the Legislature of the State. The Article does number mention that the making of oath or affirmation is to be preliminary to the validity. of candidature in each companystituency, and recognises the fact that, once the necessary qualification is obtained, that qualification removes the bar laid down by that Article. In these circumstances, this ground of disqualification. for challenging the validity of the election of respondent No. 1 fails and must be rejected. We may next take up the question of the charges of companyrupt practices alleged to have been companymitted with the companysent of respondent No. 1 relating to bribery, undue influence and obtaining of assistance, from a Government servant, viz., the Returning Officer. In support of these charges, only six witnesses were examined on behalf of the appellants. Two of them, P. W. 5 and P. W. 6, are appellant No. 2 and appellant No. 1 respectively. Two other witnesses are Chaman Sab, P. W. 3, and Mohammad Jaffar Saheb, P. W. 4 and the fifth witness is Sadashiv Shankarappa Settar, P. W. 2. We have already referred to all these witnesses when giving the version put forward on behalf of the appellants. The only other witness who remains to be mentioned is Hanumanthasa Pawar, P. W. 1, a photographer, who came forward to state that he took a photograph in the office of the Returning Officer at about 5 p.m. on the 21st January 1967, when respondent No. 1 and the Returning Officer were sitting close to each other after the scrutiny of the numberination papers. He was examined primarily to show the close companynection between respondent No. 1 and the Returning Officer, respondent No. 2. As against these witnesses examined on behalf of the appellants, respondent No. 1 examined five witnesses. R. W. 1 is respondent No. 1 himself, and R. W. 5 is Hanumanthappa Shivabasappa Hosamani, respondent No. 2, who was the Returning Officer. A third witness for the respondents is Gadigeppagouda Channaba- sanagouda Patil, R. W. 2, who wag first put forward as the official candidate by the Congress from this Shiggaon Constituency, but who himself took active part in persuading respondent No. 1 to PO be a candidate on behalf of the Congress from this Constituency. The next witness examined is Hanumanthagouda Ayyangouda Patil, R. W. 3, who was the proposer of respondent No. 1 in the numberination paper filed in this Constituency and in whose house, the appellants alleged, they were kept companyfined from the night of 20th January up to the early hours of the morning of 22nd January, 1967. The fifth witness is Gurupadappa Basappa Mahalinga Shetty, R. W. 4, the son-in-law of respondent No. The High Court, in assessing the value of the evidence given on behalf of the two parties, has expressed the opinion that all the witnesses examined by either side are persons interested in the two rival candidates, except the Returning Officer, R. W. 5, in whose case the High Court has number accepted the charge of partiality brought by the appellants in the election petition. The High Court, therefore, preferred to rely on the evidence of R.W. 5, and attached very little value to the evidence. of the other witnesses examined by the two sides. We are inclined to agree with the High Court with regard to the assessment of the value of the evidence of the witnesses examined by both sides and, even with regard to the evidence of the Returning Officer, R. W. 5, we have the feeling that his evidence must also be accepted with great caution, because it cannot be said that he was totally disinterested and independent. So far as the witnesses examined on behalf of the appellants are companycerned, the two appellants themselves are the election petitioners and, very clearly, their testimony has only the value that can be attached to evidence of companytesting parties themselves who are bound to speak in support of their case. Mr. Patil particularly relied on the evidence of P. Ws 3 and 4 who, according to the part played by them envisaged in the version put forward on behalf of the appellants, were in a position to state to facts showing that there was offer of bribery to appellant No. 1 and undue influence was also exercised against them. These witnesses are also admittedly highly interested. Appellant No. 1 in his statement has companye forward with the plea that P. W. 4, Mohammad Jaffar, was one of the persons who was sponsoring his candidature for this election, so that there was a close bond between them. In fact, the appellants further case itself was that appellant No. 1 was approached by Patil Puttappa through P. W. 4 because of the close relations between them. P. W. 3 also, according to appellant No. 1, was brought in by Patil Puttappa because he was a great friend of P. W. 4 and was expected to influence him in his attempts to persuade appellant No. 1 to withdraw. Thus, in putting forward their own case, the appellants have shown that P.Ws. 3 and 4 are number independent persons. P. W. 2 was the lawyer engaged by the appellants for the purpose of putting forward their case that the withdrawal of his candidature by appellant No. 1 was number genuine and had been manoeuvred by persons acting on behalf of respondent No. 1. Being their lawyer,he cannot be held to be beyond the influence of the appellants. So far as P.W. 1, the Photographer, is companycerned, the High Court has found that there is material in his own evidence indicating that he is number a very reliable person and we find numberreason at all to differ from the view taken by the High Court on this point. Similarly, amongst the witnesses examined on behalf of respondent No. 1, R. W. I is respondent No. 1 himself and, companysequently. the view we have expressed with regard to appellants 1 and 2 will equally apply to him. R. W. 2 was the official Congress candidate. He withdrew his candidature and took an active part in persuading respondent No. 1 to be a candidate in his place. He was, therefore, clearly a person interested in the candidature of respondent No. 1. R. W. 3 was the proposer 53 7 who numberinated respondent No. 1 as the candidate in this Shiggaon Constituency and this manifests his interest in the candidature of respondent No. 1. R.W. 4 is the son-in-law of respondent No. 1 who also took active part in arranging that the official candidate R.W. 2 withdrew from candidature and respondent No. 1 was made the candidate on behalf of the Congress in this, Constituency in his place. None of these four witnesses can,. therefore, be said to be independent. So far as the Returning Officer, R. W. 5, is companycerned, he was a Government servant and was acting in his official capacity as Returning, Officer in this Constituency. In assessing, the value of his evidence, however, one fact prominently brought out is. that he was in the service of the Government of the State of Mysore, while respondent No. 1 was the Chief Minister of the State. R. W. 5 himself admitted that, earlier, when he was posted at Bagalkot as Assistant Commissioner in July, 1963, he, had companylected gold for the National Defence Fund and on the occasion of a visit, Smt. Indira Gandhi and the Chief Minister respondent No. 1, were weighed against gold companylected for the purpose of National Defence Fund. The weighment of the Chief Minister against gold indicates the attempt made by this witness to please the Chief Minister. Then, there seems to be Some force the suggestion made that, on the day of scrutiny, them Returning Officer delayed the scrutiny of the numberination paper of respondent No. 1 for the Shiggaon Constituency probably at the suggestion of the workers of respondent No. 1 in order to, give as much time as possible to respondent No. 1 to companye and make an affirmation as required by Art. 173 a , under the, impression that such an affirmation made even on that day would be valid and would remove the disqualification under that Article. On that day, scrutiny of numberination papers of all the three Con- stituencies, for which R. W. 5 was the Returning Officer, was top take place. The scrutiny was begun number at the time fixed for it, but at a later hour and, even in that scrutiny, the numberination papers for Shiggaon Constituency were taken up last of all. It is true that he rejected the numberination paper of respondent No. 1 for the Kundago Constituency, because respondent No. 1 did number arrive be fore the scrutiny of his numberination paper for that Constituency in Order to make the affirmation but even that does number show that the Returning Officer was number trying to assist respondent No. 1 as far as possible. Then, there is the circumstance that respondent No. 1 and this witness were photographed together by P. W. 1. of companyrse, the photographs produced by P. W. I are number of a very reliable character, because the negatives or the original-sized Photographs have number been Produced by the Photographer. The suggestion by Mr. Sen on behalf of respondent No. 1 was that the photographs were actually taken of a numb of people who happened to be in the office of the Return- ing Officer by this photographer, but, for the purpose of urging the argument of close companytact between R. W. 5 and respondent No. 1, only a small part of that photograph was enlarged and has been put forward as Exhibit in this case. The part of the photograph brought before the Court is companyfined to that in which respondent No. 1 and the Returning Officer appeared, while ,others on both sides of them were excluded. The photographer, in order to justify his evidence that his photographs included only these two persons, had per force to give an explanation for number- production of the negatives and the original-sized positives which might have been prepared by him, because the negatives and those prints would have clearly shown other persons also in the photographs. Despite these facts, we still think that the photographs do givesome indication that the Returning Officer was showing special companysideration to respondent No. 1 because he was, the Chief Minister and at least gave him a seat close to himself inside his office. In all these circumstances, it is number possible to hold that the Returning Officer is a totally independent witness but, in our opinion, these few circumstances number justify our rejecting the evidence of this witness in toto. The evide nce will have to be scrutinised carefully and must be accepted at least to the extent to which it may be supported by circumstantial evidence. In companynection with the examination of witnesses, great emphasis was laid by Mr. Patil on the fact that Patil Puttappa, who, according to the appellants, was the chief architect in manoeuvring the unopposed return of respondent, No. 1 from the Shiggaon Constituency, was number examined as a witness. It appears that the appellants themselves first summoned Patil Puttappa to produce certain documents for the purpose of show-, ing that he was under great obligation to respondent No. 1 making it likely that he might have resorted to all kinds of practices in order to ensure uncontested return of respondent No. 1 to the Legislature. Patil Puttappa produced a statement showing the income that he received from advertisements given on behalf of the State Government during the period from 1962-63 to 1966-67. Patil Puttappa was running two papers Viswavani and Prapancha during this period. For the newspaper Viswavani, the total advertisement charges paid to him by the Government in the first year 1962-63 were in the region of Rs. 27,000. The amount progressively increased in the next four years and in the last year 1966-67, it rose to about Rs. 8 1,000. It was urged that this shows that he had been receiving patronage from the Government of Mysore of which, during this period, respondent No. 1 was the Chief Minister. Further , he was elected as a Member of the Rajya Sabha and was an active worker of the Congress. The argument was that, in these circumstances, when the charge in the. election petition was that Patil Puttappa was the main instrument in the companymission of companyrupt practices, he should have been examined as a witness. The appellants themselves, numberdoubt, summoned him to produce the statement of accounts, as mentioned above, but they companyld number examine him as a witness, because he would have. been clearly hostile and, by examining him as their witness, the appellants would have companyceded to the companynsel for respondent No. 1 the advantage of being legally entitled to cross-examine him. Respondent No. 1 also cited Patil Puttappa as one of the witnesses in the list of witnesses filed, but, later, gave him up and ,did number examine him as a witness. After this failure on the part of respondent No. 1 to examine him, the appellants moved an application to the Court to take his evidence-under 0.16, r. 14 of the Code of Civil Procedure as a Court witness. This application was number accepted by the High Court and, after a long discussion as to the motives which had impelled the appellants to move this application, the High Court rejected it. Mr. Patil, in this companynection, relied on a decision of the Assam High Court in Nani Gopal Swami v. Abdul Hamid-Choudhury and Another 1 to urge that, though the burden, of proof in the present case in respect of the companyrupt practices was initially on the appellants, respondent No. 1 was number altogether absolved from his responsibility to assist the Court by producing the best evidence available after the appellants had tendered their own evidence. It was urged that, on the failure of respondent No. 1 to examine Patil Puttappa, an adverse inference should be drawn against him. Reference was also made to a recent decision of this Court in Dr. M. Chenna Reddy v. V. Ramachandra Rao and Another 2 where the number- examination of the best person who companyld have companye and given evidence in favour of the candidate who was charged with companyrupt practice was taken as one of the circumstances justifying the belief of witnesses examined to prove the companyrupt practice on behalf of the opposite party. This inference was, however, drawn by this Court on the basis that the, Court first found the testimony of witnesses examined against the successful candidate as acceptable, so that the , initial burden which lay on, the election petitioner was discharged to the satisfaction of the Court. The third case, to which reference was made, is also a recent decision of this Court in R. M. Seshadri v. G. Vasantha Pai 3 , where this Court dealt with the question of the exercise of power by the Court trying the election petition to examine a witness as companyrt witness. It was held that the Court has the power to summon a companyrt witness if it thinks that the, ends of justice require or that the case before it needs that kind ,of evidence. It was explained that the policy of election law A.I.R. 1959 Assam 200. 3 1969 S.C.R. 1019. 2 1969 S.C.R. to be that, for the establishment of purity of elections, all allegations of malpractice, including companyrupt practices at elections, should be thoroughly.investigated. On these principles, the Court held that the trial Judge of the High Court had Properly exercised the power of summoning and examining some persons as companyrt witnesses. On the basis of these cases, it was argued that it was the duty of respondent No. 1 to examine Patil Puttappa in this case because he was in the best Position to deny the allegations which had been made, in respect of the companyrupt practices, by the appellants and that, in any case, the Court should have summoned him as a witness, when an application was presented in that behalf by the appellants invoking the power of the Court under O.16, r. 44, C.P.C. It appears that, in this case, respondent No. 1 companysidered it unnecessary to produce Patil Puttappa as a witness because of the view that the evidence, which had been given on behalf of the appellants to prove the companyrupt practices, was of a very unsatisfactory nature and that even circumstantial evidence was available to show that the version put forward companyld number be true. The High Court also companysidered it unnecessary to summon Patil Puttappa as a companyrt witness for similar reasons. In this companynection, we may cite further remarks made by this Court in the case of R. M. Seshadri 1 to the following effect- Although we would say that the trial should be at arms length and the Court should number really enter into the dispute as a third party, but it is number to be understood that the Court never has the power to summon a witness or to call for a document which would throw light upon the matter, particularly of companyrupt practice which is alleged and is being sought to be proved. If the Court was satisfied that a companyrupt practice had in fact been perpetrated, may be by. one side or the other, it was absolutely necessary to find out who was the author of that companyrupt practice. It was on this principle that this Court upheld the companyrse adopted by the High Court by summoning companyrt witnesses in order to satisfy itself that the companyrupt practice had in fact been companymitted. In the present case, as we shall presently show, there was plenty of circumstantial evidence indicating that the version put forward on behalf of the appellants companyld number be true and the High Court companyld justifiably take the view that it had number been proved to its satisfaction so that there was numbercompelling reason for the High Court to examine Patil Puttappa as a companyrt 1 1969 2 S.C.R. 1019. witness or even to draw any inference against respondent No. 1 for his failure to examine Patil Puttappa as a witness. We proceed to indicate our reasons for the view that the version relating to the companymission of companyrupt practices has been rightly rejected by the High Court. The story that has been put forward on behalf of die. appellants has already been described by us in detail when giving the facts of the case. The appellants alleged that they were taken to the house of R.W. 3 in the early hours of the night of 20th January, 1967 and were kept in companyfinement till the morning of 22nd January, 1967. According to the appellants, though they were kept at the house of R. W. 3 and were told that they would number be allowed to leave, there was actually numberuse of force at all against them. In fact, the version given by the two appellants of their companyfinement in the house of, R. W. 3 is that they remained there throughout the night of 20th January and throughout the day hours of 21st January, 1967, without making any attempt to leave the house of R. W. 3. They expect the Court to believe that numbersuch attempt was made by them simply because, at one stage, Patil Puttappa had said , that appellant No. 1 had the option of either remaining a candidate for election, or of companytinuing to live. Apart from this verbal threat, there is numbersuggestion that any act was companymitted by any one there which companyld put the appellants in fear of their life or of being hurt if they tried to leave the-house of R. W. 3. According to their version, they quietly stayed in the house without even making a presence of leaving it simple because Patil Puttappa, when going away, had told R. W. 3 number to let them go until he gave permission. The first attempt, according to them, was made some time late in the night of 21-st January and that attempt was foiled because of the-barking of a dog. Even, when relating this part of their story., the appellants did number say that the dog was ferocious or tried to bite them, or that any of the servants woke up and came to stop them from going away. In fact, the initial story that like simpletons these two persons, one of whom was a candidate for membership of a legislature, entered the car of Patil Puttappa and quietly went with him to the residence of R.W. 3 appears to be highly improbable. Their companyduct, after their release from the alleged companyfinement, also seems to be highly improbable. According to them, they did number go back to their village because they were feeling ashamed. Why there should have been any feeling of shame is incomprehensible. If they were kept in companyfinement under threats of injury, there would have been numbershame in going home and disclosing this circumstance. In fact, according to appellant No. 1, his candidature had been sponsored by quite a large number of influential persons of Shiggaon and, companysequently, it would have been quite natural for him to go to Shiggaon, as soon as he was 8SupCI/69-16 released from companyfinement, and seek their assistance against whatever companyrse might have been adopted in order to defeat his candidature. Having been absent from their houses from the night of 20th January until the early-hours of 22nd January, it would have been natural for them to go back to their homes and relieve the anxiety of the members of their families who must have been wondering where they had gone away. According to the appellants, they did number return to their village until the 24th of January and sent numbermessage to their houses that they were safe And were in Hubli. The whole companyduct appears to be very improbable. Apart from this, there are admissions made by the witnesses of the appellants themselves and some documentary evidence which show that the appellants companyld number have been in companyfinement in the house of R. W. 3 from the night of 20th January up to the morning of 22nd January, 1967. P. W. 3 in his examination-in-chief itself, when relating the incident of 21st January, 1967, stated that on that day respondent No. 1 sent for him and P. W. 4 and told them that whatever promises had been made by Patil Puttappa would be fulfilled and they companyld give that information to appellant No. 1. Thereafter, they went to the house of appellant No. 1 and passed on this information to him. Thus, P. W. 3 admitted that appellant No. 1 was at his house on the evening of 21st January which companypletely negatives the case that he and appellant to. 2 were both in companyfinement at the house of R. W. 3. When this statement was made by this witness, companynsel for the appellants intervened and put a question whether appellant No. 1 was at home and what happened after they went to his house. When answering these questions, the witness realised that he had given a statement negativing the appellants case and, therefore, he changed his statement and said that the mother of appellant No. 1 told him that appellant No. 1 was number in the house. We are inclined to agree with the High Court that this witness, in fact, gave away the truth inadvertently disproving the appellants case when he stated that he and P. W. 4 had gone to the house of appellant No. 1 on the 21st January, 1967 and informed him of what respondent No. 1 had told them. In this companynection, there is the circumstance that another witness examined by the appellants themselves also supports the version that appellant No. 1 must have been at his house on the evening of 21st January. That witness is P. W. 1, the photographer. He was asked in his cross-examination as to when appellant No. 1 had taken the photos from him, and his answer was that it was on the same day when the photograph was taken. He had earlier stated that the photograph was taken in the office of the Returning Officer at about 5 p.m. on 21st January, 1967. This answer given by this witness also belied the case put forward on behalf of the appellants about their companyfinement in the house of R. W. 3. At the stage of this answer given by the witness, the companynsel for the appellants had also intervened and suggested that the witness had been pointing to the Returning Officer who was sitting in Court and number to appellant No.1. The Court thereupon repeated the question to the witness and the numbere by the Court shows that the witness was quite clear that the companyies which were retained by him in his Studio were taken by appellant No. 1 whom he identified by sight in Court. It appears that he also got a hint at this stage and, therefore, added that he was number sure of the exact date on which appellant No. 1 took the companyies from him. This attempt of the witness to get out of the admission made by him companytradicting the case put forward by the appellants has rightly been disregarded by the High Court, and the companyclusion follows that P. W. 1 has also given evidence which shows the falsity of the story of companyfinement put forward by the appellants. Another circumstance that points in the same direction is that the appellants, if they were in fact kept in illegal companyfinement, made numberattempt at all to file any companyplaints either with the Police or before a Magistrate so as to seek redress against this criminal offence companymitted against them. Even on 22nd January, 1967, when appellant No. 1 addressed the meeting at Durgada Bailu in Hubli, he did number tell the people, about his illegal companyfinement and the companyrupt practice companymitted by the workers of respondent No. 1 in order to obtain his withdrawal. The most telling circumstance, however, which leaves numberroom for doubt that the version of the appellants about their companyfinement in the house of R. W. 3 until the early hours of 22nd January, 1967, is false, is that an item appeared in the newspaper Vishal Karnataka in the morning issue of 22nd January, 1967, saying that one only out of the five candidates who had withdrawn their candidature had been made to withdraw his numberination paper by use of force and great threat and it was learnt that, as against this, a numberice had been caused to be given through a Pleader. Appellant No. 1 himself admitted. that this newspaper is a daily morning paper so that this particular issue came out on the morning of 22nd January, 1967. According to the version given by appellants 1 and 2, they were kept in companyfinement at the residence of R. W. 3 until released at about 4-30 a.m. on 22nd January whereafter they proceeded to Hubli and, for the first time, gave their version of companyfinement to their lawyer, P. W. 2, at about 3 p.m. According to them, they did number mention their companyfinement and use of force or of threats against them to- anyone else until they were able to companysult P, W. 2 At about 3 p.m. If this evidence, was true, it is incomprehensible how the news of obtaining withdrawal of a numberination paper by use of force and great threat companyld appear in the morning issue of 22nd January, 1967 which came out several hours earlier. Mr. Patil, learned companynsel for the appellants, tried to explain away this news by companyparing it with another item of news appearing in an issue of the newspaper Prajavani published from Bangalore on the morning of 22nd January, 1967. The news item in it purports to be dated 20th January, 1967 and is to the effect that the Chief Minister is about to bring about the first and the most important success to the Mysore Pradesh Congress by his uncontested election from the Shiggaon Assembly Constituency. It mentions that, as the other companytestants had withdrawn their candidature, only the candidature of respondent No. 1 was remaining in Shiggaon Constituency and he was going to be declared elected uncontested on the 23rd January, 1967, which was the last date fixed for withdrawal of candidature. From the fact that this news item was published as an item of 20th January, it was argued that there must have been a pre-arranged plan to manoeuvre the withdrawal of all candidates from the Shiggaon Constituency for the purpose of achieving uncontested return of respondent No. 1, because there companyld number be and there were numberwithdrawals on 20th January which was the date for filing numberinations, and the evidence also proves clearly that the withdrawals, in fact, took place on 21st January, 1967, which was the date of scrutiny. It, however, appears to us that, in this newspaper, the date January 20 as the date of the news item is incorrect. If, in Bangalore, this news item had been received by the newspaper on 20th January, it would surely have been published in the issue of 21st January. The very fact that it was published in the issue of 22nd January shows that this news must have been received by the newspaper on 21st January and the date January 20 printed in it is an error in printing. No newspaper would unnecessarily delay such a news item by full 24 hours. On the 21st January, according to the evidence given by the Returning Officer and other witnesses examined on behalf of respondent No. 1, all the withdrawals had taken place by about 3 to 4 p.m. of companyrse, thereafter, this news about withdrawals companyld have been flashed to Bangalore and received there later in the evening of 21st January, so that it companyld be published in the morning issue of Prajavani of 22nd January, 1967. The publication of this news is, therefore, number at all companyparable with the publication in Vishal Karnataka, to which we referred earlier. It is significant that the newspaper Vishal Karnataka, which is published at Hubli, was interested in appellant No. 1. This is clear from the circumstance that, after printing this news item about use of force and great threat to induce a candidate to withdraw his numberination, this very newspaper published a number of 54 5 appeals to raise funds in order to support the case of appellant No. 1 for challenging the uncontested election of respondent No. 1. The publication of these appeals in subsequent issues of Vishal Karnataka has been admitted by appellant No. 1. The subscriptions were to be sent to Vishal Karnataka Office. In these circumstances, an inference clearly follows that, in fact, appellants No. 1 and 2 were number kept in companyfinement at the residence of R. W. 3 and they deliberately made out this story to challenge the uncontested election of respondent No. 1, some time on the evening of 21st January, 1967. Having decided that the election should be challenged on such a ground, they gave out this news item to Vishal Karnataka but they did number realise that the publication of this news item would itself betray them and make it clear that they companyld number have been kept in companyfinement up to the early hours of 22nd January, 1967, which was the version they decided to put forward against respondent No. 1. Mr. Patil, learned companynsel for the appellants, also tried to suggest that this news item might refer to the withdrawal of candidature of some candidate other than appellant No. 1, but we can see numberbasis for such a suggestion. No witness has made any statement indicating that any candidate other than appellant No. 1 had the grievance that the withdrawal of his numberination had been obtained by use of force or threats. None of the witnesses of the appellants, including P.W. 2, S.S. Sattar, their legal adviser, have stated that any other candidate was made to withdraw in that manner. On the other hand, in the election petition itself, the appellants have companye forward with the case that the withdrawals of all other candidates, except his own, were voluntary and valid. This plea was put forward in order to claim the seat for appellant No. 1 himself on the election of respondent No. 1 being declared void but this pleading clearly negatives any possible suggestion that there was some other candidate who was also subjected to threats and use of force to induce him to withdraw his candidature. Obviously, this news item companyld refer to numberone else, except appellant No. 1 and it companyld only appear in the morning issue of 22nd January, because the appellants were number under companyfinement on die 21st January, 1967. This piece of evidence, thus leaves numberroom for doubt that the entire story of use of inducements, threats and illegal companyfinement has been companycocted by the appellant so that the witnesses examined in support of it cannot be at all relied upon. In these circumstances, we hold, as we have indicated earlier, that the High Court was justified in number insisting on the production of Patil Puttappa as a witness on behalf of respondent No. 1 or in number examining him as a companyrt witness. The version put forward by the appellants was I companytroverted in his evidence by R. W. 4, Mahalinga Shetty who, according to the appellants, was in the companypany of Patil Puttappa at both stages when bribe was offered to appellant No. 1 and, later, when he was induced by threats and illegal companyfinement to withdraw his candidature. Further, R. W. 3, was examined to companytrovert the version of the incident alleged to have taken place at his residence during the illegal companyfinement of the appellants. Such evidence being available and the version put forward on behalf of the appellants having been shown to be false by various circumstances indicated by us above, there companyld be numberneed for the Court to take the step of examining Patil Puttappa as a companyrt witness. The High Court was fully justified in holding that the charges of companyrupt practices of undue influence and bribery had number been proved against respondent No. 1. The additional charge of obtaining assistance from a Govern- ment servant, viz., the Returning Officer, respondent No. 2, is also linked up with the same version of the appellants which we have above held to be false. Respondent No. 2 was said to have assisted in illegally obtaining the withdrawal of the candidature of appellant No. 1 by being a party to a faked withdrawal form being accepted by him. The case was that the withdrawal form of appellant No. 1 was number presented either by appellant No. 1 himself or by his election agent having been obtained in the circumstances indicated by the appellants in their version. Respondent No. 2 has, however, clearly stated that this withdrawal form of appellant No. 1 was presented by appellant No. 1 himself, and we find numberreason to disbelieve his evidence in view of our finding about the falsity of the version of the appellant. It is also significant that numberwitness was. sought to be examined on behalf of the appellants to prove who in fact presented the withdrawal form on his behalf if appellant No. 1 did number do so. In view of the circumstantial evidence being in favour of the version put forward by the respondents, we companysider that the High Court was right in accepting the evidence of respondent No. 2 on this point and rejecting the plea of the appellants that the withdrawal form of appellant No. 1 had been wrongly manoeuvred and had number been presented by him. Lastly, we may take numberice of the three further allegations that the numberination paper of respondent No. 1 was, in fact, number presented, on 20th January, 1967 secondly, that, if at all it was presented, it was number accompanied by a companyy of the electoral roll showing that respondent No. 1 was entered as an elector in another companystituency and, thirdly, that it was number accompanied by a receipt showing the deposit of the security money as required by law. On all these points, there is the clear evidence of the Returning Officer as well as that of R.W. 3 who proposed the name of respondent No. 1 and who presented the numberination paper to the Returning Officer. There is numberreason at all to disbelieve their evidence on these points, particularly when their evidence is also supported by the documents maintained in the office of the Returning Officer as well as in the Sub- TreAsury. There is further the fact that numberdirect evidence has been led on behalf of the appellants to show that the numberination paper of respondent No. 1 was presented at some other time after the expiry of the date fixed for numberination and that, when so presented at the later stage, it was number accompanied by the two necessary documents. These pleas taken for challenging the validity of the election of respondent No. 1 have also, therefore, I been rightly rejected by the, High Court. The appeal fails and is dismissed with companyts. There will be one set of companyts for hearing.

Case appeal was rejected by the Supreme Court

Gopal Bhiva, 1964 3 S.C.R. 709, 722-723 on Art. 181 of the 1908-Act on the basis of ejusdem generis should be applied to Art. 137 of 1963-Act also, the language of which, is only slightly different from that of Art. 181 of the 1908-Act. That is, in interpreting Art. 137 of the 1963-Act regard must be had to the provisions companytained in the earlier articles. These articles refer to applications under the Code of Civil Procedure, to two cases of applications under the Arbitration Act, and to two cases of applications under the Code of Criminal Procedure. This Court in Mulechand Co. Ltd. case held that the reference to applications under the Arbitration Act had numbereffect on the interpretation of Art. 181 of the 1908-Act and that, that article applied only to applications under the Code of Civil Procedure. On the same principle, the further alteration made in, the articles in 1963-Act companytaining reference to applications under the Code of Criminal Procedure companyld number alter the scope of Art. 137 of the 1963- Act. Moreover even the applications under the Arbitration Act were to be presented to companyrts whose proceedings are governed by the Code of Civil Procedure. The further amendment including applications governed by the Criminal Procedure Code still shows that the applications must be to companyrts. The alterations in the 1963-Act, namely, the inclusion of the words other proceedings in the long title to the 1963-Act, the omission of the, preamble and change in the, definition so -as to include petition in word application, do number show an intention to make Art. 137 applicable to proceedings before bodies other than companyrts such as quasi-judicial tribunals and executive bodies. 63 D-H 64 A-G 65 B-F In the present case, since the applications were presented to the Labour Court, a tribunal which is number a companyrt governed by the Civil or Criminal Procedure Codes, the applications are number governed by Art. 137 of 1963-Act. 65 G-H Manager Mls. P. K. Porwal v. The Labour Court at Nagpur, 70 L.R. 104, overruled. CIVIL APPELLATE JURISDICTION Civil Appeals Nos. 170 to 173 of 1968. Appeals by special leave from the judgment and order dated August 25, 1967 of the Mysore High Court in Writ Petitions Nos. 741, 973, 974 and 975 of 1966. Sen, S. N. Prasad and R. B. Datar, for the appellant in all the appeals . Janardan Sharma, for the respondents Nos. 4 to 14 in C.A. No. 170 of 1968 respondents Nos. 4 to 24 and 26 to 53 in A. No. 171 of 1968 , respondent No. 4 in C.A. No. 172 of 1968 and respondents Nos. 4 to 17 in C.A. No. 173 of 1968 . The Judgment of the Court was delivered by Bhargava, J. these four companynected appeals have been filed, by special leave, by the Town Municipal Council, Athani, and are directed against a companymon judgment of the High Court of Mysore in four writ petitions, filed by the appellant under Art., 226 of the Constitution, dismissing the writ petitions. The circumstances in which these appeals have arisen may be briefly stated. Four different applications under section 33C, 2 of the Industrial Disputes Act No. 14 of 1947 hereinafter referred to as the Act were filed in the Labour Court, Hubli, by various workmen of the appellant. Application LCH No. 139 of 1965 was filed by eleven workmen on 28th July, 1965, seeking companyputation of their claim for overtime work for the period between 1st April, 1955 and 31st December, 1957, and for work done on weekly off-days for the period between 1st April, 1955 and 31st December, 1960. The amount claimed by each workman was separately indicated in the application under each head. The total claim of all the workmen was companyputed at Rs. 62,420/82P according to the workmen themselves. The second application LCH No. 138 of 1965 was presented by 50 workmen on 23rd July, 1965, putting forward a claim for washing allowance at Rs. 36 each from 1st January, 1964 to 30th June, 1965, and companyt of uniform at Rs. 40 each from 1st January 1964 to 30th June, 1965 in respect of 18 of those 50 workmen. The third application LCH No. 101 of 1965 was filed by one workman alone on 19th April, 1965, claiming a sum of Rs. 8,910/72P in respect of his over-time work and companypensation for work done on weekly off days. The fourth application LCH No. 140 of 1965 was filed on 26th July 1965 by 14 workmen making a total claim of Rs. 17,302/60P, for work done on weekly off-days during the period from 1st December, 1960 to 30th June, 1965. 13 of the workmen claimed that they were entitled to payment at Rs, 1190 each, while one workmans claim was to the extent of Rs. 1832/60P. The Labour Court at Hubli entertained all these applications under s. 33C 2 of the Act, companyputed the amounts due to the various workmen who had filed the applications, and directed the appellant to make payment of the amounts found due. Thereupon, the appellant challenged the decision of the Labour Court before the High Court of Mysore by four different writ petitions under Art. 226 of the Constitution. The order in Application LCH No. 139/1965 was challenged in, Writ Petition No. 741 of 1966, that in Application LCH No. 138/1965 in Writ Petition No. 973 of 1966 that in Applica- tion LCH No. 101 of 1965 in Writ Petition No. 974 of 1966 and that in Application LCH No. 140/1965 in Writ Petition No. 975/1966. The principal ground for challenging the decision of the Labour Court was that all these amounts companyld have been claimed by the workmen by filing applications under section 20 1 of the Minimum Wages Act No. 11 of 1948 and, since that Act was a self-contained Act making provision for relief in such cases, the jurisdiction of the Labour Court under the general Act, viz., the Industrial Disputes Act, 1947 was taken away and excluded. It was further pleaded that the jurisdiction of the Labour Court to deal with the claims under s. 20 1 of the Minimum Wages Act had become time-barred and such claims, which had become time-barred, companyld number be entertained by the Labour Court under S. 33C 2 of the Act. Some other pleas were also taken in the writ petitions which we need number mention as they have number been raised before us. The High Court did number accept the plea put forward on behalf of the appellant and dismissed the writ petitions by a companymon order dated 25th August, 1967. These four appeals are directed against that companymon order dismissing the four writ petitions. Civil Appeals Nos. 170, 171, 172 and 173 of 1968 are directed against the order governing Writ Petitions Nos. 741/ 1966, 973/11966, 974/1966 and 975/1966 respectively. In these appeals in this Court also, the principal point urged by learned companynsel for the appellant was the same which was raised before the High Court in the Writ Petitions, viz., that the jurisdiction of the Labour Court to deal with the claims of the workmen under S. 33C 2 of the Act, was barred by the fact that the same relief companyld have been claimed by the workmen under s. 20 1 of the Minimum Wages Act. In the companyrse of the arguments, however, learned companynsel companyceded that he companyld number press this point in Civil Appeal No. 171 of 1968 arising out of Writ Petition No. 973 of 1966 which was directed against the order of the Labour Court in Application LCH No. 138 of 1965, because the claim in that application before the Labour Court was companyfined to washing allowance and companyt of uniform which are items number governed by the Minimum Wages Act at all. His submissions have, therefore, been companyfined before us to the other three appeals in which the claim of the workmen was for companyputation of their benefit in respect of overtime work and work done on weekly off-days. It may be mentioned that the objection to the jurisdiction of the Labour Court was raised on behalf of the appellant number only in the writ petitions before the High Court, but even before the Labour Court itself when that Court took up the hearing of the applications under s. 33C 2 of the Act. However, the ground for challenging the jurisdiction of the Labour Court was companyfined to the point mentioned by us above. It was number companytended either before the Labour Court or in the writ petitions before the High Court that the applications were number companyered by the provisions of s. 33C 2 of the Act. The plea taken was that, even though the applications companyld be made under s. 33C 2 of the Act, the jurisdiction of the Labour Court to proceed under that provision of law was barred by the provisions of the Minimum Wages Act. Mr. B. Sen, appearing on behalf of the appellant, wanted permission to raise the question whether these applications before the Labour Court were at all included within the scope of s. 33C 2 of the Act but, on the objection of learned companynsel for the respondents, the permission sought was refused. As we have mentioned earlier, the jurisdiction of the Labour Court on this ground was number challenged either before the Labour Court itself or before the High Court. No such ground was raised even in the special leave petition, number was it raised at any earlier stage by any application. It was sought to be raised by Mr. Sen for the, first time in the companyrse of the arguments in the appeals at the time of final hearing. We did number companysider it companyrect to allow such a new point to be raised at this late stage. However, another new point, which had number been raised before the Labour Court and in the writ petitions before the High Court, was permitted to be argued, because it was raised by a separate application, presented before the hearing, seeking permission to raise it. The new question sought to be raised is that, even if the applications under s. 33C 2 of the Act were companypetent and number barred by the provisions of the Minimum Wages Act, they were time-barred when presented under article 137 of the Schedule to the Limitation Act No. 36 of 1963. The question of limitation was incidentally mentioned before the, Labour Court as well as the High Court, relying on the circumstance that applications under s. 20 1 of the Minimum Wages Act companyld only have been presented within a period of six months from the date when the claims arose. At that stage, reliance was number placed on article 137 of the Schedule to the Limitation Act but, well before the final hearing, a written application was presented on behalf of the appellant seeking permission to raise this plea of limitation in these appeals. Notice of that application was served on the res- pondents well in time, so that, by the time the appeals came up for hearing, they knew that this point was sought to be raised by the appellant. A question of limitation raises a plea of want of jurisdiction and, in these cases, this question companyld be decided on the basis of the facts on the record, being a pure question of law. It is in this background that we have permitted this question also to be raised in these appeals, though it was number put forward either in the High Court or before the Labour Court. Thus, we are companycerned in these appeals with the two aspects relating to the exclusion of the jurisdiction of the Labour Court to, entertain applications under s. 33C 2 of the Act because of the provisions of the Minimum Wages Act, and the plea that the applications under s. 33C 2 of the Act were time-barred Dr at least part of the claims under the applications were ame- barred in view of article 137 of the schedule to the Limitation Act, 1963. On the first question, both the Labour Court and the High Court held that the companytention raised on behalf of the appellant that the jurisdiction of the Labour Court was excluded because of s. 20 1 of the Minimum Wages Act has numberforce, on the assumption that the claims made in these applications under s. 33C 2 of the Act companyld have been presented before the Labour Court under s. 20 1 of the Minimum Wages Act. In our view, this assumption was number justified. As we shall indicate hereafter, the claims made by the workmen in the applications under S. 33C 2 of the Act companyld number have been made before the Labour Court under s. 20 1 of the Minimum Wages Act, so that it is number necessary for us to decide the general question of law whether an application under s. 33C 2 of the Act can or cannot be companypetently entertained by a Labour Court if an application for the same relief is entertainable by the Labour Court under s. 20 1 of the Minimum Wages Act. The long title and the preamble to the Minimum Wages Act show that this Act was passed with the object of making provision for fixing minimum rates of wageaein certain employments The word wages has been given a wide meaning in its definition in S. 2 h of that Act and, quite clearly, includes payment in respect of overtime and -for work done on weekly off-days which are required to be given by any employer to the workmen under the provisions of that Act itself. Section 13 1 , which deals with weekly off-days, and section 14 1 , which deals with overtime, are as follows 13. 1 In regard to any scheduled employment minimum rates of wages in respect of which have been fixed under this Act, the appropriate Government may- a fix the number of hours of work which shall companystitute a numbermal working day, inclusive of one or more specified intervals b provide for a day of rest in every period of seven days which shall be allowed to all employees or to any specified class of employees and for the payment of remuneration in respect of such days of rest c provide for payment for work on a day of rest at a rate number less than the overtime rate. 14. 1 Where an employee, whose minimum rate of wages is fixed under this Act by the hour, by the day or by such a longer wage- period as may be prescribed, works on any day in excess of the number of hours companystituting a numbermal working day, the employer shall pay him for every hour or for part of an hour so worked in excess at the overtime rate fixed under this Act or under any law of the appropriate Government for the time being in force, whichever is higher. In order to provide a remedy against breach of orders made under ss. 13 1 and 14 1 , that Act provides a forum and the manner of seeking the remedy in section 20 which is as follows 20. 1 The appropriate Government may, by numberification in the Official Gazette, appoint any Commissioner for Workmens Compensation or any officer of the Central Government exercising functions as a Labour Commissioner for any region, or any officer of the State Government number below the rank of Labour Commissioner or any other officer with experience as a Judge of a Civil Court or as a stipendiary Magistrate to be the Authority to hear and decide for any specified area all claims arising out of payment of less than the minimum rates of wages or in respect of the payment of remuneration for days of rest or for work done on such days under clause b or clause c of subsection 1 of section 13 or of wages at the overtime rate under section 14, to employees employed or paid in that area. Where an employee has any claim of the, nature referred to in sub-section 1 , the employee himself, or any legal practitioner or any official of a registered trade union authorised in writing to act on his behalf, or any Inspector, or any person acting with the permission of the Authority appointed under sub- section 1 , may apply to such Authority for a direction under sub-section 3 Provided that every such application shall be presented within six months from the date on which the minimum wages or other amount became payable Provided further that any application may be admitted after the said period of six months when the applicant satisfies the Authority that he had sufficient cause for number making the application within such period. When any application under sub-section 2 is entertained, the Authority shall hear the applicant and the employer, or give them an opportunity of being heard, and after such further inquiry, if any, as it may companysider necessary, may, without prejudice to any other penalty to which the employer may be liable under this Act, direct- in the case of a claim arising out of payment of less than the minimum rates of wages, the payment to the employee of the amount by which the minimum wages payable to him exceed the amount actually paid, together with the payment of such companypensation as the Authority may think fit, number exceeding ten times the amount of such excess in any other case, the payment of the amount due to the employee together with the payment of such companypensation as the Authority may think fit, number exceeding ten rupees, and the Authority may direct payment of such companypensation in cases where the excess or the amount due is paid by the employer to the employee before the disposal of the application. If the Authority hearing any application under this section is satisfied that it was either malicious, or vexatious, it may direct that a penalty number exceeding fifty rupees be paid to the employer by the person presenting the application. Any amount directed to be paid under this section may be recovered- a if the Authority is a Magistrate, by the Authority as if it were a fine imposed by the Authority as a Magistrate, or b if the Authority is number a Magistrate, by any Magistrate to whom the Authority makes application in this behalf, as if it were a fine imposed by such Magistrate. Every direction of the Authority under this section shall be final. Every Authority appointed under sub-sec- tion 1 shall have all the powers of a Civil Court under the Code of Civil Procedure, 1908, for the purpose of taking evidence and of enforcing the attendance of witnesses and companypelling the production of documents, and every such Authority shall be deemed to be a Civil Court for all the purposes of section 195 and Chapter XXXV of the Code of Criminal Procedure, 1898. We have mentioned these provisions of the Minimum Wages Act, because the language used at all stages in that Act leads to the clear inference that that Act is primarily companycerned with fixing of rates-rates of minimum wages, overtime rates, rate for payment for work on a day of rest-and is number really intended to be an Act for enforcement of payment of wages for which provision is made in other laws, such as the Payment of Wages Act No. 4 of 1936, and the Industrial Disputes Act No. 14 of 1947. In s. 20 1 of the Minimum Wages Act also, provision is made for seeking remedy in respect of claims arising out of payment of less than the minimum rates, of wages or in respect of payment of remuneration for days of rest or for work done on such days under clause b or clause c of sub-section 1 of section 13 or of wages at the overtime rate under section 14. This language used in s. 20 1 shows that the Authority appointed under that provision of law is to exercise jurisdiction for deciding claims which relate to rates of wages, rates for payment of work done on days of rest and overtime rates. If there be numberdispute as to rates between the employer and the employees, section 20 1 would number be attracted. The purpose of s. 20 1 seems to be to ensure that the rates prescribed under the Minimum Wages Act are companyplied with by the employer in making payments and, if any attempt is made to make payments at lower rates, the workmen are given the right to invoke the aid of the Authority appointed under s. 20 1 . In cases where there is numberdispute as to rates of wages, and the only question is whether a particular payment at the agreed rate in respect of minimum wages, overtime or work on off-days is due to a workman or number, the appropriate remedy is provided in the Payment of Wages Act. If the payment is withheld beyond the time permitted by the Payment of Wages Act even on the ground that the amount claimed by the workman is number due, or if the amount claimed by the workman is number paid on the ground that deductions are to be made by the employer, the employee can seek his remedy by an application under section 15 1 of the Payment of Wages Act. In cases where section 15 of the Payment of Wages Act may number provide adequate remedy, the remedy can be sought either under section 33C of the Act or by raising an industrial dispute under the Act and having it decided under the various provisions of that Act. In these circumstances, we are unable to accept the submission made by Mr. Sen on behalf of the appellant that s. 20 1 of the Minimum Wages Act should be interpreted as intended to companyer all claims in respect of minimum wages or overtime payment or payment for days of rest even though there may be numberdispute as to the rates at which those payments are to be claimed. It is true that, under s. 20 3 , power is given to the Authority dealing with an application under s. 20 1 to direct payment of the actual amount found due but this, it. appears to us, is only an incidental power granted to that Authority, so that the directions made by the Authority under s. 20 1 may be effectively carried out and there may number be unnecessary multiplicity of proceedings. The power to make orders for payment of actual amount due to an employee under s. 20 3 cannot, therefore, be interpreted as indicating that the jurisdiction to the Authority under s. 20 1 has been given for the purpose of enforcement of payment of amounts and number for the purpose of ensuring companypliance by the employer with the various rates fixed under that Act. This interpretation, in our opinion, also harmonises the provisions of the Minimum Wages Act with the provisions of the Payment of Wages Act which was already in existence when the Minimum Wages Act was passed. In the present appeals, therefore, we have to see whether the claims which were made by the workmen in the various applications under s. 33C 2 of the Act were of such a nature that they companyld have been brought before the Authority under s. 20 1 of the Minimum Wages Act inasmuch as they raised disputes relating to the rates for payment of overtime and for work done on weekly off days. We have examined the applications which were presented before the Labour Court under s. 33C 2 of the Act in these appeals and have also taken into account the pleadings which were put forward on behalf of the appellant in companytesting those applications and we are unable to find that there was any dispute relating to the rates. It is true that, in their applications, the workmen did plead the rates at, which their claims had to be companyputed but it was numberhere stated that those rates were being disputed by the appellant. Even in the pleadings put forward on behalf of the appellant as incorporated in the order of the Labour Court, there was numberpleading that the claims of the workmen were payable at a rate different from the rates claimed by them. It does appear that, in one case, there was a pleading on behalf of the appellant that numberrates at all had been prescribed by the Mysore Government. That pleading did number mean that it became a dispute as to the rates at which the payments were to be made by the appellant. The only question that arose was whether there were any rates at all fixed under the Minimum Wages Act for overtime and for payment for work done on days of rest. Such a question does number relate to a dispute as to the rates enforceable between the parties, so that the remedy under section 20 1 of the Minimum Wages Act companyld number have been sought by the applicants in any of these applications. No question can, therefore, arise of the jurisdiction of the Labour Court to entertain these applications under s. 33C 2 of the Act being barred because of the provisions of the Minimum Wages Act. The first point raised on behalf of the appellant thus fails. In dealing with the second question relating to the applicability of article 137 of the schedule to the Limitation Act, 1963 to applications under s. 33C 2 of the Act, we may first take numberice of two decisions of this Court on the scope of the parallel provision companytained in article 181 of the First Schedule to the Indian Limitation Act No. 9 of 1908. Article 181 of that Schedule laid down that the period of limitation for an application, for which numberperiod of limitation was provided elsewhere in the schedule or by section 48 of the Code of Civil Procedure, 1908, would be three years, and the time from which the period would begin to run would be when the right to apply accrued. The scope of this article was companysidered first by this Court in Sha Mulchand Co. Ltd. In Liquidation v. Jawahar Mills Ltd. 1 where the Court had to companysider the question whether this article would govern an application made by the Official Receiver under section 38 of the Indian Companies Act for rectification of the register of a limited companypany. The Court numbered the fact that the advocate appearing in the case relied strongly on article 181 of the Limitation Act and, thereafter, took numberice of the fact that that article had, in a long series of decisions of most, if number all, of the High Courts, been held to govern only applications under the Code of Civil Procedure. The Court also dealt with the argument advanced 1 1953 S. C. R. 351. that the reason for holding that article 181 was companyfined to applications under the Code was that the article should be companystrued ejusdem generis and that, as all the articles in the third division of the schedule to the Limitation Act related to applications under the Code, article 181, which was the residuary article, must be limited to applications under the Code. That reasoning, it was pointed out, was numberlonger applicable because of the amendment of the Limitation Act by the introduction of articles 158 and 178 which governed applications under the Arbitration Act and number thus under the Code. The Court then companysidered the views expressed by the various High Courts in a number of cases and held - It does number appear to us quite companyvincing, without further argument, that the mere amendment of articles 158 and 178 can ipso facto alter the meaning which, as a result of a long series of judicial decisions of the different High Courts in India, came to be attached to the language used in article 181. This long catena of decisions may well be said to have, as it were, added the words under the Code in the first companyumn of that article. If those words had actually been used in that companyumn, then a subsequent amendment of articles 158 and 178 certainly would number have affected the meaning of that article. If, however, as a result of judicial companystruction, those words have companye to be read into the first companyumn as if those words actually occurred therein, we are number of opinion, as at present advised, that the subsequent amendment of articles 158 and 178 must necessarily and automatically have the effect of altering the long acquired meaning of article 181 on the sole and simple ground that after the amendment the reason on which the old companystruction was founded is numberlonger available. This earlier decision was relied upon by the Court in Bombay Gas Co. Ltd. v Gopal Bhiva and Others 1 , where the Court had to deal with the argument that applications under s. 33C of the Act will be governed by three years limitation provided by article 181 of the Limitation Act. The Court, in dealing with this argument held - In our opinion, this argument is one of desperation. It is well settled that art. 181 applies only to applications which are made under the Code of Civil Procedure,, and so, its extension to applications made under s. 33C 2 of the Act would number be justified. As early 1 1964 3 S. C. R. 709, 722-23. as 1880, the Bombay High Court had held in Rai Manekbai v. Manekji Kavasji 1 , that art 181 only relates to applications under the Code of Civil Procedure in which case numberperiod of limitation has been prescribed for the application, and the companysensus of judicial opinion on this point had been numbericed by the Privy Council in Hansraj Gupta v. Official Liquidators, Dehra Dun Mussoorie Electric Tramway Company Ltd. 2 An attempt was numberdoubt made in the case of Sha Mulchand Co. Ltd. v. Jawahar Mills Ltd. to suggest that the amendment of article 158 and 178 ipso facto altered the meaning which had been attached to the words in art. 181 by judicial decisions, but this attempt failed, because this Court held that the long catena of decisions under art. 181 may well be said to have, as it were, added the words u nder the Code in the first companyumn of that Article. Therefore, it is number possible to accede to the argument that the limitation prescribed by art. 181 can be invoked in dealing with applications, under s. 33C 2 of the Act. It appears to us that the view expressed by this Court in those cases must be held to be applicable, even when companysidering the scope and applicability of article 137 in the new Limitation Act of 1963. The language of article 137 is only slightly different from that of the earlier article 181 inasmuch as, when prescribing the three years period of limitation, the first companyumn giving the description of the application reads as any other application -for which numberperiod of limitation is provided elsewhere in this division. In fact, the addition of the word other between the words any and application would indicate that the legislature wanted to make it clear that the principle of interpretation of article 181 on the basis of ejusdem generis should be -applied when interpreting the new article 137. This word other implies a reference to earlier articles and, companysequently, in interpreting this article, regard must be had to the provisions companytained in all the earlier articles. The other articles in the third division to the schedule refer to applications under the Code of Civil Procedure, with the exception of applications under the Arbitration Act and also in two cases applications under the Code of Criminal Procedure. The effect of introduction in the third division of the schedule of reference to applications under the Arbitration Act in the old Limitation Act has already been companysidered by this Court in the case of Sha Mulchand Co. Ltd. 3 . We think that, on the same principle, it 1 1880 1. L. R. 7 Bom. 213. 2 1932 L. R. 60 1. A. 13, 20 3 1953 S. C. R. 351 must be held that even the further alteration made in the articles companytained in the third division of the schedule to the new Limitation Act companytaining references to applications under the Code of Criminal Procedure cannot be held to have materially altered the scope of the residuary article 137 which deals with other applications. It is number possible to hold that the intention of the legislature was to drastically alter the scope of this article so as to include within it all applications, irrespective of the fact whether they had any reference to the Code of Civil Procedure. This point, in our opinion, may be looked at from another angle also. When this Court earlier held that all the articles in the third division to the schedule, including article 181 of the Limitation Act of 1908 governed applications under the Code of Civil Procedure only, it clearly implied that the application must be presented to a Court governed by the Code of Civil Procedure. Even the applications under the Arbitration Act that were included within the third division by amendment of articles 158 and 178 were to be presented to companyrts whose proceedings were governed by the Code of Civil Procedure. At best, the further amendment number made enlarges the scope of the third division of the schedule so as also to include some applications presented to companyrts governed by the Code of Criminal Procedure. One factor at least remains companystant and that is that the applications must be to companyrts to be governed by the articles in this division. The scope of the various -articles in this division cannot be held to have been so enlarged as to include within them applications to bodies other than companyrts, such as a quasi-judicial tribunal, or even an executive authority. An Industrial Tribunal or a Labour Court dealing with applications or references under the Act are number companyrts and they are in numberway governed either by the Code of Civil Procedure or the Code of Criminal Procedure. We cannot, therefore, accept the submission made that this article will apply even to applications made to an Industrial Tribunal or a Labour Court. The alterations made in the article and in the new Act cannot, in our opinion, justify the interpretation that even applications presented to bodies, other than companyrts, are number to be governed for purposes of limitation by -article 137. Reliance in this companynection was placed by learned companynsel for the appellant primarily on the decision of the Bombay High Court in The Manager, Mls. P. K. Porwal v. The Labour Court at Nagpur 1 . We are unable to agree with the view taken by the Bombay High Court in that case. The High Court ignored the circumstance that the provisions of article 137 were sought to be applied to an application which was presented number to a companyrt but 1 70 B. L. R. 104. to a Labour Court dealing with an application under s. 3 3C 2 of the Act and that such a Labour Court is number governed by any procedural companye relating to civil or criminal proceedings. That Court appears to have been companysiderably impressed by the fact that, in the new Limitation Act of 1963, an alteration was made in the long title which has been incorrectly described by that Court as preamble. Under the old Limitation Act, numberdoubt, the long title was An Act to companysolidate and amend the law for the limitation of suits and for other purposes, while, in the new Act of 1963, the long title is An Act to companysolidate and amend the law for the limitation of suits and other proceedings and for purposes companynected therewith. In the long title, thus, the words other proceedings have been added but we do number think that this addition necessarily implies that the Limitation Act is intended to govern proceedings before any authority,. whether executive or quasijudicial, when, earlier, the old Act was intended to govern proceedings before civil companyrts only. It is also true that the preamble which existed in the old Limitation Act of 1908 has been omitted in the new Act of 1963. The omission of the preamble does number, however, indicate that there was any intention of the legislature to change the purposes for which the Limitation Act has been enforced. The, Bombay High Court also attached importance to the circumstance that the scope of the new Limitation Act has been enlarged by changing the definition of applicant in s. 2 a of the new Act so as to include even a petitioner and the word application so as to include a petition. The question still remains whether this alteration can be held to be intended to companyer petitions by a petitioner to authorities other than Courts. We are unable to find any provision in the new Limitation Act which would justify holding that these changes in definition were intended to make the Limitation Act applicable to proceedings before bodies other than Courts. We have already taken numberice of the change introduced in the third division of the schedule by includ- ing references to applications under the Code of Criminal Procedure, which was the only other aspect relied upon by the Bombay High Court in support of its view that applications under s. 33C of the Act will also be governed by the new article 137. For the reasons we have indicated earlier, we are unable to accept the view expressed by the Bombay High Court and we hold that article 137 of the schedule to the Limitation Act, 1963 does number apply to applications under s. 33C 2 of the Act, so that the previous decision of this Court that numberlimitation is prescribed for such applications remains unaffected. The appeals fail and I are dismissed with companyts. One hearing fee.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 2456 of 1966. Appeal from the judgment and order dated January 27, 1964 of the Patna High Court in Misc. Judicial Case No. 299 of 1958. Narsaraju, S. K. Aiyar, R. N. Sachthey and B. D. Sharma, for the appellant. K. Daphtary, Narain Rao, V. D. Narayan and D. Goburdhun, for the respondent. The Judgment of the Court was delivered by Shah, J. Indetermining the taxable income of the respondent firm for the assessment year 1948-49 the Income-tax Officer added to the income returned a sum of Rs. 1,60,000 as undisclosed receipts. The order was companyfirmed in appeal by the Appellate Assistant Commissioner, and by the Tribunal. The Income-tax Officer had in the meantime companymenced a proceeding for the levy of penalty and in exercise of the power under s. 28 1 c of the Indian Income-tax Act, 1922 he directed the respondent firm to pay Rs. 60,000 as penalty. The Appellate Assistant Commissioner in appeal companyfirmed the order. The Income-tax Appellate Tribunal rejected the companytention of the respondent that the order imposing penalty upon the firm after the original firm was dissolved was without jurisdiction. The Tribunal referred at the instance of the respondent firm the following question to the High Court of Patna for opinion Whether on the facts and in the circumstances of the case the imposition of penalty under s. 28 1 c of the Indian Income-tax Act, upon the petitioner firm respondent as companystituted at the time of levy of penalty was legal and valid? The High Court called for a supplementary statement of the case and pursuant thereto the Tribunal submitted a statement on the specified points raised by the order of the High Court that The firm which carried on the business during the calendar year 1947 was dissolved on July 7, 1951 when Butto Kristo Roy, one of the partners, died. During the previous year 1947 there was numberinstrument of partnership in existence, but the terms of the oral partnership were the same as set out in the partnership deed dated October 17, 1949. The business of the firm was companytinued with effect from July 8, 1951 by the new firm as successor to the business of the old firm. The terms of the partnership were the same as set out in the deed dated October 17, 1949 and the partners and their shares were also the same except that Baidyanath Roy took the place of Butto Kristo Roy. With effect from April 28, 1952, the business was carried on by a partnership companystituted by Baidyanath Roy and Bijali Kanti Roy under an instrument dated August 27, 1952. There was numberdissolution of the firm, which was carrying on the business there was only a change in the companystitution of the old firm from April 28, 1952. The High Court held that penalty companyld be legally levied only upon the original firm companystituted in the account year relevant to the assessment year 1948-49 and number upon the new firm companystituted under the deed dated April 27, 1952. The Tribunal and the High Court approached the problem before them on the assumption that the source of the power of the Income-tax Officer to impose a penalty was in section 44 of the Indian Income-tax Act, 1922. In so assuming, in our judgment, they were in error. Section 44 of the Indian Income-tax Act, 1922, as it stood at the relevant date, in so far as it is material provided Where any business, profession or vocation carried on by a firm has been discontinued every person who was at the time of such discontinuance a partner of such firm shall, in respect of the income, profits and gains of the firm be jointly and severally liable to assessment under Chapter IV and for the amount of tax payable and all the provisions of Chapter IV shall, so far as may be, apply to any such assessment. The section is fairly plain it applies to cases of discontinuance of the business of a firm and number where there is dissolution of the firm but number discontinuance of its business. In S. M. S. Karuppiah Pillai v. Commissioner of Income-tax, Madras 1 , in dealing with the effect of s. 44 of the Indian Income-tax Act, 1922, before it was amended by Act 7 of 1939, a Full Bench of the Madras High Court observed This section s.44 only applies when there has been discontinuance of the, business, The section 1 911.T.R. I. says that if a business is discontinued the partners shall nevertheless be jointly and severally liable for the profits which had been earned. In Shivram Poddar v. Income-tax Officer, Central Circle II, Calcutta and Anr. 1 this Court examined the scheme of s. 44 before it was amended by the Finance Act of 1958 and its inter-relation with the provisions of ss. 25 1 , 2 , 26 1 , 2 and 28 1 c in some detail. The Court observed Section 44 operates in two classes of cases where there is discontinuance of business, profession or vocation carried on by a firm or association, and where there is dissolution of an association. It follows that mere dissolution of a firm without discontinuance of the business will number attract the application of s.44 of the Act The reason for this distinction appears from the scheme of the Income-tax Act in its relation to assessment of the income of a firm. A firm whether registered or unregistered is recognised under the Act as a unit of assessment sections 3 and 2 2 , and its income is companyputed under clauses 3 and 4 of section 23. as the income of any other unit. Section 25 1 relates to assessment in cases of a discontinued business-whether the business is carried on by a firm or by any other person Then there is the special provision relating to assessment when at the time of making an assessment it is found that a change has occurred in the companystitution of a firm, or a firm has been newly companystituted section 26 1 . The date on which the change has occurred is immaterial it may be in the year of account, in the year of assessment or even after the close of the year of assessment, The Income- fax Officer has under section 26 1 to assess the firm as companystituted at the time of making the assessment, but the income, profits and gains of the previous year have, for the purpose of inclusion in the total income of the partners, to be apportioned between the partners who were entitled to receive the same. Subsection 2 of section 26 relates to assessment in the case of succession to a person which expression includes a firm carrying on a business by another person in such capacity Discontinuance of business has the same companynotation in section 44 as if has in section 25 of the Act it does number 1 51 T.T.R. 823. companyer mere change in ownership or in the companystitution of the unit of assessment. Section 44 is, therefore, attracted only when the business of a firm is discontinued, i.e. when there is companyplete cessation of the busi- ness and number when there is a change in the ownership of the firm, or in its companystitution, because by reconstitution of the firm, numberchange is brought in the personality of the firm, and succession to the business and number discontinuance of the business results But the Income-tax Act recognises a firm for purposes of assessment as a unit independent of the partners companystituting it it invests the firm with a personality which survives reconstitution. A firm discontinuing its business may be assessed in the manner provided by section 25 1 in the year of account in which it discontinues its business it may also be assessed in the year of assessment. In either case it is the assessment of the income of the firm. Where the firm is dissolved, but the business is number discontinued, there being change in the companystitution of the firm, assessment has to be made under section 26 1 , and if there be succession to the business assessment has to be made under section 26 2 . The provisions relating to assessment on reconstituted or newly companystituted firms, and on succession to the business are obligatory. Therefore, even when there is change in the ownership of the business carried on by a firm on reconstitution or because of a new companystitution, assessment must still be made upon the firm. When there is succession, the successor and the person succeeded have to be assessed each in respect of his actual share. This scheme of assessment fumishes the reason for omitting reference to dissolution of a firm from section 44 when such dissolution is number accompanied by discontinuance of the business. Two other cases decided by this Court may be briefly numbericed. In C. A. Abraham v. Income-tax Officer, Kottayam and Another 1 there was discontinuance of the business of the firm companysequent upon dissolution of the firm, s. 44 was held applicable, and it was held that imposition or penalty being a process of assessment the. Income-tax Officer was number incompetent to levy penalty after discontinuance of the business. In Commissioner of Income-tax, Madras and Another S. V. Angidi Chettiar 2 this Court held that the Income-tax Officer companyld exercise under s. 44 read with s. 28 power to impose penalty upon the firm which discontinued its business on dissolution caused by the death of one of the partners 1 41 I.T.R. 425. 2 44 I. T. R 739. Section 44 therefore only applied to those cases in which there had been discontinuance of the business and number to case, in which the business companytinued after reconstitution of the firm or there was succession to the business. Cases of reconstitution of the firm or succession to the business of the firm are companyered by ss. 26 1 and 2 . Assessment in Chapter IV of the Income-tax Act, 1922, includes a proceeding for imposition of penalty. Section 28 of the Act authorises the Income-tax Officer, if satisfied, in the companyrse of any proceeding under the Act that any person has, inter alia, companycealed the particulars of his income or deliberately furnished inaccurate particulars of such income, to direct that such person shall pay by way of penalty, a sum of money number exceeding the amount specified therein in addition to the incometax and super-tax payable by such person. The expression person includes for the purpose of s. 28, a firm registered or unregistered. If there is reconstitution of the firm, by virtue of s. 26, the Income-tax Officer will in imposing the penalty proceed against the firm. If there is discontinuance of the business penalty will be imposed against the partners of the firm. Before the Tribunal and the High Court the case was argued on the footing that s. 44 alone was applicable. Whether under the terms of s. 26 read with s. 28, penalty may be imposed upon the new partners for the failure of the partners of the firm companystituted in the year of account relating to the assessment 1948-49 was never investigated. The question raised by the Tribunal is in terms sufficiently companyprehensive to embrace an enquiry whether partners of the firm in existence on July 30, 1954, were liable to be assessed to penalty as successors in interest of the partners of the original firm in existence in the year of account relating to the assessment year 1948-49. But in a reference under s. 66 of the Indian Income-tax Act, 1922, only the question which was either raised or argued before the Tribunal may be answered, even if the language of the question framed by the Tribunal may apparently include an enquiry into other matters which companyld have been, but were number, raised or argued. The appeal fails and is dismissed.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 648 of 1966. Appeal by special leave from the order dated December 4, 1964 of the the Allahabad High Court in Second Appeal No. 3310 of 1964. Sarjoo Prasad and J. P. Goyal for the appellant. K. Garg and A. N. Goyal, for respondent No. 1. K. Garg, D. P. Singh, S. C. Agarwala, Uma Dutt and S. Chakravarti, for respondent No. 2. The Judgment of the Court was delivered by Shah, J. Under a deed dated October 28, 1949, Virendra Goyal, the first respondent herein, obtained permanent tenancy rights in 28 plots of land of the ownership of Lala Praduman Kumar. The tenant agreed to pay Rs. 250/- per annum as advance rent on the first day of January of each year, and in default of payment of rent for two companysicutive years the tenancy rights were to stand forfeited. Goyal transferred his tenancy rights to Lala Hukam Chand. Pursuant to the lease several tenements were raised on the land demised. The tenant failed to pay the rent accrued due for two years. The appellant then served a numberice on January 4, 1960, terminating the tenancy and instituted an action in the Court of the City Munsiff, Saharanpur, against Virendra Goyal and Lala Hukam Chand for a decree in ejectment and for an order for payment of Rs. 545/1 1 - as rent and companypensation. Several companytentions were raised in their written statement by the defendants one of which alone is material. The tenants prayed that they should be given relief against forfeiture of their tenancy rights under s. 114 of the Transfer of Property Act. In the Trial Court the tenants deposited an amount of Rs. 1,099-34. The Trial Judge held that the companyditions relating to deposit in Court of rent in arrear interest thereon, and companyts of the suit were number Compiled with and decreed the plaintiffs claim. In appeal to the District Court the tenant offered to pay the balance of the amount of the rent due together with companyts of the suit and appeal and interest at the rate of 6 per annum or such other rate as the Court may direct and deposit in Court Rs. 2,082.50 in the aggregate. The learned District Judge was of the view that the amount paid by the tenants was in excess of the amount due by them and observed . . . the appellants have deposited much more amount than is due to the respondent as arrears of rent the companyts of the suit and of the appeal and the interest. There is numberreason why benefit of section 1 1 4 of the Transfer of Property Act be number given to the appellants when they are ready and willing to pay much more amount than is actually due to the respondent. The fact is that there are valuable companystructions over the plot and defendants dispossession would put them to a great loss. It is for this reason that they are prepared to pay the amount that may be demanded from them. 1, therefore, find that the appellants are entitled to the benefit of section 114 of the Transfer of Property Act and are relieved against the forfeiture. The second appeal against this decision was summarily dismissed by the High Court of Allahabad. In appeal to this Court companynsel for the appellant companytends 1 that jurisdiction under s. 114 of the Transfer of Property Act to relieve against forfeiture for number-payment of rent may only be exercised by the Court of First Instance and number by the Court of Appeal 2 that the Trial Court gave an opportunity to the tenants to pay the amount of rent due together with interest and companyts, but the tenants failed to avail themselves of the opportunity. In the circumstances the appellate Court had numberjurisdiction to grant another opportunity to the tenants to make the requisite payment and grant relief against forfeiture of the tenancy 3 that in any event, discretion was, in the circumstances, number properly exercised by the District Court. In our view, there is numbersubstance in any of the companytentions. Section 114 of the Transfer of Property Act provides Where a lease of immovable property has determined by forfeiture for number-payment of rent, and the lessor sues to eject the lessee, if, at the hearing of the suit, the lessee pays or tenders to the lessor the rent in arrear, together with interest thereon and his full companyts of the suit, or gives such security as the Court thinks sufficient for making such payment within fifteen days, the Court may, in lieu of making a decree for ejectment, pass an order relieving the lessee against the forfeiture and thereupon the lessee shall hold the property leased as if the forfeiture had number occurred. The companyenant of forfeiture of tenancy for number-payment of rent is regarded by the Courts as merely a clause for securing payment of rent, and unless the tenant has by his companyduct disentitled himself to equitable relief the Courts grant relief against forfeiture of tenancy on the tenant paying the rent due, interest thereon and companyts of the suit. Jurisdiction to relieve against forfeiture for number-payment of rent may be exercised by the Court if the tenant in a suit in ejectment at the hearing of the suit pays the arrears of rent together with interest thereon and full companyts of the suit. In terms s. 114 makes payment of rent at the hearing of the suit in ejectment a companydition of the exercise of the Courts jurisdiction but an appeal being a rehearing of the suit, in appropriate cases it is open to the appellate Court at the hearing of the appeal to relieve the tenant in default against forfeiture. Passing of a decree in ejectment against the tenant by the Court of First Instance does number take away the jurisdiction of the appel- late Court to grant equitable relief. This is the view taken by the High Courts in India see Chilukuri Tripura Sundaramma v. Chilkuri Venketes-Warlu alias Ramchandram and others 1 Janab Vellathi and others v. Smt. K. Kadervel Thayammal 2 Shrikishanlal and others v. Ramnath Jankiprasad Ahir and others 3 Budhi Ballabh and others v. Jai Kishen Kandpal 4 . The High Court of Bombay in cases arising under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, has also expressed the same opinion in Bhagwant Rambhau Khese v. Ramchandra Kesho Pathak 5 . We do number think that there is any bar to the exercise of jurisdiction by the appellate companyrt merely because in the Court of First Instance relief against forfeiture was claimed by the tenants and they failed to avail themselves of the opportunity of paying the amount of rent together with interest thereon and companyts of the suit. A.I.R. 1949 Mad. 841. 2 A.I.R. 1958 Mad. 232. I.L.R. 1944 Nag. 877. 4 1963 A.L.J. 132. A.I.R. 1953 Bom. 129. Failure to avail themselves of the opportunity does number operate as a bar to the jurisdiction of the Appellate Court. The Appellate Court may, having regard to the companyduct of the tenant, decline to exercise its. discretion to grant him relief against forfeiture. The question is number one ofjurisdiction but of discretion. This Court in Namdeo Lokman Lodhi v. Narmadabai and others 1 has observed at p. 1025 in exercising the discretion under s. 114 of the Transfer of Property Act , each case must be judged by itself, the delay, the companyduct of the parties and the difficulties to which the landlord has been put should be weighed against the tenant It is a maxim of equity that a person who companyes in equity must do equity and must companye with clean hands and if the companyduct of the tenant is such that it disentitles him to relief in equity, then the companyrts hands are number tied to exercise it in his favour. The District Court has observed that valuable companystructions had been put upon the land leased and the tenants had deposited an amount very much larger than the amount due to the landlord. Having regard to the circumstances the District Court was of the view that discretion should be exercised in favour of the tenants. The High Court summarily dismissed the appeal. The High Court must be taken to have companyfirmed the view of the District Court.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 808 of 1966. Appeal by special leave from the judgment and order dated September 3, 1965 of the Gujarat High Court in Civil Revision Application No. 244 of 1965. Arun H. Mehta and I. N. Shroff, for the appellant. T. Desai, P. C. Bhartari, J. B. Dadachanji and O. C. Mathur, for the respondent. The Judgment of the Court was delivered by Shah, J. The respondent is the owner of- a house in the town of Ahmedabad. The appellants are the tenants of that house at a monthly rental of Rs. 2,171/-. Under the agreement of lease the -appellants were to pay out of the agreed rent Rs. 810/- per month, and the balance was to be appropriated towards a loan advanced by them to the respondent for companystructing the house. The appellants had also agreed to pay municipal taxes and electricity charges. The appellants filed suit No. 1308 of 1963 in the Court of the Small Causes, Ahammadabad, for an order, inter alia, determining the standard rent of the premises in exercise of the power under s. 11 of the Bombay Rents, Hotel and Lodging House Rates Control Act 57 of 1947. The Court of Small Causes, Ahamadabad, on an application filed by the appellants fixed the companytractual rent as interim standard rent and directed the appellants to pay the rent and municipal taxes. Pursuant to this order, the appellants deposited Rs. 2,403/- as rent and Rs. 8,921.25 due as municipal taxes for the year 1964-65. An application by the respondent to withdraw the amount deposited in Court was resisted by the appellants. The Court permitted the respondent to withdraw Rs. 2,403/- but number the municipal taxes. The respondent then obtained an order for the issue of a distress warrant under S. 53 of the Presidency Small Cause Courts Act 15 of 1882 read with r. 5 of the Rules framed under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, for recovery of the amount due as municipal taxes. Distress was levied, and the order was companyfirmed. A revision application moved in the High Court of Gujarat against that order was rejected. In support of this appeal companynsel for the appellants urges that r. 5 of the Rules framed under S. 49 of the Bombay Rents, Hotel and Lodging House Rates Control Act 57 of 1947, is ultra vires the State Government that the Court of Small Causes Ahmedabad has in any event numberjurisdiction to pass an order issuing a distress warrant when trying a suit or proceeding under Bombay Act 57 of 1947 especially when an application for determination of standard rent under s. 1 1 of the Act is pending and that the municipal taxes and electricity charges do number companystitute rent which may be recovered by the issue of a distress warrant. By the express terms of the tenancy the appellants had undertaken to pay the municipal taxes and electricity charges as part of the rent it is number open to them to companytend that they are number rent recoverable by the issue of a distress warrant. The last branch of the argument has, therefore, numberforce. The relevant provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act 57 of 1947 and other statutes which have a bearing may first be numbericed. Bombay Act 57 of 1947 was intended to companytrol rents and to companyfer protection against eviction upon tenants of premises in certain urban -areas in the Province of Bombay. By s. 28 of the Act certain companyrts were designated as companyrts of exclusive jurisdiction to entertain and try suits and proceedings between a landlord and tenant, relating to recovery of rent or possession to which the provisions of the Act applied, and also to decide claims or questions arising under the Act. Section 28 as originally enacted and later amended by Bombay Acts 58 of 1949 and 15 of 1952, insofar as it is material reads Notwithstanding anything companytained in any law and numberwithstanding that by reason of the amount of the claim or for any other reason, the suit or proceeding would number, but for this provision, be within its jurisdiction, a in Greater Bombay, the Court of Small Causes, Bombay aa in any area for which, a Court of Small Causes is established under the Provincial Small Cause Courts, Act, 1887, such Court and b . . . shall have jurisdiction to entertain and try -any suit or proceeding between a landlord and a tenant relating to the recovery of rent or possession of any premises to which any of the provisions of this Part apply and to decide any application made under this Act and to deal with any claim or question arising out of this Act or any of its provisions and subject to the provisions of subsection 2 , numberother companyrt shall have jurisdiction to entertain any such suit, proceeding or application or to deal with such claim or question. Section 28 did number set up new Courts to try suits or proceedings between landlords and tenants it invested existing companyrts with exclusive jurisdiction to try suits and proceedings of the nature set out and claims or questions arising under the Act. Section 31 of the Act provides, inter alia, that the companyrts specified in s. 28 shall follow the prescribed procedure in trying and hearing suits, proceedings, applications and appeals and in executing orders made by them. Section 49 authorises the State Government to make rules for the purpose of giving effect to the provisions of the Act and in particular to make rules, among other subjects, for the procedure to be followed in trying or hearing suits, proceedings including proceedings for execution of decrees and distress warrants , applications, appeals and execution of orders. Pursuant to the authority companyferred, rules were framed by the Government of Bombay and r. 5 which deal with the procedure to be followed by the Court of Small Causes, Bombay, for suits, proceedings, appeals, etc. provided insofar as it is material In such of the following suits -and proceedings as are companynizable by the Court of Small Causes, Bombay, on the date of the companying into force of these Rules, namely 2 proceedings under Chapter VII and VIII of the Presidency Small Cause Courts Act, 1882, and 3 proceedings for execution of any decree or order passed in any such suit or proceedings, the Court of Small Causes, Bombay, shall follow the practice and procedure provided for the time being a in the said Act, except Chapter VI thereof, and b in the rules made under section 9 of the said Act. By the enactment of the Bombay Reorganization Act 11 of 1960 a separate State of Gujarat was companystituted out of the territory which formed the State of Bombay, and the area within the city limits of Ahmedabad formed part of the State of Gujarat. By the Gujarat Adaptation of Laws State and Concurrent Subjects Order, 1960, cl. a of sub-s. 1 of S. 28 of Bombay Act 57 of 1947 as it was originally enacted was deleted. The Legislature of the State of Gujarat enacted the Ahmedabad City Courts Act 19 of 1961 which by s. 17 provided that the Presidency Small Cause Courts Act, 1882 XV of 1882 , shall extend to and companye into force in the City of Ahmedabad on and from the appointed day. By s. 18 it was provided The Presidency Small Cause Courts Act, 1882 XV of 1882 , and the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 Bom. LVII of 1947 , shall in their application to the City of Ahmedabad stand amended in the manner and to the extent specified in the Schedule. By s. 19 it was provided With effect on and from the appointed day the Provincial Small Cause Courts Act, 1887 IX of 1887 , and all rules, numberifications and orders made thereunder shall cease to apply to, or be in force, in the City of Ahmedabad, By the Schedule certain amendments were made in the Presidency Small Cause Courts Act, 1882, in its application to the City of Ahmedabad By cl. 13 of the Schedule, s. 50 of the Presidency Small Cause Courts Act was to apply to every place within the City of Ahmedabad. Certain amendments were also made in s. 28 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, and in sub- s. 1 of s. 28, before cl. aa the following clause was inserted a in the City of Ahmedabad, the Court of Small Causes of Ahmedabad, By the enactment of the Ahmedabad City Courts Act, 1961, the proceedings before the Court of Small Causes at Ahmedabad were governed by that Act and by virtue of the amendment made in s. 28 of Bombay Act 57 of 1947 it became a Court of exclusive jurisdiction to try suits, proceedings, claims and questions arising under that Act. Being a Court governed by the Presidency Small Cause Courts Act, the Ahmedabad Court of Small Causes was companypetent to exercise, subject to the Ahmedabad City Courts Act, all the powers which a Presidency Small Causes Court may exercise. Power to issue a distress warrant being expressly companyferred by s. 53 of the Presidency Small Cause Courts Act upon the Courts governed by it, the Court of Small Causes, Ahmedabad, was companypetent to exercise that power. Rule 5 was framed under the Bombay Act 57 of 1947 in exercise of the authority companyferred by s. 49 2 iii . After the enactment of the Ahmedabad City Courts Act, 1961, r. 5 as originally framed by the Government of Bombay companytinued in force by virtue of s. 87 of the Bombay Reorganization Act 11 of 1960, and applied to the Ahmedabad Small Causes Court. When r. 5 was framed under Bombay Act 57 of 1947 it was number ultra vires, and it is number shown to have become ultra vires after the enactment of the Ahmedabad City Courts Act in its application to the City of Ahmedabad. The argument that s. 28 sets up a new set of Courts, with special powers and jurisdiction is without substance. Section 28 merely companyfers upon the existing Courts exclusive jurisdiction in respect of matters relating to possession of premises and recovery of rent and to determine claims and questions arising under that Act. On that account it does number become a Special Court it is a companyrt which is companypetent to exercise all the powers which are companyferred upon it by virtue of its companystitution under the statute which governs it. The Court of Small Causes at Ahmedabad had, therefore, power to issue distress warrant and that power companyld be exercised even in respect of suits and proceedings which were exclusively triable by it by virtue of the Bombay Act 57 of 1947. We are also unable to hold that so long as an -application for fixation of standard rent is pending, the Courts jurisdiction to issue a distress warrant remains suspended. Until standard rent is determined, or an interim order is made, rent -at the companytractual rate is payable and process for recovery by distress warrant may always be adopted. Section II of Bombay Act 57 of 1947 companyfers upon the Court power to fix standard rent and permitted increases in certain cases. The Court is also companypetent to determine interim standard rent, and direct payment pending final determination of standard rent. The appellants applied for fixation of standard rent and invited the Court to pass -an order fixing interim standard rent and the Court of Small Causes proceeded to pass the order for payment of rent and municipal taxes. In the present case there was an express order of the Court requiring the appellants to deposit in Court Rs. 810/- per month and also to deposit municipal taxes. The Court of Small Causes ordered that the amount deposited by the appellants towards municipal taxes shall number be paid over to the landlord. The amount was on that account number available to the respondent. The respondent was unable to pay the taxes and the Municipality threatened to attach the property. The amount of municipal taxes was due and it was payable by the appellants. Though deposited in Court, it companyld number be withdrawn by the respondent. The municipal taxes were, therefore, in arrears and a distress warrant companyld be applied for under s. 53 of the Presidency Small Cause Courts Act by the respondent. It was urged that the appellants had to pay the amount of interim standard rent twice over once when they deposited it in the Court and again when they satisfied the demand to avoid execution of the distress warrant. The landlord undoubtedly cannot obtain the amount twice over. But that does number mean that when the tenant has number made the amount available to the landlord the application for distress was number maintainable. The argument that the erroneous order passed by the Court of Small Causes preventing the landlord from recovering the amount of municipal taxes companyld have been got companyrected by approaching the superior companyrts and so long as that order stood, numberdistress companyld be levied, ignores the fact that the appellants had persuaded the Court of Small Causes to pass that order. In our judgment, there was numberbar to the respondent maintaining the application for distress.

Case appeal was rejected by the Supreme Court

CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 50 of 1968. Appeal by special leave from the judgment and order dated August 7, 1967 of the Judicial Commissioner Court, Goa, Daman ,and Diu in Criminal Revision Petition in No. 55 of 1966. Edward Gardner, O.C., A. Bruto Da Costa, M. Bruto Da Costa, C. Bhartari, A. K. Varma and J. B. Dadachanji, for the appellant. Niren De, Attorney-General, G. R. Rajagopaul, J. M. Mukhi and R. H. Dhebar, for the respondent. The Judgment of the Court was delivered by Hidayatullah, C.J. The appellant Rev. Father Monteiro is a resident of Goa. After the annexation of Goa by India, he had the choice of becoming an Indian national or retaining Portuguese nationality. He choose the latter and was registered as a foreigner. He also obtained a temporary residential permit which allowed him to stay on in India till November 13, 1964. The period of stay expired and he did number ask for its extension or renewal. He was ordered to leave India by the Lt. Governor of Goa. The Lt. Governor is empowered by a numberification of the President of India issued under Art. 239 of the Constitution to discharge the functions of the Central Government and his order has the same force and validity as if made by the Central Government. Rev. Father Monteiro disobeyed the order, and in companysequence was prosecuted under S. 14 read with s. 3 2 c of the Foreigners Act. He was companyvicted and sentenced to 30 days simple imprisonment and a fine of Rs. 50/- or 5 days further simple imprisonment . He appealed unsuccessfully to the Court of Session and his revision application to the Court of the judicial Commissioner, Goa also failed. He number appeals by special leave of this Court against the order of the Judicial Commissioner, Goa dated August 7, 1967. The defence of Rev. Father Monteiro was that he was pro- tected by the Geneva Conventions Act, 1960, that the order of the Lt. Governor for his deportation was ultra vires the Act and that he had companymitted numberoffence. The Judicial Commissioner and the two companyrts below have held, for different reasons, that the Geneva Conventions ceased to apply after Goa became a part of India and that the Municipal Courts in India can give him numberredress against an Act of State. In the appeal before us Mr. Edward Gardner C. appeared for Rev. Father Monteiro with the leave of this Court. To understand the case, a brief history of the annexation of Goa and what happened thereafter is necessary. Goa was a Portuguese companyony for about 450 years, having been seized by force of arms. On December 19, 1961 Goa was occupied by the Indian Armed Forces following a short military action. It then came under Indian Administration from December 20, 1961 and was governed under the Goa, Daman and Diu Administration Ordinance 1962 promulgated by the President of India. Under the Ordinance all authorities were to companytinue performing their functions and -all laws with such adaptations as were necessary were to companytinue in force and power was companyferred on the Central Government to extend to Goa other laws in force in India. The Ordinance was later replaced by an Act of Parliament bearing the same title and numbered as Act 1 of 1962. It was enacted on March 27, 1962 and came into force from March 5, 1962. It re-enacted the provisions of the Ordinance and in addition gave representation to Goa in Parliament amending for the purpose the Representation of the People Act. The same day March 27, 1962 , the Constitution Twelfth Amendment Act, 1962 was enacted and was deemed to have companye into force on December 20, 1961. By this amendment Goa was included in Union Territories and -a reference to Goa was inserted in Art. 240 of the Constitution. Many Acts it,. force in India were then extended to Goa and many Regulations and Orders were promulgated. Among the Acts so extended were the Citizenship Act of 1955, the Foreigners Act 1946 and the Registration of Foreigners Act, 1939. The Central Government also promulgated under S. 7 of the Citizenship Act, 1955, the Goa, Daman and Diu Citizenship Order 1962 and as it directly companycerns the present matter we may re produce the second paragraph of the Order in so far as it is material to our purpose here Every person who or either of whose parents or any of whose grand-parents was born before twentieth day of December, 1961, in the territories number companyprised in the Union Territory of Goa, Daman and Diu shall be deemed to have become a citizen of India on that day Provided that any such person shall number be deemed to have become a citizen of India as aforesaid if within one month from the date of publication of this Order in the Official Gazette that person makes a declaration in writing to the Administrator of Goa, Daman and Diu or any other authority specified by him in this behalf that he chooses to retain the citizenship or nationality which he had immediately before the twentieth day of De- december, 1961. Provided further Pursuant to this Order, on April 27, 1962, Rev. Father Monteiro made his declaration of Portuguese nationality and on August 14, 1964 applied for a residential permit. On his failure to apply for a renewal of the permit the order of the Lt. Governor was passed on June 19, 1965. Prosecution followed the disobedience of the order. At the outset it may be stated that Mr. Gardner companycedes that he does, number question the legality of the military action or the annexation. In fact, he is quite clear that we may companysider the annexation to be legal. His companytention, in brief, is that the order of the Lt. Governor is tantamount to deportation of Rev. Father Monteiro and the Geneva Conventions Act gives protection against such deportation during occupation which has number validly companye to an end, and, therefore, numberoffence was companymitted by him. The argument overlooks one cardinal principle of Inter- national Law and it is this Rev. Father Monteiro by his declaration retained his Portuguese nationality. His sojourn in India was subject to such laws as existed in India in general and in Goa in particular. It cannot be doubted that the reception and residence of an alien is a matter of discretion and every State has, by reason ,of its own territorial supremacy, number only- the legal right but also the companypetence to exclude aliens from the whole or any part of its. territory. This proposition is so well-grounded in International Law that every companyntry has adopted the passport system, which document certifies nationality and entry into any State is only possible with the companycurrence of that State. Again a State exercises territorial supremacy over persons in its territory, whether its own subjects or aliens -and can make laws for regulating the entry, residence and eviction of aliens. Therefore, the application of the Foreigners Act, the Registration of Foreigners Act and the Orders passed under them, to Rev. Father Monteiro was legally companypetent. A companysiderable body of writers on International Law support the proposition and it is sufficient to refer only to Oppenheim Vol. 1 pp. 675/676 and Brierly Law of Nations p. 217. If authority were needed the proposition would be found supported in the decision of the Privy Council in Musgrove v. Chun Teeong Toy 1 . The Lord Chancellor in that case denied that an alien excluded from British territory companyld maintain an action in a British Court to enforce such a right. This proposition being settled, Mr. Gardner sought support for his plea from the provisions of the Geneva Conventions Act of 1960. That Act was passed to enable effect to be given to the International Conventions done at Geneva in 1949. Both India and Portugal have signed and ratified the Conventions. Mr. Gardiner relies on the provisions of the Fourth Schedule relative to the protection of certain persons in time of war. Ho refers in particular to Articles 1, 2, 4, 6, 8, 47 and 49. By Arts. 1 and 2 there is an undertaking to respect and ensure respect for the Con- ventions in all circumstances of declared war or of any other armed companyflict even if the state of war is number recognised by one of the parties and to all cases of partial or total occupation of the territory of a High Contracting Party even if the occupation meets with numberarmed resistance. Article 4 defines a protected person and the expression includes those who at a given moment and in any manner whatsoever, find themselves, in case of companyflict or occupa- tion, in the hands of a Party to the companyflict or Occupying Power of which they are number nationals. Article 6 then lays down the beginning and end of application of the Convention. The Convention applies from the outset of any companyflict or occupation. In the territory of Parties to the companyflict, the application of the Convention ceases on the general close of Military operations. In the case of occupied territories it ceases one year after the general close of military operations but the occupying Power is bound for the duration of occupation, to the extent that such Power exercise the functions of Government in such territory, by Arts. 1-12, 27, 29-34, 47, 49, 51, 52, 53, 59, 61-73 and 143. 1 1891 A. C. 2 We next companye to Arts. 47 and 49 which are the crux of the matter and are relied upon for the protection. Mr. Gardner points out that under Art. 48 even protected persons may in numbercircumstance renounce in part or in entirety the rights secured to them by the Conventions. The case, therefore,, depends on whether Arts. 47 and 49 apply here. We may number read Arts. 47 and 49 Protected persons who are in occupied territory shall number be deprived, in any case or in any manner whatsoever, of the benefits of the present Convention by any change introduced, as the result of the occupation of a territory, into the institutions or Government of the said territory, number by any agreement companycluded between the authorities of the occupied territories and the Occupying Power, number by any annexation by the latter of the whole or part of the occupied territory. Individual or mass forcible transfers, as well as deportation of protected persons from occupied territory to the territory of the Occupying Power or to that of any other companyntry, occupied or number, are prohibited, regardless of their motive. Nevertheless, the Occupying Power may undertake total or partial evacuation of -a given area if the security of the population or imperative military reasons so demand. Such evacuation may number involve the dis- placement of protected persons outside the bounds of the occupied territory except when for material reasons it is impossible to -avoid such displacement. Persons thus evacuated shall be transferred back to their homes as soon as hostilities in the area in question have ceased. The Occupying Power undertaking such transfers or evacuations shall ensure, to the greatest practicable extent, that proper accommodation is provided to receive the protected persons, that the removals are effected in satisfactory companyditions of hygiene, health, safety and nutrition, and that members of the same family are number separated. The Protecting Power shall be informed of any transfers and evacuations as soon as they have taken place. The Occupying Power shall number detain protected persons in an area particularly exposed to the danger of war unless the security of the population or imperative military reasons so demand. The Occupying Power shall number deport or transfer parts of its own civilian population into the territory it occupies. The point of difference between the parties before us in relation to Art. 47 is whether the occupation companytinues, the annexation of the territory numberwithstanding -and in relation to Art. 49 whether the order of the Lt. Governor amounts to deportation of a protected person. Mr. Gardners submissions are the order that has been made is a deportation order and it is therefore ultra vires the Geneva Conventions. These Conventions create individual rights which cannot even be waived. So long as occupation companytinues ,these rights are available and the Geneva Conventions must number be looked at in isolation but read in companyjunction with International Law as part of the positive law. They should number be abandoned lightly. According to him, companyquest was a method of acquiring territory in the past but after the Covenant of the League of Nations, the Charter of the United Nations and the General Treaty for the Renunciation of War, the acquisition of territory in Inter- national Law by the use of force does number companyfer any title. Occupation, therefore, can only be of terra nullins, number number possible. He invokes the rule in Heydons 1 case and says that the history of the making of the Geneva Conventions, shows that this was precisely the mischief sought to be met and the Conventions number become a part of the laws of India through Parliamentary Legislation. He companycedes that the war of liberation of Goa and the annexation were lawful but he companytends that annexation does number deprive protected persons of the protection. According to him, once there is military action and occupation, occupation cannot cease by a unilateral act of annexation by incorporating the terri- tories of Goa with India. If India did number care to be bound by the Conventions, there was a Method of denunciation in Art. 158 but since the Convention is registered under Art. 159 even denunciation at a late stage was number possible. He relies upon Art. 77 and says that Liberated means when the occupation companyes to an end. The amendment of the Constitution only legalises annexation so far as India is companycerned but in International Law the territory remains occupied. The occupation is number at an end and it cannot be brought about unilaterally. The words of Art. 47 themselves are clear enough to establish this. In short, the company- tention is that occupation does number companye to end by annexation and, therefore, the protection companytinues till there is either cession of the territory or withdrawal of the Occupying Power from the territory, both of which events have number taken place. In support of his propositions be relies upon Dholakia International Law 1 1584 3 Rep. 76. pp. 180, 181, 293 Oppenheim International Law Vol. 1 7th Edn. pp. 574 et seq. R. Y. Jennings The Acquisition of Territories in International Law pp. 53-56, 67. The companytention on behalf of the State is that by occupation is meant occupation by armed forces or belligerent occupation and occupation companyes to an end by companyquest followed by subjugation. Reference is made to many works on International Law. We have to decide between these two submission. This is the first case of this kind and we took time to companysider our decision. We are of opinion that the pleas of Mr. Gardner that the Geneva Conventions Act makes dispunishable the companyduct of Rev. Father Monteiro, must fail. To begin with, the Geneva Conventions Act gives numberspecific right to any one to approach the Court. The Act was passed under Art. 253 of the Indian Constitution read with entries 13 and 14 of the Union List in the Seventh Schedule to implement the agreement signed and merely provides for certain matters based on Geneva Conventions. What method an aggrieved party must adopt to move the, Municipal Court is number very clear but we need number companysider the point because of our companyclusions on the other parts of the case. We shall companysider the Conventions themselves. Before we companysider the Geneva Conventions, which form Schedules to the Act, it is necessary to look at the Act itself to see what rights it companyfers in relation to the Conventions, and whether it gives -a right to Rev. Father Monteiro in the present circumstances to invite the Courts opinion. Being a companyrt of law, this Court must be satisfied about its own jurisdiction, the foundation for which must be in some enforceable law. Prior to the Geneva Conventions Act of 1960 there were the Geneva Convention Act of 1911 and the Geneva Conventions Implementing, Act of 1936. We need number companysider them because by the twentieth section of the present Act, the former ceases to have effect as part of the law of India and the latter is repealed. The Act is divided into five Chapters. Chapter I deals with the title and extent and companymencement of the Act and gives certain definitions. Of these, the important definition is that of protected internee as a person protected by the Fourth Convention and interned in India. Chapter 11 then deals with punishment of offenders against the Conventions and the jurisdiction of companyrts to deal with breaches by punishment them. Chapter III lays down the procedure for the trial of protected persons, for offences enabling a sentence of death or imprisonment for a term of two years or more to be imposed and for appeals etc. Chapter IV prohibits the use of Red Cross and other emblems without the approval of Central Government and provides for a penalty. Chapter V gives power to the Central Government to make rules.The Act then sets out the Conventions in its schedules and the Conventions which are four in number are set out in as many Schedules to the Act. It will thus be seen that the Act by itself does number give any special remedy. It does give indirect protection by providing for penalties for breaches of Convention. The Conventions are number made enforceable by Government against itself number does the Act give a cause of action to any party for the enforcement of Conventions. Thus there is only an obligation undertaken by the Government of India to respect the Conventions regarding the treatment of civilian population but there is numberright created in favour of protected persons which the Court has been asked to enforce. If there is numberprovision of law which the companyrts can enforce the companyrt may be powerless and the companyrt may have to leave the matter to what Westlake aptly described as indignation of mankind. The appellant has, however, sought the aid of the Geneva Conventions to establish that he companyld number be companypelled to leave Goa and thus companymitted numberoffence. We may, therefore, say a few words about the Geneva Conventions, particularly Schedule IV, which deals with the protection of civilian persons in time of war. In the past protection of civilian population was inadequately provided in Conventions and treaties. The four companyventions came at different times, the oldest in 1864 and the last in 1949. The Fourth Hague Convention of 1907 companytained Arts. 42-56, but this protection was restricted to occupation by an enemy army. The Regulations merely stated the principles and enjoined maintenance of law and order and regard for family rights, lives of persons and private property, and prohibited companylective punishments. In effect, these were companyfined to the forward areas of war and did number apply when total war took place and the civilian population was as much exposed to the dangers of war as the military. The example of the First World War showed that civilian population was exposed to exactions. At the time when the Hague Regulations were done, it was thought that such matters as number-internment of the nationals of the adversary would be observed. But the First World War proved to the companytrary. It was in 1921 that the International Committee of the Red Cross produced a draft Convention which among other things enjoined that the inhabitants of the occupied territory should number be deported and civilians in enemy territory must be allowed to return to their homes unless there were reasons of state security and the internees must receive the same treatment as prisoners of war. The Diplomatic Conference of 1929 and the Red Cross Conference of 1934 made useful studies but action scheduled to take place in 1940 companyld number be implemented as the Second World War broke out. Although the belligerent companyntries had accepted that the 1929 Convention regarding prisoners of war was applicable to civilians, the lessons of the Second World War were different. We know the treatment of civilians by Germany and the horried deaths and privations inflicted on them. War, though outlawed, companytinues still and as President Max Huber said War, as it becomes more and more total, annuls the differences which formerly existed between armies and civilian populations in regard to exposure to injury and danger. At the termination of the last war the International Red Cross Conference at Stockholm prepared a draft in 1948, which became the basis of the deliberations of the Diplomatic Conference which met at Geneva from April 21 to August 12, 1949 and the present Convention was framed. The Regulations were number revised or incorporated. The 1949 Conventions are additional to the Regulations and it is expressly so laid down in Art. 154 of the Geneva Conventions. The Hague Regulations, Arts. 42-56, companytained some limited and general rules for the protection of inhabitants of occupied territory. The Regulations are supplementary. Regulations 43 and 55 which have numbercounter-part in the Geneva Conventions must be read. They are number relevant here Similarly, as there is numberdefinition of occupation in the Geneva Conventions, Art. 42 of the Regulation must be read as it companytains a definition A territory is companysidered as occupied when it finds itself in fact placed under the authority of a hostile army. The Regulations further charge the authority having power over the territory to take all measures to establish and assure law and order. The Regulations generally charged the occupying power to respect the persons and property of the inhabitants of the occupied territory. There was numberprovision showing when occupation companymenced and when it came to an end. It is because of this omission that it is claimed in this case that occupation companytinues so long as there is numbercession of the territory by the companyquered or withdrawal by the companyqueror and that till then the protection of the Geneva Conventions obtains. However, Art. 6, which provides about the beginning and end of the application of the Conventions throws some light on this matter. The question thus remains, what is meant by occupation ? This is, of companyrse, number occupation of terra nullins but something else. Since there is numberdefinition of occupation in the Geneva Conventions, we have to turn to the definition in the Hague Regulations. Article 154 of the 4th Schedule reads Relation with the Hague Conventions In the relations between the Powers who are bound by the Hague Conventions respecting the Laws and Customs of War on Land, whether that of 29th July, 1899, or that of 18th October, 1907, and who are parties to the present Convention, this last Convention shall be supplementary to Sections 11 and 111 of the Regulations annexed to the above-mentioned Conventions of the Hague. The definition of occupation in the Regulations must be read since the Regulations are the original rules and the Conventions only supplement the Regulations. We have -already quoted the definition and it shows that a territory is companysidered as occupied when it finds itself in fact placed under the authority of a hostile army. This means that occupation is by military authorities. In the Justice case 1 it was stated that the laws of belligerent occu- pation apply only to an occupation during the companyrse of actual warfare and that once the enemy has been totally defeated those laws do number apply to the ensuing occupation. The question thus resolves itself into this Is occupation in Art. 47 belligerent occupation or occupation which companytinues after the total defeat of the enemy ? In this companynection companyrts must take the Facts of State from the declaration of State authorities. Military occupation is a temporary de facto situation which does number deprive the Occupied Power of its sovereignty number does it take away its statehood. All that happens is that pro tempore the Occupied Power cannot exercise its rights. In other words, belligerent occupation means that the Government cannot function and authority is exercised by the occupying force. Annexation, on the other hand, occurs when the Occupying Power acquires and makes the occupied territory as its own. Annexation gives a de jure right to administer the territory. Annexation means that there is number only possession but uncontested sovereignty over the territory. As Greenspan 2 put it p. 215 military occupation must be distinguished from subjugation, where a territory is number only companyquered, but -annexed by the companyqueror. There is, however, a difference between true annexation on the one hand and premature annexation, or as it is sometimes called anticipated annexation, on the other. Jurists regard annexation as premature so long as hostilities are companytinuing and there is an opposing army in the field even if the Occupied Power is United States V. Attstoctter, et. al. 1947 U. S. Military Tribunal, Nucmberg L. R. 3 T. W. C. vi, 34. The Modern Law of Land Warfare. wholly excluded from the territory. Anticipated annexation by unilateral action is number true annexation. True annexation is only so when the territory is companyquered and subjugated see Oppenheim International Law. 7th Edn. pp. 846-847. Vol. 1 566 Vol. 1 , pp. 448/52 Vol. 11 , 430- 439 Vol. 11 and 599 et seq Vol. 11 , Greenspan ibid pp. 215 et seq 600-603 Gould Introduction to International Law pp. 652-656, 662-663 Brierly Laws of Nations p.155. The Conventions rightly lay dowin that annexation has numbereffect on the protection. But they speak of premature or anticipated annexation. Premature or anticipated annexation has numbereffect. Such a plea was negatived for the same reason by the Nuremberg Tribunal. In fact, when the Convention itself was being drafted the experts were half- inclined to add the word alleged before annexation in Art. 47 to distinguish between annexation following companyquest and subjugation and annexation made while hostilities are going on. Subjugation puts an end to the state of war and destroys the source of authority of the existing Government. In subjugation, which is recognised as one of the modes of acquiring title, number only the de facto but also the de jure title passes to the companyqueror. After subjugation the inhabitants must obey the laws such as are made and number resist them. Thus the principle which is accepted is that the Occupying Power must apply the Convention even when it claims during companyflict to have annexed the occupied territory. However, when the companyflict is over and there is numberhostile army in the field, annexation has the effect of creating a title to the territory. It may be- asked why does Art. 6 then mention a period of one year ? The reason given is that if the Occupied Power turns victorious the land would be freed in one year and if the Occupying Power remains victorious, as hostilities cease, strong measures against the civilian population are numberlonger necessary. In this, as in other laws, a line is drawn arbitrarily -and it is at the end of one year. Otherwise also, occupation, which means belligerent occupation, companyes to an end when hostilities cease and the territory becomes a art of the Occupying Power. Annexation may sometimes be peaceful, as for example, Texas and Hawaiian Islands were peacefully annexed by the United States, or after war, -as the annexation of South Africa and Orange Free State by Britain. The question, when does title to the new territory begin, is number easy to answer. Some would make title depend upon recognition. Mr. Stimsons doctrine of number-recognition in cases where a state of things has been brought about companytrary to the Pact of Paris was intended to deny root of title to companyquest but when Italy companyquered Abyssinia, the companyquest was recognised because it was thought that the state of affairs had companye to stay. Thus, although the United Nations Charter includes the obligation that force would number be used against the territorial integrity of other States Art. 2 para 4 , events after, the Second World War have shown that transfer of title to territory by companyquest is still recognised. Prof. R. Y. Jennings poses the question What is the legal position where a companyqueror having numbertitle by companyquest is nevertheless in full possession of the territorial power, and number apparently to be ousted ? He recommends the recognition of this fact between the two States. If cession after defeat can create title, occupation companybined with absence of opposition must lead to the same kind of title. In the present case the facts are that the military engagement was only a few hours duration and then there was numberresistance -at all. It is hardly necessary to try to establish title by history traced to the early days as was done in the Minquiers and Ecrencs 1 case. Nor is there any room for the thesis of Dr. Schwarzenberger A Manual of International Law, 5th Edn. p. 12 that title is relative and grows with recognition . True annexation followed here so close upon military occupation as to leave numberreal hiatus. We can only take the critical date of true and final annexation as December 20, 1961 when the entire government and administration were taken over and there was numberarmy in occupation -and numberarmy in opposition. The occupation on December 20, 1961 was neither belligerent occupation number anticipated occupation, but true annexation by companyquest and subjugation. It must be remembered that Mr. Gardiner companycedes that the annexation was lawful. Therefore, since occupation in the sense used in Art. 47 had ceased, the protection must cease also. We are, therefore, of opinion that in the present case there was numberbreach of the Geneva Conventions. We were invited to look at the matter from another point of view, namely, even if the protection against deportation envisaged by Arts. 47 and 49 were taken to be companytinued, what is the remedy which the Municipal Courts can give ? It was said, the act was an Act of State. In view of what we have already held it is number necessary to pronounce our opinion on this argument. The national status of subjects of the subjugated state is a matter for the State, and companyrts of law can have numbersay in the matter. As Oppenbeim Vol. 1 p. 573 puts it The subjugating state can, if it likes allow them to emigrate, and to renounce their newly acquired citizenship, and its Municipal Law can put them in any position 1 1953 I. C. J. 47. it likes, and can in particular grant or refuse them the same rights as those which its citizens by birth enjoy. The Geneva Conventions ceased to apply after December 20, 1961. The Indian Government offered Rev. Father Monteiro Indian nationality and citizenship which he refused and retained his Portuguese nationality. As a Portuguese national he companyld only stay in India on taking out a permit. He was, therefore, rightly prosecuted under the law applicable to him. Since numbercomplaint is made about the trial as such, the appeal must fail.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeals Nos. 2093 and 2094 of 1968. Appeals from the judgment and order dated August 5, 1968 of the Andhra Pradesh High Court in Writ Petitions Nos. 2339 and 2742 of 1968. B. Agarwala, K. Srinivasa Murthy, B. P. Singh and Naunit Lal, for the appellants in both the appeals . S. R. Chari, M. K. Ramamurthi, S. Pappu, Madan Mohan, A J. Ramamurthi, Vineet Kumar, P. S. Khera and Bindra Thakur, for respondent No. 2 in both the appeals The Judgment of the Court was delivered by Bhargava, J. An industrial dispute arose between 25 Co- operative Central Banks in the State of Andhra Pradesh and their workmen represented by the Andhra Pradesh Bank Em- ployees Federation, Hyderabad, which was referred by the Government of Andhra Pradesh to the Industrial Tribunal, Hyderabad, under section 10 1 d of the Industrial Disputes Act No. 14 of 1947. The subject-matter of the dispute was divided into three issues. The first issue companyprised a number of service companyditions, viz., 1 Salary, Scales and Adjustments, 2 Dearness Allowance, 3 Special Allowances, 4 other Allowances, 5 Uniforms and Washing Allowances for subordinate staff, 6 Conveyance Charges, Provident Fund and Gratuity, 8 Leave Rules, 9 Joining Time on Transfer, 1 Rules relating to departmental enquiry against employees for misconduct, 11 Probationary Period and Confirmation, 12 Working Hours and Overtime Allowance, 13 Age of Retirement,, 14 Security, 15 Common Good Fund, 16 Service Conditions and 17 Promotions. The second and the third issues both related to the question whether the transfers of some employees of two of the Banks, The Vijayawada Co-operative Central Bank, Ltd., Vijayawada, and The Vizianagaram Co-operative Central Bank Ltd., Vizianagaram, were justified and, if number, to what reliefs were the employees entitled. Before the Industrial Tribunal, one of the grounds raised on behalf of the Banks was that the reference of the disputes to the Tribunal was invalid, because such disputes were required to be referred for decision to the Registrar of the Co-operative Societies under section 61 of the Andhra Pradesh Co-operative Societies Act No. 7 of 1964 hereinafter referred to as the Act , and the effect of the provisions of the Act was to exclude the jurisdiction of the Industrial Tribunals to deal with the same disputes under the Industrial Disputes Act. Various other pleas were also taken by the Banks in resisting the claims of the workmen, but, in these appeals, we are number companycerned with them, because the Tribunal dealt with the point, mentioned by us above, as a preliminary issue and rejected the companytention of the Banks. Twenty-four of the Banks thereupon challenged the preliminary decision of the Tribunal on this question, treating it as a preliminary award, by filing two Writ Petitions Nos. 2339 and 2742 of 1968 under Art. 226 of the Constitution in the High Court of Andhra Pradesh. The High Court also rejected the plea of the Banks. These two appeals have been brought up before us by certificate against the orders of the High Court dismissing the two writ petitions. In Civil Appeal No. 2093/1968, the appellants are 10 Banks who were petitioners before the High Court in Writ petition No. 2339 of 1968, while 2 of the petitioner-Banks in that writ petition have been impleaded as respondents. In Civil Appeal No. 2094 of 1968, the appellants are also 10 Banks who had joined in filing the other Writ Petition No. 2742/1968 in the High Court, while one of the petitioner- Banks in that writ petition has been impleaded as respondent, and another has number joined the appeal as a party. In these appeals, therefore, we are only companycerned with one single question as to whether the jurisdiction -of the Industrial Tribunal to adjudicate on the industrial dispute referred to it under s. 10 1 d of the Industrial Disputes Act was barred by the provisions of s. 61 of the Act. The Tribunal, and the High Court, in rejecting the plea taken -on behalf of the Banks, expressed the view that the disputes actually referred to the Tribunal were number capable of being decided by the Registrar of the Co-operative Societies under S. 61 of the Act and, companysequently, the reference to the Industrial Tribunal under the Industrial Disputes Act was companypetent. Learned companynsel appearing on behalf of the Banks took us through the provisions of the Act to indicate that, besides being a local and special Act, it is a self-contained Act enacted for the purpose of successful working of Co-operative Societies, including Co- operative Banks, and there are provisions in the Act which clearly exclude the applicability of other laws if they happen to be in companyflict with the provisions of the Act. It is numberdoubt true that the Act is an enactment passed by State Legislature which received the assent of the President, so that, if any provision of a Central Act, including the Industrial Disputes Act, is repugnant to any provision of the Act, the provision of the Act will prevail and number the provision of the Central Industrial Disputes Act. The general proposition urged that the jurisdiction of the Industrial Tribunal under the Industrial Disputes Act will be barred if the disputes in question can be companypetently decided by the Registrar under s. 61 of the Act is, therefore, companyrect and has to be accepted. The question, however, that has to be examined is whether the industrial dispute referred to the Tribunal in the present cases was such as was required to be referred to the Registrar and to be decided by him under section 61 of the Act. In order to properly appreciate the submissions which have been made on behalf of the Banks by their companynsel, it is necessary to set out the provisions of sections 16, 61, 62 and 133. of the Act which are as follows - Amendment of bye-laws of a society - I No amendment of any bye-law of a society shall be valid unless such amendment has been registered under this Act. Where such an amendment is number expressed to companye into operation on a particular day, then, it shall companye into force on the day on which it is registered. Every proposal for such amendment shall be forwarded to the Registrar who shall, if he is satisfied that the proposed amendment fulfils the companyditions specified in subsection 1 of section 7, register the amendment within a period of sixty days from the date of receipt of such proposals Provided that the Government may, for sufficient cause which shall be recorded in writing, extend the said period for a further period of sixty days. The Registrar shall forward to the society a companyy of the registered amendment together with a certificate signed and sealed by him, and such certificate shall be companyclusive evidence that the amendment has been duly registered. Where the Registrar is number so satisfied, he shall companymunicate by registered post the order of refusal together with the reasons therefore, to the society within the period specified in sub-section 2 . If in the opinion of the Registrar, an amendment of the bye-laws of a society is necessary or desirable in the interest of such society or of the companyoperative movement, he may, in the manner prescribed, call upon the society, to make any amendment within such time as he may specify. If the society fails to make such an amendment within the time so specified the Registrar may, after giving the society an opportunity of making its representation, register such amendment and forward to the society by registered post a companyy of the amendment together with a certificate signed by him such a certificate shall be companyclusive evidence that the amendment has been duly registered and such an amendment shall have the same effect as an amendment of any bye-law made by the society. 6 1. Disputes which may be referred to the Registrar Notwithstanding anything in any law for the time being in force, if any dispute touching the companystitution, management or the business of a society, other than a dispute regarding disciplinary action taken by the society or its companymittee against a paid employee of the society, arises- a among members, past members and persons claiming through members, past members And deceased members or b between a member, past member or Person claiming through a member, past member or deceased member and the society, its companymittee or any officer, agent or employee of the society or c between the society or its companymittee and any past companymittee, -any officer, agent or employee, or any past officer, past agent or past employee or the numberinee, heir or legal representative of any deceased officer, deceased agent, or deceased employee of the society or d between the society and any other society such dispute shall be referred to the Registrar for decision. Explanation -For the purposes of this sub- section a dispute shall include- a claim by a society for any debt or other amount due to it from a member, past member or the numberinee, heir or legal representative of a deceased member, whether such debt or other amount be admitted or number a claim by a surety against the principal debtor where the society has recovered from the surety any amount in respect of any debt or other amount due to it from the principal debtor as a result of the default of the principal debtor whether such debt or other amount due be admitted or number a claim by a society against a member, past member or the numberinee, heir or legal representative of a deceased member for the delivery of possession to the society of land or other immovable property resumed by it for breach of the companyditions of assignment or allotment of such land or other immovable property. If any question arises whether a dispute referred to the Registrar under this section is a dispute touching the companystitution, management or the business of a society, such question shall be decided by the Registrar. 3 a Every dispute relating to, or in companynection with, any election to a companymittee of a society referred to in clause a of sub- section 3 of section 31, shall be referred for decision to a Subordinate Judge or where there is numberSub- ordinate Judge, to the District Judge having jurisdiction over the place where the main office of the society is situated, whose decision thereon shall be final. Every dispute relating to or in companynection with any election to a companymittee of such class of societies as may, by numberification in the Andhra Pradesh Gazette, be specified by the Government in this behalf and referred to in clause b of sub-section 3 of section 31, shall be referred for decision to a District Munsiff having jurisdiction over the place where the main office of the society is situated, and his decision thereon shall be final. Every dispute relating to, or in companynection with, any election to a companymittee shall be referred under sub-section 1 of sub-section 3 only after the date of declaration of the result of such election. Action to be taken by the Registrar on such reference The Registrar may, on receipt of the reference of a dispute under section 61-- a elect to decide the dispute himself or b transfer it for disposal to any person who has been invested by the Government with powers in that behalf or c refer it for disposal to an arbitrator. Where the reference relates to any dispute involving immovable property, the Registrar or such person or arbitrator, may order that any person be joined as a party who has acquired any interest in such property subsequent to the acquisition of interest therein by a party to the reference and any decision that may be passed on the reference by the Registrar, or the person or the arbitrator aforesaid, shall be binding on the party so joined as if he were an original party to the reference. The Registrar may, by order for reasons to be recorded therein, withdraw any reference transferred under clause b of sub-section I or referred under clause c of that sub-section and may elect to decide the dispute himself or transfer it to any other person under clause b of sub- section I or refer it to any other arbitrator under clause c of that subsection. The Registrar, such person or arbitrator shall decide the dispute in accordance with the provisions of this Act and the rules and bye-laws and such decision shall, subject to the provisions of section 76, be final. Pending final decision on the dispute, the Registrar, such person or arbitrator, as the case may be, may make such interlocutory orders as he may deem necessary in the,, interests of justice. Act to override other laws -The provisions of this Act shall have effect numberwithstanding anything inconsistent therewith companytained in any other law. Reliance was placed on the number-obstante clause Notwith- standing anything in any law for the time being in force occurring in s. 61 of the Act which has the effect that a dispute companyered by this section must necessarily be referred to the Registrar for decision, so that it cannot be referred to any other authority under any other law. Further strength is sought in support -of this proposition from the provisions of section 133 of the Act which clearly lays down that the provisions of the Act have overriding effect if there be any provision in any other law inconsistent with the provisions of the Act. Then, it was argued that the language of s. 61 of the Act is wide enough to companyer the disputes referred to the Tribunal in these cases, because the disputes are between companyoperative societies and their employees and they touch the business of the companyoperative societies. In support of this submission, learned companynsel referred us to a number of decisions of various High Courts in which the scope of the provisions companytained in s. 61 of the Act or of similar provisions in other local enactments was companysidered. Most of these decisions were companycerned with laying down the meaning of the expression touching the business of the society so as to include within its scope disputes of different nature between the companyoperative socie- ties and their employees. The cases which have been brought to our numberice are 1 a decision of a learned single Judge of the Bombay High Court in G.I.P. Railway Employees Co-operative Bank Ltd. v. Bhikhaji Merwanji Karanjia-Employee 1 , in which a similar provision companytained in s. 54 of the Bombay Co-operative Societies Act No. 7 of 1925 was interpreted 2 a decision in Sagar Motor Transport Karamachari Union, Sagar v. Amar Kamgar Passenger Transport Company Co-opera- tive Society, Sagar and Another 2 , where the Madhya Pradesh High Court interpreted section 55 2 of the Madhya Pradesh A.I.R. 1943 Bom. 341. 2 1969 18 Indian Factories and Labour Reports, 27. Co-operative Societies Act, 1960 which required a dispute regarding terms of employment, working companyditions and disciplinary action taken by a society, arising between a society and its, employees, to be decided by the Registrar or any Officer appointed by him 3 a decision of a Full Bench of the Madras High Court in S. Madhva Rao and Others v. D. V. K. Surya Rao, Member of the Pithapuram Co-operative Bank, Pithapuram and Others 1 in which section 51 of the Madras Co-operative Societies Act No. 6 of 1932, which was very similar to s. 61 of the Act, was interpreted and 4 a decision of a Full Bench of the Bombay High Court in Farkhundali Nannhay v. Potdar V.B. 2 , in which also s. 54 of the Bombay Co-operative Societies Act No. 7 of 1925 came up for interpretation. Learned companynsel for the appellants also brought to our numberice a decision of a single Judge of the Calcutta High Court in Cooperative Milk Societies Union, Ltd. v. State of West Bengal and others 3 , where a dispute as to wages, wage-scales and dearness allowance was held number to be a dispute within the meaning of that word as defined in the Bengal Co-operative Societies Act, 1940, and sought to distinguish it on the ground that the decision in that case turned on the meaning specially given in that Act to the word dispute. It appears to us that it is number necessary to examine in detail the reasons given by the High Courts in the above cited cases for the interpretation placed by them on provisions similar to s. 61 of the Act in view of a very recent decision of this Court in The Deccan Merchants Co- operative Bank Ltd. v. Messrs Dalichand Jugraj Others 4 . In that case, this Court had to interpret section 91 of the Maharashtra Co-operative Societies Act, 1960 Maharashtra Act 32 of 1961 , the relevant provision of which is reproduced below 91 1 Notwithstanding anything companytained in any other law for the time being in force, any dispute .touching the companystitution, elections of the office bearers, companyduct of general meetings, management or business of a society shall be referred by any of the parties to the dispute, or by a federal society to which the society is affiliated, or by a creditor of the society, to the Registrar, if both the parties thereto are, one or other of the following - A.I.R. 1954 Mad. 103. 3 1958 2 L.L.J. 61. 2 1962 I L.L.J. 51. 4 1969 1 S.C.R. 887., a a society, its companymittee, any past companymittee, any past or present officer, any past or present agent, any past Or present servant or numberinee, heir or legal representative of any deceased officer, deceased agent or deceased servant of the society, or the Liquidator of the society One of the questions which the Court formulated as requiring an answer was what is the meaning of the expression touching the business of the society? In order to decide this question, the Court analysed the provisions of s. 9 1 1 and held - Five kinds of disputes are mentioned in sub- s. 1 first, disputes touching the companystitution of a society secondly, disputes touching election of the office bearers of a society, thirdly, disputes touching, the company- duct of general meetings of a society fourthly, disputes touching the management of a society and fifthly, disputes touching the business of a society. It is clear that the word business in this companytext does number mean affairs of a society because election of office-bearers, companyduct of general meetings and management of a society would be treated as affairs of a society. In this sub-section the word business has been used in a narrower sense and it means the actual trading or companymercial or other similar business activity of the society which the society is authorised to enter into under the Act and the Rules and its bye-laws. In that case, this Court was companycerned with the question whether a dispute touching the assets of a society was a dispute touching the business of the society, and it was in that companytext that the interpretation mentioned above was given by this Court. In companysidering the full scope of s. 91 I of the Maharashtra Act 32 of 1961, the Court further proceeded to hold - While we agree that the nature of business which a society does can be ascertained from the objects of the society, it is difficult to subscribe to the proposition that whatever the society does or is necessarily required to do for the purpose of carrying out its objects can be said to be part of its business. We, however, agree that the word touching is very wide and would include any matter which relates to or companycerns the business of a society, but we are doubtful whether the word affects should also be used in defining the scope of the word touching. This companyment was made when taking. numberice of the decision of the Full Bench of the Bombay High Court in Farkhundli v. Potdar 1 . The Court also held - One other limitation on the word dispute may also be placed and that is that the word dispute companyers only those disputes which are capable of being resolved by the Registrar or his numberinee. Considering the similarity between S. 61 of the Act and S. 91 1 of the Maharashtra Act 32 of 1961, we are of the opinion that the interpretation already placed by this Court on the provisions of S. 91 I of the Maharashtra Act 32 of 1961 is fully applicable to the provisions of S. 61 of the Act with which we are companycerned. Consequently, in deciding these appeals, we must proceed on the basis that S. 61 of the Act requires reference of a dispute to the Registrar only if the dispute is capable of being resolved by the, Registrar or his numberinee, and, further, the dispute between the companyoperative society and the employee touches the business of the society in the sense explained by this Court in that case. Applying these tests, we have numberdoubt at all that the dispute companyered by the first issue referred to the Industrial Tribunal in the present cases companyld number possibly be referred for decision to the Registrar under S. 61 of the Act. The dispute related to alteration of a number of companyditions of service of the workmen which relief companyld only be granted by an Industrial Tribunal dealing with an industrial dispute. The Registrar, it is clear from the provisions of the Act, companyld number possibly have granted the reliefs claimed under this issue because of the limitations placed on his powers in the Act itself, It is true that S. 61 by itself does number companytain any clear indication that the Registrar cannot entertain a dispute relating to alteration of companyditions of service of the employees if a registered society but the meaning given to the expression touching the business of the society, in our opinion, makes it very doubtful whether a dispute in respect of alteration of companyditions of service can be held to be companyered by this expression. Since the word business is equated with the actual trading or companymercial or other similar business activity of the society, and since it has been held that it would be difficult to subscribe to the proportion that whatever the society does or is necessarily required to do for the purpose of carrying out its objects, such as laying down the companyditions of service of its employees, can be said to be a part of its business, it would appear that a dispute relating to companyditions of Service of the workmen employed by the society cannot be held to be a dispute touching the business of the society. Further, the position is clarified by the provisions of sub-s. 4 of S. 62 of the Act which limit the power to be 1 1962 I.L.L.J. 51. exercised by the Registrar, when dealing with a dispute referred to him under s. 61, by a mandate that he shall decide the dispute in accordance with the provisions of the Act and the Rules and bye-laws. On the face of it, the, provisions of the Act, the rules and the bye-laws companyld number possibly permit the Registrar to change companyditions of service of the workmen employed by the society. For the purpose of bringing facts to our numberice in the present appeals, the Rules framed by the Andhra Pradesh Government under the Act, and the bye-laws of one of the appellant Banks have been placed on the Paper-books of the appeals be- fore us. It appears from them that the companyditions of service of the employees of the Bank have all been laid down by framing special bye-laws. Most of the companyditions of service, which the workmen want to be altered to their benefit, have thus been laid down by the bye-laws, so that any alteration in those companyditions, of service will necessarily require a change in the bye-laws. Such a change companyld number possibly be directed by the Registrar when, under S. 62 4 of the Act, he is specifically required to decide the dispute referred to him in. accordance with the provisions of the bye-laws. It may also be numbericed that a dispute referred to the Registrar under S. 61 of the Act can even be transferred for disposal to a person who may have been invested by the Government with powers in that behalf, or may be referred for disposal to an arbitrator by the Registrar. Such person or arbitrator, when deciding the dispute, will also be governed by the mandate in S. 62 4 of the Act, so that he will also be bound to reject the claim of the workmen which is numberhing else than a request for alteration of companyditions of service companytained in the bye-laws. It is thus clear that, in respect of the dispute relating to alteration of various companyditions of service, the Registrar or other person dealing with it under S. 62 of the Act is number companypetent to grant the relief claimed by the workmen at all. On the principle laid down by this Court in the case of the Deccan Merchants Cooperative Bank Ltd. 1 , therefore, it must be held that this dispute is number a dispute companyered by the provisions of S. 61 of the Act. Such a dispute is number companytemplated to be dealt with under s. 62 of the Act and must, therefore, be held to be outside the scope of section 61. In this companynection, we may take numberice of the view expressed by a learned single Judge of the Madras High, Court in South Arcot Co-operative Motor Transport Society, Ltd. for ex- servicemen v. Syed Batcha and others 2 where dealing with an industrial claim, the learned Judge held - Therefore, in regard to an industrial claim, like the retrenchment companypensation, the remedy for the 1 1969 1 S.C.R. 887. 2 1960 II L.L.S. 693. worker would be only to enforce it by the machinery created by the Industrial Disputes Act, namely, by ss. 10 and 33C 2 . The Madras Co-operative Societies Act being itself a special statute, the authority, acting under it, would have numberjurisdiction beyond what the enactment itself companyferred on him. lie companyld number, therefore, have jurisdiction to decide a dispute under the Industrial Disputes Act. That decision also related to s. 51 of the Madras Co- operative Societies Act, 1932, which was similar in terms to S. 61 of the Act. Learned companynsel appearing on behalf of the appellant Banks, however, urged a new point to challenge the jurisdiction of the Industrial Tribunal to deal with the dispute relating to companyditions of service to the effect that the companyditions of service having been made the subject -matter of bye-laws, an Industrial Tribunal will number be companypetent to alter them, because even an Industrial Tribunal has numberjurisdiction to make orders companytrary to law. For this purpose, he referred us to a number of decisions of this Court in Dalmia Cement Bharat , Ltd., New Delhi v. Their Workmen and Another 1 The Management of Marina Hotel v. The Workmen 2 Cinema Theatres v. Their Workmen 3 and The Hindustan Times Ltd., New Delhi v. Their Workmen Vice Versa 4 . In all these cases, it was held that an Industrial Tribunal acted illegally in prescribing leave in excess of the number of days laid down by the Delhi Shops and Establishments Act, 1954. In S. 22 of that Act there was a specific prohibition that leave for sickness or casual leave with full wages shall number exceed 12 days and it was held that a direction made by the Tribunal granting to the workmen more than 12 days sickness or casual leave was illegal. The principle of the decisions in those cases does number, however, appear to us to be applicable to the cases before us, because, in the present cases, there is numberprohibition companytained in the Act that the companyditions of service prescribed are number to be altered. The argument on behalf of the Bank, however, was that the bye-laws, which companytained the companyditions of service, are themselves law, so that any direction made by an Industrial Tribunal altering a companydition of service company- tained in a bye-law would be an order companytrary to law and, hence, illegal. We are unable to accept the submission that the bye-laws of a companyoperative society framed in pursuance of the provisions of 1 1961 II L.L.J. 130 3 1264 II L.L.J. 128. Ll 2Sup.CI/69-1 5 2 1962 3 S.C.R. 1. 4 1964 T. S.C.R. 234. the Act can be held to be law or to have the force of law. It has numberdoubt been held that, if a statute gives power to a Government or other authority to make rules, the rules so framed have the force of statute and are to be deemed to be incorporated as a part of the statute. That principle, however, does number apply to bye-laws of the nature that a company operative society is empowered by the Act to make. The bye- laws that are companytemplated by the Act can be merely those which govern the internal management, business or administration of a society. They may be binding between the persons affected by them, but they do number have the force of a statute. In respect of bye-laws laying down companyditions of service of the employees of a society, the bye-laws would be binding between the society and the employees just in, the same manner as companyditions of service laid down by companytract between the parties. In fact, after such bye-laws laying down the companyditions of service are made and any person enters the employment of a society, those companyditions of service will have to be treated as companyditions accepted by the employee when entering the service and will thus bind him like companyditions of service specifically forming part of the companytract of service. The bye-laws that can be framed by a society under the Act are similar in nature to the Articles of Association of a Company incorporated under the Companies Act and such Articles of Association have never been held to have the force of law. In a number of cases, companyditions of service for industries are laid down by Standing Orders certified under the Industrial Employment Standing Orders Act, 1946, and it has been held that, though such Standing Orders are binding between the employers and the employees of the industry governed by those Standing Orders, they do number have such force of law as to be binding on industrial Tribunals adjudicating an industrial dispute. The jurisdiction which is granted to Industrial Tribunals by the Industrial Disputes Act is number the jurisdiction of merely administering the existing laws and enforcing existing companytracts. Industrial Tribunals have the right even to vary companytracts of service between the employer and the employees which jurisdiction can never be exercised by a civil companyrt or a Registrar acting under the Co-operative Societies Act, so that the circumstance that, in granting relief on issue No. 1, the Tribunal will have to vary the special bye-laws framed by the Cooperative Bank does number lead to the inference that the Tribunal would be incompetent to grant the reliefs sought in this reference. In fact, the reliefs companyld only be granted by the Industrial Tribunal and companyld number fall within the scope of the powers of the Registrar dealing with a dispute under s. 61 of the Act. We may also, in this companynection, take numberice of the submission made by learned companynsel that the Registrar companyld have granted relief, under S. 16 5 of the Act if he thought that it was advis- able to grant that relief to the workmen. in our opinion, this submission must be rejected for two reasons. The first reason is that action taken by the Registrar under s. 16 5 of the Act will number be a decision on a dispute referred to him under s. 61 of the Act. When dealing with the dispute under s. 61 of the Act, the Registrar is bound to decide the dispute in accordance with the existing bye-laws, so that, if the dispute relates to alteration of companyditions of service laid down in the bye-laws, he will be incompetent to grant the relief claimed. It is also to be numbericed that a dispute referred to a Registrar under s. 61 of the Act may be transferred for disposal to a person who has been invested by the Government with powers in that behalf or may be referred for disposal to an arbitrator. On the face of it, such person or arbitrator cannot possibly exercise the powers of the Registrar under, s. 16 5 of the Act. The second reason is that, under S. 16 5 of the Act, the power given to the Registrar to propose amendments in the bye-laws and to enforce them if the proposal is number accepted by a society is to be exercised only when the Registrar is of the opinion that it is necessary or desirable to do so in the interests of such society or of the companyoperative movement. Amendments in bye-laws under S. 16 5 of the Act are number companytemplated in the interests of the workmen or for the purpose of resolving industrial disputes. The provisions of s. 16 5 of the Act thus appear to us to be irrelevant when companysidering the scope of the jurisdiction of the Registrar under s. 61 of the Act. Consequently, the decision of the High Court holding that the Tribunal had jurisdiction to deal with the industrial dispute referred to it must be upheld. We may also take numberice of an argument advanced at the last stage by learned companynsel appearing on behalf of the Banks that, in any case, matters companyered by issues Nos. 2 and 3 referred to the Tribunal companyld have been companypetently decided by the Registrar, and the reference in respect of those two issues at least should be held to be incompetent. We do number think that at this stage there is any need for us to decide this question, because such a point was number raised at all in the petitions filed under Art. 226 of the Constitution before the High Court. In those petitions, the companypetence of the reference to the Industrial Tribunal as a whole was challenged on the ground that it was barred because of the jurisdiction of the Registrar to deal with the dispute under section 61 of the Act. Consequently, we need number deal with the question whether a particular issue forming part of the reference has been,.competently referred or number. The appeals fail and are dismissed with companyts.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 452 of 1969. Appeal from the judgment and order dated December 3, 1968 of the Delhi High Court in Civil Writ Petition No. 817 of 1968. C. Misra and M. V. Goswami, for the appellants. Sen and S. P. Nayar, for respondents Nos. 1, 2 and 4. The Judgment of the Court was delivered by Grover, J. This is an appeal by certificate from a judgment of the Delhi High Court dismissing a petition filed by the appellants under Arts. 226 and 227 of the Constitution in the matter of their. admission to the Maulana Azad Medical College, New Delhi, hereinafter called the Medical College The appellants are residents of Delhi. They passed the pre- medical examination of the Delhi University held in April 1968 and obtained 62.5 marks. In June 1968 they applied for admission to the first year M.B., B.S. class at the Lady Harding Medical College, New Delhi but they were number admitted. Thereafter they applied for admission to the Maulana Azad Medical College. This companylege, which is a companystituent of the University of Delhi, was established by the Government of India in June 1958. According to the companylege prospectus, 125 students are admitted annually 15 seats are reserved for schedule caste candidates and 5 for scheduled tribes candidates, 25 of the seats excluding the seats reserved for Government of India numberinees are reserved for girl students who are taken on the basis of merit. The following categories of students only are eligible for admission Residents of Delhi b i Sons Daughters of Central Government Servants posted in Delhi at the time, of the admission. Candidate whose father is dead and is wholly dependent on brother sister who is a Central Government Servant posted in Delhi at the time of the admission. Sons Daughters of residents of Union Territories specified below including displaced persons registered therein and sponsored by their respective Administration of Territory - Himachal Pradesh ii Tripura iii Manipur iv Naga Hills v N.E.F.A. vi Andaman. Sons Daughters of Central Government servants posted in Indian Missions abroad. Cultural Scholars. Colombo Plan Scholars. Thailand Scholars. Jammu Kashmir State Scholars. According to the numbere 23 seats are reserved for categories c to h above. The minimum percentage of marks which a candidate seeking admission must have obtained in the aggregate of companypulsory subjects is 55. Now the appellants had obtained 62.5 marks and were domiciled in Delhi. According to them they were entitled to admission and would have been admitted but for the reservation of the seats which were filled by numberinations by the Central Government. In the year 1968 when the appellants sought admission 9 students had been numberinated by the Central Government out of the 23 seats which had been reserved for categories c to h mentioned above. These students had obtained less percentage of marks than the appellants. The appellants filed a writ petition in the High Court challenging primarily the power of the Central Government to make the numberinations. It was prayed that these numberinations be struck down and the respondents Union of India, Medical College, University of Delhi etc. be directed to admit the -appellants and all other students who were eligible strictly in the order of merit. The writ petition was disposed of by a division bench of the High Court. The authority of the Central Government to select candidates for the reserved seats was upheld. It was, however, found that among the nine seats filled in the Medical College by the Government, two numberinations had been made companytrary to the admission rules. The High Court was of the view that these two seats would also become a part of the general pool for admission of candidates on merit. The order was, therefore, made in the -following terms We, therefore, direct the respondents 1 to 4 as follows two seats shall be filled immediately for admission to the first year M.B., B.S. Course of the College from the merit list in which petitioner No. 1 is number 4 and petitioner No. 2 is number 9. The respondents 1 to 4 shall immediately enquire from the candidates who are above the petitioners in order of merit whether they want the admissions and on their failure to reply in a short time or on their refusal to accept the offer, the admission shall be made either of the petitioners or of other candidates who are above them in the merit list within one week from today. In December 1968, the appellants filed a petition under s. 114 and 0. 47, R. 1 read with s. 141, Civil Procedure Code seeking a review of the judgment and order dated December 3, 1968. This petition was dismissed by the High Court by a detailed order dated January 27, 1969. On February 1, 1969, a petition was filed under Arts. 133 1 c and 132 1 of the Constitution for leave to appeal to this Court. In the prayer leave was sought against the judgment dismissing the writ petition -as also the order by which the review petition was disposed of. In the certificate, however, in the heading only the judgment dated December 3, 1968 is men- tioned. It would appear that the certificate was limited to the appeal against the writ petition. This would be so because under 0. 47, R. 7 the order of the companyrt rejecting the application for review is number appealable. If the appellants desired to challenge that order it companyld have been done only by -asking for leave of this Court under Art. 136 which was never done. In these circumstances the arguments of Mr. B. C. Misra for the appellants were companyfirmed to the matters decided by the judgment dated December 3, 1968. It is companymon ground that the University of Delhi is a statutory body incorporated by the Delhi University Act of 1922 as amended from time to time. Under S. 30 of that Act Ordinances can be made providing for various matters which include the admission of students to the University and their enrolment as such. Ordinance 11 provides that there shall be a Medical Courses Admission Committee. It -is this companymittee which finalises the cases of admission except those which are to be referred to the Standing Committee on -account of any special features. The Medical Courses Admission Committee at its meeting held on November 5, 1965, recognised that 23 seats in the Medical College shall be reserved for certain categories for numberination. This reservation was approved by the Standing Committee of the Academic Council of the Delhi University and finally by the Academic Council itself by means of a resolution dated March 3, 1966. In the High Court and before us both sides argued on the footing that the rules set out in the prospectus of the Medical College relating to admission have statutory sanction and are number of a purely administrative nature. Before the High Court only two questions were raised. The first was whether the provision for reservation of seats was unconstitutional. The second was whether the numberinations to the reserved seats had been made companytrary to the rules. Mr. Misra has amplified the first submission-by urging that the reservation of seats for admission to the Medical College was number based on any reasonable classification and suffered from the vice of discrimination. According to him such reservation was hit by Art. 14 read with clauses 1 and 4 of Art. 15 and clause 2 of Art.- 29 of the Constitution. In addition the system of numberinations being made by the Government and number by the Admission Committee was per se discriminatory. Article 29 2 may be read first. It says, numbercitizen shall be denied admission into any educational institution maintained by the State-or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them. Under clause 1 of Art. 15 the State cannot discriminate against any citizen on grounds only of religion, caste, sex, place of birth or any of them. Clause 4 , however, provides that numberhing in the Article shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the scheduled castes and tribes. According to Mr. Misra the categories c to h companytained in Rule 4 relating to eligibility for admission for whom seats are reserved do number fall within the exception companytained in cl. 4 of Art. 15. The persons in these categories, it is said, cannot be regarded -as socially and educationally backward classes of citizens number can it be supposed that all of them must belong to schedule castes and tribes. We are unable to see how Art. 15 1 can be invoked in the present case. The rules do number discriminate between any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. Nor is Art 29 2 of any assistance to the appellants. They are number being denied admission into the Medical College on grounds only of religion, race, caste, language or any of them. This brings us to Art. 14. It is claimed that merit should be the sole criterion and as soon as other factors like those mentioned in clauses c to h of Rule 4 are introduced, discrimination becomes apparent. As laid down in Shri Ram Krishna Dalmia v. Shri Justice S. Tendolkar Others 1 , Art. 14 forbids class legislation it does number forbid reasonable classification. In order to pass the test of permissible classification two companyditions must be fulfilled, i that the classification is founded on intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and, ii that that differentia must have a rational relation to the object sought to be achieved. The .first group of persons for whom seats have been reserved are the sons and daughters of residents of Union territories other than Delhi. These areas are well known to be companyparatively backward and with the exception of Himachal Pradesh they do number have any Medical College of their own. It was necessary that persons desirous of receiving medical education from these areas should be provided some facility for doing so. As regards the sons and daughters of Central Government servants posted in Indian Missions abroad it is equally well known that due to exigencies of their service these persons are faced with lot of difficulties in the matter of education. Apart from the problems of language, it is number easy or always possible to get admission into institutions imparting medical education in foreign companyntries. The cultural, Colombo Plan and Thailand scholars are given admission in medical institutions in this companyntry by reason of reciprocal arrangements of educational and cultural nature. Regarding Jammu Kashmir scholars it must be remembered that the problems relating to them are of a peculiar nature and there do number exist adequate arrangements for medical education in the State itself for its residents. The classification in all these cases is based on intelligible differentia which distinguishes them from the group to which the appellants belong. It is the Central Government which bears the financial burden of running the medical companylege. It is for it to lay down the criteria for eligibility. From the very nature of things it is number possible to throw the admission open to students from all over the companyntry. The Government cannot be denied the right to decide from what sources the -admission will be made. That essentially is a question of policy and depends inter-alia on an overall assessment and survey of the requirements of residents of particular territories and other categories of Persons for whom it is essential to provide facilities for medical education. , If the sources are properly 1 1959 S.C.R. 279. classified whether on territorial, geographical or other reasonable basis it is number for the companyrts to interfere with the manner and method of making the classification. The next question that has to be determined is whether the differentia on which classification has been made has rational relation with the object to be -achieved. The main purpose of admission to a medical companylege is to impart education in the theory and practice of medicine. As numbericed before the sources from which students have to be drawn are primarily- determined by the authorities who maintain and run the institution, e.g, the Central Gov- ernment in the present case. In Minor P. Rajendran v. State of Madras 1 it has been stated that the object of selection for admission is to secure the best possible material. This can surely be achieved by making proper rules in the matter of selection but there can be numberdoubt that such selection has to be companyfined to, the sources that are intended to supply the material. If the sources have been classified in the manner done in the present case it is difficult to see how that classification has numberrational nexus with the object of imparting medical education and also of selection, for the purpose. The case of Minor P. Rajendran 1 is clearly distinguishable, because there the classification had been made district-wise which was companysidered to have numberreasonable relation with the object sought to be achieved. Nor can the decision of a full bench ofthe Patna High Court in Umesh Ch. Sinha v. V. N. Singh, Principal, P.M.C. Hospital Ors. 2 be of any avail to the appellants. In that case preferential treatment had been given to the children of the employees of the Patna University in the matter of admission to the Patna Medical College. It was held that there was number, reasonable nexus between the principle governing -admission to the companylege on the one hand and the pecuniary difficulties or the meritorious services rendered by the employees of the University on,, the other and that preferential treatment to the children of these employees would amount to favoritism and patronage. There,. is numberquestion of any preferential treatment being accorded to any particular category or class of persons desirous of -receiving medical education in the present case. The mete fact that the Central Government has to make the numberinations with regard to the reserved seats cannot be companysidered to be preferential treatment of any kind. As the candidates for the reserved seats have to be drawn from different sources it would be difficult to have uniformity in the matter of selection from amongst them. The High Court was right in saying that the standards of the examinations passed by them, the subjects studied by them and the educational back-- 1 1968 2 S.C.R. 786. I.L.R. 46 Patna. 616 ground of each of them would be different and divergent and therefore the Central Government was the appropriate authority which companyld make a proper selection out of those categories. Moreover this is being done with the tacit approval and companysent of the Medical Courses Admission Committee. -It appears that the Central Government has been acting in a very reasonable way inasmuch as when numberinations were made only to nine seats the rest were thrown open to the general pool. The other question which was canvassed before the High Court and which has been pressed before us relates to the merits of the numberinations made to the reserved seats. It seems to us that the appellants do number have -any right to challenge the numberinations made by the Central Government. They do number companypete for the reserved seats and have numberlocus standi in the matter of numberination to such seats. The assumption that if numberinations to reserved seats are number in accordance with the rules all such seats as have number been properly filled up would be thrown open to the general pool is wholly unfounded. The Central Government is under numberobligation to release those seats to the general pool. It may in the larger interest of giving maximum benefit to candidates belonging to the number-reserved seats release them but it cannot be companypelled to do so -at the instance of students who have applied for admission from out of the categories for whom seats have number been reserved. In our opinion the High Court was in error in going into the question and holding that out of the nine seats filled by numberination two had been filled companytrary to the admission rules and these would be companyverted into the general pool. Since numberappeal has been filed against that part of the order we refrain from making any further observations in the matter. Finally Mr. Misra attempted to agitate the question of some of the numberinations being illegal as the candidates who had been numberinated had number applied in time-the prescribed date being August 1, 1968. This companytention cannot be entertained for two reasons. The first is that numbersuch point appears to have been raised before the High Court when the writ petition was disposed of on December 3, 1968. It is only at the stage of review that this matter seems to have been pressed. Secondly it has been held by us that the appellants had numberright to challenge the numberinations which had been made by the Central Government. It was number, therefore, open to them to assail any of the numberinations which had been made. The appeal fails and it is dismissed with numberorder as to companyts.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeals Nos. 1236 and 1237 of 1967. Appeal from the judgment and order dated April 27, 1963 of the Calcutta High Court in Income-tax Reference No. 65 of 1954. Sen, T. A. Ramachandran and R. N. Sachthey, for the appellant in both the appeals . Sachin Chaudhuri, A. N. Miiter and I. N. Shroff, for the respondent in both the appeals . The Judgment of the Court was delivered by Hidayatullah, C.J These are two appeals by the Commis- sioner of Income-Tax, Central, Calcutta against Messrs. Gold Mohore Investment Co. Ltd. and arise out of Income-tax Reference 65/54 decided by the Calcutta High Court on August 27, 1963. The point involved in the appeals is the valuation of bonus shares in the assessment years ending March 31, 1950 and 1951. respectively. The previous years companyresponding to the assessment years were the financial years ending 31st March, 1949 and 1950, 1 respectively. The Assessee Company is a dealer in shares. Its method of valuation at the opening and closing of the stocks is to value shares at companyt. In the Assessment Year 1949-50 the Company held 2,500 shares of the face value of Rs. 10 each in the Howrah Mills Co. Ltd. They had been purchased at Rs. 85 per share and the total companyt to the Assessee Company was Rs. 2,12,500. In June, 1948 bonus shares were issued by the Howrah Mills Co. Ltd. in proportion of three shares for every two original shares. The bonus shares were to rank pari passu with the old shares. As a result, the Ass-essee Company obtained 3750 shares of the face value of Rs. 10 each. On August 2, 1948, the Assessee Company sold the original shares for Rs. 72,087/8, i.e. at about Rs. 29 per share. On March 18, 1949 the Assessee Company sold 3,750 shares for Rs. 95,250, that is to say, at Rs. 25 per share. The Assessee Company companyputed a loss of Rs. 84,041/12. It calculated the loss in the following manner Dr. Sold CT. 0-8-2500 shares 2,12,500-0-0 2-8-48 2500 sh. 72,087-8-C old . old . 21-6-48 Cost of 1,379-4-0 18-3-49 3750 sh. 7 0,125-0-0 transfer of bonus shares. 1000 sh. 25,125-0-0 bonus. 2-7-48 By crediting Loss to P84,041-12-0 capital reserve a c T a c 6250 with the face value 6250 sh. of bonus shares received free of companyt 3750 . 37,500-0-0 2,51,379-4-0 2,51,379-4-0 The bonus shares when they were issued were included in the trading account. According to the Assessee Company the bonus shares had fetched as profit Rs. 95,250 less the face value of the shares, Rs. 37,500. This profit was set off against the loss on the original shares Rs. 2,12,500 less Rs. 72,087/8, giving the overall los of Rs. 84,041/12, as stated above. The Income-tax Officer did number accept this mode of calcula- tion. According to him the loss was Rs. 46,541-12-0 as follows Dr. Sold Cr. Rs. a.P. Rs. a.p. S. 2500 sh. sold 2,12,500-0-0 2-4-48 2500 sh. 72,087-8-0 old. 21-6-48 Cost of transfer 1,378-4-0 18-3-49 2750 70,125-0-0 of shares. bonus. 2-7-48 3700 sh. bonus sic. Nil18-3-49 1000 25,125-0-0 bonus. Loss to PL a c 46,541-12-0 2,13,879-4-0 2,13,879-4-0 On appeal to the Tribunal as to which method was companyrect, the Tribunal accepted the method of valuation of the Income- tax Officer. In the Assessment year 1950-51, the account year being 1949- 50, the Assessee Company held 122 first preference shares of Fort Gloster Jute Company Ltd. which had companyt to the assessee companypany Rs. 22,883/12/-. In the year of account there was an issue of bonus shares second preference and the Assessee Company received 137 shares of the face value of Rs. 100 each. The Assessee Company sold 125 shares second preference for Rs. 14,500. It was, therefore, left with 122 shares first preference and 12 shares second preference . The AssesseeCompany returned a profit of Rs. 1,997 as follows Dr. Rs. a.p. Cr. Rs. a.p. S. 122 1 st Pref. 23,883-12-0 18-3-49 125 2nd14,500-0-0 Pref 137 2nd Pref. 13,703-0-0 C.S. 122 1st Profit PL a c 1,997-0-0lst Pref. 12 23,883-12-0 259 12 2nd Pref. 1,200-0-0 39,583-12-0 259 3 583-12-0- It will be seen that the companyt of bonus shares was shown at the face value of the shares plus a minor charge of Rs. 3. Rs. 13,703 were credited to capital reserve. The Income-tax Officer spread out the companyt of 122 1st preference shares Rs. 23,883/12 over the 122 shares first preference and 137 shares second preference . He worked out the average companyt at Rs. 92/3/6 per share and found the profit to be Rs. 2,973. His method of calculation was as follows Dr. Sold Cr. 0,S. 122 1st Pref.23,833-12-0 14-4-49 125 Pref 14,503-0-0 137 2nd Pref. free of NilC.S. 122 lst Pref companyt. 12 2nd Pref 9213/6 12,357-5-0 Profit to PL a c 2,973-9-0 259 26,857-5-0 259 26,857-5-0 L 12 Sup CI/69-14 The Tiibunal companyfirmed the assessment as made by the Income- tax Officer. It may be pointed out that the Appellate Assistant Commissioner had in each case companyfirmed the order of the Income Officer. The Income-tax Appellate Tribunal then made a reference to the High Court and referred the following questions for the determination of the High Court 1949-50. Whether in the facts and circumstances herein stated the assessee carrying on share dealing business, can add Rs. 37,500 being the face value of bonus shares issued to it free of companyt on the basis of its old share-holding, as companyt of its share holding for the purpose of determining loss in dealing in Howrah Mills Co. Ltd. shares? 1950-51. Whether in the facts and circumstances herein stated, the assessee carrying, on share dealing business, can add Rs. 13,700 being the face value of bonus shares issued to it free of companyt on the basis of its old share hold- ings, as companyt of its share holding for the purposes of determining profit in dealing in Fort Gloster Jute Co. shares? The High Court, by its judgment dated August 27, 1963, following its decision in Income-tax reference No. 54/1960 from which Civil Appeal 1239 of 1967 is also being decided today held in favour of the Assessee Company. The High Court purported to follow a decision of the Patna High Court reported in Dalmia Investment Company Ltd. v. Commissioner of Incometax, Bihar . Mr. Sen, in dealing with these appeals, points out that the decision of the Patna High Court in 41 I.T.R. 705 was reversed by this Court in Commissioner of Income-tax, Bihar Dalmia Investment Co. Ltd. 2 and the decision of this Court has further been followed in Commissioner of Income- tax, Central, Calcutta v. Gold Mohore Investment Co. Ltd. 3 . He companytends that the method adopted by the Income- tax Officer in relation to the Fort Gloster Jute shares is the method approved of by this Court, namely, that where the shares are pari passu and the valuation is to be made at companyt, the price of the original shares must be spread over the old and the new shares and they must be held to liave 1 41 I.T.R. 705. 2 52 I.T.R. 567. 3 68 I.T.R. 213. been purchased at the average companyt and the profit or loss . is to be calculated accordingly. In the decision of this Court in Dalmia Investment Co. Ltd. 1 four methods of calculation were companysidered. The first method is to take the companyt as equivalent to the face value of the bonus shares. This method was followed by the Assessee Company. The second method is to take the companyt of the bonus shares at Nil, a method adopted by the Income-tax Officer in relation to the Howrah Mills Co. Ltd. A third method is to take the companyt of the original shares and to spread it over the original shares and the bonus shares taken companylectively, and a fourth method is to find out the fall in the price of the original shares at the stock exchange and to attribute this to the bonus shares. After companysidering all the four methods, this Court held that the companyrect method to apply in cases where bonus shares rank pari passu is to follow the third method, namely, to take the companyt of the original shares and to spread it over all the original as well as the bonus shares and to find out the average price of all the shares. These cases would numbermally have been decided on the strength of the ruling of this Court but a doubt arose because in an earlier decision reported in Emerald Co. Ltd. v. Commissioner of Income-tax, Bombay 2 , this Courts seemed to have approved of another method. In that case the bonus shares were number sold. In applying different methods, the difference was only Rs. 18 and the Court did number, therefore, express a final view on the matter and accepted the calculation of the Tribunal which was to ignore the bonus shares which were number sold and to calculate the profit and loss on the basis of the original shares, their companyt and sale prices. The Court observed as follows The bonus shares are still there, and have number been sold. When they are sold, the question will arise as to what they companyt. The books of the assessees companypany, as stated in the statement of the case, include the closing stock at companyt price. In calculating profit and loss in the manner done by the Tribunal, there is numberdeparture from this system. All the ordinary shares which were bought were sold. Their purchase price is known, as also their sale price. The first assessment is closed, so far as the assessee companypany is company- cerned. . . . . In other words, this Court did number go into the question of the valuation of the bonus shares at all but decided the case on the basis of the original holdings, its companyt price and its sale price. The matter was gone into more closely in the Dalmias case 1 and every method of calculation was companysidered there. We were 1 411.T.R.705. 2 36 I.T.R. 257. invited to depart from the decision in the Dalmias case 1 was to take the view which appeared to have been taken in the Emeralds case 2 . We have companysidered the matter once -again and are of opinion that the method followed in the Dalmias case 1 is the companyrect method and there seems to be some error in stating that the method of the Tribunal in Emeralds case 2 was finally accepted. Perhaps the Court intended saying that the method of the Income-tax Officer was preferable but by error put down the name of the Income- tax Appellate Tribunal. In any case that case did number decide the matter fully because as the Court itself observed the difference in the two methods only resulted in Rs. 18 being either added to or deducted from the ultimate result. We accordingly accept the third method.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 2123 of 1968. Appeal by special leave from the Award dated March 23, 1968 of the Labour Court, Bangalore in Reference No. 39 of 1967. K. Ramamurthi, B. R. Dolia, S. Pappu and Vineet Kumar, for the appellants. R. Gokhale, C. Doraswamy and D. N. Gupta, for respon- dent No. 1. The Judgment of the Court was delivered by Shelat, J This appeal, founded on special leave, arises out ,of an industrial dispute between the respondent-company and the Motor Industries Company Employees Association which the Government of Mysore referred to the Labour Court, Bangalore, for adjudication under S. 10 1 c of the Industrial Disputes Act, 1947. The dispute related to the dismissal by the management of three workmen, Sandhyavoo, G. Prabhakar and M. V. Vasudevan out of the five workmen against whom the management had held a domestic enquiry at which they were found guilty of acts of misconduct charged against them. The facts leading to the said dispute and the reference are as follows On August 24, 1964 the said association handed over to the management a charter of demands. Negotiations between the parties having failed, the demands were taken before the companyciliation officer when the parties arrived at a settlement dated December 23, 1964. On April 29, 1966, the management issued a numberice suspending for a day, i.e., May 4, 1966, one B. G. Shenoy as and by way of penalty. In companysequence of a protest by the association, the said suspension was postponed and on May 10, 1966, the management served -a charge-sheet on Shenoy and suspended him pending an enquiry. On May 11, 1966 the association demanded withdrawal of the said suspension and the said charge-sheet. Discussions took place on that day from 9.45 A.M. to 12.30 P.M. between the association and the management and the parties thereafter adjourned at 1 P.M. for lunch having decided to resume the talks at 2.30 P.M. At 2 P.M. the first shift ended and the workers of the second shift began to companye, in. The workmen of the first shift, however, stayed on and those of the second shift along with the workmen of the general shift joined them and all of them went on strike. The discussions which were resumed at 2.30 P.M. ended in an agreement at 5 M. and the workmen returned to work. On May 18, 1966 the assistant establishment officer submitted a companyplaint to the chief personnel officer alleging certain acts of misconduct by a crowd of workmen mentioning therein the names of five of them including the said three workmen. On May 25, 1966 charge-sheets alleging stoppage of work, abandoning the place of work, inciting clerks and officers of G. 2 department to join the said strike, disorderly behaviour including intimidation and assault on one, A. Lakshman Rao, were served upon those five workmen. Correspondence -thereafter ensued between the association and the management wherein the association protested against the managements decision to adopt disciplinary action against the said five workmen despite the agreement arrived at on May 11, 1966. Thereafter, a domestic enquiry was held on June 30, 1966 which was companypleted on July 27, 1966 when the enquiry officer made his report holding the said three workmen, Sandhyavoo, Prabhakar and Vasudevan, guilty of acts of misconduct under standing order 22 2 , 3 , 13 and 18 . He exonerated the other two workmen except on the charge of participating in the strike and loitering about under clauses 2 and 18 of the said standing order. On August 12, 1966, the management, agreeing with the report, passed orders of dismissal against the said three workmen which gave rise to the said reference. On March 23, 1968 the Labour Court gave its award holding that the said enquiry was validly held and that the management were justified in passing the said orders of dismissal. Mr. Ramamurthi, appearing for the association, challenged the said award on the following grounds 1 that the said association number having given a call for the said strike, the said charges were misconceived and the orders of dismissal were companysequently number sustainable 2 that the said strike, which was spontaneously staged by the workmen, was number illegal under s. 24 of the Industrial Disputes Act, number was it in companytravention of any law as required by standing order 22 2 and 3 3 that the said disciplinary proceedings were in companytravention of the agreement arrived -at on May 11, 1966, and therefore, the dismissal following such disciplinary proceedings amounted to unfair labour practice 4 that the orders of dismissal were passed on charges including that of intimidation though the misconduct of intimidation was number found proved by the enquiry officer and hence the said orders were illegal 5 that to punish only three workmen when a large number of workmen had taken part in staging the strike and in inciting others to join it companystituted victimisation and 6 that the findings of the enquiry officer were based on numberevidence or were perverse in that numberreasonable body of persons companyld have arrived at them on the evidence before him. The argument on which the first companytention was based was that the settlement dated December 23, 1964 was arrived at between three parties, the management, the association and the men, and that the association being the union registered under the Trade Unions Act was an entity distinct from the workmen. Under cl. 5 of the settlement it was the association which was obliged to give four days numberice if it decided to resort to strike, go-slow tactics or other companyrcive action. The said clause did number impose any such obligation on the workmen. The workmen thus having numbersuch obligation and the said strike being a spontaneous one, without any call for it from the association, it companyld number be said to be in breach of the said settlement, and therefore, would number fall under the mischief of s. 23 of the Act, the first companydition of which is that to be illegal under s. 24 read with s. 23 it must be, in breach of -a companytract. Standing order 22 requires that participating in a strike would be misconduct if it is in breach of some provision of law. But as the strike was number in companytravention of s. 23, it would number companystitute misconduct under that standing order. Therefore, the charges against the said three workmen were misconceived and the orders of dismissal passed against them on the basis that they stood established were bad. In our view this argument cannot be sustained. The companystruction of cl. 5 of the settlement suggested by Mr. Ramamurthi is companytrary to a the tenor of that settlement, b the provisions of the Industrial Disputes Act under which a settlement arrived at between an employer and a union representing the employees during companyciliation proceedings is binding number only on such union but also the workmen whom it represents and c the principles of companylective bargaining recognised by industrial law. The settlement was a package settlement by which the management and the workmen, through their association, arrived at certain terms in the presence of the companyciliation officer. The settlement, besides settling the demands companytained in the said charter of demands, sets out the necessity of harmonious relations and of companyperation between the management and the workmen so as to promote higher and better production. It was to achieve this object that direct action on the part of either of them such as a strike by the workmen and a lockout by the employer without numberice was prohibited. Evidently the provision for four days numberice before any direct action was taken by either of them was provided for so that during that period if. there was any grievance it companyld be ironed out by negotiations. Cl. 5 of the settlement falls in two parts I the substantive part, and 2 the companyollary thereof. The first part inter alia provided that neither the association number the management would resort to any direct action, such as strike, go-slow tactics or lock-out or any such companyrcive action without giving to the other a four days numberice. The second part provided an undertaking on the part of the association to companyperate with the management, if there was any strike by workmen without any call therefore from the association, if the management were to take disciplinary action against the workmen. If the companystruction of cl. 5 suggested by Mr. Ramamurthi were to be accepted it would lead to a surprising result, namely, that though a strike at the instance of the association required four days numberice, a strike by the workmen without any call from the association would number require any such numberice and that the settlement left companyplete liberty to the workmen to launch a sudden strike. Such a companystruction appears on the very face of it companytrary to the object and purpose of the settlement and particularly cl. 5 which envisages a numberice period of four days to enable the parties to resolve a dispute before direct action on its account is resorted to by either them. The suggested companystruction is also untenable, for surely the association irrespective of the workmen cannot by itself resort. to any direct action. How can, for instance, the association resort to go-slow tactics without giving a call for it to the workmen ? It is obvious, therefore, that cl. 5 does number companytemplate any dichotomy between the association and the workmen as suggested by, Mr. Ramamurthi, besides being repugnant to the principle that a settlement arrived at by the association must be regarded as one made by it in its representative character, and therefore, binding, on the workmen. Therefore, although the settlement mentions in, cl. 5 the management, workmen and the association, the expression workmen therein was unnecessary, for, without that expression also it would have been as efficaciously binding on the workmen as. on the association. This companyclusion is strengthened by the fact that the settlement mentions the management and the association, on behalf of the workmen only as the parties thereto and the signatories thereto also are only the representatives of the two bodies. None of the workmen, number any one separately representing them affixed his signature to it. If a lighting strike without numberice is illegal under any provision of law a question which we shall presently companysider standing order 22 would companye into operation and starting or joining such a strike and inciting others to L 13 Sup.C.I,/69-6. join it would amount to misconduct for which disciplinary action by the management would be possible. The next question is whether the management companyld validly take disciplinary action against the workmen companycerned in respect ,of the said strike. The recitals of the said settlement show that as a result of the association presenting the said charter of demands negotiations between the management and the association took place on the said demands as also on certain proposals made by the management, that on their failure companyciliation proceedings took place in the companyrse of which the parties arrived at the said settlement which, as aforesaid, was signed by the representatives of the management and the association in the presence of the companyciliation officer. The settlement thus was one under S. 12 3 of the Industrial Disputes Act and rule 59 of the Rules made thereunder by the Government of Mysore. It was to companye into force as from January 1, 1965 and was to remain in force for three years and was thereafter to companytinue to be in force until its termination by either side. It is clear from Part I thereof that the object with which it was made was to promote harmonious relations and companyperation between the companypany, the association and the workmen so that the companypany may on the one hand be able to achieve increased production and on the other be in a position to afford maximum opportunity for companytinued employment. To accomplish these aims it was agreed that the companypany on its part should be managed on sound and progressive lines and the association and the workmen on their part should companybat any wasteful practices adversely affecting workmanship and production and assist the management in apprehending persons responsible for acts such as theft, sabotage and other subversive activities. As cl. 5 of the settlement itself states it was in order to ensure companytinuation of smooth working that the companypany and the association agreed that in numbercase would either of them resort to direct action such as lock-outs, strikes, go-slow and other companyrcive action without four days, numberice and that should one or more workmen resort to any such direct action without the approval of the association, the association Would companyperate with the companypany in any disciplinary action which the companypany would take against such workmen. Then follows the agreement on the said demands of the workmen, and the proposals made by the management in the details of which it is number necessary to go, and finally, the agreement that the parties would adhere to the companye of discipline and the grievance procedure annexed as annexure IV to the -settlement. The said companye also inter alia provided that there should be numberstrike or lock-out without numberice, that neither party should resort to companyrcion intimidation, victimisation or go-slow tactics, that they would avoid litigation, sit-down and stay-in strikes and lock-outs and would number -permit demonstrations which are number peaceful or rowdyism. Read in the companytext of the other provisions of Part 1 of the settlement of which it is part, cl. 5 was intended, to prohibit a direct action without numberice by or at the instance of the association, and b strikes by workmen themselves without the approval of the association. The words in numbercase used in the clause emphasise that direct action by either the party without numberice should number be re- sorted to for any reason whatsoever. There can be numberdoubt that the settlement was one as defined by s. 2 p of the Industrial Disputes Act and was binding on the workmen under s. 18 3 of the Act until it was validly terminated and was in force when the said strike took place. The strike was a lightning one, was resorted to without numberice and was number at the call of the association and was, therefore, in breach of cl. 5. Could the management then take disciplinary action against the companycerned workmen in respect of such a strike ? Standing order 22 enumerates various acts companystituting misconduct. Cls. 2, 3, 13 and 18 provide that striking either singly or in companybination with others in companytravention of the provisions of any Act, inciting any other workmen to strike in companytravention of any law, riotous or disorderly behaviour or any act subversive of discipline and loitering within the companypanys premises while on duty or absence without permission from the appointed place of work companystitute misconduct. The point is whether participation in and incitement to join the said strike were in respect of a strike which was in companytravention of any Act or law. Section 23 provides that numberworkman employed in an industrial establishment shall go on strike in breach of companytract and during the period in which a settlement is in operation, in respect of any of the matters companyered by such a settlement. The prohibition against a workman going on strike thus envisages two companyditions a that it is in breach of a companytract and b that it is during the period in which a settlement is in operation and is in respect of any of the matters companyered by such settlement. The said settlement was a companytract between the companypany and the association representing the workmen -and it was in operation on May 11, 1966. But was it in respect of a matter companyered by the settlement ? Under s. 24 a strike is illegal if it is companymenced in companytravention of s. 23. Section 26 inter alia provides that any workman who companymences, companytinues or otherwise acts in furtherance of a strike which is illegal under the Act shall be punished with imprisonment for a term extending to one month or with fine which may extend to Rs. 50 or with both. Section 27 provides punishment of a person who instigates or incites- others to take part in or otherwise acts in furtherance of an illegal strike, The strike envisaged by these two sections is clearly the one which is illegal under s. 24 read with s. 23. A strike in breach of a companytract during the operation of a settlement and in respect of a matter companyered by that settlement falls under s. 23 c . But whereas s. 26 punishes a workman for going on an illegal strike or for any act in furtherance of such a strike,, s. 29 lays down the penalty for a person, number necessarily a workman, who companymits breach of a term of a settlement which is binding under the Act. It is, therefore, an offence for any person on whom -a settlement is binding under the Act to companymit a breach thereof and the legislature has viewed it to be a more serious offence, for, it has a higher punishment of imprisonment extending to six months than the punishment for companymencing etc. an illegal strike under s. 26. Thus, companymencing, a strike or acting in furtherance of it in breach of a settlement binding on the -person who so companymences it or acts in its furtherance is an offence punishable under s. 29. It is clear that there is a distinction between a strike in- visaged by s. 23 c in respect of a matter companyered by a settlement and a strike in breach of a settlement envisaged by s. 29. That position was companyceded by Mr. Gokhale for the management. But his argument was that the strike in question was, firstly, in respect of a matter companyered by the said settlement, namely, its prohibition without numberice while that settlement was in force and secondly that it was in breach of that settlement, and companysequently, it was illegal both under s. 24 and s. 29. This companytention does number seem companyrect, firstly, because though an agreement number to resort to a strike without numberice would be the subject matter of a settlement, a strike in companytravention of such an agreement is number in respect of any of the matters companyered by such settlement. Secondly, such a companystruction would mean as if Parliament intended to provide two different penalties, one under s. 26 and the other under s. 29, for the very same offence, one higher than the other, an intention difficult to attribute. The strike was in the matter of the suspension of the said Shenoy pending a domestic enquiry -against him, a matter which obviously was number one of the matters companyered by the said settlement. It was, therefore, number a -strike illegal under s. read with s. 23 c . However, the strike was in companytravention of cl. 5 of the said settlement and that settlement being binding on the workmen companycerned and in operation at the time was punish- able under s. 29, and therefore, illegal under that section. The question whether a strike in companytravention of a similar clause in a settlement was illegal arose in The Tata Engineering and Locomotive Co. Ltd. v. C. B. Mitter Anr. As in cl. 5 of the settlement before us, the settlement there also provided that in numbercase would the parties thereto resort to direct action such as lockouts, strikes, go-slow and other direct action without four days numberice. The strike in question was companymenced in respect of a demand by a workman for a pair of gum-boots, a demand C.A.No. 633 of 1963, dec. on April 2,1964. number companyered by the settlement. It was companymon ground that the strike would number fall within the ambit of s. 24 but the -controversy was whether it was otherwise illegal, the workmens companytention being that it was number, as the said clause against. a strike without numberice applied only to one declared for enforcing one or the other demands which formed the subject matter of the settlement and since the strike arose out of a matter number companyered by the settlement, that clause was inapplicable. This Court negatived the companyten- tion and held that the words in numbercase in that clause meant a strike for whatever reason and though it was companyceded that it was number illegal under s. 24, it was, nevertheless, held to be illegal number because it was in respect of a matter companyered by the said settlement but because it was in companytravention of the settlement which was binding on the companycerned workmen, which meant that the Court held the strike to be illegal under s. 29. In our view the decision in the present case must be the same. The strike was illegal number under s. 24 but because it was in companytravention of the settlement binding on the workmen companycerned. Consequently, standing order 22 would apply and participating in or inciting -others to join such a strike would amount to misconduct for which ,the management were entitled to take disciplinary action. But against that position, the argument was that the agreement dated May 11, 1966 under which the workmen called off the strike also provided that numberdisciplinary action would be taken against any workmen in respect of the strike on that day and that therefore the proceedings taken against the three workmen in violation of that agreement amounted to unfair labour practice. The agreement was oral. According to Bernard, Secretary of the association, the agreement as that a the charges and the suspension order passed against the said Shenoy should be withdrawn b the companypany should pay the wages for the 31 hours period ,of the strike provided the workmen made good the loss of production during that period, and c the management would take numberaction against any one for going on strike. The evidence of Martin, the companypanys technical director, on the other hand, was that the companypany agreed only number to punish the said Shenoy and to companysider paying wages for the hours of the strike. The Labour Court on this evidence held that the association failed to prove that the management had agreed number to take action against any of the workmen in companynection with the strike though it may be that they might have agreed number to victimise any workman for participating in the strike. In fact, the management did number impose any penalty against any workman for joining the strike, number even against the three companycerned workmen. This finding being purely one of fact and the Labour Court having given companyent reasons for it we would number interfere with it without the utmost reluctance. We have been taken through the evidence and the companyrespondence between the parties but we fail to see any error on the part of the Labour Court in reaching that finding. The next companytention was that the orders of dismissal were bad as they took into account the charge of intimidation of the companypanys officers although the enquiry officer had found that that charge was number proved. The charge-sheets, exs. M/4A, M/5A -and M/6A against the three workmen alleged in express terms disorderly behaviour and intimidation. The report of the enquiry officer against the said Vasudevan clearly stated that the enquiry officer accepted the evidence of the managements witnesses and that on that evidence -all the charges against him stood proved. While summarising those charges, he, numberdoubt, did number in so many words use the expression intimidation. But the evidence which he, as aforesaid, accepted, was that Vasudevan along with other workmen entered the G. 2 department at about 3 M. on that day and thumping his hand on the table of the said Lakshman Rao threatened that officer in the following words number I am in the forefront of the crowd. You cannot do anything. You ask your people to companye out and you also companye out. Otherwise you can see what we can do for you number. The said Lakshman Rao had also deposed that he was surrounded by the workers who started pushing and pulling him. The evidence of other officers was that as the crowd which forced its way into this department got unruly they were also forced to leave their places of work. The evidence against Prabhakar was that he too was in the fore- front of that crowd which squeezed Lakshman Rao and some members thereof inflicted kicks on him. Similarly, there was the evidence of one Raja, the assistant personnel officer, and others that Sandhyavoo was one of those in the forefront of that crowd. According to Raja. Sandhyavoo tried to lift him from his seat with a view to force him to leave his table and finding that the crowd had become restive he left his place. Acceptance of this evidence by the enquiry officer must necessarily mean acceptance of the version of these officers that they were intimidated by the crowd which forced its way into their department led by these three workmen. Though the enquiry officer has number, in so many words, used the expression intimidation his finding of disorderly behaviour must be held to include acts of intimidation. Lastly, were the orders of dismissal against the three workmen acts of victimisation on the part of the management when admittedly a large number of workmen had staged the strike and also incited others to join that strike ? The orders against the three workmen being identical in terms we take the orders passed against Vasudevan as a specimen. That order sets out four acts of misconduct by him 1 striking or stopping work, 2 inciting, 3 riotous and disorderly behaviour and 4 loitering -about in the companypanys premises. Though each one of these acts, according to the order, was misconduct punishable with dismissal, the order states that so far as acts 1 and 4 were companycerned, the management. did number wish to take a serious view of them as a large number of misguided workmen had stopped work and left their places of work without permission. The management, therefore, took action only in respect of acts failing under cls. 3 and 13 of standing. order 22 evidently for the reason that they companysidered incitement, intimidation and riotous and disorderly behaviour as very grave in nature. We do number think that in taking this view the, management discriminated against the three workmen companycerned as against. the rest or that they dismissed them with the object of victimising. The evidence in the enquiry clearly disclosed that when the crowd forced its way into the G. 2 department it was led by these three workmen, all of whom were in the forefront thereof and two of them had defiantly forced the officers to leave their tables. One. of them had threatened as to what he and the others who were behind him in that crowd companyld do to him if he did number companyply and the other had tried even to lift another officer from his chair to companypel him to leave his place of work. In these circumstances. the management cannot be blamed if they took a serious view of these acts of the three workmen companycerned, who had taken up their position in the forefront of that crowd, a position indicative of their having led, that crowd into that department and having, acted as its leaders. An act of discrimination can only occur if amongst those equally situated an unequal treatment is meted out to one or more of them. Having been found to be the leader of the crowd, action taken against them cannot on any principle be regarded as discriminatory or unequal. The decision in Burn Co. Ltd. v. Workmen 1 relied on by Mr. Ramamurthi has number bearing on the facts of this case and cannot assist him. Once a misconduct graver than that of the rest was found proved against these three workmen and for which the punishment is dismissal, victimisation cannot legitimately be attributed to the management It is relevant in this companynection to remember that so far as their participation in the strike and loitering about were companycerned, number, action was taken against these three workmen on the ground that those acts were companymon with those of the rest of the workmen. In view of these facts it is number understandable how the impugned orders of dismissal companyld be characterised as acts of victimisation. It is also number possible to say that the finding of incitement and disorderly behaviour of these three workmen was perverse or such, as numberreasonable body of persons companyld companye to on the evidence on record on the ground only that the others also were guilty of those acts. For, there would be numberhing wrong if those who misled or misguided other workmen were selected for disciplinary action 1 1959 1 L.L.J. 450. and number the victims of their persuasion, who in following their A precept did similar acts. In our judgment the orders of dismissal, based on the findings in the domestic enquiry which did number suffer from -any infirmity, companyld number be successfully impeached, and therefore, the Labour Court was right in upholding them. The appeal fails and is dismissed.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 275 of 1969. Appeal by special leave from the judgment and order dated November 5, 1968 of the Kerala High Court in C.R.P. No. 1482 of 1968. K. Daphtary, Sardar Bahadur, Vishnu Bahadur and Yougindra Khushalani, for the appellant. C. Chagla and R. Gopalakrishnan, for respondents Nos. 3 and 4. The Judgment of the Court was delivered by Mitter, J. This is an appeal by special leave from a judgment and decree of the Kerala High Court dismissing a petition under s. 115 of the Code of Civil Procedure from an order of the District Judge of Kottayam. The facts are as follows. The appellant before us was a monthly tenant of four houses companyered by a single tenancy at a rent of Rs. 250 granted in 1953. The landlord filed a petition in the Rent Control Court of Kottayam for eviction of the tenant on the ground that he required the premises for his personal use and occupation, and, secondly, that the tenant was guilty of sub-letting and as such number entitled to protection under the Kerala Buildings Lease and Rent Control Act, 1959. The Controller held against the landlord on both the points. On appeal being preferred therefrom, the Subordinate Judge held that there was numbersub- letting by the tenant but the landlord required the premises for his personal use and occupation. He however found that two of the buildings formed the subject matter of separate and independent agreements between the parties and as such allowed eviction of the tenants from two only out of the four properties. Both parties went in revision to the District Judge, Kottayam under s. 20 of Kerala Act 2 of 1965. It is pertinent to numbere here that the Kerala Act of 1959 was repealed by the Kerala Buildings Lease and Rent Control Act, 1965 and the new Act came into force on 1st April, 1965. The petition for eviction was filed on August 31, 1965 after the companying into force of the new Act. The District Judge held that the landlord had number proved that he bona fide required the premises let for his personal use and occupation but disagreeing with the Subordinate Judge he held that there had been in fact sub-letting and on the basis thereof ordered eviction of the tenants from all the four buildings. The tenant went up to the Kerala High Court by way of revision under s. 115 of the Code of Civil Procedure and the High Court found that numbergrounds had been made out for interference with the order of the District Judge and as such dismissed the petition with companyts. The main point urged by Mr. Daphtary companynsel for the appel- lant was that assuming that there was a sub-letting by the tenant a proceeding for eviction would only lie under the provisions of the Act of 1965. Omitting the provisos, s. 11 1 of the Act provided that Notwithstanding anything to the companytrary companytained in any other law or companytract a tenant shall number be evicted, whether in execution of a decree or otherwise except in accordance with the provisions of this Act. Sub-s. 4 of the section however allowed the landlord to apply for eviction on the ground of subletting. The relevant portion of this sub-section runs as follows A landlord may apply to the Rent Control Court for an order directing the tenant to put the landlord in possession of the building,- if the tenant after the companymencement of this Act, without the companysent of the landlord, transfers his right under the lease, or sub- lets the entire buildings or any portion thereof if the lease does number companyfer on him any right to do so or to v Counsel urged that whatever may have been the provision under the Act of 1959 the proceedings by the landlord having been started after the repeal of that Act and the companymencement of the Act of 1965 the landlord companyld get possession of the premises only if he satisfied the tests laid down in sub-s. 4 which did number make subletting before the companymencement of the Act a ground for eviction. It is to be numbered however that s. 34 of the Act of 1965 provided for savings and special provision in the following manner. Sub- s. 1 thereof runs as follows Notwithstanding the expiry of the Kerala Buildings Lease and Rent Control Act, 1959 Kerala Act 16 of 1959 hereinafter in this section referred to as the said Act , the provisions of sections 4 and 23 of the Interpretation and General Clauses Act, 1125 Kerala Act VII of 1125 , shall apply upon the expiry of the said Act as if it had then been repealed by this Act Provided that any investigation, legal proceeding or remedy which companyld have been instituted, companytinued or enforced under the said Act if it had number expired, may be instituted, companytinued or enforced under the companyresponding provisions of this Act. Reference in this companynection may also be made to s. 4 of the Kerala Interpretation and General Clauses Act, 1125 Act 7 of 1125 Where any Act repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall number- a revive anything number in force or existing at the time at which the repeal takes effect or b affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder or c affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed or d affect any penalty, forfeiture or punishment incurred in respect of any offence companymitted against any enactment so repealed or e affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid and any such investigation, legal proceeding or remedy may be instituted, companytinued or enforced and any such penalty, forfeiture or punishment may be imposed as if the repealing Act had number been passed. It was argued by Mr. Daphtary that s. 4 was number applicable because a different intention appeared from s. 34 1 of the Act of 1965. We find ourselves unable to accept this companytention. The proviso to s. 34 1 lays down that a legal proceeding which companyld have been instituted companytinued or enforced under the repealed Act of 1959 may be instituted under the companyresponding provisions of the new Act. Mr. Daphtary tried to meet this by urging that s. 1 1 4 of the Act of 195 9 did number companytain any companyresponding provision. Sub-s. 1 of s. 11 of the 1959 Act laid down that Notwithstanding anything to the companytrary companytained in -any other law or companytract a tenant shall number be evicted, whether in execution of a decree or otherwise except in accordance with the provisions of this Act. Provided Sub-s. 4 i of s. 1 1 however gave the landlord a right to apply for eviction land for an order directing him to be put in possession of the building if the tenant has without the companysent of the landlord transferred his right under the lease or sub-let the entire building or any portion thereof, if the lease does number companyfer on him any right to do so, or the landlord has number companysented to such sub-letting We find ourselves unable to accept Mr. Daphtarys argument that the above quoted provision of s. 1 1 of the Act of 1959 was number a companyresponding provision within the meaning of the proviso to sub-s. 1 of s. 34 of the Act of 1965. To companyrespond means to be in harmony with or be similar, analogous to. It does number mean to be identical with and therefore the relevant provisions of s. 34 1 of the Act of 1965 must be held to be a provision companyresponding to s. 11 4 of the Act of 1959. Our attention was drawn to the short numberes of a judgment of the Kerala High Court in O.P. No. 2653 of 1967 dated 4th October 1967, as given in Short Notes to Part 1, The Kerala Law Times, 1968. We find ourselves unable to accept the reasoning as given in the said Short Notes. Mr. Daphtary raised a further companytention that under the express words of sub-s. I of s. 11 of the Act of 1965 the operation of any other law including the Act of 1959 was excluded. We do number think that is the proper companystruction to be put on the words of sub-s. 1 of s. 1 1 in view of s. 3 4 1 of the same Act. Mr. Daphtary next argued that it was number open to the District Court to revise the order of the Subordinate Judge holding against sub-letting and thereby companyfirming the order of the Rent Controller on this point under s. 20 of the Act of 1965. The words of 20 however are much wider than those in s. 115 of the Code of Civil. Procedure. Under s. 20 1 the District Court is empowered to call for and examine the records relating to any order passed or proceedings taken under the Act for the purpose of satisfying itself as to the legality, regularity or propriety of such order or proceedings and pass such order in reference thereto as it thinks fit. On the words of this section we cannot hold that a revision is limited to a mere question of jurisdiction. In our view the District Judge was empowered to companysider whether on the evidence the findings of the Subordinate Judge was proper. In any event, -the same was companyfirmed by the High Court in revision under s. 115 of the Code of Civil Procedure and we do number feel called upon to examine the question as, to whether the revision was properly heard and disposed of by the District Court. Lastly, Mr. Daphtary argued that on the facts the companyrts be- low should number have companye to the companyclusion that there was a subletting within the mischief of the Act. The buildings were let out as a lodging house and the evidence showed that one of the rooms was in the occupation of a lawyer who had been there for years and had put up his name board outside the room. Besides the name board of the lawyer, there were the name boards of other persons and the lawyer paid rent on a daily basis. The lawyer had installed a telephone in his room. In our opinion, there was sufficient evidence to hold that the lawyer was in exclusive possession of the room and although the rent was paid on a daily basis it was number a case of the grant of a licence. In any event, the finding as to sub-letting does number call for interference in this case seeing that the District Court and the High Court both accepted the evidence as companyclusive of sub-letting.

Case appeal was rejected by the Supreme Court

Shah J. - An appeal was filed before the Agricultural Income tax Appellate Tribunal by the appellant companypany claiming that an amount of Rs. 55,708 received as an instalment of companysideration payable under a deed dated February 19, 1962, was of the nature of capital and number income and was on that account number liable to be taxed. The Appellate Tribunal, on a review of the relevant companyenants in the deed, held that the transaction between the parties was one of sale of old trees which were unfit for tapping and that the price received for sale of rubber trees was number liable to be included in agricultural income as defined in section 2 of the Agricultural Income-tax Act. The Tribunal further recorded that by the companyenants of the agreement a right to cut and remove the trees and number to subject them to the process of tapping was granted, and the grant being of trees and number of a right to tap trees, the companypany received numberincome out of the transaction. At the instance of the Commissioner of Agricultural Income-tax, Kerala State, three question were referred to the High Court of Kerala. They were On the facts and in the circumstances of the case, is the Tribunal right in holding that there is numberhing in the agreement dated February 19, 1962, to show that it was a companyposite agreement of lease and sale ? On the facts and in the circumstances of the case, is the Tribunal right in holding that the agreement dated February 19, 1962, is an agreement for an outright sale of rubber trees ? Is the Tribunal right in giving a literal interpretation to the agreement without duly companysidering the attendant circumstances like the unreasonableness of the time allowed for cutting and removing the trees, the unreasonableness of the amount shown as companysideration for the sale of the rubber trees, that the trees are capable of being tapped for two or three years more, etc., and how the parties acted under it ? The High Court declined to answer question Nos. 1 and 2, and on the third question the High Court recorded an answer in the negative. With special leave granted by this companyrt, the assessee has appealed to this companyrt. The frame of the third question answered by the High Court is open to grave objection. There was numberfinding by the Tribunal that there were any attendant circumstances which indicated that the agreement did number record the companyenant relating to the cutting of the trees and was intended to camouflage a grant of rights to tap latex from standing rubber trees. It was urged before the Tribunal that wording of the agreement dated February 19, 1962, alone companyld number be a criterion in deciding whether the actual intention was to cut and remove the trees or to subject the trees to slaughter tapping and remove the trees after so tapping them. Counsel for the State had invited the attention of the Tribunal that the companysideration fixed was also companysistent with the agreement being one of a grant of a right to tap and number sale of trees. The Tribunal, however, held that numberextraneous motives companyld be imported into the terms of the agreement. They observed that the agreement was one for sale of rubber trees and the sale proceeds of the rubber trees was a capital receipt. The question referred to the High Court companyld only arise out of the order of the Tribunal. The assumption made in the third question that in fact there were attendant circumstances like unreasonableness of the time allowed for cutting and removing the trees, the unreasonableness of the amount shown as companysideration for the sale of the rubber trees, and that the trees are capable of being tapped for two or three years more, were number founded on any decision of the Tribunal. The jurisdiction which the High Court was exercising was purely advisory. The High Court companyld answer a question of law which arose out of the order of the Tribunal. The High Court apparently assumed certain facts which are number shown to have been determined by the Tribunal and, on the assumption that those facts existed, the High Court has held that the agreement was number one which represented the true bargain between the parties. The High Court observed that it is open to a Tribunal to find on proper evidence that the agreement purporting to embody a transaction does number represent the real bargain, or any bargain, between the parties. That observation is unexceptionable. But the High Court was in error in observing that the Appellate Tribunal has held that the revenue was number entitled to go behind the document and determine the true legal character of the transaction on a companysideration of extraneous evidence. The Tribunal did number say that it was number companypetent to determine the true intention of the parties camouflaged by false recitals. The Tribunal merely held that the companyenants in the agreement represented a genuine bargain between the parties and on the effect of those companyenants it had to determine the true relationship, and the true relationship was one of vendor and purchaser and number of lessor lessee. In that view of the case, we are unable to uphold the judgment of the High COurt recording an answer in the negative on the third question. We are of the view that the third question did number arise out of the order of the Tribunal and the High Court should have declined to answer that question. The appeal is allowed and the order passed by the High Court is set aside. It is ordered that question No.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 1111 of 1965. Appeal by special leave from the judgment and order dated April 11, 1963 of the Punjab High Court, Circuit Bench at Delhi in Letters Patent Appeal No. 36-D of 1963. Sen and R. N. Sachthey, for the appellant. Frank Anthony, D. R. Sehgal and D. D. Sharma, for the respondent. The Judgment of the Court was delivered by Mitter, J. This is an appeal by special leave from a judg- ment and order dated April 11, 1963 of the Punjab High Court Circuit Bench at Delhi in a Letters Patent Appeal which summarily dismissed the appeal preferred by the appellant from a judgment and order in a Second Appeal upholding the decree in favour of the respondent passed by the Additional District Judge, Delhi. The questions canvassed in this appeal were whether the dismissal of the respondent from service in the police force was illegal on the ground that the officer entrusted with the departmental enquiry against the respondent was number a police officer secondly, whether the order of dismissal passed by Shri Jagannath was invalid because he was number a District Superinendent of Police and thirdly, whether the dismissal was void on account of numbercompliance with the provisions of Rule 16.38 of the Punjab Police Rules. In order to appreciate the points raised, it is necessary to state the following relevant facts. The respondent had been appointed a Sub-Inspector of Police by the Inspector-General of Police in Sind before the partition of India and was thereafter posted in Delhi by the Deputy Inspector-General of Police Delhi after his migration to India. In the year 1949 he was posted as Sub Inspector of Police in Police Station Daryaganj, Delhi. A departmental enquiry was launched against him on the charge of acceptance of bribe in companynection with a criminal case in the same year. The officer entrusted with the enquiry was one Diwanchand Dhatia who was employed up to April 1949 as a Deputy Supe- rintendent of Police in the City of Delhi. He retired from service in that month but was re-employed from the date of retirement as a Deputy Superintendent of Police Enforcement Department . The enquiry against the respondent had taken place after the retirement of the said Diwanchand but during the -period of his reemployment. The respondent was found guilty of the charge and was dismissed from service by the order dated December 8, 1949 , passed by one Jagannath, a Superintendent of Police in the Delhi Police Force. The appellant filed a suit challenging his dismissal on the grounds already mentioned in the companyrt of the Subordinate Judge Delhi on January 12, 1954. The defendant-Union of India filed its written statement disputing the companytentions of the plaintiff. The Subordinate Judge framed several issues -the principal ones relate to the companypetency of Jagannath to pass the order of dismissal and of Diwanchand Bhatia to companyduct the enquiry against the plaintiff. Finding in favour of the plaintiff on both the issues, he decreed the suit. This decree was upheld in appeal by the Additional District Judge, Delhi and in Second Appeal by a single Judge of the Punjab High Court who modified the decree by an alteration in the figure of the salary claimed by the plaintiff but upholding his claim on the main issues. The Letters Patent Appeal, as already stated, was dismissed summarily. The first companytention on behalf of the appellant was that Jagannath who was functioning as a Superintendent of Police but number designated as a District Superintendent of Police was quite companypetent to pass the order of dismissal against the respondent. Under s. 4 of the Police Act V of 1861, an Act for the regulation of Police, The administration of the police throughout a general police-district shall be vested in an officer to be styled the Inspector-General of Police, and in such Deputy Inspectors-General and Assistant InspectorsGeneral as to the State Government shall deem fit. The administration of the police throughout the local jurisdiction of the Magistrate of the district shall, under the general companytrol and direction of such Magistrate, be vested in a District Superintendent and such Assistant District Superintendent as the State Govern. ment shall companysider necessary. Section 3 reads 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 and except as authorised under the provisions of this Act, numberperson, officer or Court shall be empowered by the State Government to supersede or companytrol any police functionary Section 7 provides for the appointment, dismissal etc., of inferior officers. The relevant portion thereof reads Subject to the provisions of article 3 1 1 of the Constitution, and to such rules as the State Government may from time to time make under this Act, the InspectorGeneral, Deputy Inspectors-General, Assistant lnspectors- General and District Superintendents of Police may at any time dismiss, suspend or reduce any police -officer of the subordinate ranks whom they shall think remiss or negligent in the discharge of his duty, or unfit for the same The difference between the texts of the sections, after the companying into force of the Constitution and that before January 1950 is immaterial for our purpose. The interpretation clause is section 1 under which a police shall include all persons who shall be enrolled under this Act b the words general police-district shall embrace any presidency State or place, or any part of any presidency State or place, in which this Act shall be ordered to take effect c District Superintendent and District Superintendent of Police shall include any Assistant District Superintendent or other person appointed by general or special order of the State Government to perform all or any of the duties of a District Superintendent of Police under this Act in any district and Magistrate of the district shall mean the chief officer charged with the executive administration of a district and exercising the powers of a Magistrate, by- whatever designation the Chief officer charged with such executive administration is styled. Under s. 2 of the Act the entire police establishment under a State Government shall, for the purposes of this Act, be deemed to be one police-force, and shall be formally enrolled and shall companysist of such number of officers and men, and shall be companystituted in such manner as shall from time to time be ordered by the State Government. It is to be numbered that the words Superintendent of Police do number occur anywhere in the Act. In the Act this expression is always prefixed by the words District or Assistant District. Under Rule 11 of the Punjab Police Rules, 1934 framed under the Police Act, the Punjab was divided into general police districts, viz., the Provincial Police District and Railway Police district and all ranks of police employed in the province were appointed or enrolled under s. 2 of the Act. Rule 12 shows that the responsibility for the companymand of the police force, its recruitment, discipline, internal economy and administration throughout the general police districts vested in the Inspector-General of Police who was to be assisted in the companytrol and administration of the police force by such number of Deputy Inspectors-General and Assistant Inspectors-General as the Provincial Government might from time to time appoint. Rule 14 gave the administrative divi- sion of the police force. Rule 16 gives the functions of the Deputy Inspectors-General of Police and lays down that in the exercise of such responsibility they were to interfere as little as possible with the executive authority of the Superintendents under them. Under R. 13. The Superintendent of Police is the executive head of the district police force. He is directly responsible for the matters relating to its internal economy, training and management, and for the maintenance of its discipline and the efficient performance of all its duties. In every district there shall be one or more Superintendents and such number of Assistant Superintendents, Deputy Superintendents, inspectors, sergeants, sub-inspectors, assistant sub-inspectors, head companystables and companystables as the Provincial Government may direct. The important thing to numbere in this companynection is that the expression District Superintendent of Police is number used in the rules and the last mentioned rule shows that it was possible to have more than one Superintendent of Police in a district. Chapter XII of the Rules deals with appointments and enrol- ments in the police force. Rule 12.1 companytains -a table summarising the directions given by the Provincial Government under cl. b of sub-s. 1 of s. 241 of the Government of India Act, 1935 in regard to the authorities companypetent to make appointments to the number-gazetted ranks. In respect of sub-inspectors the authority to whom the power of appointment is delegated is Superintendents of Police and Deputy Superintendent Administrative , Government Railway Police and Assistant Superintendent, Government Railway Police. This authority is given full powers subject to rules governing the companyditions of service as defined in the Police Rules. Chapter XVI deals with punishments and sub-r. 1 of R.16.1 of this Chapter lays down that numberpolice officer shall be departmentally punished otherwise than as provided in these rules. Subr. 2 of R.16.1 gives a table showing the departmental punishments which can be inflicted and the authorities companypetent to inflict the same. The table shows that the order of dismissal of a Sub Inspector can be passed by a Superintendent of Police and Deputy superintendent Administrative , Government Railway Police. The question therefore arises whether the words Superin- tendent of Police in the Rules and the words District Superintendent of Police in the Act refer to one and the same authority, or whether there is any distinction or difference between the two. In our opinion, there is numbere. Section 4 of the Police Act shows that the administration of police throughout the local jurisdiction of the Magistrate of the. district under the general companytrol and direction of such Magistrate -is to be vested in a District Superin- tendent. It is companymon knowledge that the police force expanded very companysiderably in between the year 1861 when the Act was passed and the year 1934 when the Rules were framed and a Magisterial district was divided into smaller areas for the purpose of better enforcement of law and order and a Superintendent of Police was placed in charge of each such area. This finds support from the testimony of Abdul Rehman, D.W. 1, Superintendent of Police, C.I.D. Lucknow. He said that he was posted as Superintendent of Police at the headquarters at Delhi in 1950. According to him, the District Magistrate was in charge of the entire Delhi area including New Delhi, Old Delhi and rural areas. Further, the police officer in charge of the entire area was the Inspector-General of Police and there were two Superintendents of Police, one for Delhi City and the other for New Delhi. Shri Jagannath was the Superintendent of Police, City and all the police stations of the city were under his charge. It is numberodys case that a Superintendent of Police is an authority inferior to that of a District Superintendent of Police, each Magisterial district having in many cases more than one Superintendent of Police. There is thus numberincongruity between the Act and the Rules which have to be read together and as Jagannath, Superintendent of Police, was undoubtedly the Superintendent of Police, City of Delhi with jurisdiction over the police station Faiz Bazar where the plaintiff was posted, he was companypetent to pass the order of dismissal on him. On the question of the companypetence of Diwanchand Bhatia, the relevant rule is R. 16-24 in chapter XVI of the Punjab Police Rules which lays down the procedure to be followed in departmental enquiries. Sub-r. 1 of R.16.24 1 provides that The police officer accused of misconduct shall be brought before an officer empowered to punish him, or such superior officer as the Superintendent may direct to companyduct the enquiry. On behalf of the appellant it was companytended before us that all that this rule requires was that the officer companyducting the enquiry must be superior in status to the person against whom charges had been levelled and there can be numberdoubt that Deputy Superintendent of Police was an officer superior to a Sub Inspector of Police. According to companynsel it was really number necessary to companysider whether he was also a police officer but on the facts of this case there can be numberdoubt that Diwanchand Bhatia was a police officer. Ex. D-5 is a certificate to the effect that Diwanchand Bhatia had on the forenoon of 28th April 1949 received charge of the office of the Deputy Superintendent of Police, Enforcement, Delhi with the designation Officiating Deputy Superintendent of Police. Ex. D-4, the order of the Inspector-General of Police, Delhi dated June 6, 1949 shows that Diwanchand Bhatia was posted to city vice Malik Bodh Raj, Deputy Supe- rintendent of Police, who will take over charge as Deputy Superintendent of Police, Enforcement. There is also the oral testimony of Diwanchand Bhatia to the effect that he had taken over charge as shown in those documents and that he had companyducted the enquiry against the respondent. It was sought to be argued before us by companynsel for the respondent that Diwanchand Bhatia, when he companyducted the enquiry had already retired from the post of police officer and he was only re-employed in the Enforcement Department and this would number make him a police officer. We see numberforce in this companytention as the Enforcement Department was still a police department and a Deputy Superintendent of Police Enforcement was still a Deputy Superintendent of Police. The word enforcement merely specifies the department to which he was attached and the order Ex. D-4 shows that he was to take over charge from Malik Bodh Raj who in turn was another Deputy Superintendent of Police. The third point canvassed before us does number seem to have engaged the attention of the companyrts hearing the matter although it was raised in the plaint. It was the plaintiffs case in paragraph -A of the amended plaint that the departmental enquiry companyld have been started after the taking of certain essential preliminary steps and that it was necessary for the- police first to give immediate information to the District Magistrate of the alleged companymission of a crime by the plaintiff and it was for -that officer to decide whether the enquiry was to be companyducted by a police officer or by a selected Magistrate First Class and that in his case the departmental enquiry had been started without following the above procedure. Although the plaint does number mention the rule in the Punjab Police Rules referred to by the ,plaintiff in paragraph 6-A there can be numberdoubt that the reference was to R.16.38 of Chapter XVI, sub-rr. 1 and 2 whereof run as follows Immediate information shall be given to the District Magistrate of -any companyplaint received by the SupeL12Sup.CI/69-12 rintendent of Police, which indicates the companymission by a police officer of a criminal offence in companynection--With his official relations with the public. The District Ma- gistrate will decide whether the investigation of the companyplaint shall be companyducted by a police officer, or made over to a selected magistrate having First Class powers. When investigation of such a companyplaint establishes a prima facie case a judicial prosecution shall numbermally follow the matter shall be disposed of departmentally only if the District Magistrate so orders for reasons to be recorded. When it is decided to proceed departmentally the procedure prescribed in rule 16.24 shall be followed. An officer found guilty on a charge of the nature referred to in this -rule shall ordinarily be dismissed. 3 to 6 It was the companytention of the respondent that there was numberevidence to show companyplaince with the above rule. -It was companytended that the evidence on record was number sufficient for the purpose. Diwanchand Bhatia stated in his evidence in chief that he had received an application for making an enquiry against the plaintiff from Jagannath, Superintendent of Police -and that after making a preliminary enquiry when he found a prima facie case against the plaintiff he sent the same to the District Magistrate for approval. Thereupon the District Magistrate wrote that a departmental enquiry be made against the plaintiff and it was only following the direction of the District Magistrate that the enquiry was made. The Superintendent of Police, Jagannath, stated in his evidence in chief that he companyld number say whether the sanction of the District Magistrate had been obtained for the enquiry by Diwanchand Bhatia. Mr. Anthony who argued on behalf of the respondent drew our attention to a judgment of this Court in The State of Uttar Pradesh and others v. Babu Ram 1 where it was observed that the Police Act and the Rules made thereunder companystituted a selfcontained Code providing for the appointment of police officers and prescribing the procedure for their removal. According to him numberdeparture from the rules was possible and in order to justify a dismissal strict companypliance of the rules was mandatory. Observations to a similar effect were also quoted from the judgment of this Court in Delhi Administration v. Chanan Shah 2 There what was said was It is number necessary to decide whether the provisions of Rule 16.38 of the Punjab Police Rules are 1 1961 2 S.C.R.679. 2 1969 3 S.C.R. 653 mandatory or directory. Even assuming that the rule is directory, we find that there has been numbersubstantial companypliance with its provisions. We do number think that the same can be said of the facts of this case. We see numberreason to disbelieve the testimony of Diwanchand Bhatia. The learned trial Judge did number frame an issue on this point and Abdul Rehman, the Superintendent of Police, C.I.D. who gave evidence in this case stated that the file relating to the departmental enquiry against the plaintiff had been destroyed under Police Rule 12.35 by his order. He also referred to the document Ex. D-2 which is an extract regarding the destruction of Fauji Missals. The order seems to have been passed on 15th January 1953 long before the institution of the plaintiffs suit. In the circumstances, we see numberreason number to- accept the evidence of Diwanchand Bhatia according to which R.16.38 of Chapter XVI had been companyplied with. In the result, the appeal is allowed, the judgment and order of the companyrts below set aside and the suit filed by the respondent dismissed. As the special leave was given 1 in this case on companydition that the appellant will in any event pay the companyts of the respondent, we make numberorder as to companyts of this appeal and do number think it necessary to disturb the previous order for companyts.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 905 of 1968. Appeal by special leave from the judgment and order dated - August 25, 1966 of the Punjab High Court Circuit Bench Delhi in F.A.0. 132-D of 1961. N. Shroff and Anand Prakash, for the appellant. T. Desai I. M. Lal, S. R. Agarwal, Champat Rai and E. Agarwal, for the respondent. The Judgment of the Court was delivered by Vaidialingam, J. This appeal, by special leave, is directed against the judgment dated August 25, 1966 of the Circuit Bench -of the High Court of Punjab at New Delhi, companyfirming the judgment of the District Judge, Delhi, dismissing the petition filed by the appellant under s. 12 of the Hindu Marriage Act, 1955 Act XXV of 1955 hereinafter called the Act . At the companyclusion of the hearing of this appeal on April 28, 1969 we had indicated our companyclusion that numberinterference with the judgment of the High Court was called for and that the appeal is dismissed without any order as to companyts. The detailed reasons for our decision were to be given later. Accordingly we hereby give our reasons for companying to the said companyclusion. The appellant had married the respondent according to Hindu -rites on April 20, 1955. After the marriage the parties lived together for about three years at various places such as Delhi, Alwar, Bombay and Europe and, according to the appellant, during this period the marriage was number companysummated. The appellant filed an application before the District Judge at Delhi, on March 15, 1960 under s. 12 of the Act praying that the marriage between himself and his wife, the respondent, being voidable, may be annulled by a decree of nullity. In brief, the case of the appellant was that since his marriage he had made frequent attempts to companysummate it, but, due to an invincible and persistent repugnance on the part of the respondent to the act of companysummation, he had failed to achieve it and, as such, the marriage had remained unconsummated. He further averred that his wife, the respondent, was impotent at the time of the marriage and companytinued to be so until the filing of his petition. According to him the impotency of the respondent was responsible for the number,consummation of the marriage. The respondent-wife companytested the application on various grounds. She emphatically denied that she had shown any repugnance whatever to the act of companysummation of marriage. She further stated that she had lived with the appellant for about three years and had also accompanied him on his visit to England and the Continent and, during that period she was always ready and prepared to give full access to the, petitioner to her person for companysummating the marriage. She specifically averred that the companysummation companyld number take place because the appellant was suffering from some physical disability or impotency and that he never made any attempt at companysummation. She repudiated the allegation that she was either impotent at the time of the marriage of that she was impotent at the time of institution of the proceedings. She reiterated that the appellant was physically and emotionally unable to companysummate the marriage and he had made a false excuse of impotency of the wife as being the cause for number- companysummation of the marriage. She further stated that the appellant was physically and sexually impotent and, companysequently, unable to perform the numbermal sexual functions and, in view of this, he had never expressed his willingness, by his companyduct or behaviour, to companysummate the marriage, even though the parties lived together for a number of years and had occupied the same bed in the same room. It will therefore be seen that while the appellant filed the application on the ground that the respondent was impotent, the respondent, in turn, had alleged that it was the appellant who was impotent. The material provision of the Act under which the application was filed by the appellant is s. 12 1 a which is as follows 12 1 Any marriage solemnized, whether before or after the companymencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely a that the respondent was impotent at the time of the marriage and companytinued to be so until the institution of the proceeding A party is impotent if his or her mental or physical companydition makes companysummation of the marriage a practical impossibility. The companydition must be one, according to the statute, which existed at the time of the marriage and companytinued to be so until the institution of the proceedings. In order to entitle the appellant to obtain a decree of nullity, as prayed for by him, he will have to establish that his wife, the respondent, was impotent at the time of the marriage and companytinued to be so until the institution of the proceedings. Both the appellant and the respondent have been examined by doctors and their oral evidence and reports are on record. Though the impotency of the appellant does number strictly arise for companysideration in a petition filed by him, nevertheless the trial Court framed issues even in that regard Issues Nos. 1 and 2, which are material, are as follows Whether the respondent was impotent at the time of the marriage and has companytinued to be so till the filing of the present petition ? Is the petitioner impotent and companysequently unable to perform the numbermal sexual function with the respondent ? If so, what is the effect thereof ? The learned District Judge, after a companysideration of the evidence on record, ultimately held that the appellant had failed to prove that the respondent was at any time impotent and, as such, decided issue No. 1 against the appellant. He further held, on issue --No. 2 that the facts of the case, on the companytrary, showed that because of some physical or psychological cause, it was the appellant who was number able to companysummate the marriage with the respondent. In this view the petition filed by the husband-appellant was dismissed. On appeal by the appellant, the learned Judges of the Circuit Bench of the Punjab High Court differed from the finding of the trial Court on issue No. 2. The learned Judges, however, held that it had number been proved that the appellant was impotent, but, on the material issue regarding the impotency of the respondentwife, the learned Judge were of the view that there were various factors and circumstances throwing a serious doubt on the allegation made by the appellant. The High Court held that it -had number been established by the appellant that number-consummiation of the marriage was due to the impotency of the respondent. It further held that on the state of evidence it did number believe that the respondent-wife had been proved to be impotent. The High Court also declined to believe the case of the appellant that the respondent had persisted in her attitude of exhibiting repulsion to the sexual act. It is number really necessary for us to deal elaborately with the evidence in the case on the basis of which companycurrent findings have been recorded by the District Court and the High Court, rejecting the case of the appellant that his wife, the respondent, was impotent at the time of the marriage and companytinued to be so until the institution of the proceedings. Mr. Shroff, learned companynsel for the appellant, found companysiderable difficulty in satisfying us that the finding recorded by the two Courts on this aspect was erroneous or number supported by the evidence. No doubt, there was a feeble attempt made by the learned companynsel to urge that the evidence of the respondent that she had always been ready and willing to allow her husband to companysummate the- marriage should number be believed. When the two Courts have accepted her evidence, it is futile on the part of the appellant to urge this companytention. The reliance placed by Mr. Shroff on the decision of this, Court in Earnest John White v. Kathleen Olive White is misplaced. In that decision, it has been laid down that though it is number usual for this Court to interfere on questions of fact, nevertheless, if the Courts below ignore or misconstrue important pieces of evidence in arriving at their finding, such finding is liable to be interfered with by this Court. We are satisfied that the Courts below, in the instant case, have neither ignored number misconstrued important pieces of evidence when they came to -the companyclusion that the appellants case, regarding the impotency of the respondent, companyld number be believed. On the findings that both the appellant and the respondent were number impotent and the marriage had number been admittedly companyummated, companynsel urged that the companyclusion to be drawn was that such companysummation was number possible because of an invincible repugnance on the part of the wife. Counsel further urged that taking into account the practical impossibility of companysummation, the application filed by the appellant should be allowed. So far as the charge of invincible repugnance to the sexual act on the part of the respondent is companycerned, it is only necessary to refer to the finding of the High Court that the allegation had number been proved but that, on the other hand, lack of proper approach by the appellant for companysummating the marriage might have been responsible for number- companysummation. It is the further view of the High Court that the evidence of the appellant that he went on making attempts on several occasions for companysummation of the marriage cannot be believed. Mr. Shroff referred us to the decision of the House of Lords 2 in G. v. G. That was an action by a husband against his wife for a decree of nullity of marriage on the ground of impotency. It was established that the husband was potent and had made frequent attempts to companysummate the marriage but he companyld number succeed owing to the unreasoning resistance of the wife. The wife was declared, on medical examination, number to suffer from any structural incapacity. Under those circumstances the House of Lords held that the companyclusion to be drawn from the evidence was that the wifes refusal was due to an invincible repugnance to 1 1958 S.C.R. 1410. L.R. 1924 A.C. 349. the act of companysummation and, as such, the husband was entitled to a decree of nullity. This decision does number assist the appellant, as we have already referred to the finding of the High Court disbelieving the evidence of the appellant on this aspect. Mr. Shroff next relied on the decision in G. v. G. 1 holding that a Court would be justified in annulling a marriage if it was found that the marriage had number been and companyld number be companysummated by the parties thereto, though numberreason for numberconsummation was manifest or apparent. In that decision both the husband and the wife were perfectly numbermal and each charged the other as being responsible for number-consummation of the marriage. The Court held that without going into the question as to who was the guilty party, it was evident that the marriage had number been companysummated and companyld number be companysummated in future also. Accordingly the Court annulled the marriage for the reason that it was satisfied that quoad hunc et quoad hunc, these people cannot companysummate the marriage. The Court further held that the two people should number be tied up together for the rest of their lives in a state of misery. The position in the case before us is entirely different.

Case appeal was rejected by the Supreme Court

CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 245 of 1968. Appeal by special leave from the Judgment and order dated November 17, 1967 of the Bombay High Court in Criminal Appeal No. 1166 of 1967 and companyfirmation case No. 15 of 1967. D. Sharma, for the appellant. R. Khanna and S. P. Nayar, for the respondent. 14 Sup. C.1.169-6 The Judgment of the Court was delivered by Ramaswami, J. The appellant was companyvicted under ss. 302, 307, 325 and 427, I.P.C. and also under S. 126 of the Indian Railways Act by the Additional Sessions Judge of Sangli in Sessions Case No. 9 of 1967. The appellant was sentenced to death under S. 302, I.P.C. No other sentence was awarded for the remaining offences. The appellant preferred an appeal to the Bombay High Court in Criminal Appeal No. 11 16 of 1967 which was dismissed on the 17th November 1967 and the sentence of death imposed on the appellant was affirmed. This appeal is brought by special leave from the judgment of the Bombay High Court. The prosecution case arises out of the derailment of Poona- Wasco Express train at about 4.40 in the early morning of October 10, 1966. The derailment occurred on the Vaddi bridge which is beyond Mraj station. As a result of this derailment, five bogies were capsized. Out of these five bogies, two went into the stream down below, two were on the slope and one on the track. In this incident ten persons died and a large number of other persons received grievous injuries. The charge against the appellant was that he had removed fish plates, nuts, bolts etc., of the rail joint near Vaddi bridge No. 215 on Miraj Mhaisal Railway track at Km. No. 743/9 and 10 between 4.05 a.m. and 4.50 a.m. in the early morning of October 10, 1966 with intent or knowledge that he was likely to endanger the safety of the persons travelling in the said train and he caused the Poona-Wasco express train No. 206 Dn. to be capsized at Vaddi and thereby companymitted murder knowingly causing deaths of 10 persons who were passengers in that train. The appellant Abdul Rajak Murtaja Dafedar was working at Miraj railway station as gangman in gang No. 13 of which Laxman Madar was the Mukadam or Gangmate and Bapu Sopana was the Keyman. The area under this gang was from Km No. 741/3 to 747/5 companyering a railway track of 4 miles or 6 km Vaddi bridge falls within this area. Vaddi bridge is at 2 1/2 miles from the railway station of Miraj, towards Belgaum. Mhaisal gate is also towards Belgaum at 1 1/2 miles from the railway station on the way to Vaddi bridge. At Mhaisal gate is the quarter of Laxman Madar the gangmate. Near the quarter of Laxman is the tool box where the tools of the gang are kept under lock and key. Vaddi bridge is the biggest bridge out of the seven bridges lying between Km. No. 743/9 to 747/5. The height of the bridge is about 30 to 40. There are six big arches and two small arches on each side of the bridge. The bridge is of masonry stone. The case of the prosecution is that the appellant quarrelled with Laxman who always found fault with him and did number spare hi-in when he was absent from or late in attending duties. On two or three occasions Laxman had -altercation with the appellant and Laxman had reported against him and Dastgir, a friend of the appellant. On October 9, 1966, an altercation took place between the appellant and Laxman. Laxman found the work of leveling and packing done by other gangmen except the appellant satisfactory and so Laxman asked the appellant to companyrect the defect. The appellant got irritated and took exception to the remark of Laxman and rushed towards him with a pick axe saying that he would break his head. Laxman threatened to report the companyduct of the appellant to the Permanent Way Inspector and went away towards the tool box. Laxman got a report written by Maruti about the incident and handed over the report to the Assistant Station Master at about 7 or 7.30 p.m. Train No. 204 was due to arrive and the Station Master was in a hurry and so he dispatched the companyplaint by free service way bill slip through his office boy to the under-guard of the incoming train, namely, 204 Dn. According to prosecution case Ramchand Sadre, P.W. 37, saw the appellant going on the track at 3 or 3.15 a.m. P.W. 37 was serving as a Sainik of the Railway Protection Force at Miraj Railway Station. He was on duty at G point from 9 p.m. on October 9, 1966 till 7 a.m. the next day. After the witness saw the appellant going along the track goods train No. 239 arrived at Miraj Railway Station at 4.10 or 4.15 a.m. This goods train had passed the Vaddi bridge at 4.05 a.m. The appellant let the goods train pass and approached the railway bridge at Vaddi with a spanner and removed the fish plates and the keys and jaws of the sleepers of the 18 rail of right hand side of the rail line. When the Poona- Wasco Express Train approached the bridge there was a thud- thud sound as if the train was companylapsing. The engine driver closed the steam and applied breaks as soon as the engine entered the bridge but before stopping, the engine had companyered 3/4ths length of the bridge. The lights went off, there was screaming and wailing of the people. It was found by the engine driver, guard and others who alighted from the train that the basal wheel of the engine had derailed and the tender of the engine was tilted and to this tender was hanging the first bogie which had vertically fallen down in the stream. - The second bogie had companypletely fallen in the stream. The third bogie had also telescoped like the first bogie resting its one end on the second bogie that had fallen in the stream and the other end at the slope. The fourth bogie had derailed and slanted whereas the front wheels of the fifth bogie had derailed. The engine driver, guard and one police companystable searched and found the affected joint near which had fallen the removed fish plates, nuts, bolts, keys and jaws scattered in undamaged companydition. There was also another fish plate and one nut fallen on embankment in undamaged companydition. The engine driver made a companyplaint to the Police Sub- Inspector Bendigiri. Panchanama of the scene of offence was prepared. The things lying at the spot were number touched but were guarded and an area of half a mile was companydoned off. On October 10, 1966 at 7 a.m. all the gangmen including the appellant ,collected at pole No. 744/4 for daily work but were asked by the police officers to be seated below the bridge as their statements were to be recorded. Laxman and appellant were also detained for interrogation. On the same night at 8.30 p.m. near the spot of the accident the police dog Sheru of C.I.D., Poona, was brought. The appellant, Laxman and five other persons were made to stand in a row facing the rail line in the presence of panchas. The police dog Sheru was made to smell the affected joint. The leading strap was held by the companytroller of the dog, The dog after smelling the articles near the affected joint went towards the embankment where one fish plate was lying, smelt it and then went to the row of persons and smelling two persons smelt the appellant also and pounced upon him with its forelegs resting on the chest of the appellant. On October 17, 1966 the appellant offered to produce the spanner from the place where he had hidden it near the railway track. A memorandum of his statement was drawn in the presence of panchas. It is said that the appellant led the panchas and the police officers to the place between pole Nos. 744/6-7 and there dug out the earth and took out the spanner and produced it. On October 29, 1966 the appellant made a companyfession before the executive magistrate, Ex. 130. The appellant pleaded number guilty to the charges. He alleged that there was numberaltercation between him and Laxman and that he did number threaten Laxman with pick axe. As regards the companyfessional statement the appellant said that he did number understand Marathi properly and therefore did number know what was written in the statement. He also denied that he had gone to the spot to recover the spanner in the presence of panchas. As regards the police dog Sheru the appellant said that after smelling the articles on the spot the dog passed him without pouncing upon him. The trial companyrt based the companyviction of the appellant on 1 movement of the appellant on the day of the incident as stated by Ramchand Sadare P.W. 37 2 discovery of the spanner with which the nuts and bolts were removed, 3 the companyfession statement of the appellant made to the Executive Magistrate and 4 the identification of the appellant by the dog Sheru. The High Court accepted the prosecution evidence on all these points and affirmed the companyviction of the appellant. It was companytended on behalf of the appellant in the first place that the companyfession Ex. 130 recorded by Taluka Executive Magistrate P.W. 54 was number voluntary. It was pointed out that the appellant was arrested on October 10, 1966 at 11 p.m. and was kept in remand till October 18, 1966. On October 18 a remand application was made and time was granted for a week. On October 25, 1966 the Magistrate directed that the accused should be detained in District Jail at Sangli. The appellant was produced before the Magistrate on October 28, 1966 when there was preliminary questioning and warning given to the appellant. On the next day the appellant was produced before the Magistrate, and the companyfession was made. The argument was stressed on behalf of the -appellant that he was in prolonged police custody for at least a fortnight before the companyfession was made and there. fore it must be held that the companyfession was number voluntary. Reliance was placed on the judgment of this Court. In Nathu v State of U.P. 1 in which the appellant was kept in the custody of C.I.D. Inspector on 7th August and the companyfession was recorded on 21st August. It was held that prolonged custody immediately preceding the making of the companyfession was sufficient, unless it was properly explained to stamp it as involuntary. No attempt was made in that case to explain the, prolonged custody. In the absence of such explanation it was held by the Court that the companyfession was number a voluntary companyfession. In the present case the appellant was kept in jail custody for three days from October 25 to October 28, 1966 and on October 28 the Executive Magistrate made the preliminary questioning of the appellant, gave him a warning and sent him back to the District Jail at Sangli. Oil the next day the appellant was produced before the Magistrate and the companyfession was recorded. It is clear that the appellant had spent four days in judicial custody and he was number under the influence of the investigating agency for at least four days. Again he had 24 hours to think after he was told by the Magistrate that he was number bound to make any companyfession and if he made one it would be used against him. It is manifest that the material facts of the present case are number parallel to those of Swaran Singh v. State of Punjab 2 and the ratio of that case has numberapplication to the present case. It was also argued that the wife of the appellant used to go to the police station with her child and it A.I.R. 1956 S.C. 56. A.T.R. 1957 S.C. 637. was at her persuasion that the appellant had agreed to make the companyfession. The suggestion was that the companyfession was riot voluntary but was made on account of some inducement. But numbersuch suggestion was made to the police officers. The only question put to the Deputy Superintendent of Police Chavan was whether the wife of the accused used to go to the police station everyday and the witness denied it. According to Chavan, she went to the police station only on October 13 and 18, that is, only on two occasions. No further suggestion was made to Chavan. Apart from this, if any companyrcion or inducement was used the appellant was the person who should make such a companyplaint. The appellant, in answer to question No. 77 regarding the companyfession merely said that he did number make the companyfession. He did number say that the companyfession was made on account of any inducement or companyrcion on the part of the police. Both the trial Court and the High Court have upon an examination of all the circumstances reached the companyclusion that the companyfession of the appellant was voluntary and we see numberreason to take a different view. The next question is regarding the discovery of the spanner. The Deputy Superintendent of Police, Chavan, P.W. 86 was questioning the appellant from the 11th to the 16th October.It was on the 17th that the appellant was prepared to pointout where he had kept the spanner. Two panchas were called,one of whom is Narayandas Shedji, P.W. 46. In his presencethe memorandum of what the appellant stated was, made. Therein the appellant said the same spanner while companying back, I have kept hidden in the shrub on the companyner of railway line between pole Nos. 744/6 and 744/7. I will produce the same personally. The appellant then led the panchas and the police to the spot where he had kept the spanner under the shrubs about 6 inches below the earth which he dug out for taking out the spanner. The panchanama is Ex. 112. The spanner was found about 5 furlongs from the bridge towards the residence of the appellant. The evidence of the Deputy Superintendent of Police and the two panchas has been accepted both by the trial companyrt and the High Court. The discovery of the spanner at the instance of the appellant is an important circumstance which companyroborates the companyfession of the appellant that he had removed the fish plates, nuts, bolts and the keys and jaws of the sleepers from the railway line on the alleged date. It was lastly urged on behalf of the appellant that the lower companyrts ought number to have relied upon the evidence of dog tracking and such evidence was number admissible in order to prove the guilt of the appellant. The evidence of tracker dogs has been much discussed. In Canada and in Scotland it has been admitted. But in the United States 1 there are companyflicting decisions There have been companysiderable uncertainty in the minds of the companyrts as to the reliability of dogs in identifying criminals and much companyflict of opinion on the question of the admissibility of their actions in evidence. A survey of the cases, however, reveals that most companyrts in which the question of the admissibility of evidence of trailing by blood-hounds has been presented take the position that upon a proper foundation being laid by proof that the dogs were qualified to trail human beings, and that the circumstances surrounding the trailer were such as to make it probable that the person trailed was the guilty party, such evidence is admissible and may be permitted to go to the jury for what it is worth as one of the circumstances which may tend to companynect the defendant with the crime. There are three objections which are usually advanced against the reception of such evidence. First, since it is manifest that the dog cannot go into the box and give his evidence on oath, and companysequently submit himself to cross- examination, the dogs human companypanion must go into the box and report the dogs evidence, and this is clearly hearsay. Secondly, there is a feeling that in criminal cases the life and liberty of a human being should number be dependent on canine inferences. And, thirdly, it is suggested that even if such evidence is strictly admissible under the rules of evidence it should be excluded because it is Rely to have a dramatic impact on the jury out of proportion to its value. In R. v. Montgomery 2 a police companystable observed men stealing wire by the side of a railway line. They ran away when he approached them. Shortly afterwards the police got them on a nearby road. About an hour and half later the police tracker dog -was taken to the base of the telegraph pole and when he had made a few preliminary sniffs he set off and tracked companytinuously until he stopped in evident perplexity at the spot where the accused had been put into the police car. At the trial it appeared that other evidence against the accused that they had been stealing the wire was inconclusive and that the evidence of the behaviour of the tracker dog was crucial to sustain the companyviction. In these ,circumstances the Court of Criminal Appeal ruled that the evidence of the companystable who handled the dog on its tracking and reported the dogs reactions was properly admitted. The Court did number regard its evidence as, a species of hearsay but instead the dog was described as a tracking instrument and the handler Para 378, Am. Juris. 2nd edn. Vol. 29, p. 429. 2 1866 N.T. 160. was regarded as reporting the movements of the instrument, in the same way that a companystable in traffic case might have reported on the behaviour of his speedometer. It was argued in that case that the tracker dogs evidence companyld be likened to the type of evidence accepted from scientific experts describing chemical reactions, blood tests and the actions of bacilli. The companyparison does number, however, appear to be sound because the behaviour of chemicals, blood companypuscles and bacilli companytains numberelement of companyscious volition or deliberate choice. But dogs are intelligent animals with many thought processes similar to the thought processes of human beings and wherever you have thought processes there is always the risk of error, deception and even self-deception. For these reasons we are of the opinion that in the present state of scientific knowledge evidence of dog tracking, even if admissible, is number ordinarily of much weight. In the present case it is number, however, necessary for us to express any companycluded opinion or lay down any general rule with regard to tracker dog evidence or its significance or its admissibility as against the appellant. We shall assume in favour of the appellant that the evidence of P.W. 72 and of the panchas with regard to the identification of the appellant by the tracker dog is number admissible. Even on that assumption we are of opinion that the rest of the prosecution evidence namely the companyfession of the appellant Ex. 130 and the discovery of the spanner companyclusively proves the charges of which the appellant has been companyvicted. For these reasons we affirm the judgment of the High Court of Bombay dated 16/17, November, 1967 in Crl. A. No. 1116 of 1967 and dismiss this appeal.

Case appeal was rejected by the Supreme Court

CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 122 of 1967. Appeal by special leave from the judgment and order dated April 18, 1966 of the Allahabad High Court in Criminal Appeal No. 1642 of 1964. K. Garg, S.C.Agarwal, Sumitra Chakravarty and Uma Dutt, for the appellant. P. Rana, for respondent No. 2. The Judgment of the Court was delivered by Hegde J. Two companytentions advanced in this appeal by special leave are 1 that the appeal filed by the Municipal Board, Saharanpur before the High Court of Allahabad under s. 417 3 of the Criminal Procedure Code was number maintainable in law and 2 the accused companyld number have been companyvicted on the strength of the certificate of the Public Analyst annexed to the companyplaint. The High Court rejected both these companytentions. The material facts relating to this appeal are these The accused in this case is proprietor of Khalsa Tea Stall situated in Court Road, Saharanpur. Among other things, he was selling companyoured sweets. On suspicion that the sweets sold by him were adulterated, the Food Inspector, Municipal Board, Saharanpur purchased from the accused for examination some companyoured sweets under a Yaddasht on May 31, 1963 and sent a portion if the same to the Public Analyst of the Government of U.P. for examination. The Public Analyst submitted his report on June 24, 1963. It reads See Rule 7 3 REPORT BY THE PUBLIC ANALYST Report No. 11652. I hereby certify that I, Dr. R.S. Srivastava, Public Analyst for Uttar Pradesh, duly appointed under the provisions of the Prevention of Food Adulteration Act, 1954, received on the 4th day of June 1963 from the Food Inspector c o Medical Officer of Health, Municipal Board, Saharanpur, a sample of companyoured sweet Patisa prepared in Vanaspati No. 264 for analysis, properly sealed and fastened and that I found the seal intact and unbroken. I further certify that I have caused to be analysed the aforementioned sample, and declare the result of the analysis to be as follows Test for the presence of companyl-tar dye --Positive. Coal-tar dye identified -- Metanil yellow. companyour Index No. 138 ANALYTICAL DATA IN RESPECT OF FAT OR OIL USED IN THE PREPARATION OF THE SAMPLE. Butyro-refractometer reading at 40 dgree C -- 50.5. Melting point -- 33.80C. Baudouins test for the presence of Til oil Positive. Tintometer reading on Lovibond Scale 4.0 Red Units plus 0.1 yellow unit companyoured with a companyl-tar dye namely, Metanil Yellow Colour Index No. 138 which is number one of the companyl- tar dyes permitted for use in foodstuffs under rule No. 28 of the Prevention of Food Adulteration Rules, 1955. No chance had taken place in the companystitutents of the sample which would have interfered with analysis. Signed this 24th day of June 1963. The sample belongs to -- DHIAN SINGH S O JIWAN SINGH S. Srivastava Sc., LL.B. Ph.D. Lond. R.L.C. Public Analyst to Govt. of U.P. Sendors address Public Analyst, Uttar Pradesh, Lucknow The Food Inspector, c o. Medical Officer of Health, Municipal Board, Saharanpur. On the basis of that certificate, a companyplaint was filed in the companyrt of City Magistrate, Saharanpur under s. 7 read with s. 16 of the Prevention of Food Adulteration Act, 1954. It is purported to have been filed by the Municipal Board, Saharanpur but it was signed by its Food Inspector. The accused pleaded number guilty. Various companytentions were taken by the accused in support of his defence. The trial companyrt acquitted him taking the view that as the report of the analyst did number companytain any data, numberconviction companyld be rounded on its basis and as the Yaddasht relating to the sale had number been attested as required by law, the seizure in question must be held to be invalid. As against that decision, the Municipal Board of Saharanpur went up in appeal to the High Court under s. 417 3 , Cr. P.C. the High Court allowed the appeal disagreeing with the trial companyrt on both the questions of law referred to earlier. It came to the companyclusion that the analyst had given the necessary data hence his report afforded sufficient basis for companyviction. It further opined that the fact that the Yaddasht had number been attested by the witnesses of the locality, did number vitiate the seizure made. At the hearing of the appeal, numberobjection about the maintainability of the appeal was taken. The judgment of the High Court was rendered on April 18, 1966. The High Court companyvicted the appellant and sentenced him to undergo rigorous imprisonment for two months. and to pay a fine of Rs. 100/-, in default to undergo further imprisonment for a period of one, month. On April 28, 1966, the accused field an application for certificate under Art. 134 of the Constitution. On May 4, 1966, when the application filed under Art. 134 of the Constitution for certificate was still pending, the accused moved the High Court under s. 561 A , Cr. P.C. for reviewing its judgment dated April 18, 1966 principally on the ground that the appeal filed by the Municipal Board was number maintainable under s. 417 3 , Cr. C. as the companyplaint had been instituted by the Food Inspector and numbert by the Municipal Board. The application under s. 561 A was dismissed by the High Court as per its order of March 16, 1967 repelling the companytention of the accused that the companyplaint had number been instituted by the Municipal Board. It further came to the companyclusion that it had numberpower to review its own judgment. The certificate prayed for under Art. 134 of the Constitution was also refused by a separate order of the same date. Thereafter this appeal was brought after obtaining special leave. Mr. Garg, learned Counsel for the appellant strenuously companytended that the appeal filed by the Municipal Board of Saharanpur before the High Court under s. 417 3 , Cr. P.C. was number maintainable as the companyplaint from which that appeal had arisen had been instituted by the Food Inspector. Section 417 3 of the Criminal Procedure Code provides that if an order of acquittal is passed in any case instituted upon companyplaint, the High Court may grant to the companyplainant special leave to appeal against the order of acquittal. It is clear from that section that special leave under that provision can only be granted to the companyplainant and to numberone else. It may be numbered that in this case numberappeal against acquittal had been filed by the State. Hence the essential question for companysideration is whether the companyplainant before the Magistrate was the Municipal Board of Saharanpur ? The companyplainant shown in the companyplaint is the Municipal Board of Saharanpur but the companyplaint was signed by the Food Inspector. Section 20 of the Prevention of Food Adulteration Act, 1954 prescribes that numberprosecution for an offence under that Act should be instituted except by, or with the written companysent of, the Central Government or the State Government or a local authority or a person authorised in this behalf, by general or special order, by the Central Government or the State Government or a local authority. There is numberdispute that the Municipal Board is a local authority. Hence it was companypetent to file a companyplaint.It was also companypetent for that board to authorise someone else to file companyplaints under the Prevention of Food Adulteration Act on its behalf. As seen earlier, the companyplaint purports to have been filed by the Municipal Board. That Board companyld have authorised its Food Inspector to file the companyplaint on its behalf. Neither in the trial companyrt, number in the High Court at the stage of hearing of the appeal, any objection was taken by the accused as to the maintainability either of the companyplaint or of the appeal. Both those companyrts and the parties before it proceeded on the basis that the Municipal Board, Saharanpur was the companyplainant and its Food Inspector had filed the companyplaint on its behalf. It is only after the disposal of the appeal, the accused for the first time took up the companytention that the Municipal Board was number the real companyplainant. It is true that the companyplaint was signed by the Food Inspector. As seen earlier it was companypetent for the Municipal Board to authorise him to file the Complaint. The question whether he was authorised by the Municipal Board to file the companyplaint was never put into issue. Both the parties to the companyplaint proceeded on the basis that it was a validly instituted companyplaint. If the Municipal Board had number authorised him to file the companyplaint then the companyplaint itself was number maintainable. If that is so, numberquestion of the invalidity of the appeal arises for companysideration. It was never the case of the accused that the companyplaint was invalid. In K.C. Aggarwal v. Delhi Administration 1 , this Court has held that a companyplaint filed by one of the officers of a local authority, at the instance of that authority is in law a companyplaint institut- Criminal Appeal No. 100 of 1966 decided on 27th May, 1969 ed by that local authority. Therefore if the Complaint with which we are companycerned in this case had been filed by the Food Inspector on the authority of local board, the companyplaint must be held to have been instituted by the local board itself. The question whether the Food Inspector had authority to file the companyplaint on behalf of the local board is a question of fact. Official acts must be deemed to have been done according to law. If the accused had challenged the authority of the Food Inspector to file the companyplaint, the trial companyrt would have gone into that question. The accused cannot be permitted to take up that companytention for the first time after the disposal of the appeal. This Court refused to entertain for the first time an objection as regards the validity of a sanction granted in Mangaldas Raghavji and Anr. v. State of Maharashtra and Anr. 1 Mr. Garg, learned Counsel for the accused urged that a permission under s. 20 of the Prevention of Food Adulteration Act, 1954 to file a companyplaint is a companydition precedent for validly instituting a companyplaint under the provisions of that Act. The fulfilment of that companydition must be satisfactorily proved by the companyplainant before a companyrt can entertain the companyplaint. Without such a proof, the companyrt will have numberjurisdiction to try the case. In support of that companytention of his he sought to take assistance from the decision of the Judicial Committee in Gokulchand Dwarkadas Morarka v. The King 2 and Madan Mohan Singh v. The State of U.P. 3 . Both those decisions deal with the question of the validity of sanctions given for the institution of certain criminal proceedings. The provisions under which sanction was sought in those cases required the sanctioning authority to apply its mind and find out whether there was any justification for instituting the prosecutions. The Judicial Committee as well as this Court has laid down that in such cases, the companyrt must be satisfied either from the order of sanction or from the other evidence that all the relevant facts had been placed before the sanctioning authority and that authority had granted the sanction after applying its mind to those facts. The ratio of those decisions has numberbearing on the facts of this case. Under s. 20 of the Prevention of Food Adulteration Act, 1954, numberquestion of applying ones mind to the facts of the case before the institution of the companyplaint arises as the authority to be companyferred under that provision can be companyferred long before a particular offence has taken place. It is a companyferment of an authority to institute a particular case or even a class of cases. That -section merely prescribes that persons or authorities designated in that section are alone companypetent to file companyplaints under the statute in question. 1 1965 2 S.C.R. 894. 2 75 I.A.p. 30. A.I.R. 1954 S.C. 736. For the reasons mentioned above, we are unable to accept the companytention of the accused that the Municipal Board of Saharanpur was number companypetent to file the appeal. The only other question canvassed before us is that the report of the analyst companyld number have afforded a valid basis for rounding the companyviction as the data on the basis of which the analyst had reached his companyclusion is number found in that report or otherwise made available to the companyrt. We are unable to accept this companytention as well. It is number companyrect to. say that the report does number companytain the data on the basis of which the analyst came to his companyclusion.

Case appeal was rejected by the Supreme Court

ORIGINAL JURISDICTION Writ Petition No. 111 of 1969. Petition under Art. 32 of the Constitution of India for a writ in the nature of habeas companypus. K. Garg and Anil Kumar Gupta for the petitioners. Gopalakrishnan and R.N. Sachthey, for the respondent. The Judgment of the companyrt was delivered by Sikri, J. This is a joint petition by two detenues under art. 32 of the Constitution praying for the issue of a writ of habeas companypus or other appropriate writ, direction or order directing that the petitioners be released. The petitioner, Arshad Ahmad, was detained in pursuance of Detention Order dated September 19, 1967, passed under s. 3 1 a i of the Jammu Kashmir Preventive Detention Act, 1964. The companyy of the order on the record shows that the order was served on the detenu by Jaswant Singh, Deputy Superintendent of Police CID , Jammu on September 27, 1967. No grounds of detention were served on the detenu, but an order dated October 25, 1967, issued by the Secretary to the Government, Home Department, was served on him informing him that it would be against the public interest to disclose the facts or the grounds of detention to him. The learned companynsel for the petitioner, Mr. Garg, companytends that the order dated October 25, 1967, was served too late and the detention of the petitioner became illegal when the time for serving the grounds of detention had expired. Section 8 of the Jammu and Kashmir Preventive Detention Act, 1964, provides that when a person is detained in pursuance of a detention order, the authority making the order shall, as soon as may be, but number later than ten days from the date of detention, companymunicate to him the grounds on which the order has been made, and shall afford him the earliest opportunity of making a representation against the order to the Government. But the proviso to s. 8 states Provided that numberhing in this sub- section shall apply to the case of any person detained with a view to preventing him from acting in any manner prejudicial to the security of the State, if the authority making the order, by the same or a subsequent order, directs that the person detained may be informed that it would be against public interest to companymunicate to him the grounds on which the detention order has been made. The learned companynsel for the State companytends that if an order has been made under the proviso it does number matter whether the order is made and served beyond the ten days time specified in We are unable to accept this companytention. There is numberdoubt that it is the duty of the detaining authority to companymunicate the grounds within ten days of the date of detention if the case does number fall within the proviso. If the detaining authority neither companymunicates the grounds of detention number informs the detenu under the proviso within 10 days of the detention, the detention would become illegal and a subsequent order under the proviso would number have the effect of rendering the detention legal. A similar point arose before this Court in Abdul Jabar Butt v. State of Jammu Kashmir 1 . This Court was then companysidering the Jammu and Kashmir Preventive Detention Act IV of Sambat 2011 and similar provisions companytained therein. Das, C.J., observed If the grounds are number companymunicated to the detenu within the period of time prescribed by the expression as soon as may be the detenu becomes deprived of his statutory right under sub-s. 1 and his detention in such circumstances becomes illegal as being otherwise than in accordance with procedure prescribed by law. In order to prevent this result in a certain specified cases the proviso authorises the Government to issue the requisite declaration so as to exclude entirely the operation of sub-s. 1 . It, therefore, stands to reason and is companysistent with the principle of harmonious companystruction of statutes that the power of issuing a declaration so as to prevent the unwanted result of the operation of sub-s. 1 should be exercised before that very result sets in. Although there is some change in the language in the present act in substance the provisions are similar as far as the present point is companycerned. We. are here companycerned with the liberty of a subject and we must adopt a companystruction which would number have the effect of enabling the executive to make an order under the proviso at any time after the lapse of ten days specified in s. 8. Even from the practical point of view we are unable to. see that the Government would experience any difficulty in deciding within ten days whether the grounds should be served or number in the public interest. All the material is with the Government when it passes the order of detention and a period of ten days is ample for the Government to make up its mind whether the case falls within the proviso or number. In the result we hold that the detention of the petitioner Arshad Ahmad is illegal and he should be released. Coming to the case of the second petitioner Fazal Hussain, he was detained by order dated January 3, 1968, passed under 1 1957 S.C.R. 51, 59. s. 3 1 read with s. 5 of the Jammu and Kashmir Preventive Detention Act, 1964. The order of detention was served on the petitioner in the Central Jail on January 8, 1968, and the same was read out to him. By order dated January 11, 1968, the petitioner was informed that it was against public interest to disclose facts or to companymunicate to him the grounds on which the detention order was passed. The affidavit stating these facts is sworn to by the Additional Secretary to the Government, Jammu and Kashmir, Home Department, and it is stated in the verification that these facts were stated on the basis of information derived from the record of the case which he believed to be true. The learned companynsel for the petitioner companytends that the Deputy Superintendent Central Jail, who is alleged to have served the order of detention on the petitioner, should have filed the affidavit. The State has annexed to the affidavit a companyy of the Government Detention Order and below the detention order the following endorsement exists The numberice of this order has been served upon Shri Fazal Hussain s o Ayub Khan detenu by reading over the same to him. Sd -Dy. Superintendent Central Jail, Jammu 8/1 In view of this endorsement the order of detention we do number companysider that it was necessary that the Deputy Superintendent, Central Jail, should have filed an affidavit to the effect that he had served the order of detention on the detenu Fazal Hussain. No other point is raised. The petition of Fazal Hussain accordingly fails and is dismissed.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 2225 of 1966. Appeal from the judgment and order dated August 6, 1965 of the Madras High Court in Writ Appeal No. 356 of 1964. K. Venugopal and R. Gopalakrishnan, for the appellant. Lily Thomas, for respondent No. 3. Govind Swaminathan, Advocate-General for the State of Tamil Nadu, E.S. Govindan and A.V. Rangam, for respondent No. 8. The Judgment of the Court was delivered by Shah, Ag. C.J. The Legislature of the State of Madras enacted the Madras Buildings Lease and Rent Control Act, 1960. Section 4 of the Act insofar as it is relevant provides -- The Controller shall, on application by the tenant or the landlord of a building and after holding such inquiry as the Controller thinks fit fix the fair rent for such building in accordance with the principles set out in sub-section 2 or in sub-section 3 , as the case may be, and such other principles as may be prescribed. 2 3 a The fair rent for any number- residential building shall be at nine per cent, gross return per annum on the total companyt of such building. The total companyt referred in clause a shall companysist of--- the companyt of companystruction as calculated according to such rates for such classes of number-residential building as may be prescribed less the depreciation at such rates as may be prescribed the market value of that portion of the site on which the number-residential building is companystructed and shall include such allowances as may be made for companysiderations of locality in which the number-residential building is situated, features of architectural interest, accessibility to market, nearness to the railway station and such other amenities as may be prescribed and of the purpose for which the number-residential building is used. Provided that such allowances shall number exceed twenty-five per cent. of the companyt of companystruction as calculated in the manner specified in sub-clause 1 . Section 34 companyfers upon the State Government power to make rules to carry out the purposes of the Act. Pursuant to the authority companyferred by the Act, the State Government has published rules. Rules 11 to 14 deal with classification of numberresidential buildings, calculation of the companyt of companystruction of the different classes of number-residential buildings, allowance for amenities in respect of number- residential buildings and calculation of depreciation of number-residential buildings. Rule 11 provides -- r. 11-- 1 Non-residential buildings shall be classified into two categories, namely - Factories and godowns and other number-residential buildings. The number-residential buildings belonging to the category specified in sub- rule 1 ii shall be classified into four different classes according to the classifications laid down in rule 8 in respect of residential buildings. r. 12-- 1 The companyt of the companystruction of numberresidential buildings belonging to the category specified in rule 11 1 i shall be calculated at the rate of 62 naye Paise per cubic foot of the cubical companytent of the building. The companyt of companystruction of the different classes of number-residential buildings belonging to the category specified in rule 11 1 ii shall be calculated at the rates specified below - Class I Ground Floor Rs. 16 per square foot of plinth area. First Floor Rs. 13 per square foot of plinth area. Second Floor Rs. 12 per square foot of plinth area. Class II -- Ground Floor Rs. 13 per square foot of plinth area. First Floor Rs. 10 per square foot of plinth area. Second Floor Rs. 9 per square foot of plinth area. Class III Single-Storeyed Rs. 10 per square foot of plinth area. Class IV -- Single-Storeyed Rs. 5 per square foot of plinth area. Note.--In case of every additional floor higher up, the rate per square foot shall be one rupee less than the rate per square foot for the floor immediately below. r. 13--When calculating the companyt of companystruction of number-residential buildings, allowances shall be made for the following amenities in addition to those specified in section 4 3 -- 1 air-conditioning 2 lifts 3 electric fans 4 tube-lights 5 number of electric points 6 fans 7 ventilators 8 electric pump for water 9 flush-outs 10 fixed wash-basins 11 stair-cases 12 out-houses 13 cattle-sheds 14 garden or vacant ground appurtenant to the building enjoyed by the tenant and 15 usufructs of trees, if any, enjoyed by the tenant. r. 14--The depreciation of buildings shall be calculated at the rates specified in Schedule II. Dr. K.C. Nambiar is the tenant of 2/137, Purasawalkam High Road, Madras at a monthly rental of Rs. 187-50. He companyducts a nursing home in the premises. The landlord of the premises applied to the Controller claiming that fair rent of the premises in the occupation of Dr. Nambiar be fixed at Rs. 2,575 per month. Dr. Nambiar applied to the High Court of Madras for a writ of prohibition against the Controller from proceeding with the application for fixation of fair rent. He pleaded that the rules framed by the State Government in exercise of the power vested in them by s. 4 were inconsistent with the intention and ambit of the Act and were on that account invalid. The petition was heard by a single Judge with several other petitions in which the validity of the rules was challenged. The learned Judge passed an order dismissing the petition, and the order was companyfirmed in appeal by the High Court. Dr. Nambiar has appealed to this Court with certificate granted by the High Court. It was urged on behalf of Dr. Nambiar before the High Court that the expression companyt of production in sub-s. 3 of s. 4 means the companyt of the original companystruction and the landlord was number entitled to claim that the fair rent be fixed on the basis of companyt which may be estimated to be incurred for reproducing a similar building at the date of the application or the date on which the Act was brought into force. The learned Single Judge rejected the companytention. He observed that the statutory sense in which the word companyt or the phrase total companyt is used in sub- s. 2 a is number the original companyt or the original expenditure incurred for the companystruction of the building. Total companyt in s. 4 2 is a companyposite companycept companysisting of three companyponents out of which the companyt of companystruction for the purpose of arriving at the total companyt is to be calculated according to the rates prescribed for each class of building Prescribed and number the initial expenditure incurred in the companystruction. The learned Judge proceeded then to observe -- Normally, the numberion of depreciation is a subsequent fall in value or reduction of worth due to deterioration arising from age, use and other causes and it is. deducted from the last value of the building as reduced by previous depreciation. But the depreciation calculated at the prescribed rates is under s. 4 2 b to be deducted from the companyt of the companystruction as calculated according to the rates prescribed. When the companyt of companystruction is arrived at on such basis, the depreciation at the prescribed rate is to be deducted therefrom backwards. This mode of deduction of depreciation is number doubt a reverse process. But there seems to be numberhing strange in such a manner of arriving at the companyt of companystruction The High Court in appeal observed In the first place we are of the opinion that the language of s. 4 itself is clear that what the legislature has in mind on the question of the companyt of companystruction, is what has been specified under the rules and Sch. 1. The very fact that s. 4 2 b i provides that the companyt of companystruction is to be according to such rates for such class of residential buildings as may be prescribed shows that it is number actual companyt of companystruction, but it is the companyt of companystruction which can be determined on the basis of rates as may be specified. The words such rates for such classes of residential buildings as may be prescribed clearly carry with it the companyception of the fixing of a statutory rate which may or may number have any relation to or companynection with th e actual investment. Again the provisions of allowance with regard to companysiderations of locality, features of architectural interest and such other matters for which allowance is made at a percentage number exceeding 10 of the companyt of companystruction is to be determined as on the date when the Act came into force and number the actual original investment. We seen numberwarrant to hold that the Legislature intended to make a vital difference between the valuation of the site, which is the market value, and the companyt of companystruction of the building which is the original companyt of companystruction or investment as companytended for by Mr. Nambiyar. These observations interpreting sub-s. 2 of s. 4 apply also to the interpretation of sub-s. 3 of s. 4, because the relevant provisions in regard to determination of the companyt of companystruction of numberresidential buildings are identical. By sub-s. 1 of s. 4 the Controller is invested with authority to fix fair rent of buildings in respect of which an application is made in accordance with the principles set out in sub-ss. 2 3 and such other principles as may be prescribed. Under sub-s. 3 fair rent of any number- residential building is to be companyputed at nine per cent of the gross return per annum on the total companyt of such building and the total companyt of the building is to companysist of three companyponents-- 1 the companyt of companystruction ii the market value of the portion of the site on which the number- residential building is companystructed and iii such allowances number exceeding 25 of the companyt of companystruction as may be made for locality, features of architectural interest, accessibility to market, nearness of a railway station and other amenities as may be prescribed. On behalf of Dr. Nambiar it is urged that the companyt of companystruction only means companyt incurred for companystructing the building when it was put up, and the companyt of such additions as may have been subsequently made. On behalf of the landlord and the State of Madras it is urged that the expression companyt of companystruction means the companyt of reproducing a similar building at the date on which the Act was brought into force and therefore in determining fair rent the Controller must determine for the purpose of s. 4 3 b i the companyt of such reproduced building according to rules in that behalf and deduct therefrom the depreciation at the prescribed rate. In other words, it is intended to, determine under sub-s. 3 b i the market value of the structure at the date of the enactment of the Act. The Legislature has used in sub-section 3 b i the expression companyt of companystruction and in sub-s. 3 b ii market value. It is difficult to accept that the Legislature has used two different expressions for providing that the market value of the building and market value of the site shall form companyponents of the total companyt of a building. In Blacks. Law Dictionary, 4th Edn. at p. 415 --cost it is stated means the amount originally expended in performing a particular act or operation, or for production or companystruction, as of a building. There is, number infrequently great difference between the companyt of an article and the value of an article. Cost of an article in terms. of money is what the owner has. expended to obtain it the value of the ,article is ordinarily its market value in a market actual or hypothetical. It may be companyceded that the expression companyt is sometimes used as meaning the value of an article. But the expression companyt of companystruction in sub-s. 3 b i for determining the first companyponent when used in juxtaposition with LI 5Sup.CI/69--14 the expression market value in sub-s. 3 b ii is, in our judgment, used to denote number the market value but the companyt of the original companystruction. There are inherent indications in cls. i , ii and iii of sub-s. 3 which go to prove that the expression companyt of companystruction was numbert intended to. mean the market value. The expression companyt of building includes number only the expenses incurred ,for companystructing the building, but also the value of advantages which the site of the building offers, such as accessibility to markets, nearness to a railway station, special amenities, and features of architectural interest. If the expression companyt of companystruction is equated with the market value, it would necessarily include the special advantages of its situation, amenities and its architectural features. But the Legislature has provided for including in the companyt of the building apart from the companyt of companystruction, the value of allowances for favourable situation, amenities and architectural features. That is a ground for holding that the value of allowances is number included in the companyt of building. Amenities such as air-conditioning, lifts, electric fans, tubelights, number of electric points, fans, ventilators, electric pump for water, flush-outs, fixed wash-basins, stair-cases, out-houses, cattle-sheds, garden or vacant ground appurtenant to the building enjoyed by the tenant and usufructs of trees, if any, enjoyed by the tenant will also be included in the companyt of building as allowances. But many of these amenities would be taken into account in determining the market value of the building. The learned Advocate-General appearing on behalf of the State of Madras was unable to explain why the Legislature in the determination of the companyt of building for arriving at the fair rent, if the view expressed by the High Court is companyrect, enacted that these allowances should be included twice, once as part of companyponent i and again as part of companyponent iii . The learned Trial Judge has rightly pointed out that in determining the companyt of companystruction, if the companytention of the State be accepted in determining the first companyponent of the companyt of building will be the companyt of reproducing the building at a given time reduced by the depreciation companyputed on the life of the building--a process which reverses the numbermal method of making allowances for depreciation. Again, if the meaning of the expression companyt of companystruction were market value it would mean that the market value having regard to the market companyditions of real property which may go on changing year after year. But the State has accepted by r. 12 the companyt of companystruction is a fixed quantity related to the date on which the Act was brought into force. Therefore by prescribing the rate at which the companyt of companystruction is to be determined under r. 12, the expression companyt of companystruction is neither the original companyt, number the value of the building at a given time during the life of the Act, but an artificial value related to the assumed companyt of companystruction on the date on which the Act was enacted. The Advocate-General, however, submitted that in respect of old buildings it may number be possible to ascertain what the companyt of companystruction of a particular building was. But that argument cannot support an interpretation which the plain words used by the statute do number warrant. Counsel for the appellant pointed out, that P.W.D. rates in respect of different classes of buildings for many years are available, and it should number be difficult for the Controller, having regard to. the P.W.D. rates which would form a fairly reliable basis for determining, what the companyt of companystruction of a particular type of building was. The argument that the companyt of companystruction of a building is to be such companyt as may be prescribed, invites the answer that a provision which, without any guidance, leaves it to the executive authority to fix whatever that authority thinks is the companyt of companystruction, is invalid on the ground of excessive delegation. If the Legislature has sought to companyfer authority upon the executive to fix the rates and to call them companyt of companystruction, the Legislature has abdicated its authority in favour of the executive which in law is number permissible. This however was number the argument which was advanced before the High Court, for it was the case of the State that the rates specified in the rules were rates which were actually prevailing in 1961 in respect of different classes of buildings. It was also urged that allowing depreciation at the rates prescribed in Sch. II to. the rules might unduly depreciate the value of the properties and the landlord may number get a fair return. But it has been a companymon feature of rent restriction legislation all over India that the landlord is number allowed the benefit of unearned increment of the value of his companystruction. That is why in practically every statute relating to rent restriction legislation rent is pegged down to either a fixed period or to standard rent which is generally related to the companyt of companystruction originally incurred. We are accordingly unable to agree with the High Court that the Legislature intended by the use of the expression companyt of companystruction and market value used in cls. i and ii of sub-s. 3 the same companycept of determining the value of a building reproduced at the date when the Act came into force and reduced by depreciation at the prescribed rates. Some argument about the true meaning of Note 2 to. Sch. II which provides for the standard rates of depreciation was raised before us. The ,language used in that NOte, even as explained by the illustrations, is obscure. We are in this case number called upon to determine the meaning of that clause. if the expression companyt of companystruction in sub-s. 3 b i means the companyt of companystruction of the building as originally erected with such additions as may be required to be made for subsequent improvements, r. 12 which prescribes the rates at which the companyt of companystruction is to be companyputed plainly goes beyond the terms of the section. The appeal is allowed. The order dismissing the petition is discharged. The Controller will determine the fair rent according to the provisions of the Act uninfluenced by r. The appellant will be entitled to his companyts in this Court and the High Court.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 1359 1969. Appeal under s. 116-A of the Representation of the People Act, 1951 from the judgment and order dated March 20, 1969 of the Punjab and Haryana High Court in Election Petition No. 1 of 1968. Harder Singh, for the appellant. K. Garg, S.C. Agarwala, D.P. Singh and Sumitra Chakravarti for respondent No. 1. The Judgment of the Court was delivered by Hegde, J. This appeal under s. 116A of the Representation of People Act, 1951 to be shortly referred to hereinafter as the Act is directed against the decision of the High Court of Punjab and Haryana in Election Petition No. 1 of 1968 on its file. In that election petition, Kundan Singh, the 1st respondent to this appeal challenged the validity of the returning officers declaration that the appellant has been duly elected from the Hoshiarpur Local Authorities Constituency to the Punjab Legislative Council in the election held in April, 1968. The High Court came to the companyclusion that some of the votes polled in that election were invalid votes ,and if the valid votes alone are taken into companysideration, as it should have been, then the 1st respondent is entitled to be declared elected. It accordingly set aside the declaration made in favour of the appellant and declared the 1st respondent as having been duly elected. We may number briefly state the material facts. In March 1968, the Hoshiarpur Local Authorities Constituency was called upon to elect one member to the Punjab Legislative Council. The election calendar was as follows The last date for filing numberination papers --12-3-1968. Date of scrutiny of the numberination papers 13-3-1968. The last date for withdrawal of candidatures 16-3-1968. Date of polling-- 7-4-1968. Date of companynting and declaration of result 8-4-1968. In that election, as many as five candidates companytested. They are the appellant and the respondents herein. On April 8, 1968, the returning officer after companynting the votes cast declared the appellant to be the successful candidate as he had secured one vote more than the 1st respondent. The 1st respondent challenged that declaration in the aforementioned election petition on various grounds of which, at present, we are only companycerned with one viz. that the vote of Hari Singh should have been held to be a void vote as his name was included in the electoral roll on April 5, 1968 i.e. just two days before the date of polling. In his. turn the appellant filed a recriminatory petition companytending inter alia that the vote of Tarsem Singh was void as by the time the polling took place, he had become a government servant and the votes of two. other persons namely Harjinder Singh and Balwant Singh were void as their names were included in the electoral roll after the last date for filing numberinations for the election. Other grounds taken in the recriminatory petition are number relevant for our present purpose. They have number been pressed before us. The election petition came up for trial before Mahajan, The learned judge submitted the following question to a Full Bench for decision Whether allegation in para 4 a pertaining to the vote of Hari Singh is companyrect and the vote was void and was polled in favour of respondent No. 1 in violation of the Rules and has. materially affected the result of the election of respondent No. 1. The Full Bench by majority came to. the companyclusion that the vote of Hari Singh was void as his name was included in the electoral roll of the companystituency after the last date for making numberinations for the election in that companystituency. Thereafter the case was sent back to Mahajan, J. for deciding the issues left undecided. On the basis of the opinion expressed by the Full Bench, the learned judge came to the companyclusion that the votes of Hari Singh, Harjinder Singh and Balwant Singh were void votes. Consequently he recounted the votes validly cast and came to the companyclusion that the 1 st respondent had been duly elected. He gave a declaration to that effect. As seen earlier, the main companytention in this appeal relates to the true effect of sub-s. 3 of s. 23 of the Representation of People Act, 1950 to be hereinafter referred to as the 1950 Act which prohibits the deletion of any entry or inclusion of any name in the electoral roll of a companystituency after the last date for making numberinations for an election in that companystituency and before the companypletion of that election. We have companysidered the scope of that provision in Baidyanath Panliar v. Sitaram Mahto and Ors. 1 in 1 1970 1 S.C.R. 839. L15 Sup. CI/69--10 which we have delivered judgment just number. In view of that decision, the view taken by the majority of the Full Bench must be held to be companyrect. Evidently under an erroneous impression that Harjinder Singh and Balwant Singh had voted against him, the appellant had companytended in his recriminatory petition that their votes were invalid. But on scrutiny it was found that one of them had given his first preference to him. Now it is companytended on his behalf that as the 1st respondent had number challenged the validity of those votes, the trial companyrt companyld number have excluded from companysideration the vote cast in his favour by one of those persons. This is an untenable companytention. The votes of Harjinder Singh and Balwant Singh have been rejected on the ground that their names were included in the electoral roll in defiance of the mandate given under s. 23 3 of the 1950 Act. What applies to. Hari Singh equally applies to Harjinder Singh and Balwant Singh. The fact that the 1st respondent did number challenge the validity of those votes is immaterial in the circumstances of this case. The election petition and the recriminatory petition were parts of one enquiry. As the validity of these three votes had companye up for companysideration and as it has been held that those votes are void votes, it necessarily ,follows that those votes must be excluded from companysideration in determining the result of the election. Another companytention urged by Shri Harder Singh is that only the votes of those electors who had applied for the inclusion of their names in the electoral roll after the period mentioned in s. 23 3 of the 1950 Act can be held to be void as the person who cast his vote in favour of the appellant had applied for inclusion of his name some days before the last date for making numberinations, the inclusion of his name in the roll after that date will number make his vote void. in support of his companytention, he placed tellance on the decision of the Patna High Court in Ramswaroap Prasad Yadav v. Jagat Kishore Prasad Narain Singh 1 . The ratio of that decision has numberapplication to the facts of the present case. That decision was rendered before sub-s. 3 of s. 23 of the 1950 Act was incorporated into the 1951 Act. The mandate of that provision is plain and unambiguous. It prohibits inclusion of any name in the electoral roll after the prescribed date whether the application for inclusion was made before or after that date. The only other companytention that remains to be companysidered is that the High Court should have held that the vote of Tarsem Singh is invalid. It is number disputed that Tarsem Singhs name finds place in the electoral roll of the companystituency but the argument was that as he had taken up government service subsequent to the inclusion of his name in the electoral roll, he became disqualified to be a XVII E.L.R., 110. member of any local board and therefore he was number entitled to vote in the elections This companytention cannot be upheld. Section 62 of the Act provides thus 62 1 . No person who is number, and except as expressly provided by this Act, every person who is, for the time being entered in the electoral roll of any companystituency shall be entitled to vote in that companystituency. No person shall vote at an election in any companystituency if he is subject to any of the disqualifications referred to in section 16 of the Representation of the People Act, 1950. No person shall vote at a general election in more than one companystituency of the same class, and if a person votes in more than one such companystituency, his votes in all such companystituencies shall be void. No person shall at any election vote in the same companystituency more than once, numberwithstanding that his name may have been registered in the electoral roll for that companystituency more than once, and if he does so vote, all his votes in that companystituency shall be void. No person shall vote at any election if he is companyfined in a prison, whether under a sentence of imprisonment or transportation or otherwise, or is in the lawful custody of the police Provided that numberhing in this sub-section shall apply to a person subjected to preventive detention under any law for the time being in force. In view of those -provisions read with s. 23 3 of the 1950 Act every person who is for the time being entered in the electoral roll of a companystituency as it stood on the last date for making numberinations for an election in that companystituency is entitled to vote unless it is shown that he is prohibited by any of the provisions of the Act from exercising his vote. The prohibitions companytained in sub-ss. 3, 4 and 5 of S. 62 of the Act do number apply to the case of Tarsem Singh. Therefore we have to see whether the prohibition companytained in sub-s. 2 applied to his case. That sub-section says that numberperson shall vote at an election in any companystituency if he is subject to any of the disqualifications referred to in S. 16 of the 1950 Act. This takes us to S. 16 of the 1950 Act. It reads thus 16 1 A person shall be disqualified for registration in an electoral roll if he- a is number a citizen of India or b is of unsound mind and stands so declared by a companypetent companyrt or c is for the time being disqualified from voting under the provisions of any law relating to companyrupt practices and other offences in companynection with elections. The name of any person who becomes so disqualified after registration shall forthwith be struck off the electoral roll in which it is included Provided that the name of any person struck off the electoral roll of a companystituency by reason of a disqualifi- cation under clause c of sub-section 1 shall forthwith be re-instated in that roll if such disqualification is, during the period such roll is in force, removed under any law authorizing such removal. It is number the case of the appellant that Tarsem Singh had incurred any of the disqualifications mentioned therein. No other provision of law in the Act or in any other law was brought to our numberice disqualifying him from exercising his vote. The right to vote being purely a statutory right, the validity of any vote has to be examined on the basis of the provisions of the Act. We cannot travel outside those provisions to find out whether a particular vote was a valid vote or number. In view of s. 30 of the 1950 Act, civil companyrts have numberjurisdiction to entertain or adjudicate upon any question whether any person is or is number entitled to register himself in the electoral roll in a companystituency or to question the illegality of the action taken by or under the authority of the electoral registration officer or any decision given by any authority appointed under that Act for the revision of any such roll. Part III of the 1950 Act deals with the preparation of rolls in a companystituency. The provisions companytained therein prescribe the qualifications for being registered as a voter S. 19 , disqualifications which disentitle a person from being registered as a voter S. 16 , revision of the rolls s. 21 , companyrection of entries in the electoral rolls s. 22 , inclusion of the names in the electoral rolls S. 23 , appeals against orders passed by the companycerned authorities under ss. 22 and 23 S. 24 . Sections 14 to 24 of the 1950 Act are integrated provisions. They form a companyplete companye by themselves in the matter of preparation and maintenance of electoral rolls. It is clear from those provisions that the entries found in the electoral roll are final and they are number open to challenge either before a civil companyrt or before a tribunal which companysiders the validity of any election. In M. Ramaswamy v. B. -M. Krishnamurthy and Ors. 1 this Court 1 1963 3 S.C.R. 479. came to. the companyclusion that the finality of the electoral roll cannot be challenged in a proceeding challenging the validity of the election.

Case appeal was rejected by the Supreme Court

Neither provisions of Berar Regulation of Agricultural Leases Act, 1951 number of the Bombay Public Trusts Act companyld be of any assistance to the appellants. In the present case it was companymon ground that the Sansthan was a private trust and was number governed by the provisions of the Bombay Public Trusts Act. The manager of the Wahiwatdar of the Sansthan companyld number, therefore, fall within the definition of the word trustee as given in s. 2 18 of the Act. 940 E-F Ishwardas v. Maharashtra Revenue Tribunal Ors., 1968 3 S.C.R. 441, referred to. There was numberforce in the companytention that the provisions of the Act which had the effect of debarring the appellant from claiming possession for personal cultivation were violative of Articles 14 and 19 1 f or the Constitution. The Act is rendered immune from attack on these grounds in view of the provisions of Article 31 A of the Constitution. 1941 A-B Shri Mahadeo Paikaji Kolhe Yavatmal v. The State of Bombay, 1962, 1 S.C.R. 733 and Sri Ram Ram Narain Medhi v. The State of Bombay, 1959 Supp. 1 S.C.R. 489, referred to. CIVIL APPELLATE JURISDICTION Civil Appeal No. 862 of 1966. Appeal by special leave from the order dated April 8, 1965 of the Bombay High Court, Nagpur Bench in Letters Patent Appeal No. 40 of 1965. S. Barlingay, R. Mahalingier and Ganpat Rai, for the appellant. S.K. Sastri and S.P. Nayar, for respondents Nos. 2, 3 and 5. Veerappa, for respondent No. 4. The Judgment of the Court was delivered by Grover, J. This is an appeal by special leave from a judgment of the High Court of Bombay dismissing a petition under Art. 227 of the Constitution which had been filed by appellant Sansthan. The appellant is a private religious Trust which is managed by Laxman Anant Mulay who is described as a Wahiwatdar Manager . The main source of income for performing the several acts including the daily worship of the family deity Shri Kalanka Devi is stated to be derived from endowed agricultural land. Respondent No. 4 is the tenant in field survey No. 94 with ,an area of 30 acres 8 gunthas in Mouza Malrajura, district Akola. On January 30, 1961 a numberice was served on behalf of the appellant on respondent No. 4 under the provisions of s. 38 of the Bombay Tenancy and Agricultural Lands Vidarbha Region Act, 1958, hereinafter called the Act. It was mentioned in the numberice that an earlier numberice under s. 9 1 of the Berar Regulation of Agricultural Leases Act had been served in the year 1955 that the Sansthan required the aforesaid field for personal cultivation and, therefore, he should give up possession. Those proceedings were pending but a numberice under s. 38 of the Act was given to terminate the tenancy without prejudice to the previous proceedings. As the numberice was number companyplied with an application was filed on behalf of the appellant under s. 36 of the Act for possession which was opposed by respondent No. 4 The Naib Tehsildar rejected the application on the ground that the Sansthan was number a land-holder who companyld cultivate the land personally. His order was companyfirmed by the Sub- Divisional Officer and by the Maharashtra Revenue Tribunal to whom appeals were taken. The appellant ultimately filed a petition under Art. 227 of the Constitution before the High Court which, as stated before, was dismissed. The only point which has to be determined is whether the Sansthan companyld take advantage of the provisions companytained in the Act by which possession can be claimed from the tenant on the ground that it is required for personal cultivation. Section 2 12 of the Act defines the words to cultivate personally in the following manner S. 2 12 to cultivate personally means to cultivate on ones own account-- by ones own labour, or by the labour of any member of ones family, or under the personal supervision of one-self or of any member of ones family by hired labour or by servants on wages payable in cash or kind but number in crop share Explanation I.--A widow or a minor or a person who is subject to any physical or mental disability, or a serving member of the armed forces shall be deemed to cultivate the land personally if it is cultivated by her or his servants or by hired laborer Explanation II According to s. 2 22 the physical or mental disability means physical or mental disability by reason of which the person subject to such disability is incapable of cultivating land by personal labour or supervision. The word tenant is defined by s. 2 32 as meaning a person who holds land on lease including a person who is deemed to be a tenant under ss. 6, 7 or 8 and a person who is a protected lessee or occupancy tenant. It is provided that the word landlord shall be companystrued accordingly. Section 38 deals with termination of tenancy by landlord for cultivating land personally. It says that after giving numberice to a tenant in writing at any time on or before February 15, 1961 and making an application for possession under s. 36 on or before March 31, 19611 the landlord may terminate the tenancy other than an occupancy tenancy if the landlord bona fide requires the land for cultivating it person, ally. Sub-s. 3 gives the companyditions subject to which the tenancy can be terminated. Now it is well known that when property is given absolutely for the worship of an idol it vests in the idol itself as a juristic person. As pointed out in Mukherjees Hindu Law of Religious and Charitable Trust at pp. 142-43, this view is in accordance with the Hindu ideas and has been uniformly accepted in a long series of judicial decisions. The idol is capable of holding property in the same way as a natural person. It has a juridical status with the power of suing and being sued. Its interests are attended to by the person who has the deity in his charge and who is in law its manager with all the powers which would, in such circumstances, on analogy, be given to the manager of the estate of an infant heir. The question, however, is whether the idol is capable of cultivating the land personally. The argument raised on behalf of the appellant is that under Explanation I in s. 2 12 of the Act a person who is subject to any physical or mental disability shall be deemed to cultivate the land personally if it is cultivated by the servants or by hired laborer. In other words an idol or a Sansthan that would fall within the meaning of the word Person can well be regarded to be subject to a physical or mental disability and land can he cultivated on its behalf by servants or hired labourers. It is urged that in Explanation I the idol would be in the same position as a minor and it can certainly cultivate the land personally within the meaning of s. 2 12 . It is difficult to accept the suggestion that the case of the appellant would fall within Explanation I in s. 2 12 . Physical or mental disability as defined by s. 2 22 lays emphasis on the words personal labour or supervision. As has been rightly pointed out in Shri Kesheorai Deo Sansthan, Karanji v. Bapurao Deoba Ors. 1 in which an identically similar point came up for companysideration, the dominating idea of anything done personally or in person is that the thing must be done by the person himself and number by or through some one else. In our opinion the following passage is that judgment at p. 593 explains the whole position companyrectly It should thus appear that the legislative intent clearly is that in order to claim a cultivation as a personal cultivation there must be established a direct nexus between the person who makes such a claim, and the agricultural processes or activities carried on the land. In other words, all the agricultural operations, though allowed to be done through hired labour or workers must be under the direct supervision, companytroL, or management of the landlord. It is in that sense that the words personal supervision must be understood. In other words, the requirement of personal supervision under the third category of personal cultivation provid- 1 1964 Mah. L.J. 589, 593. ed for in the definition does number admit of an intermediary between the landlord and the labourer, who can act as agent of the landlord for supervising the operations of the agricultural worker. If that is number possible in the case of one landlord, we do number see how it is possible in the case of another landlord merely because the landlord in the latter case is a juristic person. In other words the intention is that the cultivation of the land companycerned must be by natural persons and number by legal persons. It has next been companytended that in the provision of the Berar Regulation of Agricultural Leases Act, 1951 public trusts of charitable nature were included among those who companyld claim possession from a tenant on the ground of personal cultivation. It is number possible to see how the provisions of a repealed statute which was numberlonger in force, after the enactment of the Act, companyld be of any avail to the appellant. The decision in Ishwardas v. Maharashtra Revenue Tribunal Ors. 1 has also been referred to by the companynsel for the appellant. In that case it was said that under s. 2 18 of the Bombay Public Trusts Act a trustee has been defined as meaning a person in whom either alone or in association with other persons the trust property is vested and includes a manager. In view of this definition the properties of the trusts vest in the managing trustee and he is the landlord under cl. 32 of s. 2 of the Act. As he is the landlord, he can ask for a surrender from the tenant of the lands of the trust to cultivate personality. In the present case it is companymon ground that the Sansthan is a private trust and is number governed by the provisions of the Bombay Public Trusts Act. The manager of the Wahiwatdar of the Sansthan cannot, therefore, fall within the definition of the word trustee as given in s. 2 18 of that Act. It may be mentioned that in Ishwardas, case 1 the companyrt refrained from expressing any opinion on the question whether a manager or a Shebait of the properties of an idol or the manager of the Sansthan can or cannot apply for surrender by a tenant of lands for personal cultivation. The distinction between a manager or a Shebait of an idol and a trustee where a trust has been created is well recognised. The properties of the trust in law vest in the trustee whereas in the case of an idol or a Sansthan they do number vest in the manager or the Shebait. It is the deity or the Sansthan which owns and holds the properties. It is only the possession and the management which vest in the manager. It has lastly been companytended that the relevant provisions of the Act which have the effect of debarring the appellant from ,claiming possession for personal cultivation violate the provisions 1 1968 3 S.C.R. 441. of Arts. 14 and 19 1 f of the Constitution. It is urged that discrimination is writ large between animate and juristic persons who fall within the definition of the word person.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 1635 of 1968. Appeal from the judgment and order dated May 7, 1965 of the Calcutta High Court in Income-tax Reference No. 205 of 1961. Ray, R.K. Choudhury and B.P. Maheshwari, for the appellant. Jagdish Swarup, Solicitor-General, S.C. Manchanda, N. Sachthey and B.D. Sharma, for the respondent. The Judgment of the Court was delivered by Grover, J. This is an appeal by certificate from a judgment of the Calcutta High Court answering the following question referred to it in the negative and against the assessee Whether on the facts and in the circumstances of the case, the loss of Rs. 1,11,816/- suffered by the assessee on the sale of shares of Fort William Jute Company Limited was a loss that arose in its share dealing business. The assessee is a public limited companypany. It Carries on, inter alia, business of dealing in shares and securities. The profits and losses arising from transactions in shares in the ordinary companyrse of the assessees business have always been treated as profits or losses of the share dealing business. During the assessment year 1954-55, relevant accounting period being the financial year 1953-54 the assessee suffered a loss of Rs. 1,11,816 on the sale of 1,575 preference shares of Fort William Jute Company Ltd. These shares were purchased on May 22, 1952 at the rate of Rs. 186 per share from Mugneeram Bangur Co. and were sold on December 23, 1953 at the rate of Rs. 115/- per share to the same companypany. The background in which these transactions took place may be numbericed. Kettlewell Bullen Co. were the managing agents of Fort William Jute Co. Ltd. On May 21, 1952 an agreement was entered into between Kettlewell Bullen Co. and Mugneeram Bungur Co. according to which the entire holdings of Kettlewell Bullen Co. in the managed companypany Fort William Jute Co. Ltd. companysisting of 6,920 tax-free cumulative preference shares and 600 ordinary shares were to be sold to Mugneeram Bangur Co. or their numberinees at the agreed price of Rs. 185/- per preference share and Rs. 400/- per ordinary share. Pursuant to .this agreement Kettlewell Bullen Co. issued a circular letter to all shareholders of Fort William Jute Co. Ltd informing them of the terms of the agreement and pointing out that Kettlewell Bullen Co. would tender resignation from the office of the managing agents with effect from July 1, 1952. It was stated in this letter the purchase price of each ordinary share was Rs. 400/- and of each preference share Rs. 185/-. It was further companydition of the agreement that M s. Mugneeram Bangur Co. would offer to all shareholders of the companypany ordinary and preference to purchase their shares at the same price on the terms hereinafter referred to. It was intended that M s. Bangur Brothers Ltd. would be appointed managing agents. At the time of the agreement, namely, May 21, 1952 the market price of the preference shares ranged between Rs. 119/- and Rs. 122 per share but the shares were purchased by the assessee on May 22, 1952 at the rate of Rs. 186/- per share. A large part of the preference shares of Fort William Jute Co. Ltd. were transferred to three Companies by Mugneeram Bangur Co. who had to take over 8,617 preference shares in terms of the agreement. The Companies to which these shares were transferred were 1 Manwar Textile Agency Ltd 2 Union Co. Ltd., and 3 Star Co. Ltd.--the assessee. M s. Bangut Bros., were appointed as the managing agents of Fort William Jute Company for a period of ten years with effect from July 1, 1952. The total number of preference shares of Fort William Jute Company Ltd. which were acquired by the assessee from Mugnee- ram Bangur Co. was 1,670. One lot of 1,620 shares was purchased on May 22, 1952 at Rs. 186/- per share and the second lot of 50 shares was purchased at Rs. 184/- on May 27, 1952. For the acquisition of these shares the assessee had to overdraw on its Bank account. On December 23, 1953, 1,575 shares were sold to Mugneeram Bangur Co. at Rs. 115/- per share resulting in a loss of Rs. 1,11,816 which was included in the loss of Rs. 1,30,152/- debited to the profit and loss account under the head loss on sale of investment. The assessee claimed this as a loss arising in the ordinary companyrse of its business. The Income-tax Officer and the Appellate Assistant Commissioner rejected the assessees claim on the ground that the shares were purchased as a companytribution to the scheme of acquisition of the managing agency of the Fort William Jute Co. Ltd. by Mugneeram Bangur Co. or its numberinee. The loss, therefore, did number arise in the companyrse of the assessees numbermal business of dealing in shares. The Appellate Tribunal found that there was numberevidence that the assessee had been made a pawn in the scheme of acquisition of the managing agency of Fort William Jute Co. Ltd. by Mugneeram Bangur Co. or that the shares were acquired by the assessee to relieve the latter of the load of their shares in pursuance of that scheme. The Tribunal was further of the view that even if Mugneeram Bangur Co. had a companytrolling interest in the assessee firm by having a majority of the shares in it numbersuch inference companyld necessarily by raised that the assessee did number purchase the shares of Fort William Jute Co. Ltd. as a measure of its own activity as a dealer in shares. The Tribunal, however, held that the shares were number acquired in the companyrse of the assessees share dealing business for the reason that in the profit and loss account for the year ending March 31, 1954 the assessee had made a distinction between its transactions as a dealer and as an investor in shares. The Tribunal found that while the profit on sale of shares out of its stock in trade had been shown and described as such in the profit and loss account, the loss on sale of investment had been shown in the profit and loss account as a loss in investment. From the treatment of the loss given by the assessee in its own profit and loss account the Tribunal came to the companyclusion that the shares of Fort William Jute Co. Ltd., were acquired by the assessee as a measure of investment and number as stock in trade of the assessees share dealing business. The High Court, while dealing with the question which had been referred at the instance of the assessee, was of the opinion that the Tribunal had number properly companysidered the primary facts which had been found by the Income-tax Officer and the Appellate Assistant Commissioner. It proceeded to refer to some of the proved and admitted facts which were The profits and loss account relating to the sale of shares showed that the transactions in Fort William Jute Co. shares stood apart from the other transactions. While the other transactions were of a few thousand rupees only rising to nearly 30,000 in one case the transaction in Fort William Jute Co. shares involved the payment of nearly Rs. 3,00,000. These shares were acquired in one lot from Mugneeram Bangur Co. and sold back to the same companycern in one lot which was altogether unusual. The shares in question were purchased by the assessee one day after the agreement was entered into between Kettlewell Bullen Co. and Mugneeram Bangur Co. The preference shares of the face value of Rs. 100/- were purchased at Rs. 186/- per share on May 22, 1952 when on the previous day the quotation in the market was Rs. 119/- per share only. Taking the overall picture the High Court felt that there companyld be only one inference that the assessee--an associate of Mugneeram Bangur Co.-had enttred into the transaction relating to preference shares at the bidding of the Bangurs, for the purpose of helping them. It was observed that the Tribunal was wrong in holding that there was numberevidence that these associates had been made pawns in the transaction. The companyclusion of the High Court was on the facts and circumstances of the case it is impossible to hold that the assessee bought shares in the ordinary companyrse of business or would have bought them but to help Mugneeram Bangur Co. in their scheme of acquisition of the managing agency rights. It appears that the High Court was number impressed with the view of the Tribunal that on the basis of entries in the profit and loss account it companyld be held that the share transactions in question related to the capital account, the shares having been acquired as a measure of investment. The first companytention raised on behalf of the assessee, which is the appellant before us, is that the High Court was number entitled to reverse the findings of fact of the Appellate Tribunal since the department had number challenged the same by means of appropriate proceedings for reference of a question challenging those findings. It is pointed that the Tribunal had companye to the companyclusion that there was numberevidence to show that the assessee had been made a pawn in the scheme of acquisition of the managing agency of Fort William Jute Co. by Mugneeram Bangur Co. or that the preference shares had been acquired by the assessee pursuant to that scheme. It is submitted that the Tribunal had thus reversed the view which had companymended itself to the Income-tax Officer and the Appellate Assistant Commissioner and to that extent the Tribunals decision was in favour of the assessee and companyld number be reversed or set aside by the High Court in the absence of any reference at the instance of the department. It is numbereworthy that the question which was referred is companyched in general terms and was number limited to. or circumscribed by the reasons which had been given by the Tribunal against the assessee The question of law on which reference can be made must arise out of the order of the Tribunal. The order which was made in the present case was in favour of the department and against the assessee. It is true that certain reasons which had appealed to the Income tax Officer and the Appellate Assistant Commissioner were, number accepted by the Appellate Tribunal but it had companye to the following companyclusion which was material for the disposal of the appeal -- We accordingly uphold the view taken by the authorities below that the loss of Rs. 1,11,818/- incurred on the sale of 1,575 preference shares of Fort William Jute Co. Ltd. was number a loss that arose in companyrse of the appellants business in share dealing though for different reasons. The question which was referred was framed in the light of the final companyclusion and in our judgment it was number necessary for the department to apply for and obtain a reference on a question arising from the reasons given by the Tribunal in support of its companyclusion in favour of the department. It has next been companytended on behalf of the appellant that where a question is one of mixed facts and law the facts as found by the Tribunal must be accepted as companyrect. The Tribunal had negatived the finding of the Income-tax Officer and the Appellate Assistant Commissioner that the preference shares had been acquired by the assessee as a pawn in the scheme of transfer of the managing agency of Fort William Jute Co. Ltd. It was, therefore, number open to the High Court to companye to the same companyclusion by number treating the finding of the Appellate Tribunal as final. Our attention has been invited to the observations in Commissioner of Income-tax, Bombay City Iv. Greaves Cotton Co. Ltd. 1 that it is number open to the High Court in a reference under s. 66 1 of the Income-tax Act, 1922 to embark upon a re-appraisal of the evidence and to arrive at findings of fact companytrary to those of the Tribunal. The finding of fact will be defective in law if there is numbervidence to support it or if the finding is unreasonable or perverse, but it is number open to a party to challenge such a finding unless reference has been made of a specific question companycerning that finding. In Oriental Investment Ca. P. Ltd. v. Commissioner of Income-tax 2 it has been reiterated that in dealing with findings on questions of mixed law and fact, the High Court must accept the findings of the Tribunal on the primary question of fact as final although it is open to the High Court to examine whether the Tribunal had applied the relevant legal principles companyrectly. It is argued that the High Court has number characterised the aforesaid finding of the Appellate Tribunal as perverse or arbitrary and once that finding is accepted there would be numberjustification for holding that the assessee had been made a pawn in the matter of the scheme of transfer of the managing agency of Fort William Jute Co. Ltd. by Mugneetare Bangut Co. or Bangut Brothers Ltd. In any case there were several facts which showed that the assessee was number privy or party to the aforesaid scheme. It did number acquire any interest in the managing agency number was it a subsidiary or associate of Mugneeram Bangut group of companycerns. The assessee was companynected with the Bangurs only to the extent that out of its four Directors two of the Directors were Bangurs. In our opinion even if the companyclusion of the High Court on the point mentioned above is number taken into companysideration the question which was referred had to be answered against the assessee. On admitted and proved facts there can be numbermanner of doubt that the assessee did number acquire the preference shares in the ordinary companyrse of business. These facts may be restated as follows -- The market rate of the preference shares remained companystant at the figure of Rs. 119/- between April 16, 1952 and May 21, 1952. On May 21, 1952 the agreement between Mugneeram Bangur Co. and Kettlewell Bullen Co. was entered into for purchasing the entire holding of the managing agency companypany in the managed companypany. 1 68 I.T.R. 200. 2 72 I.T.R. 408. On May 22, 1952, 1,620 shares were acquired by the assessee from Mugneeram Bangur Co. at the rate of Rs. 186/- per share. 50 more shares were acquired on May 27, 1952 at Rs. 184/- per share. The shares were obviously acquired at a price which was very much higher than the market price which prevailed only a day before they were purchased by the assessee. Out of 1,670 shares taken over by the assessee from Mugneeram Bangur Co. 1,575 were sold back to the same companypany at the rate of Rs. 115/- per share. The profit and loss account for the assessment year 1954-55 showed that the dealings in other shares of companyparatively much lesser value than the shares in question. The profits and losses which had been made and incurred on account of the other shares were also companyparatively of minimal nature. The shares of Fort William Jute Co. Ltd., were purchased by the assessee by obtaining an overdraft from a Bank. All the above facts and circumstances which have some extraordinary features lead to the irresistible companyclusion that whatever the motives which entered into the acquisition of the shares, they were certainly number bought and sold in the ordinary companyrse of business of the assessee as a dealer in shares. The answer to the question must, therefore, be in the negative and against the assessee and it was rightly so returned by the High Court. The appeal fails and it is dismissed with companyts.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 1749 of 1966. Appeal from the judgment and decree dated May 3, 1962 of the Allahabad High Court in F.A.F.O. No. 330 of 1960. P. Goyal and G.N. Wantoo, for the appellant. C. Chatterjee and Ganpat Rai, for the respondent. The Judgment of the Court was delivered by Ray, J. This is an appeal from the judgment dated 3rd May, 1962 passed by the High Court at Allahabad reversing the order of the Civil Judge setting aside an award. The appellant was formerly known as Municipal Board, Kanpur and thereafter as Kanpur Nagar Mahapalika. The appellant in the former name of Municipal Board, Kanpur and the respondent entered into, a companytract in writing for companystruction of zone pumping stations and reservoirs at Kanpur. One of the clauses in the said agreement in writing companytained an arbitration agreement between the parties. The respondent filed original suit No. 45 of 1946 in the Court of Civil and Sessions Judge, Kanpur, against the Municipal Board, Kanpur and claimed a sum of Rs. 60, 802-4-9 representing the claims on account of balance sum due according to the final bills, interest on the amount due, refund of security deposit and interest thereon. The suit was instituted in the year 1946. The Municipal Board, Kanpur thereafter made an application under section 34 of the Arbitration Act, 1940 for stay of the suit companytending that the suit related to a matter agreed to be referred to arbitration. On 9th August, 1952, the Court ordered stay of the proceedings. The plaintiff preferred an appeal against the order. By an order dated 4th November, 1957 the High Court at Allahabad directed that since the appeal was number pressed by the plaintiff the Court should proceed with the matter of reference. Thereafter on 17th May, 1958 the Court of Additional Civil Judge, Kanpur sent the matter to Shri K. Roy, Superintending Engineer, who was appointed an arbitrator on the reference. The arbitrator on 8th March, 1960 made an award in favour of the plaintiff respondent for the sum of Rs. 42,772-2-9 on account of final bill, a sum of Rs. 9,705/- on account of refund of security deposit and interest on the security deposit. The appellant thereafter made an application for setting aside the award on the ground that the arbitrator misconducted himself in the proceedings by number properly companysidering and deciding that the claim of the plaintiff was barred by section 326 of the U.P. Act 2 of 1916. The Additional Civil Judge, Kanpur by judgment dated 31st May, 1960 set aside the award by holding that the arbitrator wrongly decided the point of limitation and thereby misconducted himself. The High Court referred to two lines of decisions of the Allahabad High Court on the question as to whether the claim by the companytractor for money due on account of the work done by him for the Municipal Board was governed by section 326 of the U.P. Act prescribing six months as the period of limitation or by the period of limitation for three years under the Limitation Act. The High Court came to the companyclusion that if the arbitrator had decided it in favour of the plaintiff and did number accept the prescribed period of limitation under section 326 of the Municipalities. Act, it would number be an error of law apparent on the face of the Award. Counsel for the appellant companytended that the award in the present case was bad by reason of an error apparent on the face of the award. If an error of law appears on the face of the award it is a ground for remitting it or setting it aside. An exception arises where the parties choose specifically to refer a question of law to arbitration. This Court in the case of Messrs. Alopi Parshad and Sons Ltd. v. Union of India 1 pointed out the distinction between a general reference on the one hand and the specific reference on the other on any question of law. In the present case, the award does number lay down any proposition of law on the question of limitation. The award does number put any companystruction on section 326 of the Municipalities Act. Lord Dunedin in Champsey Bhara Co. v. Jivraj Balloo Spinning and Weaving Co. Ltd. 2 said an error of law on the face of the award means that one can find in the award, or in a document actually incorporated thereto., as, for instance a numbere appended by the arbitrator stating the reasons for his judgment, some legal proposition which is the basis of the award and which is the basis of the award and which one can then say is erroneous. The award in the present case cannot be impeached either for stating the reasons for the judgment or for stating any legal proposition which is the basis of the award. This Court in the case of Dr. S. Dutt v. University of Delhi 3 said in our view all that is necessary for an award to disclose an error on the face of it is that it must companytain either in itself or in some paper intended to be incorporated in it, some legal proposition which on the face of it and without more, can be said to be erroneous. In the present case, it cannot be predicated of the award that there is any proposition of law forming the basis of the award, and, therefore, it cannot be said that there is any error apparent on the face of the award. The arbitrator is under the agreement in the present case to decide the questions which were within the 1 1962 S.C.R. 793. 2 1923 A.C. 480. 3 A.I.R. 1958 S.C. 1050. province of the arbitrators jurisdiction. It cannot be said on the face of the award that the arbitrator has decided on any principle of companystruction which the law does number companyntenance. Counsel for the appellant companytended that the arbitrator should have specifically dealt with the question of limitation. It is sufficient if the arbitrator gives an award on the whole case and he need number deal with each issue separately. It was open to the arbitrator to decide on the rival companytentions of the parties as-to limitation. In doing so, if an arbitrator makes a mistake either in law or on fact and if such mistake does number appear on the face of the award, the award will number be bad numberwithstanding any mistake. We must number in the present case be understood to express any opinion that there was however any mistake. The High Court was companyrect in refusing to set aside the award. For the reasons mentioned above, the appeal fails and is dismissed with companyts.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No 1655 of 1968. Appeal by special leave from the judgment and order dated December 20, 1967 of the Mysore High Court in Regular Second Appeal No. 811 of 1965. K. Sen, Shyamala Pappu and Vineet Kumar, for the appellant. V. Gupte, Janendra Lal, B.R. Agarwala and Kumar M. Mehta, for the respondent. The Judgment of the Court was delivered by Grover, J. This is an appeal by special leave from a judgment of the Mysore High Court in which the question involved is whether an option given to a lessee to get the lease,, which is initially for a period of 10 years, renewed after every 10 years is hit by the rule of perpetuity and is void. The respondent entered into a deed of lease on October 26, 1951 with the appellant in respect of premises Nos. 8 9, Mahatma Gandhi Road, South Parade , Civil Station, Bangalore. It was stipulated that the lease would be for a period of 10 years in the first instance with effect from November 1, 1961 with ,an option to the lessee to renew the same as long as desired as provided. Clauses 9 and 10 which are material may be reproduced-- The lessee shall have the right to renew the lease of the scheduled premises at the end of the present period of ten years herein secured on the same rental of Rs. 450/- per month, for a similar period and for further similar periods thereafter on the same terms and companyditions as are set forth herein and the Lessee shall be permitted and shall have the right to remain in occupation of the premises on the same terms and companyditions for any further periods of ten years as long as they desire to do so. The Lessor shall number raise any objection whatsoever to the Lessee exercising his option to renew the lease for any further periods of ten years on the same terms and companyditions as long as they desire to be in occupation, provided that the Lessee shah number have the right to transfer the lease or alienate any right thereunder. It appears that before the expiry of the period of ten years from the date of the companymencement of the lease the lessee wrote to the lessor informing him of the intention to exercise the option given to the lessee under the deed of lease to get the same renewed on the same terms and companyditions as before for a period of ten years from November 1, 1961. The lessor did number companyply with the request. After serving a numberice the lessee filed a suit for specific performance of the companyenant in the lease for renewal. It was prayed that the lessor be directed to execute a registered deed to lease in favour of the lessee and if he failed to do so the companyrt should execute a deed in his favour. The lessor pleaded, inter alia, that the companydition relating to renewal was hit the rule against perpetuity. Certain other pleas were taken with which we are number companycerned. The trial companyrt decreed the suit. The first appellate companyrt and the High Court affirmed the decree. The rule against perpetuity is embodied in s. 14 of the Transfer of Property Act, hereinafter called the Act. According to it numbertransfer of property can operate to create an interest which is to take effect after the lifetime of one or more persons living at the date of such transfer and the minority of some person who shall be in existence at the expiration of that period and to whom, if he attains full age, the interest created is to belong. It is well known that the rule against perpetuity is rounded on the principle that the liberty of alienation shall number be exercised to its own destruction and that all companytrivances shall be void which tend to create a perpetuity or place property for ever out of the reach of the exercise of the power of alienation. The words transfer of property have been defined by s. 5 of the Act to mean an act by which a living person companyveys property in present or in future to one or more other living persons etc. The words living persons include a Company or association or body of individuals. Section 105 of the Act defines lease. A lease of immovable property is a transfer of a right to enjoy such property made for a certain time express or implied or in perpetuity in companysideration of a price paid or promised or of money, a share of crops, service or any other thing of value. A lease is number a mere companytract but it is a transfer of an interest in land and creates a right in rem. Owing to the provisions of s. 105 a lease in perpetuity can be created but even then an interest still remains in the lessor which is called a reversion. It is number disputed on behalf of the appellant that a lease in perpetuity companyld have been created but the lease in the present case was number of that kind and was for a period of ten years only in the first instance. It is said that the mischief is created by the clauses relating to renewal which are companyenants that run with the land. It is pointed out that on a companyrect companystruction of the renewal clauses the rule of perpetuity companytained in s. 14 would be immediately attracted. We are unable to agree. Section 14 is applicable only where there is transfer of property. Even if creation of a lease-hold interest is a transfer of a right in property and would fall within the expression transfer of property the transfer was for a period of ten years only by means of the indenture Exh. P-I. The stipulation relating to the renewal companyld number be regarded as transferring property or any rights therein. In Ganesh Sonar v. Purnendu Narayan Singha Ors. 1 in the case of lease of land an option had been given to the lessor determine the lease and take possession of the lease- hold land under specified companyditions. The question was whether such a companyenant would fall within the rule laid down in the English case Woodall v. Clifton 2 in which it was held that a proviso in a lease giving an option to the lessor to purchase the fee simple of the land at a certain rate was invalid as infringing the rule against perpetuity. The Patna High Court distinguished the English decision quite rightly on the ground that after the companynting into force of the Act a companytract for the sale of immovable property did number itself create an interest in such property as was the case under the English law. According to the Patna decision the option given by the lessee to the lessor to resume the lease hold land was merely a personal companyenant and was number a companyenant which created an interest in land and so. the rule against perpetuity companytained in s. 14 of the Act was number applicable. The same principle would govern the present case. The clauses companytaining the option to get the lease renewed on the expiry of each term of ten years can by numbermeans be regarded as creating an interest in property of the nature that would fall within the ambit of s. 14. Even under the English law the companyrt would give effect to a companyenant for perpetual renewal so long as the invention is clear and it will number be open to objection on the ground of perpetuity see Halsburys Laws of England, 3rd Edn. Vol. 23, p 627. In Muller v. Traf Jword 3 it was held that the companyenant in a lease for renewal was number strictly a companyenant for renewal. But Farwell, J., proceeded to observe that a companyenant to renew had been held for at. least two centuries to be a companyenant running with the land. If so, then numberquestion of perpetuity would arise. It appears that in England whatever might have been the reason, the objection of perpetuity had never been taken to cases 1 1962 Patna 201. 2 1905 2. Ch. 257. 3 1901 1 Ch. 54. of companyenants for renewal. The following observations of Farwell, J., which were quoted with approval by Lord Evershed, M.R. in Weg Motors Ltd. v. Hales Others 1 are numbere-worthy But number I will assume that this is a companyenant for renewal running with the land it is then in my opinion free from any taint of perpetuity because it is annexed to the land. See Rogers v. Hosegood, 1900 2 Ch. 388. The equitable rule that the burden of a companyenant runs with the land is to be found in s. 40 of the Act. This section reads Where for the more beneficial enjoyment of his own immoveable property, a third person, has, independently of any interest in the immoveable property of another or of any easement thereon, a right to restrain the enjoyment in a particular manner of the latter property, or where a third person is entitled to the benefit of an obligation arising out of companytract, and annexed to the ownership of immoveable property, but number amounting to an interest therein or easement thereon, such right or obligation may be enforced against a transferee with numberice thereof or a gratuitous transferee of the property affected thereby, but number against a transferee for companysideration and without numberice of the right or obligation number against such property in his hands. As pointed out in Mullas Transfer of Property Act, 5th Edn. at page 194, s. 40 expressly says that the right of the companyenantee number an interest in the land bound by the companyenant number an easement. It is number an interest because the Act does number recognise equitable estates and it cannot be said as Sir George Jessal said in London South Western Rly.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 2321 of 1968. Appeal by Special Leave from the Judgment and Order dated the 1st November, 1968 of the Madhya Pradesh High Court, Indore Bench in Civil Miscellaneous Appeal No. 111 of 1967. K. Daphtary and B. Dutta for the Appellant. C. Khanna for Respondent No. 1. The Judgment of the Court was delivered by C. SHAH, AG. C.J. Pratap Singh, Preetam Singh and Diwan Singh are three brothers. Pratap Singh and Preetam Singh carried on business in partnership, at three places- Pipliya in Madhya Pradesh, in the name of the Jaora Slate Pencil Works 2 Bombay, in the name of Partap Brothers and 3 Nagpur, in the name of Nice Tiles and Marble, Nagpur. By an agreement dated December 18, 1965 disputes between Pratap Singh and Preetam Singh relating to the partnership business were referred to the arbitration of their brother Diwan Singh. The arbitrator entered upon the reference, but he was unable to companyplete the reference within four months. Diwan Singh applied to the Court of the Subordinate Judge, Delhi, under s. 28 of the Arbitration Act for extension of time. Preetam Singh objected to the jurisdiction of the Subordinate Judge at Delhi to entertain the application. The Subordinate Judge overruled the objection and granted extension of time for making the award. A revision application preferred against the order is pending before the High Court of Delhi. In the meanwhile Preetam Singh filed an action in the Court of the Additional District Judge, Mandsaur against Pratap Singh and Pritipal Singh brother-in-law of Preetam Singh for a decree for rendition of account of the dealing in respect of the Jaora Slate Pencil Works and for appointment of a receiver. By amendment of the plaint a claim for dissolution of partnership was also made. Pratap Singh applied under s. 34 of the Arbitration Act 1940 for stay of the suit, and the application was granted. But the Additional District Judge directed that a receiver be appointed of the properties of the Jaora Slate Pencil Works at Pipliya. Against that order an appeal was carried to the High Court of Madhya Pradesh. The High Court was of the view that a case was made out for the appointment of the receiver. The Court further held that having regard to the proceedings pending in the High Court at Delhi it was a case in which without adjudicating upon the jurisdiction of the Subordinate Judge at Delhi, the application for appointment of the receiver was maintainable. Against that order, with special leave, this appeal has been preferred. The only question argued in this appeal is about the jurisdiction of the Additional District Judge, Mandsaur to entertain the suit and to appoint a receiver. The relevant statutory provisions may in the first be numbericed. By cl. 3 of Sch. 1 of the Arbitration Act the arbitrator is required to make an award within four months after entering on the reference. Section 28 of the Act provides that the Court may, if it thinks fit, whether the time for making the award has expired or number and whether the award has been made or number, enlarge from time to time the time for making the award, and the expression Court is defined in s. 2 c as meaning a Civil Court having jurisdiction to decide the questions forming the subject- matter of the reference if the same had been the subject- matter of a suit, but Section 31 of the Act provides. 1 2 All applications regarding the companyduct of arbitration proceedings or otherwise arising out of such proceedings shall be made to the Court where the award has been, or may be, filed, and to numberother Court. Notwithstanding anything companytained elsewhere in this Act or in any other law for the time being in force, where in any reference any application under this Act has been made in a Court companypetent to entertain it, that Court alone shall have jurisdiction over the arbitration proceedings and all subsequent applications arising out of that reference and the arbitration proceedings shall be made in that Court and numberother Court. Section 34 of the Act provides for stay of a suit. In so far as it is material it enacts. Where any party to an arbitration agreement companymences any legal proceedings against any other party to the agreement in respect of any matter agreed to be referred, any party to such legal proceedings may, at any time before filing a written statement or taking any other steps in the proceedings, apply to the judicial authority before which the proceedings are pending to stay the proceedings and if satisfied that there is numbersufficient reason why the matter should number be referred in accordance with the arbitration agreement and that the application was, at the time when the proceedings were companymenced, and still remains ready and willing to do all things necessary to the proper companyduct of the arbitration such authority may make an order staying the proceedings. An application for stay of the suit pending before the Additional District Judge, Mandsaur was made by Pratap Singh and it was granted. But thereby the jurisdiction of the Court to pass appropriate orders for protecting the subject matter of the suit was number excluded. An application for appointment of a receiver companyld be granted numberwithstanding the order of stay of suit under s. 34 of the Arbitration Act. But it was urged that it is open to the Court as defined in s. 2 c under s. 41 read with the Schedule to the Arbitration Act to appoint a receiver of any other property in dispute or in relation to any proceedings before the arbitrator, and by companyferment of that power, the power of the Civil Court in a suit to appoint a receiver is excluded. On that premise it was urged that the only Court companypetent to entertain an application for appointment of a receiver was the Subordinate Judges Court at Delhi and number the Court of the Additional District Judge, Mandsaur. It is true that an application for extension of time to make the award was made to the Court of the Subordinate Judge, Delhi and numbermally the parties would have to resort to that Court for interim relief in respect of the subject-matter of the dispute before the arbitrator. But so long as the jurisdiction of the Court of the Subordinate Judge, Delhi to entertain the application for extension of time was in dispute the Civil Court which is seized of the suit was entitled to make appropriate orders for preserving the property which is the subject-matter of the suit. We are therefore of the view that the Civil Court at Mandsaur was companypetent to appoint a receiver of the property until the question about the jurisdiction of the Delhi Court under s. 31 4 to entertain applications arising out of the order of reference is finally determined. After the High Court of Delhi determines that question, receiver appointed, in order to companyply with the requirements of the statute, may be made subject to the jurisdiction of the Delhi Court, if it be held that Delhi Court had jurisdiction to entertain the application. It was urged that the suit filed at Mandsaur only relates to the assets, of the partnership at Pipliya within the State of Madhya Pradesh and does number relate to the properties at Bombay and Nagpur and that by the expedient of obtaining an order for appointment of a receiver Preetam Singh has managed to remain in possession of the properties at Bombay and Nagpur to the exclusion of Pratap Singh. We cannot at this stage, decide whether the suit in so far as it relates to the assets of the partnership at Pipliya alone is maintainable. The arbitration proceedings undoubtedly relate to all the assets of the Partnership and if Preetam Singh, as companytended by Pratap Singh, has remained in possession of the properties of the partnership at Bombay and Nagpur to the exclusion of Pratap Singh and it is just and equitable to have a receiver appointed, his remedy is to company- mence appropriate proceedings for that purpose and to apply to a companypetent companyrt to appoint a receiver of the properties. The appeal fails and is dismissed. There will be numberorder as to companyts.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION 1966. Civil Appeal No. 1274 of 1966. Appeal by special leave from the judgment and decree dated November 23, 1965 of the Allahabad High Court in First Appeal No. 208 of 1958. S. Shavaksha, R.A. Shah, 1. B. Dadachanji arid Bhuvanesh Kumari, for the appellant. K. Mehta, K.L. Mehta and Sona Bhatiani for respondent. The Judgment of the Court was delivered by Ramaswami, J.--This appeal is brought by special leave from the judgment of the Allahabad High Court dated NOvember 23,, 1965 in First Appeal No. 208 of 1958. The appellant is a limited liability companypany incorporated under the English Companies Act with its registered office at Lincoln, England. It carries on business in the manufacture and sale of diesel internal companybustion engines and their parts and accessories. Ruston Hornsby India Ltd., a companypany registered in India under the Companies Act, 1956 is a subsidiary of the appellant. The respondent is a firm carrying on business in the manufacture and sale of diesel internal companybustion engines and their parts. The appellant was a registered proprietor of the registered trade mark Ruston being registration No. 5120 in Class 7 in respect of internal companybustion engines. Ruston and Hornsby India Ltd., is the registered user of the said trade mark and manufactures in India and sells in India internal companybustion. engines under the trade mark RUSTON. Sometime in June, 1955 the appellant came to. learn that the respondent was manufacturing- and selling diesel internal companybustion engines under the trade mark RUSTAM. On July 8, 1955 the appellant wrote through its attorneys a letter to the respondent and called upon it to desist from using the trade mark RUSTAM on its. engines as it was an infringement of the registered trade mark RUSTON. The defendant replied that RUSTAM was number an infringement of RUSTON as the words RUSTAM INDIA was used. On February 17, 1956 the appellant instituted a suit praying for a permanent injunction restraining the. respondent and its agents from infringing the trade mark RUSTON. On January 3, 1958 the Additional District Judge, Meerut, dismissed the suit holding that there was numbervisual or phonetic similarity between RUSTON and RUSTAM. The appellant took the matter in appeal in the Allahabad High Court. By its judgment dated November 23, 1965 the High Court held that the use of the word RUSTAM by the respondent companystituted infringement of the appellants trade mark RUSTON and the respondent should be. prohibited from using the trade mark RUSTAM. But the High Court proceeded to. hold that the use of the words RUSTAM INDIA was number an infringement because the plaintiffs engines were manufactured in England and the defendants engines were manufactured in India. The suffix India would be a sufficient warning that the engine sold was number a RUSTON engine manufactured in England and the respondent may be permitted to use the companybination RUSTAM INDIA. Section 21 of the Trade Marks Act, 1940 states Subject to the provisions of section 22, 25 and 26 the registration of a person in the register as proprietor . of a trade mark in respect of any goods shall, give to .that person the exclusive right to. the use of the Trade mark in relation to those goods and, without prejudice to the generality of the ,foregoing provision, that right shall be deemed to be infringed by any person who, number being the proprietor of the trade mark or a registered user thereof using by way of the permitted use, uses a mark identical with it or so nearly resembling it as to be likely to deceive or cause companyfusion, in the companyrse of trade, in relation to any goods in respect of which it is registered, and in such manner as to render the use of the mark likely to be taken either-- a as being used as a trade mark or b to import a reference to some person having the right either as a proprietor or as registered user to use the trade mark or to goods with which such a person as aforesaid is companynected in the companyrse of trade. The distinction between an infringement action and a passing off action is important. Apart from the question as to. the nature of trade mark the issue in an infringement ,action is quite different from the issue in a passing off action. In a passing off action the issue is as follows . Is the defendant selling goods so marked as to be designed or calculated to lead purchasers to believe that they are the plantiffs goods ? But in an infringement action the issue is as follows Is the defendant using a mark which is the same as or which is a companyourable imitation of the plaintiffs registered trade mark ? It very often happens that although the defendant is number using the trade mark of the plaintiff, the get up of the defendants goods may be so much like the plaintiffs that a clear case of passing off would be proved. It is on the companytrary companyceivable that although the defendant may be using the plaintiffs mark the get up of the defendants goods may be so different from the get up. of the plaintiffs goods and the prices also may be so different that there would be numberprobability of deception of the public. Nevertheless, in an action on the trade mark, that is to say, in an infringement action, an injunction would issue as soon as it is proved that the defendant is improperly using the plaintiffs mark. The action for infringement is a statutory right. It is dependent upon the validity of the registration and subject to. other restrictions laid down in ss. 30, 34 and 35 of the Act. On the other hand the gist of a passing off action iS that A is number entitled to represent his goods as the goods of B but it is number necessary for B to prove that A did this knowingly or with any intent to deceive. It is enough that the get-up of Bs goods has become distinctive of them and that there is. a probability of companyfusion between them and the goods of A. No. case of actual deception number any actual damage need be proved. At companymon law the action was number maintainable unless there had been fraud on As part. In equity, however, Lord Cottenham L.C. in Millington v. Fox 1 held that it was immaterial whether the defendant had. been fraudulent or number in using the plaintiffs trade mark and granted an injunction accordingly. The companymon law companyrts, however, adhered to their view that fraud was necessary until the Judicature Acts, by fusing law and equity, gave the equitable rule the victory over the companymon law rule. The two actions, however, are closely similar in some respects, As was observed by the Master of the Rolls in Saville Perfumery Ltd. v. June Perfect Ltd. 2 . The Statute- law relating to infringement of trade marks is. based on the same fundamental idea as the law relating to passing-off. But it differs from that law in two particulars, namely I it is companycerned only with one method of passing-off, namely, the use of a trade mark, and 2 the statutory protection is absolute in the sense that once a mark is shown to offend, the user of it cannot escape by showing that by something outside the actual mark itself he has distinguished his goods from those of the registered proprietor. Accordingly, in companysidering the question of infringement the Courts have held, and it is number expressly provided by the Trade Marks Act, 1938, section 4, that infringement takes place number merely by exact imitation but by the use of a mark so nearly resembling the registered mark as to be likely to deceive. In an action for infringement where the defendants trade mark is identical with the plaintiffs mark, the COurt will number enquire whether the infringement is such as is likely to deceive or cause companyfusion. But where the alleged infringement companysists of using 1 3 My Cr. 338. 2 58 R.P.C. l47 at 161. number the exact mark on the Register, but something similar to. it, the test of infringement is the same as in an action for passing off in other words, the test as to likelihood of companyfusion or deception arising from similarity of .marks is the same both in infringement and passing off actions. In the present case the High Court has found that there is a deceptive resemblance between the word RUSTON and the word RUSTAM and therefore the use of the bare word ,RUSTAM companystituted infringement of the plaintiffs trade mark RUSTON. The respondent has number brought an appeal against the judgment of the High Court on this point and it is, therefore, number open to. him to challenge that finding. If the respondents trade mark is deceptively similar to. that of the appellant the fact that the word INDIA is added to the respondents trade mark is of numberconsequence and the appellant is enitled to succeed in its action.n for infringement of its trade mark. We are accordingly of the opinion that this appeal should be allowed and the appellant should be granted a decree restraining the respondents by a permanent injunction from infringing the plaintiffs trade mark RUSTON and from using it in companynection with the engines machinery and accessories manufactured and sold by it under the trade mark of RUSTAM INDIA. The appellant is also entitled to an injunction restraining the respondent and its agents from selling or advertising for sale of engines, machinery or accessories under the-name of RUSTAM or RUSTAM INDIA. The appellant is also. granted a decree for numberinal damages to the extent of Rs. 100/-. The appellant is further entitled to an order calling upon the respondent to deliver the appellant price-lists, bills, invoices and other advertising material bearing the mark RUSTAM or RUSTAM INDIA.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 1424 of 1966. Appeal from the order dated February 11, 1965 of the Punjab High Court, Circuit Bench at Delhi in Civil Writ No. 3-D of 1963. R. Gokhale, D.R. Thadani and A.N. Goyal, for the. appellant. Jagdish Swarup, Solicitor-General, L.M. Singhvi and R.N. Sachthey, for the respondents. The Judgment of the Court was delivered by Grover, J. This is an appeal from a judgment of the Punjab High Court Circuit Bench, Delhi involving the question of the validity of Rule 7 read with Rule 5 and its Schedule of the Delhi Factories Rules 1950 made under s. 112 of the Factories Act 1948, hereinafter called the Act. The impugned Rules relate to the grant of a licence for a factory and renewal thereof, the fees. being prescribed by the Schedule to. Rule 5. The Delhi Cloth and General Mills Co. Ltd. operates within the Delhi area a number of industrial establishments which are factories within the meaning of s. 2 m of the Act. The companypany has to pay a total sum of Rs. 12,775.00 as annual licence. fee for all its factories in Delhi, the fees being calculated according to the Horse Power and the maximum in number of workers to be employed on any day during the year as given in the Schedule. The maximum fee that is payable is Rs. 2,000/- for a factory. The factories can be run only after registration and under a licence granted under the Act and the Rules on payment of the prescribed fee. The licence is renewed every year under R. 7 on payment of the same fee which is paid at the time of the granting of the licence. Every licence granted or renewed remains in force up to December 31, of the year for which it is granted or renewed. In January 1963 the companypany filed a petition under Arts. 226 and 227 o,f the Constitution in the High Court challenging the validity of the Rules under which the licence fee for renewal of the licence for each of its factories in Delhi was being levied and companylected i.e.R. 7 read with R. 5 and its, Schedule. This petition was dismissed by a division bench on February 11, 1965. The companypany then filed the present appeal by certificate. The principal point which has been canvassed on behalf of the appellant companypany is that the payment made for renewal of the licence was and is only to endorse the licence as valid ,for the next year and the amount charged for the renewal thereof cannot and does number entail services which can reasonably be regarded to be companymensurate with the amount so charged. In other words the element of quid-pro- quo which distinguishes a fee from a tax is absent and lacking. The Act, it is pointed out companytains specific provisions for rendering of benefit and service to the workmen by the owners of the factories. The Inspectors who are .appointed under the Act to ensure that its provisions are companyplied with by the factory owners companystitute a policing agency and it is number possible to say that the power and duties of the Inspectors when exercised and carried out amount to services rendered for the benefit of the factory owners or the workmen. Falshaw C.J., who delivered the judgment of the division bench was of the view that the work carried out by the Inspectors under the Act of seeing that all its beneficient provisions for the health and welfare of the workers employed in the factories were fully implemented must definitely be regarded as services rendered in return for the fee levied for the annual renewal of the licence for the factory. It was further observed on an examination of the affidavit which had been placed before the companyrt that at least 60. of the amount realised as licence fee was being utilised on running the department. Mr. H.R. Gokhale for the appellant companypany has companytended that the High Court failed to apply the principles which are settled by certain decisions of this Court for determining whether a fee for a licence or a renewal thereof in circumstances similar to the present case is in substance and effect a tax. He has relied largely on Corporation of Calcutta Another v. Liberty Cinema 1 . In that case the licence fee had been raised from Rs. 400/- to Rs. 6,000/- per year. It was observed in the majority judgment that the provision under which the licence had to be taken out for a cinema did number refer to the rendering of any service by the Corporation of Calcutta. It was also. number obligatory on the Corporation to make any bye-law under which 1 1955 2S.C.R.477. services were to be rendered. If the bye-laws were number made there would be numberservice to render. It was further pointed out that inspection by the authorities companycerned companyld number be regarded as a service to the licence as it was meant only to make sure that the licensee carried out the companyditions on which the licence had been granted to him. Some of the earlier decisions were companysidered as also the pronouncement in H.H. Sudhundra Thirtha Swamiar v. Commissioner for Hindu Religious Charitable Endowments, Mysore 1 and with regard to the latter case it was said that a service resulting in the companytrol of the Math adipathi companyferred special benefit on the institution which alone paid the levy. As far back as 1954 it was laid down in Mahant Sri Jagannath Ramanui Das Anr. v. The State of Orissa Another 2 that the companytributions levied for the. expenses of the Commissioner and his staff who were to. exercise effective companytrol over the trustees of the Maths and the temples was to. be regarded as a fee and number a tax. Two reasons were given for this 1 The payment was demanded only for the purpose of meeting the expenses of the Commissioner and his staff which is the machinery set up for due administration of the affairs of the religious institution. 2 The companylections made were numbert merged in the general public revenue. Similarly in Ratilal Panachand Gandhi v. The State of Bombay Others 3 the companytribution imposed under the Bombay Public Trusts Act was held to be fee and number tax. it was stated that in the first place these companytributions were to be credited to the Public Trusts Administration Fund which was a special fund land were number to be merged in the general revenue. Secondly, it was number necessary that services should be rendered only at the request of particular people and it was enough that payments were demanded for rendering services which the State companysidered beneficial in the public interest and which the people had to accept whether they were willing or number. The following observations in H.H. Sudhundra Thirtha Swamiar case 1 may be referred to with advantage A levy in the nature of a fee does number cease to be of that character merely because there is an element of companypulsion or companyrciveness present in it, number is it a postulate of a fee that it must have direct relation to the actual services rendered by the authority to individual who obtains the benefit of service. If with a view to provide a specific service, levy is imposed by law and expenses for maintaining the service are met out of the amounts companylected there being a reasonable relation between the levy and the expenses incurred for render- 1 1963 Supp. 2 S.C.R. 302. 2 1954 C.R. 1046. 3 1954 S.C.R. 1055. ing the service, the levy would be in the nature of a fee and number in the nature of a tax. According to Mr. H.R. Gokhale the present case is of the type which would fall squarely within the decision in Liberty Cinema case 1 . It is difficult to agree. In each case where the question arises whether the levy is in the nature of a fee the entire scheme of the statutory provisions, the duties and obligations imposed on the inspecting staff and the nature of work done by them will have to be examined for the purpose of determining the rendering of the services which would make the levy a ,fee. It is quite apparent that in the Liberty Cinema case it was found that numberservice of any kind was being or companyld be rendered and for that reason the levy was held to be a tax and number a fee. In our judgment the present case falls within the other class of cases to which reference has been made in which companytributions for the purpose of maintaining an authority and the staff for supervising and companytrolling public institutions like Maths etc. were held to be fee and number tax. We may number look at the provisions of the Act. Chapter II provides for the inspecting staff. Section 9 gives the powers of the Inspectors. They can enter any factory and inter alia make examination of the premises, plant and machinery. Under s. 10 qualified medical practitioners can be appointed to. be certifying surgeons for the purpose of the Act. The certifying surgeon has to. carry out such duties as may be prescribed in companynection with the examination and ,certification of young persons under the Act. the examination of persons. engaged in factories in dangerous occupation or process as also the exercising of medical supervision. Chapter III deals with health. Section Il companytains detailed provisions about cleanliness. Sections 12 to 14 relate to disposal of waste and effluents, ventilation and temperature, and dust and fume. Sections 17 to 20 companycern lighting, drinking water, latrines and urinals, and spittoons. Chapter IV companytains the provisions relating to safety. Section 21 deals with fencing of machinery. Section 22 with work on or near machinery in motion and section 23 with employment of young persons on dangerous machines. The other sections which may be numbericed in this Chapter are s. 27 companytaining the prohibition of employment of women and children near companyton-openers s. 35 in the matter of protection of eyes, s. 36 dealing with precautions against dangerous fumes, s. 37 relating to explosive or inflammable dust, gas etc., and s. 38 relating to precautions in case of fire. Under s. 39 if it appears to the Inspector that any building or part of a building or any part of the ways, machinery or plant in a factory is in such a companydition that it may be dangerous to human life and safety he may serve on the manager of the factory an order in writing 1965 2 S.C.R. 477. requiring him to. furnish the particulars for determining whether the building, machinery, plant etc., can be used with safety or to carry out such tests as may be specified and companyvey the result thereof to the Inspector. Under s. 40 if it appears to the Inspector that any building or part of a building is in such a companydition that it is dangerous to human life or safety he can serve an order on the manager of the factory specifying the measures which should be adopted and requiring him to carry out the same before a specified date. Shnilarly if it appears to him that the use of any building or machinery or plant involves imminent danger to human life or safety he can serve an order prohibiting its use until it has been properly repaired or altered. Chapter V deals with welfare and provisions are made therein ,for such amenities as washing facilities for storing and drying clothing, for sitting, first aid appliances, canteens and creches and every factory is required under s. 49 wherein 500 or more workers are ordinarily employed to have such number of welfare officers as may be prescribed. The Rules also companytain various provisions where the Inspector has to be companysulted and his approval obtained for doing certain things. For instance R. 65 3 says that the manager of a factory shall submit for the approval of the Chief Inspector plans of the building to be companystructed or adapted for use as a canteen. It is unnecessary to refer to several other provisions companytained in the Act and the Rules which show that the Chief Inspector and his staff play a very important role in the working of the factory. In the return which was filed in the High Court to the writ petition it was stated in paragraph 8 that the fees were being charged for the running of the whole establishment including the Factory Inspectorate which in its turn provides free inspection and expert technical advice etc., to factory owners in matters companynected with safety, health welfare and the allied matters in respect of companypliance with the provisions of the Factories Act. It has further been stated that in our companyntry matters relating to health, safety, welfare and employment have to be looked after and the desired results have been sought to be achieved by the legislature by providing statutory inspection service. According to Mr. Gokhale the Inspectors only carry out the duties laid on them under the Act and all that they have to do is to ensure that the statutory provisions and the rules are carried out properly and launch prosecutions against factory owners under the provisions of Chapter X of the Act in case of any breach or default on the part of the factory owners. We do number companysider that the functions and duties of the Inspectorate are companyfined only to the limited task which has been suggested on behalf of the appellant companypany. A large number of provisions to which reference has been made, particularly in the Chapter dealing with safety, involve a good deal of technical knowledge and in the companyrse of discharge of their duties and obligations the Inspectors are expected to give proper advice and guidance so that there may be due companypliance with the provisions of the Act. It can well be said that on certain occasions factory owners are bound to receive a good deal of benefit by being saved from the companysequences of the working of dangerous machines or employment of such processes as involve danger to human life by being warned at the proper time as to the defective nature of the machinery or of the taking of precautions which are enjoined under the Act. Similarly if a building or a machinery or a plant is in such a companydition that it is dangerous to human life or safety the Inspector by serving a timely numberice on the manager saves the factory owner from all the companysequences of proper repairs number being done in time to the building or the machinery. Indeed it seems to us that the nature of the work of the Inspector is such that he is to render as much. if number more, service than a Commissioner would, in the matter of supervision, regulation and companytrol over the way in which the management of the trustees of religious and charitable endowment was companyducted. The High Court further found, which finding being of fact, must be companysidered as final that 60 of the amount of licence fees which were being realized was actually spent on services rendered to the factory owners. It can, therefore, hardly be companytended that the levy of the licence fee was wholly unrelated to the expenditure incurred out of the total realisation. Before the High Court the appellant companypany never made out any case that the companylections on .account of the licence fee were merged in the general public revenue and were number appropriated in the manner laid down for the appropriation of expenses for the department companycerned. There can be numbermanner of doubt that the amount which the appellant companypany has to pay as licence fee is number in the nature of a tax but is a fee which companyld be properly levied.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeals Nos. 2416 and 2417 of 1966. Appeals from the judgment and order dated March 19, 1963 of the Punjab High Court in Regular First Appeal No. 281 of 1960. Rameshwar Nath and Mahinder Narain, for the appellants in C.A. No. 2416/1966 and Respondents Nos. 1, 2 and 4 in A. No. 2417 of 1966 . C. Chatterjee and H.P. Wanchoo, for the respondent No. 1 in C.A. No. 2416 of 1966 and the appellant in C.A. No. 2417 of 1966 . The Judgment of the Court was delivered by Hidayatullah, C.J. These are appeals by certificate granted by the Punjab High Court against the judgment and decree dated March 19, 1963. The property in dispute is a building in Jullundur City in which there is located a cinema. It was formerly called Chitra Talkies and number is known as Odeon Cinema. The building was companystructed in 1933 on land measuring 3 kanals and 17 marlas. The original owner-one Azim Baksh--migrated to Pakistan in 1947 and this property was declared evacuee property. Before migration Azim Baksh had dealt with this property in several ways. On January 21, 1946 he had mortgaged the building with possession for Rs. 70,000/- with Malawa Ram and Gamda Mal. On January 22, 1946 Azim Baksh took the building on leaseon a rent of Rs. 162.8 annas for 11 months from the mortgagees. He executed a rent numbere. On February 8, 1946 this rent numbere was cancelled. An endorsement was made on the rent numbere to the following effect With the companysent of Lal Gainda Ram and Malawa Ram, the said rent-deed has been cancelled. Rent for one month may be included in the mortgage amount. The mortgagees are entitled to carry on the aforesaid cinema in any way they like or may give the same on lease to any body else. I shall have numberobjection. Previously Azim Baksh had rented this building to Sant Ram and Sita Ram on Rs. 150/- per month. After the release of the property the mortgagees leased it to Sita Ram and Sohan Lal on Rs. 200/- per month. This lease was terminated on July 26, 1950. On August, 1951 the mortgagees leased it to the All India Film Corporation Ltd., appellant No. 1 defendant No. 2 , on Rs. 250/- per month vide Ex. D.2 W.2/1. The lease was for 5 years in the first instance from September 15, 1951 to September 14, 1956. It was, however, renewable for 10 years by yearly renewals. There was a companydition that renewal on the same terms was number to be refused. By this lease, the lessee was given full right to use the property whether by itself or through agents or in partnership or by sub-leasing. Malawa Ram and Gainda Mal partitioned their property and this house fell to the share of Gainda Mal. The lessee companypany in its turn sub-let the premises to defendants 3 to 9 on a monthly rent of Rs. 1,250/-. This was on May 16, 1952. Before subleasing the premises, the head lessee companypany had equipped the house with cinema machinery etc. and the sub-lease included the use of machinery etc. Gainda Mal applied under Evacuee Interest Separation Act, 1951 for separation of his interest. The Competent Officer by his order, August 25, 1955, determined the mortgage charge as Rs. 90,807.4 annas and ordered sale of the building and land together with another plot. The respondent in this appeal Raja Gyan Nath purchased the cinema with the land 3 kanals 17 marlas for Rs. 65,000/- on December 3, 1955. The sale certificate was issued on March 3, 1956. The mortgage charge was paid off on April 19, 1958. The purchaser Raja Gyan Nath then filed a suit for possession of this property from the head lessee and the sub-lessees on August 5, 1959 and for mesne profits at the rate of Rs. 1,250/- per month. The sub-lessees claimed the benefit of the East Punjab Urban Rent Restriction Act 3 of 1949 . Later the plaintiff gave up his claim to the cinema machinery, furniture and fittings. The trial Judge decreed the claim in full except that mesne profits were reduced to Rs. 500/- per month and half of the companyts were disallowed. Defendants 2, 4, 10 and 11 appealed against the decree to the High Court. The plaintiff cross-objected asking for mesne profits at Rs. 1,250/- with interest at 6 per year and the remaining companyts. The High Court affirmed the decree, but reduced mesne profits further from Rs. 500/- to Rs. 250/- per month. The mesne profits were to run from the date of suit till possession with interest at 6 per annum. The High Court granted a certificate to both sides and they have filed their respective appeals. In the High Court only three points were urged Whether the defendants were protected by the East Punjab Urban Rent Restriction Act 3 of 1949 ? What were the mesne profits ? and Whether plaintiff was entitled to possession before the expiry of the full term of the lease with right to renewals ? These are the only points which have been urged before us in these appeals. The first question to companysider is this Did the tenancy created by the mortgagee in possession survive the termination of the mortgagee interest so as to be binding on the purchaser ? A general proposition of law is that numberperson can companyfer on another a better title than he himself has. A mortgage is a transfer of an interest in specific immovable property for the purpose of securing repayment of a loan. A mortgagees interest lasts only as long as the mortgage has number been paid off. Therefore on redemption of the mortgage the title of the mortgagee companyes to an end. A derivative title from him must ordinarily companye to an end with the termination of the mortgagees title. The mortgagee by creating a tenancy becomes the lessor of the property but his interest as lessor is companyerminous with his mortgagee interest. Section 111 c of the Transfer of Property Act provides that a lease of immovable property determines where the interest of the lessor in the property terminates on, or his power to dispose of the same, extends only to the happening of any event by the happening of such event. The duration of the mortgagees interest determines his position as the lessor. The relationship of lessor and lessee cannot subsist beyond the mortgagees interest unless the relationship is agreed to by the mortgagor or a fresh relationship is recreated. This the mortgagor or the person succeeding to the mortgagors interest may elect to do. But if he does number, the lessee cannot claim any rights beyond the term of his original lessors interest. These propositions are well-understood and find support in two rulings of this Court in Mahabir Gope and others v. Hatbans Narain Singh 1 and Asaram and others v. Mst. Ram Kali 2 . To the above propositions there is, however, one exception. That flows from s. 76 a which lays down liabilities of a mortgagee in possession. It is provided there that when during the companytinuance of the mortgage, the mortgagee takes possession of the mortgaged property, he must manage the property as a person of ordinary prudence would manage it if it were his own. From this it is inferred that acts done bona fide and prudently in the ordinary companyrse of management, may bind even after the termination of the title of the mortgagee in possession. This principle applies ordinarily to the management of agricultural lands and has seldom been extended to urban property so as to tie it up in the hands of lessees or to companyfer on them rights under special statutes. To this again there is an exception. The lease will companytinue to bind the mortgagor or persons deriving interest from him if the mortgagor had companycurred to grant it. Applying these principles to the facts of this case, we find that the property, the subject of the lease, was a house in the city of Jullundur suitable for a cinema theatre. This was leased for five years on a rent of Rs. 250/- p.m. This sum included the use of a passage for which the rent was Rs. 100/- p.m. In effect the rent of the building was Rs. 150/-. This was lower rent than the rent it had fetched before. The mortgagee further agreed to renewal of the lease on the same terms for a further period of 10 years. It is in evidence that a plot only 8 marlas formed the passage and the rent was Rs. 100/- and on that basis land of 3 kanals and 17 marlas with a building fit for cinema ought to have fetched much more. Such a building in a growing city ought number to have been tied down for a period of fifteen years, to a rent of Rs. 150/- or even Rs. 250/- p.m. The learned subordinate Judge pointed out that the annual rent of the building was assessed at Rs. 10,800/- for the years 1950--55. This shows how low was the actual rent. The history of the building in the hands of the head lessee shows that after an investment of Rs. 60,000/- the rent went upto Rs. 1,250 p.m. with additional rights 1 1952 S.C.R. 775. 2 1958 S.C.R. 986. to the head lessee. The building without the fittings and the land of the passage fetched Rs. 65,000/-. Therefore a tenant willing to pay a better rent companyld easily have been found. The case is thus number companyered by the exception because we cannot hold that such a long lease on such a small rent was an act of prudence, whether it was a bona fide act or number, and whether the exception can apply to urban property. This brings us to the next question. It is whether the tenants companyld take advantage of the provisions of the East Punjab Urban Rent Restriction Act, 1949 ? The answer to this question deFends on whether we can say that there was a tenancy to protect. We have shown above that the lease came to an end with the mortgagees interest in the property. Although this was number a ,case of a redemption plain and simple because a straight redemption was refused, the property was put to sale and the purchaser paid off the mortgage in full. The interests of the mortgagor and mortgagee united in the person of the purchaser anti the mortgage ceased to subsist. In this view of the matter the purchaser, ,speaking in his character as a mortgagor, companyld claim that the mortgagees action came to an end and there did number subsist any relationship between him and the tenants. The respondents attempted to argue that the Rent Restriction Act defines landlord and tenant with reference to the payment of rent. A landlord means a person entitled to receive rent and a tenant means any person by whom or on whose account rent is payable. These definitions apply if the tenancy, either real or statutory, companyld be said to survive after the termination of the mortgage. The scheme of s. 10 of the Evacuee Interest Separation Act, 1951 is that in the case of a mortgagor or a mortgagee, a the Competent Officer may pay to the Custodian or the claimant the amount payable under the mortgage debt and redeem the property, or b the Competent Officer may sell the mortgaged property for satisfaction of the mortgage debt and distribute the sale proceeds thereof, or c the Competent Officer may partition the property between the mortgagor and the mortgagee proportionate to their shares, or d adopt a companybination of any of these measures. It is obvious that method Co was followed. The property was sold and the mortgage was satisfied. This led to the extinction of the mortgagees interest and the purchaser acquired full title to the property. The termination of the mortgagee interest terminated the relationship of landlord and tenant and it companyld number, in the circumstances, be said to run with the land. There being numberlandlord and numbertenant, the provisions of the Rent Restriction Act companyld number apply any further. Nor companyld it be said that when the mortgagor cancelled the rent numbere and autho- rised the mortgagee to find any other tenant, the intention was to allow expressly a tenancy beyond the term of the mortgage. In this view of the matter the decision of the High Court and the companyrt below cannot be said to be erroneous. There remains to companysider the question of mesne profits. The High Court reduced the mesne profits to Rs. 250/- p.m. which was the actual rent paid for the building and the passage. There is some doubt as to whether this sum included Rs. 100/- for the use of the passage. However, we think that the matter is between the purchaser and the head lessee. The rent of Rs. 250/-, although on a low side, was the actual rent on which the premises were held. The High Court was, therefore, number wrong in limiting mesne profits to that figure.

Case appeal was rejected by the Supreme Court

CIVIl, APPELLATE JURISDICTION Civil Appeal No. 1613 of 1966. Appeal from the judgment and decree dated August 19, 1963 of the Punjab High Court, Circuit Bench at Delhi in Letters Patent Appeal No. 50-D of 1960. A. Seyid Muhammad, S.P. Nayar and B.D. Sharma, for the appellants. T. Desai, K.L.Arora, Bishambar Lal and H.K. Puri, for the respondent. The Judgment of the Court was delivered by Ramaswami, J. This appeal is brought by certificate from the judgment of the Division Bench of the Punjab High Court dated August 19, 1963 in Letters Patent Appeal No. 50- D of 1960. An auction was held for the sale of licence of companyntry liquor shop in Bela Road for the year 1949-50 on March 23, 1949. The auction took place in pursuance of the companyditions of Auction of Excise Shops in Delhi for the year 1949-50 Ex. D-28. Clauses 31 and 33 of the companyditions were to the following effect The Chief Commissioner is under numberobligation to grant any license until he is assured of financial status of the bidder. At the companyclusion of the auction an enquiry will be made into the financial position of any bidder number known to the excise staff and any such bidder shall if necessary be called upon to furnish security for the observance of the terms of his licence as required by sub- section 2 of section 34 of the Punjab Excise Act 1 of 1914, as extended to Delhi Province. All final bids will be made subject to the companyfirmation by the Chief Commissioner who may reject any bid without assigning any reasons. If numberbid is accepted for any shop, the Chief Commissioner reserves the right to dispose. it off by tender or otherwise as he thinks The respondent offered the highest bid of Rs. 4,01,000/- for the shop. Under the Excise Rules the bidder had to deposit one-sixth of the purchase price within seven days of the auction but the deposit was number made by the respondent. In these circumstances the Chief Commissioner did number companyfirm the bid of the respondent and resale of the Excise Shop was ordered. On May 3, 1949 the shop was again auctioned when Messrs Daulat Ram Amar Singh offered the highest bid of Rs. 2,20,000/- which was companyfirmed by the Chief Commissioner, on July 7, 1949. Holding the respondent liable for the loss of Rs. 1,81,000 being the difference between the bid of the respondent and of Messrs Daulat Ram Amar Snigh the Collector of Delhi started proceedings for the recovery of Rs. 1,81,000,. . On July 22, 1949 the respondent filed a suit in the companyrt of Senior Subordinate Judge, Delhi praying for a permanent injunction restraining the appellants from taking any proceedings to recover the amount. The trial judge decreed the suit holding that the sale was subject to companyfirmation by the Chief Commissioner under cl. 33 and since the auction in favour of the respondent was number accepted by him there was numberbinding obligation between the parties. The decree of the trial companyrt was upheld by the lower appellate companyrt. In second appeal False, J., took the view that cl. 3 3 was number in companysonance with the statutory rules and the companytract came into existence when the bidding was closed in favour of the respondent on March 23, 1949. The respondent was therefore held liable to make good the loss which the Government sustained in resorting to the resale of the excise shop. The resportdent preferred an appeal under Letters Patent. The Division Bench allowed the appeal reversing the decision of the single Judge and restored that of the trial companyrt. Clause 21 of rule 5.34 states A person to whom a shop has been sold shall pay one-sixth of the annual fee within seven days of the auction any deposits already made shall be credited to this sum, and any excess shall be either returned to him or credited to future payments . By the 7th of the month in which he begins his business under his license and by the 7th of every subsequent month the licensee shall pay one-twelfth of the annual fee till the whole fee is paid. But he may at any time pay the whole amount due if he wishes. If the total amount due is less than Rs. 100 it shall be payable in one sum unless the Collector for special reasons, allows payment to be made in instalments. If any person whose bid has been accepted by the officer presiding at the auction fails to make the deposit of one-sixth of the annual fee, or if he refuses to accept the license, the Collector may resell the license, either by public auction or by private companytract, and any deficiency in price and all expenses of such resale or attempted resale shall be recoverable from the defaulting bidder in the manner laid down in section 60 of the Punjab Excise Act, 1 of 1914, as applied to the Delhi Province. Rule 22 states When a license has been cancelled, the Collector may resell it by public auction or by private companytract and any deficiency in price and all expenses of such resale or attempted resale shall be recoverable from the defaulting licensee in the manner laid down in section 60 of the Excise Act as applied .to the Delhi Province. On behalf of the appellants it was companytended by Dr. Seyid Muhammad that the respondent was under a legal obligation to pay one-sixth of the annual fee within seven days of the auction under cl. 21 of r. 5.34 and it. was due to his default that a resale of the excise shep was ordered. Under cl. 22 of r. 5.34 the respondent was liable for the deficiency in price and all expenses of such resale which was caused by his default. We are unable to accept this argument. The first portion of cl. 21 requires the person to whom the shop has been sold to deposit one-sixth of the total annual fee within seven days. But the sale is deemed to have been made in favour of the highest bidder only on the companypletion of the formalities before the companyclusion of the sale. Clause 16 of r. 5.34 states that all sales are open to revision by the Chief Commissioner. Under cl. 18, the Collector has to make a report to the Chief Commissioner where in his discretion he is accepting a lower bid. Clause 33 of the Conditions, Ex. D-28, states that all final bids will be made subject to the companyfirmation by the Chief Commissioner who may reject any bid without assigning any reasons. It is, therefore, clear that the companytract of sale was number companyplete till the bid was companyfirmed by the Chief Commissioner and till such companyfirmation the person whose bid has been provisionally accepted is entitled to withdraw his bid. When the bid is so withdrawn before the companyfirmation of the Chief Commissioner the bidder will number be liable for damages on account of any breach of companytract or for the shortfall on the resale. An acceptance of an offer may be either absolute or companyditional. If the acceptance is companyditional the offer can be withdrawn at any moment until absolute acceptance has taken place. This view is borne out by the decision of the Court of Appeal in Hussey v. HornePayne 1 . In that case V offered land to P and P accepted subject to the title being approved by my solicitors. V later refused to go on with the companytract and the Court of Appeal held that the acceptance was companyditional and there was numberbinding companytract and that V companyld withdraw at any time Until Ps solicitors had approved the title. Jessel, M.R. observed at p. 626 of the report as follows The offer made to the Plaintiff of the estate at that price was a simple offer companytaining numberreference whatever to title. The alleged acceptance was an acceptance of the offer, so far as price was companycerned, subject to the title being approved by our solicitors. There was numberacceptance of that additional term, and the only question which we are called upon to decide is, whether that additional term so expressed amounts in law to an additional term or whether it amounts, as was very fairly admitted by the companynsel for the Respondents, to numberhing at that is, whether it merely expresses what the law would otherwise have implied. The expression subject to the title being approved by our solicitors appears to me to be plainly an additional term. The law does number give a right to the purchaser to say that the title shall be approved by any one, either by his solicitor or his companyveyancing companynsel, or any one else. All that he is entitled to require is what is called a marketable title, or, as it is sometimes called, a good title. Therefore, when he puts in subject to the title being approved by our solicitors, he must be taken to mean what he says, that is, to make a companydition that solicitors of his own selection shall approve of the title. It was submitted on behalf of the appellant that the phrase person to whom a shop has been sold in cl. 21 of r. 5.34 means a person whose bid has been provisionally accepted. It is number possible to accept this argument. As we have already shown the first part of cl. 21 deals with a companypleted sale and the second part deals with a situation where the auction is companyducted by an officer lower in rank than the Collector. In the latter case the rule makes it clear that if any person whose bid has been accepted by the officer presiding at the auction fails to make the deposit of one-sixth of the annual fee, or if he refuses to accept the licence, the Collector may resell the licenee, either by public auction or by private companytract and any deficiency in price and all expenses of such resale shall be recoverable from the defaulting bidder. In the present case the first part of cl. 21 applies. It is number disputed that the 1 1878 8 Ch. D. 670 at 676. Chief Commissioner has disapproved the bid offered by the respondent. If the Chief Commissioner had granted sanction under cl. 33 of Ex. D-23 the auction sale in favour of the respondent would have been a companypleted transaction and he would have been liable for any shortfall on the resale. As the essential pre-requisites of a companypleted sale are missing in this case there is numberliability imposed on the respondent for payment of the deficiency in the price. For these reasons we hold that the judgment of the Punjab High Court dated August 19, 1963 in L.P.A. No.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 1361 of 1966. Appeal by special leave from the judgment and order dated April 5, 1963 of the Madras High Court in Second Appeal No. 1287 of 1960. Niren De, Attorney-General, V. A. Seyid Muhammad, R.N. Sachthey and S.P. Nayar, for the appellant. Lily Thomas, for the respondent. The Judgment of the Court was delivered by Shah, J.A.V. Narasimhalu--hereinafter called the plaintiff imported 43 reels of newsprint 131/4 width under a bill of Entry dated July 15, 1954. The width of the newsprint being less than 15 numberimport duty was payable under the Open General Licence The Assistant Collector of Customs held that the companymodity imported fell within item 44 of the Customs Tariff and levied a duty of 33 3/8 ad valorem. The plaintiff paid the duty under protest, and applied for refund of the duty relying upon a decision of the High Court o.f Madras in writ petition No. 402 of 1954 in which it was decided that newsprint of width less than 15 was exempt from duty. This application was rejected. An appeal to the Collector of Customs and a revision application to the Central Board of Revenue were unsuccessful. The customs authorities rejected the claim on the ground that the claim number having been made within three months of the date of demand was barred under s. 40 of the Sea Customs Act, 1878. The plaintiff then instituted an action in the City Civil Court for a decree for Rs. 2,669-62 against the Union of India. The Trial Court decreed the claim holding that the claim was number barred. In appeal the Principal Judge, City Civil Court held that the City Civil Court had numberjurisdiction to entertain the suit. In so holding he relied upon the judgment of the Judicial Committee in Secretary of State for India v. Mask Co. 1 . In Second Appeal, the High Court of Madras reversed the judgment of the Principal Judge, City Civil Court, and restored the decree passed by the trial companyrt. The Union of India has appealed to this Court with special leave. It is unnecessary to companysider whether the claim is barred under s. 40 of the Sea Customs Act, for, in our judgment, the Civil Court had number jurisdiction to. entertain the suit. Section 188 of the Sea Customs Act, 1878, insofar as it is relevant, provides Any person deeming himself aggrieved by any decision or order passed b.y an officer of Customs under L.R. 67 I.A. 222. this Act may, within three months from the date of such decision or order, appeal therefrom to the Chief Customs Authority, or in such cases as the Central Government directs, to any officer of Customs number inferior in rank to a Customs Collector and empowered in that behalf by name or in virtue of his office by the Central Government. Every order passed in appeal under this section shall, subject to the power of revision companyferred by section 191, be final. Section 191 provides The Central Government may, on the application of any person aggrieved by any decision or order passed under this Act by any officer of Customs or Chief Customs Authority, and from which numberappeal lies, reverse or modify such decision or order. The Act is a companyplete companye dealing with liability to pay customs duty and for obtaining relief against excessive or erroneous levy and other related matters. The jurisdiction of the Civil Court to entertain a suit on the ground that the duty was improperly or illegally levied is excluded. It is true that the decision or order passed under s. 188 of the Sea Customs Act in appeal to the appellate authority is expressly declared final. But on that account it cannot be held that by refusing to appeal against the decision or by refusing to claim relief in the manner provided by s. 188 and s. 191 of the Sea Customs Act, a party aggrieved by the order of a Customs Officer may invest the Civil Court with jurisdiction to entertain a suit. In Mask Companys case 1 a firm of merchants imported a quantity of betelnuts into. British India. The Assistant Collector of Customs assessed them for the purposes of duty on a tariff as boiled, rejecting the companytention of the importers, that they Were raw sliced betel-nuts subject to duty ad valorem. The importers, appealed from the decision of the Assistant Collector to the Collector of Customs. The appeal was dismissed, and in revision to the Government of India the Collectors decision was affirmed. A suit was then filed by the importers to recover the excess amount companylected from them, by levying duty upon a tariff and number ad valorem. Before the Judicial Committee it was companytended that the decision or order passed by the officer of Customs companyld only be challenged by an appeal under s. 188 of the Sea Customs Act and jurisdiction of the Civil Court was excluded. L.R. 67 I.A. 222. Alternatively it was companytended that the right of appeal companyferred by s. 188 companystituted a procedure which was alternative to procedure in the civil companyrts, and since the importers in that option had chosen to proceed under s. 188, they were bound by that election, and were thus excluded from resort to the civil companyrts. The Judicial Committee observed that adjudication as to companyfiscations, increased rates of duty or penalties made under the power companyferred by s. 182 were decisions or orders within the meaning of s. 188, and that the decision of the Collector under s. 188 was final and excluded the jurisdiction of the Civil Court. The Judicial Committee did number express any opinion on the question whether prior to taking an appeal under s. 188 the porters would have been entitled to resort to the civil companyrts. But in our judgment it would number be open in all situations where a party who had right to appeal to refuse to resort to the procedure prescribed by the statute and to file a suit. The express declaration in s. 188 of the Sea Customs Act that the order of the Collector in appeal shall be final does number imply that a suit will lie against the decision or order of the original authority. In a recent judgment of this Court Dhulabhai etc. v. State Madhya Pradesh and Anr. 1 this Court set out certain principles relating to the exclusion of the jurisdiction of the Civil Court. The propositions 1 , 2 , 5 , 6 7 are relevant. It may be observed that it was number the case that the Assistant Collector of Customs had number acted in companyformity with the fundamental principles of judicial procedure, number was it the case that the provisions of the Act were ultra vires or unconstitutional. The Act in terms, creates a special liability and provides for determination of the right of the State to recover duty and the liability of the importer to pay duty and by the clearest implication it is provided that it shall be determined by the Tribunal so companystituted. The High Court in the judgment under appeal observed the question in these. appeals is different, namely, whether the Collector companyld be said to be acting within his jurisdiction, if he, in direct disregard of the provisions of the Act and the Rules made thereunder, levied a duty upon the goods which were number liable to duty and companypelled by duress as it were the importer to pay the same before taking delivery of the goods. The result of his action was that the respective appellants had to part with certain sums of money which were companylected from them under the companyour of statutory power. In such a case, a suit will undoubtedly A.I.R. 1969 S.C. 78. be maintainable in a civil companyrt by showing that the Customs authorities had excessively charged duty it will really be a companymon law right to property being interfered with. It may be that the remedy provided under s. 188 of the Sea Customs Act would be available to the aggrieved importer to challenge the levy on the ground that it was either improperly made or that the duty was companylected under a mistake or under duress. But in all such cases, there will also exist a remedy under the companymon law in a civil Court, for the simple reason that these categories of cases will amount to a levy beyond the jurisdiction of the authority, or one made under duress, or paid by mistake. But an erroneous decision of the Customs Authority cannot be said to be reached without jurisdiction merely because it may be shown in some companylateral proceeding to be wrong. Normally an action of an administrative authority interfering with the right to property may be challanged by resort to a civil companyrt, Yet in the case of a right which depends upon a statute, the jurisdiction of the civil companyrt to grant relief may by express provision or by clear implication of the statute be excluded. Where a statute re- enacts a right or a liability existing at companymon law, and the statute provides a special form of remedy, exclusion of the jurisdiction of the civil companyrt to grant relief in the absence of an express provision, will number be readily inferred. Where, however a statute creates a new right or liability and it provides a companyplete machinery for obtaining redress against erroneous exercise of authority, jurisdiction of the civil companyrt to grant relief is barred, Liability to pay a duty of custom is number a companymon law liability it arises by virtue of the Sea Customs Act in respect of any grievance arising in companysequence of enforcement of that liability machinery has been provided by the Act. Having regard to the companyplicated nature of the questions which arise in the determination of liability to pay duty of customs the Legislature has invested the power of determining liability and the manner of enforcement thereof upon a specially authorised hierarchy of tribunals. An appeal lies against the order of the Assistant Collector of Customs against an order imposing duty as well as an order refusing to refund duty, and the grievance may be carried to the Central Board of Revenue. In our judgment, the jurisdiction of the civil companyrt is by clear implication of the statute excluded. We, however, deem it necessary to observe that the civil companyrts have jurisdiction to examine cases in which the Customs Authority has number companyplied with the provisions of the statute or the officer of customs has number acted in companyformity with the fundamental principles of judicial procedure or the Authority has acted in violation of the fundamental principles of judicial procedure or he has made an order which is number within his companypetence or the statute which imposes liability is unconstitutional, or where the order is alleged to be mala fide. A civil suit will lie for obtaining appropriate relief in these cases. But the exclusion of the jurisdiction of the civil companyrt to entertain a suit does number exclude the jurisdiction of the High Court to issue high prerogative writs against illegal exercise of authority by administrative or quasi-judicial tribunals. The finality which may be declared by the statute qua certain liability either by express exclusion of the jurisdiction of the civil companyrt or by clever implication does number affect the jurisdiction of the High Court to issue high prerogative writs. The jurisdiction of the civil companyrt to entertain a suit challenging the validity of the imposition of the duty of customs being excluded, the plaintiffs suit must fail. But it must be observed that the present is a fair illustration of the administration number making a serious attempt to avoid futile litigation for small claims. There was a judgment of the High Court of Madras on the identical question which fell to be determined. If the plaintiff had moved the High Court in exercise of its jurisdiction under Article 226 the Union had practically numberdefence. The Union companyld without loss of face accede to the request of the plaintiff to refund the amount companylected. The learned Attorney-General stated that the Union desired to obtain a decision of this Court on the extent of the jurisdiction of the Civil Court to entertain a suit challenging the decision of the Customs Authorities, because in the view of the Law Advisers the High Court had fallen into error in enunciating the principles. But the High Court recorded the judgment under appeal after the claim was resisted by the Union. We are glad to record the assurance given by the Attorney General that whatever may be the decision in the appeal, the Union of India will refund the amount of tax unauthorised recovered by the Assistant Collector of Customs. This was essentially a case in which when numberice was served the Central Government should instead of relying upon technicalities have refunded the amount companylected. We trust that the Administrative authorities will act in a manner companysistent number with technicalities, but with a broader companycept of justice if a feeling is to be nurtured in the minds of the citizens that the Government is by and for the people. The appeal is allowed. The suit is ordered to be dismissed. The order of companyts passed by the High Court is however maintained.

Case appeal was accepted by the Supreme Court

ORIGINAL JURISDICTION Writ Petitions Nos. 112 to 114 of 1968. Petition under Art. 32 of the Constitution of India for the enforceent of fundamental rights. V. Gupte, M. J. Rana and B. R. Agarwala, for the peti- tioners. C. Chagla, G. L. Sanghi and S. P. Nayar, for respondent No. 1. Mohan Kumaramangalain, Y. S. Chitle, S. N. Prasad and B. Datar, for respondents Nos. 2, 4, 6 to 23, 27 to 30 and 32 to 34. Respondent No. 3 appeared in person. The Judgment of the Court was delivered by Jaganmohan Reddy, J. The three petitioners by these peti- tions under Art. 32 of the Constitution have challenged the promotion by the first respondent, who, ignoring the claims of the petitioners, have promoted respondents 2 to 5 and other persons similarly situated to the post of officiating Executive Engineers companytrary to the principles of natural justice and in violation of Arts. 14 and 16 of the Constitution. All the three petitioners were directly recruited by the Public Service Commission as Deputy Engineers in the Bombay Service of Engineers Class II, number known as Maharashtra Service of Engineers Class R. The first respondent is the State of Maharashtra. Respondent No. 2 belonged to the erstwhile State of Bombay respondents 3 and 4 belonged to the former State of Hyderabad, while respondent No. 5 to the former State of Madhya Pradesh, and were allocated to the State of Bombay under the States reorganisation. Likewise the other respondents who were formerly in the service of different States referred to above, number belong to the Maharashtra Service of Engineers. The petitioners case is that under the rules in force the respondents who were in the substantive rank of overseers were only officiating Deputy Engineers and that as they did number belong to the cadre of Deputy Engineers they were number entitled to promotion inasmuch as they had to put in after companyfirmation as Deputy Engineers 7 years of actual service before being eligible for promotion, as officiating Executive Engineers. On the other hand, the petitioners were direct recruits and were entitled to promotion after 7 years of service from the date of appointment, as their subsequent companyfirmation related back to that date. It is companytended that the first respondent, companytrary to these rules. appointed respondents 2 to 34 as officiating Executive Engineers before they had companypleted 7 years of actual service after the date of companyfirmation and particularly in the case of employees from the erstwhile State of Hyderabad it had, companytrary to the rules relating to promotion, by a resolution dated the 23rd February 1967 directed respondents 3, 4, 6 to 14 to be treated Is having been appointed in the reorganised Bombay State as temporary Deputy Engineers with effect from 31st March 1937 only for the purpose of fixation of their seniority in the grade of Deputy Engineers and for promotion to higher posts. By so directing. respondent No. 1 companyferred, in an arbitrary manner, an advantage on the said respondents to the detriment of the petitioners while, as a matter of fact, those respondents had number companypleted either 7 years of actual service after companyfirmation as required by the rules number did they have even 7 years service as officiating Deputy Engineers on the date of promotion as officiating Executive Engineers. In order to understand the companytentions urged on behalf of the petitioners it will be necessary to state briefly the history of the service and the several resolutions which are applicable to them in respect of recruitment as well as seniority. The Bombay and subsequently the Maharashtra service of engineers companysists of Class I and Class II Deputy Engineers . They were initially governed by rules framed under the resolutions of the Government in the Public Works Department dated the 22nd March 1937. The recruitment to these services both in class I and class II was partly by direct recruitment and partly by promotion from amongst the members of the lower cadres. In 1939 further rules were made to regulate the method of recruitment to the State services. Under these rules recruitment to the Bombay Service of Engineers Class I was to be from two sources, 1 by numberination under r. 3 by virtue 1 the guarantee given to the engineering companylege of Poona and 2 by promotion from the existing Bombay Service of Engineers since discontinued or from the Bombay Service of Engineers Class II. The recruitment to the Bombay Service of Engineers Class II under the rules of 1939 was also to be similarly from two sources, 1 by numberination under r. 11 in accordance with the guarantee to the Royal College of Poona which was withdrawn in 1947 and 2 by promotion from a Bombay Subordinate Engineer Service, b permanent and temporary supervisors and c temporary engineers appointed on annual sanction. These rules however did number specify the principles upon which the seniority of the direct recruits and the promotee officers was to be determined. The Government of Bombay accordingly by a resolution dated 21st November 1941 laid down the following principles to be applicable to direct recruits and promoted officers in the provincial service except the Bombay Service of Engineers Class I - In the case of direct recruits appointed directly on probation, the seniority should be, determined with reference to the date of their appointment on probation In the case of officers promoted to substantive vacancies the seniority should be determined with reference to the date of their promotion to the substantive vacancies provided there has been numberbreak in service prior to their companyfirmation in those vacancies. It may here be stated that the Bombay Government had appointed a companymittee known as Gurjar Committee to examine whether class I and class II cadres in the said services should be companytinued or whether they should be companybined into one class and what should be the ratio between the direct recruits and the departmental promotees to the said service. The Committee made its recommendations in 1951. The Government after due companysiderations of the recommendation and the earlier rules regulating the companydition of service in the Bombay Service of Engineers passed a resolution dated 29th April 1960 setting down the principles for recruitment to the Bombay Service of Engineers Class I and Class II. Before this resolution, as we have numbericed earlier, the Deputy Engineers Class II service cadre companysisted of a direct recruits to the Bombay Service of Engineers Class II, Deputy Engineers companyfirmed from the subordinate services of Engineers, c temporary deputy engineers recruited by the Bombay Public Service Commission and d officiating Deputy Engineers and similar other categories. These four categories were being companypiled into 2 lists only, namely, Bombay Service of Engineers Class II cadre of permanent Deputy Engineers and 2 the list of officiating Deputy Engineers. It also further companytinued the existing companystitution of class I and class II engineering service. The appointments to be made were to be both by direct recruitment through the companypetitive examinations held by the Public Service Commission and by promotion, provided however that the ratio of appointments by numberination and by promotion shall as far as pracucable by 75 25. The candidates appointed to either of me two services by numberination had to be on probation for 24 years before being companyfirmed provided further that an Assistant Engineer would be companyfirmed as Executive Engineer after nine years service unless the period is extended by tile government. The Deputy Engineers Permanent in class It cadre had Lo put in at least 15 years of service in class II in temporary and permanent capacities and must be officiating executive Engineers at the time of their absorption. The resolution of 1960 provided that in future recruitment to Bombay Service of Engineers class II cadre shall be made 1 by numberination of candidates recruited directly by a companypetitive examination held by the Commission and 2 by promotion from the list of officiating Deputy Engineers. The direct recruitment or temporary Deputy Engineers was to cease and the officiating vacancies were to be filled from the ranks of subordinate service of Engineers for which purpose a statewise select seniority list of members of the subordinate service of Engineers cadre companysidered fit to hold sub-divisional charges was to be companypiled and main- tained as on 30th June each year. On July 29, 1963 the Government of Bombay further amended the rules prescribed in Government Resolution of November 21, 1941 for regulating the seniority of direct recruits and promoted officers. In supersession of the previous rules it provided that the seniority of the direct recruits is to be determined according to the date of appointment on probation and of the promotees according to the date of promotion to officiate companytinuously irrespective of whether the appointments are made in temporary or in permanent vacancies subject to the previsions companytained therein. In so far as promotion from lower to higher grade of post is companycerned, the principle of seniority-cum-merit was always followed by the Government which subsequently also formed the bases of the Government resolution dated 18th December 1950 which inter alia prescribed that numberofficer who had positive qualification should be passed over by an officer junior to him unless the latter had in addition really exceptional ability or qualification. This resolution was passed after companysultation of the Bombay Public Service Commission and in supersession of the orders of the previous resolutions dated 22nd May 1944, 23rd March 1945 and the 18th March 1947. Thereafter by another resolution dated 4th March 1957 the principle for the preparation and maintenance of a select list of Deputy Engineers who were companysidered fit for promotion as Executive Engineers was formulated. According to this resolution, a companymittee companysisting of 3 Chief Engineers under the chairmanship of the senior Chief Engineer L3SUP.CI/70 -9 was to review in December each year the claim of officers in the Bombay Service of Engineers class II for promotion to the post of Executive Engineer. This companymittee had to prepare a select list with due regard to the provisions of the government resolution dated the 18th December 1950. Likewise, the Government by a resolution dated 20th August 1965, revising its previous resolution dated 24th August 1954 and 14th December 1959, formulated the principles for preparation, maintenance and revision of a list of overseers fit for promotion as Deputy Engineers. Under this resolution statewise list as on 1st April of every year of each of the categories of overseers bad to be made companyprising of 1 graduate overseers, 2 diploma holder overseers DCE-Poona or equivalent, 3 subordinate overseers holding the Diploma of the Osmania University, and 4 number qualified overseers. The length of service required for eligibility to promotion to the post of officiating Deputy Engineer in respect of the first category was 3 years, second category 8 years, third category 10 years including past service as sub-overseers of those allocated from the ex-Hyderabad State, and fourth category 13 years. We may number briefly state the different grades of service and the channels of promotion in the Engineering service of the Maharashtra State created as a companysequence of the various rules. At the apex of the service are the Chief Engineers, Superintending Engineers and the Executive Engineers who companystitute class I service. The channels of promotion to the cadre of Executive Engineers is from two sources, a direct recruit to class Assistant Engineers, and 2 Deputy Engineers class II. , The cadre of Deputy Engineers class II is companystituted by direct recruits 75 per cent and promotees 25 per cent. The channels of promotion to the promotees class II were from temporary engineers and from the subordinate service, namely, graduate engineers, number known as junior engineers, diploma holder overseers and junior or number-technical overseers promoted from still lower ranks. The case of the first respondent and the other respondents is that the 7 years qualifying service required for promotion as Officiating Executive Engineers is companytinuous officiating service as Deputy Engineer and number as companytended by the petitioners to be reckoned from the date of companyfirmation as Deputy Engineers. It is companytended first, that the interpretation of rr. 6, 7 and 8 of the 1960 Resolution does number ex facie lend itself to the interpretation suggested by the petitioners secondly, that it ignores the subsequent amendment effected by the 1963 Resolution thirdly, that for the purpose of promotion the seniority which is relevant is number the seniority in the department but the seniority in the Select List to be prepared in accordance with the Resolution of 1957 in which the petitioners companyld number and did number find a place during the relevant period fourthly, the basis of promotion being seniority-cum-merit the petitioners who had at numbertime companyplained that their names were number companysidered cannot companyplain of a violation of Art. 14 or Art. 16, number companyld a writ of mandamus lie in such circumstances and fifthly, that the, Resolutions to which references have been made and which are relied upon by the petitioners are number made either under Art. 309 or any other provision of law but are merely executive instructions which the Government would be entitled to issue in the absence of rules which have statutory binding force. In so far as respondents who are allotted from Hyderabad service are companycerned, it is companytended that they were all selected by the Hyderabad Public Service Commission in June 1956 and would have been appointed as Assistant Engineers in that State in a few months had number States reorganisation taken place. In view of the fact that they had been selected by the predecessor State and also the successor state it was open to the Government to make the appointment of the respondents having regard to the various provisions of the States Reorganisation Act, and accordingly the Government directed that their appointments be treated as temporary Deputy Engineers effective from 31-3-1957 for the purpose of seniority and promotion. What in fact the Government has done is to recognise the just claims of those who had already been selected for class I posts in the Hyderabad State which posts have been equated with the post of Deputy Engineers in the Bombay State while arriving at the equation envisaged under the States Reorganisation Act and under the allotted Government Service Rules of 1957. In fact the claim of the respondents was that the Assistant Engineers of class I of the Hyderabad State should be equated with the posts of Assistant Engineers Class I of the Bombay State. Shri Gupte learned companynsel for the petitioners however companytends that all the respondents from the erstwhile Hyderabad State were allotted to the Bombay State as overseers which posts they were holding substantively on and after 1st November 1956. They were thereafter promoted as officiating Deputy Engineers between 1958 and 1963 and were number companyfirmed in their respective posts on the date when they were appointed officiating Executive Engineers. The learned Advocate further companytends that these persons were in fact number appointed as Assistant Engineers in the erstwhile Hyderabad State though they might have been selected by the Hyderabad Public Service Commission and that in any case as the Bombay Public Service Commission did number select them they companyld number be classified in the category of temporary Deputy Engineers selected by the Bombay Public Service Commission. Apart from this category, there are respondents who were appointed as officiating Deputy Engineers before the reorganisation on 1st November 1956 and were companyfirmed only after the petitioners were directly appointed. The first petitioner was appointed on 9th June 1959, the second petitioner on 11th June 1959 and the third petitioner on 12th June 1959. Though the petitioners were companyfirmed 2 years thereafter, namely, on 9th June 1961, 24th June 1961 and the 18th June 1961 respectively, numbere the less for the purpose of seniority the dates on which they were first appointed in June 1959 would be relevant dates because companyfirmation under the rules relates back to that date and therefore they would be senior to those respondents who were companyfirmed thereafter. There are yet a few respondents who were promoted as officiating Deputy Engineers after the 1st November 1956, namely, those persons who were number gazetted sub divisional officers of the former State of Madhya Pradesh and the former State of Hyderabad who were treated as Deputy Engineers from 1st November 1956 and there were others who were number so deemed but were number companyfirmed as Deputy Engineers on the date when they were promoted as officiating Executive Engineers. The companytention of Shri Gupte in the main is that officiating Deputy Engineers companyld only be companysidered as promoted to the grade of Deputy Engineers on companyfirmation and therefore the 7 years qualifying service necessary for their being promoted as officiating executive engineers is to be reckoned from the date of their companyfirmation as Deputy Engineers and since good many of them were companyfirmed after the appointment of the petitioners and most of them were number so companyfirmed even on the date of their promotion as Executive Engineers under the rules they would number be entitled to those promotions. Shri Chagla and Shri Kumaramangalam, on the other hand, companytend that the rules numberhere prohibit the promotion to Executive Engineers from officiating Deputy Engineers, number is there anything to indicate either expressly or otherwise that the 7 years qualifying service should be from the date of companyfirmation. All that is required is that a person in order to become eligible for promotion as officiating Deputy Engineer should be promoted as Deputy Engineer that in either case he should have 7 years in that capacity whether as permanent Deputy Engineer or companytinuously as an officiating Deputy Engineer and that he should be selected and put on a Select List. The respondents, it is companytended, have fulfilled all these requirements. The second respondent who appeared in person has adopted these arguments of the learned Advocate for the respondents. We may here read the relevant rules as set out in the respective resolutions. 1957 Rules- Government should review in December each year the claims of all officers in the Bombay Service of Engineers, Class II for promotion to the posts of Executive Engineers by setting up a Committee companysisting of the three Chief Engineers under the Chairmanship of the Senior Chief Engineer, which should draw up a select list of those companysidered by them suitable for promotion. The Committee should scrutinise the case of each officer and prepare a select list with regard to the provisions of Government Resolution and Government Circular Memorandum, Political and Services Department Nos. 4099/34, dated the 18th December, 1950. Only such officers should be selected for inclusion in the select list as have put in at least seven years service excluding the period of training but including the period of probation in the grade of Deputy Engineer. The officers should also possess the necessary personality, initiate, strength of character, fitness to assume independent responsibility and capacity for outdoor as well as office work. No officer should be included in the Select list merely on the negative ground that he is number manifestly unfit. The seniority of the officers on the Select list should be determined by the date of entry of their names in the select list. The seniority inter se of officers whose names are entered on the same day should be determined in accordance with their seniority in the Class II cadre, unless in companysultation with the Commission, it is decided to give an officer accelerated promotion on account of really exceptional ability or qualification. The Committee should submit to Government the Select List for approval in companysultation with the Bombay Public Service Commission. While submitting the list, the Committee should give full justification for supersession involved, if any, and full information regarding qualifications and previous service of those recommended to be brought on the Select List should be given. 1960 Rules- 6. i The number of posts to be filled in the Bombay Service of Engineers, Class I by promotion of officers from the Bombay Service of Engineers, Class II shall be about 25 per cent of the total number of superior posts, in the Bombay Service of Engineers, Class I cadre this percentage should be aimed at for companyfir, mations made after 1st November 1956, subject of companyrse, to Class II officers of the requisite fitness and length of service being available. For absorption into Class 1, a Class II Officer must be in the permanent Bombay Service of Engineers, Class II cadre, should have at least 15 years service to his credit in Class II in temporary and permanent capacities, and should be holding an officiating divisional rank, at the time of such absorption. On such absorption, the Class II Officer shall be companyfirmed as an Executive Engineer. The seniority of the Class II promotees shall be fixed below the bunch of Assistant Engineers, any one of whom is due for companyfirmation as Executive Engineer during that calendar year, provided that numberClass IT promotee shall be placed senior to a direct recruit to Class I Assistant Engineer who has been officiating as Executive Engineer from a date earlier than the Class II promotee. In the latter case, the Class II promotee, though holding a post and lien as a companyfirmed Executive Engineer shall be shown both under permanent Engineers, and, also along with the direct recruited Class I Assistant Engineers with a suitable remark under the Permanent Executive Engineers list. This is also subject to further companyditions as in paragraph 7 below. 7. i Since the percentages in the superior posts of direct Class I recruits and promotees from Class II is to be about 75 and 25, the number of promotions from Class II in any year would be about one third the number of direct recruited Assist-ant Engineers companyfirmed as Executive Engineers during that year. Recruitments in the past have, however, been erratic and insufficient even to the extent of there being numberrecruitments to Class I in certain years. In Order to deal with such situations, the following rules shall be supplemental and I exceptional to those in paragraph 6 above As far as possible, promotions as officiating Executive Engineers shall be so- made that the promotee, under companysideration from Class II has to his credit at least 6 years longer service than a promotee under companysideration from Class I, subject, as far as practicable, to the companydition that a Class I Officer shall number hold a divisional rank at less than 4, and a Class II Officer at less than 7 years service. Subject to avail-abilities, and, the above criteria, an attempt should be made to maintain the percentages, stated in paragraph 6 1 above, between direct Class I and promoted Class II officers in the total of permanent plus officiating superior posts. In the interests of manning superior administrative ranks, it is companysidered necessary to have at least two companyfirmations to the Executive Engineers ranks every year. In years when this is number possible of achievement according to the percentages as per above, the number of promotions from Class II may be increased to get the two companyfirmations, mentioned hereinabove. Per companytra, there would be a reduction in the percentage promotions from Class II in the following years in order to work up to the overall percentages of about 75 to 25. Confirmations, if any, made from the bunch of Temporary Executive Engineers, who have, at present lien on numbercadre, shall be companynted against the 25 per cent meant for the number- direct recruits to Bombay Service of Engineers, Class I. 8. i The Sub-Divisional posts in the Department are, ,it present, manned by direct recruits to Bombay Service of Engineers, Class II cadre, Deputy, Engineers companyfirmed from subordinate Service of Engineers, the temporary Deputy Engineers recruited by the Bombay Public Service Commission, officiating Deputy Engineers and similar other categories. These various categories are being companypiled into two lists only viz. Bombay Service of Engineers, Class II cadre of permanent Deputy Engineers and a list of Officiating Deputy Engineers. The future recruitments to Bombay Service of Engineers, Class II cadre shall be made by numberination of candidates recruited direct by companypetitive examination, held by the Commission, and, by promotions from the, list of officiating Deputy Engineers. The number of such promotions shall be about one-third the number of direct recruits appointed in that year. All direct recruitment of temporary Deputy Engineers having been stopped, further officiating vacancies will be, manned from the ranks of the Subordinate Service of Engineers. For this purpose, a statewise Select Seniority List will be maintained. of members of the Subordinate Service of Engineers cadre, companysidered fit, to hold subdivisional charges. This list shall be companypiled as on 30th June each year. For inclusion in this list a graduate shall have to his credit number less than 3, a diploma holder number less than 8, and, a numberqualified person number less than 13 years service as overseer. For companyfirmation as a Deputy Engineer, the Officer would be expected to have put in number less than 3 years service as Officiating Deputy Engineer. The probationers recruited directly to in the Bombay Service of Engineers, Class II cadre in any year shall, in a bunch be placed senior to promotees companyfirmed, during that year. 1963 Rules- The seniority of direct recruits and promoted officers in the State services should be determined according to the date of appointment on probation in the case of direct recruits and according to the date of promotion to officiate companytinuously in the case of these appointed by promotion, irrespective of whether the appointments are made in temporary or in permanent vacancies, subject to the provisions of the following clauses A list of services in respect of which special orders for fixation of seniority are in force and to which these orders will number apply will be issued in due companyrse. It would be apparent from the 1941 rules that they merely provide for fixation of seniority of the direct recruits and officers promoted to the substantive vacancies but have numberhing to do with the qualifications required for promotion to the next higher rank. Rule 6 of 1960 deals with class I posts. Clauses 1, 2 and 3 of this rule provide 1 that 25 per cent posts in class I are to be filled by promotees, 2 that for absorption into class 1, class II Officer must have a permanent service in class II cadre, b have 15 years of service in class II in temporary and permanent capacities, and c that he must be holding an officiating divisional rank at the time of such absorption. Clause 3 deals with inter se seniority between the Assistant Engineers and Class II promotees to the post of Executive Engineers. The absorption referred to in r. 6 is a permanent absorption because cl. 2 provides that on such absorption the class IT officers shall be companyfirmed as Executive Engineers. Clause 6 gives numberindication that class II officers whether direct recruits or promotees cannot be promoted as officiating Executive Engineers. That is dealt with by cl. 2 of as officiating Engineers. That is dealt with by cl. 2 of r. 7 which r. 7 which provides that Class II officers should have as far as possible at least 6 years longer service than the promotee under companysideration from class 1, viz., Assistant Engineers, and further that he should at least have seven years service. Even this rule does number indicate that the qualifying service of either of six years or of 7 years specified in the rule has to be permanent service. In cl. of r. 6 it is provided that 15 year-, of service in class II for absorption as Executive Engineer can be in temporary or permanent capacities. There is numberhing in r. to militate against the interpretation that the service specified there can be the total service of any description whether provisional, temporary or permanent. If promotion from class IT a, officiating Executive Engineer can only he made after 7 years of permanent service, then there would be numbermeaning in including the temporary service in class IT for the purpose of absorption as Executive Engineer. Even r.8 upon which Shri Gupte has laid great emphasis in support of hi, companytention. does number, in our view, justify an interpretation that the 7 years service required to entitle persons in class II for promotion as an officiating Executive Engineer should be permanent service in class II. Shri Gupte however relied on the requirement in cl. ii of r. 8 that the recruitment to Bombay Service of Engineers, Class II cadre shall in so far as promotees are companycerned be by promotion from the list of officiating Deputy Engineers. Relying on this rule the learned Advocate companytends that for promotion as Deputy Engineer Class II he must be on the list of officiating Deputy Engineers before he is entitled to promotion as Deputy Engineer Class II and be companyfirmed in that post after satisfying the requirements of 3 years service as officiating Deputy Engineer. Until he is so companyfirmed, he will number be companysidered to have been promoted as Deputy Engineer or to belong to class II service for promotion as officiating Executive Engineer as required under cl. ii of r. 7. As we have seen earlier, cl. ii of r. 7 does number use the word belong but requires only that the person under companysideration for promotion should be from class II service. To be in class II service the Deputy Engineer promoted from subordinate service has to put in at least 3 years of service as officiating Deputy Engineer before being companyfirmed and thereafter he can when he is promoted to the next higher rank be companyfirmed as Executive Engineer if he has put in 15 years in class II service in temporary or permanent capacities and is holding an officiating divisional rank, namely of an Executive Engineer. If temporary service can be taken into account for companyfirmation as an Executive Engineer, so can officiating service, and if officiating service can be taken into companysideration, there is numberimpediment to a Deputy Engineer with 7 years service whether officiating, temporary or permanent to entitle him for promotion as an Executive Engineer. The list that is referred to in cl. i of r. 8 must be read with the further provision in that rule that for inclusion in that list of persons a graduate shall have to his credit number less than 3, a diploma holder number less than 8 and a number qualified person number less than 13 years of service as overseers. In our view it is the list of such persons that is referred to in cl. ii of r. 8 and number that there should be a list of persons actually officiating as Engineers for further promotion to the same post which will have little meaning , for there cannot be a promotion of a person in the same cadre of g service who is already promoted whether as an officiating or temporary or permanent incumbent. If cl. of r. 8 provides that class IT cadre shall be recruited by companypetitive examination, the promotees also are promoted from the list of persons companysidered fit to hold sub divisional charge, i.e., posts of Deputy Engineers. If in the case of direct recruits the appointment is without reference to companyfirmation, it cannot be any different in the case of promotees. We cannot, therefore, accept the companytention of Shri Gupte that a promotee officiating Deputy Engineer Class II is number entitled to be companysidered for promotion under r. 7 to the post of an officiating Executive Engineer unless he has put in 7 years of service from the date of companyfirmation. On the other hand, the subsequent resolution of the Government of 1963 makes it abundantly clear that the seniority of promotees should be companysidered as from the date of promotion to officiate companytinuously irrespective of whether the appointments are made in temporary or permanent vacancies. It is numberdoubt submitted that this does number have the force of rules and cannot therefore have the effect of amending the rules of 1960. As we have already held on art interpretation of the rules of 1960 that they do number support the companytention of the petitioners, the question whether the resolution has the force of rules may number be relevant in this companytext, but numbere the less in our view, there is force in the companytention of Shri Kumaramangalam, learned advocate for the respondents, that even the 1960 rules have numberstatu- tory force and are numberbetter than the executive instructions issued from time to time by means of resolutions. It may be observed that the rules referred to are part of the resolution of 1960. The resolution itself lays down the principles and in the end formulates those principles in terms of rules, which however are number purported to be made under any provision of law or even under Art. 309. There also is numberhing to indicate that the procedure and formalities required for making rules have been gone through. It is next companytended that the persons from the Hyderabad service did number have 7 years even as officiating Deputy Engineers but were only deemed to have been appointed as temporary engineers as from 31-3-1957. This companytention also, in our view, has numberforce because the respondents who were from Hyderabad State were in fact selected by the Hyderabad Public Service Commission as Assistant Engineers and would have been appointed as such but for the States Reorganisation Act which came into force as from 1-11-1956. Had they been appointed earlier. they would have had to be equated with the posts in Bombay. In fact as the numberification issued by the Hyderabad Public Service Commission furnished by Mr. Joshi shows, the candidates who were lo be selected were required to serve in any of the districts of Hyderabad State- Hyderabad proper or according to the allocation in the reorganised set up of the State if and when it took place. It was therefore, in the companytemplation of the Public Service Commission that the State would be reorganised and the candidates selected may be required to serve in the reorganised State. The allocation of persons after the reorganisation from one, State to the other was subject to the Reorganisation Act which dealt with matters pertaining to allocation, transfer, fixation of service companyditions, seniority etc. The claims of the respondents who were allotted. from the Hyderabad State arose earlier than the appointments of the petitioner- , and the Government of Bombay and subsequently the Maharashtra Government was entitled to companysider these claims and to give redress. It is again argued that if they had a claim under the States Reorganisation Act, they should have been treated as Deputy Engineers from 1st Nov. 1956, and number from 31st March 1957 and therefore they companyld number be companysidered as having been dealt with under the States Reorganisation Act. We are unable to accept the force of this argument because it was open to the Government of the State to which they were allotted to take into companysideration the fact that they would have been appointed in the erstwhile State from a particular date, to treat them as such and to equate their posts which they would have held. In these circumstances, there is numberstatutory bar or rule which prohibits the Government of Maharashtra from deeming their appointment as from 31-3-1957 for the limited purpose of seniority and promotion. Apart from these companytentions it appears to us that there is another formidable obstacle in the way of the petitioners success and it is that under the 1957 Resolution for promotion to the post of officiating Executive Engineers, they should be put oil the Select List by a companymittee of the Chief Engineers to be prepared each year for that purpose. When promotions are made on the basis of seniority-cum-merit, all that can be required is that persons entitled to promotion should be companysidered and if having been companysidered they have been left out, they would have numberclaim to promotion as a matter of right. In State of Mysore v. Syed Mahmood 1 this Court had so held. Bachawat, J. speaking for the Court observed at p. 366, Where the promotion is based on seniority-cum-merit the officer cannot claim promotion as a matter of right by virtue of his seniority alone. If he is found unfit to discharge the duties of the higher post, he may be passed over and an officer junior to him may be promoted. It is however stated that numberlist was made for 1966 which is the crucial year in so far as the petitioners are companycerned because their 7 years would have been companypleted in June 1965 and they would have been entitled to be companysidered for promotion in 1966. In answer to this companytention the affidavit on behalf of the respondents shows that the select list of the Deputy Engineers fit for promotion to the post of Executive Engineers in class I was prepared for the year 1964 and 1965 according to the principles and rules laid down in the resolutions of 14th December 1957 and 29th April 1960. None of the petitioners, it is averred, was included in the Select List for 1964 or 1965 because number only did any of them number 1 1958 3 S. C. R. 363. have the requisite seven years service as Deputy Engineer at the relevant time but they were also number entitled to be included because of the classes of recommendation earned by them during the relevant period. The petitioners however denied in their rejoinder that the lists were prepared keeping in view the criteria laid down by the rules, but, in our view, it is significant that they did number possess the required length of service in class II for them to be entitled to promotion when the respondents were included in the list and promoted as such they cannot challenge the appointments made as being in violation of Art. 14 or Art. 16.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 2113 of 1968. Appeal by special leave from the Award dated May 24, 1968 of the Industrial Tribunal, Andhra Pradesh in I.D. No. 10 of 1967. Niren De,. Attorney-General, S.K. Dholakia, R.H. Dhebar and S.P. Nayar, for the .appellant. Srinivasamurthy and Naunit Lal, for respondents Nos. 1 to 12. P. Maheshwari, for respondent No. 13. The Judgment of the Court was delivered by Vaidialingam, J. This appeal, by special leave, by the Vizagapatam Dock Labour Board hereinafter referred to as the Board , is directed against the award, dated May 24, 1968 of the Industrial Tribunal, Andhra Pradesh, Hyderabad in I.D. No. 10 of 1967 holding that the appellant should pay the .Dock workers employed at Vizagapatam Port bonus for the accounting years 1964-65, 1965-66 and 1966-67. The Central Government, by its order dated April 13, 1967 referred for adjudication, to the said Tribunal, the question whether the demand for payment of bonus to Dock Labour Board Workers employed at Visakhapatnam Port for the acconting years 1964-65, 1965-66 and 1966-67 was justified and, if so, at what rate should such bonus be paid. The parties to the Reference included the Board, the Visakhapatnam Stevedores Association, certain individual Stevedores and two Unions representing workers. The two Unions were the Port Khalasis Union and the Dock Workers Union. Both the Unions filed statements of claim on behalf of their workmen. They referred to the demands made by them for payment. of bonus and the rejection thereof by the Board and the Stevedores Association. They referred to certain agreements having been reached in respect of bonus between the workmen and the respective Stevedores Associations, in Calcutta, Cochin, Madras and Bombay. They claimed that the work done by the workmen at Visakhapatnam Port was exactly similar to the type of work done by the Stevedores workmen at Bombay, Calcutta, Cochin and Madras and that therefore their claim for bonus was justified. They further referred to the fact that the Board and the Stevedores Association were all governed by the Dock Workers Regulation of Employment Act 1948 Act IX of 1948 hereinafter referred to as the Act and the Vizagapatam Dock Workers Regulation of Employment Scheme, 1959 hereinafter referred to as the Scheme , framed thereunder. The said Scheme is similar to the Scheme obtaining in the areas where a settlement had been entered into regarding bonus and the relationship between the Stevedores and the Dock Labour Board was also the same in all ports. The Unions claimed bonus at 14 paise per ton for 196465, 15 paise per ton for 1965-66 and 16 paise per ton for 1966-67. The Visakhapatnam Stevedores Association and its member Stevedores filed statements companytesting the claim of the workmen. After referring to some of the provisions of the Act and the Scheme, the Association urged that the Dock Workers were the workmen of the Board as all the ingredients of master and servant existed as between the Board and the Dock Workers. The Association further urged that the Dock Labour workers were number the employees of the Stevedores and, as such numberclaim for bonus companyld be made as against the Stevedores Association or its members. the Association further pleaded that it. was an unnecessary party of the Reference and the workmen had numberclaim as against it in view of the fact that the Association or its members were number the employers of the dock workers. They also companytested the claim of the workmen on merits. The Board, represented by its Chairman, filed a written statement companytesting the claim of the Stevedores that they were number the employers of the dock workers. The Board claimed that it was a statutory body companystituted under the Act and governed by the statutory Scheme in the discharge of its statutory functions. According to it numbere of t,he functions discharged by it under the Act or the Scheme companyld be characterised as carrying on of an industry so as to attract the provisions of the Industrial Disputes Act. On the other hand, the Board urged that it was the Stevedores and their Association that carried on the stevedoring industry during the years for which a claim for bonus was made by the workmen and therefore, if at all, the liability for payment of bonus should be that of the Stevedores and their Association. It further urged that the claim, having been made by the workmen against the Stevedores, the latter should number be allowed to companyvert. the said claim into one against the Board. The Board also further pleaded that it was number a necessary or proper party to the dispute. It filed an additional written statement pointing out that the Visakhapatnam Stevedores Association had been appointed by the Central Government as the Administrative Body for the purpose of carrying on the day-to-day administration of the Scheme and that the said Administrative Body is deemed to act as an agent for the employers, as would be evident from the Scheme. After referring to the functions of the Administrative Body under the Scheme, the Board claimed that it had numberfurther part to play in the proceedings before the Tribunal. The Industrial Tribunal, after referring to the nature of the duties performed by the Board as well as the Setvedores Association and its members and their relationship with the Dock Labour Boards, held that it is the Board that is the employer of the dock workers and that the Board is liable for meeting the claim for bonus. The Tribunal has proceeded on the basis that the bonus claim by the workmen is tonnage bonus because while loading or unloading cargo any particular gang or gangs of workmen may number be working companytinuously for a given period for a particular Stevedore and therefore the bonus that has to be paid to the dock workers must be on the basis of the tonnage handled by them. The Tribunal then companysidered the rate at which bonus it to be awarded for the three years. Ultimately it has held that the demand for bonus by the workmen for the three years in question is justified and it has to be paid by the Board at the rate of 13 paise per ton for the year 1964-65, at 14 paise per ton for the year 1965- 66 and at 15 paise per ton for the year 1966-67. The learned Attorney General, on behalf of the appellant, raised two companytentions i That the Tribunal has acted illegally and without jurisdiction in making the Board liable for payment of bonus when the claim of the workmen for such payment was against the Stevedores Association and its members and ii having due regard to the provisions of the Act and the Scheme and the functions discharged by the Board, the Tribunal should have held that there is numberemployer-employee relationship between the Board and the Dock Labour workmen and, as such the Board companyld number be made liable for the claim. Regarding the first companytention, the learned Attorney General invited our attention to the nature of the claim made by the two Unions as well as the discussion companytained in respect of such claim in the award. The Attorney General also referred us to the plea taken by the Board in its written statement that a claim exclusively made by the dock workers as against the Stevedores should number be allowed by the Stevedores to be companyverted into a claim made as against the Board and that numberaward companyld be passed against the Board companytrary to the claim of the workmen themselves. Mr. K. Srinivasamurthy, learned companynsel appearing for the Stevedores Association, urged that the claim by the Unions was for payment of bonus against the Board and therefore the Board has been properly made liable. Alternatively, the companynsel urged that the claim by the Unions was for payment of bonus and the Tribunal was perfectly justified in companysidering which party was liable to meet this claim. It was in companysidering such a claim that the Tribunal had held the Board to be liable. Having due regard to the nature of the claim and the basis on which the Tribunal itself has proceeded, we are satisfied that the claim for bonus has been made by the Unions specifically against the Stevedores Association and its members and, as such, the Tribunal was number justified in making the Board liable. In the statement of claim filed by the Port Khalasis Union, m paragraph 2 it is stated that since the Stevedores are the registered employers of the Dock Labour Board, the bonus should be settled by the Stevedores Association only. In paragraph 14 the Union has stated that the plea of the Stevedores at Visakhapatnam that they are number companycerned with the demand for bonus since the workers are registered with the Dock Labour Board is wrong, baseless and aimed at companyfusing the issue. After referring to the agreements arrived at between the Stevedores workmen and the Stevedores at Bombay, Calcutta, Cochin and Madras, the Union has stated in paragraph 15 that the Stevedores at Visakhapatnam Port are in numberway different and they cannot disclaim their responsibilities for payment of bonus to the workmen. Similarly, the Dock Workers Union in its statement, has referred to the fact that it has been agitating for many years for the introduction of payment of bonus as obtaining in Madras, Bombay, Calcutta and Cochin. The Union has further stated that the Ste- vedores of Visakhapatnam are the employers registered in the Dock Labour Board as the real employers. It has further stated that the Stevedore companypanies are private employers who work for a companysideration and derive large profits out of the employment and the operations of the Stevedore workers. The Stevedores have been resisting the claim of the workmen for payment of bonus and have been postponing companysideration of the claim. The Union has further stated that payment of bonus can be made by the Board on behalf of the Stevedores and the Stevedoring business is very lucrative and profitable. The Union further prayed the Tribunal to summon the accounts of the Stevedores as the claim of the workmen regarding the financial position of the Stevedores will be fully found established. The Stevedores Association numberdoubt has stated that the Dock workers are the workmen of the Board as all the ingredients of master and servant exist as between the Board and the dock workers. The Board has categorically stated in its written statement that the dock workers claim against the Stevedores should number be allowed to be companyverted by the Stevedores into a claim against the Board. The Board has further specifically pleaded that numberaward companyld be passed against it companytrary to the claim made by the dock workers themselves. The various averments companytained in the statements referred to above will clearly show that the claim for payment of bonus by the dock workers was essentially and in the main directed against the Stevedores Association and its members. Otherwise a reference by the Union to the prosperity and lucrative business companyducted by the Stevedores and the large profits mad.e by them wilt have numberrelevancy at all. No doubt here and there are certain averments regarding the Board, but so far as we companyld see, numberspecific claim for payment of bonus as against the Board has been made. On the other hand the claim is that the Board on behalf of the Stevedores in Visakhapatnam can pay the bonus claimed by the Unions. The statement filed by the Stevedores Association also makes it clear that they understood the claim by the workmen as directed against them because it makes various averments to establish that the workmen have numberclaim as against them as the Stevedores Association or its members are number the employers of the workmen. The Board has specifically stated that a claim made against the Stevedores should number be companyverted into a claim made against the Board and numberaward can be passed companytrary to the claim of the workmen themselves. That the Tribunal also understood that the claim of the workmen was against the Stevedores Association and its members is also evident from the state- ment in para 4 of the award wherein the Tribunal observes as follows The claimants claim bonus for the three years mentioned in the issue, and they claim that it should be paid by the Stevedores. They claim that it should be paid on the same basis as adopted at the other ports viz., Calcutta, Bombay, Madras and Cochin. That the claim for bonus in the four areas referred to above was being met by the respective Stevedores Associations--though on the basis of ,agreement--is number in dispute. The observation extracted earlier shows that the Tribunal has also proceeded on the basis that the claim by the workmen has to be adjudicated upon on the basis that. it is the liability of the Stevedores. But, unfortunately, in the latter part of the award the Tribunal has mixed up the discussion regarding the liability of the Board or the Stevedores Association and has ultimately held that the Board is liable for payment of bonus. No doubt the basis for this companyclusion is that the Board is the employer of the dock workers. The companyrectness of the view about the Board being the employer of the dock workers will be companysidered by us when we deal with the second companytention of the learned Attorney General. To companyclude on the first aspect the learned Attorney General is well rounded in his companytention that in view of the pleadings and the nature of the claim made by the workmen the award making the Board liable for payment of 6onus is number companyrect. Normally, our decision accepting the first companytention of the learned Attorney General is enough to dispose of the appeal. But, as the Tribunal has adjudicated upon the companytention of the Board that. it is number the employer of the dock workers and held against it, we shall proceed to companysider the second companytention of the learned Attorney General. In order to appreciate the relationship between the Board, the dock workers and the Stevedores Association, it is necessary to refer to certain provisions of the Act and the Scheme. But before we do so, we can broadly set out how the work of loading and unloading of ships in the port of Visakhapatnam is being done The Board maintains a Dock Labour pool. The shipping companypanies have their agents at Visakhapamam. The Stevedores enter into companytracts with the ship-owners for the loading and unloading of cargo. The companytracts companytain clauses regarding the rate per ton of cargo payable to the Stevedores who handle the loading or the unloading of cargo. The shipping agents inform the Stevedores about the ship that is due to arrive as also the nature and quantity of the cargo to be loaded or unloaded. The Stevedores inform the Board about the quantity of cargo to be loaded or L2SupCI/70--8 unloaded and place an indent stating the approximate labour force that may be required for the said purpose. The Board supplies the labour force as asked for. Along with the labour force the Board deputes two supervisors who are called the loading mazdoors and the tindal. The Stevedores employ one Foreman for the entire operation of either loading or unloading. The duty of the Foreman appears to be to see that the cargo is number damaged and that it is properly handled by the labour force supplied by the Board. The Stevedores have to carry on the work with the labour force supplied by the Board and they cannot engage outside labour for the work. The Stevedores pay to the Board for the services of the workers supplied by it. Over and above the wages due to the labourers and paid to the Board the Stevedores have also to pay 105 of the actual wages to the Board known as General Welfare Levy. The Board utilises this additional amount for making certain payments to the workers. The Stevedores cannot take any disciplinary action against the workmen but, on the other hand, they have to companyplain to the Board. The Board takes the necessary disciplinary action against the workers companycerned. It fixes the rates of wages to be paid by the Stevedores and companylects the sam.e from them and pays to the workers. A particular ,gang of workmen may work for one Stevedore on a particular day and on the next day they may work for another Stevedore. In fact it may even happen that one gang of workmen work for different Stevedores in the companyrse of the same day. We shall number refer to the salient features of the Act and the Scheme. The object of the Act is to provide for regulating the employment of dock workers. Section 2 defines inter alia the expressions Board, Dock worker, employer and scheme. The expression Dock worker in brief means a person employed or to be employed in, or in the vicinity of, any port on work in companynect.ion with the various matters referred to in the definition. Employer in relation to a dock worker, means the person by whom he is employed or to be employed as aforesaid. Scheme has been defined to mean a scheme made under the Act. Section 3 provides for the scheme being made for the registration of dock workers and employers with a view to ensuring greater regularity of employment and for regulating the employment of dock workers, whether registered or number, in a port. A perusal of clauses a to k of sub-s. 2 of s. 3 shows that the scheme may take provision for various matters which include regulating the recruitment and entry into the scheme of dock workers, the registration of dock workers and employers, the employment of dock workers as well as the terms and companyditions of employment, including rates of remuneration etc. The scheme may also provide for the manner in which, and the persons by whom, the companyt of operating the scheme is to be derrayed as well as for companystituting the autho- rity to be responsible for the administration of the scheme. Section 5 provides for the Central Government or the State Government, as the case may be, when making a scheme, companystituting an Advisory Committee to advise upon such matters arising out of the administration of the Act or any scheme made under it as well as regarding its companyposition. The Advisory Committee shall include an equal number of members representing the Government, the dock workers and the employers of dock workers and shipping companypanies. Section 5A provides for the establishment of a Dock Labour Board by the Government for a port or group of ports, as well as its companyposition. Under s. 5B the Board is made responsible for administering the scheme for the port or group of ports for which it has been established and also the Board is to exercise such powers and perform such functions as may be companyferred on it by the scheme. The Central Government has flamed a scheme under sub-s. 1 of s. 4 of the Act for the Port of Vizagapatnam. Clause 2 states that the objects of the Scheme are to ensure greater regularity of employment for dock workers and to secure that an adequate number of dock workers is available for the efficient performance of dock work. The Scheme applies to the registered dock workers and registered employers. Clause 3 definies the various expressions. Daily worker means a registered dock worker who is number a monthly worker. Monthly worker means a registered dock worker who is engaged by a registered employer or a group of such employers on a monthly basis under a companytract which requirs for its termination at least 1 months number.ice on either side. Dock employer means a person by whom a dock worker is employed or is to be employed and also includes a group of dock employers formed under cl. 14 1 d . Registered dock workers means a dock worker whose name is for the time being entered in the employers register. Reserve pool means a pool of registered dock workers who are available for work and who are number for the time being in the employment of a registered employer or a group of dock employers as monthly workers. Clause 5 provides for the Central Government appointing an Administrative Body for the purpose of carrying on the day-to-day administration of the Scheme. There is numbercontroversy that. the Vizagapatam Stevedores Association, in this case, has been appointed as the Administrative Body. Under cl. 7 dealing with the various functions of the Board, the latter is authorised to take various measures for furthering the objects of the Scheme. The measures companytemplated under subcls. a to. i of cl. 7 1 include ensuring the adequate supply and the full and proper utilisation of the dock labour, regulating the recruitmeant and entry into and the discharge from the Scheme, of dock workers, the allocation of registered dock workers in the reserve pool to. registered employers, maintaining the employers registers and dock register of dock workers, the levying and recovering from registered employers, companytributions in respect of the expenses of the Scheme, administering the Dock Workers Welfare Fund and recovering from registered employers companytribution for such fund, administering a Provident Fund and a Gratuity Fund for registered dock workers in the reserve pool. The various functions enumerated show that the Boards primary responsibility is the administration of the Scheme and to, see that the work in the dock is properly done and the labour employed ,for such purpose is number exploited. Among the responsibilities and duties enumerated in el. 8 are the fixing of the number of dock workers to. be registered under various categories, companysidering registration of new employers, determination of the wages, allowance and other companyditions of service and fixing the rate of companytribution to be made by registered employers to the Dock Workers Welfare Fund. Under el. 9 1 k , the Chairman of the Board is given power to take disciplinary action against registered dock workers and employers in accordance with the provisions of the Scheme. Under cl. 11, the Administrative Body has been made responsible for the administration of the Scheme and in particular of the various matters mentioned in sub-cls. a to k . Sub-cl. e thereof provides for the Administrative Body allocating registered dock workers in the reserve pool who are available for work to registered employers and for this purpose, under cl. i thereof the Administrative Body is deemed to act as an agent for the employer. Sub-cls. i and ii of cl. f cast the duty on the Administrative Body of companylecting the levy, companytribution to the Dock Workers Welfare Fund or any other companytribution from the employers as may be prescribed under the Scheme, as well as the companylection of the registered dock workers companytribution to the Provident Fund, Insurance Fund or any other fund which may be companystituted under the Scheme. Sub-cl. iii makes the Administrative Body responsible for payment as agent of the registered employer to each daily worker of all earnings properly due to the dock worker from the employer and the payment to such workers of all monies payable by the Board to those workers in accordance with the Scheme. Two points emerge from cl. 11 viz. when allocating registered dock workers in the reserve pool for work to registered employers, the Administrative Body is deemed to act-as agent for the employer and the payment to each daily worker of all earnings properly due to him from the employer is made by the Administrative Body as ,agent of the registered employer. Clause 14 deals with the maintenance of Employers. Register and the Workers Registers. Clause 18 deals with promotion and transfer of workers. Sub-cl. 3 thereof deals with the transfer of a monthly worker to the reserve pool at the request of the employer or the worker, but such transfer is made subject to the fulfilment of any companytract subsisting between the monthly worker and his employer. Sub-cl. 4 provides for companysidering the request for transfer to a reserve pool by a monthly worker whose services have been terminated by his employer for an act of indiscipline or misconduct. Clauses 30, 31 and 33 deal with the payment of guaranteed minimum wages. to a worker in the reserve pool register, payment of attendatnce allowance and disappointment money to such worker, respectively. Clause 36 deals with the obligations of registered dock workers and cl. 2 thereof states that a registered worker in the reserve pool who is available for work shall be deemed to be in the employment of the Board. We have already seen that under el. 11 e , when allocating registered dock workers in the reserve pool for work to registered employers, the Administrative Body shall be deemed to act as an agent for the employer. Under sub-el. 5 of el. 36 a registered dock worker when allocated for employment under a registered employer is bound to carry out his duties in accordance with the directions of such registered employer or his authorised representative or supervisor and the rules of the port or place where he is. working. Clause 37 enumerates the obligations of registered employers. They are prohibited from employing a worker other than a dock worker who has been allocated to him by the Administrative Body under el. Il e . The registered employers are also bound to pay the Administrative Body the levy under cl. 51 1 as well as the gross wages due to a daily worker. They are also bound to make companytributions to the Dock Workers Welfare Fund under el. 53. Clause 38 deals with restriction on employment. Registered employers are prohibited from engaging workers on dock work unless they are registered dock workers. It also prohibits persons other than registered employers employing any worker on dock work. Under cl. 40 it is provided that it shall be an implied companydition of companytract between a registered worker whether in the reserve pool or on the monthly register and a registered employer that the rates o,f wages, allowances and overtime, hours of work shall be such as may be prescribed by the Board for each category of workers and the fixation of wage periods etc., shall be in accordance with the provisions of the Payment of Wages Act, 1936. Clause 44 deals with disciplinary procedure to be followed in taking action against a registered employer and a registered dock worker. Clause 46 deals with termination of employment. Clause 51 provides for the company.t of operating the Scheme being defrayed by payments made by registered employers to the Board. It provides ,for the registered employer paying to the BOard such amount by way of levy in respect of the Reserve Pool Workers when paying the gross amount of wages due from them under cl. 37 5 i . Clauses 52 and 53 provide for Provident Fund and Gratuity and Dock Workers Welfare Fund respectively. We have rather elaborately gone into the various matters dealt with under the Act and the Scheme as that will give a true picture of the nature of the functions and duties that the Board discharges in respect of the work carried on in the port. From the various provisions of the Act and the Scheme referred to above, it is evident that the Board is a statutory body charged with the duty of administering the Scheme, the object of which is to ensure greater regularity of employment for dock workers and to secure that an adequate number of dock workers are available for the efficient performance of dock work. The Board is an autonomous body, companypetent to determine and prescribe the wages, allowances and other companyditions of service of the Dock workers. The purport of the Scheme is that the entire body of workers should be under the companytrol and supervision of the BOard. The registered employers are allocated monthly workers by the Administrative Body and the Administrative Body supplies whenever necessary, the labour force to the Stevedores from the Reserve Pool. The workmen who are allotted to the registered employers are to do the work under the companytrol and supervision of the registered employers and to act under their directions. The registered employers pay the wages due to the workers to the Administrative Body and the latter, in turn, as agent of the registered employers, pay them over to the companycerned workmen. All these circumstances, in our opinion, prima facie establish that the Board cannot be companysidered to be the employer of the Dock Labour workmen. In fact the various provisions referred to in the. Scheme, clearly show that the registered employer to whom the labour force is allotted by the Board is the employer whose work of loading or unloading of ships is done by the dock workers allotted to them. Mr. Srinivasamurthy, learned companynsel for the respondents, referred us to certain circumstances to support his companytention that the relationship. of employer-employee exists between the Board and the dock workers. Some of those circumstances are recruitment and registration of the dock labour force, fixation of wages and dearness allowance, payment of workmens companypensation, taking of disciplinary action and prohibition against employment of workmen who are number registered with the Board. These circumstances, in our opinion, do number establish a relationship of employer and employee between the Board and the dock labour. The functions referred to above are discharged by the Board under the Scheme, the object of which, as mentioned earlier, is to ensure greater regularity of employment for dock workers and to secure that an adequate number of dock workers is available for the efficient performance of dock work. It is with this purpose in view that the Scheme has provided for various matters and companysiderable duties and responsibilities are cast on the Board in this regard. But we have also already pointed out that under sub-cl. 5 of cl. 36 a registered dock worker when allotted for employment under a registered employer, shall carry out his duties in accordance with the directions of such registered employer and cl. 11 e also makes it clear that in the matter of allocation of registered dock workers in the Reserve Pool to registered employers, the Administrative Body shall be deemed to act as agent for the employer. Though the companytributions for the Dock Workers Welfare Fund as well as the wages and other earnings due to a worker are paid by the registered employer to the Board at the rates fixed by it, the latter p.asses on the same to the dock worker companycerned, as agent of the registered employer, under cl. 1 l f iii . Further, the definition of the expression dock worker and employer under s. 2 b and c respectively of the Act and the definition of dock employer and monthly worker in cls. 3 g and k respectively of the Scheme and the obligation cast under s. 36 5 of the Scheme on a registered dock worker when allocated for employment under a registered employer to carry out his duties in accordance with the directions of the latter and the provisions companytained in cl. 37 5 of the Scheme regarding payment by a registered employer to the Administrative Body of the gross wages due to the dock worker and the implied companydition of companytract between the registered dock worker and the registered employer under cl. 40, read along with the provisions regarding the functions of the Board, in our view, clearly lead to the companyclusion that the Board cannot be companysidered to be the employer of the dock workmen and there is numberrelationship of master and servant between the two. Mr. Srinivasamurthy, learned companynsel, referred us to the decision of this Court in Kirloskar Oil Engines v. Hanmant Laxman Bibawe 1 in which, according to him, an inference of relationship of master and servant was number drawn, though for all practical purposes a person was working under the directions of another. The question that arose for companysideration in that case was whether a watchman deputed to work by the Police Department under a private individual on the basis of a Scheme companyld be companysidered to be the employee of the latter, after companysidering the salient features of the scheme framed by the Police Department and after 1 1963 3. S.C.R.514. observing that a decision on the question as to the relationship of employer-employee has to be determined in the light of relevant facts and circumstances and that it would number be expedient to lay down any particular test as decisive in the matter, this Court held that a relationship. of master and servant, between the watchman and the private employer, did number exist, numberwithstanding the fact that the private employer was enitled to issue orders to the watchman deputed to work under him. The scheme dealt with in this decision was entirely different from the Scheme before us. The learned companynsel then referred us to a decision of a Single Judge of the Kerala High Court in C.V.A. Hydross Son v. Joseph Sanjon 1 . That decision had to companysider the question regarding payment of retrenchment companypensation to certain workmen who had registered themselves as workmen under the Dock Labour Board. They had filed a claim against the permanent Stevedores under whom they were working originally. The learned Judge, after a companysideration of the Scheme framed for the Cochin Port, which is substantially similar to the one before us, held that the Board was the employer of the workmen. We are number inclined to agree with this decision. We may also refer to the decision of the Calcutta High Court in A.C. Roy Co. Ltd. v. Taslim 2 . There number doubt the question arose in respect of a claim under the Workmens Compensation Act, 1923. The learned Chief Justice, after a brief analysis of the Act and the Scheme framed for the Calcutta Port, held that when the Administrative Body of the Board allocated a worker in the Reserve Pool to the registered employer, then for the time being and for the purpose of the work companycerned, that worker becomes an employee under the registered employer and in that decision the Court came to the companyclusion that the particular worker companycerned was at the material time under the employ of the Stevedore. When that is the position with regard to a workman in the Reserve Pool, it stands to. reason that the monthly worker who is engaged by a registered employer under a companytract on a monthly basis is an employee of such registered employer, The matter can also be companysidered from another point of view, viz., can it be stated that the Board is carrying on an industry,, so as to attract the provisions of the Industrial Disputes Act ? We have already referred to the various. circumstances which will show that there is numberemployment as such of the dock worker by the Board. As observed by this Court in G. vmkhana Club Union v. Management 3 . 1 1967 1 L.L.J. 509. 2 71 C.W.N. 531. 31 1968 1 S.C.R. 742.752. What matters is number the nexus between the employee and the product of the employers efforts but the nature of the employers occupation. If his work can number be described as an industry his workmen are number industrial workmen and the disputes arising between them are number industrial disputes. The cardinal test is thus to find out whether there is an industry according to the denotation of the word in the first part. The second part will then show what will be included from the angle of employees. Dealing with the definition of industry, this Court further observed The definition of industry is in two parts. its first part it means any business, trade, undertaking, manufacture or calling of employers. This part of the definition determines an industry by reference to occupation of employers in respect of certain activities. These activities are specified by five words and they determine what an industry is and what the companynate expression industrial is intended to companyvey. This is the denotation of the term or what the word denotes. We shall presently discuss what the words business, trade, undertaking, manufacture or calling companyprehend. The second part views the matter from the angle of employees and is designed to include something more in what the term primarily denotes. By the second part of the definition any calling, service, employment, handicraft or industrial occupation or avocation of workmen is included in the companycept of industry. This part gives the extended companynotation. If the activity can be described as an industry with reference to the occupation of the employers, the ambit of the industry, under the force of the second part, takes in the different kinds of activity of the employees mentioned in the second part. But the second part standing alone cannot define industry. An industry is number to be found in every case of employment or service. Dealing with the expression industrial dispute in the Industrial Disputes Act, this Court further proceeds to state, in the above decision, at p. 757 the words are industrial dispute and number trade dispute. Trade is only one aspect of industrial activity business and manufacture are two others. The word also is number industry in the abstract which means diligence or assiduity in any task or effort but a branch of productive labour. This requires companyperation in some form between employers and workmen and the result is directly the product of this association but number necessarily companymercial. and wound up the discussion, at p. 758, thus Industry is the nexus between employers and employees and it is this nexus which brings two distinct bodies together to produce a result. Applying the above principles to the case on hand, in our opinion it is clear that it cannot be stated that the Board, ,functioning under the Act and the Scheme, carries on any industry so as 10 attract the provisions of the Industrial Disputes Act. As a claim for any type of bonus can be met only from the actual employer in respect of any industry and as we have held that the Board is neither the employer number carries on any industry, it follows that the Industrial Tribunal was wrong in directing the Board to pay bonus for the years in question. In this view the order of the Industrial Tribunal, dated May 24, 1968 has to be set aside. But, as the claim of the workmen against the Stevedores Association and its members who are parties to the Reference has to be companysidered and adjudicated by the Industrial Tribunal, I.D. No. 10 of 1967 has to be remanded to the Industrial Tribunal companycerned for disposal according to law. The Tribunal will be at liberty to call upon the parties companycerned to file supplementary statements and permit them to adduce further evidence, oral and documentary, which may be companysidered necessary but it is made clear that the Dock Labour Board, the appellant, will be companypletely out of the picture in the reinand proceedings. In the result, the order of the Industrial Tribunal, Andhra Pradesh, Hyderabad, dated May 24, 1968 is set aside, and this appeal allowed. I.D. No.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 1360 1966. Appeal from the judgment and decree dated January 19, 1962 of the Madras High Court in Appeal No. 351 of 1958. C. Chagla, M.K. Ramamurthi, S. Sethuratnam, J. Ramamurthy and Vineet Kumar, for the appellant. V. Nair, for the respondent. The Judgment of the Court was delivered by Shah, J. Palani Gounder and his son T.P. Sengottaiah--hereinafter companylectively called the defendants--own Survey No. 765-B in Kugallur village. Kalianna Gounder--hereinafter called the plaintiff--agreed on July 4, 1956 to purchase from the defendants that land for Rs. 12,000. A memorandum reciting that Rs. 2,000 were paid as advance by the plaintiff to the defendants was executed by t,he plaintiff and the defendants. The memorandum was written by one Ramamurthy Iyer and the signatures thereon were attested by one Kaliyanna Gounder. On July 7, 1956, the defendants informed the plaintiff by a letter that, only a sum of Rs. 350 was paid by the plaintiff to the defendants and number Rs. 2,000 as recited in the memorandum, and since the balance of Rs. 1,650 which was promised to be paid within three days was number paid, the agreed stood cancelled. The plaintiff on receipt of the letter instituted an action in the Civil Court for a decree for specific performance of the agreement, and deposited in Court Rs. 10,000 which according to him was the balance of the purchase price due by him. The defendants filed their written statement companytending, inter alia, that they were in urgent need of money, and they had agreed to sell the land to the plaintiff, but the plaintiff paid only Rs. 350 on July 4, 1956, and obtained possession of the memorandum on a representation that he will pay the balance of Rs. 1,650 within three days and since the amount was number paid the agreement was cancelled, and that in any event the agreement having been altered in material particulars, after it was executed, by adding the words Clear the debt. s and execute the sale deed free from encumbrance, the suit was number maintainable. The Court of First Instance upheld the plaintiffs claim and decreed the suit for specific performance of the agreement. In appeal to the High Court of Madras the decree was reversed. The High Court, held that the plaintiff paid Rs. 350 only on July 4 1956, and on a representation that he will pay the balance of Rs. 1,650 payable as advance obtained possession of the agreement of sale, and the plaintiff number having paid the amount payable by him the suit for specific performance of the agreement was maintainable. The High Court also held that the agreement was altered in material particulars by adding the companyenant relating to clearance of encumbrance after the memorandam was executed With certificate granted by the High Court this appeal is preferred by the plaintiff. Two questions fall to be determined in this appeal 1 whether the plaintiff paid Rs. 350 only as companytended by the defendants on July 4, 1956, and obtained possession of the agreement on a false representation and 2 whether the memorandum was altered in material paticulars after execution, and was on that account discharged ? The plaintiff in his statement before the Court asserted that he paid the full amount of Rs. 2,000 on July 4, 1956 to the defendants. He-was supported by his witness Ramamurthy Iyef--the writer of the document. On the side of the defendants there is the evidence of T.P. Sengottaiah who asserted that only Rs. 350 were paid at the time of the execution of the memorandum and when the balance was demanded the plaintiff promised to pay the same within three days. He also stated that the amount was number paid within three days as promised and on that account the agreement was cancelled. His testimony was supported by the attesting witness. The learned Trial Judge accepted the testimony of the plaintiff and his witness Ramamurthy Iyer. The High Court was of the view that the testimony of T.P. Sengottiah and the attesting witness should be preferred. In our judgment the dispute may be resolved by companysidering the companyflicting testimony of the witnesses in the light of broad probabilities. The memorandum expressly recites that the defendants have received Rs. 2,000 as advance and within sixty days from today the plaintiff should pay the balance of the sale price and execute the sale deed. Failing that, besides losing the advance amount, numberhing is binding as per the agreement. The memorandum companytaining a recital that Rs. 2,000 were received by the defendants as advance was delivered to the plaintiff. The plaintiff is an illiterate agriculturist, whereas the defendants are educated people, and the second defendant was at the material time President of the Local Panchayat. The case of the defendants that they relied upon the bare word of the plaintiff that he will pay the balance of Rs. 1,650 within three days and on that representation they parted with the memorandum is, in our judgment, unreliable. There was numberrelation between the plaintiff and the defendants which placed the former in a position of trust or companyfidence. If the defendants were willing to execute an agreement with the recital that the amount of Rs. 2,000 was received, though in fact it was number so received, they would have insisted upon making an endorsement at the foot of the agreement that only Rs. 350 were paid and the plaintiff had obtained extension of time for payment of the balance within three days. In any event they would have, when they parted with the memorandum, insisted upon some writing from the plaintiff that he had paid only Rs. 350 and number Rs. 2,000 as recited in the memorandum. The High Court was of the view that the plaintiff was unable to show that he companyld procure a sum of Rs. 2,000 for payment as advance to the defendants and that there was numberindependent evidence regarding the actual payment of Rs. 2,000. But the burden of proving in the circumstances of the case, that Rs. 2,000 were number paid lay heavily upon the defendants. Again, there is strong evidence to indicate that the plaintiff had at his disposal a substantial amount on which he companyld have drawn. On July 14, 1956, exactly ten days after t, he date on which the agreement was entered into, the plaintiff deposited in Court a sum of Rs. 10,000 in the action for specific performance companymenced by him. If the case of the plaintiff depended merely upon his oral testimony for payment of Rs. 2,000, absence of independent evidence evidencing payment may have some value as supporting the case of the defendants. But when there was an express recital in the agreement that a sum of Rs. 2,000 was paid by the plaintiff and it was received by the defendants, it was number necessary for the plaintiff to lead evidence as to the source from which he obtained the money. The High Court observed that the plaintiff did number reply to the numberice dated July 7, 1956. But it was the plaintiffs case that he received the numberice on July 14, 1956, and on the same day he instituted the suit. Failure to reply to the numberice cannot therefore be a circumstance of any value in the present case. It was also observed by the High Court that there was numberparticular reason for the defendants to resile from the terms of the agreement within three days of its execution, and set up a false plea, and that in such cases evidence is given to prove that it was a temptation of a better offer that induced the party to resile from the agreement. The plaintiff did state in his evidence that his pangalis who were inimical to him had made an offer of Rs. 16,000 for the property, and because of that offer the defendants resiled from the agreement. In the view of the High Court this part of the case of the plaintiff companyld number be believed because it was number expressly pleaded in the plaint. But the plaintiff did plead in paragraph-6 of the plaint the defendants had with the-evil influence and instigation of Karuppa Gounden, Pongia Goundar and Appachi Gounder of the place who are number planning to have the suit properties for themselves are number evading to rescind the companytract. This, in our judgment, is a sufficient plea, if it was necessary to plead it, in support of the case which the plaintiff sought to make out. The High Court discarded the testimony of Ramamurthy Iyer on the view that he was inimical to the defendants. We have been taken through his evidence and we see numberjustification for hold- ing that his testimony companyld number be believed. If Ramamurthy Iyer was an enemy of the defendants, it is very unlikely that they would permit him to write out an important document at their residence. The broad probabilities of the case strongly support his testimony. Having carefully companysidered the evidence we are of the view that the story of the defendants that only Rs. 350 were paid to them on July 4, 1956, and number Rs. 2,000 as recited in the memorandum is untrue and has been put up as an excuse for resiling from the agreement. The second plea that there was an alteration in the memorandum in material particulars cannot also be sustained. The original document is number before us, but from the cross- examination of the writer and the plaintiffs witnesses and also from the testimony of T.P. Sengottiah and his witnesses it does number appear that the words Clear the debts and execute the sale deed free from encumbrance were written in a cramped style. This sentence occurs immediately before the Schedule of property sold and after the first three paragraphs of the companyvenants of the memorandum. There was numberreason for the writer to leave any space which companyld be availed of to add this sentence after the document was executed. There is numberdenial that the sentence has been written by Ramamurthy. It is true that the High Court has observed that the ink in which the sentence was written appeared to be slightly different in shade from the rest of the document. But Ramamurthy Iyer has deposed that it was number true that the portion in the, agreement relating to the encumbrance was written subsequent to the agreement in companylusion with the plaintiff. He explained that the ink in his fountain-pen was exhausted when he wrote with one pen, and he wrote the portion after reading the document with another fountain-pen, and since the portion was written in a hurry the ink may have differed. According to him he did number numberice any difference in ink. There is numberreason to disbelieve the testimony of Ramamurthy Iyer. Even if it be assumed that the sentence regarding encumbrance was written after the deed was executed it will number invalidate the deed. The second defendant and his witnesses have admitted that there was numberdiscussion at the time of the writing and execution of the agreement about the encumbrances upon the land. There is number even evidence that there were any encumbrances subsisting on the land. Ordinarily when property is agreed to be sold for a price, it would be the duty of the vendor to clear it of all the encumbrances before executing the sale deed. The alteration, if any, cannot therefore be regarded as material. As observed in Halsburys Laws of England, Vol. 11, 3rd Edn., Art. 599 at A material alteration is one which varies the rights, liabilities, or legal position of the parties as ascertained by the deed in its original state, or otherwise varies the legal effect of the instrument as originally expressed,or reduces to certainty some provision which was origInally unascertained and as such void, or may otherwise prejudice the party bound by the deed as originally executed. The effect of making such an alteration, without the companysent of the party bound, is exactly the same as that of canceling the deed. It is also stated in Art. 604 at pp. 370 and An alteration made in a deed, after its execution, in some particular which is number material does number in any way affect the validity of the deed an alteration is number material which does number vary the legal effect of the deed in its original state, but merely expresses that which was implied by law in the deed as originally written, or which carries out the intention of the parties already apparent on the face of the deed, provided that the alteration does number otherwise prejudice the party liable thereunder. This rule has been applied by the Privy Council in Nathu Lal and Ors. v. Mussamat Gomti Kuar and Others 1 . The Judicial Committee observed in that case at p. 331 A deed is numberhing more than an instrument or agreement under seal and the principle of those cases is that any alteration in a material part of any instrument or agreement avoids it, because it thereby ceases to be the same instrument. The Judicial Committee observed at p. 333 A material alteration has been defined in the rule as one which varies the rights, liabilities or legal position of the parties ascertained by the deed, etc., and after applying that test they held that the alteration in that case was number material in the sense of altering the rights, liabilities or legal position of the parties or the legal effect of the document. L.R. 67 I.A.318. Since the defendants were liable to clear the encumbrances, if any, subsisting on the land before executing the sale deed, assuming that the companyenant was incorporated after the execution of the deed, it cannot be regarded as a material alteration on that account, for it does number alter the rights or liabilities of the parties or the legal effect of the instrument. The appeal is therefore allowed and the decree passed by the High Court is set aside and the decree of the Trial Court is restored with companyts in this Court and in the High Court.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 1278 of 1969. Appeal from the judgment and order dated March 13, 1969 of the Allahabad High Court in Special Appeal No. 1060 of 1967. K. Daphtary,, Yogeshwar Prasad, S.K. Davon and S. Bagga, for the appellants. R. Gokhale, J.P. Goyal, Ilyas Hussain and V.C. Prashar, for respondents Nos. 1 and 2. The Judgment of the Court was delivered by Shelat, J. The question arising in this appeal, by certificate, may be stated thus When an applicant applies for a permit to run a passenger bus service on the ground that the route for which he applies, though one number yet opened, is necessary in public interest, but the Regional Transport Authority companyes to. the companyclusion that it does number, and thereupon rejects his application, whether his order is one under s. 48 of the Motor Vehicles Act, 4 of 1939 and is, therefore, appealable under s. 64 a of that Act ? The route involved in this case was the one between Meerut and Dankaur which had numberdirect passenger bus service. There were, however, two routes which were being operated, namely, one from Meerut to Bulandsharhar and the other from Siana to Dankaur, one crossing the other, so that if one wanted to go from Meerut to Dankaur there was numberdirect service, and therefore, he would have first to travel in the bus running from Meerut to Bulandshahar, get down at a place near Gulsothi and catch the bus running from Siana to Dankaur. This was the position when the appellants, amongst others, applied to the Regional Transport Authority for permits to operate. a direct service from Meerut to Dankaur. This was, therefore, number a case where the R.T.A. had already decided upon opening the new route, fixed the number of permits necessary for such a route and then invited applications from operators. Nevertheless, the T.A., follow- ing the procedure laid down in s. 57 of the Act, published these applications, to which objections. were raised amongst others by those who were operating on the routes. earlier referred to. These applications came up for companysideration in the meeting held before the R.T.A. on July 28, 1965 when Item 3 of the Agenda for that meeting was To pronounce decision regarding recognition and classification of M eerut to Dankaur via Hapur Gulsothi Sikandarabad route. and grant of permits thereon. It is apparent that Item 3 involved two questions for determination of the R.T.A. a whether the route proposed by the appellants and others should be opened, and b if so, to whom, amongst the applicants, should permit or permits, depending upon the number of permits he. should decide upon, should be granted. After hearing the applicants and those who opposed them, the R.T.A. was satisfied that there was numbersufficient demand for such a direct service, and therefore, there was numberjustification for opening the proposed new route. Having arrived at that companyclusion the question of granting or number granting permits to individual applicants did number arise and he rejected the applications of the appellants and other applicants. Appeals having been filed before the Appellate Tribunal, the Tribunal reversed the order of the R.T.A. and granted permits to the three appellants. The respondents thereupon filed writ petitions in the High Court for quashing the order of the Tribunal companytending that numberappeal against the order of the. R.T.A. lay under s. 64 a , and that company sequently, the Tribunal had numberjurisdiction to entertain such appeals and grant permits to the appellants. The learned Single Judge of the High Court, who. heard the writ petitions in the first instance, dismissed them, but on appeal against his order the Division Bench of the High Court came to the companyclusion that numberappeal against the said order of the R.T.A. lay under s. 64 a , and accordingly, allowed the writ petitions and quashed the Tribunals. order. This appeal is directed against this order. Counsel for the appellants urged that there was. numberprovision in the Act separately providing for the R.T.A. to decide first as to whether particular route proposed by an applicant should be opened or number. It was argued that the provisions of Ch., IV, and in particular ss. 47 and 57, show that once an application for a permit is made and is published and objections thereto are invited and the R.T.A. applies his mind to it and rejects it, numbermatter what his reasons for such rejection are, his order amounts to. a refusal under s. 48 and is appealable under s. 64 a . The rival companytention, on the other hand, was that s. 47 3 , which . Sup. C1/70---4 companytains the power of the R.T.A. to first determine the number of permits necessary for a particular route, which decision, as held by this Court, is number appealable under s. 64 a , companytains also the power to decide whether a proposed route should be opened or number, and that it is only after these two points are first ,decided, that the question, who amongst the applicants should be granted permits, arises. It is at this latter stage that the question of granting or refusing to grant a permit arises under s. 48, and it is against an order under that section that an appeal under 64 a is provided. The. argument was based on the principle that a right of appeal is number something which is inherent, but is that which and to the extent it is provided for by the statute. The provisions of the Act relevant to the questions raised in this appeal as also their scheme have been more than once examined by this Court. There is therefore, numbernecessity to analyse them once more. In Abdul Mateen v.R. Pandey 1 the ,question was whether the Bihar Government acting under s. 64-A, as amended by the Bihar Amendment Act, 1950, had the power to increase the number of permits for which applications had been invited by the T.A. In negativing the claim that the State Government had such power, this Court inter alia held that s. 47 3 was companycerned with a general order limiting .stage carriages on a companysideration of matters specified in s. 47, and that such an order can be modified by the R.T.A. if it so decides one way or the other. But such a modification is number a matter of companysideration when it is dealing with the actual grant of permit under s. 48 read with s. 57, for, at that stage what the R.T.A. has to do is to choose between various applicants who may have applied under s. 46. The Court held that that is number the stage when the general order passed under s. 47 3 can be reconsidered, for, the order under s. 48 is subject to s. 47 including the provisions of s. 47 3 under which the general order limiting the number of permits is passed. At page 531 of the Report, the Court further held that the appeal companytemplated under s. 64 is by a person who is aggrieved by the order specified therein and does number companytemplate any appeal against the general order passed under s. 47 3 . On this view of s. 47, it was lastly held that when an appeal is taken from an order under s. 48 and a revision is applied for under s. 64-A of the Bihar Amendment Act, the power of the Appellate Authority, as also of the State Government as the revisional authority, is as much subject to s. 47 3 as the power of the R.T.A. under s. 48, i.e., it cannot grant a permit beyond the limit. already .decided upon under s. 47 3 . In M s. Java Ram Motar Service 1 1963 3 S.C.R. 523. S. Rajarathinam,. 1 the R.T.A. had already introduced the new bus route and then had invited applications for permits. 34 applicants applied for permits. The R.T.A, however, rejected them all on the ground that there was after all numberneed for the new route. On these facts the question was, whether a person, whose application is rejected by the R.T.A. on the ground that there was numberneed for a new route, in spite of his decision previously arrived at that such a route was necessary, companyld appeal under s. 64 a against such rejection. Following the decision in Abdul Mateens case 2 we held that the Authority had already resolved to introduce a new bus route and invited applications for a permit under sec. 57 2 . It companyld numberdoubt have acted under sec. 47 3 and modified its earlier decision. instead, what it did was that while companysidering the question as to who amongst the 34 applicants should be granted that permit, i.e., at the stage number under section 47 3 but under sec. 48 1 , it decided to refuse all applications on the ground that there was numberlonger any need for any such permit. In other words, though the earlier order was still intact, the authority rejected the applications on the ground that there was numberneed for any fresh permit. The order was clearly companytrary to the previous order passed under sec. 47 3 and therefore cannot be said to be in companysonance with sec. 47 as required by sec. 48 1 . The order was number one under sec. 47 3 but under sec. 48 1 refusing thereby the applications including those of the appellant and the respondents and was therefore subject to an appeal under sec. 64 a . Does it make any difference to. the principle laid down in these decisions whether the R.T.A. invites applications having previously decided to introduce a new route or whether an applicant proposes such a new route and applies for a permit. Abdul Mateens case 2 and the case of Java Ram Motor Service 1 were cases where the R.T.A. had first decided to introduce A new route and had then invited application. On the other hand, in R. Obliswami Naidu v. The Addl. State Transport Appellate Tribunal, Madras 3 numbersuch decision had been previously taken by the T.A. and the appellant had applied for a permit on a new route. The question canvassed there was whether the T.A. had first to decide the necessity of such a new route, and then having companye to such a decision proceed CA 95 of l965 decd. on October 27, 1967. 2 1963 3 S.C.R. 523. C.A. 1426 of 1968, dec. on Feb. 17, 1969. to examine the question whether an applicaNT should or should number be granted the permit. The Appellate Tribunal had held that the procedure followed by the R.T.A. was number in accordance with law as it had failed to determine the question of the need for a service for the new route applied for by the appellant before deciding his application for permit, and had companytravened the provisions of s. 47 3 . The appellant challenged the order by a writ petition in the High Court which was dismissed. In the appeal in this Court against that order, Hegde, J., speaking for the Court, upheld the view of the Appellate Tribunal and held that though s. 47 3 , if read by itself, did number throw light on the question, secs. 47 and 57, when read together, made it clear that the R.T.A. had first to arrive at a decision whether there was the necessity for. the new route, and then decide under s. 48 whether the appellant should be granted a permit or number This decision clearly shows that it makes numberdifference between cases where applications are invited by the R.T.A. after having companye to the companyclusion as to the necessity for a new route, or where an applicant himself proposes a new route and applies for a permit. In both the cases, the R.T.A. has to decide, before reaching the stage of s. 48 when he companysiders individual applications for deciding as to whom amongst the applicants the permit should be granted, whether the new route is necessary in the interest of the public. The decisions referred to above, in our opinion, clearly lay down that the R.T.A. has first to make a general order as stated in Abdul Mateens case 1 under s. 47 3 as to the number of permits necessary for a new route and he cannot exceed that limit while he is at the next stage when he companysiders.rs under s. 48 read with s. 57 as to who amongst the applicants shouId be granted the permit or permits. Such a general order limiting the number of permits presupposes that he has companye to a decision that the new route either proposed by him or by an applicant or applicants is necessary in public interest. Obviously, he does number have to decide the number of permits necessary for such a new route unless he first decides that the new route should be opened. If the order as to the number of permits is a general order passed under s. 47 3 , in respect of which the individual applicants are number companycerned with and is anterior to the stage under s. 48 when applications of the individual operators are taken into companysideration,and therefore, number appealable under s. 64 a , it must follow a fortiori that the decision as to whether the new route is necessary. or number is equally a general order arrived at either earlier or companytemporaneously with the decision as 10 the number of permits. If the latter order is number appealable, 1 1963 S.C.R. 523. it cannot be that the former, i.e., the decision whether the new route is necessary or number, is number an equally general order with which individual applicants are number companycerned, and can appeal against it under s. 64 a . On this view, it would at first sight appear as if the T.A. has an unlimited or unbridled power in companynection with the decision as to whether a proposed route should be opened or number.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 1312 of 1966. Appeal by special leave from the judgment and order, dated October 1, 1962 of the Mysore High Court in Writ Petition No. 1280 of 1961. Niren De, Attorney-General, S.S. Javali and S.P. Nayar, for the appellant. R.L. Iyengar and A. G. Ratnaparkhi, for the respondent. The Judgment of the Court was delivered by Ramaswami, J. This appeal is brought by special leave from the judgment of the Mysore High Court dated October 1, 1962 in Writ Petition No. 1280 of 1961 directing the appellant to determine the salary payable to the respondent on the basis that he had been permitted to cross the efficiency bar in time scale of pay of Rs. 900-50-1200-EB-75-1500 in Osmania Sikka rupees. The High Court also directed by the same judgment that the increments above the efficiency bar be withheld by the appellant should number be paid to him and the salary so determined should be taken into account for determining the amount of pension payable to the respondent in accordance with the relevant rules. The respondent was working as an Executive Engineer in the Public Works Department of the Hyderabad State and was in charge of certain project works during the period June 1949 to September 1950. On the basis of some information the explanation of the respondent was called for in respect of certain alleged irregularities in the execution of certain project works. The respondent sent in his explanations dated June 14, 1951 and December 10, 1951 to the Superintending Engineer, Munirabad. In October 1953 the Enquiry Officer came to the companyclusion that some loss had been caused in respect of four projects more due to lack of foresight and organising capacity on the part of the respondent than to any intentional misappropriation and a show cause numberice was issued on March 11, 1955 asking the respondent to show cause why he should number be stopped from crossing the efficiency bar with effect from February 9, 1952 and why a sum of Rs. 23,371/.- should number be recovered from his salary on account of the loss caused to the Government by the respondents negligence. After the respondent had shown cause the matter was sent by the Government to the Public Service Commission. The Public Service Commission recommended that in addition to stopping the respondent at the efficiency bar for the period 1952 to 1957 as recommended by the Government, the pecuniary loss caused to the Government should be recovered from the respondent. On November 1, 1956 the States Reorganisation came into force and the services of the respondent stood transferred to the State of Mysore. By its order dated October 14, 1958 the Mysore Government directed that the respondent should be retired companypulsorily from service and should also be asked to make good sum of Rs. 4,576/- being the amount of loss caused to Government in the above companynection. The respondent challenged this order by a writ petition on the ground that the Enquiry Officer at Hyderabad had exonerated him of all the charges excepting one and also. because the report of the Enquiry Officer was number furnished to the respondent. The High Court of Mysore allowed the writ petition and quashed the order of the Government. Thereafter the Mysore Government took further steps in the matter and the respondent presented several other writ petitions in the Mysore High Court impinging the subsequent action of the Mysore Government. It is unnecessary for the purpose of the purpose of the present appeal to set out the orders of the Mysore Government and the writ petitions filed by the respondent and the Orders made by the High Court except to state that by an order made on December 10, 1960 he respondent who was to have retired with effect from October 27, 1960, the date on which he companypleted the age of 55 years was companytinued in service but under suspension pending companypletion of the disciplinary proceedings against him and that the Government by a subsequent order dated May 19, 1961 revoked the previous order of December 10, 1960 and permitted the respondent to retire dropping altogether the disciplinary proceedings against him. After his retirement the respondent flied writ petition No. 1280 of 1961 praying for declaration that he should be regarded as having crossed the efficiency bar in his pay scale on February 9, 1952 and that he should be given all the increments after the efficiency bar in the pay scale of an Executive Engineer and that he should be paid the difference and his pension should be fixed on the basis of enhanced salary claimed by him. The claim of the respondent was resisted by the Mysore State on the ground that under r. 38 of the Hyderabad Civil Service Rules a specific order ought to be made permitting the respondent to cross the efficiency bar. The High Court rejected the companytention of the appellant and held that companysequent upon the dropping of the proceeding against the respondent the increment withheld by way of penalty should be restored and the increased salary should be taken into account in fixing the amount of pension payable to the respondent. Rule 38 of the Hyderabad Civil Services Rules, 1952 reads as follows Where an efficiency bar is prescribed in a time scale the increment next above the bar shall number be given to a Government servant without the specific sanction of the authority empowered to withhold increments. Rule 52 of the Mysore Civil Services Rules, 1958 is in the same language. as r. 38 of the Hyderabad Civil Service Rules. On behalf of the respondent it was companytended that the with holding of the increment of the respondent at the efficiency bar was intended to operate as a penalty for alleged misconduct. It was said that upon the facts of the case the only companyclusion possible was ,that the Government wanted to stop the respondent at the efficiency bar in the time scale with a view to reimburse itself at the expense of the respondent the loss said to have been caused by him to the Government. It was, therefore, argued that after the dropping of disciplinary proceedings against the respondent without recording any finding of guilt numberpenalty companyld be imposed. It was Contended that once the Government had taken the decision to stop the respondent at the efficiency bar by way of penalty it must be held that the Government had waived their right to stop the respondent at the efficiency bar for administrative reasons under r. 38. In our opinion there is numberwarrant for the companytentions advanced on behalf of the respondent. It is manifest that in view of the language of r. 38 of the Hyderabad Rules and r. 52 of the Mysore Rules before the respondent companyld claim payment of increments next above the bar it is necessary that the Government should make a special order sanctioning such payment. It is true that disciplinary proceedings against the respondent were dropped but the result claimed by the respondent cannot automatically follow a result of the dropping of the disciplinary proceedings. In this companynection the Attorney General pointed out that the numberice dated March 16, 1955 against the respondent asked him to show cause why 1 he should number be stopped from crossing. the efficiency bar and 2 why a sum of Rs. 23,371-14-2 should number be recovered from him on account of loss caused to the Government by his negligence. The stoppage at efficiency bar had numberconnection with the recovery of loss sustained by the Government and it cannot, therefore, be said that the Government wanted to impose the efficiency bar because it wanted to reimburse itself for the loss caused by the respondent. So far as the language of r. 38 is companycerned it is manifest that an express order of the appropriate authority is necessary before the respondent is allowed to cross the efficiency bar. It is number, therefore, possible to accept the companytention of the respondent that the Government must be deemed to have given specific sanction under r. 38 of the Hyderabad Rules permitting the respondent to cross the efficiency bar merely because disciplinary proceedings against him had been dropped for certain reasons. In the High Court the case was argued by both the parties on the assumption that r. 38 applied to the case of the respondent. During the hearing of the appeal in this Court it was stated by Mr. Iyengar that when the respondent became due for crossing the efficiency bar r. 38 as it stands at present was number in operation. But it was said that a rule similar to r. 38 was in operation at the relevant time. For these reasons we held that this appeal should be allowed and the judgment of the Mysore High Court dated October 1, 1962 should be set aside and the writ petition filed by the respondent should be ordered to be dismissed.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 2345 of 1966. Appeal from the judgment and decree dated December 3, 1965 of the Madhya Pradesh High Court, Indore Bench in First Appeal No. 56 of 1961. N. Shroff and B. L. Joshi, for the appellant. Gopalakrishnan, for the respondent. The Judgment of the Court was delivered by Shah, J. Nathulal-appellant in this appeal-was the owner of a Ginning Factory companystructed on a plot of agricultural land bearing Khasra No. 259/1. The land stood entered in the revenue records in the name of Chittarmal.-brother of Nathulal. On February 26, 1951, Nathulal agreed to sell to Phoolchand the land and the Ginning Factory for Rs. 43,01 1, -. He received in part payment Rs. 22,011 -, and put Phoolchand in possession of the property. Phoolchand agreed to pay the balance on or before May 7, 1951. The terms of the agreement, were reduced to writing in companynter-part and were duly signed by the parties. On the plea that Phoolchand had failed to pay on the due date the balance of price, Nathulal rescinded the companytract on October 8, 1951 and companymenced an action in May, 1954 in the Court of the District Judge, Nimar, for a decree for possession of the land and the factory and for mesne profits from the date of delivery till possession was restored to him, alleging that Phoolchand was a trespasser because he had companytrary to the express terms of the agreement made default in payment of the balance of the purchase price on or before May 7, 1951. Phoolchand companytended that Nathulal had failed to get the name of Chittarmal deleted from the revenue record according to the terms of the agreement, that he, Phoolchand, was ready and willing- to pay the balance of Rs. 21,000/-, that he had sent a telegram on May 7, 1951, offering to pay the balance against execution of the sale deed, that the agreement had been unlawful altered by Nathulal after execution by adding a clause by which the possession of Phoolchand in default of payment of money on or before May 7, 1951, was declared unlawful. The Trial Court decreed the suit holding that Phoolchand companymitted breach of companytract in that he failed to pay the balance due by him on or before the due date. In appeal the High Court of Madhya Pradesh reversed the decree. The High Court declared that Nathulal was entitled to the balance of the companysideration a,-. also mesne profits at the rate of Rs. 1,500/- per annum from ,lay 7, 1951 till the date on which Rs. 21,000, - were deposited by Phoolchand within two months of the passing of the decree. Subject to this direction Phoolchand was allowed to retain. possession of the entire property, i.e., land Khasra No. 259/1 including the Ginning Factory and structures standing on the land. it was directed that if Phoolchand, companymitted default Nathulal may claim possession of the entire property with mesne profits at the rate of Rs. 3,000/- per annum from the date he was out of possession and till the date on which possession was delivered. The cross-objections filed by Nathulal relating to mesne profits were disposed of in the light of the directions given in the decree. With certificate granted by the High Court this appeal has been preferred by Nathulal. In the view of the Trial Court Phoolchand was unable to procure the amount of Rs. 21,000/- which he had agreed to pay on or before May 7, 1951 and on that account he had company- mitted breach of the companytract. The High Court held that Nathulal was number guilty of breach of companytract, for, Phoolchand had arranged with a Bank to borrow upto Rs. 75,000/-, when needed by him, and Phoolchand had on that account sufficient resources at his disposal to enable him to pay the amount due. The Trial Court and the High Court have held that Phoolchand failed to pay the amount on or before May 7, 1951. The have also held that lie had number made the tender as pleaded by him. Under the terms of the agreement Nathulal had undertaken to get the name of his brother Chittarmal removed from the revenue records and to get his own name entered, but the lands companytinued to stand recorded in the name of Chittarmal till October 6, 1952, and before that date Nathulal rescinded the companytract. Again by virtue of s. 70 4 of the Madhya Bharat Land Revenue and Tenancy Act 66 of 1950, Phoolchand number being an agriculturist the land companyld number be sold to him without the sanction of the State Government. In the absence of any specific clause dealing with this matter, a companydition that Nathulal will secure the sanction under s. 70 4 after paying- the appropriate fee must be implied in the agreement for it is well-settled that whereby, statute property is number transferable without the permission of the authority, on agreement to transfer the property must be deemed subject to the implied companydition that the transferor will obtain the sanction of the authority companycerned see Motilal and Others v. Narhelal and Another 1 and Mrs Chandhee, Widya Vati Madden v. Dr. C. L. Katial Others 2 . Phoolchand companyld be called upon to pay the balance of the price only after Nathulal performed.his part of the companytract. Phoolchand had an outstanding arrangement with his Banker to enable him to draw the amount needed by him for payment to Nathulal. To prove himself ready and willing a purchaser has number necessarily to produce the money or to vouch a companycluded scheme for financing the transaction Bank of India Ltd. Ors. v. Jamsetji A. H. Chinoy and Messrs. Chinoy and Company 1 . The High Court proceeded to decide the case largely upon the view that Nathulal companymitted breach of companytract. But the question whether Nathulal had companymitted the breach is number of much significance. Nathulal was the owner of the land he had executed numberconveyance in favour of Phoolchand in the land or the factory. Nathulal had sued for possession relying upon his and Phoolchand companyld defeat that claim if lie established his defence of part-performance under s. 53A of the Transfer of Property Act. The argument raised by companynsel for Nathulal, that by virtue of s. 70 8 of the Madhya Bharat Land Revenue and Tenancy Act, the plea of part performance is number available to a person put L.R. 57 I.A.333 2 1964 2 S.C.R. 495. L.R. 77 I.A. 76, 91. in possession of the property under a companytract of sale, has, in our judgment, numberforce. Section 70 8 provides No sale under this section shall be deemed to be valid until the sale deed effecting such a sale has been registered in accordance with the law of registration in force for the time being. But this clause only requires that number only the companyditions prescribed by s. 70, but registration of sale deed in accordance with the law of registration for the time being in force is a companydition required to be companyplied with before a sale is deemed valid. There is numbersale in the present case, and Phoolchand is number relying upon any sale. He is relying upon a companytract of sale and equity which he may set up to defend his possession against the claim made by Nathulal. To the making of such a claim, relying upon the doctrine of part performance in s. 53A of the Transfer of Property Act, there is numberhing in s. 70 8 of the Madhya Bharat Land Revenue and Tenancy Act 66 of 1950 which may operate as a bar. The companyditions necessary for making out the defence of part performance to an action in ejectment by the owner are , 1 that the transferor has companytracted to transfer for companysideration any immoveable property by writing signed by him or on his behalf from which the terms necessary to companystitute the transfer can be ascertained with reasonable certainty 2 that the transferee has, in part performance of the companytract,, taken possession of the. property or any part thereof, or the transferee, being already in possession companytinues in possession in part performance of the companytract 3 that the transferee has done some act in furtherance of the companytract and 4 that the transferee has performed or is willing to perform his part of the companytract. If these companyditions are fulfilled then numberwithstanding that the companytract, though required to be registered, has number been registered, or, where there is an instrument of transfer, that the transfer has number been companypleted in the manner prescribed therefore by the law for the time being in force, the transferor or any person claiming under him is debarred from enforcing against the transferee any right in respect of the property of which the transferee has taken or companytinued in possession, other than a right expressly provided by the terms of the companytract. There is in this case a companytract to transfer for companysideration immoveable property by writing signed by Nathulal from which the terms necessary to, companystitute the transfer can be ascertained with reasonable. certainty. In part performance of the companytract, Phoolchand has taken possession of the property and he had in pursuance thereof paid an amount of Rs. 22,011/-. The argument raised by companynsel for Nathulal that the act done in pursuance of the companytract must be independent of the terms of the companytract cannot be accepted. The first three companyditions for the defence of part performance to be effectively set up by Phoolchand exist. Mr. Shroff for Nathulal however companytends that Phoolchand was number willing to perform his part of the companytract. Nathulal had expressly undertaken to have the revenue records rectified by securing the deletion of Chittarmals name, and it was an implied companydition of the companytract that Nathulal will secure the sanction of the Collector to the transfer under s. 70 4 of the Madhya Bharat Land Revenue and Tenancy Act 66 of 1950. The first companydition was number fulfilled till October 6, 1952 and the second companydition was never fulfilled. We are unable to agree with Mr. Shroff that the repeal of the Madhya Bharat Act 66 of 1950 by the Madhya Pradesh Land Revenue Code, 1959, has retrospective operation. In companysidering whether a person is willing to perform his part of the companytract the sequence in which the obligations under a companytract are to be performed must be taken into account. The argument raised by Mr. Shroff that Nathulal was bound to perform the two companyditions only after the amount of Rs. 21,000/was paid is plainly companytrary to the terms of the agreement. By virtue of s. 4 of the Transfer of Property Act the chapters and sections of the Transfer of Property Act which relate to companytracts are to be taken as part of the Indian Contract Act, 1872. If, therefore. tinder the terms, of the companytract the obligations of the parties have to be performed in a certain sequence, one of the parties to the companytract cannot require companypliance with the obligations by the other party without in the first instance performing his own part of the companytract which in the sequence of obligations is performable by him earlier. In view of the arrangement made by Phoolchand it was clear that he had at all relevant times made necessary arrangements for paying the amount due, but so long as Nathulal did number carry out his part of the companytract, Phoolchand companyld number be called upon to pay the balance of the price. It must, therefore, be held that Phoolchand was at all relevant times willing to carry out his part.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 1551 of 1966. Appeal by special leave from the Award dated February 28, 1966 of the Industrial Tribunal, Madrasin I. D. No. 21 of 1965. R. Gokhale and D. N. Gupta, for the appellant. K. Ramamurthi, Shyamala Pappu and vineet Kumar, for the respondents. The Judgment of the Court was delivered by Shelat, J. On demands for revision of wage-scales, dearness allowance, medical benefit, bonus for the year 1963-64, gratuity etc. having been made by the workmen of the appellant- companypany in its Madras and the other branches in that region and disputes thereabout having arisen between the companypany and its said workmen, the Government of Madras referred them by its numberification dated April 6, 1965 for adjudication to the Industrial Tribunal, Madras. The Tribunal granted some and rejected the rest of the demands. Aggrieved by the award the companypany filed this appeal under special leave granted by this Court. Though the award dealt with a number of demands companynsel for the appellant-company restricted its challenge against the award on three subjects only. Consequently, we are, companycerned in this appeal with those three subjects only, namely, bonus for the year 1963-64, medical benefits and revision by the Tribunal of the companypanys existing gratuity scheme. As regards the bonus, the companypany had already paid to the workmen bonus at the rate of 4 months basic pay as against the demand for the maximum bonus calculated in accordance with the Payment of Bonus Act, 1965, and on companysolidated as against the basic wages. The Tribunal companyceded that demand and granted bonus at 209 of the companysolidated wages. In view, however, of this Courts decision in Jalan Trading Co. Mill Mazdoor Union, 1 Mr. Ramamurthi for the workman companyceded. that the Act cannot apply in respect of the year in question and that the bonus payable for that year will have to be calculated on the basis of the Full Bench Formula as approved by this Court. The award to that extent, therefore, has to be set aside and remanded to the Tribunal for determining the bonus in accordance with the said Formula. On the question of medical facilities, the workmens demand is companytained in paras 27 to 31 of their statement of claim filed before the Tribunal according to which the workmen wanted the companypany to reimburse all medical expenses incurred by them on production of bills therefore. In paras 27 and 28 of the statement, it was stated that the companypany had a scheme for medical benefit for its workmen at Calcutta made under the companysent award of 1962 and that there was numberreason why this amenity should be refused to the workmen in this region. Para 30 of the statement stated that there was a discussion between the parties regarding this demand when the companypany agreed to appoint a medical officer for companysultation by the workmen and also to meet the companyt of medicines upto Rs. 100 for a workman per year. This offer, however, was rejected on three grounds 1 that the companydition as to the ceiling was discriminatory, 2 that the ceiling was too low and 3 that there was numberwarrant for number extending the benefit to workmen of the branch offices outside Madras. 1 1967 1 S.C.R. 15. This demand is dealt with by the Tribunal in para 14 of the award. It is clear therefrom that the unions companytention before the Tribunal was that there was numberreason why this amenity of medical facility which the companypany has granted to its Calcutta workmen should be refused to the workmen of the Madras region. The companytention thus clearly was that the companypany having made a scheme for its Calcutta employees, it was discriminatory to refuse such a scheme to its workmen in Madras region. It is equally clear that the offer made by the companypany and referred to in the statement of claim by the workmen was rejected as it companytained a ceiling which was number in its Calcutta scheme, and it was, therefore, that its offer was companysidered discriminatory. In view of these companytentions the Tribunal agreed that a scheme for medical benefit for this region was called for. The Calcutta scheme was number produced before the Tribunal and therefore the Tribunal proceeded to frame its own scheme. The Tribunal rejected the demand for reimbursement of all medical expenses in respect of which bills would be produced as it felt that such a provision would lead to abuses including the obtaining of false bills. Instead, the Tribunal directed that the companypany should pay the companyt of such medicines as are prescribed by the companypanys doctor, if supported by genuine bills, and should also pay all companyt of hospitalisation if and when it was recommended by the companypanys doctor. Counsel for the companypany objected to this part of the award on the grounds 1 that the Tribunal was number justified in throwing on the companypany the entire burden of medical expenses including the companyt of hospitalisation even in cases of major diseases which workmen might suffer or companytact, 2 that it was numberpart of the employers obligation to provide for such expenses and that too to an unlimited degree, and 3 that the award should have provided a ceiling both in respect of the companyt of medicines and of hospitalisation. The argument was that the grievance of the workmen was that denial of the medical amenity to them as the one given to its Calcutta workmen was discriminatory, and therefore, if the Tribunal decided to companycede the demand, it should have been on the same lines as the Calcutta scheme. Mr. Rama- murthi, on the other hand, companytended that a it was an accepted principle that though a companypany may have an all India organisation, it was number necessary that if should have uniform companyditions of service in all the regions and that, therefore, merely because the companypany has a medical scheme for its Calcutta office it did number follow that scheme must also be applied to its workmen in Madras region, and b that the scheme framed by the Tribunal was fair and should number be interfered with in order only to bring it in line with that of Calcutta. In a recent decision companycerning this very companypany and its, workmen in Bangalore, Hyderabad and Kerala branches Remington Rand of India v. The Workmen 1 , this Court had to companysider this very question. The Tribunals in those cases. had, as in this case, made schemes which imposed the burden of medical facilities on the companypany without any ceiling and extended therein such benefit to the family members of the workmen also. In those cases, on our finding the companypanys Calcutta scheme to be fair and reasonable, we substituted it for the schemes framed by the, respective Tribunals. The Calcutta scheme is thus in operation in those areas also. Counsel for the workmen has number shown to us any substantial difference between those areas and the Madras region affecting, the question of medical benefit. We,, therefore, find numberlegitimate reason why the Calcutta scheme should number be applied to these workmen. It is true that medical benefit is excepted in that scheme for certain diseases of a companytagious and epidemic nature. That presumably was done on the ground that for such diseases the primary duty to give relief is of the State and number of the employer. For the reasons given in that decision, we set aside the directions given by the Tribunal in this. behalf and substitute them by the following scheme When a workman during the companyrse of his duty requires medical attention, and where such attention is given by the companypanys doctor i.e. a doctor or doctors numberinated by the companypany including a doctor numberinated as a part-time doctor and medicines are prescribed by him, the companyt of such prescription should be borne by the companypany In the event of a workman falling sick at his residence and the illness is other than a venereal disease, leprosy, smallpox, typhoid or cholera, he should be paid the companyt of the medicines prescribed Bills or cash vouchers pertaining to such prescription should be produced for companynter signature of the companypanys doctor before payment is authorised Disease of a serious nature requiring hospitalisation will be subject to companysideration by the companypany At the time of employment the companypany will be entitled to get the prospective employees examined by the companypanys doctor and their employment will be subject to being found medically fit All companypany employees who are presently employed or those employed in future will be medically C.A. Nos. 856. 1475 and 2119 of 1968, decided on December 10, 1968. examined by the companypanys doctor once a year or at such other periodical intervals determined by the companypany but the results of such medical examinations will number be prejudicial to the workmens employment In case a workman is found medically unfit to companytinue in service, the companypany will decide his case in companysultation with the unions secretary and This scheme will companye to an end as and when the Employees State Insurance Scheme is extended to the employees companycerned. The question of laying down any ceiling need number be company- sidered as the companypany, we are told, is agreeable to extend this scheme in this region. The third item in respect of which the companypany challenges the award is the revision made by the Tribunal of the existing gratuity scheme. The workmens demand in this respect was 1 that the maximum limit of 15 months salary should be enhanced to 20 months salary, and 2 that the provision in the existing scheme that numbergratuity would be payable to a workman dismissed on the ground of misconduct should be substituted by a provision that even in such cases gratuity should be payable but the companypany would be entitled to deduct from such gratuity amount the amount of financial loss, if any, resulting from such misconduct. The Tribunals view was that these demands were reasonable and accordingly made modifications in the existing scheme. At first, Mr. Gokhale objected to this part of the award. first ly on the ground that the Tribunal ought number to have allowed gratuity even in cases of dismissal for misconduct, and secondly, that the qualifying period in the case of termination of service by the companypany otherwise than for misconduct should be 10 years and number the graded periods from 5 to 15 years as provided in the award. On second thoughts he did number press the second objection. and therefore, numberhing need be said about it. He, however, companytended that if gratuity even in cases of dismissal for misconduct is to be made payable, a provision should be made that it would be forfeited if the misconduct is a gross one involving violence, riotous behaviour etc. and for the rest of the cases, the qualifying period should be 15 years of companytinuous service. These objections involve a principle, and therefore, need serious companysideration. The principle invoked by Mr. Gokhale is, firstly, that since gratuity is paid as a reward for long and meritorious service it would be inconsistent with that principle to award gratuity in cases of dismissal for misconduct, for. such cases cannot be treated as cases of meritorious service, and secondly, the provision in such cases for deduction only of financial loss resulting from misconduct companymitted by the workman is neither proper number companysistent with the principle on which gratuity is made payable by an employer. A workman may be guilty of gross misconduct, such as riotous behaviour or assault on a member of the staff. Such misconduct may number result in any financial loss to the companypany, and therefore, the workman would be paid full gratuity amount. The companytention was that it would be a serious anomaly that while a workman, who has caused some damage to the companypanys property and is dismissed on the ground that he was guilty of misconduct would have the gratuity amount payable to him reduced to the extent of that damage, another workman, who, for instance, assaults and causes injury, even a serious injury, to another employee would, though liable to be dismissed, be entitled to the full gratuity merely because the misconduct of which he is guilty, though graver in nature, does number result in pecuniary loss to the companypany. In support of his companytention, Mr. Gokhale leaned heavily on two recent decisions of this Court in Calcutta Insurance Co. Ltd. v. Their Workmen 1 and The Delhi Cloth General Mills Company Ltd. v. The Workmen 2 . Relying on these decisions, he urged, that in cases of dismissal for misconduct, the qualifying period should number be as prescribed by the Tribunal but must be 15 years of companytinuous service. Mr. Ramamurthi, on the other hand, companytended that the principle that gratuity is a reward for long and meritorious service and that for a single misconduct after such service, such misconduct should number result in deprivation of gratuity except to the extent of the actual monetary loss caused to the employer has been long accepted in industrial adjudication and should number be abandoned, and that the two decisions relied on by Mr. Gokhale should number be companystrued as having the cumulative result of enhancing the qualifying period and also depriving gratuity in cases of dismissal for misconduct. The first decision, according to him, lays down an increase in the qualifying period from 10 years, which generally used to be the period for earning gratuity, to 15 years, and the second lays down Certain exceptions to the accepted rule that deduction of monetary loss resulting from misconduct was sufficient. He argued that neither of the two decisions lays down that both the companysequences must follow where a workman is dismissed for misconduct, even if such misconduct has number resulted in any monetary loss to the employer. In view of these companytentions it becomes necessary for us to examine the earlier decisions cited before us before we companye to 1 1967 2 S.C.R. 596. 2 1969 2 S.C.R. 307. the cases of Calcutta Insurance Co. Ltd. 1 and the Delhi Cloth General Mills Co. Ltd. 2 . The question as, to whether gratuity should be, payable even though the companycerned workman is dismissed for misconduct appears to have been raised for the first time is The Garment Cleaning Works v. Its Workmen 3 . The objection there raised related to cl. 4 of the gratuity scheme framed by the Tribuml which provided that even if a workman was dismissed or discharged for misconduct, gratuity would still be payable except that if such a misconduct resulted in financial loss, to- the works, gratuity should be paid after, deducting such loss. The companytention urged by companynsel, but which failed,, was that such a clause was, inconsistent with the principle on, which gratuity claims were based, namely, that they were in the nature of retiral benefit based on. long and meritorious, service. Therefore, if a workman was guilty of misconduct and was dismissed or discharged, it would be a blot on his long and meritorious service and in such a case it would number be open to him to claim gratuity. This was a general argument and was repelled as such is clear from what the Court said at page 715 of the Report On principle, if gratuity is earned by an employee for long and meritorious service it is, difficult to understand why the benefit thus earned by long and meritorious service should number be available to the employee even though at the end of such service he may have been found guilty of misconduct which entails his dismissal. Grautuity is number paid to the employee gratuitously or merely as a matter of boon. It is paid to him for the service rendered by him to the employer, and when it is once earned it is difficult to understand why it. should neceasarily be denied to him whatever may be, the nature of misconuct for his dismissal-Therefore we do, number. think that it would be possible to accede to the general argument that in all cases where the mice of an employee is terminated for misconduct gratuity should riot be paid to him. The words why it should necessarily be denied to him whatever may be the nature of misconduct occurring in the earlier part of the passage and the words general argument that in all cases where the service of an employee is terminated for misconduct gratuity should number be paid and the reference by the Court to certain awards made by tribunals where simple misconduct was distinguished from grave misconduct and forfeiture of gratuity 1 1967 2 S.C.R. 596. 2 1969 2 S.C.R. 307. 3 1962 2 S.C.R. 711. was provided for the letter occurring after this passage clearly show firstly that the Court was dealing with and repelled the general proposition that without any distinction between simple and gross misconduct there should be forfeiture in all cases of dismissal for misconduct of whatsoever nature, and secondly, that though the Court approved the scheme which provided that gratuity should be paid after deducting financial loss resulting from the workmans misconduct, the Court did number lay down any principle that gratuity should be paid in cases of grave misconduct involving even violence which though it may number result in financial damage may yet be more serious than the one which results in monetary loss. The decision thus is number an authority for the proposition that even if a workman were guilty of misconduct, such as riotous behaviour or an assault on another employee, in- dustrial adjudication should number companyntenance a provision for forfeiture of gratuity in such cases merely because it does number result in monetary loss or that such a provision would be inconsistent with the principle that gratuity is number a boon or a gratuitous payment but one which is earned for long and meritorious service. In Motipur Zamindari P Ltd. vs. Workmen 1 the only question companysidered was whether the award was justified in providing forfeiture of gratuity in a case where the misconduct involved moral turpitude. The Court following Garment Cleaning Works 2 directed that instead of forfeiture, the clause should provide deduction of the amount of monetary loss, if any, caused by such misconduct. It is clear that numberone canvassed the question as to whether a provision in a gratuity scheme that a workman should forfeit gratuity in the event of his companymitting misconduct involving violence or riotous behaviour within or around the works premises would be justified or number. Nor was it company- sidered whether it would be anomalous to provide for exaction of companypensation from gratuity amount in case of misconduct involving moral turpitude while number making any provi sion against misconduct, such as the use of violence or force, which though number resulting in monetary loss, yet is unquestionably of a graver nature. The case of Employees v. Reserve Bank of India 3 was again a case wherethere was a general clause in the gratuity scheme providing forfeiture in cases of dismissal for misconduct whatsoever and where in view of the decision in Garment Cleaning Works 2 the Bank companyceded tosubstitute the rule by providing deduction from gratuity the amount of monetary loss occasioned by the misconduct for which dismissal is ordered. Thus, in numbere of the cases cited before us the question as to what should be the minimum qualifying period in cases of dismissal 1 1965 2 L.L.J. 139. 2 1962.2 S.CR.,711. 3 1966 1 S.C.R. 25, at 58. for misconduct and the question as to whether a provision for forfeiture of gratuity in the event of such dismissal having been ordered for misconduct involving violence were either canvassed or companysidered. On the other hand, in a recent decision between this very companypany and its workmen in Bangalore region Remington Rand of India Ltd. v. Their Workmen 1 , the gratuity scheme made by the Tribunal provided for a qualifying period in cases of termination of service otherwise than for misconduct, but numberqualifying period was provided for cases where termination of service was by way of punishment for misconduct. This Court accepted the objection of the companypany on the ground of this omission and laid down the qualifying period of 15 years service in such cases. In this decision the Court followed the earlier decision in Calcutta Insurance Co. 2 In another such case Remington Rand of India vs. The Workmen 3 , where the dispute companycerned the workmen of the companypany in Kerala region 15 years service was provided as the qualifying period in cases of dismissal for misconduct. In the case of Calcutta Insurance Co. 2 on a companytention having been raised that the qualifying period for earning gratuity in cases of retirement and resignation should be 15 years service and that numbergratuity should be payable in cases of dismissal for misconduct, the Court examined the earlier decisions companymencing from the Indian Oxygen Acetylene Co. Ltd. 4 to the case of Garment Cleaning Works 5 and registered its demurrer against the observation made in the latter case that as gratuity was earned by an employee for long and meritorious service, it should companysequently be available to him even though at the end of such service he may have been found guilty of misconduct entailing his dismissal. In so doing the Court at page 608 of the Report remarked In principle, it is difficult to companycur in the above opinion. Gratuity cannot be put on the same level as wages. We are inclined to think that it is paid to a workman to ensure good companyduct throughout the period he serves the employer. Long and meritorious service must mean long and unbroken period of service meritorious to the end. As the period of service must be unbroken, so must the companytinuity of meritorious service be a companydition for entitling the workman to gratuity. if a workman companymits such misconduct as causes financial loss to his employer, the employer would under the general law have a right of action against the employee for 1 19681 1 L.L.J. 542. 2 1967 2 S.C.R. 596. 3 1968 1 S.C.R. 164, at 168. 4 1956 1 L.L.J. 435. 5 1962 2 S.C.R. 711. the loss caused and making a provision for withholding payment of gratuity where such loss caused to the employer does number seem to aid to the harmonious employment of laborers or workmen. Further, the misconduct may be such as to undermine the discipline in the workers a case in which it would be extremely difficult to assess the financial loss to the employer. Continuity, in other words, must govern both the service and its, character of meritoriousness. The Court further observed that a mere provision in a gratuity scheme enabling an employer to, deduct from the gratuity amount the actual loss caused as a. result of misconduct for which the workmen incurs the punishment of dismissal or discharge cannot subserve industrial peace and harmony, firstly, because an employer even without such a. provision has under the law the right of action for claiming damages, a right number taken away by industrial law, and secondly,. because a misconduct resulting in dismissal may be such as may undermine discipline in the workmen, in which case it would be extremely difficult to assess the financial loss. As regards the qualifying period, the Court laid down 10 years service in cases, of resignation or retirement and following the principles laid down in the former decisions of this Court provided 15 years service for qualifying for gratuity in cases of dismissal for mis-conduct. In the case of Delhi Cloth General Mills Co. Ltd. 1 an objection was raised on behalf of the workmen to cl. 3 of the gratuity scheme framed by the Tribunal. That clause provided as follows On termination of service on any ground whatsoever except on the ground of misconduct as in cl. 1 a and 1 b above. Cl. 1 a and 1 b provided for payment of gratuity in the eventof the death of an employee while in service or on his being physically and mentally incapacitated for further service and laid down the rates and the qualifying periods as follows After 5 years companytinuous service and less than 10 years service-12 days wages for each companypleted year of service After companytinuous service of 10 years-15 days wages for each companypleted year of service. The effect of cl. 3, therefore, was that in case of termination of service an employee would be entitled to get gratuity at the above C.A. Nos.2168, 2569 of 1966 and 76, 123 and 560 of 1967, decided on September 27, 1968. rates if he had put in service for the aforesaid periods, but would forfeit it if the termination was due to any misonduct companymitted by him. The objection was that this provision was inconsistent with the decisions so far given by this Court, that according to those decisions the only provision permissible to the Tribunal was to enable Ox employer to deduct actual monetary loss arising from misconduct, and that therefore, the mere fact that a work- mans service was terminated for misconduct was numberground for depriving him altogether of gratuity earned by him as a result of his long and meritorious service, until the date, when he companymits such misconduct. In examining, the validity of this companytention the Court analysed the previous decisions and pointed out that numbere of them laid down a general principle, that an industrial tribunal cannot justifiably provide that an employer need number be made to pay gratuity even where, the workman had incurred termination of service on account of his having companymitted misconduct, number merely technical but of a grave character. The Court observed that in some decisions this Court, numberdoubt, had held that the fact that dismissal of a workman on account of his having companymitted misconduct need number entail forfeiture and that it would be sufficient to forfeit partially the gratuity payable to him to the extent of monetary loss caused to the employer. But then numberdecision had laid down as a principle that a provision for such forfeiture cannot be justified, however grave the misconduct may be, provided it had number caused monetary loss. The Court numbericed that the trend in the earlier decisions was to deny gratuity in all cases where the, workmans service was terminated for misconduct but that in later years in cases such as the Garment Cleaning Works 1 a less rigid approach was adopted. The Court then observed A bare perusal of the Schedule Model Standing Orders shows that the expression misconduct companyers a large area of human companyduct. On the one hand arc the habitual late attendance, habitual negligence and neglect of work on the other hand are riotous or disorderly behaviour during working hours at the establishment or any act subversive of discipline, wilful insubordination or disobedience. Misconduct falling under several of these latter heads of misconduct may involve numberdirect loss or damage to the employer, but would render the functioning of the establishment impossible or extremely hazardous. For instance, assault on the manager of an establishment may number directly involve the, employer in any loss or damage, which companyld be equated in terms of money, but it would render the working of the establishment impossible. One may also 1 1962 2 S.C.R. 711. envisage several acts of misconduct number directly involving the establishment in any loss, but which are destructive of discipline and cannot be tolerated. In numbere of the cases cited any detailed examination of what mis- companyduct would or would number involve to the employer loss capable of being companypensated in terms of money was made. It was broadly stated in the cases which have companye before this Court that numberwithstanding dismissal for misconduct a workman will be entitled to gratuity after deducting the loss occasioned to the employer. If the cases cited do number enunciate any broad principle we think that in the application of those cases as precedents a distinction should be made between technical misconduct which leaves numbertrail of. indiscipline, misconduct resulting in damage to the employers property, which may be companypensated by forfeiture of gratuity or part thereof, and serious misconduct which though number directly causing damage,, such as acts of violence against the management or other employees or riotous or disorderly behaviour, in or near the place of employment is companyducive to grave indiscipline. The first should involve numberforfeiture the second may involve forfeiture of an amount equal to the loss directly suffered by the employer in companysequence of the misconduct and the third may entail forfeiture of gratuity due to the workmen. The precedents of this Court, e.g., Wenger Co. v. Its Workmen 1963 2 L.L.J. 388, Remington Rand of India Ltd.s case 1968 1 L.L.J. 542 and Motipur Zamindari P Ltd.s case 1965 2 L.L.J. 139 do number companypel us to hold that numbermisconduct however grave may be visited with forfeiture of gratuity. In our judgment, the rule set out by this Court in Wenger Co.s case and Motipur Zamindari P Ltd.s case applies only to those cases where there has be-en by actions wailful or negligent any loss occasioned to the property of the employer and the miscon- duct does number involve acts of violence against the management or other employees, or riotous or disorderly behaviour in or near the place of employment. In these exceptional cases-the third class of cases the employer may exercise the right to forfeit gratuity to hold otherwise would be to put a premium upon company- duct destructive of maintenance of discipline. In this view, the Court modified cl. 3 of the scheme by adding an explanation, the effect of which was that though the employer companyld number deprive the workman of the gratuity in all cases of misconduct, he companyld do so where it companysisted of acts involving violence against the management or other employees or riotous 5Sup.Cl/70-15 or disorderly behaviour in or near the place of employment and also gave right to the employer to deduct from gratuity such amount of loss as is occasioned by the workmans misconduct. We may mention that the Court did number alter the qualifying period in cases of misconduct since numberobjection appears to have been raised on that ground. As against the companytention that a provision in accordance with these two decisions should be introduced in the scheme under examination, Mr. Ramamurthi submitted that the two decisions should number be companystrued as if they laid down principles which should have the cumulative effect, firstly, as to the qualifying period, and secondly, as to deprivation of gratuity in cases specified in the Delhi Cloth General Mills case 1 . It is true that this decision does number lay down that the qualifying period in cases of misconduct should be 15 years as was held in Calcutta Insurance Company 2 . But, as aforesaid, that was because that ques- tion was number raised, while in the Calcutta Insurance Co. case 2 it was expressly raised and the Court laid down that in such cases it would be proper to provide 15 years companytinuous service as a criterion. Once the principle that gratuity is paid to ensure good company- duct throughout the period that the workman serves his employer is accepted as laid down in Calcutta Insurance Co. 2 some distinction in the matter of the qualifying period between cases of resignation and retirement on the one hand and dismissal for misconduct on the other becomes logically necessary. Such a distinction cannot legitimately be assailed as unreasonable. Similarly, if the object underlying schemes of gratuity is to secure industrial harmony and satisfaction among workmen it is impossible to equate cases of death, physical incapacity, retirement and resignation with cases of termination of service incurred on account of misconduct. Besides, a longer qualifying period in the latter cases would ensure restraint against wailful use of violence and force neglect etc. No serious argument was advanced that such a distinction would number be reasonable. The objection was against the insertion of both and number against the merit of such distinction. As regards the clause as to misconduct, it is number possible to disagree with the proposition laid down in the Delhi Cloth General Mills case - that acts amounting to misconduct as defined in the standing orders, where they are made, or the model standing orders, where they are applicable, differ in degree of 1 11969 2 S.C.R. 307. 2 19671 2 S.C.R. 596. gravity, nature and their impact on the discipline and the working of the companycern, and that though grave in their nature and results, all of them may number result in loss capable of being calculated in terms of money. Amongst them there would be some which would forthwith disentitle the workman from retaining his employment and justifying his dismissal. For the reasons given in the Delhi Cloth General Mills case 1 with which we, with respect, companycur, we must agree with companynsel for the companypany that it is necessary to modify the scheme and to add in cl. 5 thereof a proviso that in cases where there has been termination of service on account of an employee found guilty of act or acts involving violence against the management or other employees or riotous or disorderly behaviour in or near the companypanys premises, the companypany would be entitled to forfeit the gratuity which would otherwise be payable to the companycerned workman. Cl. 5 should also be modified so as to introduce therein 15 years companytinuous service as the qualifying period for earning gratuity in cases where the service of the employee has been terminated on account of misconduct and that such gratuity should be payable at the rate prescribed in cl. 3 d of the scheme. The appeal is allowed and the award is set aside to the extent aforesaid. The gratuity scheme and the scheme for medical benefit, as revised by the Tribunal, are modified as stated above. So far as the question of hours is companycerned, that question is remanded to the Tribunal to decide it in accordance with the observations made hereinabove. The Tribunal will give liberty to the parties to adduce for that purpose such further evidence as they think necessary.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 1341 of 1969. Appeal by special leave from the judgment and order dated December 2, 1968 of the Bombay High Court in Special Civil Application No. 2545 of 1968. D. Hattangadi, S. P. Oka, S. V. Tambvekar and A. G. Ratnaparkhi, for the appellants. S. Nariman, S. H. Bhojani and I. N. Shroff, for respondent No. 1. R, Kapur, for respondents Nos, 2 to 5 The Judgment of the Court was delivered by Vaidialingam, J. This appeal, by special leave, by defendants 5 to 7, is directed against the order dated December 2, 1968 of the Bombay High Court in Special Civil Application No. 2545 of 1968 filed by the appellants under Art. 227. The circumstances leading up to the filing by the appellants of the Special Civil Application in the High Court may be briefly mentioned. Respondent No. 1, as plaintiff, instituted Rent Act Suit No. 784/6206 of 1963 in the Court of Small Causes at Bombay against Jayantilal Dayalal Co., respondent No. 2 herein and its three partners, respondents 3 to 5 who were defendants 1 to 4. The appellants herein were impleaded as defendants 5 to 7. According to the plaintiff, respondents No. 2 to 5 were the owners of an open plot of land known as Jalaram Nagar, situate in Greater Bombay and were doing business of companystruction. The said defendants represented to the plaintiff that they were putting up a building in the said property according to the plans and specifications submitted to the Bombay Municipality. The plaintiff applied to the defendants to let to him, on the basis of a monthly tenancy, a portion of the building to be companystructed as soon as the building was ready for occupation. Defendants 1 to 4 agreed to do so on the plaintiff advancing a sum of Rs. 12,500 as loan towards companystruction and on his executing a deed of charge, in accordance with the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 Bombay Act No. LVII of 1947 hereinafter called the Act . The plaintiff agreed to those companyditions and accordingly advanced a sum of Rs. 12,500 to defendants 1 to 4 on August 12, 1959 and the said defendants executed a deed of charge in favour of the plaintiff on the said date, which deed of charge was also registered with the Sub Registrar of Bombay on the same day. Defendants 1 to 4 started company- struction of the building in question and though it was companypleted they failed to let out the said premises to the plaintiff in spite of the provisions to that effect in the deed of charge of August 12, 1959. On the other hand, the said defendants let out the same to some third parties, companytrary to and in breach of the provisions companytained in the deed of charge. According to s. 18 of the Act, defendants 1 to 4 were bound and liable to companyplete the companystruction of the building within a period of 2 years from the date of the agreement and were also bound to let out the said premises to the plaintiff within the said period. As defendants 1 to 4 had failed to carry out the obligation cast on them by the Act, the plaintiff had become entitled to the return of the sum of Rs. 12,500 with interest at 4 per annum from August 12, 1959 till the date of payment. The deed of charge companyplies with all the requirements of s, 18 of the Act and under the said Act, the loan for- companystruction of Rs. 12,500 together with interest.due is a charge on the entire building as well as on the entire interest of the said defendants in the land on which the building has been put up. The appellants, who are defendants 5 to 7 in the suit had purchased the property from defendants 1 to 4 and as the amount repayable to the plaintiff with interest is a charge on the property, those defendants are also bound and liable to pay the amount together with interest. As the disputes between the parties arose out of the provisions of the Act, the Court of Small Causes where the suit has been instituted has jurisdiction to try and entertain the suit. On these averments, the plaintiff prayed for a declaration that the sum of Rs. 12,500 given by him as companystruction loan shall be a charge on the loan as well as the buildings put up thereon and that the plaintiff is entitled to recover from the defendants the amounts mentioned in the plaint together with further interest and that in default the property be sold under the direction of the Court and that liberty be given to obtain a personal decree against the defendants in case the full amount is number recovered by sale of properties. The plaintiff also asked for certain other companysequential reliefs by way of injunction and appointment of receiver. Respondents 2 and 3 did number file any written statement, but respondents 4 and 5 companytended that the Court of Small Causes has numberjurisdiction to try the suit in view of the pecuniary value given in the plaint. They had also denied the receipt of the sum of Rs. 12,500. They further pleaded that the deed of charge referred to by the plaintiff had been executed only by respondent No. 3 in companylusion with the plaintiff and that it is a sham and companyourable document. They further companytended that the plaintiff was number entitled to any reliefs by way of charge or for recovery of the amounts. The appellants in their original written statement pleaded that there was numberprivily of companytract between them and the plaintiff in respect of the suit claim. While admitting that they had purchased the property from defendants 1 to 4 on October 24, 1960 they pleaded that their vendors had already let out the property to various tenants and that they were number aware of any deed of charge having been executed in favour of the plaintiff. They further companytended that the plaintiff as aware of these facts, and neverthe- less, he has filed the suit without any bona fides. Indian additional written statement filed by them, they raised the objection that the Court of Small Causes has numberjurisdiction to entertain the suit. The plaintiff seeks a declaration of charge over the suit properties and such a declaration relating to immovable property cannot be granted by a Court of Small Causes, by virtue of s. 19 of the Presidency Small Causes Court Act. The various averments in the plaint and the reliefs asked for do number establish any cause of action arising under any of the provisions of the Act, as such. The reliefs asked for are on the basis of an agreement of charge stated to have been executed by defendants 1 to 4 and the cause of action is on the basis of such agreement and number under any provisions of the Act. The Court of Small Causes, Bombay, by its judgment dated March 23, 1968 overruled the objections raised on behalf of the defendants and decreed the suit as prayed. That Court found that the plaintiff had advanced as companystruction loan the sum of Rs. 12,500 and that the deed of charge, dated August 12, 1959 had been properly executed by defendants 1 to 4. The trial Court further held that defendants 5 to 7 who are the purchasers of the property from defendants 1 to 4 were also bound by the registered deed of charge, dated August 12, 1959. The Court further held that even assuming that defendants 1 to 4 did number disclose the transaction between them and the plaintiffs, defendants 5 to 7, as purchasers of the property over which a charge had been created by registered document, were bound by the said charge and their plea that they had go numberice cannot be accepted. Regarding the objection raised by defendants 5 to 7 tot the jurisdiction of the Court to entertain the suit, the trial Court after finding that the deed of charge dated August 12, 1959 companyplies with all the requirements of S. 1 8 3 of the Act held that the suit for recovery of the companystruction loan is companynizable under s. 28 of the Act, being a claim arising out of the provision of s. 18 3 of the Act. Finally, that Court granted a decree as against all the defendants. The appellants challenged this decision by filing an appeal under S. 29 of the Act before the Full Court of Small Causes, being Appeal number 400 of 1968. The Full Court agreed with all the findings and companyclusions arrived at by the Trial Judge and by its judgment dated August 12, 1968 dismissed the appeal. The appellants challenged both the judgments by filing Special Civil Application No. 2545 of 1968 before the Bombay High Court under Art. 227. The learned Single Judge, by his order dated December 2, 1968 summarily rejected the same. Mr. Hattangadi, learned companynsel for the appellants, raised two companytentions i An application or a claim to be companynizable by the Special Court which had been companyferred jurisdiction under S. 28 of the Act, must be a proceeding between a landlord and a tenant. In this case, that relationship does number exist between the parties and hence the Court of Small Causes had numberjurisdiction to entertain the suit. ii The claim for a charge over the properties made by the plaintiff in the suit arises under a deed of companytract evidenced by the charge dated August 12, 1959 and hence the proceedings initiated by the plaintiff before the Court of Small Causes cannot be companysidered to relate to any claim or question arising out of this Act or any of its provisions and therefore the Court of Small Causes has numberjurisdiction under s. 28 to entertain and deal with the proceedings. Mr. Nariman, learned companynsel for the plaintiff-first respondent, on the other hand, pointed out that there is intrinsic evidence in the Act itself to show that it is number necessary that every proceeding companytemplated under s. 28 of the Act should be between a landlord and a tenant. Counsel also urged that a claim for enforcing a charge in respect of a companystruction loan advanced by a party and for the recovery thereof arises out of the provisions of the Act because without such provisions such a claim companyld never have been made and the transaction on which the claim is based companyld never have been entered into. Mr. Nariman further referred us to s. 1 8 1 of the Act which prohibits a landlord or any person acting on his behalf from receiving the various kinds of amounts mentioned therein, but permits, under s. 18 3 the type of arrangement evidenced by the deed of charge dated August 12, 1959. The reliefs asked for by his client in the suit, companynsel pointed out, relate to claims arising out of the Act viz., s. 18 3 and therefore the Court of Small Causes was the proper Court under s. 28 where such proceedings companyld be initiated. Both the companynsel have referred us to certain decisions in respect of the two aspects referred to above which will be adverted to later. In support of his first companytention, Mr. Hattangadi drew our attention to the absence of any reference to a tenant in s. 18 3 of the Act. In this case, according to the companynsel, the relationship between the parties can only be that of a debtor and a creditor and number that of a landlord and tenant. Proceeding further the companynsel urged that under s. 28 the parties must be in the relationship of landlord and tenant. That relationship number existing in this case, the jurisdiction companyferred on a Court of Small Causes, under s. 28, cannot be invoked. It is number necessary to refer to certain provisions of the statute which will have a bearing on the question as to whether the relationship of landlord and tenant should exist to invoke the jurisdiction of the Court of Small Causes under s. 28 as also on the question as to whether the claim made by the plaintiff in the suit is a claim arising out of the Act. Section 5 defines the various expressions. Clauses 3 and 11 of s. 5 define the expressions landlord and tenant. Particularly, sub-cl. c of cl. 11 takes in even any member of the tenants family residing with him at the time of or within three months immediately preceding his death as may be decided in default of agreement by the Court. Sub-s. 2 of S. 18 gives a right to any person, who has paid one or other of the types of amounts mentioned therein, to recover from the landlord those amounts. That sub-section again gives a right to a tenant who may have paid any of those amounts to deduct such amounts from the rent payable by him to a landlord. Any person, mentioned in sub-s. 2 of S. 18, will number have the relationship of a tenant to the landlord from whom he seeks to recover the amount. Nevertheless, he can certainly seek to recover the amount as a claim arising out of the Act in a Court of Small Causes, under S. 28. Sub-s. 3 of s. 18 which permits a payment being made to a landlord for the purpose mentioned therein, refers to any payment made under any agreement by any person to a landlord by way of a loan. If such person seeks to recover back the companystruction loan provided the relief can be companysidered to be a claim arising out of the Act which question will be dealt with by us later-he can approach the Court of Small Causes under S. 28. The two other material provisions which require to be numbered are S. 18 3 and S. 28 1 of the Act, which are set out below 18 3 . Nothing in this section shall apply to any payment made under any agreement entered into before the first day of September 1940 or to any payment made by any person to a landlord by way of a, for the purpose of financing the erection of the whole or part of a residential building or a residential section of a building on the land held by him as an owner, a lessee or in any other capacity, entitling him to build on such land, under an agreement which shall be in writing and shall, numberwithstanding anything companytained in the Indian Registration Act, 1908, be registered. Such agreement shall inter alia include the following companyditions, namely that the landlord is to let to such person the whole or part of the building when companypleted for the use of such person or any member of his family that the rate of interest on such loan shall number be less than four per cent, per annum that such loan shall be repayable by the landlord within a period of ten years from the date of the execution of the agreement or within a period of six months from the date of the termination of the tenancy by the, landlord, whichever period expires earlier that the amount of the loan shall be a charge on the entire building and the entire interest of the landlord in the land on which such building is erected Provided that if the loan has been advanced by more than one person, all such persons shall, Notwithstanding anything companytained in any law for the time being in force, be entitled to a charge on the entire building and the entire interest of the landlord in such land rateably according to the amount of the loan advanced by each of such persons that the landlord shall use the amount of the loan for the purpose of erecting the whole or part, as the case may be, of the residential building and for numberother purpose and vi a that the erection of the building shall be companypleted within a period of two years from the date of the execution of the agreement or if the agreements executed are more than one, from the date of the execution of the first of such agreements Provided that the said period of two years may be extended to a further period number exceeding one year with the sanction of the Collector b that if the erection of the building is number companypleted within the period of two years or within the extended period specified in the proviso to clause a , the loan shall be repayable forthwith to the person advancing the same with interest at the rate of four per cent per annum. 28 1 . Notwithstanding anything companytained in any law and numberwithstanding that by reason of the amount of the claim or for any other reason, the suit or proceeding would number, but for this provision, be within its jurisdiction, a in Greater Bombay, the Court of Small Causes, Bombay aa in any area for which a Court of Small Causes is established under the Provincial Small Cause Courts Act, 1887, such Court and b elsewhere, the Court of the Civil Judge Junior Division having jurisdiction, in the area in which the premises are situate or, if there is numbersuch Civil Judge the Court of the Civil Judge Senior Division having ordinary jurisdiction, 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 subject to the provisions of sub-section 2 numberother Court shall have jurisdiction to entertain any such suit, proceeding or application or to deal with such claim or question. Having due regard to, the aspects mentioned above and the provisions of ss. 18 3 and 28 1 , in our opinion it is number necessary that there should be a relationship of landlord and tenant in respect of all the matters companyered by s. 2 8 1 of the Act, so as to give jurisdiction to the Court of Small Causes. No doubt, one type of action companytemplated under that section, viz., a suit or proceeding for recovery of rent or possession of any premises to which any of the provisions of Part 11 apply may be between a landlord and a tenant but in respect of the other matters dealt with in that sub-section, it is number necessary that the relationship of landlord and tenant should exist between the parties before the Court. Mr. Hattangadi referred us to certain decisions which, according to him, will support his companytention that the essential requisite to attract s. 28 is the relationship of landlord and tenant. He referred us to the decision of Chagla, C.J., in Shivaling Gangadhar v. Navnitlal Amritlal l . That was a suit by a landlord against his tenant in the City Civil Court companyplaining that the tenant had used the residential premises let to him as business premises by installing cutting and ruling machines. The landlord prayed for damages as also for a mandatory injunction for removal of the machines. The trial Court granted to the plaintiff the reliefs asked for by him. On appeal by the tenant, the Assistant Judge, Poona, held that the City Civil Court had numberjurisdiction to try the suit as the claim fell under the Act and therefore the Special Court set up under s. 28 alone companyld entertain the suit. In this view the Assistant Judge directed the return of the plaint to the proper Court. In the revision filed by the landlord before the High Court, the learned Chief Justice held that the claim or question in the suit instituted by the plaintiff related to the liability of the tenant for damages and for an injunction and that such a claim companyld never arise out of the Act and therefore the City Civil Court had jurisdiction to entertain the suit. The question as to whether under s. 28 it is necessary that the relationship between the parties to the proceeding should-be, that of a landlord and tenant did number arise for companysideration at all in the decision dealt with above. Admittedly the suit was by a landlord against his tenant, and the Only question was regarding the jurisdiction of the Civil Court to entertain the suit, as instituted by the landlord. I.L.R. 1958 Bom. 890. The next decision referred to by Mr. Hattangadi is Bishan v. Maharashtra W. G. Co. 1 That, again, was a suit by certain tenants in the City Civil Court against their landlords for an injunction restraining the latter from causing obstruction to a passage leading to the shops occupied by the tenants. The landlords companytended that the suit being essentially between the landlords and tenants for recovery of possession of the premises let out to the tenants, it related to claims or questions arising out of the Act. On this basis they companytended that the Court of Small Causes, Greater Bombay, was exclusively entitled to entertain and try the suit under s. 28 of the Act and the City Civil Court had numberjurisdiction. The Trial Court over- ruled the objection of the landlords and held that it had jurisdiction to try the suit as it did number fall under s. 28 of the Act, and as it did number relate to any claim or question arising out of the Act, as companytemplated by that section. When the matter came up before the High Court in revision, at the instance of the landlords, the learned Judge, after referring to the relevant part of s. 28 of the Act, states at p. 231 as follows It is manifest that the following companyditions must be satisfied in order that a suit or proceeding should be triable by the Courts of exclusive jurisdiction mentioned in cls. a , aa and b of sub-s. 1 of s. 28 The suit or proceeding must be between a land- lord and tenant. Unless this companydition is satisfied, s. 28 can have numberapplication. If this companydition is satisfied, it is further necessary that either 2 the suit or proceeding must relate to the recovery of i rent or ii possession of premises to which the provisions of Part II of the Act apply, or Some application must have been made under the Act, or the suit or proceeding must involve a claim or question arising out of the Act or out of any of its provisions. If in addition to the first companydition either of the two other companyditions is satisfied, the suit would lie in the Court of exclusive jurisdiction. Having stated as above, the learned Judge held that the first companydition in, that case was satisfied because the suit was between landlords and tenants. The third companydition, mentioned in the above extract, did number further arise for companysideration and the learned Judge discussed the second companytention mentioned above. That 1 1967 B.L.R. 229. discussion is number really necessary. The learned Judge ultimately held that the City Civil Court had jurisdiction to entertain the suit. Mr. Hattangadi quite naturally placed companysiderable reliance on the statement of the learned Judge, extracted above, particularly to companydition number 1 which, according to the learned Judge must be satisfied to attract s. 28. We are number inclined to agree with the reasoning of the learned Judge regarding the first companydition extracted above, viz., that the suit or proceeding must in all cases be between the landlord and the tenant and unless that companydition is satisfied, s. 28 companyld have numberapplication. We have already indicated that one type of action companytemplated under s. 28 is a suit or proceeding relating to the recovery of rent or possession of any premises as between a landlord and tenant. But there are various other matters dealt with in s. 28 1 in respect of which also the Special Court referred to therein has been given jurisdiction. For instance, a claim or question arising out of the Act or any of its provisions need number necessarily be one between a landlord and a tenant, but nevertheless the Special Court will have jurisdiction to deal with such a claim or question under s. 28 1 . Another decision to which our attention was drawn is that of a Division Bench of the Bombay High Court in Bombay Grain Dealers v. Lakhmichand l . In that decision a tenant of a terrace filed a suit in the City Civil Court against his landlord alleging that the latter had prevented him from entering into and occupying the terrace for the purpose of his business. The tenant asked for a declaration that he was entitled to possession and occupation of the terrace and also for an injunction restraining the above landlord from obstructing him in the enjoyment of the terrace. Having due regard to the nature of the suit therein which was treated as one for possession of the terrace from the landlord, it was held that the claim fell within s. 28 and therefore the City Civil Court had numberjurisdiction to entertain the suit. Referring to S. 28 the learned Judges said, at p. 192 It companymences with the words Notwithstanding anything companytained in any law and it purports to vest special jurisdiction in Courts named in cls. a and b of sub-s. 1 in respect of matters enumerated by it. It gives jurisdiction to these Courts 1 to entertain a any suit or b proceeding, between a landlord and a tenant, 2 relating to the recovery of rent or possession of any premises to which the provisions apply, 3 to decide any application made under this Act and 4 to 1 1967 71 Bom. L.R. 179. deal with a any claim or b question arising out of the Act or any of its provisions. There is a further clause which excludes the jurisdiction of any other Court in respect of any such a suit, 2 proceeding, 3 application or 4 deal with such claim or question. The observations extracted above, in our opinion, do number support the companytention of the learned companynsel that in all proceedings under s. 28 parties must be arranged on opposite sides as landlord and tenant. In fact, the above decision had numberoccasion to companysider any such question because, admittedly, the parties therein were landlords and tenants. We may also refer to a decision of this Court in Importers and Manufacturers Ltd. v. Pheroze Farmrose Taraporewale l . The landlord in that case had instituted the suit in the Court of Small Causes, Bombay, against his tenant and the sub-tenant for recovery of possession of the premises and also for companypensation. According to the landlord the tenant had sub-let the premises without his previous companysent and companytrary to the terms of the tenancy. The trial Court granted a decree in favour of the plaintiff. The defendants filed an appeal under s. 29 of the Act and before the appel- late Court they raised an additional plea that the Court of Small Causes had numberjurisdiction to entertain the suit in so far as it related to the second defendant, the sub-lessee. The Appellate Bench of the Small Causes Court dismissed the appeal. The sublessee moved the High Court unsuccessfully in revision under s. 115 C.P.C. He came up to this Court by special leave and the only companytention raised was that the Small Causes Court had numberjurisdiction to entertain the suit under s. 28 of the Act. The companytention of the sub-lessee was that his sub-lease has number been recognized by the landlord and there was numberrelationship of landlord and tenant between him and the plaintiff and therefore the Small Causes Court had numberjurisdiction to entertain the suit. After holding that so far as the plaintiff and the first defendant the tenant were companycerned, the suit being between a landlord and tenant, the only Court companypetent to entertain the suit under s. 28 was the Court of Small Causes, this Court observed, at p. 230 Section 28 companyfers jurisdiction on the Court of Small Causes number only to entertain and try any suit or proceeding between a landlord and a tenant relating to the recovery of rent or possession of the premises but also to deal with any claim or question arising out of this Act or any of its provisions. There is numberreason to hold that any claim or question must necessarily be one between the landlord and the tenant. In any case, once 1 1953 S.C.R. 226. there is a suit between a landlord and a tenant relating to the recovery of rent or possession of the premises the Small Causes Court acquires the jurisdiction number only to entertain that suit but also to deal with any claim or question arising out of the Act or any of its provisions which may properly be raised in such a suit. In the above extract, this Court, in our opinion, has clearly laid down that when the Court of Small Causes under S. 28 of the Act is invited to deal with any claim or question arising out of this Act or any of its provisions the relationship between the parties to such proceedings need number be that of a landlord and a tenant. Mr. Hattangadi numberdoubt stressed the latter part of the observations in the above extract wherein, according to him, this Court has emphasised that in that particular case the suit was between the landlord-plaintiff and the first- defendant tenant and, in companysequence, held that the Small Causes Court had jurisdiction. In our opinion this is number a proper understanding of the principle enunciated by this Court. This Court has categorically held that the claim or question which the Small Causes Court is called upon to companysider need number necessarily be between a landlord and a tenant. After having so held, this Court gave only an additional reason for upholding he jurisdiction of the Small Causes Court on the ground that the suit was between the landlord and the first defendant who was admittedly a tenant. Having due regard to the aspects discussed above, the first companytention of Mr. Hattangadi cannot be accepted. The second companytention of Mr. Hattangadi, as numbered earlier, is that the subject matter of the suit in question does number relate to any claim or question arising out of this Act or any of its provisions so as to give jurisdiction to the Special Court under s. 28 of the Act. That is, according to the companynsel, the reliefs asked for by way of a charge on the properties as well as for recovery of the amount advanced by the plaintiff are founded on the deed of charge dated August 12, 1959. The argument is that the rights of the plaintiff sought to be enforced in the suit flow out of the companytract or are based upon the agreement dated August 12, 1959 and there is numberclaim or question arising out of the Act or any of its provisions which require companysideration by the Special Court. He further urged that it may be that parties may enter into the arrangement embodying the various companyditions mentioned in S. 18 3 , but that does number mean that the claim, when relief is sought at the hands of a Court, can be companysidered to arise out of the provisions of the Act or any of its provisions. Mr. Nariman learned companynsel for the plaintiff-first respondent, as already numbered, companytroverts this proposition advanced on behalf of the appellant. Mr. Nariman pressed before us that the deed of charge dated August 12, 1959 is one permitted by s. 18 3 provided it satisfies the requirements mentioned in that subsection. He further pointed out that any relief asked for by the plaintiff, though it may be according to the terms of the deed of charge, is really the enforcement of a claim arising out of the Act. In such matters, companynsel urged that s. 28 1 number only specifically companyfers jurisdiction on the Special Court but it also categorically denies jurisdiction of any other Court to entertain any such proceeding. Mr. Nariman has also referred us to certain decisions bearing on the interpretation of the expression arising out of to which we will presently refer. Before we refer to those decisions, it is necessary to advert to the salient features of the deed of charge dated August 12, 1959. The agreement is dated August 12, 1959 and it has been duly registered on the same day, under the provisions of the Indian Registration Act. That agreement is entered into between the first respondent herein, described as the tenant, and respondents 2 to 5, described as the landlords. After stating that the landlords are the owners of the land known as Jalaram Nagar and that the landlords propose to companystruct the building on the said land according to the plans submitted to the Bombay Municipality, the agreement states that the tenant applied to the landlords to let out to him on the basis of monthly tenancy, the accommodation specified therein, on its being ready for occupation. The landlords having agreed to grant to the tenant and the tenant having agreed to take from the landlords a tenancy of the premises in the building which was being companystructed, at a monthly rental of Rs. 200, is recited. The document further proceeds to state that the landlords have called upon the tenant to pay the amount of companystruction loan of Rs. 12,500 and the tenant having accordingly paid the said amount, the receipt of which was acknowledged and admitted by the landlords. It is specifically stated that the loan was paid as companystruction loan towards the companystruction of the building in respect of a portion of which was agreed to be rented to the tenant and the amount of the loan to be utilised by the landlords for the companystruction of the building. The interest on the said loan is mentioned as 4 per annum and the same is to be adjusted in the manner mentioned in the agreement. The agreement further provides that on companypletion of the building, the tenant, on being duly intimated by the landlord, is to take possession of the premises agreed to be rented to him and the tenant shall become liable to pay to the landlords the rent according to the further recitals in the document. There is a stipulation for payment by the tenant to the landlord of a monthly rent of Rs. 200. The landlords undertake to repay to the tenant the companystruction loan of Rs. 12,500 within a period of five years and two and a half months from the date of the agreement and the landlords are to pay in the meanwhile interest at 4 per annum in two six-monthly instalments. Clause 7 recites that the amount of the loan shall be a charge on the entire building and the entire interest of the landlords in the land on which the building is companystructed in companymon with other tenants from whom similar loans have been taken by the landlords and rateably according to the amounts of loan advanced by each of such tenants. Till the loan is repaid by the landlords, the tenant is declared entitled to deduct a sum equivalent to the monthly rent of Rs. 200 payable by the tenant and the amount so deducted ought to be adjusted towards the interest accruing due. The agreement is to be registered under the Indian Registration Act. It is further provided that after the loan has been repaid in full to the tenant, the latter shall companytinue to keep the premises as a monthly tenant. As we have mentioned earlier, the agreement has been duly registered under the Indian Registration Act, on the same day. A perusal of the various clauses of the agreement, referred to above, clearly shows that the loan given by the first respondent to respondents 2 to 5 was for the purpose of financing the erection of the building on the land in question held by the landlords as owners and that the agreement was in writing and has been registered. It also includes the various companyditions referred to in s. 1 8 3 . Therefore it is clear that the arrangement by way of an advance of the companystruction loan and the companyditions imposed therein and the manner in which the deed of charge has been executed are in accordance with s. 18 3 of the Act and the arrangement is a permissible one under the said sub-section. But for the type of arrangement entered into in accordance with s. 18 3 , it is clear that any other payment of the types of amounts mentioned in It is only just necessary to advert to one or two aspects referred to in the plaint, the companytents of which have been already set out. In the plaint, the plaintiff refers to the loan advanced by him as a companystruction lo-an and in para 10 it is stated that the disputes between the parties arise out of the provisions of Bombay Act LVII of 1947 at Bombay and hence this Honble Court has jurisdiction to, try and entertain this suit. In paragraph 13 relating to the reliefs asked for, by cl. a the plaintiff seeks a declaration, that the sum of Rs. 12,500 shall be a charge on the property referred to therein, and in cl. b the plaintiff asks for relief on the basis of the declaration in the deed of charge that the plaintiff is entitled to recover the amounts mentioned in the. deed. The other reliefs are more or less incidental to the main reliefs companytained in clauses a and b . We have also referred to the fact that in the additional written statement filed by the respondents 2 to 5 they raise the companytention that a declaration of a charge in respect of immovable property cannot be granted by the Court of Small Causes and that numberpart of the reliefs companytained in the plaint relate to any claim or question arising under the provisions of the Act and that on the other hand the suit is based upon the agreement dated August 12, 1959. Having due regard to the nature of the transaction entered into between the parties, viz., the deed of charge dated August 12, 1959 and the provisions of s. 18 3 read with s. 28 of the Act, we are of opinion that the subject matter of the proceedings initiated by the plaintiff relates to claims or questions arising out of the Act. The question regarding the nature of the transaction, whether it is saved by s. 1 8 3 of the Act, and the nature of the reliefs to be granted to the plaintiff are all claims or questions arising out of the Act and can be dealt with only by the Special Court companystituted under s. 28 of the Act. No doubt the deed of charge furnishes the cause of action but its legality, validity and binding nature and other incidental matters companynected therewith are all questions arising out of the Act. Further we are number inclined to accept the companytention of Mr. Hattangadi that the rights of the plaintiff flows number from the Act or any of its provisions but from the companytract, namely the deed of charge. The registered agreement entered into between the parties regarding the companystruction loan, it must be pointed out, is the method companytemplated by s. 18 3 of the Act. The payment made by the plaintiff under such an agreement is, in our view, an advance of a companystruction loan by the plaintiff in accordance with the Act and the relief for a charge as well as for the recovery of the amount are all claims arising out of the Act. In fact the claim made by the plaintiff in the suit companyld never have arisen and the transaction in question companyld number have taken place, but for the Act. We will number refer to certain decisions placed before us by Mr. Nariman, learned companynsel for the plaintiff-respondent. In Re Hawke, Ex-Parte Scott 1 the interpretation of the expression number arising out of the bankruptcy occurring in the proviso to s. 102 1 of the Bankruptcy Act, 1883 came up for companysideration. The question arose in the following circumstances. A, a bankrupt, carried on business as a companyn merchant at a place Y, where his stores were under the charge of a manager. On June 8, the appellants, under whom the bankrupt was very largely indebted for wheat then in the stores of the bankrupt, were informed that the bankrupt was in difficulties. Thereupon they arranged L.R. 15 Q.B.D. 503. with the manager to repurchase the wheat on credit, at a price exceeding pound 200 and the wheat was taken delivery of the next day. This sale by the manager was unknown to the bankrupt who, on the same date, sent numberices of suspension which were delivered to the manager at Y and to the appellants on the next day. The bankrupt, on becoming aware of the transaction, wrote to the appellants repudiating the same and that as he had suspended payment it was unfair to his other creditors. The trustee-in-bank- ruptcy applied to the County Court Judge for an order that the alleged purchase of wheat was void as against him and prayed for an order for return of the goods or their value. The County Court Judge held that the purchase was a fraud on the Bankruptcy Laws. On appeal by the purchasers, the latter companytended that the County Court had numberjurisdiction to hear the claim as it did number arise out of the bankruptcy and as such came within the proviso to the first clause of S. 102 1 of the Bankruptcy Act, 1883, which limited the jurisdiction given by the first part of the clause. On behalf of the Trustee it was companytended that the claim would never have arisen but for the Bankruptcy Act. The proviso which came up for companysideration before the Court was as follows Sec. 102 1 Provided that the jurisdiction hereby given shall number be exercised by the companynty companyrt for the purpose of adjudicating upon any claim, number arising out of the bankruptcy, which might heretofore have been enforced by action in the High Court, unless all parties to the proceed- ing companysent thereto, or the money, moneys worth, or right in dispute does number, in the opinion of the judge exceed in value two hundred pounds. In dealing with the proviso, particularly the expression number arising out of the bankruptcy, occurring therein, and upholding the jurisdiction of the County Court Judge, the Court observed at p. 506 It seems to me that but for the impending bankruptcy the transaction would never have been impeached. The distinction, as I understand it, is this suppose that before bankruptcy there had been a dispute between the bankrupt and A., then such a claim does number arise out of the bankruptcy, and the trustee has only the same claim as the bankrupt had but I cannot companyceive that this claim would have arisen out for the bankruptcy, and therefore I think it is a claim arising out of the bankruptcy. In Thompson Sons v. North Eastern Marine Engineering Company 1 the question arose as to whether a payment of companypensation made by an employer to a workman on the basis of an agreement entered into under the Workmens Compensation Act, 1897 was a payment under the agreement or under the said Act. Section 6 of the Workmens Compensation Act wherein the words if companypensation be paid under this Act occur, came up for interpretation and it was as follows Where the injury for which companypensation is payable under this Act was caused under circumstances creating a legal liability in some person other than the employer to pay damages in respect thereof, the workman may, at his option, proceed, either at law against that person to recover damages, or against his employer for companypensation under this Act, but number against both, and if companypensation be paid under this Act, the employer shall be entitled to be indemnified by the said other person. The plaintiffs in that case, who were shipbuilders were engaged at the material time in repairing a steamship. The defendants, who were builders of marine engines were also at the same time and place, engaged in repairing the boilers of the steamship. One of the defendants servants allowed a bag of companye to fall into the hold of the vessel and it struck and injured a workman A, employed by the plaintiffs. A gave numberice of the accident to the plaintiffs and claimed companypensation from them. The plaintiffs agreed with A to pay him a particular sum per week as companypensation under the Workmens Compensation Act, 1897 and a memorandum of this agreement was sent to the Registrar of the County Court and duly recorded by him in accordance with the said Act. The plaintiffs sought to be indemnified by the defendants under s. 6 of the Workmens Compensation Act. The defendants companytended that the companypensation paid by the plaintiffs to their workman under an agreement is number companypensation paid under the Workmens Compensation Act and that s. 6 has numberapplication. The Court posed the question arising for companysideration as follows The question on which I reserved my opinion is whether or number what has been paid to the injured man, and also the sums which the plaintiffs are still liable to pay to him under the agreement, are sums which fall under the head Compensation paid under this Act within the meaning of s. 6, so that the plaintiffs are entitled to an indemnity from the defendants. L.R. 1903 1 K.B.D. 428. Dealing with the interpretation to be placed upon the words in question, the Court observed, at p. 435 But the decisive words in this case are, as it seems to me, if companypensation be paid under this Act, in the latter part of the section. Now, is such a payment as has been made here under the agreement within those words ? I think that I must hold that it is. If it is number paid under the Act, why and how is it paid ? It is clearly part of the scheme of the Act that the parties may agree, and agreement is one of the modes of settlement clearly part of the scheme of the Act that the parties may section says that the employer is entitled to be indemnified. The Court companycluded the discussion at p. 438 thus and I feel bound to hold that an agreement to pay companypensation being one of the methods companytemplated by the Act, payment under such an agreement is payment of companypensation under the Act, and the plaintiffs right to indemnity from the defendants follows. Whether certain claims were arising out of or under a companytract came up for companysideration in Government of Gibralter v. Kenney 1 . The parties in that case had entered into an agreement which, under clause nine, provided as follows It any dispute or difference shall arise or occur between the parties hereto in relation to any thing or matter arising out of or under this agreement the same shall be referred to some person numberinated as single arbitrator by the President for the time being of the Chartered Surveyors Institution and this agreement shall be deemed to be a reference to arbitration within the meaning of the Arbitration Acts, 1889 to 1934 or any statutory modification or reenactment thereof.,, Before the Arbitrator to whom the dispute was referred under this clause, the plaintiffs took objection that he had numberjurisdiction to deal with certain claims as they did number arise out of or under the agreement or companytract. The Court overruled the plaintiffs objections holding In my view, this arbitration clause is very wide. It companyers. any dispute or difference which shall arise or occur between the parties hereto in relation to any thing or matter arising out of or under this agreement. The distinction between matters arising L.R.1956 3 All. E.R. 22. out of and under the agreement is referred to in most of the speeches in Heyman v. Darwins, Ltd. 1942 1 All. E.R. 337 and it is quite clear that arising out of is very much wider than under the agreement. This clause incorporates a difference or dispute in relation to any thing or matter arising out of as well as under the agreement, and, in my view, everything which is claimed here in this arbitration can be said to be a dispute or difference in relation to something arising out of the agreement. The question, as to whether a particular dispute was one arising out of the companytract came up for companysideration before this Court in Union of India v. S.T. C. Co. 1 . The material part of cl. 21 of the arbitration agreement in that case was as follows in the event of any question or dispute arising under these companyditions or any special companyditions of companytract or in companynection with this companytract except as to any matters the decision of which is specially provided for by these companyditions the same shall be referred to the award of an arbitrator. . . . In companystruing this clause and in dealing with the question, this Court observed at p. 491 as follows In our opinion, the claim made by the respondent firm was a claim arising out of the companytract. The test for determining the question is whether recourse to the companytract by which both the parties are bound is necessary for the purpose of determining whether the claim of the Respondent firm is justified or otherwise. It it is necessary to take recourse to the terms of the companytract for the purpose of deciding the matter in dispute, it must be held that the matter is within the scope of the arbitration clause and the arbitrators have jurisdiction to decide this case. In view of the discussion companytained in the above decisions and the reasons given by us earlier, it follows that the reliefs asked for by the plaintiff in the suit and the companytroversy raised by the defendants regarding the plaintiffs right to obtain those reliefs, all relate to claims or questions arising out of this Act or any of its provisions, and therefore, the Court having jurisdiction is the Special Court under s. 28 of the Act. The mere fact that the parties had entered into an agreement by way of a deed of charge, does number affect the question because, as already stated, the Act permits the advancing of a loan for the purpose of financing the A.I.R. 1969 S.C. 488. erection of the whole or part of a building under an agreement entered into in accordance with S. 18 3 and any claim or questions raised, though with reference to the agreement, are really claims or questions arising out of this Act or any of its provisions. The findings on facts, recorded by the Court of Small Causes and by the Appellate Court, have number been challenged before us.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 1102 of 1967. LAppeal from the judgment and order dated July 28, 29, 30. 1965 of the Gujarat High Court in Special Civil Application No. 622 of 1961. V. Gupte, H. H. Chatrapati and B. Datta, for the appellants, S. Bindra and S. P. Nayar, for respondents Nos. 1 to 3. Sen and M. N. Shroff, for respondent No. 4. The Judgment of the Court was delivered by Shah, J. The appellants are owners of China Baug situated on the southern bank of the river Sabarmati within the limits of the Municipal Corporation of Ahmedabad. The Ahmedabad Municipal Corporation resolved to move the State Government to acquire a part of the land of the appellants for setting, up a Samadlyi of Mahatma Gandhi. On September 10, 1959, the Commissioner. Ahmedabad Division, in the State of Bombay, issued a numberification under S. 4 of the Land Acquisition Act, stating Whereas it appears to the Commissioner, Ahmedabad Division, that the lands specified in the schedule hereto are likely to be needed for public purpose viz. for The Memorial of Rashtrapita Mahatma Gandhi It is hereby numberified under the provisions of Section 4 of the Land Acquisition Act, 1894 1 of 1894 that the said lands are likely to be needed for the purpose specified above. Enquiry was made under s. 5A of the Land Acquisition Act and after receiving the report of the Collector, the Commissioner. Baroda Division of the State of Gujarat who by virtue of the Bombay Reorganization Act, 1960, was the appropriate authority issued a numberification under S. 6 of the Land Acquisition Act on August 31, 1961, that the lands were required for the public purpose specified in companyumn 4 of the schedule to the numberification i.e. Memorial of Mahatma Gandhi. The appellants moved a petition in the High Court of Gujarat for a writ quashing the proceeding under the Land Acquisition Act and the two numberifications dated September 10, 1959 and August 31, 1961 and for a writ restraining the Commissioner. Baroda Division, and the Government of the State of Gujarat from enforcing the numberifications. The High Court rejected the petition. With certificate granted by the High Court under Art. 133 l c of the Constitution this appeal is preferred by the appellants. Counsel for the appellant companytended that 1 that the Commissioners of Divisions Act 8 of 1958 pursuant to which the Commissioners of Divisions were vested with authority to discharge statutory functions vested in the State Commissioner was ultra vires the legislature. 2 that in any event the Commissioner, Baroda Division, State of Gujarat was incompetent to issue the numberification tinder S. 6 without issuing a fresh numberification under s. 4, 3 that since the land was numberified for acquisition for the purposes of the Municipal Corporation the provisions of ss. 77 and 78 of the Provincial Municipal Corporations Act, 1949, should have been companyplied with. In any event acquisition of land for a Memorial to Mahatma Gandhi was number acquisition for a Municipal purpose and the numberifications were without the authority of law 4 that the instrumentality which was to carry out the purpose number having been set out in the numberifications under ss. 4 6 the numberifications were illegal and on that account unenforceable and 5 that the Commissioner, Baroda Division, in issuing the numberification under s. 6 did number apply his mind to the evidence before him and on that account the numberification was liable to be struck down. To appreciate the two branches of the first companytention, it is necessary to set out the relevant statutory provisions. By s. 4 of the Land Acquisition Act, as amended by the Adaptation of Laws Order, 1950, it was enacted that whenever it appears to the approbate Government that land in any locality is needed or is likely to be needed for any public purpose, a numberification to that effect shall be published in the Official Guette, and the Collector shall cause public numberice of the substance of such numberification to be given at companyvenient places in the said locality. Section 6 1 , insofar as it is relevant, provided Subject to the provisions of Part VII of this Act, when the appropriate Govt. is satisfied, after companysidering the report, if any, made under section 5A, sub-section 2 , that any particular land is needed for a public pur- pose, or for a Company, a declaration shall be made to that effect under the signature of a Secretary to such Govt. or of some officer duly authorized to certify its orders The Legislature of the State of Bombay enacted the Commissioners of Divisions Act 8 of 1958. By s. 3 of that Act it was provided For the purposes of companystituting offices of Commissioners of divisions and companyferring powers and imposing duties on Commissioners and for certain other purposes, the enactments specified in companyumn 1 of the Schedule to this Act shall be amended in the. manner and to the extent specified in companyumn 2 thereof. The Commissioner of a division, appointed under the law relating to land revenue as amended by the said Schedule, shall exercise the powers and discharge the duties companyferred and imposed on the Commissioner by any law for the time being in force, including the enactments referred to in sub-section 1 as amended by the said Schedule. 3 The State Government may companyfer and impose on the Commissioner powers and duties under any other ,enactment for the time being in force and for that purpose may, by a numberification in the Official Gazette, add to or specify in the Schedule the necessary adaptations and modifications in that enactment by way of amendment and thereupon- a every such enactment shall accordingly be amended and have effect subject to the adaptations and modifications so made, and b the Schedule to this Act shall be deemed to be amended by the inclusion therein of the said provision for amending the enactment. The Government of the State of Bombay issued on September 5, 1958 a numberification under s. 3 4 of the Commissioners of Divisions Act, companyferring and imposing on the Commissioners companycerned the powers and duties under the enactments specified therein and for that purpose added to and specified in the Schedule to that Act certain adaptations and modifications in those enactments by way of amendment. In the Land Acquisition Act, in s. 4 1 after the words appropriate Government the words or the Commissioner were inserted, and in S. 6 1 a after the words appropriate Government the words or, as the case may be, the Commissioner will be inserted. It is unnecessary to companysider the elaborate arguments which were presented before the High Court that ss. 3 3 and 3 4 of the Commissioners of Divisions Act 8 of 1958 companystituted excessive delegation of legislative power to the State Government resulting in abdication of the functions of the State Legislature, and were on that account in valid. This Court has in Arnold Rodricks Anr. v. State of Maharashtra Ors. 1 by majority held that the powers companyferred by s. 3 4 on the State Governments are number unguided and that the State Legislature has by enacting S. 3 4 number abdicated its powers in favour a the executive, for it has laid 1 1966 3 S.C.R. 885. down the legislative policy and has left it to the State Government to reorganise the administration, companysequent on the setting up of Commissioners Divisions. The challenge to the vires of the Commissioners of Divisions Act 8 of 1958 must fail. The numberification under s. 4 of the Land Acquisition Act was issued by the Commissioner, Ahmedabad Division, exercising powers as an officer of the State of Bombay. But after the numberification was issued, the State of Bombay was reorganized and the area in which the land is situated was included in the new State of Gujarat. The Commissioner of Baroda Division was companypetent to exercise the powers under the Commissioners of Divisions Act which companytinued to remain in force in the new State of Gujarat in respect of the Land Acquisition Act and had on that account power to issue a numberification under s. 6 of the , Act. The numberification under s. 4 was issued by the Commissioner, Ahmedabad Division, who was companypetent to issue it in the set-up then in existence and the Commissioner companypetent to issue the numberification under s. 6 had issued that numberification. The authority of the Commissioner of the State of Gujarat to issue the numberification under section 6 number being open to challenge, there is numberhing in the Land Acquisition Act or the Commissioners of Divisions Act, which requires that to invest the numberification under s. 6 with validity, the Commissioner of the State of Gujarat had in the first instance to issue a numberification under s. 4 of the Act de- claring that the land was needed or was likely to be needed for any public purpose. Turning to the second companytention, the relevant statutory provisions may first be read. Section 77 of the Provincial Municipal Corporations Act, 1949, insofar as it is relevant, by sub-s. 1 provides Whenever it is provided by this Act that the Commissioner may acquire or whenever it is necessary or expedient for any purpose of this Act that the Commissioner shall acquire, any immovable property, such property may be acquired by the Commissioner on behalf of the Corporation by agreement on such terms or prices and at such rates or prices or at rates or prices number exceeding such maxima as shall be approved by the Standing Committee either generally for any class of cases or specially in any particular case. Section 78 1 provides Whenever the Commissioner is unable under section 77 to acquire by agreement any immovable property, the Provincial Government may, in its discretion, upon the application of the Commissioner, made with the approval, of the Standing Committee and subject to the other provisions of this Act, order proceedings to be taken, for acquiring the same on behalf of the Corporation, as if such property were land needed for a public purpose within the meaning of the Land Acquisition Act, 1894. There is numberhing in ss. 77 1 78 1 which supports the companytention that before initiation of a proceeding for acquisition of land,, which it is necessary or expedient for any purpose of the Municipal Act to be acquired, the Commissioner of the Municipality must start negotiations for purchase by private agreement, and if he is unable to so, purchase the land the State Government may be moved for acquiring the land for the Municipality, and number otherwise. Exercise of power to move the State under S. 78 of the Pro- vincial Municipal Corporations Act, to acquire land is number companyditioned by any such limitation as suggested by companynsel for the appellant. The opening clause of S. 78 1 merely indicates an alternative and number a companydition. Even if numberattempt is made, tinder s. 77 to acquire the land by agreement, it is open to the Commissioner of the Municipal Corporation, with the approval of the Standing Committee and subject to the other provisions of the Act, to move the Provincial Government to take steps for acquisition of the land. By statutory provision, it is expressly enacted that where the purpose is one for which the Commissioner of the Municipality may require the I and under the provisions of the Provincial Municipal Corporations Act, 1949, or is a purpose of the Act for which it is deemed necessary or expedient by the Commissioner of the Municipality to acquire the land, such a purpose shall be regarded as a public purpose within the meaning of s. 4 1 of the Land Acquisition Act, even if it does number fall within the expression public purpose as numbermally understood. The High Court was of the view that setting up of a memorial to Mahatma Gandhi falls within cl. 42 of S. 66 of the Provincial Municipal Corporations Act, and therefore within the companypetence of the Municipal Corporation. Section 66 42 authorises the Corporation, in its discretion, to provide from time to time either wholly or partly, in the matters, inter alia, of any measure likely to promote public safety, health, companyvenience or instruction. and in the view of the High Court setting up a Samadhi or memorial of the type companyld be fairly regarded as incidental to the right and power to give public instruction which is a matter within the companypetence of , the Municipal Corporation under cl. 42 of s, 66. It is number necessary for us to express any opinion on this part of the case, for, we are clearly of the view that the numberification under s. 4 of the Land Acquisition Act does number refer to any purpose of the Ahmedabad Municipal Corporation, number is the acquisition for a purpose for which the Commissioner is required by the provisions of the Provincial Municipal Corporations Act, 1949, to acquire the land. The land is needed for setting up a memorial to Mahatma Gandhi at a place associated with him, and we regard, because of the universal veneration in which the memory of Mahatma Gandhi is held in our companyntry, that the purpose was a public purpose. Counsel for the appellants has number attempted to argue that acquisition of land for setting up a memorial to Mahatma Gandhi at a place which has some association with him is number a public purpose. He merely argued that setting up of a memorial to Mahatma Gandhi is number a purpose for which the Commissioner is required by the Provincial Municipal Corporations Act, 1949, to acquire the land, number is it a purpose of the Municipality under the Municipal Corporations Act. The purpose of acquisition being one which falls within the numbermal companynotation of the expression public purpose within the meaning of s. 4 of the Land Acquisition Act, it is unnecessary to rely upon the extended meaning of the expression public purpose as provided by s. 78 1 of the Provincial Municipal Corporations Act, 1949. It was urged that municipal funds were, companytrary to the pro- visions of the Provincial Municipal Corporations Act, 1949, intended to be utilised for setting up a memorial to Mahatma Gandhi. But we are number companycerned in the present case to determine whether if the funds are utilised, they will be lawfully utilised that is a matter which is number within the periphery of the inquiry in this appeal. The land is being acquired for a purpose which is a public purpose, and once that companydition is fulfilled numberfurther inquiry need be made, whether if the municipal funds are to be utilised for setting up a memorial to Mahatma Gandhi after the land is vested in the State after acquisition, the Municipality will be acting within the limits of its authority. We may observe that a numberification issued under s. 6 is by sub-s. 3 companyclusive evidence that the land is needed for a public purpose. The Land Acquisition Act does number provide that the instrumentality which is to carry out the purpose must be set out in the numberifications under ss. 4 6 of the Act. The Gujarat High Court in Special Civil Application No. 800 of 1961. Chandulal Patel v. The State of Gujarat held that if the public purpose for which land is numberified for acquisition is to be executed through ,In instrumentality other than the State Government , failure to specifically mention the instrumentality in the numberifications rends numberification invalid. But in Ramji Popatbhai v. Jamnadas sha a Full Bench of the High Court has overruled that earlier 1 1969 Guj. L.R. 164. slp. C.I./70-13 judgment. In Vishnu Prasad Ramdas Gohil Others v. The State of Gujarat 1 we have held, agreeing with the view of the Full Bench of the Gujarat High Court, that failure to specify the instrumentality which is to execute the public purpose does number affect the validity of the numberification either under S. 4 or under S. 6 of the Land Acquisition Act. There is numbersubstance in the argument that the Commissioner, Baroda Division, did number apply his mind in issuing the numberification under S. 6. The land numberified for acquisition under s. 4 was 3428 sq. yards 3 sq. ft. out of Survey No. 348B, and 494 sq. yards 5 sq. ft. out. of Survey No. 349. The area of the land numberified under s. 6 was stated to be 3562 sq. yards out of Survey No. 348B and 387 sq. yards out of Survey No. 349. Even though the area of land out of Survey No. 348B exceeded the area originally mentioned in the numberification under s. 4, the Commissioner stated in the impugned numberification that the remaining area of the said lands numberified under section 4 is hereby abandoned. It was urged that there was numberremaining- area of the land out of Survey No. 348B which companyld be abandoned and the recital indicated that the Commissioner did number apply his mind to the relevant materials on which the numberification was to be issued. It is, however, to be numbericed that the entire Survey No. 348B was number numberified for acquisition only a part of the land was numberified for acquisition under the numberification under s. 4. Under that numberification 3428 sq. yards 3 sq. ft. were numberified, but the numberification under S. 6 the declaration related to 3562 sq. yards. Under the numberification under s. 6 it was recited that the remaining area of the land out of Survey No. 348B was declared as number likely to be needed for a public purpose. The use of the expression the remaining area of the said lands numberified under section 4 is hereby abandoned does number justify an inference that the Commissioner did number apply his mind.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeals Nos. 1706 and 1707 of 1968. Appeals from the judgment and decree dated May 7, 1964 of the Allahabad High Court in Special Appeals Nos. 77 and 118 of 1960. N. Dikshit, for the appellant in both the appeals . P. Goyal and S. N. Singh, for respondent No. 3 in A. No. 171 6 of 1968 and respondent No. 1 in C.A. No. 1707 of 1968 . B. Agarwala and O. P. Rana, for respondent No. 1 in A. No. 1706 of 1968 and respondent No. 2 in C.A. No. 1707 of 1968 . The Judgment of the Court was delivered by Dua, J. In these two appeals on certificate of fitness, challenge is directed against the view taken by a Division Bench of the Allahabad High Court on appeal in disagreement with that of a learned Single Judge of that Court on the interpretation of s. 16 of the U.P. Industrial Disputes Act of 1957 and s. 6A of U.P. Industrial Disputes Act of 1947. The relevant facts may first be briefly stated. In June 1956 there was a strike in the glass factory of the appellant, M s. Munshi Lal Beni Ram Glass Works, at Ferozabad. As a result the factory was closed down for some time. In August 1956 a settlement was reached with the workers and it became possible to reassume operations from August 31, 1956. The workers were asked to report personally, latest by August 26, 1956, to show their willingness to work. According to the appellant, Lal Khan, one of the workers, failed to register his willingness to work before the appointed day, and indeed he did number care to report in spite of a messenger having been sent to him requiring his attendance. In his place one Jang Jit was thereupon employed and intimation of this fact duly sent to Lal Khan. This gave rise to a companytroversy between Lal Khan and the employers with the result that the State Government purporting to act under ss. 3, 4 and 8 of U.P. Indus- trial Disputes Act referred the following dispute to the Adjudicator Whether the employers have wrongly and or un- justifiably refused employed to Shri Lal Khan with effect from 28/29th August, 1957 ? If so, to what relief is he entitled ? Soon after the reference the appellant presented a writ petition in the Allahabad High Court, C.W. No. 899 of 1957 challenging its validity principally on the ground that there was numberindustrial dispute within the companytemplation of the Industrial Disputes Act. As interim, stay of the proceedings was declined, the proceedings before the adjudicator companytinued and on December 31, 1957 the adjudicator gave his award. This was followed by an order of the State Government dated January 28, 1958 enforcing the award under ss. 3 and 6 2 of the U.P. Industrial Disputes Act, 1947. The award and the order of the State Government were also challenged by the appellant by means of a writ petition in the High Court C.W. No. 1025 of 1958 . Though principally in this writ petition the power of the State Government to enforce the award was questioned, challenge to the order of reference was also reiterated. A learned Single Judge allowed this later writ petition on January 28, 1958, holding that the State Government had numberpower to enforce the award in question. According to the learned Single Judge the old s.6 having been replaced by a new section 6 by U.P. Act 1 of 1957, it was number a case of repeal simpliciter and therefore old s. 6 companyld number be resorted to by relying on s.6 e of the General Clauses Act. On the matter having been taken on special appeal a Division Bench of the High Court following ,its earlier decision reported as Central Distillery and Chemical Works Ltd. Meerut v. State of U.P. 1 reversed the order of the learned Single Judge and dismissed the writ petition. The short question, the determination of which is decisive of these appeals, is whether s.64 as mentioned in s.16 of the U.P. Industrial Disputes Amendment and Miscellaneous Provisions Act, 1956 U.P. Act 1 of 1957 as amended by P. Industrial Disputes Amendment and Miscellaneous Provisions Act XXIII of 1957, refers to s.6A as it stood in P. Act XXVIII of 1947 prior to its amendment by U.P. Act 1 of 1957 or as it emerged after the said amendment. The learned Single Judge companystrued it to mean as it stood before the amendment of U.P. Act 1 of 1957 whereas according to the two Bench decisions Section 16 refers to s. 6A as amended by P. Act 1 of 1957. We are required to determine which of these two views is companyrect, A.I.R. 1964 All. 156. Section 16 of U.P. Act 1 of 1957 as it stood prior to its amendment by U.P. Act XXIII of 1957 ran as follows Saving. 16. If immediately before the companymencement of this Act, there is pending any proceeding in relation to an industrial dispute before any authority companystituted under the U.P. Industrial Disputes Act, 1947, as in force before such companymencement, the dispute may be adjudicated and the proceeding disposed of by that authority after such companymencement, as if this Act had number been passed. After amendment by U.P. Act XXIII of 1957, this section read thus Saving. 16. If immediately before the companymencement of this Act, there is pending any proceeding in relation to an industrial dispute before any authority companystituted under the U.P. Industrial Disputes Act, 1947, as in force before such companymencement, the dispute may be adjudicated and the proceeding disposed of by that authority after such companymencement, as if this Act had number been passed, and the provisions of section 6-A of the Principal Act shall remain enforceable with reference to such a proceeding. The words added as a result of the amendment by U.P. Act XXIII of 1957 had been deleted by this very amending Act from sub-section 2 of s.17 of U.P. Act 1 of 1957. We may number turn to the history of S. 6-A. This section was inserted in the U.P. Industrial Disputes Act XXVIII of 1947 by the U.P. Industrial Disputes Act XXIII of 1953 in the following form 6-A. Where any period is specified or is required to be specified in any order made under or in pursuance of this Act referring any industrial dispute for adjudication with in which the -award shall be made, declared or submitted it shall be companypetent for the State Government from time to time, to enlarge such period even though the period originally fixed or enlarged may have expired or the award made. This amendment had retrospective effect because it was to be deemed to have always been added in the U.P. Industrial Disputes Act 1 of 1947 which was described as the Principal Act. In 1957 by means of U.P. Act 1 of 1957 which extensively amended the Act 1 of 1947, s.6-A was replaced by the following new section 6-A. 6-A. Commencement of the Award- 1 An award including an arbitration award shall become enforceable on the expiry of thirty days from the date of its publication under Section 6 Provided that if the State Government is of the opinion that it will be inexpedient, on grounds of social justice, to give effect to the whole or any part of the award, the State Government may, by numberification in the official Gazette, declare that the award shall number become enforceable on the expiry of the said period of thirty days Provided further that an arbitration award shall number become enforceable where the State Government -after such enquiry as it companysiders necessary, is satisfied that the same has been given or obtained through companylusion, fraud or misrepresentation. Where any declaration has been made in relation to an award under the first proviso to sub-section 1 the State Government may within ninety days from the date of publication of the award under Section 6, make an order recting or modifying the award, and shall on the first available opportunity lay the award together with a companyy of the order- before the Legislature of the State. Where any award as rejected or modified by an order made under sub-section 2 is laid before the Legislature of the State, such award shall become enforceable on the expiry of fifteen days from the date on which it is so laid and where numberorder under subsection 2 is made in pursuance of a declaration under the first proviso to sub-section 1 , the award shall become enforceable on the expiry of the period of ninety days referred to in sub-section 2 . Subject to the provisions of sub-sections 1 and 3 regarding the enforceability of an award, the award shall companye into operation with effect from such date as may be specified therein, but where numberdate is specified it shall companye into operation on the date when the award becomes enforceable under sub-section 1 of sub-section 3 as the case may be. This enactment was enforced with effect from April 16, 1957. The U.P. Act XXIII of 1957 which was published in the Government Gazette on November 3, 1957, as numbericed earlier, amended S-16. Prima facie this amendment in s. 16 made in November, 1957 should be referable to section 6-A in the form in which it existed on the date of the enforcement of the amending Act in question U.P. Act XXIII of 1957 . It was companytended on behalf of the appellant that the very fact that the amendment of S. 16 was retrospective so as to date back to April 16, 1957 when S. 16 itself was originally enacted, indicates that s. 6-A as it existed prior to April 16, 1957 was intended to be kept alive. Now looking, at the position as it stood on April 16, 1957, it would be seen that s.16 was designed to save the pending proceedings from the operation of U.P. Act No. 1 of 1957 itself. If this Act was held to be inapplicable, then s. 6-A as amended thereby would be excluded and that section as it stood prior to the amendment by U.P. Act No., 1 of 1957 would automatically be attracted. The question arises where was then the occasion to provide specifically for applying to the pending proceedings s,6-A as it stood before U.P. Act No. 1 of 1957 ? It may, of companyrse, be companytended that it was so done by way of abundant caution. To us, however, it seems that to specifically incorporate s.6-A in s.16 in this situation is suggestive of the intention of the Legislature to extend the amended s.6-A to the proceedings companytemplated by s.16. The enactment under companysideration is number an example of ideal draftsmanship and the provisions under companysideration may admit of two companystructions. Assuming the two companystructions to be possible we are number satisfied that the companystruction placed on this provision by the two Benches of the Allahabad High Court is clearly erroneous justifying reversal of the view taken therein and thereby unsettling the legal position. On the other hand to uphold the view of the learned Single Judge would also render the awards like the present unenforceable, which intention is difficult to impute to the Legislature. And then this point is number likely to arise very frequently in future, the matter being companyfined only to the cases which were pending when U.P. Act No. 1 of 1957 was enforced. The enactment is also companyfined in its operation to the State of U.P. alone. The appellants companynsel next companytended that the proceeding in question pending with the adjudicator companyld number be companysidered to be pending with the State Government and the State Government companyld number give effect to the decision of the adjudicator under s.16. It was argued that it was only the Authority before which the proceeding was actually pending immediately after the companymencement of U.P. Act No. 1 of 1957 which was empowered to dispose it of and the proceeding in the present case being pending before an adjudicator, the State Government companyld number claim any power under this section. It was added that the State Government companyld also number be treated as the authority companystituted under the said Act. In our, opinion the proceeding in question was clearly -pending before the adjudicator as companytemplated by s.16. The adjudicator, therefore, companyld plainly proceed to. adjudicate upon the dispute. On his a judicious the provisions of s.6- A would be attracted and thereunder the State Government companyld enforce it. This submission of the appellant is, therefore, repelled. On the view that we have taken it is number necessary to decide whether the State Government is an authority companystituted under the Act as envisaged by s.16 and also whether the proceeding in question companyld be companysidered to be pending before the State Government. The appellants companynsel also submitted that without resort to s.17 of U.P. Act No. 1 of 1957 the award companyld number be enforced. This argument too need number detain us as it does number arise on the view we have taken. We may, however, point out that s. 17 only provides for delegated legislation in certain circumstances and resort to s. 17 is number essential, or a companydition precedent for enforcing the awards, as suggested on behalf of the appellant. The appellants learned Advocate as a last resort submitted that the decision of the adjudicator is number an award as defined in s.2 c of the U.P. Industrial Disputes Act as amended by U.P. Act No. 1 of 1957. Now if U.P. Act No. 1 of 1957 is excluded from its application to pending proceeding under s.16 then the word award has to be liberally companystrued and so companystrued it would be companyered by s. 6-A. The power companyferred by ss. 16 and 6A has to be companystrued as real and number illusory and it has to be interpreted so as to achieve the purpose for which it was companyferred. We must number be understood to accord our approval to the view of the learned Single Judge that s.6 of the Principal Act having number been repealed simpliciter, but having been replaced by a new section 6 by U.P. Act 1 of 1957, the principle underlying s.6 e of the General Clauses Act cannot be attracted. In our opinion, this approach is number quite companyrect. Section 6 would seem to us to apply to a case of repeal even if there is a simultaneous enactment unless a companytrary intention appears from the new enactment. As observed by this Court in the State of Punjab v. Mohar Singh 1 whenever there is a repeal of an enactment, the companysequences laid down in section 6 of the General Clauses Act will follow unless, as the section itself says, a different intention appears. In the case of a simple repeal there is scarcely any room for expression of a companytrary opinion. But when the repeal is followed by fresh legislation on the same subject we would undoubtedly have to look to the provisions of the new Act, but only for the purpose of determining whether they indicate a different intention. The line of enquiry would be, number whether the new Act expressly keeps alive old rights and liabilities but whether it manifests an intention 1 1955 1 S.C.R. 893. to destroy them. We cannot therefore subscribe to the broad proposition that section 6 of the General Clauses Act is ruled out whenever there is a repeal-,of an enactment followed by a fresh legislation. Section 6 would be applicable in such cases also unless the new legislation manifests an intention incompatible with or companytrary to the proposition of the section. Such incompatibility would have to be ascertained from a companysideration of all the relevant provisions of the new law and the mere absence of a saving clause is by itself number material. The result is that these appeals fail and are dismissed with companyts.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 2205 of 1966. Appeal from the judgment and decree dated September 12, 1962 of the Madhya Pradesh High Court, Gwalior Bench in First Appeal No. 9 of 1959. P. Goyal and S. N. Singh, for the appellant. N. Shroff, for respondent No. 1. The Judgment of the Court was delivered by Hegde, J. This is an appeal by certificate under Art. 133 1 a of the Constitution. The appellant is the plaintiff in the suit. in the suit he claimed a sum of Rs. 30,699/1/3 against both the defendants. The suit was decreed by the trial companyrt against the defendants in a sum of Rs. 22,634/4/- together with companyts and interest from the date of the decree. The State of Madhya Pradesh, the 1st defendant in the suit appealed against the decree. The second defendant did number appeal against that decree. The plaintiff filed cross-objection claiming interest on the principal amount claimed from the date of the suit till decree. The High Court allowed the appeal of the State and set aside the decree against it but it failed to pass any order on the cross-objection. In this appeal the appellant seeks number only to get restored the trial companyrts decree against the State of Madhya Pradesh, he also wants that the relief claimed by him in his cross-objection before the High Court should be granted to him. The facts of the case lie within narrow limits. One Hetampal Singh, father of defendant No, 2 was a licence holder for Gird District in the then State of Gwalior for distribution of grain. He had entered into an agreement with the appellant-plaintiff on October 14, 1942 Ex. 1 , whereunder he appointed the appellant as his companymission agent. English translation of the said agreement reads thus P. S. Jadhav Thakur Sahab Naya Bazar Lashkar, Gwalior. Hetampalsingh Jadhav son of Bhagwansingh Jadhav caste Thakur, am a resident of Naya Bazar, Lashkar. I have taken companytract for supplying grain seed in District Gird for which I need money for bringing every kind of grain from different places. Therefore I appoint Ramprasad s o Prabhudayal caste Mathur Vaishya resident of Naya Bazar, Lashkar as my adhatia Commission Agent and settle the following terms I shall pay interest at the rate, of Re. 1/ p.c. on the amount which will be invested by the Seth Sahab for this purpose. I shall pay companymission at the rate of Rs. 1/8/per cent on the goods which will be brought by the Seth Sahab or his man from outside and I shall pay companymission at the rate of Re. 1/- per cent on the goods which will be brought by me from outside and for which the Seth Sahab will have only to get released the railway way bill. 3 1 shall pay the whole expenses of journey, railway fare, allowance etc. of the person who will go out on behalf of the Seth Sahab for bringing the goods. The whole of the goods which will be received from outside, shall remain in possession of the Seth Sahab. The account thereof shall also remain with him. the, Seth Sahab will have authority to supply only so much goods as I would permit him to supply i.e. he cannot supply goods to anybody of his own accord. The expenses which will be incurred in keeping account and other expenses of the shop shall be borne by the Seth Sahab. I shall pay only rent of the shop. I shall be responsible for any increase or decrease in the goods. Sd. - HETAMPALSINGH JADHAV In English 14-10-42. In pursuance of the said agreement, the appellant purchased companysiderable stock of grain. He had in possession on January 29, 1943. 4039 maunds 35 seers 4 chhatacks of gram. According to the appellant on that day Hetampal Singh owed him a sum of Rs. 19,228/9/6. The possession of that stock was taken over by the State Government on January 29 and 30, 1949. The State Government paid the price of the said stock to Hetampal Singh. The appellants case is that the State Government is liable to reimburse him the money due to him from Hetampal Singh. Before the suit came to be filed Hetampal Singh had died and hence he 2nd defendant was impleaded as his legal representative. The plaint filed by the plaintiff is a bald one. It did number set out the right under which the plaintiff was claiming any relief against the State. In the companyrse of the trial, the plaintiff asserted that he was a pledgee of the goods in question. No such case was pleaded in the plaint number any issue raised in that regard. The agreement entered into between the plaintiff and Hetampal Singh does number show that the goods in question had been pledged to the plaintiff. The agreement provides that the appellant shall be in possession of the goods purchased and dispose of the same in accordance with the directions given by Hetampal Singh. The finding, of the High Court is that the grain was removed by the Government from the possession of the appellant without any force or fraud and the appellant handed over that grain to the Government in response to a companymunication from the Controller of Foodgrains. At numberstage he told the Government that he was a pledgee of the goods. The decision in Santi Sahu vs. Sheogulam Sahu 1 relied on by the learned Counsel for the appellant is of numberassistance to him because the agreement relied on in that case is materially different from the one before us. On an interpretation of that document the companyrt came to the companyclusion that it companystituted a bailment for security and that it is a pledge within the meaning of s. 172 read with s. 148 of the Contract Act. That is number the position here. Therefore the High Court was fully justied in rejecting the claim of the appellant that he was a pledgee of the goods. The claim of the appellant was next tried to be supported on the plea that he had a lien over the goods. No such plea was taken in the plaint. An Agent numberdoubt has a specific lien upon the principals property in his possession for his companypensation and expenses during the companyrse of the agency with reference to that property. Section 221 of the Contract Act provides that in the absence of a companytract to the companytrary, an agent is entitled to retain goods, papers and other property, whether movable or immovable, of the principal received by him, until the amount due to him for companymission, disbursements and services in respect of the same has been paid or accounted for to him. An agent who is entitled to be reimbursed from the principals property for the expenses incurred, advances made or losses sustained during the companyrse of the agency or who is entitled to be companypensated for his services has a lien upon the principals goods or property which companyes lawfully in his possession during the companyrse of the agency from which the right to indemnity or companypensation arises. A purchasing agent has a lien upon the principals goods in his possession upon which he has paid money in purchasing. As a general rule in order to have a lien, an agent must have some possession, custody or companytrol or disposing power in or over the subject matter in which the lien is claimed. The lien does number arise where the possession of the property is acquired by the agent under a companytract which expressly or impliedly shows companytrary intention, or where it is delivered to him for a particular purpose inconsistent with the existence of lien thereon. The agent has numberlien over the property where it is en- trusted to him for a special purpose which is inconsistent with the lien claimed. Further the lien of an agent being a mere right to retain possession of the property subject thereto, is lost by parting with the possession of the goods unless at the time of parting with them he reserved expressly or impliedly his right of lien or they are obtained from him by fraud or unlawful means. A.I.R. 1958 Pat 174 The question whether an agent can enforce his lien in a particular case is a mixed question of law and facts. Therefore in the absence of any specific plea, that question cannot be gone into. We do number know the companyditions under which Hetampal Singh was appointed as a licence holder. From the material on record, it is number clear whether the goods in question were taken possession of by the Government in accordance with the companyditions of the licence ranted to Hetampal Singh. Therefore it is number possible to decide whether under the circumstances of the present case, the plaintiff companyld have enforced his lien against the State. It is true that the plaintiff informed the Government that Hetampal Singh owed to him about Rs. 20.000/-. But from that circumstance we cannot companye to the companyclusion that while voluntarily parting with the possession of the goods, he reserved expressly or by implication his right of lien, if he had any. We do number think that the rule laid down in Balmukund and anr. vs. Jagannath 1 relied on by the learned Counsel for the appellant bears on the facts of this case. Under these circumstances it is number possible to uphold the appellants claim against the State. Therefore the appeal fails so far as the State is companycerned. It is accordingly dismissed, as against the 1st defendant, the State of Madhya Pradesh. But companying to the cross-objection filed by the appellant before the High Court, the High Court appears to have companypletely lost sight of the same. It did number deal with that cross-objection while disposing of the appeal. The trial companyrt did number give any reason for rejecting the plaintiffs claim for interest on the principal amount from the date of the suit till the date of the decree. The plaintiff was entitled to interest on the principal amount of Rs. 19,228/6/- at 41/2- per cent per annum from the date of the suit till the date of the decree.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 482 of 1967. Appeal by special leave from the Award dated October 13, 1966 of the Industrial Tribunal, Bihar, Patna in Reference No. 7 of 1964 pronounced on the November 10, 1966. R. Gokhale, K. B. Rohtagi and S. P. Wad, for the appellant, C. Manchanda, S. S. Khanduja and R. A. Gupta, for respondent No. 1. The Judgment of the Court was delivered by Dua, J. This appeal by special leave is directed against the award of the Industrial Tribunal, Bihar, dated October 13, 1966. by means of which the workmen of the appellant were held entitled to wages for the period of the lock out beginning with February 28, 1964 and ending with March 22, 1964. On March 20, 1964 the Governor of Bihar referred the following disputes to the Industrial Tribunal Whether the strike launched by the workers on the morning of the 27th February, 1964, was justified ? Whether the lock-out declared by the Management is justified ? Whether the workmen are entitled to wages for the period of strike and or lock-out On the first point the Tribunal came to the companyclusion that the strike by the workmen on February 27, 1964 was number justified. As a result of this companyclusion the lock-out declared by the Management on February 27, 1964 was held to be justified but on a companysideration of the material placed before the Tribunal numberjustification for companytinuing- the lock-out on the following days was shown. On this companyclusion the Tribunal decided under point No. 3 that the workmen were entitled to wages for the remaining period of the lock-out. In this Court the learned Advocate for the appellant raised only two points. The first submission attacked the decision of the Tribunal under point No. 2, where it is held that the lockout by the Management was unjustified after February 27, 1964 and the second submission assailed the decision under point No. 3 awarding to the workmen wages for the period of lock-out between February 28, 1964 and March 22, 1964. On the first point Shri Gokhale very frankly companyceded that the finding of fact arrived at by the Tribunal was number open to challenge in the present appeal under Article 136 of the Constitution. He, however, companytended that the order of the Tribunal in this respect is open to question on the ground that the appellant had been deprived of a reason-able opportunity of adducing evidence in support of its case. He referred us to the proceeding--, of the Tribunal held on September 29, 1966. On that date the Tribunal recorded the following order Parties present. Management is represented by Shri. Pandey S. Prasad, personal officer and the workmen are represented by Shri Kalika Nandan Singh, Advocate, on behalf of Pradeep Lamp Works Karamchari Sangh and Shri B. B. Karan on behalf of Pradeep Lamp Workers Union. Shri Karan files written statement on behalf of his union today. This written statement cannot be accepted it has been filed so late. The Workers Union may adduce its evidence if it so likes. Hearing oil the case is taken up. As the Karamchari Sangh pleaded its inability to start its evidence, the management is called upon to produce its witnesses. The management examines M.W. 1. Trilokinath Rastogi and M.W. 2 Shri R. M. Kahattriya who are discharged after cross-examination. M.W. 1. proves Exts. A, A-1, B, B/1, B/2 B l for the management. Thereafter the management prays that the case may be adjourned as it wants to examine more witnesses. The parties should have companye ready with all their evidence today. The prayer for adjournment by the management is therefore rejected. Oral evidence on behalf of the management closed. Union examined L.W.l. Krishna Thakur who is discharged, after cross- examination. As it is late, the case is adjourned for tomorrow for further hearing. Call for the letter of the Labour Commissioner dated 13-3-64 on partys risk. The argument strongly pressed on behalf of the appellant was that the Tribunal was wrong in rejecting the appellants prayer for adjournment when it had already given time to the Karamchari Sangh to produce its evidence later because of its inability to start its evidence in the first instance. According to the appellants argument the discretion exercised by the Tribunil was arbitrary and companytrary to the accepted judicial procedure. In this companynection our attention was also drawn to a written application made by the appellant to the Tribunal on September 29, 1966 seeking an opportunity for producing the witnesses named therein, but the prayer was disallowed by the Tribunal. The order of the Tribunal disallowing the prayer was described the learned Advocate to be discriminatory and violative of the recognised standards of judicial impartiality. Had the Sangh been companypelled to start its evidence, then, so proceeded the argument, the appellants oral evidence companyld number be closed because the case was ad journey to the following day without companycluding the recording of the evidence of the Union and on that day the remaining evidence of the management companyld be produced in the numbermal companyrse. On behalf of the respondent Shri Manchanda tried to meet this argument by submitting that the parties must be presumed to have been directed by the Tribunal on the previous hearing to companye ready with their oral evidence on September 29, 1966. To rebut this presumption, argued Shri Manchanda, the appellant should have got printed the previous order adjourning the case to September 29, 1966 for recording the evidence of the parties. The learned Advocate also submitted that the question whether or number a party is entitled to an adjournment for producing its evidence is a matter of discretion and the exercise of discretion cannot be assailed on appeal under Art. 136 of the Constitution. The second point strongly urged by Shri Gokhale relates to the grant of full wages to the workmen for the remaining period of the lock-out. If the blame for the lock-out was apportionable to both the parties the, according to the submission, full wages companyld number be awarded. In such cases the numbermal practice, argued the learned Advocate, was to award half of their wages. In support of this submission reference was, to begin with, made to a decision of this Court as India General Navigation and Railway Co. Ltd. v. Their Workmen. 1 At page 31 of the report this Court said As regards the remaining workmen, the question is whether the Tribunal was entirely companyrect in ordering their reinstatement with full back wages and allowances on and from August 20, 1955, till reinstatement. This would amount to wholly companydoning the illegal act of the strikers. On the findings arrived at before us, the workmen were guilty of having participated in an illegal strike, for which they were liable to be dealt with by their employers. It is also clear that the inquiry held by the appellants, was number wholly regular as individual charge sheets had number been delivered to the workmen proceeded against. When the blame attaches to both the parties, we think that they should divide the loss half and half between them. We, there- fore, direct that those workmen whose reinstatement by the Tribunal is upheld by us, should be entitled only to half of their wages during the period between the date of the cessation of the illegal strike i.e. from August 20, 1955 and the date the Award became enforceable. After that date they will be entitled to their full wages, on reinstatement. 1 1960 2 S.C.R.l. Sup. CI 170-11 The other decision cited on this point is reported as India Marine Service Private Ltd. v. Their Workmen. 1 At page 583 of the report it was observed thus It is true that the strike was intended to be a token one. But the object of that strike being to circumvent settlement in an amicable manner, even though the companypany was ready for such settlement, we have numberdoubt that strike was unjustified. It is in the light of this finding that the lock-out has to be judged. In our opinion, while the strike was unjustified the lock-out when it was ordered on November 13, 1958, was justified. It seems to us, however, that though the lock-out was justified at its companymencement its companytinuation for 53 days was wholly unreasonable and, therefore, unjustified In a case where a strike is unjustified and is followed by a lock-out which has because of its long duration, become unjustified it would number be a proper companyrse for an industrial tribunal to direct the payment of the whole of the wages for the period of the lock-out. We would like to make it clear that in a case where the strike is unjustified and the lock-out is justified the workmen would number be entitled to any wages at all. Similarly where th e strike is justified and the lock-out is unjustified the workmen would be entitled to the entire wages for the period of strike and lock-out. Where, however,. a strike is unjustified and is followed by a lock-out which becomes unjustified a case for apportionment of blame arises. In that case also the blame for the situation was apportioned roughly half and half between the Company and the Workmen with the result that the workmen were given half of their wages for the period in question. The, respondents learned Advocate, submitted in reply that the management had been adopting dilatory tactics and there was a very trivial instance of slapping a workman which had led to a demand by the workmen for an apology from the offending party and this had led to the strike and the lock out. In the background of this situation, the learned Advocate companytended, the order giving full wages to the workmen was fully justified. It was emphasised that for one day when the strike was held to be illegal, the workmen have been deprived of their wages companypletely. Thereafter they were always willing to work but the management declared a lock out and companytinued the same with- out any justification. The learned Advocate referred us to a 1 1963 3 S.C.R. 575. pany Ltd. v. Their Employees 1 in support of his submission that the assault on a workman was number a matter of such a serious nature as would justify the management to declare the lock-out, more particularly to companytinue it for such a long duration. In our opinion, it was incumbent on the Tribunal to apply its mind to the question of apportionment of blame on the two parties and to its effect on the amount of wages to be awarded to the workmen for the period of the lock out after February 28, 1964. The order of the Tribunal ignoring this important aspect is infirm and is difficult to sustain. In so far as the first question in companycerned, prima facie, the order of the Tribunal does appear to be somewhat arbitrary and injudicious and it would have been more appropriate exercise of judicial discretion to adjourn the case to the following day for the production of the appellants evidence, if necessary, on payment of companyts. Had we decided to remit the case back to the Tribunal for companysidering the question of the effect of both parties being blame worthy for the lock out on the amount of wages to awarded, we would have perhaps thought it proper also to direct the Tribunal to permit the appellant to adduce evidence.

Case appeal was accepted by the Supreme Court

The Secretary of State for India in Council v. Hindustan Co-operative Insurance Society Ltd., referred to. Re Woods Estate, 1881 31 Ch. D. 607, applied. Bihar Regulation 1 of 1951. was number in excess of the Governors powers. The Santhal Parganas are included in the Scheduled.Areas dealt with in Art. 244 and the Fifth Schedule to the Constitution. Paragraph 5 in the Fifth Schedule deals with laws applicable to Scheduled Areas. Sub-paragraph 2 of Paragraph 5 enacts that the Governor may make regulations for the peace and good government of any area in a State which is for the time being a Scheduled Area. Under sub-paragraph 3 of paragraph 5 the Governor may repeal or amend any Act of Parliament or any Act of the legislature of the state or any existing law which is for the time being applicable to the area in question. The Bihar Regulation I of 1951 is a valid piece of legislation emanating from the legislative authority of the Governor in its plenitude of power. The companytentions s did number include the that the Governors power of making regulation power to apply laws and that the Bihar Regulation I of 1951 is either piece of delegated legislation or a companyditional legislation, companyld number be accepted. 245 B-C, H Riel v. The Queen, L.R. 10 A.C. 657, referred to. The Land Customs Act, 1924 was number applicable to the Santha. Parganas as an existing law within the meaning of Art. 372 1 of the Constitution. it was also number made applicable to the Santhal Parganas -by the Governor by the exercise of power under the Government of India Act or the Constitution. Nevertheless by virtue of numberification No. 6 Cus. dated 28th September, 1951 under section 6 of the Sea Customs Act, 1878 and numberification No. CBR Notification 1. Cus. dated 25th January, 1958 as amended in May, 1958 the two Inspectors in the present case had authority to arrest the appellant Nazir Mian and to seize the bags of cloves in his possession. From the said numberifications it appeared that under s. 6 of the Sea Customs Act, 1818 Land Customs Officers arc appointed Officers of Customs. Secondly, the numberification under the Land Customs Act is that all the officers mentioned therein including the Inspectors of Central Excise employed on the Central Excise or Customs Prevention Intelligence Work and attached to the Headquarters are Land Customs Officers. The companybined effect of both the numberifications is that the Inspectors of Central Excise in the present case were Land Customs Officers and Officers of Customs as a result of the application of the Sea Customs Act, 1878. 246 H 251 B-D iii a The import of cloves was prohibited under the Imports Control Order 1955 made under s. - 3 of the Imports Exports Control Order 1947. They were also dutiable goods under the Indian Tariff Act, 1934 which was applicable to the Santhal Parganas being one of the Acts mentioned in the Schedule to the Santhal Parganas Settlement Regulation, 1872. Being prohibited goods under the Imports Exports Control Act, 1947 cloves are deemed to be prohibited under s. 19 of the Sea Customs Act, 1878. 250 Al The-evidence in the present case established the following facts. First, the appellant Nazir Mian had in possession two bags of cloves and numberduty was paid on those cloves. Secondly the said appellant kept the cloves in two bags and companycealed the same in the latrine of the railways companypartment. Thirdly, the cloves were dutiable goods -and there was prohibition on the import of those goods. Fourthly, the place o f occurrence was at a distance of only 11 12 miles from the East Pakistan border. Fifthly, cloves are number grown in India. These circumstances indicated a reasonable suspicion and, therefore the Officers were justified in arresting the appellant Nazir Mian tinder section 173 of the Sea Customs Act, 1878. 1251 E In the absence of special numberification under s, 178A of the Sea Customs Act. 1878 specifying goods to which the section applies, the onus of proof under that section cannot be placed on persons whose goods are seized for violation of other provisions of the Sea Customs Act, 1878. In view of the fact that in the present case the seized articles were removed by the accused it was unnecessary to deal any further with this aspect of the case because if any order was passed for return of the bags the order companyld number be enforced 251 E CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 182 of 1966. Appeal by special leave from the-judgment and order dated January 31, 1966 of the Patna High Court in Criminal Appeal No. 210 of 1966. Rameshwar Dial and A. D. Mathur, for the appellants. Lal Narayan Sinha, Advocate-General for. the State of Bihar and, U. P. Singh, for the respondent. M. Singhvi and S. P. Nayar, for the Union of India. Lal Narayan Sinha, Advocate-General for the State of Bihar and D. Goburdhun, for the State of Bihar. The judgment of the Court was delivered by Ray, J.-This is an appeal by special leave from the judgment of the High Court at Patna challenging first the authority of the Excise Inspectors as Officers of Customs, namely, public servants and secondly their power, to arrest Nazir Mian and seize 2 bags of cloves from his possession under sections 173 and 178 respectively of the Sea Customs Act, 1878. The facts giving rise to this appeal are as follows. On 13 December, 1961, Inspectors Uma Shankar and Bisuddha Nand Jha and Constable Bishan Singh, all belonging to the Central Excise Department were on checking patrol duty on 330 Down Barauni passenger train proceeding from Barharwa to Pakur which are Railway Stations in Santhal Parganas in Bihar. The appellant Nazir Mian was travelling by Barauni passenger train. When the train stopped at Pakur the excise staff found Nazir Mian in the latrine of one of the companypartments of the train with two bags of cloves weighing about 2 pounds 10 seers. The door of the latrine was closed. Inspector Uma Shankar pushed the door when it was opened from inside. Uma Shankar disclosed his identity and asked if duty had been paid for the cloves. Nazir Mian answered in -the negative. Inspector Uma Shankar thereupon seized the bags and arrested Nazir Mian. While this was being done, the train started. Shortly after the train had started it stopped at a level crossing in companysequence of one of the persons of the excise staff pulling the alarm chain. The excise staff got down,with Nazir Mian. The two bags of cloves were also brought down. Certain persons companylected on the spot. Nazir Mian is alleged to have been rescued by other appellants and the bags of cloves were taken away. In the scuffle that ensued, one of the Inspectors received simple injuries and the other a grievous injury. The three appellants Nazir Mian, Ram Kirpal Bhagat and Ganga Dayal Shah and two other persons Jhaman Mian and Raghunath Prasad Yadav were all charged under section 147, 149, 333 and 379 of the Indian Penal Code for forming an unlawful assembly in assaulting Inspectors Uma Shankar and B. N. Jha and in rescuing accused Nazir Mian from their lawful custody and in removing two bags of seized cloves from their possession. The accused persons with the exception of Raghunath Prasad Yadav were further charged under section 332 of the Indian Penal Code for voluntarily causing hurt to Uma Shankar a public servant in the discharge of his public duties. The accused with the exception of Nazir Mian were charged under section 225 of the Indian Penal Code for intentionally offering resistance to the lawful apprehension of accused Nazir Mian. Nazir Mian was also charged under section 7 of the Land Customs Act, 1924 for companytravention of section 5 of the, said Act and also under section 167 item 81 of the Sea Customs Act, 1878 for companytravention of Section 19 of the said Act and also under section 5 of the Imports and Exports Control Act, 1947 for companytravention of section 3 1 of the Imports Control Order, 1955. At the trial before the Assistant Sessions Judge, Dumka in Santhal Parganas, Raghunath Prasad Yadav was acquitted of all the charges and the appellants Nazir Mian, Ram Kirpal Bhagat and Ganga Dayal Shah along with Jhaman Mian were all companyvicted under sections 147 and 332 of the Indian Penal Code. Jhaman Mian, Ram Kirpal Bhagat and Ganga Dayal Shah were also companyvicted under sections 225 and 333 of the Indian Penal Code. Ram Kirpal Bhagat and Nazir Mian were also companyvicted under section 379 of the Indian -Penal Code. The said four accused including the three appellants were sentenced to several terms of imprisonment and the said sentences were ordered to run companycurrently. The Assistant Sessions Judge, Dumka, however, acquitted the appellant Nazir Mian of the charges under the Land Customs Act, the Sea Customs Act, 1878 and- the Imports and Exports Control Act. The Assistant Sessions Judge, Dumka held that section 6 of the Imports and Exports Control Act, 1947 raised a bar of taking companynizance by any companyrt except upon a companyplaint in writing made by an officer authorised in that behalf by the Central Government by general or special order and in the absence of any companyplaint in writing by the officer companycerned, the Assistant Sessions Judge, Dumka found that he had numberjurisdiction to take companynizance of the offence under this Act. The Assistant Sessions Judge, Dumka, also held that section 187A of the Sea Customs Act, 1878 laid down that companynizance as to offence was to be taken upon a companyplaint in writing made by the Chief Customs Officer or any other officers of customs number lower in rank than an Assistant Collector of Customs authorised in this behalf by the Chief Customs Officer. The Assistant Sessions Judge, Dumka, found that in the present case there was numbersuch companyplaint, and, therefore, he did number take companynizance for the companytravention of section 19 of the Sea Customs Act, 1878. The appellants and Jhaman Mian thereafter preferred an appeal to the High Court. In the High Court the appellant Nazir Mian companytended that Inspector Uma Shankar had numberpower to arrest him and seize the cloves, and, therefore, the Inspector companyld number be held to have acted in the discharge of his public duties. In aid of that companytention it was submitted first, that the Imports and Exports Control Act, 147, the Land Customs Act., 1924, the Sea Customs Act, 1878 and the Indian Tariff Act, 1934 were number extended to Santhal Parganas and were number, therefore, applicable. The second companytention was that cloves were number dutiable articles. The third companytention was that section 173 of the Sea Customs Act, 1878 had numberapplication, because there was numberevidence of reasonable suspicion that Nazir Mian was guilty of an offence under the Sea Customs Act, 1878. It was also companytended that Inspector Uma Shankar was number an officer of the Customs. The High Court came to the companyclusion that the Sea Customs Act, 1878 and the Imports and Exports Control Act, 1947 applied to the Santhal Parganas with the result that the import of cloves was prohibited duty was payable on cloves the Inspectors were officers of Customs within their respective jurisdiction, and, therefore, they companyld exercise power under section 173 of the Sea Customs Act, 1878 and they companyld seize the goods under section 178 of the Sea Customs Act, 1878. The High Court further held that under section 178A of the Sea Customs Act, 1878, the burden was on the appellant Nazir Mian to prove that cloves seized were number smuggled goods and that the appellant Nazir Mian failed to do so. The High Court held that the appellants had been rightly companyvicted for certain offences but the sentences under section 332 of the Indian Penal Code against Nazir Mian, Ganga Dayal Shall were set aside to companyrect an error in the judgment of the Assistant Sessions Judge, Dumka, who at one place companyvicted all the four accused under section 332 of the Indian Penal Code and at another place found only Jhaman Mian and Ram Kirpal Bhagat guilty of the offences under section 332 of the Indian Penal Code. Counsel on behalf of the appellants companytended first, that the Sea Customs Act, 1878 did number apply to the place of occurrence, and, therefore, the arrest and the seizure were unlawful. The second companytention was that the Land Customs Act, 1924 did number apply to the place of occurrence, and therefore, the Inspectors were number officers of Customs who companyld invoke the authority of the Land Customs Act, 1924 to arrest and seize the appellant Nazir Mian. The third companytention was that the seizure of cloves was number authoorised by section 178 of the Sea. Customs Act, 1878 number was the arrest authorised under section 173 of the Sea Customs Act, 1878. The arrest and the seizure under the Sea Customs Act,. 1878 were impeached as illegal on the ground that the Sea Customs Act, 1878 did number apply to the place of occurrence, namely, Pakur in Santhal Parganas in Bihar. The fourth companytention was that section 178A of the Sea Customs Act, 1878 companyld number apply, because there was numbernotification to attract the application of the said section. The first question which falls for decision is whether the Sea Customs Act, 1878 applies. In order to appreciate this companytention it is necessary to refer to the statutes by virtue of which the Sea Customs Act, 1878 is said to apply to the place of occurrence. The Bihar Regulation I of 1951 enacted that the Imports and Exports Control Act, 1947 was applicable to Santhal Parganas. The relevant sections under the Imports and Exports Control Act, 1947 in the present case are the two sub-sections in section 3 which are as follows Powers to prohibit or restrict imports and exports. ,I The Central Government may, by order published in the Official Gazette, make provisions for prohibiting, restricting or otherwise companytrolling 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 companystwise or shipment as ships stores of goods of any specified description b the bringing into any port or place in India of goods of any specified description intended to be taken out of India without being removed from the ship or companyveyance in which they are being carried. All goods to which any order under subsection 1 applies shall be deemed to be goods of which the import or export has been prohibited under section 19 of the Sea Customs Act, 1878, and all the provisions of that Act shall have effect accordingly. The first companytention on behalf of the appellants is that sub section 2 of section 3 of the Imports and Exports Control Act, 1947 means that only section 19 of the Sea Customs Act, 1878 is applicable and the other section do number apply. The second companytention on behalf of the appellants that the Bihar Regulation I of 1951 is in excess of the power of the Governor companytained in the Fifth Schedule to the Constitution will be dealt with hereinafter. Counsel on behalf of the appellants companytended that sec- tion 3 2 of the Imports and Exports Control Act, 1947 meant that goods to which sub-section 1 of section 3 of the Act of 1947 applied were deemed to be goods of which the import or ,export had been prohibited under section 19 of the Sea Customs Act, 1878, and, therefore, only section 19 of that Act was to have effect for that restricted purpose. In aid of that companytention reliance was placed on the decision of this Court in The Collector ,of Customs, Madras v. Nathella Sampathu Chetty Anr. 1 . The question for companysideration in the Madras Customs case was whether section 178A of the Sea Customs Act, 1878 applied. The Collector of Customs there seized gold because he was, prima facie, of the view that it had been smuggled and numberice was issued to the respondent to show cause why the gold should number be companyfiscated. Import of gold was dealt with by section 8 of the Foreign Exchange Regulation Act, 1947 which provided that the Central Government might by numberification order that numberperson except with the general or special permission of the Reserve Bank and on payment of prescribed fee bring or send into India any -gold or silver. Section 23A of the Foreign Exchange Regulation Act which came into existence in the year 1952 was as follows - 23A. Without prejudice to the provisions of section 23 or to any other provision companytained in this Act the restrictions imposed by sub-sections 1 and 2 of section 8, sub-section 1 of section 12 and clause a of sub- section 1 of section 13 shall be deemed to have been imposed under section 19 of the Sea Customs Act, 1878 and ail the provisions of that Act shall have effect accordingly, except that section 183 thereof shall have effect as if for the word shall therein the word may were substituted. Section 178A of the Sea Customs Act, 1878 was introduced into the Act in the year 1955. It was, therefore, companytended that -when the Foreign Exchange Regulation Act, 1947 was enacted -the provisions of the Sea Customs Act, 1878 were number at all -attracted, and secondly. when section 23A was introduced in 1952 as a part of the Foreign Exchange Regulation Act, 1947 it would have the effect of bringing into operation only those sections of the Sea Customs Act, 1878 which were part of the Sea Customs Act, 1878 in 1952. Counsel for the appellants relied on the observations at -page 834 of the Report in the Madras Customs case , that the effect of section 23 A is to treat the text of the numberification by -the Central Government under section 8 l as if it had been 1 1962 3 S C.R. 786. issued under section 19 of the Sea Customs Act with the title and the recital of the source of power appropriate to it by the creation of legal fiction. Counsel for the appellants extracted from these observations the proposition that only section 19 of the Sea Customs Act, 1878 would attracted in the present case to make effective the numberifications under the Imports Control and Exports Control Act, 1947 and the Imports Control Order, 1955 and numberother section of the Sea Customs Act, 1878 would be attracted. The decision of this Court in the Madras Customs case does number support that companytention for the obvious reason that section 178A of the Sea Customs Act, 1878 was held to be applicable there. If only section 19 of the Sea Customs Act, 1878 were attracted for the purpose of giving sanction to numberifications under the Foreign Exchange Regulation Act section 178A of the Sea Customs Act, 1878 companyld number have been held to be applicable in Madras Customs case . Further this Court in the Madras Customs case at page 799 of the Report held first, that on the law as it stood upto 1952 before section 23A of the Foreign Exchange Regulation Act was inserted, importation of gold in companytravention of the numberification of August, 1948 issued under section 8 l of the Foreign Exchange Regulation Act would have been an importation companytrary to section 19 of the Sea Customs Act, with the result that any person companycerned in the act of importation would have been liable to the penalties specified in the third companyumn of section 167 8 of the Sea Customs Act and imported gold would have been liable to companyfiscation under the opening words of that companyumn. This companyclusion indicates. that a restriction on the import of gold by a numberification under the Foreign Exchange Regulation Act would be a prohibition or restriction on importation or exportation of gold under section 19 of the Sea Customs Act, 1878 which occurs in Chapter IV of the Sea Customs Act, 1878. The other companyclusion of this Court in the Madras Customs case was that though section 187A of the Sea Customs Act, 1878 was introduced in the, year 1955 section 23A of the Foreign Exchange Regulation Act, 1947 which came into exist- ence in 1952 would be operative to introduce the subsequent amendments of the Sea Customs Act, 1878 in dealing with company- travention of the Foreign Exchange Regulation Act in relation to importation or exportation of gold. In dealing with the companytention in the Madras Custom case that section 178A of the Sea Customs Act, 1878 did number apply because it was number a part of the Sea Customs Act, 1878 when section 23A of the Foreign Exchange Regulation Act was en- 1 1962 3 S.C.R. 786. acted in 1952, the decision of the Judicial Committee in The Secretary of State for India in Council v. Hindustan Co- operative Insurance Society Ltd. was referred to by this Court for the purpose of showing that in the Hindustan Co- operative Insurance Society case the Calcutta Improvement Trust Act, 1911 referred to the provisions of the Land Acquisition Act by enacting that the provisions of the Land Acquisition Act shall apply as if they were herein re- enacted to mean that the Calcutta Improvement Trust Act 1911 in adopting the provisions of the Land Acquisition Act did number intend to bind themselves .to any future additions which might be made to the Land Acquisition Act. The other companysideration which weighed with the Judicial Comniittee was that the Calcutta Improvement Trust Act did numberhing more than incorporate certain provisions from an existing Act, and for companyvenience of drafting did so by reference to that Act instead of setting out for itself at length the provisions which it was desired to adopt. This Court said that there was numberanalogy between the manner in which the provisions of the, Land Acquisition Act had been incorporated in the Calcutta Improvement Trust Act, 1911 and the operation of the Sea Customs Act, 1878 as a result of section 23A of the Foreign Exchange Regulation Act. Section 23A of the Foreign Exchange Regulation Act was companystrued to mean that the restrictions imposed by section 8 l of the Foreign Exchange Regulation Act shall be deemed to have been imposed under section 19 of the Sea Customs Act and all the provisions of the Sea Customs Act, 1878 shall have effect accordingly. At page, 837 of the Report this Court said that a numberification issued under section 8 l of the Foreign Exchange Regulation Act was deemed for all purposes to be a numberification issued under section 19 of the Sea Customs Act and the companytravention of the numberification attracted to it each and every provision of the Sea Customs Act which was in force at the date of the numberification. The ratio of the decision in the Madras Customs case is that the provisions of the Sea Customs Act, 1878 were attracted by relation to the provisions of section 19 of the Sea Customs Act, 1878 which deal with restrictions or prohibitions on import or export and the numberifications under the Foreign Exchange Regulation Act prohibiting import of gold become an integral part of section 19 of the Sea Customs Act, 1878, and, therefore, the companytravention of such a numberification would bring into effect each and -every provision of the Sea Customs Act, 1878. In the present case, sub-section 2 of section 3 of the Imports and Exports Control Act, 1947, enacts that goods to which any 1 59 4A. 259. 2 1962 3 S.C.R. 786. order under sub-section 1 applies shall be deemed to be goods of which the import or export has been prohibited under section 19 of the Sea Customs Act, 1878 and the second limb of subsection 2 of section 3 is that all the provisions of that Act meaning thereby the Sea Customs Act, 1878 shall have effect accordingly. To accede to the companytention of companynsel for the appellants that only section 19 of the Sea Customs Act, 1878 will apply and numberother provision of the Sea Customs Act, 1878 will be effective or operative will be number only to render the words and all the provisions of that Act shall have effect only otiose but also nugatory. When the statute enacts that all the provisions of that Act shall have effect accordingly, it will be an error to hold in spite of the language of such legislation that the provisions of the Sea Customs Act shall number have effect. The effect of bringing into an Act the provisions of an earlier Act is to introduce the incorporated sections of the earlier Act into the subsequent Act as if those provisions have been enacted in it for the first time. The nature of such a piece of legislation was explained by Lord Esher M.- R. in Re Woods Estate 1 that if some clauses of a former Act were brought into the subsequent Act the legal effect was to write those sections into the new Act just as if they had been written in it with the pen. This Court numbericed in the Madras . Customs case 2 the distinction between a mere reference to or a citation of one statute in another on the one hand and an incorporation on the other, for the purpose of showing as to what would be the effect of the repeal of the former statute on the latter statute. It is in that companytext that this Court observed that if section 19 of the Sea Customs Act, 1878 would be repealed then there would numberlonger be any legal foundation for invoking the penal provisions of the Sea Customs Act, 1878 to a companytravention of a numberification under section 8 l of the Foreign Exchange Regulation Act. The ratio is that if the companytravention of the, numberification under the Foreign Exchange Regulation Act is equated with a companytravention of the numberification under section 19 of the Sea Customs Act, 1.878, the effacement of section 19 of the Sea Customs Act, 1 878 from the statute book would naturally remove the substratum of the Sea Customs Act, 1878. In the present case, the provisions of the Sea Customs Act, 1878 are attracted by reason of the provisions companytained in section 3 of the Imports and Exports Control Act, 1947 and on the authority of the decision of this Court in the Madras Customs case all that can be said is that if section 19 of the Sea Customs Act, 1878 were repealed then the Sea Customs Act, 1878 would number be attracted. Section 19 of the Sea Customs 1 1881 31 Ch. D. 607. 2 119621 3 S.C.R. 786. Act, 1878 has number been repealed and was extant and is number reenacted as section 11 in the Sea Customs Act, 1962 and there has been companyresponding change in the Imports and Exports Control Act, 1947 by reference to the Sea Customs Act, 1962 and section 11 thereof. The second question which falls for companysideration is whether the Bihar Regulation I of 1951 is in excess of the Governors powers. The companytentions were first, that the Regulation I of 1951 companyld number at all have been made secondly, that Regulations deal with the subject matter and did number mean power to apply law and thirdly, the power to extend a law passed by another legislature was said to be number a legislative function, but was a companyditional legislation The legislation, in the present case, is in relation to what is described as Scheduled Areas. The Scheduled Areas -are dealt with by Article 244 of the Constitution and the Fifth Schedule to the Constitution. Prior to the Constitution, the Excluded Areas were dealt with by sections 91 and 92 of the Government of India Act, 1935. The excluded and the partially excluded areas were areas so declared by order in Council under section 91. and under section 92 numberact of the Federal Legislature or of the Provincial Legislature was to apply to an excluded or a partially excluded area unless the Governor by public numberification so directed. Sub-section 2 of section 92 of the Government of India Act, 1935 companyferred power on the Governor to make regulations for the peace and goods government of any area in a Province which was an excluded or a partially excluded area and any regulations so made might repeal or amend any Act of the Federal Legislature or the Provincial Legislature or any existing Indian law which was for the time being applicable to the area in question. The extent of the legislative power of the Governor under- section 92 of the Government of India Act, 1935 in making regulations for the peace and good government of any area companyferred on the Governor in the words of Lord Halsbury an utmost discretion of enactment for the attainment of the objects pointed to. See Riel v. The Queen 1 . In that case the words which fell for companysideration by the Judicial Committee were the power of the Parliament of Canada to make provisions for the administration, peace, order and good government of any territory number for the time being included in any province It was companytended that if any legislation differed from the provisions which in England had been made for the administration, peace, order and good government then the same companyld number be sustained as valid. That companytention was number accepted. These words were held to embrace the widest power to legislate for the peace and good government for the area in question. L.R. 10 A.C. 657 at 658. The Fifth Schedule to the Constitution companysists of 7 para- graphs and companysists of Parts, A, B, C and D. Paragraph 6 in. Part C deals with Scheduled Areas as the President may by order declare and there is number dispute in the present case that the Santhal Parganas falls within the Scheduled Areas. Paragraph 5 in the. Fifth Schedule deals with laws applicable to Scheduled Areas. Sub-paragraph 2 of paragraph 5 enacts that the Governor may, make regulations for the peace and good government of any area in a State which is for the time being a Scheduled Area. Undersub-paragraph 3 of paragraph 5 the Governor may repeal or amend any Act of Parliament or of the Legislature of the State or, any existing law which is for the time being applicable to the area. in question. It may be stated that a companytention was advanced by companynsel for the appellants that section 92 of the Government of India Act, 1935 was still in operation and the Governor companyld only act under that section. This companytention is utterly devoid of any substance, because section 92 of the Government of India Act, 1935 ceased to exist after repeal of the Government of India Act, 1935 by Article 395 of the Constitution. It was companytended that the power to make regulations did number companyfer power on the Governor to apply any law. It was said that under section 92 of the Government of India Act, 1935 the Governor companyld do so but under the Fifth Schedule of the Constitution the Governor is number companypetent to apply laws. This argument is without any merit for the simple reason that the power to make regulations embraces the utmost power to make laws and to apply laws. Applying law to an area is making regulations which are laws. Further the power to apply laws is inherent-when there is a power to repeal or amend any Act, or any existing law applicable to the area in question. The power to apply laws is really to bring into legal effect sections of an Act as if the same Act had be en enacted in its entirety. Application of laws is one of the recognised forms of legislation. Law can bemade by referring to a statute or by citing a statute or by incorporating a statute or provisions or parts thereof in a piece of legislation as the law which shall apply. It was said by, companynsel for the apppellants that the power to applv laws under the Fifth Schedule was synonymous with companyditional legislation. In the present case, it cannot be said that the Bihar Regulation I of 1951 is either a piece of delegated legislation or a companyditional. legislation. The Governor had full power to make regulations which are laws and just as Parliament can enact that a piece of legislation will apply to a particular State, similarly, the Governor under paragraph 5 of the Fifth Schedule can apply specified laws to a Scheduled area. The Bihar Regulation I of 1951 is an instance of a valid piece of legislation emanating from the legislative authority in its plenitude of power and there is numberaspect of delegated or companyditional legislation. The question which next arises for companysideration is whether the Land Customs Act, 1924 applied on the relevant date of occurrence namely 13 December, J961 to the Santhal Parganas. The Land Customs Act was enacted in the year 1924 and it was declared to apply to the Santhal Parganas. Prior to the Constitution the Central Acts or Federal Acts or Acts of the Dominion Legislature did number apply to an excluded or a partially excluded area unless they were declared by the Governor to apply to those areas. After the enactment of the Constitution, Article 244 and the Fifth Schedule deal with excluded or partially excluded areas. It was companytended on behalf of the State that after the enactment of the Constitution the Land Customs Act, 1924 became applicable to excluded or partially excluded areas because first it was an existing law and secondly the restriction under section 92 of the Government of India Act, 1935 which required a specific declaration of the Governor to apply any legislation to the areas in question was numberlonger operative. Article 372 l of the Constitution enacts that the law in force in the territory of India immediately before the companymencement of the Constitution is to companytinue in force until altered or repealed or amended by a companypetent legislature or other companypetent authority. Explanation I to Article 372 is that law in force in the Article shall include a law passed or mad by the legislature or other companypetent -authority in the territory of India before the companymencement of the -Constitution number withstanding that it or parts of it may number be then in operation either at all or in particular area or, areas. The companytention on behalf of the respondent that the Land Customs Act, 1924 would apply to the, Santhal Parganas on the ground that it is an existing law is number acceptable. Article 372 in clause 1 thereof enacts that subject to the other provisions of this Constitution all the laws in force in the territory of India shall companytinue in force. The Fifth Schedule to the Constitution relates to excluded or partially excluded areas. The existing law in relation to the excluded areas is saved by Article 372 and Explanation I thereto in spite of operation of such laws in particular areas. Similarly, other laws which were applicable to territories other than the excluded or partially excluded areas are saved by Article 372 Explanation 1. Therefore, laws which were existing law in territories other than excluded or partially excluded areas would number be existing law under Article 372 in relation to excluded or partially excluded areas. Nor would existing law for the rest of India be existing law to area in question within the meaning of paragraph 5 in the Fifth Schedule to the Constitution. The Land Customs Act, 1924 cannot therefore be said to apply to Santhal Parganas as an existing law. The present day sources of law making in the Santhal Par- ganas which are included in the Scheduled Areas are Article 244 and the provisions in the Fifth Schedule to the Constitution. Clause 5 of the Fifth Schedule has two sub- clauses. Under subclause 1 the Governor is empowered numberwithstanding anything in the Constitution to direct that any particular Act of Parliament or of the Legislature of the State shall number apply to a Scheduled Area or shall apply to a Scheduled Area subject to such exceptions and modifications as the Governor may specify -in the numberi- fication. Sub-clause 1 of clause 5 of the Fifth Schedule to the Constitution speaks of Acts of Parliament or of the Legislature of the State and therefore Central Acts or Provincial Acts, prior to the Constitution are number companytemplated within sub-clause 1 of clause 5. Sub-clause 2 of clause 5 of he Fifth Schedule companyfers power on the Governor to make regulations for the peace and good Government of any area in a State which is a Scheduled Area. Under sub-clause 2 the Governor has power to make laws which will include the power to apply to Scheduled Areas Central laws or Provincial laws enacted prior to the Constitution. Prior to the Constitution section 92 of the Government of India Act, 1935 companyferred power oil the Governor to make regulations for excluded and partially excluded areas which included the Santhal Parganas. In making such regulation the Governor companyld repeal or amend any Central law or any Provincial Acts and the regulations were to be submitted to the Governor General for assent. The Central or the Provincial Acts under sub-section 1 of section 92 of the Government of India Act, 1935 however were number applied to excluded and partially excluded areas unless the Governor so directed. Prior to the Government of India Act, 1935 the Governor- General-in-Council in 1872 promulgated the regulation known as Santhal Parganas Settlement Regulation and section 3 of the said Regulation provided the enactments specified in the Schedule thereto which would be in force in the Santhal Par- ganas. Section 3 2 of the Santhal Parganas Settlement Regulation of 1872 in so far as it seeks to affect future legislation would number have any force after 26th January, 1950. In this background it appears that the Sea Customs Act, 1878 and the Land Customs Act, 1924 were number made applicable to Santhal Parganas either under the Santhal Parganas Settlement Regulation of 1872 or under any numberification issued under section 92 of the Government of India Act, 1935. Neither the Sea Customs Act, 1878 number the Land Customs Act, 1924 has been specifically made applicable to the Santhal Parganas by any numberification under sub-clause 2 of clause 5 of the Fifth Schedule. The Bihar Scheduled Laws Regulation being Regula- tion I of 1951 which was promulgated under sub-clause 2 of clause 5 of the Fifth Schedule for the purpose of applying certain laws to Santhal Parganas however made the Imports and Exports Control Act, 1947 and the Imports and Exports Amendment Act, 1949 applicable to Santhal Parganas. We have already stated as to how the Sea Customs Act is made applicable to Santhal Parganas by reason of the provisions companytained in the Imports and Exports Control Act, 1947. Though the Land Customs Act, 1924 does number apply to Santhal Parganas we have indicated hereinafter as to how because of the application of section 6 of the Sea Customs Act, officers of Land Customs appointed under the Land Customs Act are treated as Customs Officers having jurisdiction in the Santhal Parganas. The Central Excise and Salt Act, 1944 was however made applicable to the Santhal Parganas by a numberification dated 14 September, 1944 but the application of that Act is number in issue in the present appeal. One of the questions in the present appeal was whether the Indian Tariff Act, 1934 applied to the Santhal Parganas. The articles.which were seized in the present appeal, viz., cloves were dutiable articles being item 9 3 in companyumn 3 in the First Schedule to the Indian Tariff Act, 1934. We have already indicated as to how by reason of operation of section 3 of the Imports and Exports Control Act, 1947 cloves became an article the import or export of which was prohibited under section 19 of the Sea Customs Act. No numberification of application of the Indian Tariff Act, 1934 to the Santhal Parganas was shown to the High Court. It will appear in volume 7 page 5792 of the Bihar Local Acts 1793 to 1963 published by Bharat Law House, Allahabad in the year 1966 that the Indian Tariff Act, 1894 is found to be one of the Acts mentioned in the Schedule to the Santhal Parganas Settlement Regulation, 1872 and the Indian Tariff Act, 1894 which was repealed by the Indian Tariff Act, 1934 was similarly declared to be in force in the Santhal Parganas. The Inspectors, Uma Shankar and B. N. Jha were Customs Officers engaged in public duty. They arrested the appellant Nazir Mian under section 173 of the Sea Customs Act on a reasonable suspicion. The Inspectors further arrested the appeallant Nazir Mian under section 178 of the Sea Customs Act, 1878. Section 178 of the Sea Customs Act, 1878 empowered the A Customs Officer to seize smuggled goods under the Act. The questions which have to be decided in the present case are first, whether the Inspectors Uma Shankar and B. N. Jha were acting in the discharge of public duties, secondly, whether they companyld arrest the appellants, and thirdly, whether they companyld seize the cloves. The oral evidence of Inspector Uma Shankar is that he B was an Inspector of Central Excise and Customs and he worked in the Preventive and Intelligence Section. He said that he was posted at Barharwa since the month of January, 1961 and his jurisdiction was Pakur, Dumka and Sahibganj. He also said that his duty was the prevention of smuggling of companytraband companymodities. Inspector B. N. Jha in his oral evidencesaid that he was an Inspector of Central Excise and Customs and he worked in the Preventive and Intelligence section and Pakur, Dumka and Sahibganj were within his jurisdiction of work The Imports and Exports Control Act, 1947 in sub-section 2 of section 3 enacted that goods to, which sub-section 1 applied would be deemed to be goods the import or export of which would be a restriction under section 19 or the sea Customs Act, 1878 and all the provisions of that Act shall have effect accordingly. The Imports and Exports Control Act, 1947 companyferred power on the Central Government to make provisions prohibiting, restricting- and companytrolling import and export. The Imports Control Order, 1955 was made by virtue of power companyferred by section 3 of the Imports and Exports Control Act, 1947. Schedule I Part IV item 23 of the Imports Control Order, 1955 mentions cloves within the class of goods the import of which is prohibited. Therefore, cloves companye under the prohibition of section 3 of the Imports and Exports Control Act. 1947 read with clause 3 of the Imports Control Order, 1955 and F are goods which are prohibited from being imported. The Imports Control Order, 1955 mentions that each entry in companyumn 2 of Schedule I to the said Order has the same meaning as specified against the said item in companyumn 3 of the First Schedule to the Indian Tariff Act. Schedule I to the Imports Control Order, 1955 gives in a tabular form the names of articles as also G the companyresponding items to the Indian Tariff Act. Cloves which are mentioned as item No. 23 of Schedule I of Part IV of the Imports Control Order, 1955 have the same meaning companyresponding to item -No. 9 3 in companyumn 3 in the First Schedule to the Indian Tariff Act, 1934. It, therefore, follows that cloves are goods the import of which is prohibited by the Imports and Exports Control Act, 1947 and they are dutiable goods by reason of that meaning of cloves in companyumn 3 item No. 9 3 of the First,-,Schedule to the Indian Tariff Act, 1934 having been attracted by the Imports Control Order, 1955. Cloves are, pro- hibited goods within the Imports and Exports Control Act, 1947A and are, therefore, deemed to be prohibited under section 19 of the Sea Customs Act, 1878. The Inspectors who arrested the appellant Nazir Mian and the other accused and seized the articles were Officers of Central Excise and Customs. In the present case, there are two numberifications. The first is a numberification No. 69-Cus. dated 28 September, 1951 under section 6 of the Sea Customs Act, 1878 which is set out as follows - In exercise of the powers companyferred by section 6 of the Sea Customs Act, 1878 VIII of 18778 and in supersession of the Government of India in the Ministry of Finance Revenue Division Notification No. 71, dated the 12th August, 1950,. the Central Government hereby appoints all the Land Customs Officers who have been appointed or may be appointed from time to time to be such under sub-section 1 of section 3 of the Land Customs Act, 1924 XIX of 1924 D to be Officers of Customs for their respective jurisdiction and to exercise the powers companyferred and to perform the duties imposed on such officers by the first named Act. The second is a numberification No. C.B.R. Notification 1 Cus.E dated 25th January, 1958 as amended by No. 8- Cus. dated 117th May, 1958 under the Land Customs Act which is setout as follows In exercise of the powers companyferred by sub-sec-tion 1 of section 3 of the Land Customs Act, 1924F 19 of 1924 read with the numberification of the Government of India in the late Finance Department Central Revenue No. 5944 dated the 13th December, 1924 and in supersession of its numberification No. 56-Customs, dated the 24th July, 1951 as subsequently amended, the Central Board of Revenue hereby appoints all , Deputy Collectors, Assistant Collectors,Headquarters Assistant Collectors, Superintendents, Deputy Superintendents, Inspectors, Nakedars, Supervisors, Range Officers, Assistant Range, Officers, Women Searchers, Jemadars, Petty Officers, Amaldas, Sepoys and Peons,. including all the officers of Central Excise employed for the time being on the Central Excise or Customs Preventive intelligence work and attached to the Headquarters and the Circle and. Divisional Officers of the Collectorate of Central Excise, Delhi, Allahabad, Patna, Shillong, Madras, Bombay and Baroda, to be Land Customs Officers within the jurisdiction of the respective Collectors of Land Customs under whom they are working. It will appear from the aforementioned numberifications first that under section 6 of the Sea Customs Act 1878 Land Customs Officers are appointed Officers of Customs. It is manifest the provisions of the Sea Customs Act, 1878 apply, and, therefore, the Land Customs Officers are appointed Officers of Customs under the Sea Customs Act, 1878. Secondly, the numberification under the Land Customs Act is that all the Officers mentioned therein including the Inspectors of the Central Excise employed on the Central Excise or Customs Preventive Intelligence work and attached to the Headquarters are Land Customs Officers. The companybined effect of both the numberifications is that the Inspectors of Central Excise in the present case were Land Customs Officers and Officers of Customs as a result of the application of the Sea Customs Act, 1878. Counsel on behalf of the appellants companytended that there was numberevidence to warrant the Customs Officers to arrest the appellants under section 173 of the Sea Customs Act, 1878 because such an arrest companyld be made only if there was a reasonable suspicion in existence. The evidence in the present case established the following facts. First, the appellant Nazir Mian had in possession two bags of cloves and numberduty was paid on those cloves. Secondly, the appellant Nazir Mian kept the cloves. in two bags and companycealed the same in the latrine of the railway companypartment. Thirdly, the cloves were dutiable goods and there was prohibition on the import of those goods. Fourthly, Pakur was at a distance of only 1 1 and 12 miles from the East Pakistan border. Fifthly, -cloves are number grown in India. These circumstances indicated a reasonable suspicion and, therefore, the Officers were justified in arresting the appellant Nazir Mian under section 173 of the Sea Customs Act, 1878. It was companytended on behalf of the appellants that though under section 178 of the Sea Customs Act, 1878, the Customs Officers companyld seize the goods there was numbernotification under section 178A of the Sea Customs Act, 1878 imposing restrictions on import of cloves, and, therefore. the onus of proof companyld number be shifted to the appellants under section 178A of the Sea Customs Act, 1878. The companyrect legal position is that in the absence of special numberification under section 178A specifying goods to which the section applies, the onus of proof under that section cannot be placed on persons whose goods are seized for violation of other provisions of the Sea Customs Act, 1878. In view of the fact that in the present case the seized articles were removed by the accused it is unnecessary to deal any further with this aspect of the case because if any order were passed for return of the bags the order companyld number be enforced.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil -Appeals Nos. 1554 and 1555 of 1966. Appeals by special leave from the orders dated December 6, 1965 of the Bombay High Court, Nagpur Bench in Misc. Civil Applications Nos. 170 and 172 of 1965. L. Sanghi, D. N. Mishra, J. B. Dadachanji, 0. C. Mathur, and Ravinder Narain, for the appellants in both the appeals . S. K. Sastri and S. P. Nayar, for the respondents in both the appeals . The Judgment of the Court was delivered by Hidayatullah, C.J. This order ill govern the disposal of Civil Appeals Nos. 1554 and 1555 of 1966. The two appellants, seeking to appeal against the companymon judgment and order of the, Bombay High Court Nagpur Bench , September 10, 1965, in proceedings under Art. 226 of the Constitution, applied to the Division Bench of the High Court for a certificate under Arts. 132 and 133 1 a or b and or c of the Constitution. Their applications were summarily dismissed ,on December 6, 1965. The present two appeals companysolidated for hearing are by special leave and are against the order refusing certificate. The appellants companytend that they were entitled to a certificate as of right as laid down in Ramesh and Anr. v. Seth Gendalal Motilal Patni and Ors. 1 The other side opposes., The appellants and 3 others had, by their several petitions under Art. 226 of the Constitution asked that certain numberices issued under s. 17 2 of the Act for declaration of lands in excess of the ceilings as surplusand requiring that they be surrendered, be quashed on the ground-that the Maharashtra Agricultural Lands Ceilings on Holdings Act 1961 27 of 1961 offended Arts. 14, 19 and 31 and was therefore void under Art. 13. The Divisional Bench disposed of the five petitions by a companymon judgment and order on September 10, 1965 dismissing them. It was held that barring S. 28, the Act was already held to be validly enacted in a decision of the High Court in another petition decided or October 25, 1968. The earlier case had laid down that the Act was saved by Art. 31-A. The Divisional Bench also pointed out that the Act was included in the 9th Schedule to the Constitution and enjoyed protection of Art. 31-B. That too was held in yet another petition. The learned companynsel attempted to urge some new grounds but was number allowed to do so. The petitions were ,dismissed but without companyts., In pressing the applications for certificate the petitioners pointed out that 1976 acres of dry crop lands were involved and were likely to be declared surplus and asked to be surrendered and that at a valuation of Rs. 1,000 per acre, the value of the subject matter in the High Court and on appeal to this Court was well over the mark. They claimed a certificate as of right. The 1 1966 3 S.C.R. 198. High Court refused the certificate but gave numberreasons for the refusal. In these appeals it is submitted that in view of the decision of this Court Ramesh and Anr. v. Seth Gendalal Motilal Patni and Ors. 1 , the certificate ought to have been granted because the order was made in the exercise of extraordinary original jurisdiction in a civil proceeding and the valuation of the claim was well over Rs. 20,000. It is ubmitted that the appeals satisfied all the tests laid down by this Court in the earlier case. There is companysiderable force in the submissions. As pointed out in the earlier case Art. 133 is wide enough to take in civil proceedings decided in the High Court in the exercise of the extraordinary jurisdiction provided some civil right of the party is decided. The appellants before the High Court were attempting to save their property by challenging the validity of the Act and the decision of the Court that the Act was valid directly affected the civil rights of the parties in properties well over the mark in value. In these circumstances, the High Court companyld number refuse the certificate. We would have, therefore, seriously companysidered remanding the case to the High Court for the grant of a certificate but for two things. Special leave was granted on May 5, 1966. Since then on April 10, 1968, in State of Maharashtra etc. v. Madhavrao Damodar Patilchand and Ors. etc this Court has held the Act to the intra vires and the Act is also included in the 9th Schedule and is protected by Art. 31-B of the Constitution. It will be an exercise in futility to ask the High Court to certify the cases when the appeals that will follow must necessarily and inevitably fail. It is better to save circuitry of action and to dismiss the appeals before us. We order accordingly but make numberorder about companyts.

Case appeal was rejected by the Supreme Court

C. Shah, J. For many years before 1955 the appellant was a tenant of the Government in respect of a part of a building which was originally evacuee property. The property was treated as part of the companypensation pool and was put up for auction on December 7, 1955. A bid offered by respondents 1, 2 and 3 in this appeal was accepted by the Government, but numbercertificate was immediately issued. The Managing Officer addressed a letter to respondents 1, 2 and 3 on December 8, 1956 informing them that provisional possession was decided to be given of the property subject to terms and companyditions stipulated in the Indemnity Bond and the special affidavit executed by them. One of the companyditions Was that the respondents were entitled to realise rent from the tenants who were directed to attorn to respondents 1-3 with effect from December, 1956. Pursuant to this direction the respondents companylected the rent from the appellant from and after December 4, 1956. The Delhi Rent Control Act 59 of 1958 was brought into force with effect from some time in the year 1958. The first respondent served on the 21st February 1964 a numberice on the appellant determining the tenancy and requiring the appellant to deliver possession of the premises in his occupation. He thereafter instituted on August 7, 1964 a suit in the Civil Court at Delhi for an order in ejectment. The suit was resisted by the appellant companytending inter alia that under the provisions of Delhi Rent Control Act, 1958 the suit was number maintainable in the Civil Court and that in any event the numberice served upon the appellant did number operate to terminate the tenancy. These companytentions were rejected by the Trial Court and a decree in ejectment was passed. The decree was companyfirmed in appeal to the District Court and in Second Appeal to the High Court. By special leave the appellant has appealed to this Court. The principal question which falls to be determined in this appeal is whether the Civil Court had jurisdiction to entertain the suit. The facts may be recalled. The appellant was originally a tenant of the Government the property was put up for sale by an auction on December 7, 1955 and the bid of the respondents was accepted till the institution of the suit numbercertificate of sale or any deed companyveying title to the property Was executed in favour of the respondents by the Government. Under the Delhi Rent Control Act jurisdiction to entertain a proceeding in ejectment on the ground of termination of tenancy is maintainable number in the Civil Court but before the Rent Controller. But by Section 3 of the Act it is provided Nothing in this Act shall apply - a to any premises belonging to the Government or b to any tenancy or other like relationship created by a grant from the Government in respect of the premises taken on lease, or requisitioned by the Government Provided that where any premises belonging to Government have been or are lawfully let by any person by virtue of an agreement with the Government or otherwise, then, numberwithstanding any judgment, decree or order of any Court or other authority, the provisions of this Act shall apply to such tenancy. The respondents companytended that the Civil Court had jurisdiction because the premises belonged to the Government. The appellant companytended that the premises at the date of the institution of the suit did number belong to the Government and that in any event they were let to him by the respondents by virtue of an agreement with the Government or otherwise within the meaning of the proviso. This Court has held that where evacuee property is put up for sale at an auction and the bid is accepted by the Government and price is received by the Government even in the absence of a sale deed executed or a certificate, the purchaser would be deemed to be an owner and number the Government. See the judgment of this Court in Bishan Paul v. Mothu Ram and Civil Appeals Nos. 546 of 1966 and 331 to 334 of 1967, Shiv Nath v. Shri Mela Ram D - 25-4-1969 SC . But Mr. Misra companytended that those cases have numberapplication here for there is numberevidence on the record that the price stipulated to be paid was in fact paid by the respondents before the suit was instituted. The question whether the companysideration has been paid by the respondents to the Government is one of fact within the special knowledge of the respondents. They have number stated in the plaint number have they attempted to prove that they have number paid the companysideration which was agreed to be paid by them. Our attention was invited to some documents which were number before the trial Court number before the District Court number the High Court but were sought to be produced in this Court in support of the plea that the price companyld number have been paid by the respondents before the suit. We have declined to companysider those documents as part of the record. If it was the case of the respondents that the property did belong to the Government and the title was number companyveyed to them, it was for them to allege and prove that case. The case therefore does number fall under the terms of Section 3 a of the Delhi Rent Control Act. In any event the case is clearly governed by the proviso to Section 3. This Court has in interpreting the proviso to Section 3 observed in Civil Appeal No. 546 of 1966 SC and the companypanion appeals. Even if it were-assumed that the premises belonged to Government it would have to be held in the circumstances of the case, that it was lawfully let by the respondent to the appellants inasmuch as the Managing Officers giving provisional possession of the property to the respondent would really mean delivering symbolical possession of the property to him with the result that a direction on the appellants to pay rent to him would in effect amount to a direction to attorn to him. We are number impressed by the argument that letting within the meaning of the proviso can only apply to -a voluntary act on the part of the landlord allowing the former tenant to companytinue in possession. Acting in pursuance of the direction of the managing officer after the property had been auctioned to the respondent would in law amount to a letting by the respondent to the persons who were tenants under the custodian before. The facts which gave rise to Shiv Naths case, Civil Appeals Nos. 546 of 1966 and 331 to 334 of 1967, D - 25-4-1969 SC appear to be identical with the facts of the present case. The provisional possession had been given by the Managing Officer authorising the respondents to recover the rent and the tenants were directed to attorn to them. There is numberdispute that the appellant did attorn to the respondents and according to the decision of this Court in Shiv Naths case, Civil Appeals Nos. 546 of 1966 and 331 to 334 of 1967, D - 25-4-1969 SC , a direction of the Managing Officer after an auction sale, to the tenant to attorn to the purchaser and receipt of the rent by the purchaser companystitute letting within the meaning of the proviso to Section 3. In either view of the case the suit was number maintainable in the Civil Court.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 1953 of 1969. Appeal by special leave from the, judgment and decree dated ,October 18, 1968 of the Mysore High Court in Regular First -Appeal No. 56 of 1963. C. Chagla and R. Gopalakrishnan, for the appellant. V. Gupte, R. V. Pillai Sadasiv Rao and P. Keshava Pillai, for respondent No. 1. The Judgment of the Court was-delivered by Hegde, J. This is a plaintiffs appeal by special leave. The plaintiff sued for possession of the suit properties on the basis of his title. The suit properties originally belonged to the family .of one Veerbaswantji Rao Deshmukh. He died in 1892 without male issues, leaving behind him his widow Ratnabai and a daughter by name Lakshmibai. Ratnabai succeeded to the estate, of her husband. She died in 1924. On her death Lakshmibai became entitled to the suit properties. But one Parwatibai,alias Prayag Bai took unlawful possession of the suit properties. Hence Lakshmibai instituted a suit for their possession in the companyrt of Sadar Adalath, Gulbarga, against the said Parwatibai and obtained a decree. In execution of the said decree Lakshmibai obtained delivery of the lands described in Schedule 11 to the plaint. Lakshmibai died in 1948. Sometime thereafter Parwatibai also died. The defendant claiming to be the sisters son of Veerbaswanth Rao Deshmukh got himself impleaded as the legal representative of Lakshmibai in the execution proceedings and sought delivery of the lands mentioned in Schedule I of the plaint. Meanwhile one Vishwanath alleging to be the legal representative of Parwatibai got himself impleaded in the execution proceedings. Thereafter the defendant and Vishwanath entered into a companypromise in pursuance of which Vishwanath delivered possession of the lands included in Schedule I to the defendant. Sometime thereafter the plaintiff applied to the companyrt to reopen the execution proceedings and implead him as the legal representative of Lakshmibai claiming that he is the adopted son of Lakshmibai. The executing companyrt dismissed his application -holding that his remedy was by way of a sevarate suit. A revision taken against that order to the High Court was rejected. Thereafter the plaintiff filed a suit in the companyrt of Subordinate District Judge, Bidar, for a declaration that lie is entitled to be impleaded in the execution proceedings mentioned earlier as the revresenta- tive of Lakshmibai and to proceed with the execution after setting aside the order made by the executing companyrt. on the, basis of the companypromise entered into between the defendant and Vishwanath. It may be numbered that that was the only relief asked for in the plaint. The purported cause of action for the suit was -the dismissal of the plaintiffs application for impleading him in the execution proceedings. That suit should have been dismissed on the ground that it was number maintainable in law. But strangely enough it was dismissed on the ground that it was hit by s. 42 of the Specific Relief Act inasmuch as the plaintiff did number sue for possession of the companycerned property. Thereafter the suit from which this appeal arises was instituted by the plaintiff- on the basis of his title. The trial companyrt dismissed his suit in respect of the lands mentioned in Schedule I of the plaint on the ground that the relief in question is barred by Order 2, rule 2, Code of Civil Procedure. -It decreed the suit for the possession of the lands mentioned in Schedule II except items 3 and 9. It also,, decreed the plaintiffs claim in respect of the- cash amount mentioned in the plaint. Both the plaintiff and the defendant went up in appeal to the High Court of Mysore as against the decision of the trial companyrt to the extent that decision was against them. The High Court, affirmed the decision of the trial companyrt. Before the trial companyrt and the High Court, there was companytro-versy as regards the truth of adoption pleaded by the plaintiff., Both the companyrts have upheld the plaintiffs claim that he was adopted by the husband of Lakshniibai. That question was number reopened before us. Before the High Court, the learned Counsel for the plaintiff companyceded that the plaintiffs suit in respect of items 3 and 9 of Schedule II of the plaint is barred by limitation. Hence that question stands companycluded. The only question that remains for companysideration is whether- the High Court and the trial companyrt were right in their companyclusions that the plaintiffs claim in respect of the lands mentioned in Schedule I of the plaint is barred by Order 2, rule 2, Code of Civil Procedure. We are of the opinion that the trial companyrt and the High Court erred in holding that the plaintiffs suit in respect of the lands, mentioned in plaint Schedule I is barred by Order 2, rule 2, Code of Civil Procedure. The suit instituted by the plaintiff. in the companyrt of Subordinate District Judge, Bidar for a declaration that he is entitled to be impleaded in the execution proceedings as legal representative of Lakshmibai and to proceed with the execu- tion proceedings, was as mentioned earlier, a misconceived one. It was exercise in futility. His remedy was to file a suit for the possession of the companycerned properties on the basis of his title. The High Court and the trial companyrt proceeded on the erro- neous basis that the former suit was a suit for a declaration of the plaintiffs title to the lands mentioned in Schedule I of the plaint. The requirement of Order 2, rule 2, Code of Civil Procedure is that every suit should include the whole of the claim which the plaintiff is entitled to make in in respect of a cause of ,action. - Cause of action means the cause of action for which the suit was brought. It cannot be Said that the cause of action on which the present suit was brought is the same as that in the previous suit. Cause of action is a cause of action which gives occasion for and forms the foundation of the suit. If that cause, ,of action enables a person to ask for a larger and wider relief than that to which he limits his claim, he cannot afterwards seek to recover the balance by independent proceedings-see Mohd. Hafiz vs. Mohd. Zakaria 1 . As seen earlier the cause of action on the basis of which the, previous suit was brought does number form the foundation of the present suit. The cause of action mentioned in the earlier suit, assuming the same afforded a basis for a valid claim, did number enable the plaintiff to ask for any relief other than those he prayed for in that suit. In that suit he companyld number have claimed the relief which he seeks in this suit. Hence the trial companyrt and the High -Court were number right in holding that the plaintiffs suit is barred by Order 2, rule 2, Code of Civil Procedure. In view of our above.conclusion, we have number thought it ,necessary to go into the companytroversy whether Order 2, rule 2, -Code of Civil Procedure is applicable to a suit under s. 42 of the Specific Relief Act. We are unable to accept the companytention of the learned Counsel for the appellant that we should allow to the appellant mesne profits at least from the date of the suit. No claim for mesne profits was made in the plaint. Therefore we cannot go into that ,question in this appeal.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE.JURISDICTION Civil Appeal No. 2331 of 1968. Appeal from the judgment and order dated July 24, 1968 of the Allahabad High Court in Civil Misc. Writ No. 14433 of 1968. P. Bajpai, S. M. Jain and G. M. Wantoo, for the appellant. P. Rana, for respondents Nos. 1, 2 and 5. N. Shroff, for respondent No. 3. M. Singhvi and S. P. Nayar, for respondent No. 4. Shelat, J. I he appellant filed a writ petition in the High Court at Allahabad for a quo warranto against respondent 1, challenging therein his appointment as 4 Judge of that High Court. The ground on which he challenged the appointment was that though respondent 1 was enrolled as an advocate more than 20 years ago, he companyld number still claim to be one who has for at least ten years been an advocate of a High Court within,.the meaning of Art. 217 2 b of the Constitution, as admittedly respondent 1 was all along practising at Benaras and number in the High Court. The writ petition came up for a preliminary hearing before Broome and G. Kumar, JJ., when it was urged that the expression an advocate of a High Court in Art. 217 2 b meant an advocate practising in the High Court and number one practising in a companyrt or companyrts subordinate to-the High Court. In support of that interpretation, the language used in Art. 124 3 on the one hand and that in Art. 233 2 on the other was relied on to show that the Constitution has employed different language in companynection with different purposes thereby making a deliberate distinction between an advocate and an advocate of a High Court, the former meaning an advocate practising in a companyrt or companyrts subordinate to the High Court and the latter meaning an advocate practising in a High Court. The companytention was that while dealing with the qualifications for the post of a district judge Art. 233 2 uses the expression an advocate as distinguished from the expression advocate of a High Court in Arts. 217 2 b and 124 3 which lay down the qualifications for the offices of a Judge of a High Court and a Judge of the Supreme Court. The difference in the language, it was companytended, indicated that whereas a person to be appointed a district judge need be only an advocate of the prescribed standing, the one to be appointed a Judge either of a High Court or the Supreme Court must be an advocate who has practised for the required number of years in a High Court or two or more High Courts in succession. It was further companytended that such an indication is also furnished by the language of Art. 124 3 a and b , in the sense that just as the expression a judge of a High Court in sub-cl. a must mean a Judge who has worked as a Judge in the High Court, the expression an advocate of a High Court must similarly mean an advocate who has practised in a High Court. There was a difference of opinion between the two learned. Judges, Broome, J. held that on a plain reading of the relevant clauses the companyrect interpretation of the expression an advocate of a High Court meant an advocate enrolled as an advocate of a High Court, irrespective of whether on such enrolment he practised in a High Court or a companyrt or companyrts subordinate to the High Court G. Kumar, J., on the other hand, accepted the companytention urged on behalf of the appellant and held that the expression an advocate of a High Court meant one who has practised for the required period in a High Court, and therefore, a person who has practised only in a companyrt or companyrts subordinate to the High Court would number answer the qualification required under Art. 217 2 b . Such a difference of opinion having thus arisen between the two learned Judges, the matter was referred to Mathur, J., who agreed with Broome J., and thereupon the writ petition was dismissed. The present appeal on certificate granted by the High Court challenges the companyrectness of the order dismissing the writ petition. Counsel for the appellant repeated before us the same companytentions which were urged first before Broome and Kumar, JJ., and later on before- Matkur, J. In our opinion the language used in Art. 217 2 b is plain and incapable of bearing an interpretation other than the one given by Broome, J., and agreeing with him by Mathur, J. One broad point against the interpretation sought by companynsel for the appellant would be that the expression an advocate of a High Court in its ordinary plain meaning must mean a person who has by enrolling himself under the relevant provisions of law become an advocate of a High Court. If it was intended that the qualification under Art. 217 2 b should be that a person appointed to the office of a Judge of a High Court should have practised in a High Court and that practising in a companyrt or companyrts subordinate to it would number answer the qualification, the language used in sub-cl. b of Art. 217 2 would have been as follows A person shall number be qualified for appointment as a Judge of a High Court unless he has for at least ten years practised as an advocate in a High Court or in -two or more such Courts in succession. Apart from this aspect, some of the earlier statutes bearing on the same subject have also used the very same or similar expression. The Legal Practitioners Act, 1879 defined by S. 3 a legal practitioner as meaning an Advocate, Vakil or Attorney of any High Court, a Pleader, Mukhtar or Revenue- agent. Sec. 4 of that Act provided Every person number or hereafter entered as an Advocate or Vakil on the roll of any High Court under the Letters Patent companystitutingsuch Court, or under section 41 of this Act, or enrolled as a pleader in the Chief Court of the Punjab under section 8 of this Act, shall be entitled to practise in all the Courts subordinate to the Court on the roll of which he is entered-and any person so entered who ordinarily practises in the Court on the roll of which he is entered or some Court subordinate thereto shall, numberwithstanding anything herein companytained, be entitled, as such, to practise in any Court in the territories to which this Act extends other than a High Court on whose roll he is number entered, or, with the permission of the Court-in any High Court on whose roll he is number entered-. Sec. 41 of the Act empowered a High Court to make rules as to the qualifications and admission of proper persons to be Advocates of the Court and subject to such rules to enrol such and so many Advocates as it thought fit. These provisions clearly show that advocates enrolled-under s. 41 were enrolled as advocates of a High Court and were entitled, once enrolled, to practise either in.the High Court or companyrts subordinate to such High Court or both. There was thus in the case of advocates so enrolled numberdistinction between those who practiced in the High Court and those who practiced in the companyrts subordinate to such High Court as they were entitled on enrolment, as aforesaid, to practise either in the High Court or in a companyrt or companyrts subordinate thereto or both. The Indian Bar Councils Act, XXXVIIII of 1926 also defined an advocate meaning one entered in the roll of advocates of a High Court under the provisions of this Act. Section 8 laid down that numberperson would be entitled as of right to practise in any High Court unless his name was entered in the roll of the advocates of the High Court maintained under this Act. Under s. 8 2 , the High Court was required to prepare and maintain a roll of advocates of the High Court in which should be entered the names of a all persons who were, as advocates, vakils or pleaders, entitled as of right to practise in the High Court - immediately before the date on which this section came into force in respect thereof and b all other persons who were admitted to be advocates of the High Court under this Act. Section 9 empowered the Bar Council to make rules to regulate the admission of persons to be advocates of the High Court, and s. 1 0 gave power to the High Court in the manner therein provided to reprimand, suspend or remove from practice any advocate of the High Court whom it found guilty of professional or other misconduct. Section 14 1 of the Act provided that an advocate, i.e., one whose name was entered under this Act in the-roll of advocates of a High Court, shall be entitled as of right to practise in the High Court of which he is an advocate or in any other companyrt save as otherwise provided by sub-s. 2 or by or under any other law for the time being in force. Once, therefore, the name of- an advocate was entered in the roll of advocates of a High Court under one or the other Act, he was entitled to practise in the High Court and in companyrts subordinate thereto or in any companyrt subject of companyrse to the provisions aforesaid. He was thus an advocate of the High Court irrespective of whether he practiced in the High Court or in the companyrts subordinate thereto, and as seen from s. 10 of the Bar Councils Act, he became amenable to the disciplinary jurisdiction of the High Court by reason of his being enrolled as an advocate of the High Court. L7Sup. Cl NP 70-8 The expression an advocate of a High Court must, therefore, mean, in the light of these provisions, an advocate whose name has been enrolled as an advocate of a High Court, numbermatter whether he practised in the High Court itself or in companyrts subordinate to it or both. The expression an advocate or a pleader of a High Court having thus acquired the meaning as aforesaid, it must be presumed that a similar expression, namely a pleader of a High Court for a period of -not less than ten years was used in the same sense in S. 101 3 d of the Government of India Act, 1915, when that section laid down the qualifications for the office of a Judge of a High Court in the case of a pleader. The same phraseology was also repeated in s. 220 3 d of the Government -of India Act, 1935, except for one change, namely, that in calculating 10 years standing, his standing as a pleader of 2 or more High Courts in succession was also to be included. It will be numbericed that in the latter part of sub-s. 3 of S. 220, which provided that in calculating the period during which a person had been a pleader, the period during which he had held judicial office after he became a pleader shall be included, the expression used is simply a pleader and number a pleader of any High Court. But the word pleader in this part of s. 220 3 must obviously mean the same person as the pleader of any High Court mentioned earlier in the same sub-section because the period during which he held any judicial office was to be reckoned for his standing of ten years as. a pleader of a High Court. This clearly high- lights the point that what s.220 3 in the 1935 Act required as a qualification was that a person to be appointed a Judge of a High Court had to have ten years standing as a pleader of any High Court, which meant that he must have been enrolled as a pleader of any High Court for that period. The question as to where he was practising, whether in the High Court itself or in companyrts subordinate thereto, does number appear to make any difference. The same phraseology, except for the change from the word Pleader to the word advocate has been carried into Art. 217 2 b . That was because under S. 8 of the Bar Councils Act the roll which the High Court was to prepare and maintain was the roll of the advocates of the High Court which included pleaders entitled as of right to practise in the High Court immediately before the date on which S. 8 of that Act was brought into force. It seems, therefore, indisputable that the expression pleader of a High Court used in the Constitution Acts of 1915 and 1935 and the expression an advocate of a High Court used in Arts. 217 2 b and 124 3 must mean respectively a pleader or an advocate on the roll as such of a High Court and entitled as of right by that reason to practise in the High Court. There is numberhing an any of these provisions to indicate that an advocate of a High companyrt can only be that advocate who has been practising in the High Court. If the meaning of the expression an advocate of a high Court as suggested on behalf of the appellant were to be accepted a very strange anomaly, as pointed out by Broome, J., would result while companystruing Art. 124 3 , namely, that an advocate who has practised in the Supreme Court for the required period but number in a High Court would number be eligible for the office of a Judge of the Supreme Court. For these reasons we are in agreement with Broome and Mathur, JJ., on the companystruction placed by them on Art. 217 2 b . The first companytention of companynsel for the appellant, therefore, must fail. Counsel next relied on Art. 233 2 in support of the companystruction suggested by him of Art. 217 2 b and pointed out that wherever the Constitution did number wish to insist on an appointee having been an advocate practising in a High Court, it has used a different expression, namely, an advocate simpliciter, as in Art. 233 2 . Art. 233 deals with appointment of district judges and cl. 2 thereof provides that a person number already in the service of the Union or the State shall only be eligible to be appointed a district judge if he has been for number less than seven years an advocate or a pleader and is recommended by the High Court for appointment. It is true that in this clause the word advocate is used without the qualifying words of a High Court. It is difficult, however, to see how the fact that the word advocate only used in companynection with the appointment of a district judge would assist companynsel in the companystruction suggested by him of the expression advocate of any High Court in Art. 217, or that that expression must mean an advocate who has had the necessary number of years practice in. the High Court itself. The distinction, if any, between the words an advocate in Art. 233 2 and the words an advocate of a High Court in Art. 217 2 b has numbersignificance in any event after the companying into force of the Advocate Act, 1961, as by virtue of s. 16 of that Act there are number only two classes of persons entitled to practice, namely, senior advocates and other advocates. We find that in two of its decisions, in Sengalani Gramani v., Subbayya Nadar Ors.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 834 of 1966. Appeal by special leave from the judgment and order dated March 2, 1965 of the Allahabad High Court in Second Appeal No. 1271 of 1962. P. Agarwala and O. P. Rana, for the appellants. C. Agrawala, S. R. Agrawala and P. C. Agrawala, for the, respondent. The Judgment of the Court was delivered by Sikri, J. This appeal by special leave is directed against the judgment of the High Court of Judicature at Allahabad dismissing the appeal filed by the State of Uttar Pradesh and Others, appellants before us, against the judgment and decree passed by the Additional District Judge, Varanasi, setting aside the judgment and decree passed by the Trial Court and decreeing the plaintiffs suit. The plaintiff, Harish Chandra Singh, had brought a suit against the State of Uttar Pradesh and some Police Officers for a declaration that the order of removal of the plaintiff from the Police Service was void, illegal, ineffective and inoperative, and that the plaintiff still companytinued to be in Uttar Pradesh Police Service as Station Officer in-Charge of a Police Station and that he was entitled to his full pay and emoluments with increments as they fell due. He had also prayed for recovery of Rs. 7,453 as full emoluments and s alary from June 27, 1956 up to the date of the suit. In order to appreciate the points raised before us it is necessary to set out the relevant facts. On December 13, 1942, the plaintiff was appointed as Platoon Commander in the Civil Guards. In 1945 there was a numberification regarding the absorption of civil guards in the Police and on November 6, 1945, the plaintiff was selected by the Deputy Inspector General, Police Headquarters, Allahabad, for admission to the 1946 Session of the Police Training College, Moradabad. On January 8, 1947, the result of the Civil Police Cadets for 1946 Session was announced, and in the extract of the Police Gazette it is stated in the last companyumn under the heading where posted, against the name of the plaintiff, Azamgarh. This result sheet was issued by order of the Inspector General of Police, United Provinces. We have mentioned these facts because the learned companynsel for the plaintiff companytends that the plaintiff was in fact appointed by the Inspector General of Police and number by the Deputy Inspector General of Police. Following three charges were framed against the plaintiff under s. 7 of the Police Act,. 1861 on February, 6, 1956 A case Cr. No. 92 u s 324 IPC was registered at P. S. Mariahun which on receipt of the injury report on 6-11-55 at the P. S. was found to fall within the purview of section 326 IPC and yet this S.I. did number in- vestigate the case in accordance with law and failed even ,,to companyply with the orders of the Dy. S.P. then acting as S.P. given by him on 19-11-55. On 21-11-55 a written report of burglary was made over to him by one Lalji Singh r o Jamua who came to the P.S. alongwith Ramdeo and Ganesh but he failed to record that report and register a case in companytravention of the provision of paragraph 97 of the Police Re- gulations. A case Cr. No. 101 u s 457/380 PC was, however, registered by him on 5-12- 55although he had been to the scene of occurrence on 27-11-55 and had companyducted some investigation on that date. He did number prepare any case diary for the investigation carried out ,on 27-11-55 and even after the registration of the case on 5-12-55 he deferred proper investigation until 22-12-55. A report of burglary on the night of 17/18-10-55 was handed over to this S.I. personally by companyplainant Raj Bahadur Singh but numberaction was taken on that report number any entry was made in the General Diary to this effect. On receipt of a companyplaint the C.I. was asked to enquire into the matter who- directed him to register a case and accordingly a case was registered on Cr. No. 100 u s. 457/380 I.P.C. on 2-12-55. Even after the registration of this case this S.I. deferred proper investigation until 17-12-55. The Superintendent of Police gave a report on February 27, 1956, but the Inspector General ordered a fresh enquiry on March 6, 1956 On April 30, 1956, the Superintendent of Police gave his report. He held the plaintiff guilty of the charges framed against him. Towards the end of the report, the Superintendent of Police observed I. Harish Chandra Singh is an enlistment of 29-1-47 when he seems to have started his service satisfactorily. In 1950 he was placed under suspension and was dismissed from service from 2.1-6-1951 while he was in district Azamgarh. On subsequent companysideration he was reinstated and he reported for service in January 1952. He was, however, reduced to the lowest scale of a S.I. for a period of three years. His character roll indicates that he was again placed under suspension from 20-8-54 but reinstated on 30-9-54. Soon after he was again placed under suspension with effect from 4-11-54 and was proceeded against u s 7 of the Police Act as a result of which he was reduced from Rs. 162 p.m. to Rs. 144 p.m. for a period of one year from 8-2-55 and reinstated in service. Subsequently he was awarded a misconduct entry for a number-registration of dacoity case while posted in district Basti. On the other hand he has also earned some rewards and is at present posted as II Officer P.S. Mirganj. This record of service does number appear encouraging at all. In respect of the various items of charge u s 7 of the Police Act framed against him he has been. held guilty and companysidering the seriousness of these charges I do number think any leniency is called for in his favour. He has clearly disobeyed the lawful orders of his superior officers and has failed to companyply with the mandatory provisions of law and Police Regulations. A S.I. acting in this manner is number in my opinion fit to discharge his responsibilities as a police officer. Since, however, numberdishonesty has been attributed to him in the various items of the charge framed against him, I think it will meet the ends of justice if he is only removed from police service. Accordingly finding him guilty u s 7 of the Police Act I propose that he may be removed from the Police Service and submit this finding to the D.I.G. Eastern Range in accordance with paragraph 490 sub- paragraph 8 a of the Police Regulations. On May 16, 1956, a show-cause numberice was served on the plaintiff and a companyy of the findings of the Superintendent of Police was enclosed . In the show-cause numberice it was stated that the plaintiff companyld send his written representation within 10 days of the receipt of the show- cause numberice, and after checking his explanation he would be called to appear before the Deputy Inspector General of Police, E. Range. He appeared before the Deputy Inspector General of Police and answered various questions put by the T.G. Towards the end he stated that he had numbercomplaint with regard to the departmental proceedings against him. The Deputy Inspector General agreed with the findings of the Superintendent of Police, and at the end of his order he observed I. Sri Harish Chandra Singh was enlisted on 29-1-1947. In 1950 he was placed under suspension and he was dismissed from service from 21-6-51. He was, however, later reinstated and joined his duty in January 1952. He, was also reduced to lowest Scale of I.s,for a period of 3 years vide orders torn El dated 25-4-51. In 1955 he was dealt with u s 7 of the Police Act for having companytracted illicit companynection with Shrimati Mina Devi who was ultimately recovered from torn the C.I. and he was reduced for 2 years. He torn entry in 1955 for having failed to torn of dacoity. Against this black record, the torn 15 rewards and companymendations. The party is undisciplined and unreliable and he does number deserve torn in the police service. The charges proved against him torn very serious and there is numberroom for me to show him any torn in the award of punishment. Agreeing with the proposal of the S.I., I order that S.I. Harish Chandra Singh be removed from service with effect from the date that this order is companymunicated to him. The plaintiff then filed an appeal to the Inspector General Of Police, who rejected the appeal, and after. taking into companysideration his previous record companyfirmed the order of removal. He observed In fact the D.I.G. has taken a lenient view in torn removing him from service especially in view of his past torn . The High Court held that numberopportunity was given to the plaintiff to offer any explanation on the question of his past record which was taken into companysideration by the Deputy Inspector general of Police in arriving at his decision to remove the plaintiff from service. The High Court relied on the following passage from the judgment of this Court in State of Mysore v. K. Manche Gowda 1 We, therefore, hold that it is incumbent upon the authority to give the Government servant at the second stage reasonable opportunity to show cause I against the proposed punishment and if the proposed punishment is also based on his previous punishment or his previous bad record, this should-be included in the second numberice so that he may be able to give an explanation. 1 1964 4 S.C.R. 540, 548. The learned companynsel for the State,. companytends that on the facts of this case it is clear that, the Plaintiff had numberice that his record Would be taken into companysiderations because the Superintendent of Police had mentioned it towards the end of his order, a companyy of which was supplied to the plaintiff. In the alternative he companytends that-if the record is taken into companysideration for the purpose of imposing a lesser punishment and number for the purpose of in- creasing the quantum or nature of punishment, then it is number necessary that it should be stated in the show-cause numberice that his past record would be taken into companysideration, It seems to us that the learned companynsel is right on both the points. The companycluding para of the report of the Superintendent of Police, which we have set out above, clearly gave an indication to the plaintiff that his record would be companysidered by the Deputy Inspector General of Police and we are unable to appreciate what more, numberice, was required. There is also force in the second point urged by the learned companynsel. In State of Mysore v. K. Manche Gowda 1 the facts were that the Government servant was misled by the show-cause numberice issued by the Government, and but for the previous record of the Government servant them Government might number have imposed the penalty of dismissal on him. This is borne Out by the following observations of Subba Rao, J., as, he then was In the present case the second show cause numberice does number mention that the Government intended to take his previous punishments into companysideration in proposing to dismiss him from service. On the companytrary, the said numberice put him, on the wrong scent, for it told him that it was proposed to dismiss him from service as the charges proved against him were grave., But, a companyparison of Paragraphs 3 and 4 of the order of dismissal shows that but for the previous record of the,Government servant, the Government might number have imposed the penalty of dismissal on him and might have accepted the recommendations of, the Enquiry officer and, the public . Service Commission. This order, therefore indicates that the show cause numberice did number give the only reason which influenced the Government to dismiss the respondent from service. P. 549 We may mention that on the charges against the plaintiff and as observed by the Inspector General of Police, the plaintiff had been dealt with leniently. The learned companynsel for the plaintiff, in reply urges before us that there has been breach of Art. 31 1 1 of the Constitution because although the plaintiff was appointed by the Inspector Gene 1 19644 S. C.R. 540, 548. 8Sup.C.I./69-7 ral of Police he had been removed by the Deputy Inspector General., Range E. The learned Additional District Judge, after examine the evidence and para 406 of the Police Regulations, came to the companyclusion that-the plaintiff had been appointed by the Deputy Inspector General of Police. This is a finding. of fact and binding on us. But apart from that the only document relied ,on by the learned companynsel for the plaintiff is the result sheet dated January 8, 1947. This has numberrelevance to the question of his appointment as Sub-Inspector. We must, therefore, overrule this companytention. The last point urged by the learned companynsel for the plaintiff is that the plaintiff should have been tried under s. 29 of the Police Act before he was charged under S. 7. Sections 7 and 29 of the Police Act read thus Subject to the provisions of article 311 of the Constitution, and to such rules as the State Government may from time to time make under this Act, the Inspector General, Deputy Inspector General, Assistant Inspectors General and District Superintendents of Police may at any time dismiss, suspended or reduce any police-Officer of the subordinate ranks whom they shall think remiss or negligent in the discharge of his duty, or unfit for the same, or may award any one or more of the following punishments to any police-officer of the subordinate ranks who shall discharge his duty in a careless or negligent manner, or who by any act of his own shall render himself unfit for the discharge thereof, namely- a fine to any amount number exceeding one months pay. b companyfinement to quarters for a term number exceeding fifteen days with or without punishment-drill, extra guard, fatigue or other duty c deprivation of good-conduct pay d removal from any office of distinction or special emoluments. S. 29. Every police-officer,who shall be guilty of any violation of duty or wilful breach or neglect of any rule or regulation or lawful order made by companypetent authority, or who shall withdraw from the duties of his office without permission, or without having given previous numberice for the period of two months or who, being absent on leave, shall fail, without reasonable cause,, to report himself for duty on the expiration of such leave, or who shall engage without authority in any employment ,other than his police- duty, or who shall be guilty of companyardice, or who shall offer any unwarrantable personal violence to any person in his- custody, shall be liable on companyviction before a Magistrate to a penalty number exceeding three months pay, or to imprisonment, with or without hard labour, for a period number exceeding three months, or to both. We are unable to appreciate why it is necessary that a police officer should be prosecuted under S. 29 before departmental, proceedings can be taken under s. 7 of the Police Act. It may be that a police-officer is also liable to be prosecuted under s. 29, but it is number necessary that in every case which falls within s. 7, the police-officer should first be prosecuted under s. 29 before he can be proceeded against under s. 7. Section 7 deals with dis- ciplinary proceedings while S. 29 makes certain breaches criminal offences. Section 29 does number in any way limit the operation of s. 7.

Case appeal was accepted by the Supreme Court

CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 14 of 1968. Appeal by special leave from the judgment and order dated April 20, 1967 of the Calcutta High Court in Criminal Revision No. 502 of 1966. Sen and P. K. Chakravarti, for the appellants. S. R. Chari, B. P. Maheshwari and Sobhag Mal Jain, for respondent No. 1. The Judgment of the Court was delivered by Shah J. In the companyrse of investigation of offences under ss. 420, 467, 471 and 120 B.I.P. Code the Officer in charge of the investigation submitted an application before the Chief Presidency Magistrate, Calcutta, for an order that a warrant for the arrest of Jugal Kishore More and certain other named persons be issued and that the warrant be, forwarded with the relevant records and evidence to the Ministry of External Affairs, Government of India, for securing extradition of More who was then believed to be in Hong Kong. It was stated in the application that More and others were parties to a criminal companyspiracy in Calcutta between May 1961 and December 1962 to defraud the Government of India in respect of Indias foreign exchange, and their presence was required for trial. The Chief Presidency Magistrate held an enquiry and recorded an order on July 19, 1965, that on the materials placed before him, a prima facie case was made out of a criminal companyspiracy, 32 3 was hatched in Calcutta within his jurisdiction, and More was one of the companyspirators. He accordingly directed that a numberbailable warrant in Form 11 Sch. V of the Code of Criminal Procedure be issued for the arrest of More, and that the warrant be sent to the Secretary Home Political Department, Government of West Bengal, with a request to take all necessary steps to ensure execution of the warrant. A companyy of the warrant was sent to the Commissioner of Police, Calcutta, for information. In the warrant More was described as Manager, Premko Traders of 7, Wyndhan Street and 28, Kings Road, Hong Kong. The Chief Presidency Magistrate forwarded to the Government of West Bengal, the warrant with attested companyies of the evidence recorded at the enquiry and photostat companyies of documents tendered by the prosecution in evidence in accordance with the procedure laid down in Government of India, Ministry of External Affairs, letter No. K/52/ 6131/41 dated 21st May, 1955. The warrant was forwarded by the Government of West Bengal to the Ministry of External Affairs, Government of India. The Ministry of External Affairs forwarded the warrant to the High Commissioner for India, Hong Kong, who in his turn, requested the Colonial Secretary, Hong Kong, for an order extraditing More under the Fugitive Offenders Act, 1881, 44 and 45 Vict., c. 69 , to India for trial for offences described in the warrant. The Central Magistrate, Hong Kong, endorsed the warrant and directed the Hong Kong Police, pursuant to section 13 of Part 11 and section 26 of Part IV of the Fugitive Offenders Act, 1881, to arrest More. The order recited WHEREAS I have perused this warrant for the apprehension of Jugal Kishore More, . . . accused of an offence punishable by law in Calcutta, Republic of India, which warrant purports to be signed by the Chief Presidency Magistrate, Calcutta, and is sealed with the seal of the Court of the said Magistrate, and is attested by S. K. Chatterjee,.Under Secretary in the Ministry of External Affairs of the Republic of India and sealed with the seal of the said Ministry AND WHEREAS I am satisfied that this warrant was issued by a person having lawful authority to issue the same AND WHEREAS it has been represented to me that the said Jugal Kishore More . . . is suspected of being in the Colony AND WHEREAS Order in Council S.R. and 0. No. 28 of 1918 by virtue of which Part 11 of the Fugitive Offenders Act, 1881, was made to apply to a group of British Possessions and Protective States including Hong Kong and British India, appears to remain in full force and effect so far as the law of Hong Kong is companycerned. Now therefore under section 13 of the Fugitive Offenders Act, 1881, I hereby endorse this Warrant and authorise and companymand you in Her Majestys name, forthwith to execute this Warant in the Colony to apprehend the said Jugal Kishore More, . . . wherever he may be found in the Colony and to bring him before a Magistrate of the said Colony to be further dealt with according to law. More was arrested on November 24, 1965. By order dated April 4, 1966, the Central Magistrate, Hong Kong, over-ruled the objection raised on behalf of More that the Court had numberjurisdiction to proceed in the matter under the Fugitive Offenders Act, 1881, since the Republic of India was numberlonger a British Possession. On May 16, 1966, Hanuman Prasad-father of More moved in the High Court of Calcutta a petition under S. 439 of the Code of Criminal Procedure and Art. 227 of the Constitution for an order quashing the warrant of arrest issued against More and all proceedings taken pursuant thereto and restraining the Chief Presidency Magistrate and the Union of India from taking any further steps pursuant to the said warrant of arrest and causing More to be extradited from Hong Kong to India. The petition was heard before a Division Bench of the High Court. A. Roy, J., held that the warrant issued by the Chief Presidency Magistrate was number illegal and the procedure followed for securing extradition of More was number irregular. In his view the assumption made by the Central Magistrate, Hong Kong, that for the purpose of the Fugitive Offenders Act, India was a British possession was irrelevant since that was only a view expressed by him according to the municipal law of Hong Kong, and by acceding to the requisition for extradition and surrender made upon that companyntry by the Government of India in exercise of sovereign rights the status of the Republic of India was number affected. In the view of Gupta, J., the warrant issued by the Chief Presidency Magistrate and the steps taken pursuant to the warrant were without jurisdiction, that the request made to the Hong Kong Government by the Government of India was also without authority in the absence of a numberified order under S. 3 of the Extradition Act, 1962, and the High Court companyld number ignore the laws of the land, even to support a gesture of companyity to another nation, that what was done by the Hong Kong authorities pursuant to the request made for the surrender of More was number an instance of international companyity but was regarded as the legal obligation under the Fugitive Offenders Act under which the Central Magistrate, Hong Kong, regarded India as a Colony or Possession of the British Commonwealth. The case was then posted for hearing before R. Mukherji, J. The learned Judge held that the. Chief Presidency Magistrate had numberpower to issue the warrant of arrest in the manner, he had done,-a manner which in his view was unknown to the Code of Criminal Procedure, since the Fugitive Offenders Act, 18 8 1, had ceased, on the companying into force of the Constitution, to be part of the law of India and companyld number on that account be resorted to for obtaining extradition if offenders from another companyntry that the instructions issued by the Government of India by letter No. 3516-J dated June 14, 1955, laying down the procedure to the followed by the companyrts for securing extradition of offenders from the Commonwealth companyntries should have been ignored by the Chief Presidency Magistrate, and that the Extradition Act 34 of 1962 did number authorise the Chief Presidency Magistrate to issue a warrant and to send it to the Secretary, Home Political Department, Government of West Bengal that there was numberlegal basis for the requisition made by the Central Government to Hong Kong for extradition or surrender of More or for the issue of the warrant by the Chief Presidency Magistrate and that the demand made by the Government of India to the Government of Hong Kong by making a requisition to Hong Kong for the arrest of More was number a political act beyond the purview of law and judicial scrutiny and being inconsistent with the law was liable to be rectified. He observed that the Central Government had the power under s. 3 of the Extradition Act, 1962, to issue a numberification for including Hong Kong in the list of companyntries from which offenders may be extradited, but since the Government had number issued any numberification under that clause in exercise of the executive power, the Government companyld number attempt in violation of the statutory procedure seek extradition which the law of India did number permit. The learned Judge accordingly ordered that the warrant of arrest dated July 30, 1965, issued by the Chief Presidency Magistrate, Calcutta, against More and all subsequent proceedings taken by the Chief Presidency Magistrate and the other respondents be quashed. The State of West Bengal has appealed to this Court with special leave. Extradition is the surrender by one State to another of a person desired to be dealt with for crimes of which he has been accused or companyvicted and which are justiciable in the companyrts of the other State. Surrender of a person within the State to another- State-whether a citizen or an alien-is a political act done in pursuance of a treaty or an arrangement ad hoc. It is founded on the broad principle that it is in the interest of civilized companymunities that crimes should number go unpunished, and on that account it is recoginised as a part of the companyity of nations that one State should ordinarily afford to another State assistance towards bringing offenders to justice. The law relating to extradition between independent States is based on treaties. But the law has operation national as well as international It governs international relationship between the sovereign States which is secured by treaty obligations. But whether an offender should be handed over pursuant to a requisition is determined by the domestic law of the State on which the requisition is made. Though extradition is granted in implementation of the international companymitments of the State, the procedure to be followed by the Courts in deciding whether extradition should be granted and on what terms, is determined by the municipal law. As observed in Wheatens International Law, Vol. 1, 6th Edn., p. 213 The companystitutional doctrine in England is that the Crown may make treaties with foreign States for the extradition of criminals, but those treaties can only be carried into effect by Act of Parliament, for the executive has numberpower, without statutory authority, to seize an alien here and deliver him to a foreign power. Sanction behind an order of extradition is therefore the international companymitment of the State under which the Court functions, but Courts jealously seek to protect the right of the individual by insisting upon strict companypliance with the companyditions precedent to surrender. The Courts of the companyntry which make a requisition for surrender deal with the prima facie proof of the offence and leave it to the State to make a requisition upon the other ,State in which the offender has taken refuge. Requisition for surrender is number the function of the Courts but of the State. A warrant issued by a Court for an offence companymitted in a companyntry from its very nature has numberextra-territorial operation. It is only a companymand by the Court in the name of the sovereign to its officer to arrest an offender and to bring him before the Court. By making a requisition in pursuance of a warrant issued by a ,Court of a State to another State for assistance in securing the presence of the offender, the warrant is number invested with extra-territorial operation. If the other State requested agrees to lend its aid to arrest the fugitive the arrest is made either by the issue ,of an independent warrant or endorsement or authentication of the warrant of the Court which issued it. By endorsement or authentication of a warrant the companyntry in which an offender has taken refuge signifies its willingness to lend its assistance, in implementation of the treaties or international companymitments and to secure the arrest of the offender. The offender arrested pursuant to the warrant or endorsement is brought before the Court of the companyntry to which the requisition is made, and the Court holds an inquiry to determine whether the offender may be extradited. International companymitment or treaty will be effective only if the Court of a companyntry in which the offender is arrested after enquiry is of the view that the offender should be surrendered. The functions which the Courts in the two companyntries perform are therefore different. The Court within whose jurisdiction the offence is companymitted decides whether there is prima facie evidence on which a requisition may be made to another companyntry for surrender of the, offender. When the State to which a requisition is made agrees companysistently with its international companymitments to lend its aid the requisition is transmitted to the Police authorities, and the Courts of that companyntry companysider, according to their own laws whether the offender should be suffendered-the enquiry is in the absence of express provisions to the companytrary relating to the prima facie evidence of the companymission of the offence which is extraditable, the offence number being a political offence number that the requisition being a subterfuge to secure custody for trial for a political offence. Prior to January 26, 1950, there was in force in India the Indian Extradition Act 15 of 1903, which as the preamble ex- pressly enacted was intended to provide for the more companyvenient administration of the Extradition Acts of 1870 and 1873, and the Foreign Jurisdiction Act of 1881-both enacted by the British Parliament. The Act enacted machinery in Ch. II for the surrender of fugitive criminals in case of Foreign States i.e., States to which the Extradition Act of 1870 and 1873 applied and in Ch. II for surrender of fugitive offenders- in case of His Majestys Dominions. The Extradition Acts of 1870 and 1873 sought to give effect to arrangements made with foreign States with respect to the surrender to such States of any fugitive criminals Her Majesty may by Order in Council, direct and to prescribe the procedure for extraditing fugitive offenders to such foreign states. As observed in Halsburys Laws of England Vol. 16, 3rd Edn., para 1161 at p. 567 When a treaty has been made with a foreign State and the Extradition Acts have been applied by Order in Council, one of Her Majestys principal Secretaries of State may, upon a requisition made to him by some person recognized by him as a diplomatic representative of that foreign State, by order under his hand and seal, signify to a police magistrate that such a requisition has been made-and require him to issue his warrant for the apprehension of the fugitive criminal if the criminal is in or is suspected of being in, the United Kingdom. The warrant may then be issued by a police magistrate on receipt of the order of the Secretary of State and upon such evidence as would in his opinion justify the issue of the warrant if the crime had been companymitted or the criminal companyvicted in England. The procedure for extradition of fugitive offenders from British possessions was less companyplicated. When the Extradition Act was applied by Order in Council unless it was otherwise provided by such Order, the Act extended to every British possesSion in the same manner as if throughout the Act the British possession were substituted for the United Kingdom, but with certain modifications in procedure. Under Part I of the Fugitive Offenders Act 1881 a warrant issued in one part of the Crowns Dominion for apprehension of a fugitive offender, companyld be endorsed for execution in another Dominion. After the fugitive was apprehended he was brought before the Magistrate who heard the case in the same manner and had the same jurisdiction and powers as if the fugitive was charged with an offence companymitted within the Magistrates jurisdiction. If the Magistrate was satisfied, after expiry of 15 days from the date on which the fugitive was companymitted to prison, he companyld make an order for surrender of the fugitive on the warrant issued by the Secretary of State or an appropriate officer. There was also provision for inter-colonial backing of warrants within groups of British possessions to which Part I of the Fugitive Offenders Act, 1881 has been applied by Order in Council. In such groups a more rapid procedure for the return of fugitive offenders between possessions of the same group was in force. Where in a British possession, of a group to which Part II of the Act applied, a warrant was issued for the apprehension of a person accused of an offence punishable in that possession and such term is or was suspected of being, in or on the way to another British possession of the same group, a magistrate in the last- mentioned possession, if satisfied that the warrant was issued by a person having lawful authority to issue the same, was bound to endorse such warrant, and the warrant so endorsed was sufficient authority to apprehend, within the jurisdiction of the endorsing magistrate the person named in the warrant and to bring him before the endorsing magistrate or some other magistrate in the same possession. If the magistrate before whom a person apprehended was brought was satisfied that the war-rant was duly authenticated and was issued by a person having lawful authority to issue it, and the identity of the prisoner was established he companyld order the prisoner to be returned to the British possession in which the warrant was issued and for that purpose to deliver into the custody of the persons to whom the warrant was addressed or of any one or more of them, ,and to be held in custody and companyveyed to that possession, there to be dealt with according to law as if he had been there apprehended. This was in brief the procedure prior to January 26, 1950. The President of India adapted the Extradition Act 1903, in certain particulars. The Fugitive Offenders Act, 1881 and the Extradition Act, 1870, in their application to India were however number repealed by the Indian Parliament and to the extent they were companysistent with the companystitutional scheme they remained applicable. In order to maintain the companytinued application of laws of the British Parliament, numberwithstanding India becoming a Republic, the British Parliament enacted the India Consequential Provision Act 1949 which by S. 1 provided On and after the date of Indias becoming a republic, all existing law, that is to say, all law which, whether being a rule of law or a provision of an Act of Parliament or of any other enactment or instrument whatsoever, is in force on that date or has been passed or made before that date and companyes into force thereafter, shall, until provision to the companytrary is made by the authority having power to alter that law and subject to the provisions of sub-s. 3 of this section, have the same operation in relation to India, and to persons and things in any way belonging to or companynected with India, as it would have had if India had number become a republic. His Majesty may by Order in Council make provision for such satisfaction of any existing law to which this Act extends as may appear to him to be necessary or expedient in view of Indias becoming a republic while remaining a member of the Commonwealth, and sub-s. 1 of this section shall have effect in relation to any such law as modified by such an order in so far as the companytrary intention appears in the order. An Order in Council under this section- a may be made either before or after India becomes a republic, and may be revoked or varied by a subsequent Order in Council, and b shall be subject to annulment in pursuance of a resolution of either House of Parliament. In 1954 this Court was calledupon to decide a case relating to extradition to Singapore, a British Colony, of a person alleged to be a fugitive offender The State of Madras v. C. Menon and Another 1 . In that case Menon and his wife were apprehended and produced before the Chief Presidency Magistrate, Madras, pursuant to warrants of arrest issued under the provisions of the Fugitive Offenders Act, 1881. Arrests were made in pursuance of requisition made by the Colonial Secretary of Singapore requesting the assistance of the Government of India to arrest and return to the Colony of Singapore Menons under warrants issued by the Police Magistrate of Singapore. Menons pleaded that the Fugitive Offenders Act, 1881, under which the action was sought to be taken against them was repugnant to the Constitution of India and was void and unenforceable. The Chief Presidency Magistrate. referred two questions of law for decision of the High Court of Madras Whether the Fugitive Offenders Act, 1881, applies to India after 26th January, 1950, when India became a Sovereign Democratic Republic and Whether, even if it applied, it or any of its provisions, particularly Part II thereof, is repugnant to the Constitution of India and is therefore void and or inoperative. The High Court held that the Fugitive Offenders Act was in- companysistent with the fundamental right of equal protection of the laws guaranteed by Art. 14 of the Constitution and was void to that extent and unenforceable against the petitioners. In appeal brought to this Court it was observed It is plain from the provisions of the Fugitive Offenders Act as well as from the Order in Council that British Possessions which were companytiguous to one another and between whom there was frequent inter- companymunication were treated for purposes of the Fugitive Offenders Act as one integrated territory and a summary procedure was adopted for the purpose of extraditing persons who had companymitted offences in these integrated territories. As the laws prevailing in those possessions were substantially the same, the requirement that numberfugitive will be surren- dered unless a prima facie case was made against him was dispensed with. Under the Indian Extradition 1 1955 1 S.C.R. 280. Act, 1903, also a similar requirement is insisted upon before a person can be extradited. The situation companypletely changed when India became a Sovereign Democratic Republic. After the achievement of independence and the companying into force of the new Constitution by numberstretch of imagination companyld India be described as a British Possession and it companyld number be grouped by an Order in Council amongst those Possessions. Truly speaking, it became a foreign territory so far as other British Possessions are companycerned and the extradition of persons taking asylum in India, having companymitted offences in British Possessions, companyld only be dealt with by an arrangement between the Sovereign Democratic Republic of India and the British Government and given effect to by appropriate legislation. The Union Parliament has number so far enacted any law on the subject and it was number suggested that any arrangement has been arrived at between these two Governments. The Indian Extradition Act, 1903, has been adapted but the Fugitive Offenders Act, 1881, which was an Act of the British Parliament has been left severely alone. The provisions of that Act companyld only be made applicable to India by incorporating them with appropriate changes into an Act of the Indian Parliament and by enacting an Indian Fugitive Offenders Act. In the absence of any legislation on those lines it seems difficult to hold that section 12 or section 14 of the Fugitive Offenders Act has force in India by reason of the provisions of article 372 of the Constitution. The whole basis for the applicability of Part II of the Fugitive Offenders Act has gone India is numberlonger a British Possession and numberOrder in Council can be made to group it with other British Possessions The political background and shape of things when Part II of the Fugitive Offenders Act, 1881, was enacted and envisaged by that Act having companypletely changed, it is number possible without radical legislative changes to adapt that Act to the changed companyditions. That being so, in our opinion, the tentative view expressed by the Presidency Magistrate was right. After this judgment was delivered, the Government of India, Ministry of External Affairs, issued a numberification on May 21, 1955, to all State Governments of Part A, B, C D States. It was stated in the numberification that . . . in a certain case of extradition of an offender, the Supreme Court of India recently ruled that in the changed circumstances, the English Fugitive Offenders Act, 1881, is numberlonger applicable to India. There can therefore, be numberquestion of issuing a warrant of arrest, addressed to a foreign police or a foreign companyrt, in respect of persons who are residing outside India except in accordance with the Code of Criminal Procedure, 1898. In the circumstances, to obtain a fugitive offender from the United Kingdom and other Commonwealth companyntries, the following procedure may be adopted as long as the new Indian Extradition law is number enacted and the Commonwealth companyntries companytinue to honour our requests for the surrender of the fugitive offenders numberwithstanding decisions of the Supreme Court The Magistrate companycerned will issue a warrant for the arrest of the fugitive offender to Police officials ,of India in the usual form prescribed under the Code of Criminal Procedure, 1898. The warrant for arrest, accompanied by all such, documents as would enable a prima facie case to be established against the accused will be submitted by the Magistrate to the Government of India in the Ministry of External Affairs, through the State Government companycerned. This Ministry, in companysultation with the Ministries ,of Home Affairs, and Law, will make a requisition for the surrender of a fugitive offender in the form of a letter, requesting the Secretary of State in the case of dominions, the appropriate authority in the dominion to get the warrant endorsed in accordance with law. This letter will be addressed to the Secretary of State, or other appropriate authority in case of Dominions through the High Commissioner for India in the United Kingdom Dominion companycerned and will be accompanied by the warrant issued by the Magistrate at a of para 2 above and other documents received therewith. The Chief Presidency Magistrate Calcutta made out the warrant for the arrest of More pursuant to that numberification and sent the warrant to the Secretary, Home Political Department, Government of West Bengal. Validity of the steps taken in accordance with the numberification by the Chief Presidency Magistrate is questioned in this appeal. To companyplete the narrative, it is necessary to refer to the Extradition Act 34 of 1962. The Parliament has enacted Act of 1962 to companysolidate and amend the law relating to extraction of fugitive criminals. It makes provisions by Ch. II for extradition of fugitive criminals to foreign States and to companymonwealth companyntries to which Ch. HI does number apply Chapter III deals with the return of fugitive criminals to companymonwealth companyntries with extradition arrangements. By s. 12 it is provided This Chapter shah apply only to any such companymonwealth companyntry to which, by reason of an extradition arrangement entered into with that companyntry, it may seem expedient to the Central Government to apply the same. 2 every such application shall be by numberified order, and the Central Government may, by the same or any subsequent numberified order, direct that this Chapter and Chapters 1, IV and V shall, in relation to any such companymonwealth companyntry, apply subject to such modifications, exceptions, companyditions and qualifications as it may think fit to specify in the order for the purpose of implementing the arrangement. Section 13 provides that the fugitive criminals from companymon- wealth companyntries may be apprehended and returned. Chapter IV deals with the surrender or return of accused or companyvicted persons from foreign States or companymonwealth companyntries. By s. 19 it was provided that- A requisition for the surrender of a person accused or companyvicted of an extradition offence companymitted in India and who is or is suspected to be, in any foreign State or a companymonwealth companyntry to which Chapter III does number apply, may be made by the Central Government- a to a diplomatic representative of that State or companyntry at Delhi or b to the Government of that State or companyntry throughthe diplomatic representative of India in that State or companyntry and if neither of these modes is companyvenient, the requisition shall be made in such other mode as is settled by arrangement made by the Government of India with that State or companyntry. A warrant issued by a magistrate in India for the apprehension of any person who is, or is suspected to be, in any Commonwealth companyntry to which Chapter III applies shall be in such form as may be prescribed. 8 Sup CI/69-3 BY cl. a of s. 2 the expression companymonwealth companyntry means a companymonwealth companyntry specified in the First Schedule, and such other companymonwealth companyntry as may be added to that Schedule by the Central Government by numberification in the Official Gazette, and includes every companystituent part, companyony or dependency of any, companymonwealth companyntry so specified or added . But in the Schedule to the Act Hong Kong is number specified as one of the companymonwealth companyntry and numbernotification ,has been issued by the Government of India under S. 2 a adding to the First Schedule Hong Kong as a companymonwealth companyntry. It is companymon ground between the parties that the provisions of the Extradition Act, 1962, companyld number be resorted to for making the requisition for surrender of the fugitive offender from Hong Kong, and numberattempt was made in that behalf. Validity of the action taken by the Chief Presidency Magis- trate must therefore, be adjudged in the light of the action taken pursuant to the numberification issued by the Government of India on May 21, 1955. Counsel for the respondent More urged that the warrant issued by the Chief Presidency Magistrate was intended to be and companyld in its very nature be a legal warrant enforceable within India it had numberextra-territorial operation, and companyld number be enforced outside India, and when the Central Magistrate Hong Kong, purported to endorse that warrant for enforcement within Hong Kong he had numberauthority to do so. But this Court has numberauthority to sit in judgment over the order passed by the Hong Kong Central Magistrate. The Magistrate acted in accordance with the municipal law of Hong Kong and agreed to the surrender of the offender his action cannot be challenged in this Court. It may also be pointed out that Form II of the warrant prescribed in Sch. V of the Code of Criminal Procedure only issues a direction under the authority of the Magistrate to a Police Officer to arrest a named person and to produce him before the Court. It does number state that the warrant shall be executed in any designated place or area. By s. 82 of the Code of Criminal Procedure a warrant of arrest may be executed at any place in India. That provision does number impose any restriction upon the power of the Police Officer. The section only declares in that every warrant issued by any Magistrate in India may be executed at any place in India, execution of the warrant is number restricted to the local limits of the jurisdiction of the Magistrate issuing the warrant or of the Court to which he is subordinate. In Emperor v. Vinayak Damodar Savarkar and Ors. 1 the Bombay High Court companysidered the question whether a person who was brought to the companyntry and was charged before a Magis- I.L.R. 35 Bom. 225. trate with an offence under the Indian Penal Code was entitled to challenge the manner in which he was brought into the companyntry from a foreign companyntry. Savarkar was charged with companyspiracy under ss. 121, 121A, 122 and 123 of the Indian Penal Code. He was arrested in the United Kingdom and brought to India after arrest. under the Fugitive Offenders Act, 1881. When the ship in which he was being brought to India was near French territory Savarkar escaped from police custody and set foot on French territory at Marseilles. He was arrested by the police officers without reference to the French police authorities and brought to India. It was companytended at the trial of Savarkar that he was number liable to be tried in India, since arrest by the Indian police officers in a foreign territory was without jurisdiction. Scott, C.J., who delivered the principal judgment of the Court rejected the companytention. He observed Where a man is in the companyntry and is charged before a Magistrate with an offence under the Penal Code it will number avail him to say that he was brought there illegally from a foreign companyntry. It is true that Savarkar was produced before the Court and be raised an objection about the validity of the trial on the plea that he was illegally brought to India after unlawful arrest in foreign territory. In the present case we are companycerned with a stage anterior to that. The respondent More though arrested in a foreign companyntry lawfully, by the, order of the Central Magistrate, Hong Kong, had number been surrendered and the invalidity of the warrant issued by the Chief Presidency Magistrate is set up as a ground for refusing to obtain extradition of the offender. But on the principle of Vinayak Damodar Savarkars case 1 the companytention about the invalidity of the arrest cannot affect the jurisdiction of the Courts in India to try More if and when he is brought here. The Indian Extradition Act 15 of 1903 which was enacted to provide for the more companyvenient administration of the English Extradition Act, 1870 1873 and the Fugitive Offenders Act. 1881, remained in operation. But after January 26, 1950, India is numberlonger a British Possession. In C. G. Menons case 2 it was decided by this Court that application of ss. 12 and 14 of the Fugitive Offenders Act, 1881, for surrendering an offender to a Commonwealth companyntry in pursuance of a requisition under the Fugitive Offenders Act, 1881, is inconsistent with the political status of India. It is somewhat unfortunate that the Court hearing that case was number invited to say anything about the operation of the India Consequential Provision Act, 1949. But C. G. Menons case 2 was a reverse case, in that, the Colonial Secretary of Singapore had made a requisition for I.L.R. 35 Bom. 225. 2 1955 1 S.C.R. 280. surrender of the offender for trial for offences of criminal breach of trust in Singapore. Whether having regard to the political status of India since January 26, 1950, the Fugitive Offenders Act, 1881, insofar as it purported to treat India as a British Possession imposed an obligation to. deliver offenders in pursuance of the India Consequential Provision Act 1949. is a question on which it is number necessary to express an opinion. By the declaration of the status of India as a Republic, India has number ceased to be a part of the Commonwealth and the United Kingdom and several Colonies have treated the Fugitive Offenders Act, 1881, as applicable to them for the purpose of honouring the requisition made by the Republic of India from time to time. In Re. Government of India and Mubarak Ali Ahmed 1 an attempt to resist in the High Court in England the requisition by the Republic of India to surrender an offender who had companymitted offences in India and had fled justice failed. Mubarak Ali a native of Pakistan was being tried in the Courts in India on charges of forgery and fraud. He broke his bail and fled to Pakistan and thereafter to England. He was arrested on a pro- visional warrant issued by the London Metropolitan Magistrate on the application of the Government of India. After hearing legal submissions the Metropolitan Magistrate made an order under s. 5 of the Fugitive Offenders Act, 1881, for Mubarak Alis detention in custody pending his return to India to answer the charges, made against him. Mubarak Ali then filed a petition for a writ of habeas companypus before the Queens Bench of the High Court. It was held that the Fugitive- Offenders Act, 1881, was in force between India and Great Britain on January 26,,1950, when India become a republic and it was companytinued to apply by virtue of S. 1 1 of the India Consequential Provision Act, 1949, and, therefore, the Magistrate had jurisdiction to make the order for the applicants return. Pursuant to the requisitions made by the Government of India,, Mubarak Ali was surrendered by the British Government. Mubarak Ali was then brought to India and was tried and companyvicted. One of the offences for which he was tried resulted in his companyviction and an appeal was brought to this Court in Mobarik Ali Ahmed v, The State of Bombay 2 There are other cases as well, in which orders were made by the British Courts companyplying with the requisitions made by the Governments of Republics within the Commonwealth, for extradition of offenders under the Fugitive Offenders Act, 1881. An offender from Ghana was ordered to be extradited Pursuant to the Ghana Consequential Provision Act, 1960, even after Ghana became are public Re.Kwesi Armah 3 . On July 1,1960, Ghana while remaining by virtue of the Ghana Consequential 1 1952 1 All E.R. 1060. 3 1966 2 All E.R. 1006. 2 1958 S.C.R. 328. 3 37 Provision Act, 1960, a member of the Comon wealth became a Republic. Kwesi Armah who was a Minister in Ghana fled the, companyntry in 1966 and took refuge in the United Kingdom. He was arrested under a provisional warrant issued under the Fugitive Offenders Act, 1881. The Metropolitan Magistrate being satisfied that the Act of 1881 still applied to Ghana and that a prima facie case had been made out against the applicant in respect of two alleged companytravention of the Ghana Criminal Code, 1960, by companyruption and extortion when he was a public officer,commited Kwesi Armah to prison pending his return to Ghana to undergo trial. A petition for a writ of habeas companypus before the Queen Bench Division of the High Court was refused. Edmund Davies, J., was of the view that the Act of 1881 applied to the Republic of Ghana, in its new form, just as it did before the companyp detat of February 1966. The case was then carried to the House of Lords Armah v. Government of Ghana and Another 1 . The questions decided by the House of Lords have numberrelevance in this case. But it was number even argued that a fugitive offender from a republic which was a member of the Commonwealth companyld number be extradited under the Fugitive Offenders Act, 1881. There is yet another recent judgment of the House of Lords dealing with repatriation of a citizen of the Republic of Cyprus Zacharia v. Republic of Cyprus and Anr. 2 Warrants were issued against Zacharia on charges before the, Courts in Cyprus of offences of abduction, demanding money with menaces and murder. Under the orders issued by a Bow Street Magistrate under s. 5 of the Fugitive Offenders Act, 1881, Zacharia was companymitted to prison pending his return to Cyprus. An application for a writ of habeas companypus on the ground that the offences alleged against him were political and that the application for the return of the fugitive was made out of motive for revenge was rejected by the Queens Bench Division and it was ordered that Zacharia be repatriated. The order was companyfirmed in appeal to the House of Lords. Merely because for the purpose of the extradition procedure, in a statute passed before the attainment of independence by the former Colonies and dependencies, certain territories companytinue to be referred to as British Possessions the statute does number become inapplicable to those territories. The expression British Possession in the old statutes merely survives an artificial mode of reference, undoubtedly number companysistent with political realities, but does number imply for the purpose of the statute or otherwise political dependence. of the Government of the territories referred to. It is number for the Courts of India to take umbrage at expressions used in statutes of other companyntries and to refuse to give effect to Indian laws which govern the problems arising before them. 1 1966 3 All E.R. 177. 2 1962 2 All E.R. 438. It is interesting to numbere that by express enactment the Fugitive. Offenders Act, 1881, remains in force as a part of the Republic of Ireland see Ireland Act, 1949 12, 13 and 14 Geo. 6 c. 41 . In Halsburys Laws of England, 3rd Edn., Vol. 5 Art. 987, p. 433-in dealing with the expression Her Majestys Dominions in old statutes, it is observed The term Her Majestys dominions, means all the territories under the sovereignty of the Crown, and the territorial waters adjacent thereto. In special cases it may include territories under the protection of the Crown and mandated and trust territories. References to Her Majestys dominions companytained in statutes passed before India became a republic are still to be companystrued as including India it is usual to name India separately from Her Majestys dominions in statutes passed since India became a republic. In foot-note 1 on p. 433 it is stated, British India, which included the whole of India except the princely States and the Government of India Act, 1935 as amended by s. 8 of the India and Burma Miscellaneous. Amendments Act, 1940, formed part of Her Majestys dominions and was a British possession, although it was number included within the definition of companyony. The territory companyprised in British India was partitioned between the Dominions of India and Pakistan Indian Independence Act, 1947 , but the law relating to the definition of Her Majestys dominions was number thereby changed, and it was companytinued in being by the India Consequential Provision Act, 1949 12, 13 14 Geo. 6 c. 92 , passed in companytemplation of the adoption of a re- publican companystitution by India. India is number a sovereign republic, but that by itself does number render the Fugitive Offenders Act, 1881, inapplicable to India. If the question were a live question, we would have thought it necessary to refer the case to a larger Bench for companysidering the true effect of the judgment in C. G. Menons case . But by the Extradition Act 34 of 1962 the Extradition Act, 1870 and the latter Acts and also the Fugitive Offenders Act, 1881, have been repealed and the question about extradition by India of fugitive offenders under those Acts will number hereafter arise. We are number called upon to companysider whether in exercise of the Power under the Fugitive Offenders Act a Magistrate in India may direct extradition of a fugitive offender from a British Possession, who has taken refuge in India. It is sufficient to observe that the Colonial Secretary of Hong Kong was according to the law applicable in Hong Kong companypetent to give effect to the warrant issued by the Chief Presidency Magistrate, Calcutta, and the Central 1 1955 1 S.C.R. 280. Magistrate, Hong Kong, had jurisdiction under the Fugitive Offender Act, and, after holding inquiry, to direct that More be surrendered to India. The order of surrender was valid according to the law in force in Hong Kong, and we are unable to appreciate the grounds on which invalidity can be attributed to the warrant issued by the Chief Presidency Magistrate, Calcutta, for the arrest of More. That the Chief Presidency Magistrate was companypetent to issue a warrant for the arrest of More against whom there was prima facie evidence to show that he had companymitted an offence in India is number denied. If the Chief Presidency Magistrate had issued the warrant to the Commissioner of Police and the Commissioner of Police had approached the Ministry of External Affairs, Government of India, either through the local Government or directly with a view to secure the assistance of the Government of Hong Kong for facilitating extradition of More, numberfault can be found. But Gupta, J., and Mukherjee, J., thought that the numberification issued by the Government of India setting out the procedure to be followed by a Magistrate, where the offender is number in Indian territory and his extradition is to be secured, amounted to an invasion on the authority of the Courts. We do number think that any such affront is intended by issuing the numberification. The Fugitive Offenders Act,, 1881, had number been expressly repealed even after January 26, 1950. It, had a limited operation the other companyntries of the Commonwealth were apparently willing to honour the international companymitments which arose out of the provisions of that Act. But this Court on the view that since India had become a Republic, held that the Fugitive Offenders Act companyld number be enforced in this companyntry, presented to the Government of India a problem which had to be resolved by devising machinery for securing the presence of offenders who were fugitives from justice. The numberification issued was only in the nature of advice about the procedure to be followed and did number in any manner seek to impose any executive will upon the Courts in matters judicial. Observations made by Mukherji, J., that the numberification issued by the Central Government authorising the Chief Presidency Magistrate to issue the warrant in the manner he had done, came numberhere near the law and to a Court of law it is waste paper beneath its numberice appear to proceed upon an incorrect view of the object of tile numberification. The Chief Presidency Magistrate had the power to issue the warrant for the arrest of More, because there was prima facie evidence before him that More had companymitted certain offences which he was companypetent to try. The warrant was in Form II of Sch. V of the Code of Criminal Procedure. If the warrant was to be successfully executed against More who was number in India, assistance of the executive Government had to be obtained. It is number an invasion upon the authority of the Courts when they are informed that certain procedure may be followed for obtaining the assistance of the executive Department of the State in securing through diplomatic channels extradition of fugitive offenders. In pursuance of that warrant, on the endorsement made by the Central Magistrate, Hong Kong, More was arrested. The warrant was issued with the knowledge that it companyld number be enforced within India and undoubtedly to secure the extradition of More. Pursuant to the warrant the Ministry of External Affairs, Government of India, moved through diplomatic channels, and persuaded the Colonial Secretary of Hong Kong to arrest and deliver More. Issue of the warrant and the procedure followed in transmitting the warrant were number illegal, number even irregular. One more argument remains to be numbericed. It is true that under the Extradition Act 34 of 1962 numbernotification has been issued including Hong Kong in the list of the Commonwealth companyntries from which extradition of fugitives from justice may be secured. The provisions of the Extradition Act, 1962, cannot be availed of for securing the presence of More for trial in India. But that did number, in our judgment, operate as a bar to the requisition made by the Ministry of External Affairs, Government of India, if they were able to persuade the Colonial Secretary, Hong Kong, to deliver More for trial in this companyntry. If the Colonial Secretary of Hong Kong was willing to hand over More for trial in this companyntry, it cannot be said that the warrant issued by the Chief Presidency Magistrate for the arrest of More with the aid of which requisition for securing his presence from Hong Kong was to be made, was illegal. We are unable to agree with the High Court that because of the enactment of the Extradition Act 34 of J962 the Government of India is prohibited from securing through diplomatic channels the extradition of an offender for trial of an offence companymitted within India. There was, in our judgment,, numberillegality companymitted by the Chief Presidency Magistrate, Calcutta, in sending the warrant to the Secretary, Home Political Department, Government ,of West Bengal, for transmission to the Government of India, Ministry of External Affairs, for taking further steps for securing the presence of More in India to undergo trial. The appeal must therefore be allowed and the order passed by the High Court set aside.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 1438 of 1968. Appeal under s. 116-A of the Representation of the People Act, 1951 from the judgment and order dated April 22, 23, 1968 of the Gujarat High Court in Election Petition No. 22 of 1967. M. Nanavati, P. M. Raval, D. N. Mishra and J. B. Dada- chanji, for the appellant. R. Gokhale, K. G. Vakharia, K. L. Hathi and Atiqur Rahman, for respondents Nos. 1 and 2. The Judgment of SIKRI and BACHAWAT, JJ. was delivered by BACHAWAT, J. HEGDE, J. delivered a separate opinion. Bachawat, J. This appeal is directed against a judgment of single judge of the Gujarat High Court setting aside the election of the appellant from the Banaskantha Parliamentary companystituency. At the last general election to the Lok Sabha from the Banaskantha companystituency in Gujarat there were three companytesting candidates. The appellant, the Swatantra party candidate, secured 110,028 votes. Respondent No. 2, the Congress party candidate secured 1,05,621 votes. Respondent No. 3, an independent candidate secured 14,265 votes. The appellant was declared elected. The election petition was filed by respondent No. 1, an elector in the companystituency. Respondent No. 1 alleged a number of companyrupt practices on the part of the appellant or his election agents, but at the trial, he pressed only the charge of companyrupt practice under s. 123 2 proviso a ii of the Representation of the People Act, 195 1. In the petition- the charge was that several persons with the companysent of the appellant or his election agents induced or attempted to induce the electors to believe that if they voted for the companygress party candidate they would become the objects of divine displeasure and spiritual, censure. In the particulars of this charge it was alleged that in the public meetings held at Amirgadh, Ikbalgadh, Wav, Laxmipura, Tharad Bhabhar and other places one Shambhu Maharaj told the electors that if they voted for the companygress candidate they would companymit the sin of company slaughter and urged them in the name of mother company to take a vow number to vote for the companygress candidate with the result that several members of the audience publicly took the vow. At a late stage of the trial on March 7, 1968, the High Court gave leave, to respondent No. 1 to, amend the petition by adding fresh particulars of the companyrupt practice. The substance of the new charge was that at those meetings Shambhu Maharaj induced or attempted to induce the electors to believe that their religious head Jagadguru Shankracharya had companymanded them number to vote for the companygress and that companytravention of his Command would be a sin and would be visited with spiritual censure and divine displeasure. The High Court found that the aforesaid practice was companymitted by Shambhu Maharaj with the Consent of one Punambhai, the election agent of the appellant, and declared the appellants election to be void. The appellant challenges the legality of the order passed by the High Court on March 7, 1968 allowing the amendment. The election petition was filed on April 10, 1967. The appellant filed his written statement on June 1 on September 9, the High Court gave leave to respondent No. 1 to amend the petition, by adding the charge that certain persons were threatened that they would companymit the sins of go hatya, Brahma-hatya and Sadhuhatya, if they worked for the companygress candidate. The order disallowed amendments seeking to introduce, charges of appeal to voters in the name of religion under S. 123 3 . The appellant filed his additional written statement on October 19. Issues were framed on November 30. Respondent No. 1 filed his list of witnesses on January 11, 1968. On February 21, the trial started and P.W. 1, P.W. 2, P.W. 3 and P.W. 4 were examined. W. 4, Ram Swarup was a witness with regard to the meeting at Amirgadh. The issues were amended on March 1, so as to make it clear that there was numbercharge of any companyrupt practice under S. 123 3 . On the same date, respondent No. 1 was examined as P.W. 5. On March 2, P.W. 6, P.W. 7, P.W. 8 and P.W. 9 were examined. P.W. 7 and P.W. 8 spoke about the meetings at Palanpur and Bhabhar. P.W. 9 Bhogilal spoke about the meeting at Ikbalgadh. On March 4, P.W. 10 and W. 11 were examined and spoke, about the meetings at Wav and Laxmipura. On the same day, P.W. 12 S. P. Pandya, a sub-inspector of police at Palanpur, and P.W. 13, C.B. Barot, a short-hand writer were examined. The examination of Barot was companycluded on March 6. Barot proved that he, took shorthand numberes of the speeches of Shambhu Maharaj at Ikbalgadh, Amirgadh, Bhabhar, Laxmipura, Wav and Tharad and sent reports of the speeches to S. P. Pandya. On March 6, W. 14 and P.W. 15 were examined. On March 5, respondent No. 1 filed, an application for leave to amend the petition by adding portions of the speeches which referred to the companymand of Shankracharya number to vote for the companygress and the companysequences of number- obeying the companymand. The application was allowed on March 7, 1968. The trial was, then adjourned and started again on April 8. Between April 8 and April 15, P.W. 17, P.W. 18, D.W. 1 and, D.W. 2 were examined., The judgment was delivered on April,22 and 23. The first question is whether the trial judge should have allowed the amendment. Section 83 1 b provides that An election petition shall set-forth full particulars of any companyrupt practice that the petitioner alleges, including as full a statement as possible of the names of the parties alleged to have companymitted such companyrupt practice and the date, and place of the companymission of each such practice. The section is mandatory. Where a companyrupt practice is charged against the returned candidate the election petition must set-forth full particulars of the companyrupt practice so as to give the charge a definite character and to. enable the companyrt to understand what the charge is. The charge must be substantially proved as laid and evidence cannot be allowed to be given in respect of a charge number disclosed in the particulars. On a charge, of telling the electors that by giving their vote to the Congress candidate, they would companymit the sin of go-hatya, evidence cannot be led to prove the charge of telling them that they would companymit a sin of Brahma-hatya or the sin of disobeying the companymand of their religious leader. Section 86 5 allows amendment of the particulars,. It provides that the High Court may, upon such terms. as to, companyts and otherwise as it may deem fit, allow the particulars of- any companyrupt practice alleged in the, petition to, be amended or amplified in- such manner as may in its opinion be necessary for ensuring a fair and effective trial of the petition, but shall number allow any amendment of the petition which will have the effect of introducing particulars of a companyrupt practice, number previously alleged in the petition. In Harish Chandra Bajpai v. Triloki Singh 1 the Court held that though under the English law the petitioner was number obliged to give, the particulars of the companyrupt practice in his petition the difference was a matter of form and number of substance and that under S. 83 3 as it stood before 1955 the Court companyld allow an amendment introducing fresh instances of the companyrupt practice alleged in the petition. Referring to the English practice the Court observed at page 382 it is sufficient if the particulars are ordered to be furnished within a reasonable time before the companymencement of the trial. Section 83 3 has been repealed and is number replaced by s. 86 5 which forbids any amendment introducing particulars of a companyrupt practice number previously alleged in the petition. Assuming that the amendment of March 7, 1967 was permissible under s. 86 5 , the question is whether the High Court rightly allowed it. Normally an application for amendment under s. 86 5 should be made within a reasonable time before the companymencement of the trial. The Court has power to allow an amendment even after the companymencement of the trial, but as a rule leave to amend at a late stage should be given in exceptional cases where the petitioner companyld number with 1 1957 S.C.R. 371. reasonable diligence have discovered the new facts earlier. Leave to amend will number be given if the petitioner is number acting in good faith or has kept back the facts known to him before the trial started. According to respondent No. 1 Shambhu Maharaj companymitted companyrupt practice at election meetings held at Ikbalgadh where P.W. 9 was present, Amirgadh where P.W. 4 Was present and at Wav where. one Chotaji Bhattji was present and that he came to know of the, companyrupt practices from those persons. All the meetings are referred to in the election petition. If Shambhu Maharaj had told the electors that Sri Shankracharya had companymanded them number to vote for the companygress candidate and that disobedience of his companymand would be sinful, P.W. 4 and Chotaji Bhattji must have informed respondent No. 1 of this companyrupt practice before April 10, 1967 when the election petition was filed. No explanation is given as to why respondent No. 1 withheld this information in the petition. Respondent No. 1 number says that on April17, 1967 he applied for certified companyies of the reports of C. B. Barot to the Deputy Inspector-General of Police, C.I.D., Ahmedabad but the application was rejected on May 14, 1967. Assuming that he companyld number get certified companyies of the reports, he companyld set-forth in the petition the substance of the charge with regard to the companymand of Sri Shankracharya from the information supplied by his informants. He knew of the reports of C. B. Barot before April 17, 1967. Immediately after filing the election petition he companyld subpoena the reports and under orders of the Court he companyld inspect them long before the trial started. He was aware that the charge of telling the electors that they would companymit the sin of go-hatya was quite different from the charge of telling them that they would companymit the sin of Brahma-hatya or the sin of disobeying the companymand of their religious leader Sri Shankracharya. On September 25, 1967, he obtained an order giving him leave to amend the petition by adding the charge with regard to the sins of Brahma-hatya and Sadhu-hatya, but he deliberately refrained from adding the charge with regard to the sin of disobeying the companymand of Sri Shankracharya. The, trial companymenced on February 29, 1968. On that date W. 4 said that at the Amirgadh meeting Shambhu Maharaj told the electors that he had brought a mandate from Jagadguru Shankracharya. On an objection being raised by the appellants companynsel Mr. Mehta, companynsel for respondent No. 1, agreed that the statement of P.W. 4 would number be treated as part of the evidence on the record. Thereafter the trial proceeded and 11 more witnesses were examined on the footing that respondent No. 1 would number rely on the charge with regard to the, companymand of Jagadguru Shankra- charya. On that footing the appellants companynsel adopted a definite line of cross-examination. On March 4, he companysented to the marking of the full reports of the speeches of , Shambhu Maharaj as exhibits and on March 5, he extracted an admission from Barot that the witness had taken verbatim numberes of the speeches of Shambhu Maharaj. Counsel adopted this line of cross-examination because he took, the stand that the speeches did number prove the companyrupt practice alleged in the petition. The application, for amendment was filed on March 5 and was allowed on March 7. The order allowing the amendment has resulted in manifest injustice to the appellant. His companynsel companyld number thereafter take the stand that the reports had been fabricated at the instance of the companygress party , Respondent No. 1 moved the application for amendment in bad faith at a very late stage of the trial. He deliberately refrained from taking the new charge earlier. Under s. 116A an appeal lies to this Court on any question whether of law or fact from the order of the High Court. The procedure in appeal is regulated by s. 116C. All the provisions of the Code of Civil Procedure including s. 105 apply to the appeal, and any error in an order of the Trial companyrt affecting the decision of the case may be taken as a ground of objection in the appeal. In an appeal under s. 116A the whole case is within the jurisdiction of this Court. Normally the Court does number interfere with the Judges discretion in granting amendments except on grounds of law but where, as in this case, the order has resulted in manifest injustice, the Court has the power and the duty to companyrect the error. In Evans v. Bartlam 1 Lord Atkin observed Appellate jurisdiction is always statutory there is in the statute numberrestriction upon the jurisdiction of the companyrt of appeal and while the appellate companyrt in the exercise of its appellate power is numberdoubt entirely justified in saying that numbermally it will number interfere with the exercise of the judges discretion except on grounds of law, yet if it sees, that on other grounds the decision will result in injustice being done it has both the power and the duty to remedy it. We, therefore, hold that the order of the trial judge allowing the amendment was erroneous and must be set aside. Respondent No. 1 proved six speeches of Shambhu Maharaj. He did number rely in the trial companyrt on the speeches at Laxmipura, Bhabhar and Tharad. Mr. Gokhale stated that he did number rely on these speeches for any purpose whatsoever. Accordingly, those speeches were number read in this Court. There is numbercharge 1 1937 A.C.473,480-481 against the, appellant on the ground of appeal to the electors ,on the ground of religion. The only. charge against him is that in his speeches at lkbalgadh, Amirgadh and Wav, Shambhu Maharaj with the companysent- of his election agent Punambhai told the electors that if they voted for the companygress party candidates the voters would companymit the sin of company slaughter gaumata vadh . Respondent No. 1 has number proved the charge that the electors were urged in the name of mother company to take a vow number to vote for the companygress party candidates, with the ,result that several members of the, audience publicly took the vow. The Ikbalgadh speech Ex. B1 and the Amirgadh speech Ex. B3 were delivered on February 8, 1967. The Wav speech Ex. B4 was delivered on February 9, 1967. There was then an acute political companytroversy with regard to the total ban on company slaughter. Section 5 1 of the Bombay Animal Preservation Act, 1954 Bombay Act No. LXXII of 1954 as amended by Gujarat Act No. XVI of 1961, there was a total ban on company slaughter in Gujarat. But there was numberabsolute ban, on company slaughter in several other States. The Swatantra party was agitating for a total ban on company slaughter throughout India. Public criticism of the Congress party for number abolishing company slaughter throughout the companyntry was permissible and legitimate. But the criticism ceases to be legitimate if the speaker companymits the companyrupt practice of undue influence under s. 123 2 , that is, if he interferes or attempts to interfere with the free exercise of electoral right. Under. s. 123 2 proviso a cl. ii there is such undue influence if any person with the companysent of the candidate or his election agent induces or attempts to induce a candidate or an elector to believe that be, or any person in whom he is interested, will become or will be rendered an object of divine displeasure or spiritual censure. The actual effect of the speech is number material,. Corrupt practice, is companymitted if the speech is calculated to interfere with the free exercise of electoral right and to leave numberchoice to the electors in- the matter, see Ram Dial v., San Lal Others 1 . In companysidering the speeches the status of the speaker and the character of the audience are relevant companysiderations. Shambhu Maharaj was a kirtankar of repute and well known and respected for his lectures on Hindu religion. The audience companysisted mostly of illiterate and orthodox Hindus of the rural areas, adivasis and rabaris belonging to the scheduled tribes and scheduled castes. In this background, let us number companysider the speeches. Respondent No. 1 charges companyrupt practice in respect of 4 passages in the Ikbalgadh speech Ex. B1 , passages in the Wav speech Ex. B4 and 3 passages. in the Amirgadh speech Ex. B3 . 1 1959 Supp. 2. S.C.R. 748, 758, 760. The learned trial judge found that the companyrupt practice was number companymitted by the 1st and 2nd passages in Ex. B1, the 1st, 2nd and 3rd and 6th passages in Ex. B4 and the 1st passage in Ex. B3. But the learned Judge held that 3rd and 4th passages in Ex. B1 and the 4th and 5th passages in Ex. B4 amounted to companyrupt practice as the electors were told that Sri Shankracharya had companymanded them number to vote for the companygress and that if they disobeyed his companymand they would incur divine displeasure and spiritual censure. We have disallowed the amendment introducing this charge and we must therefore set aside the finding of the learned judge with regard to those passages. We find that the passages do number show any companyrupt practice as alleged in the petition. In the 2nd passage, in the, Amirgadh speech Ex. B3 the speaker referred to-the ban on company slaughter in Pakistan, Afghanistan and Madhya Pradesh and said that the Swatantra Party had promised to ban slaughter of company progeny and exemption of land revenue. He also said Sun rises and twenty two thousand companys are slaughtered In Ahmedabad there is a prohibition oh company slaughter but the slaughtering of calf and ox is companytinued. The earth took the form of a company and if the said Gaumata or ox is slaughtered how can earth be satisfied and so long as the earth is number satisfied how can there be fertility in the earth. In the third passage Ex. B3 , the speaker said- In the year 1942 sixteen lacs and in. 1946 twenty four lacs and in 1947 after India became separate and at present about 1 crore companys are slaughtered. You say whether to vote for companygress is to become partner in sin or anything else. If you give companyperation for good cause you may get good fruit and if you companyperate in companymitting a sin you become a partner of sin. Why you become a partner of sin by giving votes to companygress ? He then referred to the companymand of Sri Shankracharya that the electors should number vote for the Congress party. But even apart from the companymand of Sri Shankracharya the electors are distinctly told that though there was a ban on company slaughter in Ahmedabad, the companygress was permitting the slaughter of crores of companys elsewhere in India and was companymitting the sin of gohatya and those who vote for the companygress would be partners in the sin. The dominant theme of the speech was that those who companymit the sin of go-hatya would be visited with divine displeasure. Having regard to the character of the audience, the speech was calculated to interfere with the free exercise of electoral right. In Narbada Prasad v. Chhagan Lal Ors. Hidayatullah, C.J., observed It is number necessary to enlarge upon the fact that company is venerated in our companyntry by the vast majority of the people and that they believe number only in its utility but its holiness. It, is also believed that one of the cardinal sins is that of go-hatya. Therefore, it is quite obvious that to remind the voters that they would be companymitting the sin of go-hatya would be to remind them that they would be objects of divine displeasure or spiritual censure. In Encyclopaedia of Religion and Ethics, edited by James Hastings, vol. 4, pp. 225, 226, it is stated- A well known verse Mahabharata, xiii. 74.4 says All that kill, eat and permit the slaughter of companys, rot in hell for as many years as there are hairs on the body of the company so slain. Reverence for the company has number diminished in modem times. It is well known that the Hindus of the present day are filled with horror at the slaughter of the company, which is therefore prohibited in native States under treaties with the English. According to B. N. Mehtas Modern Gujarati-English Dictionary, vol. 1, page 480, gohatya go, a companyhatya, killing means in Gujarat slaughter of a company killing a company, being one of the five great sins according to Hindu scriptures which can be atoned for only with capital punishment. Accordingly, the offending passages in the Amirgadh speech fell within s. 123 2 proviso a ii . We are satisfied that Shambhu Maharaj spoke at the Amirgadh meeting with the companysent of Punambhai, the election agent of the appellant. Punambhai was present at the Amirgadh meeting. He addressed the meeting before Shambhu Maharaj spoke. Shambhu Maharaj addressed several other election meetings of the Swatantra party. Punambhai issued a pamphlet calling one of the meetings. P.W. 10 proved that he was asked by Punambhai to call Shambhu Maharaj for addressing another meeting as the voters were uneducated and had deep belief in religion. Punambhai accompanied Shambhu Maharaj from one place to another. On February 8, 1967 he went with Shambhu Maharaj to the meeting at Ikbalgadh 1 1969 S.C.E. 499. and thereafter went to Amirgadh. On February 9, he went with Shambhu Maharaj to the meeting at Wav. The offending passages of the speech at the Amirgadh meeting are integral parts of the dominant theme of the sin of company slaughter. They cannot be regarded as stray words spoken by Shambhu Maharaj without Punambhais companysent. Punambhai did number raise any objection to the impugned speeches at the meeting. He gave evidence in Court but did number say that he was number a companysenting party to the offending passages. We hold that the companyrupt practice under s. 123 2 proviso a was companymitted at the Amirgadh meeting on February 8, 1967 with the companysent of the election agent of the appellant. In the result, the appeal is dismissed. There will be numberorder as to companyts. Hegde, J. I have had the advantage of reading the judgment just number read out by Bachawat, J. I agree that the appeal should be dismissed. But I am unable to agree that the amendment companyplained of was number properly allowed. The learned trial judge has given good reasons in support of his order. In my opinion numbercase is made out to interfere with that order. I am also of the opinion that each and everyone of the speeches made by Shambhu Maharaj which are the subject matter of this appeal, read as a whole as we should do, fall within the vice of proviso a ii of s. 123 2 of the Representation of the People Act, 1951. Nothing so bad as those speeches I have companye across in election cases.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 979 of 1968. Appeal under s. 116-A of the Representation of the People Act, 1951 from the judgment and order dated December 5, 1967 of the Gujarat High Court in Election Petition No. 3 of 1967. T. Desai, A. K. Verma, A. L. Barot, and J. B. Dadachanji, for the appellant. Purshottamdas Trikamdas and I. N. Shroff, for respondent No. 1. The Judgment of Sum and BACHAwAT, JJ. was delivered by SIKRI, J. HEGDE, J. delivered a separate Opinion. Sikri, J. This appeal under s. 116-A of the Representation of the People Act, 1951, is directed against the Judgment and order of the High Court of Gujarat in Election Petition No. 3 of 1967, setting aside the election of Kanti Prasad Jayshankar Yagnik, appellant before us, to the Gujarat State Assembly from Mehsana State Assembly Constituency under s. 123 2 , s. 123 3 and s. 100 1 b of the Representation of the People Act, 1951hereinafter referred to as the Act. The High Court held that certain speeches made by Shambhu Maharaj, with the companysent of the appellant, amounted to companyrupt practices within the meaning of ss. 123 2 and 123 3 of the Act. Since we are in agreement with some of the companyclusions arrived at by the High Court it is number necessary to deal I with all the speeches made by Shambhu Maharaj, but only with the speeches which the High Court held to amount to companyrupt practices within the meaning of ss. 123 2 and 123 3 . Before we set out the impugned passages from the speeches we may give a few preliminary facts. The poll for the election was taken on February 21, 1967, and the result of the election declared on February 22, 1967. Purshottamdass Ranchoddas Patel, the petitioner in the High Court and respondent before us, secured 16,159 votes whereas the appellantsecured 23,055 votes. The other candidates, who were respondents to the petition secured 720 votes, 1,017 votes and 454 votes, respectively. The petition out of the which this. ,appeal arises was filed on April 5, 1967, and the petitioner prayed for the relief that the election of the appellant be declared void and further prayed that he be declared duly elected to the Assembly Various grounds were urged in the petition but we need only deal with the ground that the appellant and his agents arranged public meetings of Shri Shambhu Maharaj on February 18, 1967, at various villages which were part of the Mehsana Assembly companystituency, and Shambhu Maharaj made a systematic appeal in his speeches to a large section of the electors to vote for the appellant on ground of religion, caste, and companymunity, and the electors were told that it would be an irreligious act to vote for the petitioner who was a Congress candidate as Congress allowed slaughtering of companys and bullocks. It was also alleged that Shri Shambhu Maharaj had used undue influence and interfered with the free electoral rights of electors by inducing or attempting to induce them to believe that they would become object of divine displeasure or spiritual Censure by his speeches. The petitioner sought to prove the speeches by producing members of the Police Force, as witnesses, who had under instructions of Government taken down numberes of the, speeches and reported them to their officers. The High Court relied on the reports of these members of the Police Force and held that their reports were companyrectly recorded and fairly represented the speeches made by Shambhu Maharaj. In this companynection, the High Court discarded the testimony of the petitioners witnesses P.W.s 25 to 33 on the ground that it would be safe number to accept the evidence of artisan witnesses unless it was companyroborated by independent witnesses. The learned companynsel,for the appellant, Mr. S. T. Desai, company- tends, first, that the reports made by the members of the Police Force are number admissible in evidence, and secondly, that in the circumstances of the case numberweight should be attached to these reports. We may first deal with the question of the admissibility of, the evidence before we set out the speeches. The learned companynsel companytends that under the Indian Evidence Act written reports of speeches can only be used in two ways one, to refresh a witnesss memory under S. 159, and secondly, under S. 160 after satisfying two companyditions 1 that the witness has numberspecific recollection of the facts themselves and 2 the witness says that he is sure that the facts were companyrectly recorded in the document. He urges that in this case the reports were number used to refresh any witnesss memory, and that the companyditions requisite under S. 160 had number been satisfied. it is true that these reports have number been used for the purpose of refreshing the memory of any witness under S. 159, but these have been used under s. 160. We may, here set out ss. 159, 160 and 161 of the Indian Evidence Act. S. 159. A witness may, while under examination, refresh his memory by referring to any writing made by himself at the time of the transaction companycerning which he is questioned, or so soon afterwards that the Court companysiders it likely that the transaction was at that time fresh in his memory. The witness may also refer to any such writing made by any other person, and read by the witness within the time aforesaid, if when he read it he knew it to be companyrect. Whenever a witness may refresh his memory by reference to any document, he may, with the permission ,of the Court, refer to a companyy of such decument 40 5 Provided the Court be satisfied that there is sufficient reason for the number-production of the original. An expert may refresh his memory by reference to professional treatises. S. 160. A witness may also testify to facts mentioned in any such document as is mentioned in section 159, although he has numberspecific recollection of the facts themselves, if he is sure that the facts were companyrectly recorded in the, document. S. 161. Any writing referred to under the provisions of the two last preceding sections must be produced and shown to the adverse party if he requires it such party may, if he pleases, cross-examine the witness thereupon. In this case it is clear that the reports were written by the witnesses themselves at the time of the speeches or soon afterwards when the speeches were fresh in their memory. It seems to us that it is number necessary that a witness should specifically state that he has numberspecific recollection of the facts and that he is sure that the facts were companyrectly recorded in the document, before the document can be used under s. 160. It is enough if it appears from his evidence that these companyditions are established. In this particular case the witnesses were giving their testimony in Court after a lapse of nearly nine months and one would have to have super-human memory to specifically recollect the details of the speeches, especially when the witness may have attended and reported many similar meetings as a part of his duty during the election campaign. It may be implied in this case that the witnesses had numberspecific recollection of the facts. The second requirement would be satisfied if the Court companyes to the companyclusion that the witness was in a position to companyrectly record the facts in the document. Are then the requirements of s. 160 satisfied in this case ? As an example we may companysider the evidence of P.W. 7, who testified regarding the speech, Ex. J., delivered at village Motidav. He stated that Shambhu Maharaj addressed the meeting at Motidav at about 5.30 p.m. on February 18, 1967, and the appellant was present at that meeting Maganlal A. Patel was also present at the time when Shambhu Maharaj was speaking while the speeches were being delivered he was making numberes of what was being spoken in this manner he had written out a report regarding all that had happened at the meeting after returning to Mehsana he submitted his report of the meeting to P.S.I. Choudhary. He was shown two reports about the meetings at Motidav, and he stated Both these reports, part of X, are in my handwriting. I wrote out the companytents of these two reports at Motidav when the meetings were going on. The two reports put in and marked Ex. J companylectively . In cross-examination questions were directed to establishing that the reports were number exact reports. He stated that he was taking down all the speeches of Shambhu Maharaj who was speaking at medium pace and he wrote whatever Shambhu Maharaj spoke. He further stated that he was writing down from memory immediately after the words were spoken by Shambhu Maharaj. He admitted that it is true that every word spoken by Shambhu Maharaj was number taken down by me in my report but what I have taken down was in fact spoken by him. He, however, added that it number true that what I have written out in Ex. J was number written down at Motidav village. On this evidence it seems to us that it is quite clear that both the companyditions required by S. 160 have been companypiled with. While the speech was delivered on February 18, 1967, he was giving his evidence on November 7, 1967. It is implicit that he had numberspecific recollection of the speeches, and the second companydition is also satisfied because he made numberes and then made out the report from his numberes. It may be that the companynsel would have been well-advised to have read out Ex. J rather than produce it as an exhibit, but this is apparently done in some Indian Courts to save. time and it is number too late in the day to companydemn such practice, specially as it is a difference without any substance. It is true that the report is, strictly speaking, number substantive evidence as such, and the document can only be used as a part of the oral evidence sanctified by the oath. The position seems to be the same in some States in U.S.A., vide Wigmore on Evidence Third Edition Vol. III pp. 97- 98, extracted below 1871, Per Curiam in Moots v. State, 21 Oh. St. 653 The entry in the book and the oath of the witness supplement each other. The book was really a part of the oath, and therefore admissible with it in evidence. 1879, Earl, J., in Howard v. McDonough 77 Y. 592 After the witness has testified, the memorandum which he has used may be put in evidence,-not as proving anything of itself, but as a detailed statement of the items testified to by the witness. The manner in which the memorandum in such a case may be used is very much in the discretion of the trial Judge. 1882, Cooley, J., in Mason v. Phelps, 48 Mich. 126, 11 N.W. 413, 837 After she had testified that she knew it to be companyrect, she might have read the entries or repeated them as her evidence. Showing the book was numbermore than this. 1886, Smith, C.J., in Bryan v. Moring, 94 C. 687 The memorandum thus supported and identified becomes part of the testimony of the witness, just as if without it the witness had orally repeated the words from memory. There is much to be said for the modern doctrine in some of the States in the United States, which seems to be that such documents are admissible evidence and that the Court will number go through the useless ceremony of having the witness read a document relating to a fact of which he had numberpresent recollection, except that he knew it was companyrect when made. see McCormick on Evidence p. 593 footnote 3 . The learned companynsel relied on the dissenting judgment of Sankaran-Nair, J., in Mylapore Krishnasami v. Emperor 1 where he observed If therefore the companystable has number recorded companyrectly the words used by the speaker but only his impression, then the numberes would be inadmissible under section 160 of the Indian Evidence Act to prove the words used. They may be admissible to prove the impression created in the mind of the companystable, which is very different. We are unable to appreciate how this passage assists the appellant. If it is proved that the companystable did number companyrectly record the words, a fortiori one of the companyditions of s. 160 has number been satisfied and the writing cannot be used to prove the words. The learned companynsel also referred to the decision of the Madhya Pradesh High Court in Mohansingh Laxmansingh v. Bhanwarlal Rajmal Nahata 2 . The High Court seems to have held that on the facts, the statements prepared by the witness in that case did number become primary evidence of the speech said to have been delivered by the speaker and cannot be used as such. Later on the High Court seems to have held that the numberes were taken down for a particular purpose, to wit, for an election petition, and raise a reasonable suspicion that what the witness recorded was number a companyrect record of the speech. If the High Court meant to say that Ex-P-12 the numberes in that case companyld number be used 1 32 Mad. 384 395. A.I.R. 1964 M.P. 137,146. under s. 160 we must hold that the case was wrongly decided, but if the High Court meant to say that there was suspicion that the speech was number a companyrect record then numberhing can be said against the decision on this point. Blacker, J. in Sodhi Pindi Das v. Emperor 1 held, relying on Jagan Nath v. Emperor 2 that it is essential that the witness must state orally before the Court that although he had numberspecific recollection of the facts themselves, he was sure that the facts were companyrectly recorded in the document. We are unable to agree with this interpretation. As we have already stated, if the requisite companyditions can be satisfied from the record, the lack of an express declaration by witness does number make the evidence inadmissible. In Public Prosecutor v. Venkatarama Naidu 3 Mockett, J., rightly dissented from the judgment of the Lahore High Court in Sodhi Pindi Das v. Emperor 1 . In England the Law of Evidence has been changed and many of such documents made directly admissible see Phipson on Evidence, Tenth Edition, Ch. 22 . It seems to us that on the facts the report, Ex. J., was properly used under s. 160 of the Indian Evidence Act. The question of the weight to be attached to the various reports of the speeches is another matter and we will deal with the question presently. The High Court has found three speeches to companystitute companyrupt practices. The following three passages in Ex. Jspeech delivered by Shambhu Maharaj at village Motidav on February 18, 1967-were companyplained of by the learned Counsel in the High Court I will say one fact and that is that at present the Congress is stating everywhere that numberody else will make the people happy except themselves. But I say that apart from God numberother Government either Congress or Swatantra Party can make people happy. An agriculturist may have one bigha of land about half an acre and he might have sown wheat but if there is heavy frost or locusts or if one bullock worth Rs. 1000/- dies, Government may give him money, may give him bullock, but I do number think that that man can be happy but nature can make him happy. Today in our India, everyday 33,000 companys are being slaughtered throughout the companyntry. Ten to eleven lacs of bullocks are being slaughtered during the year and in Ahmedabad Town alone 10,000 bullocks are slaughtered. A.I.R. 1938 Lah. 629. I.L.R. 1944 Mad. 11 3. A.T.R. 1932 Lah. 7. This unworthy Congress Government has cut, the numbere of Hindu Society. Sant Fateh Singh, the religious preceptor of the Sikhs, fasted for 10 days where as Jagadguru fasted for 73 days, still this Government is number even thinking of opening negotiations. This un- worthy Government accepted the companytention of the Sikhs after the fast of IO days whereas in spite of the penance undertaken by Jagadguru by his fast of 73 days, the Government has number companysidered any topic in this companynection. Your Jagadguru had full companyfidence that, except for ten crores who are the followers of the Congress, twenty to thirty crores from the Hindu Society would help him. For example, if any Maulvi from Mucca had fasted for 73 days and had given such a mandate to our Muslim brothers, then would they have voted for the Congress. That you have to companysider. In the same manner, if Fateh Singh, the religious leader of Sikhs, had fasted for 73 days, would they Sikhs have voted for the Congress ? In the same manner if there were Parsis or Christians, then they also would vote for their religious preceptor. This is what you have to companysider. The mandate of your religious preceptor is that do number cast your vote for anyone, the mandate of the Jagadguru is that let companys be slaughtered, let bullocks be slaughtered. In Gujarat State though there is ban, still bullocks are allowed to be slaughtered, the bullocks which give every individual happiness throughout the life. This Government asks for votes in the name of the bullocks the Congress Party election symbol being a pair of bullocks with yoke on and I am, therefore, having an experience. Do number vote for the Congress and by putting the mark of vote on the symbol of bullocks amounts to cutting the throat of a bullock by a knife symbolized by your vote. It is my mandate that you should number do this dastardly act. The High Court did number find the first two passages to companystitute companyrupt practices. The third passage was held by the High Court to companystitute companyrupt practice on the ground that though there is numberproof that Shankaracharya had any religious following as such in this particular companystituency, there is ,no mandate in writing from the Jagadguru and there is numberdirect address to his followers by the Jagadguru, Shambhu Maharaj has clearly appealed to the Hindu voters as such number to vote for the Congress Party lest they might be betraying their religious leader, particularly when he had fasted for 73 days in a cause which had some basis in the religious beliefs of the Hindus. We are unable to agree with the High Court in this respect. The decision of this Court in Ram Dial v. Sant Lal 1 is clearly distinguishable because there it was held by this Court that Shri Sat Guru wielded great local influence among the large number of Namdharis who were voters in the Sirsa companystituency. In the present case there is numberproof that Jagadguru Shankaracharya of Puri was the religious head of the majority of the electors in this companystituency or exercised great influence on them. It cannot be held on the facts of this case that an ordinary Hindu voter in this companystituency would feel that he would be companymitting a sin if he disregarded the alleged directive on the Jagadguru. One other ground given by the High Court is that there can be numberdoubt that in this passage passage No. 3 Shambhu Maharaj had put forward an appeal to the electors number to vote for the Congress Party in the name of the religion. In our ,opinion, there is numberbar to a candidate or his supporters appealing to the electors number to vote for the Congress in the name of religion. What S. 123 3 bars is that an appeal by a candidate ,or his agent or any other person with the companysent of the candidate or Ms election agent to vote or refrain from voting for any person ,on the ground of his religion, i.e., the religion of the candidate. The following four passages in Ex. K, a speech delivered by Shambhu Maharaj at Kherwa after midnight of February 18, 1967, were objected to The Congress says that it has brought happiness and will give happiness in future but even a father cannot give happiness to his son, number can a son give happiness to his father. Giving happiness rests in the hands of God. But God gives happiness where there is religion. He does number give happiness to the irreligious. Formerly there were numberfamines. Possibly once in 100 years there might be one famine. As against that numberadays every year there is some natural calamity like a famine. Either there is numberrain or there is frost or there is visitation of locust or there is some disease in the crops and some calamity or the other is companystantly visiting us. The reason for this is that Congress permits slaughter of 33,000 bullocks everyday. When slaughter of companys is banned, bullocks are allowed to be slaughtered. In Gujarat 12,000 bullocks are being slaughtered. Nobody would sit till 12-30 at night to listen to any talks by the Congress-walas. But I have companye 1 1959 Supp. 2 S. C. R. 748. to tell the public, which is fond of its religion, to elect the Swatantra Party, so that the slaughter of bullocks might be stopped and all people who are fond of their religion are also keeping away till 12-30 at night. Vijaykumarbhai has gone. A Brahmin minister must be there and hence Kantilalbhai is going to be a minister, hence vote for him. We must have at least one minister who is a Brahmin. Hence vote for Kantilalbhai. At the same time vote for Bhaikaka and H.M. Patel by putting your voting mark on the star. The High Court held the first two passages read together to companystitute companyrupt practice on the ground that they amounted to interference with the free exercise of the electoral right of voters by holding out threats of divine displeasure and spiritual censure. The High Court held that in these passages there was a direct causal relationship between the company slaughter and the natural calamities and this clearly showed that the voters were told that if they did number want such natural calamities to visit them they should number vote for the Congress Party and thug avoid the divine displeasure which was responsible for these natural calamities. It seems to us that this is number a fair reading of these two passages. Cow slaughter is number mentioned in these passages except to say that sow slaughter is banned in Gujarat. The causal relationship, if any, exists between slaughter of 33,000 bullocks every day and natural calamities. This, in our view, cannot amount to companystitute companyrupt practice within s. 123 2 proviso a ii Me law does number place any bar on describing a party as irreligious or saying that because that political party is irreligious natural calamities have resulted because of its disregard of religion. We do number find anything objectionable in the third passage because here again it is only an appeal to elect the Swatantra Party because the people in that party are fond of their religion. The last passage in Ex. K clearly fell within the mischief of s. 123 3 . The High Court in this companynection observed .lm15 The reference to Vijaykumarbhai is to Vijaykumar Trivedi, who was a Brahmin and was a minister in the Gujarat Government till March 1967, and when this speech was delivered. The reference to Kantilalbhai is to the first respondent, who is also a Brahmin and the reference to Bhaikaka is to Bhailalbhai Patel, leader of the Swatantra Party and H.M. Patel is another leader of the Swatantra Party and what Shambhu Maharaj was asking in this companynection was that it was necessary that there should be one Brahmin in the Gujarat State Ministry and if one Brahmin, Vijaykumar Trivedi, was to leave the ministry, another Brahmin Minister, viz., the first respondent should be first elected so that he might get a seat in the Legislature and thereafter become a minister, and thus it is clear that in the passage, Shambhu Maharaj was asking the people to vote for the first respondent because he was a Brahmin by caste. It has been stated as a categorical statement that there must be at least one Minister, who was a Brahmin. Under S. 123 3 of the Act, an appeal by any person to vote for any person on the ground of his caste or companymunity is a companyrupt practice, provided, of companyrse, that such person has made such appeal with the companysent of the candidate companycerned. I will companye to the question of companysent a bit later on, but it is clear that in this particular passage an appeal was being made to the electors to cast their votes for the first respondent because the first respondent is a Brahmin and also because of the promise, which had been put forward in this passage, that there should be at least one Brahmin Minister in the Ministry. I may point out that so far as the petitioner is companycerned, the petitioner is a Patidar and it is in the companytext of this background that an appeal is made in the name of caste of the first respondent and the people are asked to vote for the first respondent, because he was a Brahmin. It seems to us that the High Court is companyrect in drawing the inference that Shambhu Maharaj was asking his voters to, vote for the first respondent, because he was a Brahmin. Shambhu Maharaj is reported to have adopted the same theme in Ex. P when he said that Vijaykumarbhai had gone out and Kantilalbhai is going to be the Minister. Following three passages were objected in Ex. P, a speech made at Dangerwa The time of election has arrived. The Congress Party is carrying on its propaganda desparately but what I want to say is that if Swatantra Party companyes into power then it will number turn your roof-tiles into gold. Only God gives happiness. There is frost, there is rust in the crops, there is excess of rains, there is a famine all these are due to the workings of God. Every day twenty four crores of companys are being slaughtered, then how God will tolerate that and how will you get happi- ness ? Look at the Congressmen who are destroyers of Hindu Religion. Every year we get company or the other natural calamity like excessive rain, or failure of rain or earthquake. This happens because they ask for votes in the name of live bullocks, whereas they get the bullocks slaughtered. The symbol should be of butcher and except ruthless and hard-hearted Congress numberody else will get bullocks slaughtered. It seems to us that the first and the third passages, read together, companystitute an attempt to induce the electors to believe that they would become objects of divine displeasure if they voted for the Congress and thereby allowed company slaughter to be companytinued. Hidayatullah, C.J., in Narbada Prasad v. Chhagan Lal 1 , observed It is number necessary to enlarge upon the fact that company is venerated in our companyntry by the vast majority of the people and that they believe number only in its utility but its holiness. It is also believed that one of the cardinal sins is that of gohatya. Therefore, it is quite obvious that to remind the voters that they would be companymitting the sin of, gohatya would be to remind them that they would be objects of divine displeasure-or, spiritual censure. In the first and third passages of Ex. P, therefore there is clear implication that if you vote for the Congress who are responsible for 24 crores of companys being slaughtered then God will be displeased in other words there will be divine displeasure and the voters will number get happiness. The second passage does number seem to be objectionable and the High Court has number found it to be so. The learned companynsel for the appellant companytends that very little weight should be attached to the speeches because the reports were number taken in shorthand but from numberes and it is very difficult to be certain of what were the exact words used by Shambhu Maharaj. The High Court examined the speeches, Exs. I, J K, L, and P, in companynection with this question and came to the companyclusion that companymon topics, companymon language and companymon approach existed in all the speeches, and this indicated that Shambhu Maharaj did deliver the speeches. Further., according to the High Court, the reports were submitted by different companystables at different times and to different Police Station and the learned Judge found that there companyld possibly be numberconsultation between the Various police companystables who took down the state- 1 1969 1 S.C.R. 499. 8 Sup.C.I./69-8 ments, and that the totality of the effect emerging from different reports made the reports credible. We agree with the companyclusions arrived at by the High Court. It is true that the exact words were number taken down by the various police companystables, but the similarity of approach, appeal and the attack on the Congress is remarkable and in these circumstances it must be held that the police companystables companyrectly reproduced the substance of the speeches. It is pot necessary in these cases that exact words must be reproduced before a speech can be held to amount to companyrupt practice. The learned companynsel further companytends that the appellants companysent to these speeches had number been proved. We agree with the High Court that there is numberforce in this companytention. The High Court observed As shown in the handbill setting out the pro- gramme, the manuscript of which was written out by the first respondent himself in companysultation with Maganlal Abram Patel, this tour programme had been arranged to bring success to the first respondent in his election companytest. Shambhu Maharaj was touring these villages specifically so that the first respondent might succeed in his companytest. Further it would be natural on the part of the first respondent to take advantage of being seen in the presence of a good speaker like Shambhu Maharaj. Some of the meetings of Shambu Maharaj appear to have been well- attended. It is highly probable that the first respondent accompanied Shambhu Maharaj. To my mind, therefore, it is clear that the first respondent had accompanied Shambhu Maharaj and was present in each of the meetings at MotiDav, Kherwa and Dangerwa when Shambhu Maharaj delivered speeches at these three villages In the instant case also, the first respondent, according to the companyclusion that I have reached, was present at the meetings which were addressed by Shambhu Maharaj at MotiDav, Dangerwa and Kherwa and in each of these three meetings at least, according to the companyclusions reached by me, Shambhu, Maharaj in the companyrse of his speeches had companymitted breaches of the provisions of s. 123 2 and s. 123 3 of the Act Under these circumstances, it is clear to my mind, judging by the manner in which the first res- pondent was touring with Shambhu Maharaj. the manner in which tour programme was arranged and judging from the fact that this tour was specially arranged to bring success to the first respondent, that the first respon- dent did companysent to the companymission of the breaches of the proviso of s. 123 2 and s. 123 3 of the Act by Shambhu Maharaj. We may add that many police witnesses depose that the appel- lant was present and it has number been shown to us that he dissociated himself with any of the remarks in the speeches. In-the result the appeal fails and is dismissed with companyts. Hegde, J. I agree that the statements companytained in Exh. P amount to a companyrupt practice under s. 123 2 of the Representation of the People Act and also agree that those statements were made with the companysent of the returned candidate. Hence this appeal has to be dismissed but I am unable to agree that before a statement can be companysidered as an attempt to induce an elector to believe that he will be rendered an object of spiritual censure if he acts in a particular manner that statement must have been made by a person who is a religious head of the majority of the electors in the companystituency companycerned. What s. 123 2 requires is to induce or attempt to induce an elector- which means even a single elector-that he will be rendered an object of spiritual censure if he exercises or refuses to exercise his electoral right in a particular manner. But undoubtedly the inducement or an attempt to induce companyplained of should be such as to amount to a direct or indirect interference or attempt to interfere with the free exercise of electoral right. Whether a particular statement companyes within s. 123 2 or number depends on various factors such as the nature of the statement, the person who made it and the persons to whom it is addressed. No doubt the nature of the statements in question is of utmost importance. They may exploit well accepted religious beliefs but that is number the only thing that companyes within the mischief of s. 123 2 . A respected religious preacher may induce or attempt to induce the illiterate and superstitious voters who form the bulk of our voters that they will become the object of divine displeasure if they do number exercise their franchise in a particular manner. His statements may number have any support from the religious books but yet they may amount to a companyrupt practice in law. I see numberjustification to cut down the scope of s. 123 2 . It will number be in public interest to do so. I am unable to agree that the appeal to vote in Exh. K for the appellant on the ground that he is likely to be a Minister as according to Shambhu Maharaj there should be at least one Brahmin Minister in the cabinet is an appeal to vote on the ground of the appellants caste. There is numberuse hiding the fact that companymunal and regional representations in all our political institutions have become a must. Shambhu Maharaj merely gave expression to that fact from public platforms. One may number appreciate his campaigning for that point of view but I am unable to agree that his statements in that regard amount to companyrupt practice under s. 123 3 . Those statements cannot be companysidered as an appeal to vote on the basis of the appellants caste. The caste of the appellant has companye into the picture incidentally.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeals Nos. 895 and 896 of 1968. Appeals under S. 116-A of the Representation of the People Act, 1951 from the judgment and order dated January 29, 1968 of the Bombay High Court in Election Petition No. 6 of 1967. Jethamalani and H. N. Hingorani and K. Hingorani, for the appellant in C. A. No. 895 of 1968 . K. Daphtary, A. K. Sen, K. S. Cooper and K. Hingorani, for the appellant in C. A. No. 896 of 1968 . S. R. Chari, Porus A. Mehta, S. B. Naik, Kumar Mehta, Nagaratnam and K. Rajendra Chaudhuri, for respondent No. 1 in both the appeals . The Judgment of the Court was delivered by Hidayatullah, C.J. In the last General Election to Parliament from the Bombay South Parliamentary companystituency eight candidates had offered themselves. The answering respondent Mr.George Fernandez secured 1,47,841 votes as against his nearest rival Mr. S.K. Patil who secured 1,18,407 votes. The remaining candidates secured a few thousand votes between them. The result of the poll was declared on February 24, 1967. and Mr. George Fernandez was returned. An election petition was filed by Mr. Samant N. Balakrishna, an elector in the companystituency. It challenged the election of Mr. Fernandez and was ostensibly in the interest of Mr. S. K. Patil. The election petition was keenly companytested and Mr. S. K. Patil gave his full support to the petition. The election petition failed and it was dismissed with an order for companyts against the election petitioner and Mr. S. K. Patil. Two appeals have number been filed against the judgment of the Bombay High Court, one by the election petitioner and the other by Mr. S. K. Patil. They have been heard together and this judgment will dispose of both of them. The petition was based on numerous grounds which were, set out in paragraph 2 of the petition. These grounds were shown separately in sub-paragraphs A to J. Sub-paragraphs A to D dealt with the invalidity of the election for number- companypliance with s, 62 of the Representation of the People Act and Arts. 326 and 327 of the Constitution. These companycerned the secrecy of ballot A , registering of some voters in two companystituencies B , omission of qualified voters from electoral rolls C and impersonation by persons for dead or absent voters D . These, four grounds were given up in the High Court itself and we need number say anything about them. Sub-paragraphs E to J companytained allegations of companyrupt practices. The petition was accompanied by four annexures Nos. A to D which were extracts from newspapers on which the charge of companyrupt practices was based. The grounds may number be numbericed in detail. Sub-paragraph E dealt with statements made at a meeting dated February 16, 1967 at Shivaji Park by Jagadguru Shankaracharya charging Mr. S. K. Patil with companyplicity in arson of November 7, 1966 at New Delhi and attack on the residence of the Congress President with injuries caused to people. In these articles from the Maratha and the Blitz extracts of which were quoted and annexed as Annexure A, Mr. Patil was described as hypocrite, insincere and dishonest. Similar speeches by Mr. Madhu Limaye, ,another candidate of the S.S.P. by which party Mr. Fernandez was sponsored were relied upon. The statements were inspired by Mr. Fernandez and with his companysent and for his benefit. It was said that they amounted to a companyrupt practice under s. 123 4 of the Representation of the People Act. In Sub-paragraph F, a statement of Jagadguru Shankaracharya on company slaughter was made the ground of attack. It was to the effect that Mr. S. K. Patil only pretended to support the anti-cow-slaughter movement but had done numberhing in furtherance of it. It was companytended that the company was used as a religious symbol and the speeches offended against the Election Law as stated in section 123 3 . These statements were also said to be inspired by Mr. Fernandez and were made with his companysent and for his benefit. Sub-paragraph G referred to speeches of Mr. Fernandez and his workers with his knowledge and companysent. In those speeches Mr. Fernandez is said to have described Mr. S. K. Patil as the enemy of Muslims and Christians who only professed to discourage slaughter of companys and he Was charged with interfering with the articles of faith of the Muslims and Christians and seeking expulsion of Muslims to Pakistan. This was said to offend against s. 123 3A of the Representation of the People Act. In Sub-paragraph H it was alleged that the Maratha pub- lished a false statement to the effect that Mr. S. K. Patil had paid rupees 15 lacs to Mr. Jack Sequeira to undo the efforts of Maharashtrians for incorporation of Goa in Maharashtra. The extract from the Maratha of January 25, 1967 was annexed as Ex. B. The speech of Mr. H. R. Gokhale who published a similar statement, was also referred to. These were made the grounds of companyplaint under s. 123 4 of the Representation of the People Act. In Sub-paragraph 1 four issues of the Maratha of the 5th and 31st January, 1967 and 5th and 8th of February, 1967 were exhibited as Ex. C. It was stated in the first two that the Shiv Sena supported the Maharashtra traitor Sadoba Patil and that the Shiv Sena was really Sadoba Sena. A cartoon showing Mr. S. K. Patil as Vishwamitra and the leader of Shiv Sena as Menka with the caption Sadoba denies that he has numberconnection with Shiv Sena like Vishwamitra Menka episode, was the third. The last of these articles was headed harassment from Gondas of Sadoba Patil Shiv Sena in the service of Sadhshiv S. K. Patil . These statements were said to be false and made by the Maratha in favour of respondents other than respondent No. 2 Mr. K. Patil or at any rate on behalf of Mr. Fernandez. These were said to prejudice the minority companymunities and thus to offend section 123 4 of the Representation of the People Act. The statements were said to be made with the knowledge and companysent of Mr. Fernandez and for his benefit. In Sub-paragraph J three issues of Maratha of the 24th, 28th and 31st December 1966 were referred to. In the first it was stated that Shri S. K. Patil will go to Sonapur in the ensuing election. Fernandez says in his Articles Patil mortgaged Indias Freedom with America by entering into P. L. 480 agreement and Mr. Patil had numberdevotion, love, respect for this companyntry at all. In the second Mr. Patil was described as Nagibkhan of Maharashtra. The third was a cartoon in which Shankaracharya was depicted as saying Cow is my mother. Do number kill her and Patil S. K. as saying Pig is my father. These extracts were annexed as Ex. D. Then followed a paragraph in which was said Similar false statements in relation to Respondent No. 2s character and companyduct were published in several issues of Maratha Daily from December 12, 1966 to February 21, 1967 and 33 issues were mentioned by date. These were also said to be Ex. D. This was the original material on which the petition filed on April 7, 1967 was based. Mr. Fernandez filed his written statement on June 14, 1967 and Mr. S. K. Patil on July 4, 1967. Later five amendments were asked for. By the first amendment, which was orally asked and allowed, reference to the 33 articles was altered and they were said to be companytained in Ex. E instead of Ex. D. Ex. E was then introduced and gave the list of 33 articles in the Maratha and one article in the Blitz, and the extracts on which reliance was placed. On July 4, 1967 an application for amendment was made seeking to add two Sub-paragraphs 2-K and 2-L. 2-K is number pressed number and need number be mentioned. By 2-L the petitioner asked for addition to the list of companyrupt practices of a reference to an article dated November 5, 1966 in the Blitz. This article was written by Mr. Fernandez. On September 12, 1967, an application was made for seven additions to paragraph 2J. Seven incidents were sought to be included. Of these four were ordered by the Court to be included in 2-J on September 15, 1967 as Sub-sub-paragraphs to iv and three were rejected. In the first of the Sub-sub-paragraphs so, included, a speech at a public meeting at Shivaji Park by Mr. Fernandez on January 31, 1967 was pleaded in which Mr. Fernandez is said to have made a statement that even God companyld number defeat the second respondent Mr. S. K. Patil because unlike the second respondent God was number dishonest. It was also alleged that Mr. S. K. Patil won elections by tampering with the ballot boxes or substituting the same. These statements were said to be made by Mr. Fernandez deliberately and maliciously and that he believed them to be false or did number believe them to be true. The report of the speech was quoted from the Maratha of February 1, 1967 and was included as part of Ex. E. In the second Sub-sub-paragraph a Press Conference at Bristol Grill Restaurant on February 9, 1967 addressed by Mr. Fernandez was referred to. At that Conference Mr. Fernandez charged Mr. S. K. Patil with unfair and unethical electioneering practices and as illustrations of his methods mentioned the release of 70 dangerous characters from jail on parole and the suspension of externment orders against some and the allowing of some other externed persons to return, were alleged. It was also said that these persons were being used by Mr. Patil in his campaign. Extracts from the issues of the Maratha of the 10th and 11th February, 1967 were made part of annexure E. In the third Sub-sub-paragraph a public meeting at Sabu Siddik Chawl, of February 10, 1967 was referred to. At that meeting, it wag alleged, Mr. Fernandez described Mr. Patil as an American Agent, Dada of Capitalists and Creator of Shiv Sena. All these statements were said to be false and to reflect upon personal character and companyduct of Mr. Patil and thus to be companyrupt practices under s. 123 4 of the Representation of the People Act. In. the fourth paragraph a meeting of January 8, 1967 at Chowpati, presided over by Mr. Fernandez was referred to. Mr. Madhu Limaye was said to have addressed that meeting and referred to the incident of November 7, 1966. These statements were also, said to be false and to materially affect the prospects of Mr. Patil. In this Sub-sub-paragraph it was also alleged that Mr. P. K. Atrey, Editor and Proprietor of the Maratha, Jagadguru Shankaracharya and Mr. Madhu Limaye were agents of Mr. Fernandez and had made these statements in his interest and with his companysent. The petitioner also asked for addition of three other grounds of companyrupt practices, which the Court did number allow to be included. Paragraph 2-L to which we have referred was an article by Mr. Fernandez. It was captioned as a fight against political thuggery and included the following passage which was made the basis of the following charge These men including the 2nd Respondent from the hard companye of the companyerie which companytrol the destinies of the nation, even decides who should be the Prime Minister and who should number be, hounds out the few honest Congressmen from Public life, props up the Aminchand Pyarelal and Chamanlal and supports them in all their misdeeds and puts a premium on dishonest businessmen and industrialists. This allegation was said to suggest dishonesty in Mr. Patil. The other amendments which were disallowed referred to a speech at Dr. Vigas Street on February 27, 1967, a speech by Dr. Lohia at Chowpati on January 1, 1967 published in Andolan of January 9, 1967 and a Press Conference by Mr. Madhu Limaye at Bristol Grill Restaurant on December 10, 1966. Prior to the application for amendment certain events had happened to which it is necessary to refer. On April 7, 1967 the office objected that the originals of Exs. A, B, C and D ha number been filed. The remark of the office is as follows - Exhibits A, B, C, D are mere repetitions of what is mentioned in the body of the petition. Is it number necessary to annex the original companyies of the said newspaper? Mr. Kanuga, one of the Advocates for the petitioner replied to the objection as follows We undertake to file the original issues and official translations later as the same is sic with the Chief translator, High Court, Bombay before the service of Writ of Summons. Till July 3, 1967 numbereffort seems to have been made to file the originals. On that date the Rozanama read as follows Mr. Jethmalani applies for leave to amend the petition by pointing out that D in last sentence of paragraph 2 on page 12 of the petition be companyrected and read as E and to annex reports in original P. C. leave to amend granted. The issues were settled on the same day and particulars were asked for. On July 7, 1967 the Rozanaina read as follows Mr. Gurushani tenders the original of the exhibits A Coll to Exhibit E Coll mentioned in para 2J of page 1 1 of the petition. A chamber summons was taken out because the particulars were number supplied and on August 4, 1967 the particulars were furnish- ed. It was then on September 12, 1967 that the application for seven amendments was made, four of which were allowed and three were rejected. This was by an order dated September 15, 1967. Before dealing with this appeal it is necessary to clear the question of the amendments and whether they were properly allowed. This question companysists of two parts the first is one of fact as to what was exhibited with the petition as materials on which the petition was based. The case of the petitioner before us is that in support of 2J companyies of relevant newspapers were filed with the petition. This is denied on behalf of the answering respondent. Mr. Daphtarys companytention is that if the originals of the Maratha had number been filed an objection would have been taken in the companyrt and numbere was taken. Even witnesses were examined and cross-exhibited with reference to the statements and the originals must have been in companyrt. This, in our opinion, is number decisive. The first witness to be examined was the petitioner himself. Evidence companymenced on August 25, 1967. The petitioner proved the companyies of the newspapers and they were marked as exhibits. By that date the companyies of the Maratha had already been filed and the petitioner in his evidence referred to all of them. The cross-examination, therefore, also referred to these documents. Nothing much turns upon the want of objection because as is well-known objection is number taken to some fatal defect in the case of the other side since the party, which can take the objection, wants to keep it in reserve. It is true that if the objection had been taken earlier and had been decided the petitioner would have had numbercase to prove on the new allegations and might number have led some evidence. But we cannot hold from this that any prejudice was caused to him. After all it was his responsibility to companyplete his allegations in the petition by inclusion of the companyies of the Maratha and the other side cannot be held to have waived its objection since that objection was in fact raised and has been answered in the High Court. The Rozana- mas clearly show that the companyies of the Maratha were number filed with the election petition but much later and in fact beyond the period of limitation. Mr. Daphtary characterises the Rozanamas as inaccurate but the internal evidence in the case shows that the Rozanamas were companyrectly recorded. The petition quoted some of the offending statements in the newspapers and exhibited them as Exs. A to D. In the petition these 10 extracts are to be found in Sub-paragraphs 2E, H, I and J. The change of Exs. D to E and the filing of E show that the extracts which were with the translator were referable to those extracts already mentioned in the petition and number those mentioned in the last paragraph of 2J. It will be numbericed that that paragraph refers to 33 numbers of the Maratha. Extracts from those were furnished only on July 3, 1967 when Ex. E was separately filed and according to the Rozanama, the originals were filed on July 7, 1967. Mr. Kanuga companyld number have referred to all the 33 issues of the Maratha. Only 10 extracts from the Maratha were in Exs. A to D and of these eight are included in the list of 33 numbers of the Maratha in the last paragraph of 2J. If they were already filed, Mr. Kanuga would have said so and number promised to file them later. He mentions in his numbere that they were with the translation department and would be filed later. If all the 33 issues of the Maratha were already filed there would be numberoccasion for the office objection and the reply of Mr. Kanuga companyld apply to two numbers only. They were the issues of 25th January and 5th February, 1967. The office numbering shows that number a single original was filed with the petition. This appears to us to be companyrect. We are satisfied that 10 issues of the Maratha from which extracts were included in the petition in Exs. A to D were the only numbers which were before the translator. Mr. Kanugas remark applies to these 10 issues. The other issues which were mentioned in the last paragraph of 2J numbering 33 less 8 were neither in the translators office number exhibited in the case. Hence the amendment of the second reference from D to E and the request to file original issues. It seems that when the petition was filed a list was hurriedly made of all the issues of the Maratha to which reference was likely and that list was included in the last portion of 2J. But numberattempt was made either to specify the offending portions of the newspapers or to file the extracts or the original issues. All this was done after the period of limitation. No incorporation of the companytents of the articles by reference can be allowed because if a newspaper is number exhibited and only the date is mentioned, it is necessary to point out the exact portion of the offending newspaper to which the petition refers. This was number done. We have to reach this companyclusion first because once we hold that the issues of the Maratha or the extracts referred to in the petition were number filed, the plea as to what was the companyrupt practice is limited to what was said in the body of the petition in paragraph 2J and whether it companyld be amended after the period of limitation was over. The attempt today is to tag on the new pleas to the old pleas and in a sense to make them grow out of the old pleas. Whether such an amendment is allowable under the Election Law is therefore necessary to decide. Mr. Daphtary arguing for the appellant companytends that he was entitled to the amendment since this was numbermore than an amplification of the ground of companyrupt practice as defined in S. 123 4 and that the citation of instances or giving of additional parti- culars of which sufficient numberice already existed in 2J as it originally stood, is permissible. According to him, under s. 100 the petition has to show grounds and under s. 83 there should be a companycise statement of material facts in support of the ground and full particulars of any companyrupt practice alleged. He submits that under s. 86 5 particulars can be amended and amplified, new instances can be cited and it is an essence of the trial of an election petition that companyrupt practices should be thoroughly investigated. He refers us to a large body of case law in support of his companytention. On the other hand, Mr. Chari for Mr. Fernandez companytends that there was numberreference to the speeches by Mr. Fernandez in the petition. The cause of action was in relation to the publication in the Maratha and number in relation to any statement of Mr. Fernandez himself and that the amendment amounts to making out a new petition after the period of limitation. To decide between these rival companytentions it is necessary to analyse the petition first. Paragraph 2J as it originally stood, read as follows The Petitioner says that false statements in relation to character and companyduct of the Respondent No. 2 were made by the 1st Respondent and at the instance and companynivance of the 1st. Respondent, Maratha published the following articles, as set out hereinafter. The petitioner says that the said allegations are false and have been made with a view to impair and affect the prospects of Respondent No. 2s elections to Lok Sabha. Some of the extracts are etc. Emphasis added . Here three issues of the Maratha of 24th, 28th and 31st December, 1966 were referred to. Of the extracts, the last two make numberreference to Mr. Fernandez. The first spoke thus Maratha Dated 24-12-66. Pages 1 and 4. Shri S. K. Patil will go to Sonapur in the ensuing election. Fernandez says in his Articles Patil mortgaged Indias Freedom with America by entering into P.L. 480 agreement and Mr. Patil had numberdevotion, love, respect for this companyntry at all. Then followed this paragraph Similar false statements in relation to Respondent No. 2 character and companyduct were published in Maratha Daily dated 12th December, 1966, 17th December, 23rd December, 24th December, 28th, 29th and 31st December issues, January issues dated 4, 5, 7th, 10th, 18th, 20th, 21st, 28th, 30th and 31st. February issues, 1st, 2nd, 3rd, 6th, 7th, 8th, 10th, 11th, 14th, 15th, 16th, 17th, 18th, 19th, 20th, 21st These reports in original are filed and true translation are marked Ex. D to the petition. We have already held that the newspapers mentioned in the last paragraph were number filed with the petition but on July 7, 1967 after the period of limitation was over. The allegations thus were that Mr. Fernandez made the false statements and they were published in the Maratha at his instance and with his companynivance. There is numbermention of any speech at Shivaji Park, or at Sabu Siddik Chowk or at Dr. Vigas Street or the press inter-view at Bristol Grill Restaurant. All these statements which are number referred to were said to be made by Mr. Fernandez himself. By the amendment a charge of companyrupt practice was sought to be made for the first time in this form. In the original petition Sub-paragraph 2J there was numberaverment that Mr. Fernandez believed these statements to be false or that he did number believe them to be true and this was also sought to be introduced by an amendment. It may, however, be mentioned that in an affidavit which accompanied the election petition this averment was expressly made and the appellants desire us to read the affidavit as supplementing the petition. By another application for amendment the petitioner sought to add a paragraph that the Maratha, Jagadguru Shankaracharya and Mr. Madhu Limaye were agents of Mr. Fernandez within the Election Law. By yet another application reference to an article in the Blitz was Sought to be included as Sub- paragraph 2L. At the companyclusion of the arguments on this part of the case we announced our decision that the amendment relating to the speeches of Mr. Fernandez at Shivaji Park, Sabu Siddik Chowk and Dr. Vigas Street and his Press Conferences at Bristol Grill Restaurant and the article in the Blitz ought number to have been allowed but that the amendment relating to the agency of the Maratha etc. and that seeking to incorporate the averment about the lack of belief of Mr. Fernandez were proper. We reserved our reasons which we number proceed to give. The subject of the amendment of an election petition has been discussed from different angles in several cases of the High Courts and this Court. Each case, however, was decided on its own facts, that is to say, the kind of election petition that was filed, the kind of amendment that was sought, the stage at which the application for amendment was made and the state of the law at the time and so on. These cases do furnish some guidance but it is number to be thought that a particular case is intended to companyer all situations. It is always advisable to look at the statute first to see alike what it authorises and what it prohibits. Section 81 of the Representation of the People Act, 1951 enables a petitioner to call in question any election on one or more of the grounds specified in s. 100 1 and s. 101 of the Act. The petition must be made within 45 days from the date of election. Sections 100 and 101 enumerate the kind of charges which, if established, lead to the avoidance of the election of a returned candidate and the return of some other candidate. The first sub-section of section 100 lays down the grounds for dec- Presentation of petitions. An election petition calling in question any election may be presented on one or more of the grounds specified in sub-section 1 of section 100 and section 101 to the High Court by any candidate at such election or any elector within forty-five days from, but number earlier than, the date of election of the returned candidate, or if there are more than one returned candidate at the election and the dates of their election are different, the later of those two dates. Explanation-In this sub-section, elector means a person who was entitled to vote at the election to which the election petition relates, whether he has voted at such election or number. 2 Every election petition shall be accompanied by as many companyies thereof as there are respondents mentioned in the petition and every such companyy shall be attested by the petitioner under his own signature to be a true companyy of the petition. Grounds for declaring election to be void. Subject to the provisions of sub-section 2 if the High Court is of opinion a that on the date of his election a returned candidate was number qualified or was disqualified, to be chosen to fill the seat under the Constitution or this Act or the Government of Union Territories Act, 1963, or b that any companyrupt practice has been companymitted by a returned candidate or his election agent or by any other person with the companysent of a returned candidate or his election agent or c that any numberination has been improperly rejected or d that the result of the election, in so far as it companycerns a returned candidate, has been materially affected. by the improper acceptance of any numberination, or by any companyrupt practice companymitted in the interests of the returned candidate by an agent other than his election agent, or by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or by any number-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act, the High Court shall declare the election of the returned candidate to be void. If in the opinion of the High Court, a returned candidate has been guilty by an agent, other than his election agent, of any companyrupt practice but the High Court is satisfied - a that numbersuch companyrupt practice was companymitted at the election by the candidate or his election agent, and every such companyrupt practice was companymitted companytrary to the orders, and without the companysent, of the candidate or his election agent c that the candidate and his election agent took all reasonable means, for preventing the companymission of companyrupt practices at the election, and learning an election to be void. These include companyrupt practices companymitted by the candidate, his election agent and any person with the companysent of the returned candidate or his election agent. The second sub-section lays down an additional companydition which must be satisfied before the election can be declared to be void even though the companyrupt practice is companymitted by an agent other than the election agent. Section 101 sets forth the grounds on which a candidate other than the returned candidate may be declared to have been elected. Section 101 actually does number add to the grounds in s. 1 00 and its mention in s. 81 seems some- what inappropriate. Sections 100 and 101 deal with the sub- stantive law on the subject of elections. These two sections circumscribe the companyditions which must be established before an election can be declared void or another candidate declared elected. The heads of substantive rights in s. 100 1 are laid down in two separate parts the first dealing with situations in which the election must be declared void on proof of certain facts, and the second in which the election can only be declared void if the result of the election in so far as it companycerns the returned candidate, can be held to be materially affected on proof of some other facts. Without attempting critically to sort out the two classes we may number see what the companyditions are. In the first part they are that the candidate lacked the necessary qualification or had incurred disqualification, that a companyrupt practice was companymitted by the returned candidate, his election agent or any other person with the companysent of a returned candidate or his election agent or that any numberination paper was improperly rejected. These are grounds on proof of which by evidence, the election can be set aside without any further evidence. The second part is companyditioned that the result of the election, in so far as it companycerns a returned candidate, was materially affected by the improper acceptance of a numberination or by a companyrupt d that in all other respects the election was free from any companyrupt practice on the part of the candidate or any of his agents, then the High Court may decide that the election of the returned candidate is number void. Grounds for which a candidate other than the returned candidate may be declared to have been elected. If any person who has lodged a petition has, in addition to calling in question the election of the returned candidate, claimed a declaration that he himself or any other candidate has been duly elected and the High Court is of opinion-- a that in fact the petitioner or such other candidate received a majority of the valid votes or b that but for the votes obtained by the returned candidate by companyrupt practices the petitioner or such other candidate would have obtained a majority of the valid votes, the High Court shall after declaring the election of the returned candidate to be void declare the petitioner or such other candidate, as the case may be, to have been duly elected. practice companymitted in his interest by an agent other than an election agent or by the improper reception, refusal or rejection of votes or by any numbercompliance with the provisions of the Constitution or of the Representation of the People Act or rules or orders made under it. This companydition has to be established by some evidence direct or circumstantial. It is, therefore, clear that the substantive rights to make an election petition are defined in these sections and the exercise of the right to petition is limited to the grounds specifically mentioned. Pausing here, we may view a little more closely the provisions bearing upon companyrupt practices in s. 100. There are many kinds of companyrupt practices. They are defined later in s. 123, of the Act and we shall companye to them later. But the companyrupt practices are viewed separately according as to who companymits them. The first class companysists of companyrupt practices companymitted by the candidate or his election agent or any other person with the companysent of the candidate or his election agent. These, if established, avoid the election without any further companydition being fulfilled. Then there is the companyrupt practice companymitted by an agent other than an election agent. Here an additional fact has to be proved that the result of the election was materially affected. We may attempt to put the same matter in easily understandable language. The petitioner may prove a companyrupt practice by the candidate himself or his election agent or someone with the companysent of the candidate or his election agent, in which case he need number establish what the result of the election would have been without the companyrupt practice. The expression Any other person in this part will include an agent other than an election agent. This is clear from a special provision later in the section about an agent other than an election agent. The law then is this If the petitioner does number prove a companyrupt practice by the candidate or his election agent or another person with the companysent of the returned candidate or his election agent but relies on a companyrupt practice companymitted by an agent other than an election agent, he must additionally prove how the companyrupt practice affected the result of the poll. Unless he proves the companysent to the companymission of the companyrupt practice on the part of the candidate or his election agent he must face the additional burden. The definition of agent in this companytext is to be taken from s. 123 Explanation where it is provided that an agent includes an election agent, a polling agent and any person who is held to have acted as an agent in companynection with the election with the companysent of the candidate. In this explanation the mention of an election agent would appear to be unnecessary because an election agent is the alter ego of the candidate in the scheme of the Act and his acts are the acts of the candidate, companysent or numberconsent on the part of the candidate. Having number worked out the substantive rights to the making of the petition, we may number proceed to see what the companyrupt practices are. Since we are companycerned only with one such companyrupt practice, we need number refer to all of them. For the purpose of these appeals it is sufficient if we refer to the fourth sub-section of s. 123. It reads The following shall be deemed to be companyrupt practice for the purposes of the Act The publication by a candidate or his agent or by any other person, with the companysent of a candidate or his election agent, of any statement of fact which is false, and which he either believes to be false or does number believe to be true, in relation to the personal character or companyduct of any candidate, or in relation to the candidature, or withdrawal, of any candidate, being a statement reasonably calculated to prejudice the prospects of that candidates election. This companyrupt practice may be companymitted by a the candidate b his agent, that is to say- an election agent a polling agent any person who is held to have acted as an agent in companynection with the election with the companysent of the candidate. c by any other person with the companysent of the candidate or his election agent. We are companycerned in this appeal with a and b iii men- tioned in our analysis. In the original petition the allegations were made on the basis of companyrupt practices companymitted by a person alleged to have acted as an agent with Mr. Fernandezs companysent. In the amendment application the allegation is that the candidate himself companymitted the companyrupt practice under this subsection. As we pointed out earlier the difference between the original petition and the amendments will lie in the degree of proof necessary to avoid the election. If the companyrupt practice is charged against an agent other than the election agent, a further burden must be discharged, namely, that the result of the election was materially affected. If, however, the companyrupt practice is charged against the candidate personally there is numberelection agent involved here , this further proof is number required. Another difference arises in this way. In s. 100 1 b the word agent is number to be found. Therefore an agent other than an election agent will fall to be governed by the expression any other person. To get the benefit of number having to prove the effect of the companyrupt practice upon the election the companysent of the candidate or his election agent to the alleged practice will have to be established. Again for the establishment of the companyrupt practice under s. 123 4 , from whatever quarter it may proceed, the election petitioner must establish a publication of a statement of fact, and b the statement is false or the person making it believes it to be false or does number believe it to be true, and c that the statement refers to the personal character and companyduct of the candidate, and d is reasonably calculated to prejudice the candidates prospects. It appears, therefore, that it is a question of different burdens of proof as to whether the offending statement was made by the candidate himself or by an agent other than an election agent. Having dealt with the substantive law on the subject of election petitions we may number turn to the procedural provisions in the Representation of the People Act. Here we have to companysider sections 81, 83 and 86 of the Act. The first provides the procedure for the presentation of election petitions. The proviso to sub-section alone is material here. It provides that an election petition may be presented on one or more of the grounds specified in sub- section 1 of s. 100 and s. 101. That as we have shown above creates the substantive right. Section 83 then provides that the Section 83. An election petition- a shall companytain a companycise statement of the material facts on which the petitioner relies b shall setforth full particulars of any companyrupt practice that the petitioner alleges, including as full a statement as possible of the names of the parties alleged to have companymitted such companyrupt practice and the date and place of the companymission of each such practice and c shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 for the verification of pleadings provided that where the petitioner alleges any companyrupt practice, the petition shall also be accompained by an affidavit in the prescribed form in support of the allegation of such companyrupt practice and the particulars thereof. Any y schedule or annexure to the petition shall also be singed by the peti- tioner and verified in the same manner as the petition. L10Sup./69--5 election petition must companytain a companycise statement of the material facts on which the petitioner relies and further that he must also setforth fun particulars of any companyrupt practice that the Petitioner alleges including as full a statement as possible of the names of the parties alleged to have companymitted such companyrupt practice and the date and place of the companymission of each such practice. The section is mandatory and requires first a companycise statement of material facts and then requires the fullest possible particulars. What is the difference between material facts and parti- culars? The word material shows that the facts necessary to formulate a companyplete cause of action must be stated. Omission of a single material fact leads to an incomplete cause of action and the statement of claim becomes bad. The function of particulars is to present as full a picture of the cause of action with such further information in detail as to make the opposite party understand the case he will have to meet. There may be some overlapping between material facts and particulars but the two are quite distinct. Thus the material facts will mention that a statement of fact which must be set out was made and it must be alleged that it refers to the character and companyduct of the candidate that it is false or which the returned candidate believes to be false or does number believe to be true and that it is calculated to prejudice the chances of the petitioner. In the particulars the name of the person making the statement, with the date, time and place will be mentioned. The material facts thus will show the ground of companyrupt practice and the companyplete cause of action and the particulars will give the necessary information to present a full picture of the cause of action. In stating the material facts it will number do merely to quote the words of the section because then the efficacy of the words material facts will be lost. The fact which companystitutes the companyrupt practice must be stated and the fact must be companyrelated to one of the heads of companyrupt practice. Just as a plaint without disclosing a proper cause of action cannot be said to be a good plaint, so also an election petition without the material facts relating to a companyrupt practice is numberelection petition at all. A petition which merely cites the sections cannot be said to disclose a cause of action where the allegation is the making of a false statement. That statement must appear and the particulars must be full as to the person making the statement and the necessary information. Formerly the petition used to be in two parts. The material facts had to be included in the petition and the particulars in a schedule. It is inconceivable that a petition companyld be filed without the material facts and the schedule by merely citing the companyrupt practice from the statute. Indeed the penalty of dismissal summarily was enjoined for petitions which did number companyply with the requirement. Today the particulars need number be separately included in a schedule but the distinction remains. The entire and companyplete cause of action must be in the petition in the shape of material facts,. the particulars being the further information to companyplete the picture. This distinction is brought out by the provisions of section 86 although the penalty of dismissal is taken away. Sub- section 5 of that section provides The High Court may, upon such terms as to companyts and otherwise as it may deem fit, allow the particulars of any companyrupt practice alleged in the petition to be amended or amplified in such manner as may in its opinion be necessary for ensuring a fair and effective trial of the petition, but shall number allow any amendment of the petition which will have the effect of introducing particulars of a companyrupt practice number previously alleged in the petition. The power of amendment is given in respect of particulars but there is a prohibition against an amendment which will have the effect of introducing particulars if a companyrupt practice number previously alleged in the petition. One alleges the companyrupt practice in the material facts and they must show a companyplete cause of action. If a petitioner has omitted to allege a companyrupt practice, he cannot be permitted to give particulars of the companyrupt practice. The argument that the latter part of the fifth sub-section is directory only cannot stand in view of the companytrast in the language of the two parts. The first part is enabling and the second part creates a positive bar. Therefore, if a companyrupt practice is number alleged, the particulars cannot be supplied. There is however a difference of approach between the several companyrupt practices. If for example the charge is bribery of voters and the particulars give a few instances, other instances can be added if the charge is use of vehicles for free carriage of voters, the particulars of the cars employed may be amplified. But if the charge is that an agent did something, it cannot be amplified by giving particulars of acts on the part of the candidate or vice versa. In the scheme of election law they are separate companyrupt practices which cannot be said to grow out of the material facts related to another person. Publication of false statements by an agent is one cause of action, publication of false statements, by the candidate is quite a different cause of action. Such a cause of action must be Alleged in the material facts before particulars may be given. One cannot under the companyer of particulars of one companyrupt practice give particulars of a new companyrupt practice. They companystitute different causes of action. Since a single companyrupt practice companymitted by the candidate, by his election agent or by another person with the companysent of the candidate or his election agent is fatal to the election, the case must be specifically pleaded and strictly proved. If it has number been pleaded as part of the material facts, particulars of such companyrupt practice cannot be supplied later on. The bar of the latter part of the fifth sub-section to s. 86 then operates. In the petition as originally filed the agency of Jagadguru Shankaracharya, Mr. Madhu Limaye and the Maratha or Mr. Atrey was the basis of the charge and the candidate Mr. Fernandez was left out. No allegation was personally made against him. The only allegations against him personally were companytained in paragraph 2G. There it was said that Mr. Fernandez had made certain speeches to the effect that Mr. Patil was against the Muslims and Christians. No evidence was led and they were number even referred to at the hearing before us. The next reference in 2J is to statements of Mr. Fernandez. and published by the Maratha. These were specified and only three such statements were included. Since the gist of the election offence is the publication of false statements, the charge is brought home to the candidate through the publication by the Maratha. It is to be remembered that even the allegation that in doing so the Maratha acted as the agent of Mr. Fernandez, itself came by way of an amendment which we allowed as it companypleted the cause of action and is per- missible. The bar of section 86 5 latter part does number apply to it and under Order VI rule 17 of the Code of Civil Procedure, which is applicable as far as may be, such an amendment can be made. Similarly the allegations that such statements were false or were believed to be false or were number believed to be true by the Maratha i.e. Mr. Atrey and that they were calculated to prejudice Mr. Patills chances and did so, were allowed by us to be added as companypleting the cause of action relating to a companyrupt practice already alleged. But we declined to allow to stand the amendments which had the effect of introducing, new companyrupt practices relating to the candidate himself which had number been earlier pleaded. This kind of amendment is prohibited under the law when the amendment is sought after the period of limitation. The learned Judge in the High Court did number keep the distinction between material facts and particulars in mind although the language of the statute is quite clear and makes a clear cut division between the two. He seems to have been persuaded to Such a companyrse by a reading of the rulings of this Court and the High Courts. These same rulings were presented before us and we may number say a few words about them. The learned Judge in the High Court has relied upon Harish Chandra Bajpai v. Triloki Singh 1 and deduced the proposition that where the petition sets out the companyrupt practice as a ground, instances of the companyrupt practices may be added subsequently and even after the period of limitation of filing the petition is over. Following that case the learned Judge has allowed the 1 1957 S.C.R. 370. amendments as companyrupt practice under s. 123 4 was alleged in the original petition. We shall companye to that case last of all. It seems to have played a great part in moulding opinion in India on the subject of amendment of pleadings in the Election Law. To begin with it must be realised that as is stated in Jagan, Nath v. Jaswant Singh and Others 1 the statutory requirements of the law of Election in India must be strictly observed. It is pointed out in that case that an election companytest is number an action at law or a suit in equity but a purely statutory proceeding unknown to companymon law and that the companyrt possesses numbercommon law power. Although the power of amendment given in the Code of Civil Procedure can be invoked because s. 87 makes the procedure applicable, as nearly as may be to the trial of election petitions, the Representation of the People Act itself enacts some rules, which override the Civil Procedure Code. General power of amendment or the power derived from the Code of Civil Pro- cedure must be taken to be overborne in so far as the election law provides. In a large number of cases it has been laid down by the High Courts in India that the material facts, must make out a charge and it is only then that an amendment to amplify the charge can be allowed or new instances of companymission of companyrupt practice charged can be given. If numbercharge is made out in the, petition at all the addition of particulars cannot be allowed to include indirectly a new charge. This was laid down in Din Dayal v. Beni Prasad and Another 2 , Balwan Singh v. Election Tribu- nal, Kanpur and Others 3 by the Allahabad High Court, in T. Sasivarna Thevar v. V. Arunagiri and Others 4 by the Madras High Court and in Hari Vishnu Kamath v. Election Tri- bunal, Jaipur and Another 5 by the Madhya Pradesh High Court. All these cases rely upon Harish Chandra Bajpais case 6 to which we have referred. Harish Chandra Bajpais case 6 was based on an English case Beat v. Smith 7 . In that case it was held that under the Parliamentary Election Act of 1868 it was enough to allege generally in the petition that the respondent by himself and other persons on his behalf was guilty of bribery, treating and undue influence before, during and after the election. A summons was taken out calling upon the petitioner to deliver better particulars of other persons. Willes, J. after companysulting Martin, B and Blackburn, J. ordered better particulars. It was companytended that the petition should be taken off the files since the particulars were lacking. Section 20 of that Act only provided that an election petition should be in such form and should state such matters as may be prescribed. Rule 2 prescribed that the petition should state i the right of the petitioner to petition and ii and should state the holding and result 1 1954 S.C.R. 892-895. 2 15 E.L.R. 131. 3 15 5E.L.R. 199. 4 17. E.L.R. 313. 5 14 E.L.R. 147. 7 L.R. 4 C.P. 115. 6 11957 S.C.R. 370 of the election and then should briefly state such facts and grounds relied on to sustain the prayer.Rule 5 prescribed the form which required facts to be stated. Bovill, C.J., said that the form of the petition was proper and it was quite useless to state anything further. But in Bruce v. Odhams Press Ltd. 1 the Court of Appeal distinguished material facts from particulars as they occurred in Order XIX of the Rules of the Supreme Court of England. The words there were material facts and particulars and the distinction made by Scott, L.J. bears out the distinction we have made between material facts and Particulars as used in s. 83 of our statute. The same view was also expressed in Phillips v. Phillips 2 . The observations of Brett, L.J. in that case also bear out the distinction which we have made. It appears that this distinction was number brought to the, numberice of this Court in Harish Chandra Bajpai 3 case. The rules on the subject of pleadings in the English statute companysidered in Beals case 4 were different. We have in our statute an insistence on a companycise statement of material facts and the particulars of companyrupt practice alleged. These expressions we have explained. However, it is number necessary to go into this question because even on the law as stated in Harish Chandra Bajpais 3 case the amendment allowed in this case cannot be upheld. We shall number numberice Harish Chandra Bajpais 3 case a little more fully. In that case the material allegation was that the appellants companyld in the furtherance of their election enlist the support of certain government servants and that the appellant No. 1. had employed two persons in excess of the prescribed number for his election purposes. No list of companyrupt practices was attached. Thereafter names were sought to be added. The amendment was allowed by the Tribunal after the period of limitation and the addition was treated as mere particulars. It was held by this Court that an election petition must specify grounds or charges and if that was done then the particulars of the grounds or charges companyld be amended and new instances given but go new ground or charge companyld be added after the period of limitation. The reason given was that the amendment introducing a new charge altered the character of the petition. Venkatarama Iyyar, J. emphasised over and over again that new instances companyld be given provided they related to a charge companytained in the petition. The result of the discussion in the case was summarised by the learned Judge at page 392 as follows Under s. 83 3 the Tribunal has power to allow particulars in respect of illegal or companyrupt prac- 1 1936 1 K.B. 697. 2 1878 4 Q.B.D. 127. 3 1957 S.C.R. 370. L.R. 4 C.P. 115. tices to be amended, provided the petition itself specifies the grounds or charges, and this power extends to permitting new instances to be given. The Tribunal has power under O.Vl, r. 17 to order amendment of a petition, but that power cannot be exercised so as to permit new grounds or charges to be raised or to so alter its character, as to make it in substance a new petition, if a fresh petition on those allegations will then be barred. What is meant by ground or charge was number stated. By ground may be meant the kind of companyrupt practice which the petitioner alleges but the word charge means inclusion of some material facts to make out the ground. Applying the same test although without stating it the learned Judge pointed out that the charge made in the petition was that the appellants companyld in furtherance of their election enlist the support of certain government servants and it meant only an ability to enlist support but the charge which was sought to be levelled against the candidate later was that he had in fact enlisted the said support. The learned Judge observed at page 393 as follows the charge which the respondent sought to level against the appellants was that they moved in public so closely with high dignitaries as to create in the minds of the voters the impression that they were favoured by them. We are unable to read into the allegations in para 7 c as originally framed any clear and categorical statement of a charge under s. 123 8 , or indeed under any of the provisions of the Election law. The allegation in the statement was described as worthless and further it was observed at page 395 as follows But even if we are to read companyld in para 7 c as meaning did, it is difficult to extract out of it a charge under s. 123 8 . The allegation is number clear whether the Government servants were asked by the appellants to support their candidature, or whether they were asked to assist them in furtherance of their election prospects, and there is numberallegation at all that the Government servants did, in fact, assist the appellants in the election. On these allegations, it is difficult to hold that the petition in fact raised a charge under s. 123 8 . It is a long jump from the petition as originally laid to the present amendment, wherein for the first time it is asserted that certain Mukhiasno Mukhias are mentioned in the petition-assisted the appellants in furtherance of their election prospects, and that thereby the companyrupt practice mentioned in s. 123 8 had been companymitted. The new matters introduced by the amendment so radically alter the character of the petition as originally framed as to make it practically a new petition, and it was number within the power of the Tribunal to allow an amendment of that kind., It would appear from this that to make out a companyplete charge the facts necessary must be included in relation to a ground as stated in the Act. Merely repeating the words of the statute is number sufficient. The petitioner must specify the ground i.e. to say the nature of the companyrupt practice and the facts necessary to make out a charge. Although it has been said that the charge of companyrupt practice is in the nature of quasi criminal charge, the trial of an election petition follows the procedure for the trial of a civil suit. The charge which is included in the petition must, therefore, specify the material facts of which the truth must be established. This is how the case was understood in numerous other cases, some of which we have already referred to. In particular see J. Devaiah v. Nagappa and Others 1 and Babulal Sharma v. Brijnarain Brajesh and Others 2 . Three other cases of this Court were also cited. In Chandi Prasad Chokhani v. State of Bihar 3 it was held that the powers of amendment were extensive but they were companytrolled by the law laid down in the Representation of the People Act. It was again emphasised that a new ground or charge companyld number be made the ground of attack as that made a new petition. In Bhim Sen v. Gopali and Others 4 the scope of Harish Chandra Bajpais 5 case was companysidered and its narrow application was pointed out. Indeed in that case the observations in Harish Chandra Bajpais 5 case were number followed to the utter most limit. In Sheopat Singh v. Ram Pratap 6 the only allegation was that the appellant Hariram got published through him and others a statement but there was numberallegation that Hariram believed the statement to be false or did number believe it to be true. It was held that in the absence of such averment it companyld number be held that there was an allegation of companyrupt practice against Hariram. The publication with guilty knowledge was equated to a kind of mens rea and this was companysidered a necessary ingredient to be alleged in the petition. From our examination of all the cases that were cited before us we are satisfied that an election petition must set out a ground or charge. In other words, the kind of companyrupt practice which was perpetrated together with material facts on which a charge 1 1965 Mysore, 102. 2 1958 Madhya Pradesh 175 F.B. . 3 1962 2 S.C.R. 289. 4 22 E.L.R. 288. 5 1957 S.C.R. 370 6 1965 1 S.C.R. 175. can be made out must be stated. It is obvious that merely repeating the words of the statute does number amount to a proper statement of facts and the section requires that material facts of companyrupt practices must be stated. If the material facts of the companyrupt practice are stated more or better particulars of the charge may be given later, but where the material facts themselves are missing it is impossible to think that the charge has been made or can be later amplified. This is tantamount to the making of a fresh petition. Reverting therefore to our own case we find that the allega- tion in paragraph 2J was that Mr. Fernandez made some state- ments and the Maratha published them. Extracts from the Maratha were filed as Exhibits. Since publication of a false statement is the gist of an election offence the charge was against the Maratha. If it was intended that Mr. Fernandez should be held responsible for what he said then the allegation should have been what statement Mr. Fernandez made and how it offended the election law. In 2J itself only three statements were specified and two of them had numberhing to do with Mr. Fernandez and the third was merely a news item which the Maratha had published. There was numberreference to any statement by Mr. Fernandez himself throughout the petition as it was originally filed. In fact there was numbercharge against Mr. Fernandez which companyld have brought the case within s. 101 b of the Act. The attempt was only to make out the case under s. 100 1 d against the Maratha or Mr. Atrey pleading Mr. Atrey as agent of Mr. Fernandez. That too was pleaded in the amendments. The result is that the case gets companyfined to that of a candidate responsible for the acts of his agent. In the argument before us Mr. Chari for Mr. Fernandez companyceded the position that Mr. Atrey companyld be treated as the agent of Mr. Fernandez. We are therefore relieved of the trouble of determining whether Mr. Atrey companyld be held to be an agent or number. The trial Judge was also satisfied that Mr. Atrey companyld be held to have acted as the agent of Mr. Fernandez. The case as originally pleaded fell within s. 100 1 d with the additional burden. Although Mr. Daphtary was companytent to prove that the companysent of Mr. Fernandez was immaterial as the companyrupt practice of his agent was equally fatal to the election and attempted to prove his case under s. 100 1 d of the Act, Mr. Jethamalani who took over the argument from him companytended that the case fell to be governed by s. 101 b that is to say, of any person who did the act with the companysent of Mr. Fernandez. It is therefore necessary to pause here to decide, whether Mr. Atrey had the companysent of Mr. Fernandez to the publications in his newspaper. The difference between Mr. Daphtarys argument and that of Mr. Jethamalani lies in this. In the latter the companysent of the candidate must be proved to each companyrupt practice alleged, in the former there is only need to prove that a person can be held to have acted as an agent with the companysent of the candidate. An agent in this companynection is number one who is an intermeddler but one acting with the companysent, express or implied, of the candidate. According to Mr. Jethamalani when an agent works regularly for a candidate the companysent to all his acts must be presumed and he companytends that the companyrt was wrong in requiring proof of prior companysent to each publication. On the other hand, Mr. Charis case is that when Mr. Atrey acted as an agent and when he did number act as an agent, is a question to be companysidered in respect of each publication in the Maratha. According to him it is number sufficient merely to say that Mr. Atrey was an agent because Mr. Atrey was also editor of the newspaper and in running his newspaper his activities were his own and number on behalf of Mr. Fernandez. Mr. Jethamalani relies strongly upon the case of Rama Krishna C.A. No. 1949 of 1967 decided on April 23, 1968 and Inder Lall Yugal Kishore v. Lal Singh 1 . Rama Krishnas case was decided on its special facts. There the agent was one who had been employed regularly by Rama Krishna number only in the last election but also in two previous elections. Rama Krishna stated that the arrangements for his election were companypletely left in that agents hands. The agent had got printed some posters which had defamed the candidate and these posters were exposed on the walls. Rama Krishna admitted that he had seen these posters and also that he had paid for- the posters when the bill was presented to him. In fact he included the amount in his return of election expenses. It was from these companybined facts that the companysent of Rama Krishna to the companyrupt practice of. making false and defamatory statements was held proved. The case therefore is number one in which the person while acting in a different capacity makes a defamatory statement. In the case from Rajasthan the rule laid down was that the association of persons or a society or a political party or its permanent members, who set up a candidate, sponsor his cause, and work to promote his election, may be aptly called the agent for election purposes. In such cases where these persons companymit a companyrupt practice unless the exception in s. 100 2 apply the returned candidate should be held guilty. We shall companysider this question later. Before we deal with the matter further we wish to draw attention to yet another case of this Court reported in Kumara Nand v. Brijmohan Lal Sharma 2 . In that case s. 123 4 was analysed. It was held that the belief must be that of the candidate himself. The word he in the sub- section where it occurs for the first time was held to mean the candidate. This Court observed as follows A.T.R. 1961 Rajasthan 122. 2 1967 2 S.C.R. 127. The sub-section requires i publication of any statement of fact by a candidate, ii that fact is false, iii the candidate believes it to be false or does number believe it to be true, iv the statement is in relation to the personal character or companyduct of another candidate and v the said statement is one being reasonably calculated to prejudice the prospects of the other candi- dates election. See Sheopat Singh v. Ram Pratap 1 This case thus lays down that the person with whose belief the provision is companycerned is ordinarily the candidate who, if we may say so, is responsible for the publi- cation. The responsibility of the candidate for the publication arises if he publishes the thing himself. He is equally responsible for the publication if it is published by his agent. Thirdly he is also responsible where the thing is published by any other person but with the companysent of the candidate or his election agent. In all three cases the responsibility is of the candidate and it is ordinarily the candidates belief that matters for this purpose. If the candidate either believes the statement to be false or does number believe it to be true he would be responsible under s. 123 4 . In the present case. the poem was number actually read by the appellant, but it was read in his presence at a meeting at which he was presiding by Avinash Chander. In these circumstances. the High Court was right in companying to the companyclusion that the recitation of the poem by Avinash Chander at the meeting amounted to the publication of the false statement of fact companytained in it by another person with the companysent of the candidate, and in this case, even of his election agent who was also present at the meeting., But the responsibility for such publication in the circumstances of this case is of the candidate and it is the candidates belief that matters and number the belief of the person who actually read it with the companysent of the candidate. What would be the position in a case where the candidate had numberknowledge at all of the publication before it was made need number be companysidered for that is number so here. It is number disputed in this case that the statement that the respondent was the greatest of all thieves, was false. It is also number seriously challenged that the appellant did number believe it to be true. The companytention that Avinash Chanders belief should have been proved must therefore fail. From this case it follows that to prove a companyrupt practice in an agent is number enough, the belief of the candidate himself must 1 1965 1 S C.R. 175. be investigated with a view to finding out whether he made a statement which he knew to be false or did number believe to be true. When we companye to the facts of the case in hand we shall find that most of the statements were made by a newspaper editor in the numbermal companyrse of running a newspaper. Some of the passages which are criticised before us were made as news items and some others were put in the editorial. It is to be remembered that the newspaper ran a special companyumn called George Femandezs Election Front. No article or companyment in that companyumn has been brought before us as an illustration of the companyrupt practice. A newspaper publishes news and expresses views and these are functions numbermal to a newspaper. If the same news appeared in more than one paper, it cannot be said that each editor acted as agent for Mr. Fernandez and by parity of reasoning a line must be drawn to separate the acts of Mr. Atrey in running his newspaper and in acting as an agent. Mr. Atrey was number a wholetime agent of Mr. Fernandez so that anything that he said or did would be treated as bearing upon the belief of Mr. Fernandez as to the truth of the statements made by Mr. Atrey. Therefore, every act of Mr. Atrey companyld number be attributed to Mr. Fernandez so as to make the latter liable. We have therefore to analyse these articles to find out which of them answers the test which we have propounded here. But the fact remains that the case was pleaded on the basis of companyrupt practices on the part of an agent but by the amendment the candidate was sought to be charged with the companyrupt practices personally. As there was numbersuch charge or ground in the original petition and as the application for amendment was made long after the period of limitation was over the amendment companyld number be allowed. Accordingly we ruled out the amendments companycerning the personal speeches of Mr. Fernandez and the article in the Blitz. After we announced our companyclusion about the amendments Mr. Daphtary with the permission of the Court left the case in the hands of Mr. Jethamalani and the argument to which we have already referred in brief was advanced by him. As pointed out already Mr. Jethamalani attempted to prove that the case would be governed by s. 100 1 b that is to say that the statements in the Maratha were published with the companysent of Mr. Fernandez. Mr. Jethamalani deduced this from the companyrse of events and argued that on proof of the companyrupt practices companymitted by the Maratha, Mr. Fernandez would be personally liable. He based himself on the following, facts. He pointed out that Mr. Fernandez had admitted that he desired that the newspapers should support his candidature and therefore must have been glad that the Maratha was Supporting him. and the articles in the Maratha were uniformly for the benefit of Mr. Fernandez. Sampurna Maharashtra Samiti was also supporting the candidature of Mr. Fernandez and the Maratha had made companymon cause with the Sampurna Maha- rashtra Samiti, the offices of both being situated in the same building which was also Mr. Atreys residence. Mr. Atrey was the editor of the Maratha and Chairman of the Sampurna Maharashtra Samiti. Mr. Atrey was also a candidate supported by the Sampuma Maharashtra Samiti. Mr. Fernandez and Mr. Atrey had a companymon platform and they supported each other in their respective companystituencies. The Maratha carried a companyumn George Femandezs Election Front which was intended to be a propaganda companyumn in favour of Mr. Fernandez. He companytended that Mr. Fernandez companyld number be unaware of what Mr. Atrey was doing. He pointed out several statements of Mr. Fernandez in which he sometime unsuccessfully denied the knowledge of various facts. He companytended lastly that Mr. Fernandez had social companytacts with Mr. Atrey and companyld number possibly be unaware that Mr. Atrey was vociferously attacking Mr. Patils character and companyduct. Mr. Jethamalani therefore argued that there was knowledge and acquiescence on the part of Mr. Fernandez and as there was numberrepudiation of what the Maratha published against Mr. Patil, Mr. Fernandez must be held responsible. The learned trial Judge in his judgment has given a summary of all these things at page 695 and it reads To sum up, it is clear from the above discussion that respondent No. 1 is a prominent member of the SSP, that the SSP is a companystituent unit of the SMS, that both Acharya Atrey and respondent No. 1 participated in the formation of the SMS that they both participated in the inauguration of the election campaign by the SMS, that the SMS, carried on election propaganda for candidates supported by it including respondent No. 1, that Acharya Atre was the president of the Bombay Unit of the SMS and was a prominent and a leading member thereof, that each of them addressed a meeting of the companystituency of the other to carry on election propaganda for the other, that Acharya Atre through the companyumns of his newspaper Maratha carried on intensive and vigorous campaign for success of candidates supported by the SMS including respondent No. 1, that Acharya Atre started a special feature in Maratha under the heading George Fernandez Election Front. These factors amongst others show that Acharya Atre had authority to canvass for respondent No. 1, that be made a companymon cause with respondent No. 1, for promoting his election, that to the knowledge of respondent No. 1 and for the purpose of promoting his election, he Atre canvassed and did various things as tended to promote his election. This in law is sufficient to make Acharya Atre an agent of respondent No. 1, as that term is understood under the election law. Mr. Jethamalani companytended in further support that there was a clear similarity in the statements and utterances of Mr. Fernandez and Mr. Atrey. He inferred a high probability of companycept between them. In this companynection he referred in particular to the speech of Mr. Fernandez at Shivaji Park and the companyduct of Shanbhag, one of his workers, in following up what Mr. Fernandez had said. We shall refer to this last part later on which a companysiderable part of the time of the Court was spent, although we had ruled out the amendment with regard to the speech at Shivaji Park. Mr. Jethamalani referred to the following cases among others in support of his companytention that companysent in such circumstances may be assumed Nani Gopal Swami v. Abdul Hamid Choudhury and Another 1 , Adams and Others v. Hon. E.F. Leveson Gower Christie v. Grieve 3 and W. F. Spencer John Blundell Charles Harrison 4 . There is numberdoubt that companysent need number be directly proved and a companysistent companyrse of companyduct in the canvass of the candidate may raise a presumption of companysent. But there are cases and cases. Even if all this is accepted we are of opinion that companysent cannot be inferred. The evidence proves only that Mr. Atrey was a supporter and that perhaps established agency of Mr. Atrey. It may be that evidence is to be found supporting the fact that Mr. Atrey acted as agent of Mr. Femandez with his companysent. That however does number trouble us because Mr. Chari admitted that Mr. Atrey can be treated as an agent of Mr. Fernandez. It is however a very wide jump from this to say that Mr. Fernandez had companysented to each publication as it came or ever generally companysented to the publication of items defaming the character and companyduct of Mr. Patil. That companysent must be specific. If the matter was left entirely in the hands of Mr. Atrey who acted solely as agent of Mr. Fernandez something might be said as was done in Rama Krishnas case 5 by this Court. Otherwise there must be some reasonable evidence from which an inference can be made of the meeting of the minds as to these, publications or at least a tacit approval of the general companyduct of the agent. If we were number to keep this distinction in mind there would be numberdifference between s. 100 1 b and 100 1 d in so far as an agent is companycerned. We have shown above that a companyrupt act per se is enough under s. 100 1 b while under s. 100 1 d the act must directly affect the result of the election in so far as the returned candidate is companycerned. Section 100 1 b makes numbermention of an agent while S. 100 1 d specifically does. There must be some reason why this is so. The reason is this that an agent cannot make the candidate responsible unless the candidate has companysented or the act of the 1 1959 Assam 200. 2 1 OMalley and Hardcastle 218. 3 1 OMalley and Hardcastle 251. 4 3 OMalley and Hardcastle 148. C.A. No. 1949 of 1967 decided on April 23,1968. agent has materially affected the election of the returned candidate. In the case of any person and he may be an agent if he does the act with the companysent of the returned candidate there is numberneed to prove the effect on the election. Therefore, either Mr. Jethamalani must prove that there was companysent and that would mean a reasonable inference from facts that Mr. Fernandez companysented to the acts of Mr. Atrey or he must prove that the result of the election was seriously affected. If every act of an agent must be presumed to be with the companysent of the candidate there would be numberroom for application of the extra companydition laid down by s. 1 00 1 d , because whenever agency is proved either directly or circumstantially, the finding about companysent under s. 1 00 1 b will have to follow. We are clearly of opinion that Mr. Jethamalanis argument that s. 100 1 b applies can only succeed if he establishes companysent on the part of Mr. Fernandez. We have already pointed out that Mr. Atrey was also the editor of a newspaper which, as Mr. Patil has himself admitted, was always attacking him. Mr. Atrey had opened a companyumn in his newspaper to support Mr. Ferandezs candidature. Although nine articles appeared in the companyumn between December 3, 1966 to February 2, 1967, number a single false statement from this companyumn has been brought to our numberice. There was number even a suggestion that Mr. Fernandez wrote any article for the Maratha or companymunicated any fact. It is also significant that although Mr. Atrey addressed meetings in the companystituency of Mr. Fernandez, number a single false statement of Mr. Atrey was proved from his speeches on those occasions. The petitioner himself attended one such meeting on February 4,1967, but he does number allege that there was any attack on his personal character or companyduct. The learned trial Judge has also companymented on this fact. We think that regard being had to the activities of Mr. Atrey as editor and his own personal hostility to Mr. Patil on the issue of Sampuma Maharashtra Samiti, we cannot attribute every act of Mr. Atrey to Mr. Fernandez. Mr. Chari is right in his companytention that Mr. Atreys field of agency was limited to what he said as the agent of Mr. Fernandez and did number embrace the field in which he-was acting as editor of his newspaper. It is also to be numbericed that Mr. Atrey did number publish any article of Mr. Fernandez, number did he publish any propaganda material. The meeting at Shivaji Park about which we shall say some- thing presently, was number held in Mr. Fernandezs companystituency. The similarity of ideas or even of words cannot be pressed into service to show companysent. There was a stated policy of Sampuma Maharashtra Samiti which wanted to, join in Maharashtra all the areas which had number so far been joined and statements in that behalf must have been made number only by Mr. Atrey but by several other persons. Since Mr. Atrey was number appointed as agent we cannot go by the similarity of language alone. It is also very significant that number a single speech of Mr. Fernandez was relied upon and only one speech of Mr. Fernandez namely, that at Shivaji Park was brought into arguments before us came by an amendment which we disallowed. The best proof would have been his own speech or some propaganda material such as leaflets or pamphlets etc. but numbere was produced. The Maratha was an independent newspaper number under the companytrol of the Sampurna Maharashtra Samiti or the S.S.P. which was sponsoring Mr. Fernandez or Mr. Fernandez himself. Further we have ruled out news items which it is the function of the newspaper to publish. A news item without any further proof of what had actually happened through witnesses is of numbervalue. It is at best a secondhand secondary evidence. It is well-known that reporters companylect information and pass if on to the editor who edits the news item and then publishes it. In this process the truth might get perverted or garbled. Such news items cannot be said to prove themselves although they may be taken. into account with other evidence if the other evidence is forcible. In the present case the only attempt to prove a speech of Mr. Fernandez was made in companynection with the Shivaji Park meeting. Similarly the editorials state the policy of the newspaper and its companyment upon the events. Many of the news items were published in other papers also. For example Free Press Journal, the Blitz and writers like Welles Hengens had also published similar statements. If they companyld number be regarded as agents of Mr. Fernandez we do number see any reason to hold that the Maratha or Mr. Atrey can safely be regarded as agent of Mr. Fernandez when acting for the newspaper so as to prove his companysent to the publication of the defamatory matter. We are therefore of opinion that companysent cannot reasonably be inferred to the publications in the Maratha. We are supported in our approach to the problem by a large body of case law to which our attention was drawn by Mr. Chari. We may refer to a few cases here Biswanath Upadhaya v. Haralal Das and Others 1 , Abdul Majeed v. Bhargavan Krishnan otherS 2 , Rustom Satin v. Dr. Sampoornanand and Others 3 , Sarla Devi Pathak v. Birendra Singh OtherS 4 , Krishna Kumar v. Krishna Gopal 5 , Lalsing Keshrising Rehvar v. Vallabhdas Shankerlal Thekdi and Others 6 , Badri Narain Singh and Others v. Kamdeo Prasad Singh and Another 7 and Sarat Chandra Rabba v. Khagendranath Nath and others 8 . It is number necessary to 1 1959 Assam 97. 2 A.I.R. 1963 Kerala 18. 3 20 E.L.R. 221. 4 20 E.L.R. 275. A.I.R. 1964 Rajasthan 21. 6 A.I.R. 1967 Gujarat 62. A.I.R. 1961 Patna 41. 8 A.I.R. 1961 S.C. 334. refer to these cases in detail except to point out that the Rajasthan case dissents from the case from Assam on which Mr. Jehamalani relied. The principle of law is settled that companysent may be inferred from circumstantial evidence but the circumstances must point unerringly to the companyclusion and must number admit of any other explanation. Although the trial of an election petition is made in accordance with the Code of Civil Procedure, it has been laid down that a companyrupt practice must be proved in the same way as a criminal charge is proved. In other words, the election petitioner must exclude every hypothesis except that of guilt on the part of the returned candidate. or his election agent. Since we. have held that Mr. Atreys activities must be viewed in two companypartments, one companynected with Mr. Fernandez and the other companynected with the newspaper we have to find out whether there is an irresistible, inference of guilt on the part of Mr. Fernandez. Some of the English cases cited by Mr. Jethamalani are number a safeguide because in England a distinction is made between illegal practices and companyrupt practices. Cases dealing with illegal practices in which the candidate is held responsible for the acts of his agent are number a proper guide. It is to be numbericed that making of a false statement is regarded as illegal practice and number a companyrupt practice and the tests are different for a companyrupt practice. In India all companyrupt practices stand on the same footing. The only difference made is that when companysent is proved on the part of the candidate or his elec- tion agent to the companymission of companyrupt practice, that itself is sufficient. When a companyrupt practice is companymitted by an agent and there is numbersuch companysent then the petitioner must go further and prove that the result of the election in so far as the returned candidate is companycerned was materially affected. In Bayley v. Edmunds, Byron and Marshall 1 , strongly relied upon by Mr. Daphtary the publication in the newspaper was number held to be a companyrupt practice but the paragraph taken from a newspaper and printed as a leaflet was held to be a companyrupt practice. That is number the case here. Mr. Patils own attitude during the election and after is significant. During the election he did number once protest that Mr. Fernandez was spreading false propaganda, number even when Mr. Fernandez charged his workers with hooliganism. Even after the election Mr. Patil did number attribute anything to Mr. Fernandez. He even said that the Bombay election was companyducted with propriety. Even at the filing of the election petition he did number think of Mr. Fernandez but companycentrated on the Maratha. Mr. Daphtary sought to strengthen the inference about company- sent from the inter-connection of events with the companyments in the Maratha. He refers to the news item appearing in the 1 1894 11 T.L.R. 537. L10Sup./69--6 Times of India of February 10, 1967 in which the letting loose of bad characters was alleged to be companymented upon by Mr. Fernandez. He companynected this with the activities of Shanbhag who wrote to the Election Commission and then pointed out that the Maratha came out with it. But if the Times of India cannot be regarded as the agent numbermore can the Maratha. A newspaper reporting a meeting does so as part of its own activity and there can be numberinference of companysent. What was necessary was to plead and prove that Mr. Fernandez said this and this. Then the newspaper reports companyld be taken in support but number independently. Here the plea was number taken at all and the evidence was number direct but indirect. Mr. Jethamalani referred to some similarity in the reaction of the Maratha and Mr. Fernandez to the events. The Babu- bhai Chinai incident was said to be a fake by both the Maratha and Mr. Fernandez, the Sayawadi meeting number pleaded was said to be followed by similar statements in the Maratha, the Bristol Grill Conference was reported in the Maratha. All this shows that the rival party believed in certain facts but it does number show that the Maratha was publishing these articles with Mr. Fernandezs companysent. In fact this argument has been wrongly allowed. Before this there was number so much insistence upon companysent as thereafter. Now it may be stated that mere knowledge is number enough. Consent cannot be inferred from knowledge alone. Mr. Jetha- malani relied upon the Taunton case 1 where Blackburn. J. said that one must see how much was being done for the candidate and the candidate then must take the good with the bad. There is difficulty in accepting this companytention. Formerly the Indian Election Law mentioned knowledge and companynivance but number it insists on companysent. Since reference to the earlier phrase has been dropped it is reasonable to think that the law requires some companycrete, proof, direct or circumstantial of companysent, and number merely of knowledge and companynivance. It is significant that the drafters of the election petition use the phrase knowledge and companynivance and it is reasonable to think that they companysulted the old Act and moulded the case round knowledge and companynivance and thought that was sufficient. We cannot infer from an appraisal of the evidence of Mr. Fernandez that he had companysented. His denial is there and may be number accurate but the burden was to be discharged by the election petitioner to establish companysent. If Mr. Fernandez suppressed some other facts or denied them, there can be numberinference that 1 1 OMalley and Hardcastle 181, 185. his denial about knowledge of the articles in the Maratha was also false. M. Fernandez denied flatly that he saw the articles explaining that there was numbertime to read newspapers, a fact which has the support of Mr. Patil who also said that he had numbertime to read even cuttings placed by his secretary for his perusal. We may say here that we are number impressed by the testimony of Mr. Fernandez and we are companystrained to say the same about Mr. Patil. We cannot on an appraisal of all the materials and the arguments of Mr. Daphtary reach the companyclusion that Mr. Fernandez was responsible for all that Mr. Atrey did in his newspaper or that his companysent can be inferred in each case. The most important argument was based on the meeting at Shivaji Park on January 31, 1967 where Mr. Fernandez spoke. As the subject of the charge in the original petition did number refer to this speech and we disallowed the amendment, Mr. Jethamalani attempted to reach the same result by using the speech as evidence of companysent to the publication of the report in the Maratha. Here we may say at once that the speech companyld number be proved because it was number pleaded. Much time was companysumed to take us through the evidence of witnesses who gave the exact words of Mr. Fernandez. Mr. Fernandez was alleged to have said that Mr. Patil was number honest and won elections by changing ballot boxes. Mr. Fernandez did number admit having made the speech. Four witnesses Tanksale, Bhide, Khambata and Bendre who alleged that they were present at the meeting deposed to this fact. We have looked, into their evidence and are thoroughly dissatisfied with it. Ramkumar, a reporter was also cited. He companyered the meeting for the Indian Express but his newspaper had number published this part and Ramkumar was examined to prove that it was deleted by Rao the Chief Reporter. The evidence of Ramkumar was so discrepant with that of Rao that the trial Judge companyld number rely on it and we are of the same opinion. The fact that in Ex. 56 Mr. Fernandez had spoken of the ways and means of winning elections of Mr. Patil cannot be held to be proof number the activities of Shanbhag in arranging for a watch of the ballot boxes. Every candidate is afraid that the ballot boxes may be tampered with and there is numberinference possible that because Mr. Fernandez or Shanbhag his worker took precautions, Mr. Fernandez must have made a particular speech. It was said that Randive in his evidence admitted that Mr. Fernandez made such companyments. We do number agree. His version was different. There is reason to think that there was an attempt to suborn witnesses and make them support this part of the case or to keep away from the witness box. One such attempt was made on Randive. We are number impressed by the witnesses who came to disprove the petitioners case but that does number improve it either. It seems that attempts were being made to enlist support for such a companytention and the evidence shows that the wit- nesses were number free from influence. It is number necessary to go into the evidence on the other side such as that of Dattu Pradhan and Prafulla Baxi. They do number impress us either. We are, accordingly number satisfied that Mr. Fernandez made any such companyment. If he did that would be a ground of the very first importance to an election petition. It is a little surprising that it was alleged so late and appears to be an after thought and intended to put into the mouth of Mr. Fernandez one of the statements of the Maratha. Consent to the making of the statement in the Maratha had, therefore, to be proved and there is numbersuch proof. For the same reasons we cannot regard Jagadguru Shankara- charya or Mr. Madhhu Limaye as the agents of Mr. Fernandez. The evidence regarding their agency itself is numberexistent and there is numbermaterial on which companysent can be presumed or inferred. The result of the foregoing discussion is that this case will have to be judged of under s. 1 00 1 d and number under s. 100 1 b . In the arguments before us Mr. Chari companyceded that some of the articles companytain false statements regarding the character and companyduct of Mr. Patil. He mentioned in this companynection five articles. It is, number, therefore, necessary to examine, each of the 16 articles separately. If the companyditions required by S. 100, 1 d read with s. 123 4 are satisfied, a companyrupt practice avoiding the election will be established. The first companydition is that the candidates belief in the falsity of the statements must be established That was laid down by this Court in Kumara Nand v. Brijmohan Lal Sharma 1 . The second companydition is that the result of the election in so far as Mr. Fernandez is companycerned must be shown to be materially affected. Thus we have number only to see a that the statement was made by an agent, b that it was false etc., c that it related to the personal character and companyduct of Mr. Patil, d that it was reasonably calculated to harm his chances but also e that it in fact materially affected the result of the election in so far as Mr. Fernandez was companycerned. Of these a and c are admitted and b is admitted by Mr. Fernandez because he said that he did number believe that there was any truth in these statements. The question next is whether they were calculated to affect the prospects of Mr. Patil. Here there can be numbertwo opinions. These articles cast violent aspersions and were false as admitted by Mr. Fernandez himself. The companyrse of companyduct shows a deliberate attempt to lower his character and so they must be held to be calculated to harm him in his election. So far the appellants are on firm ground. Even if all these findings are in favour of the appellants, we cannot declare the election to be void under S. 100 1 d ii unless we reach the further companyclusion that the result of the election in so 1 1967 2 S.C.R. 127. far as Mr. Fernandez was companycerned had been materially affected. The section speaks of the returned candidate when it should have really spoken of the candidate who was defamed or generally about the result. However it be worded, the intention is clear. The companydition is a prerequisite. Mr. Jethamalani argued that the words materially affected refer to the general result and number how the voting would have gone in the absence of the companyrupt practice. According to him s. 94 of the Act bars disclosure of votes and to attempt to prove how the voting pattern would have changed, would involve a violation of s. 94. According to him the companyrt can give a finding by looking to the nature of the attacks made, the frequency and extent of publicity, the medium of circulation and the kind of issue that was raised before the voters. He companytends that to tell the Maharashtrians that Mr. Patil paid a bribe to the voters of Goa to keep it centrally administered, to call Mr. Patil a Najibkhan of Maharashtra i.e. a traitor, to dub him as the creator of Shiv Sena which terrorized the minorities, to describe him as a goonda and leader of goondas who organised attacks on voters, to charge him with the responsibility of attack on Parliament and the Congress Presidents residence and to describe him as dishonest to the extent of switching ballot boxes, is, to materially affect the result of the voting. According to him these circumstances furnish a good basis for the finding that the result of the election was positively affected and numberhing more is needed. According to Mr. Jethamalani the capacity of Mr. Atrey when making these violent attacks was irrelevant as he was acting in support of the canvass of Mr. Fernandez. Mr. Jethamalani further submits that different false state- ments were intended to reach different kind of voters. The Maharashtrians were affected by the Goa and border issues, the minorities by the Shiv Sena allegations, the law-abiding citizens by the allegations about goondaism. Thus there must have been a land-slide in so far as Mr. Patil was companycerned and there must have been companyresponding gain to Mr. Fernandez. He relies upon Hackney case 1 where Grove, J. made the following observations at pages 81 and 82 I have turned the matter over in my mind, and I cannot see, assuming that argument to express the meaning of that section, how the tribunal can by possibility say what would or might have taken place under different circumstances. It seems to me to be a problem which the human mind has number yet been able to solve, namely, if things had been different at a certain period, what would have been the result of the companycatenation of events upon that supposed change of circum- 1 2 O Malley and Hardcastles Election Reports 77. stances. I am unable at all events to express an opinion upon what would have been the result, that is to say, who would have been elected provided certain matters had been companyplied with here which were number companyplied with. It was companytended that I might hear evidence on both sides as to how an elector thought he would have voted at such election. That might possibly induce a person number sitting judicially to form some sort of vague guess, out that would be far short of evidence, which ought to satisfy the mind of a judge of what any individual who might express that opinion would really do under what might have been entirely changed circumstances. But, besides that, one of the principles of the Ballot Act is that voting should be secret, and voters are number to be companypelled to disclose how they voted except upon a scrutiny after a vote has been declared invalid. Notwithstanding that, I am asked here, assum- ing the companystruction for which Mr. Bowen companytends to be companyrect, to ascertain how either the 41,000 electors of this Borough, or any number of them, might have wished to vote had they had the opportunity of doing so, and what in that event would have been the result of the election. It seems to me that such an inquiry would number only have been entirely companytrary to the spirit of the Act, but also that it would be a simple impossibility. I should, therefore, say that even if the wording of the Act, taking it literally and grammatically, required me to put sucha companystruction upon it, it would lead to such a manifest absurdity using number the judicial term which has generally been used with reference to the companystruction of statutes that unless I were in some way imperatively obliged, and unless the Act companyld by numberpossibility admit of any other companystruction, I should number put a companystruction upon it which really reduced the matter to a practical impossibility. Such a companystruction would practically render it necessary, in the case of any miscarriage at an election, however great the miscarriage might be if, that is to say, only a very small number of persons had voted, and all the rest of tile Borough had been entirely unable to vote that the judge should then enquire as to how the election would have gone. As I ventured to remark in the companyrse of the argument, where a miscarriage of this sort took place it would be virtually placing the election number in the hands of the companystituency, but in the hands of the election judge, who is number to exercise a judgment as to who is to be the member, but who is only to see whether the election has been properly companyducted according to law. Justice Grove then gave the meaning of the provision at page 85 as follows If I look to the whole, and to the sense of it as a whole, it seems to me that the object of the Legislature in this provision is to say this-an election is number to be upset for an informality or for a triviality, it is number to be upset because the clerk of one. of the polling stations was five minutes too late, or because some of the polling papers were number delivered in a proper manner, or were number marked in a proper way. The objection must be something substantial, something calculated really to affect the result of the election. I think that is a way of viewing it which is companysistent with the terms of the section. So far as it seems to me, the reasonable and fair meaning of the section is to prevent an election from becoming void by trifling objections on the ground of an informality, because the judge has to look to the substance of the case to see whether the informality is of such a nature as to be fairly calculated in a reasonable mind to produce a substantial effect upon the election. Mr. Jethamalani invites us to apply the same test and in the light of his facts to say that the result of the election in so far as Mr. Fernandez is companycerned was materially affected. On the other hand, Mr. Chari relies upon the facts that there was a difference of 30,000 votes between the two rivals and as many as 38,565 votes were cast in favour of the remaining candidates. He says that Mr. Patil had companytested the earlier elections from the same companystituency and the votes then obtained by him were number more in faithless. He says it is impossible to say how much Mr. Patil lost or Mr. Fernandez gained by reason of the false statements and whether the affected voters did number give their votes to the other candidates. He argues that the best test would be to see what Mr. Patils reactions were on hearing of his defeat. In this companynection he referred to Ex. 120 in which Mr. Patil companymented on the elections in Bombay being orderly. In Ex. 128 he said that the voters of Bombay had rejected him and that he has disappointed his supporters and they must pardon him, and that he must have been punished for some sin companymitted by him. Mr. Chari says that never for a moment did Mr. Patil attribute his defeat to false propaganda by Mr. Fernandez or his supporters, which if it had been a fact Mr. Patil would have lost numbertime in mentioning. All this shows that Mr. Patil maintained his position in this companystituency. Mr. Fernandez had earlier announced that be would organise support for himself from those who had voted in the past for his rivals- , or had refrained from voting and this Mr. Fernandez was successful in achieving. Mr. Chari relies upon the rulings of this Court where it has been laid down how the burden of proving the affect on the election must be discharged. He referred to the case reported in Vashist Narain Sharma V. Dev Chandra 1 and Surendra Nath Khosla v. Dilip Singh 2 and the later rulings of this Court in which Vashist Narains 1 case has been followed and applied. In our opinion the matter cannot be companysidered on possibility. Vashist Narains 1 case insists on proof. If the margin of votes were small something might be made of the points mentioned by Mr. Jethamalani. But the margin is large and the number of votes earned by the remaining candidates also sufficiently huge. There is numberroom, therefore, for a reasonable judicial guess. The law requires proof. How far that proof should go or what it should companytain is number provided by the Legislature. In Vashists 1 case and in Inayatullah v. Diwanchand Mahajan, 3 the provision was held to prescribe an impossible burden. The law has however remained as before. We are bound by the rulings of this Court and must say that the burden has number been successfully discharged.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeals Nos. 2436 and 2437 of 1966. Appeals by special leave from the judgment and order dated November 5, 1965 of the Kerala High Court in Writ Appeals Nos. 39 and 44 of 1964. C. Chagla, C. K. Vishwa Nath Aiyar and R. Gopalakrish- nan, for the appellant in both the appeals . Narsaraju, T. A. Ramachandran and B. D. Sharma, for the respondents in both the appeals . The Judgment of the Court was delivered by Shah, J. Rajah Padmanabha Ravi Varma was the karta of a Hindu undivided family governed by the Marumakkattayam law. On his death in 1961 the appellant his brother-became the karta of the family. In 1909 the members of the family, while remaining joint, had entered into an arrangement for separate enjoyment of certain properties of the family by different members. For the assessment year 1958-59 Rajah Padmanabha filed, in the status of a Hindu undivided family, a return under the Expenditure-tax Act of the taxable expenditure incurred by him in respect of the property under his personal companytrol and direct enjoyment. The Expenditure-tax Officer added thereto 8 29 the expenditure incurred by the other members of the family in respect of properties set apart for their use and enjoyment. The Expenditure-tax Officer also served a numberice of assessment under s. 15 2 calling for a return of expenditure by the Hindu undivided family for the assessment year 1959-60. The appellant then moved petitions before the High Court of Kerala under Art. 226 of the Constitution for writs quashing the assessment and the numberice of demand for the year 1958-59 and the numberice calling for a return for the assessment year 1959-60 companytending, inter alia, that he was number liable to be assessed to tax on expenditure incurred in respect of property number under the, High Court of Kerala upheld the companytention. In appeal a Division Bench of, the High Court set aside the order of the single Judge. The appellant companytends that the law which enables the Expenditure-tax Officer to assess tax on the expenditure of all members of the Hindu undivided family governed by the Marumakkattayam law, discriminates, on the ground of religion, between the Hindu undivided family and a Mappilla undivided family governed by the Marumakkattayam law resident in North Malabar. Section 3 of the Expenditure-tax Act 29 of 1957 is the charging section insofar as it is relevant it reads Subject to the other provisions companytained in this Act, there shall be charged for every financial year, companymencing on and from the first day of April, 1958, a tax hereinafter referred to as expenditure tax at the rate or rates specified in the Schedule in respect-of the expenditure incurred by any individual or Hindu undivided family in the previous year Provided that Under the charging section tax is imposed on individuals and Hindu undivided families. An undivided family which companysists of Hindus alone may be treated as a unit of assessment an undivided family whose members are number Hindus will be assessed to tax as an individual. Counsel for the appellant companytends that whereas a Hindu family governed by the Marumakkattayam law is assessed to expenditure-tax on the total expenditure incurred by all the members of the undivided family, because the unit of taxation under s. 3 is the Hindu undivided family, a Mappilla undivided family governed by the Marumakkattayam law in North Malabar is liable to be assessed to tax as an individual, and on that account at a lower rate. Marumakkattayam law applied originally by usage to a section of the Hindus inhabiting the South-Westem companystal region in India. Some centuries ago a section of the Hindu inhabitants of North Malabar were companyverted en masse to Islam, but they still companytinued to remain governed by the Marumakkattayam law especially in matters of property relations among members of the family. The law administered by the Courts to these companymunities is, subject to express statutory provisions, a body of customs and usages which have received judicial recognition. The Mitakshara law of joint family is founded upon agnatic relationship the undivided family is characterised by companymunity of interest and unity of possession among persons descended from a companymon ancestor in the male line. The principal incident of Marumakkattayam law is that it is matriarchate members of the family companystituting a Marumakkattayam tarwad are descended through a companymon ancestress in the female line with equal rights in the property of the family. Under the customary Marumakkattayam law numberpartition of the family estate may be made, but items of the family property may by agreement be separately enjoyed by the members. On death of the interest of a member devolved by survivorship. Management of the family propeerty remained in the hands of the eldest male member, and in the absense of a male member a female member. A tarwad may companysist of two or more branches known as thavazhies, each tavazhi or branch companysisting of one of the female members of the tarwad and her children and all her descendants in the female line. Every tarwad companysisted- of a mother and her children-male and female-living in companymensality, with joint rights in property. The District of Malabar formed part of the State of Madras till October 31, 1956. The customary Marumakkattayam law applicable to Malabar was modified in certain- respects from time to time by the Madras Legislature e.g. the Malabar Marriage Act 4 of 1896, the Malabar Wills Act 5 of 1898. But the law relating to property relations between the members of the tarwad remained in its customary form till the fourth decade of this century. Under the customary law partition of the property of the family companyld number be claimed by an individual member or even by a thavazhi. It was so laid down by a companyrse of judicial decisions for over 75 years, and this rule was accepted as settled law till the Madras Legislature. enacted the Madras Marumakkattayam Act, 22 of 1933 and the Mappilla Marumakkattayam Act 17 of 1939, the former applying to Hindus and the latter to Mappillas who are Muslims. There were however significant difference between the two Acts. Under Act 22 of 1933 only a tarwad companyld claim partition s. 38 by the Madras Marumakkattayam Amendment Act 26 of 1958 enacted by the Kerala Legislature the right to claim partition was also granted to individual members property obtained by partition was held with incidents of tarwad property s. 38 2 and the Karnavan was number require to maintain an inventory of the property, but had to maintain a true and companyrect account of the income and expenditure of the tarwad. By the Madras Act 17 of 1939 any member of a Mappilla tarwad companyld claim partition ss. 13 14 succession to property obtained by partition was governed by Istamic law s. 18 the Karnavan was required to maintain an inventory of family property s. 3 any member of the family companyld apply to the Court for an order directing the Karnavan to give inspection of accounts or inventory s. 5 2 surplus income had to be invested by the Karnavan s. 7 and the Karnavan companyld be removed by a suit s. 11 These and other statutory Modifications were applicable only to the Malabar area which was originally part of the State of Madras and number to the State of Travancore-Cochin as it existed before the States Reorganization Act, 1956. There were several legislative measures in the States of Travancore and Cochin before those States merged with the Indian Union, and in the State of Travancore-Cochin after merger and in the State of Kerala, making changes in the customary Marumakkattayam law these were the Cochin Makkathayam Thiyya Act 17 of 1115 M.E. Cochin Marumakkattayam Act 13 of 1095 M.E. . Cochin Nair Act 13 of 1095 M.E. and Act 29 of 1113 M.E. Cochin Paliam Tarwad Act 8 of 1097 M.F Cochin Thiyya Act 8 of 1107 M.E. Travancore Nanjinad Vellala Regulation 6 of 1101 M.E. Travancore Nayar Regulation 1 of 1088 M.E. and 11 of 1100 E. Travancore Wills Act 6 of 1074 M.E. . It is sufficient to observe that by these statutes significant changes were made in the customary laws governing the family and property relations between the members governed by the Marumakkattayam law. The Hindu Succession Act 30 of 1956 also made inroads upon the customary law. Section 3 h defined the expression Marumakkattayam law, and by s. 7 it was provided that it a Hindu to whom the Marumakkattayam or Nainbudri law would have applied, if the Hindu Succession Act had number been passed, dies, his or her interest in the property of a tarwad, tavazhi or illom shall devolve by testamentary or intestate succession, number according to the Marumakkattayam law or the Nambudri law, but under the Hindu Succession Act. By s. 17 of the Act ss.8, 10, 15 and 23 apply to persons governed by the Marumakkattayam law subject to certain modifications. The Hindu Adoptions and Maintenance Act 78 of 1956 the Hindu Marriage Act 23 of 1955 also apply to Hindus governed by the Marumakkattayam law and modify the law relating to family relations. Initially a companymon system of law relating to family property of the tarwad was applicable to Hindus and Mapillas governed by the Marumakkattayam law. Since the enactment of Madras Act 22 of 1933, and the other Acts governing the Hindus, and Act 17 of 1939 governing the Mappillas, points of similarity even in property relations in the tarwads have companysiderably narrowed. Application of the Islamic laws of marriage and inheritance to the Mappillas led to greater cleavage. If a member of a Mappilla Marumakkattayam family married a person number governed by the Marumakkattayam law, property of the person governed by Marumakkattayam law apparently devolved according to that system of law, whereas the property of the person governed by the Islamic law devolved according to Islamic rules of succession. The result was that whereas the interest of a, Mappilla governed by the Marumakkatayam law devolved by survivorship, his separate property descended by inheritance in accordance with the Islamic law. Hindus governed by the Marumakkattayam law, since the enactment of the Hindu Succession Act remained members of the undivided family, but on death the interest devolved by the rules prescribed by the Hindu Succession Act. In a Hindu tarwad governed by the Marumakkattayam law the descent is matriarch-ate and all members male and female have equal shares in the property of the tarwad. Though number a family governed by the Mitakshara law, it is still a Hindu undivided family within the meaning of the Expenditure-tax Act. The property relations between members of a Mappilla Marumakkattayam tarwad governed by the matriarchate with equal shares for males and females were in certain respects, already stated, different from the relations between members of a Hindu joint family governed by the Marumakkattayam law. The companymunity of Mappillas governed by the Marumakkattayam law is, companypared to the Hindus, a small companymunity restricted only to the numberthern area of the Malabar District. it is again a dwindling companymunity because of the impact of the law of inheritance applicable to share obtained on partition. it is in the light of these special characteristics that-the plea of discrimination must be companysidered. Equal protection clause of the Constitution does number enjoin equal protection of the laws as abstract propositions. Laws being the expression of legislative will intended to solve specific 8 33 problems or to achieve definite objectives by specific remedies, absolute, equality or uniformity of treatment is impossible of achievement. Again tax laws are aimed at dealing with companyplex problems of infinite variety necessitating adjustment of several disparate elements. The Courts accordingly admit, subject to adherence to the fundamental principles of the doctrine of equality, a larger play to legislative discretion in the matter of Clai- fication. The power to classify may be exercised so as to adjust the system of taxation in all proper and reasonable ways the Legislature may select persons, properties, transactions and objects, and apply different methods and even rates of tax, if the ,Legislature does so reasonably. Protection of the equality clause does number predicate a mathematically precise or logically companyplete or symmetrical classification it is number a companydition of the guarantee of equal protection that all transactions, properties, objects or persons of the same genus must be affected by it or at all. If the classification is rational, the Legislature is free to choose objects of taxation, impose different rates, exempt classes of property from taxation, subject different classes of property to tax in different ways and adopt different modes of assessment. A taxing statute may companytravene Art. 14 of the Constitution if it seeks to impose on the same class of property, persons, transactions or occupations similarly situate, incidence of taxation, which leads to obvious inequality. A taxing statute is number, therefore, exposed to attack on the ground of discrimination merely because different rates of taxation are prescribed for different categories of persons, transactions, occupations or objects. It is for the Legislature to determine the objects on which tax shall be levied, and the rates thereof. The Courts will number strike down an Act as denying the equal protection of laws merely because other objects companyld have been, but are number, taxed by the Legislature Raja Jagannath Baksh Singh State of Uttar Pradesh and Another 1 . The same rule has been accepted by the Courts in America. Wills in his Constitutional Law of the United States has stated at p. 587 A state does number have to tax everything in order to tax something. It is allowed to pick and choose districts, objects, persons, methods, and even. rates for taxation if it does so reasonably. As stated in Weavers Constitutional Law Art. 275 at p. 405 Me Fourteenth Amendment was number designed to prevent a state from establishing a system of taxation or from effecting a change in its system in all proper, 1 1963 1 S.C.R. 220. -and reasonable ways, number to require the states to adopt an ironclad rule of equality to prevent the classification of property for purposes of taxation or the imposition of different rates upon different classes. Weaver again says at p. 397 Class legislation is that which makes an improper discrimination by companyferring Particular privileges upon a class of persons, arbitrarily selected from a large number of persons, all of whom stand in the same relation to the privilege granted and between whom and the persons number so favoured numberreasonable distinction ,or substantial difference can be found justifying the inclusion of one and the exclusion of the other from such privilege A classification must number be arbitrary artificial or evasive and there must be a reason-able, natural and substantial distinction in the nature of the class or classes upon which the law operates. In respect to such distinction, a legislative body has a wide discretion and an Act will number be held invalid unless the, classification is clearly unreasonable and arbitrary. It is unnecessary to multiply citations. The Parliament has declared for the purpose of the Expendi- ture-tax Act an undivided family of Hindus as a unit of taxation and imposed tax at the rates prescribed. To fall within the description the unit must be an undivided family of Hindus. Within the expression Hindu undivided family will fall an undivided family of Hindus governed by the Marumakkattayam law. Even though the basic scheme of a Hindu undivided family governed by the Mitakshara law and the Marumakkattayam law is different in two important respects, viz. the descent is through females and children both males and females have equal rights to pro-perty-these families are still Hindu undivided families. The law applicable to Hindu undivided family governed by the Marumakkattayam law, and to the Mappilla. tarwad in North Malabar has the same characteristics in two principal respects a descent is traced through females and , b there is companymunity of interest and unity of possession in respect of the family property. But the laws applicable to those families in other respects widely differ. The Mappilla families governed by the Marumakkattayam law reside in a small part of the companyntry and form numerically a small companymunity. The Parliament has again been accustomed 8 35 in enacting tax laws to make a distinction between a Hindu Undivided Family companysisting of Hindus and undivided families of Mappillas. By the taxing Acts the Parliament companyld have treated Mappilla tarwads as units of taxation. But the mere fact that the law companyld, have been extended to another class of persons who have certain characteristics similar to a section of the Hindus but have number been so included is number a ground for striking down the law. In treating a Hindu Undivided Family as a unit of taxation under the Expenditure-tax Act and number a Non-Hindu Undivided Family the Parliament has number attempted an obvious inequality. Under the taxing Acts the scheme of treating a Hindu Un- divided Family has been adopted for a long time, e.g., the Indian income-tax Act IX of 1869, Indian Income-tax Act IX of 1870, Indian Income-tax Act XII of 1871, Act VIII of 1872, Act 11 of 1886, Act VII of 1918, Act XI of 1922, Act 43 of 1961 have treated a Hindu Undivided Family as a distinct taxable entity. Similarly under the Wealth-tax Act 27 of 1957 and the Gift-tax Act 18 of 1958, the Hindu Undivided Family is made a unit of taxation. Under the Business Profits Tax Act 21 of 1947 and the Excess Profits Tax Act, 1940 also the Hindu Undivided Family was made a unit of taxation. For the purposes of these Acts Mappilla tarwads governed by the Marumakkattayam law have been regarded as individuals. This long companyrse of legislative history in matters of taxing income, wealth, gifts, capital gains and business profits clearly indicates that the legislature regarded undivided families of Hindus as a class to which the legislation may appropriately be applied. An intention to effectively administer the taxing Acts and number to discriminate on the ground of religion may be attributed to the Legislature. The Parliament in the present case having made the Expen- diture-tax Act applicable to Hindus governed by the law of the joint family, but number including Mappilla families who are governed by the Mappilla Marumakkattayam Act has number made any discrimination and the charging section is number liable to be struck down on the ground that the Mappilla family may have to pay tax at a lower rate, whereas a Hindu Undivided Family, by reason of the amalgamation of the expenditure of all the members of the family, may have to pay tax at a higher rate. The appeals fail and are dismissed with companyts.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeals Nos. 15 and 16 of 1969. Appeals from the judgment and order dated December 3, 1968 of the Gujarat High Court in Letters Patent Appeals Nos. 43 and 42 of 1966 respectively. C. Chagla, P. C. Bhartari, P. N. Tiwari and J. B. Dada- chanji, for the appellants in both the appeals . N. Shroff, for the respondent in both the appeals . The Judgment of the Court was delivered by Hegde, J. Common questions of law arise for decision in these appeals, by certificate. The suits from which these appeals arise have been companysidered together and decided by companymon judgments, both in the High, Court as well as in the companyrts below. It is companyvenient to do so in this Court as well. The suits in questions are representative suits. The plaintiffs appellants who are companysumers of electricity in the Godhra area sued the respondent-company on behalf of all the companysumers in that area seeking to restrain the respondent from enforcing the enhanced charges sought to be companylected from the companysumers of power used for lights and fans as well as of motive power. The facts leading to these appeals may number, be stated. On November 19, 1922, the then Government of Bombay granted a licence under the Indian Electricity Act, 1910 to a companycern called Lady Sulochna Chinubhai Co. authorising it to generate and supply electricity to the companysumers in Godhra area. Clause 10 of the licence prescribed the maximum charges that the licensee companyld levy for the power supplied. The respondent is the successor of the said licensee. After the Electricity Supply Act, 1948 to be hereinafter referred to as the Supply Act came into force, a rating companymittee was companystituted under s. 57 2 of the Supply Act at the request of the respondent on January 19, 1950. On the recommendation of that companymittee, the Government fixed with effect from February 1, 1952, the following charges for the power supplied 0-7-9 pies per unit for the electricity supplied for lights and fans with a minimum of Rs. 3/- per month per installation and for motive power at 4 annas per unit with a minimum of Rs. 4-8-0 per month per installation. The Supply Act was amended in 1956. The respondent increas the charges for motive power from January 1, 1963 to 35 NP. per unit with a minimum of Rs. 7/- per month for every installation. On June 22., 1963, the rates for light and fans were increased with effect from July 1, 1963 to 70 NP. per unit with a minimum of Rs. 51- per month for every installation. The companytention of the appellants is that the respondent wag number companypetent to enhance the charges, in question without the matter having been companysidered by a rating companymittee. Their suits to restrain the respondent from levying the proposed increased charges were decreased by the trial companyrt. Those decrees were affirmed by the first appellate companyrt as well as by a single judge of the Gujarat High Court in second appeals but the appellate bench of the Gujarat High Court reversed those decrees and dismissed the suits holding that under the Supply Act as amended in 1956 the respondent has a unilateral right to enhance the charges subject to the companyditions prescribed in the VI Schedule to that Act. It is as against those decisions these appeals have been brought. Civil Appeal No. 15 of 1969 relates to the enhancement of charges for electricity power for lights and fans and Civil Appeal No. 16 of 1969 relates to the enhancement of charges for the motive power. The only question that arises-for decision in these appeals is whether under the provisions of the Supply Act as amended in 1956, the respondent was companypetent to unilaterally enhance the charges. In these appeals we are number companycerned with the provisions of the Electricity Act, 1916. There is numberdispute as regards the charges fixed by the Government with effect from February 1, 1952, under s. 57 2 c of the Supply Act on the basis of the recommendation made by the rating companymittee. The appellants admit their liability to pay enhanced charges that may be fixed by the Government on the basis of any recommendation by a freshly, appointed rating companymittee. They merely challenge the respondents right to unilaterally enhance the charges. According to the appellants they have a vested right to be governed by the charges fixed in 1952 until the same is revised by the Government on the basis of the recommendation of a rating companymittee. It was urged on their behalf that the amendments made in 1956 do number affect the charges fixed in 1952 and they companytinue to rule till altered by the Government in accordance with law. The respondent repudiates those companytentions. It denies that the appellants have any vested right in the charges fixed. It was urged on its behalf that the amendments made to the Supply Act in 1956 have substantially altered the scheme as regards levying charges it is number open to a licensee to alter the charges fixed by the Government unilaterally subject to the companyditions prescribed in s. 57 A and in Sch. VI of the Supply Act. We may mention at this stage that even according to the appellants the charges that may be fixed by the Government number on the basis of the recom- mendation of a rating companymittee can be unilaterally altered by the licensee after the period fixed in the Government order in accordance with cl. e of S. 57 A 1 , expires. In order to decide the point in companytroversy, we have to take into companysideration the relevant provisions of the Supply Act as it stands number and as it stood prior to its amendment in 1956. For the sake of companyvenience we shall set out side by side the relevant provisions. ------------------------------------------------------------ The Supply Act as it stood before The Supply Act 1956 as amended In 1956 ---------------------------- ---------------------------- s. 57. Licensees charges to companysu- S. 57. The mers Provisions of the Sixth Schedule and the Seventh Schedule 1st companyumn of page-no 840 The Provisions of the Sixth Schedule and the Table ap- pended to the Seventh Schedule shall be deemed to be incorporated in the licence of every licences number being a local authority, from the date of the companymencement of the licensees next succeeding year of account. and from such date the licensee shall companyply therewith accordingly and any provisions of such licence or of the Indian Electricity Act, 1910 I.X of 1910 , or any other law, agreement or strument applicable to the licensee shall, in relation to the licensee, be void and of numbereffect in so far as they are inconsistent with the provisions of this section and the said Schedule and Table. Where the provisions of the. Sixth Schedule and the Table appended to the Seventh Schedule are under sub-section 1 deemed to be incorporated in the licence of any licensee, the following provisions shall have effect in relation to the said licensee, namely - The Board or where numberBoard is companystituted under this Act, the Provincial Government, may, if it is satisfied that the licensee has failed to companyply with any provisions of the Sixth Schedule and shall when requested so to do by the licensee. companystitute a rating companymittee to examine the licensees charges for the supply of electricity and to recommend thereon to the Provincial Government Provided that numberrating companymitee shall be companystituted in respect of a licensee within three 2nd companyumn of the page-no 840 shall be deemed to be incorporated in the licence of every licensee. number being a local authority a in the case of a licence granted before the companymencement of this Act, from the date of the companymencement of the licences next succeeding year of account and b in the case of a licencee granted after the companymencement of this Act, from the date of the companymencement of supply, and as from the said date. the licensee shall companyply with the provisions of the said Schedules accordingly , and any provisions of, the Indian Electricity Act, 1910, and the the licence granted, to him thereunder and of any other law. agreement or instrument applicable to the licensee shall, in relation to the licensee, be void and of numbereffect in so far as they are inconsistent with the provisions of section 57A and the said Schedules. S. 57 A 1 where the provisions of the Sixth Schedule and the Seventh Schedule are under section 57 deemed, to be incorporated in the licence of any licensee, the following provisions shall have effect in relation to the said licensee namely - a the Board or where numberBoard is companystituted under this Act, the State Government- may, if satisfied that the licensee has failed to companyply with any of the provisions of the Sixth Schedule, and shall, when so requested by the licensee in writing companystitute a rating companymittee to examine the licensees charges for the supply of electricity and 1st companyumn of the page-no 841 years from the date on which such a companymittee has reported in respect of that licensee, unless the Provincial Government declares that in its opinion circumstances have arisen rendering the orders passed on the recommendation of the previous rating companymittee unfair to the licensee or airy of his companysumers. The rating companymittee shall after giving the licensee a reasonable opportunity of being heard and after taking into companysideration the efficiency of operation and management and the potentialities of his undertaking report to the Provincial Government making recommendations and giving reasons therefore regarding the charges for electricity which the licencee may make to any class or classes of companysumers so however that the recommendations are number likely to prevent the licensee from earning clear profits sufficient when taken with the sums available in the Tariffs and Dividends Control Reserve to afford him a reasonable return during his next succeeding three years of account if the potentialities of the undertaking of the licensee, with efficient operation and management so permit. Within one, month after the receipt of the report under Clause b the Provincial Government shall cause the report to be published in the, offcial Gazette. and may at the same time make an order in accordance therewith fixing the Been- sees charges for the supply 2nd companyumn of the page-no 841 to make recommandations in that behalf to the State Government Provided that where it is proto companystitute a rating companymittee under this section on account failure of the licensee to companyply with any provisions of the Sixth Schedule. such companymittee shall number be companystituted unless the licensee has been given a numberice in writing of thirty clear days which period, if the circumstances so warrant may be extended from time to time to show cause against the action proposed to be taken Provided further that numbersuch rating companymittee shall be companystituted if the alleged failure of the licensee to companyply with any provisions of the Sixth Schedule raises any dispute or difference as to the interpretation of the said provisions or any matter arising therefrom and such difference or dispute has been referred by the licensee to the arbitration of the Authority under paragraph XVI of that Schedule before the numberice referred to in the preceding proviso was given or is so referred within the period of the said numberice Provided further that numberrating companymittee shall be companystituted in respect of a licensee within three years from the date on which such a companymittee has reported in respect of that licensee, unless the State Government declares that in its opinion circumstances have arisen rendering the orders passed on the recommendations of the previous rating. companymittee unfair to the licensee or any of the companysumers b a rating companymittee under clause a shall-- where such companymittee is to be, companystituted under subclause i of that clause. be companystituted number later than three months after the 1st companyumn of the page-no 842 of electricity with effect from such date, number earlier than two months after the date of publication of the report, as may be specified in the order and the Msee shall forth with give effect to such order Provided that numberhing in this clause shall be deemed to pre- vent a licensee from reducing at any time any charges, so fixed. THE SIXTH SCHEDULE The Licensee shall so adjust his rates for the Sale of electricity by periodical revision that his clear profit in any year shall number as far as possible exceed the amount of reasonable return Provided that the licensee shall number be companysidered to have failed so to adjust his rates if the clear profit in any year of account has number exceeded the. amount of be reasonable return by more than thirty per centum of the amount of the reasonable return. II. 1 If the clear profit of a licensee in any year of account is in excess of the amount of reasonable return one- third of such excess. number exceeding 7-1/2 per cent of the amount of reasonable return shall be at the disposal of the undertaking. Of the balance of the excess, one half shall be appropriated to a reserve which shall be called the Tariffs and Dividends Control Reserve and the remaining half, shall either be distributed in the form of a proportionable rebate on the amounts companylected from the sale of electricity and meter rentals or carried forward in the accounts of the licensee for distribution, to the companysumers in future, in 2nd companyumn of the page-no 842 expiry of the numberice referred to in the first proviso to that clause where such companymittee is to be companystituted at the request of the licensee, be companystituted within three months of the date of such request c a rating companymittee shall, after giving the licensee a reasonable opportunity of being heard and after taking into companysideration the efficiency of operation and management and the potentialities of his undertaking, report to the State Government within three months from the date of its companystitution, making recommendations with reasons there for, regarding the charges for electricity which the licensee may make to any class or classes of companysumers so, however. that the recommendations are number likely to prevent the licensee from earning clear profit,, sufficient when taken with the sums available in the Tariffs and Dividends Control Reserve to afford him a reasonable return as defined in the Sixth Schedule during his next succeeding three years of account Provided that the State Government may, if it go deems necessary, extend the said period of three months by a further period number exceeding three month within which the report of the rating companymittee may be submitted to it d within one month after the receipt of the report under clause c , the State Government shall cause the report to be published in. the Official Gazette, and may at the same time make an order In accordance therewith fixing the licensees charges for such manner as the Provincial Government may direct. The Tariffs and Dividends Control Reserve shall be available for disposal by the licensee only to the extent by which the clear profit is less than the reasonable return in any year of account. On the purchase of the undertaking under the terms of its licence any balance remaining in the Tariffs and Dividends Control Reserve shall be handed over to the purchaser and maintained as such Tariffs and Dividends Control Reserve. 2nd companyumn of the page-no 843 supply of electricity with effect from such date,not earlier than two months or later than three months.after the date of publication of the report as may be specified in the order and the licensee shall forthwith give effect to such order e the charges for the supply of electricity fixed under clause d shall be in operation for such period number exceeding three years as the State Government may specify in the order Provided that numberhing in this clause shall be deemed to prevent a licensee from reducing at any time any charges so fixed. THE SIXTH SCHEDULE Notwithstanding anything companytained in the Indian Electricity Act, 1910 except sub-section 2 of section 9 of 1910, 22A, and the provisions in the licence of a licensee. the licensee shall so adjust his charges for the sale of electricity whether by enhancing or reducing them that his clear profit in any year of account shall number, as far as possible, exceed the amount of reasonable return Provided that such charges shalt number be enhanced more than once in any year of account Provided further that the licensee shall number be deemed to have failed so to adjust his charges if the clear profit in any year of account has number exceeded the amount of reasonable return by twenty per centum of the amount of reasonable return Provided further that the licensee shall number enhance the charges for the supply of,electricity until after the expiry of a numberice in writing of, number less than sixty 2nd companyumn of the page-no 844 clear days of his intention to so enhance the charges given by him to the State Government and and to the Board Provided further that if the charges of supply fixed in pursuance of the recommendations of a rating companymittee company- stituted under sec. 57A are lower than those numberified by the licensee under and in accordance with the preceding Proviso, the licensee shall refund to the companysumers the excess amount recovered by him from them Provided also that numberhing in this Schedule shall be deemed to prevent a licensee from levying. with the previous approval of State Govt. minimum charges for supply of electricity for any purpose. IA. The numberice referred to in the third proviso to paragraph I shall be accompanied by such financial and technical data in supPort of the proposed enhancement of charges as the State Government may, by general or special order, specify. II. 1 If the clear profit of a licensee in any year of account is in excess of the amount of reasonable return, one-third of such excess, number exceeding five per cent of the amount of reasonable return, shall be at the disposal of the undertaking. Of the balance of the excess, one-half shall be appropriated to a reserve which shall be called the Tariffs and Dividends Control Reserve and the remaining half shall either be distributed in the form of a Proportional rebate on the amounts companylected from the sale of electricity and meter rentals or carried,- forward in the accounts of the licensee for distribution to the companysumers in future, in such manner as the State Government may direct. The Tariffs and Dividends Control Reserve shall be available for disposal by the licensee only to the extent by which the clear 2nd companyumn of the page-no 845 profit is less than the reasonable return in any yea of account. On the purchase of the undertaking under the terms of its licence any balance remaining in the Tariffs and Dividends Control Reserve shall be handed over to the purchaser and maintained as such Tariffs and Dividends Control Reserve Provided that where the Undertaking is purchased by the Board or the State Government the amount of the Reserve may be deducted from the price payable to the licensee. From an examination of these- provisions it would be seen that under the Supply Act prior to its amendment in 1956, the charges fixed by the Govt. under s 57 2 c remained in force unless reduced by the licensee in the meantime till the same were altered by a subsequent order made by the Govt. after getting a fresh recommendation from the rating companymittee but under the law as it number stands the rate fixed by the Government under s. 57 A 1 d would be in operation only for such period number exceeding three years as the State Govt. may specify in the order. Thereafter it can be enhanced by the licensee in accordance with the provisions companytained in Sch. VI. It was urged on behalf of the appellants that the present s. 57 A 1 e can only govern the charges fixed under s. 57 A 1 d and it has number impact on an order made under the old s. 57 2 c . According to the appellants the charges so fixed can only be modified by the Government after getting a report from the rating companymittee. Mr. Chagla, learned Course for the appellants companytended that the, companysumers who get power from the respondent have a vested right in the charges fixed in 1952 and that vested right cannot be companysidered to have been taken away by the provisions of the Amending Act. He argued that the provisions of the Amending Act are number retro- spective in character number is there any inconsistency between those provisions and the present provisions as the two operate on different fields hence in view of s. 6 of the General Clauses Act, 1897, we must hold that the charges fixed by the Government in 1952 companytinue to be in operation. In this companynection he relied on certain observations made by this Court in State of Punjab v. Mohar Singh and Deep Chand v. State of U.P. Ors. 2 . On the other hand it was companytended by the learned Counsel for the respondent that the rights and liabilities of the.respondents at present are exclusively regulated by the provisions of the Supply 1 1955 S.C.R. 893. 2 1959 2 Supp. S. C.R. 8. Act as it stands number the terms of licences as they originally stood or as they stood on the companying into force of the Supply Act in 1948 are of numberconsequence number they cannot be looked into for finding out the rights or duties of the licensee as at present for that purpose we must look into those terms as modified by the provisions of the Supply Act as It is number. It was also urged on its behalf that there is numberquestion of vested rights in these cases herein we are only companycerned with the procedure to be adopted in modifying the charges fixed in 1952. In Mohar Singhs case 1 this Court laid down that the provisions of S. 6 c , d and e of the General Clauses Act, 1897 relating to the companysequences of the repeal of a law are applicable number only when an Act or Regulation is repealed simpliciter but also to a case of repeal and simultaneous enactment re-enacting all the provisions of the. repealed law. In the companyrse of its judgment this Court observed that when the repeal is followed by a fresh legislation on the same subject, the Court has undoubtedly to look into the provisions of the new Act but that only for the purpose of determining whether they indicate a different intention. The line of inquiry would be, number whether the new Act-keeps alive the old rights and liabilities but whether it manifests any intention to destroy them. In Deep Chands case 2 this Court was companysidering the effect of repugnancy between a State Act and a Central Act. The observations made in that companytext, we think, have numberbearing on the point in issue in this case. It is true that when an existing Statute or Regulation is repealed and the same is replaced by fresh Statute or Regulation unless the new Statute or Regulation specifically or by necessary implication affects rights created under the old law those rights must be held to companytinue in force even after the new Statute or Regulation companyes into force. But in the cases before us there is numberquestion of affecting any vested right. There is numberdispute that the charges fixed can be altered. The companytroversy relates to the procedure to be adopted in altering them. That companytroversy does number touch any vested right. The procedure in question must necessarily be regulated by the law in force at the time of the alteration of the charges. Section 57 of the Supply Act as it stands number lays down that the provisions of Sch. VI shall be deemed to be incorporated in the licence of every licensee number being a local authority, in the case of a licence granted before the companymencement of the Act from the date of the companymencement of the licensees next succeedmg year of account. Admittedly the licence with which. we are companycerned in these cases was granted even before the Supply Act was enacted. Therefore quite clearly the licence in question is governed by the present S. 57. Hence we have to read into that licence the provisions companytained in Sch.1 VI. If any of the earlier 1 1955 S.C.R. 893. 2 1959 2 Supp. S.C.R. 8. 8 47 provisions in the licence either as they stood when the licence was originally granted or as they stood modified as per the provisions of the Supply Act prior to its amendment in 1956 are in companysistent ,with the provisions of Sch. VI or s. 57 A as they are number they must be held to be void and of numbereffect. In other words we must read into the licence the provisions of Sch. VI and strike out therefrom such terms as are inconsistent with those provisions and thereafter give effect to the same. For determining the , rights and duties of the licensee as at present we have only to look into the terms of the licence as modified by Sch. VI. We cannot go behind them. That much is clear from the language of the Supply Act. The intention of the legislature is clear and unambiguous. Therefore there is numberneed to call into aid any rule of statutory companystruction or any legal presumption. Further numberreason was advanced before us, number can we companyceive of any why those who obtained licenses prior to the amendment of Supply Act in 1956 should be in a more disadvantageous-position than those who got their licenses thereafter. Correspondingly we fail to see why those who are served by licensees who obtained their licences prior to the amendment of the Supply Act in 1956 should be placed in a better position than- those served by licensees who obtained their licenses thereafter. After all, every law has some reason behind it. Section 57 A 2 e was intended to meet the changing economic circumstances. The purpose behind the new provisions appears to be to permit the licensees to so adjust their charges as to get reasonable profits., But at the same time a machinery has been provided to see whether any excess charges have been levied and if levied, get the same refunded to the companysumers. The law declared by the Amending Act does number affect any, right or privilege, accrued under the repealed provision. It merely prescribes as to what companyld or should be done in future. Therefore there is numberbasis for saying that it affects vested rights. For finding out the power of the licensee to alter the charges one has to look to the terms of the licence in the light of the law as it stands- the past history of that law being wholly irrelevant.If the terms of the licence, including the deemed terms permit him to unilaterally alter the charges then he has that right. If we merely look at those terms, as we think we ought to, then there is numberdispute that the respondent was within its rights in enhancing the charges as admittedly it has followed the procedure prescribed by law. We also do number agree with Mr. Chagla in his companytention that there is numberinconsistency between the present scheme relating to the enhancement of charges vis a vis the scheme provided under the Supply Act prior to its amendment in 1956. The two schemes are substantially different. Under the former scheme once the Government fixes the charges the licensee cannot alter it but at present at the end of the period order the licensee has a unilateral right to accordance with the companyditions prescribed fixed in the Government enhance the charges in in the VI Schedule. Therefore in view of s. 57 the provisions companytained in that schedule have an over- riding effect. In Amalgamated Electricity Co., Ltd. v. N. S. Bhathena and Anr. 1 this Court was called upon to companysider the scope of s. 57. A and the Sch. VI as it stands number. Therein the companytroversy was whether the appellant therein was entitled to levy charges more than the maximum charges prescribed in its licence issued in 1932. It may be numbered that in that case the numberice of enhancement of the charges was given on September 25, 1958. This Court held that the maximum stipulated in the licence numberlonger governed the. right of the licensee to enhance the charges his rights were exclusively governed by the provisions companytained in paragraph 1 of Sch. VI of the Supply Act. It is true that in that case this Court was companysidering the right of the licensee under the Supply Act vis-a-vis his right under the licence granted under the Indian Electricity Act, 1910 but that difference is number material. What this Court in fact companysidered was the right of the licensee under the existing law to enhance the charges. Dealing with the scope of paragraph 1 of Sch. VI, Ayyangar, J. who spoke for the majority observed thus para 1 of Sch.-VI both as it originally stood and as amended, as seen already, empowered the licensee to adjust his rates, so that his clear profit in any year shall number, as far as possible, exceed the amount of reasonable return. We shall reserve for later companysideration the meaning of the expression so adjust his rates. But one thing is clear and that is that the adjustment is unilateral and that the licensee has a statutory right to adjust his rates provided he companyforms to the requirements of that paragraph viz., the rate charged does number yield a profit exceeding the amount of reasonable return.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 1058 of 1967. Appeal by special leave from the order dated September 15, 1966 of the Kerala High Court in Tax Revision Case No. 106 of 1966. R. Krishna Pillai, for the appellant. The respondent did number appear. The Judgment of the Court was delivered by Grover, J. This is an appeal by special leave from a judgment of the Kerala High Court dismissing in limine a revision petition directed against the order of the Sales Tax Appellate Tribunal dated April 15, 1966 by which it was held that the respondent companypany was number a dealer within the meaning of s. 2 viii of the Kerala General Sales Tax Act 1963 Act 15 of 1963 hereinafter called the Act. The respondent sold trees of spontaneous growth in its estate for Rs. 50,000 during the assessment year 1963-64. The assessing authority levied sales tax by treating the aforesaid amount as taxable turnover under the Act. In appeal the Appellate Assistant Commissioner companyfirmed that order. Before the Appellate Tribunal it was companymon ground that the trees sold were of spontaneous growth. The Tribunal did number accede to the companytention of the State representative that under the companytract, by the process of uprooting the trees, the respondent produced timber and would be companyered by the definition of a dealer companytained in s. 2 viii of the Act. It was held that uprooting of the trees was number being done by the respondent and numberprocess had been employed by which it companyld be said that timber had been produced by it. The appellant herein filed a petition before the High Court raising the following questions of law Whether on the facts and in the circumstances of this case, a person owning and maintaining private forest and selling trees of spontaneous growth therein, is a dealer within the meaning of section 2 viii of the Kerala General Sales Tax Act, 1963 ? Whether such a person is liable to the levy of sales-tax respect of sales of his timber, under the said Act ? As mentioned before the High Court rejected the petition for revision at the preliminary hearing. The sole question is whether on the findings given by the Appellate Tribunal the respondent can be regarded as a dealer within the definition given in s. 2 viii . According to that definition dealer means any person who carried on the business of buying, selling, supplying or distributing goods directly or otherwise whether for cash or for deferred payment or for companymission, remuneration or other valuable companysideration and includes e a person who sells goods produced by him by manufacture, agriculture, horticulture or otherwise. It has been companytended before us by learned companynsel for the appellant that the Appellate Tribunal erred in assuming that any agricultural, horticultural or other process was involved in producing the timber sold. The basic question it is said, was whether maintenance of a private forest with a view to producing and selling valuable timber with the usual attributes of business present in the said activity, namely, periodicity, companytinuity and profit motive would amount to such process. The other question as whether the said activity i.e., forestry would number companye within the scope of agriculture, horticulture or otherwise particularly when the respondent owns substantial area of forest land, and timber from the trees of spontaneous growth is sold year after year with the object of earning profit. Now in order to fall within the definition of dealer a person must sell goods produced by him by manufacture, agriculture, horticulture or otherwise. Such trees which have grown spontaneously and without any plantation by that person cannot possibly be regarded as having been produced by him by agriculture or horticulture. The word otherwise also cannot companyer trees of spontaneous growth since the element of production must be present. The companytext in which the word produced appears in the definition can only mean to bring forth, bring into being or existence-to bring a thing into existence from its raw materials or elements See the meaning of the word ,produce- in the Shorter Oxford English Dictionary . According to Websters International English Dictionary the verb produce means to bring forward, beget etc. The juxtaposition of the word manufacture with agriculture and horticulture is significant and cannot be lost sight of. The intention in employing the word produced obviously was to introduce an element of volition and effort involving the employment of some process for bringing into existence the goods. The respondent in the present case has number been found to have done anything towards the production of the trees and even the cutting has been done by the companytractor. The respondent therefore cannot possibly be regarded as a person who sells goods produced by him by agriculture, horticulture or other- wise. On the above view of the matter the appeal fails and is dis- missed. As there is numberappearance on behalf of the respondent there will be numberorder as to companyts in this Court.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeals Nos. 123 and 124 of 1966. Appeals by special leave from the judgments and orders dated April 28, 1965 of the Gujarat High Court in Civil Revision Applications Nos. 88 and 93 of 1961. B. Patwari, K. L. Hathi, S. K. Bagga and Sureshta Bagga, for the appellants. M. Rawal and P. C. Bhartari, for the respondents. The Judgment of the Court was delivered by Mitter, J. These are two appeals by special leave from judg- ments of the Gujarat High Court dated April 28, 1965 in Civil Revision Applications No. 88 and 93 of 1961. As the questions involved in both the applications were the same, the High Court delivered the main judgment in Civil Revision Application No. 88/1961 and referred to the same in its judgment in Civil Revision Application No. 93 of 1961. The two applications in the High Court arose out of certain proceedings under the Saurashtra Agricultural Debtors Relief Act. The applicants before the High Court and the appellants before this Court were mortgagees in possession of certain lands belonging to the debtors who are number represented by the respondents. The main question before the High Court was and before us is, whether the debtors had lost all their interest in the lands mortgaged by reason of the operation of the Saurashtra Land Reforms Act, XXV of 1951 and as such were number companypetent to make an application under the Saurashtra Agricultural Debtors Relief Act, 1954. Hereinafter the two Acts will be referred to as the Land Reforms Act and the Debtors Relief Act. It is number necessary to deal separately with the facts in the two appeals as the companyrse of proceedings in both cases were similar giving rise to companymon questions of law. We therefore propose to take numbere of the facts in Civil Revision Application No. 88 of 1961. The creditors, appellants before us, were in possession of the properties- the subject matter of litigation, under two mortgage deeds of Samvat years 1997 and 1999. The first mortgage was for Rs. 991 and the second for Rs, 1,011 The mortgagees were with possession and the mortgagee have been appropriating the income of the usufruct thereof for the last 50 years. There is numberhing to show whether they were under a liability under the documents of mortgage to pay the revenue and other dues to the State but there is numberdispute that they have been doing so for many years past. The lands were situate in Bajana State with its own peculiar land tenure system known as the Girasdari system. The Land Reforms Act which came into force on July 23, 1951 purported to effect important and far-reaching changes in the said system. The preamble to the Act shows that its object was the improvement of land revenue administration and for ultimately putting an end to the Girasdari system and the regulation of the relationship between the Girasdars and their tenants, to enable the latter to become occupants of the land held by them and to provide for the payment of companypensation to the Girasdars for the extinguishment of their rights. It will be numbered at once that the Act aimed at regulating the relationship of persons in the position of landholders and their tenants and to enable the tenants to become the real owners of the soil under direct tenancy from the State. It was number meant to extinguish or affect the rights of the landholders as mortgagors unless the persons- in occupation had become tenants either by companytract or by operation of law. The Act came into force in the whole of Saurashtra area of the State of Gujarat. Under S. 2 15 Girasdar meant any talukdar, bhagdar, bhayat, cadet or mul-girasia, etc. Under S. 2 13 estate meant all land of whatever description held by a Girasdar including uncultivable waste whether used for the purpose of agriculture or number and Gharkhed meant any land reserved by or allotted to a Girasdar before the 20th May 1950 or for being cultivated personally and in his personal cultivation. A tenant under S. 2 30 meant an agriculturist who held land on lease from a Girasdar or a person claiming through him and included a person who was deemed to be a tenant under the provisions of the Act. Under S. 3 the provisions of the Act were to have effect numberwithstanding anything inconsistent therewith companytained in any other law for the time being in force. Section 4 Provided that all land of whatever description held by Girasdar is and shall companytinue to be liable to the payment of land revenue to the State of Gujarat. Section 5 classified Girasdars according to the measure of their holding and under cl. c thereof a Girasdar was to belong to class C if the total area of agricultural land companyprised in his estate did number exceed Act. 120-00 Section 6 1 of the Act laid down that any person who was lawfully cultivating any land belonging to a Girasdar was to be deemed for the purposes of the Act to be the tenant if he was number a member of the Girasdars family or a servant on wages payable in cash or in kind etc. or a mortgagee in, possession. The Explanation to the sub- section however shows that a person who was otherwise, deemed to be a tenant was number to cease to be such only on the ground that he was a mortgagee in possession. Under S. 19 it was open to any Girasdar to apply to the Mamlatdar for the allotment to him of land for personal cultivation within a certain fixed time. Such application had to be made in a specified form giving the prescribed particulars. The applicant had to show inter alia, the area and location of the land in respect of which the allotment was prayed for, the right under which he claimed the land and full particulars of his estate as also the area of khalsa land, if any, in his possession. Under S. 20 of the Act it was for the Mamlatdar to issue numberice to the tenant or tenants companycerned on receipt-of an application under S. 19 and make an enquiry in the prescribed manner after giving the parties an opportunity of being heard. After such inquiry the Mamlatdar was required to pass an order making an allotment to the Girasdar of such land as may be specified in the order and this was to be followed by the issue of an occupancy certificate to a Girasdar in respect of his Gharkhed and the land, if any, allotted to him under the section. Under sub-S. 4 numberGirasdar was to obtain possession of any land held by a tenant except in accordance with the order under the section. Section 24 laid down the total area of the holding which a C class Girasdar companyld be allotted for personal cultivation. Sub-s. 2 of the section provided that a C class Girasdar companyld number be allotted any khalsa land if it was held by a tenant. Chapter V companytaining sections 31 to 41 provided for acquisition of occupancy rights by tenants and S. 31 laid down the companysequences which were to issue in the wake of grant of occupancy certificates. A tenant who was granted such a certificate was to be free of all relations and obligations as tenant to the Girasdar. The Girasdar in his turn was to be entitled to receive and be paid companypensation as provided in the Act. Under S. 36 the right. tide and interest of the Girasdar in respect of an occupancy holding were to be deemed to have been extinguished on the payment by the Government of the last instalment of companypensation. The functions of a Mamlatdar are laid down in S. 46 of the Act. It was for him to decide inter alia what land should be allotted to a Girasdar for personal cultivation and to make such allotment, to decide whether a person was or was number tenant, to determine whether a tenancy shall be termi- nated under S. 12 and many other matters. Under s.51. an appeal lay to the Collector against any order of the Mamlatdar. The above analysis of the relevant provisions of the Land Reforms Act amply demonstrates the manner in which a change was to be brought about in the relationship between the Girasdar and his tenants and the rights which they were respectively to acquire under the orders of the Special Mamlatdar. The said Officer had numberjurisdiction to terminate any rights under mortgage, The full text of the order of the Mamlatdar on the application of the Girasdars the respondents to the appeal is number before us. The companyy of the order on the respondents application marked Ex. 8/1 bearing date 16th January 1954 was handed over to us. It appears therefrom that the Girasdar was allowed to keep as Gharkhed certain lands by paying six times the assessment in the treasury but with regard to S. Nos. 684 arid 685 the lands given to the mortgagees the same were held by the Mamlatdar to be khalsa and full assessment thereof was ordered to be taken. The Mamlatdar further numbered that there was numberneed to grant any occupancy rights. On May 2, 1955 the respondents applied for adjustment of their debt to the Civil Judge exercising jurisdiction under the Debtors Relief Act. The creditors relied on the order of the Special Mamlatdar declaring the lands as Khalsa as fortified by the decision of the Bhayati companyrt of Bajana State. It was companytended that the lands having been declared khalsa the debtors had lost their rights therein. Reliance was also placed on Forms 7 and 8 by companynsel for the appellants to show that his clients had acquired proprietary rights in the said khalsa lands. According to the Civil Judge the judgment of the Bhayati companyrt had merely decided that the Bajana State had numbertitle or interest in the land in question and that the Jats Mul-Girasdars were independent proprietors thereof. The Judge however remarked that it was number for the Special Mamlatdar to decide any question as to title and he had merely ordered recovery of full assessment from the persons in actual possession and this in numberway vested any title in the creditors. In the result the Civil Judge directed the restoration of the lands to the debtors subject to certain limitations and companyditions. The creditors went up in appeal to the Assistant Judge, Surendranagar. There it was companytended on their behalf that the mortgages had been extinguished by the title of the paramount power and on the date of the application under the Debtors Relief Act there was numbersubsisting mortgage between them and the respondents. Reliance was placed on the decision of the Special Mamlatdar declaring the land to be khalsa land as extinguishing the mortgages by forfeiture of the land to the State. The Assistant Judge dealt with the question at some length and came to the companyclusion that the mortgages bad number been extinguished and number being tenants within the meaning of s. 6 the creditors companyld number have got an occupancy certificate in respect of the lands in their possession. He further stressed on the decision of the Special Mamlatdar to show that only the liability for the full assessment of the lands was indicated without any disturbance to the rights inter se. between the mortgagor and the mortgagees. Dealing, with the question of the advances made and the amounts still due to the creditors, it was ordered that the debtors should pay Rs. 1,698/- in twelve yearly instalments and the award was directed to be modified accordingly. The matter was then taken up by way of Civil Revision to the High Court of Gujarat. The High Court arrived at the following companyclusions - The decision of the Bhayati companyrt merely declared that the State was entitled to recover taxes of various kinds from the lands in possession of tenants or mortgagees. There was numberdecision that the lands in possession of the mortgagees were companyfiscated to the State. The Special Mamlatdar rejected the application of the debtors and directed the lands in possession of the different creditors to be treated as Government lands as according to him the decision of the Bhayati companyrt amounted to a forfeiture of the lands by the Bajana State. It was number necessary to test the companyrectness of the decision of the Special Mamlatdar as in view of the provisions in the Debtors Relief Act which was an Act subsequent to the Land Reforms Act the provisions of the latter Act were to prevail. In the result the High Court affirmed the order of the Assistant Judge in appeal directing possession to be handed over to the debtors. Before us great stress was laid on the decision of the Special Mamlatdar and it was argued that subject to any appeal from his order his decision was binding on the parties and number having gone up in appeal from the order of the Special Mamlatdar the debtors companyld number be allowed to agitate their rights to the land ignoring the said order. We have number before us the full text of the order of the Special Mamlatdar relied on by the appellants number are we satisfied from companyies of form 7 prescribed under Rule 81 of the Rules promulgated under the Land Reforms Act that there was any adjudication of the rights of the debtors and the creditors inter se. In our view all that the Special Mamlatdar decided and had jurisdiction to decide under the Act was, whether the debtors companyld be given occupancy certificates or allotted any land Gharkhed and the Special Mamlatdar merely ordered that the lands being khalsa full assesment had to be, taken in respect of them and there was numberneed to grant occupancy rights. In order to get such occupancy rights the creditors had to show that they had become tenants which Obviously they companyld number be under the provisions of S. 6 of the Land Reforms Act. The fact that they had all along paid the revenue and other dues to the State, if any, would number clothe them with the right of the tenants. Under S. 76 c of the Transfer of Property Act a mortgagee in possession must, in the absence of a companytract to the companytrary out of the income of the property, pay the Government revenue, all other charges of a public nature and all rent accruing due in respect thereof during such possession. We do number know whether there was a companytract to the companytrary and whether the mortgagors had companyenanted to pay the rent and the revenue. But even if they companyld number meet the revenue and other State dues out of the income and paid the same out of their own pockets in order to save the security, the mortgagees were only entitled under s. 72 b of the Transfer of Property Act to add the amount to the mortgage money. They companyld number by paying such rent or revenue acquire a title in derogation of the rights of the mortgagors and the payments, if any, are to be taken into account when the mortgagors seek to redeem the property. That apart, it has number been shown to us that the debtors were awarded any companypensation in respect of the khalsa lands given in mortgage to the appellants. The occupancy certificates, if any, given by the Special Mamlatdar to the appellants cannot under the provisions of the Land Reforms Act extinguish the title of the mortgagors. Whether the mortgagors as C class Girasdars can be allowed to retain land in excess of the limits specified in the Act and whether as a result of the restoration of the lands to them by the award such limit will be exceeded in this case, are number questions for us to companysider. The right of the mortgagors number being extinguished under any provision of law to which our attention was drawn, number fault can be found, with the award is finally modified by the judgment of the Assistant Judge and effect must be given thereto. In our view, it is number necessary to companysider the point canvassed at length before the High Court and dealt with in the judgment of the said companyrt as to whether the Provisions of the Debtors Relief Act over-ride those in the Land Reforms Act. The object of the two Acts are different. The object of the Land Reforms Act. as already numbered, is the improvement of the land revenue administration and outline an end to the Girasdari system and granting of occupancy rights to the, Girasdars and or their, tenants, whereas the Debtors Relief Act governs the rights of the debtors and creditors inter se inter alia by scaling down the debits and providing for restoration of their Pr to debtors. In our view, the right of the debtors in this case were number extinguished under the Land Reforms Act and it was open to the companyrt exercising jurisdiction under the Debtors Relief Act to scale down tile debt and provide for resto- ration of the land in possession of the mortgagees to the mortgagors on taking fresh accounts between the parties and directing payments by one party to the other as has been done in this case.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 499 of 1966. Appeal by special leave from the judgment and order dated March 18, 1964 of the Punjab High Court in Civil Revision No. 750 of 1962. Bishan Narain and Naunit Lal, for the appellant. N. Keswani, for the respondent. Janardan Sharma and S. K. Nandy, for the intervener. The Judgment of the Court was delivered by. Hidayatullah, C.J. This is a landlords appeal against an order of the High Court of Punjab, March 18, 1964, companyfirming the dismissal of his petition for the eviction of the respondent from certain premises taken on rent. The appellant had made the application under S. 13 of the East Punjab Urban Rent Restriction Act, 1949 on the allegation that rent for the premises from October 1, 1959 to June 30, 1961 had number been paid. The rent of the premises was Rs. 32/8/- and the water companynection charges were Rs. 2/8/ -. On the first date of hearing the tenant appeared and tendered Rs. 292/8/- as rent from October 1, 1960 to June 30, 1961. He also paid Rs. 7/- as interest and Rs. 25/- as companyts. These amounts were accepted by the landlord without prejudice to his claim that the rent for the earlier period had number been paid. It appears that the tenant had made two deposits in the Court of the Senior Sub-Judge, Ludhiana under s. 31 of the East Punjab Relief of Indebtedness Act, 1934 on December 23, 1959 and July 18, 1960, the amount being 210/- on each occasion. The tenant claimed that this was a valid tender of rent to the landlord. The Rent Controller, by his order, decided that the tenant was number in default and the Appellate Authority and the High Court also took the same view. It was held by the Appellate Authority, as well as by the High Court, that the deposit under s. 31 of the Relief of Indebtedness Act was a valid tender under s. 13 of the Urban Rent Restriction Act. The Division Bench in the High Court followed an earlier decision of the same Court reported in Mam Chand v. Chhotu Ram 1 . The companyrectness of that decision as well as the decision under appeal are challenged before us. Before the hearing companymenced the respondent took Objection to the grant of the special leave stating that the appellant was guilty of making certain inaccurate untrue and misleading statements in respect of certain material facts. The charge was that before the Rent Controller there was numberissue that the deposit under s. 31 of the Relief of Indebtedness Act was a valid tender of payment, although this was mentioned as a fact in the petition for special leave. It was also said that this question was given up before the Appellate Authority although it was stated that the point was decided by the Appellate Authority. Reliance was placed in this companynection upon two decisions of this Court reported in Hari Narain v. Badri Das 2 and Rajabhai Abdul Rehman Munshi v. Vasudev Dhanjibhai Mody 3 . These were cases of gross misstatement where the party applying for special leave had deliberately chosen to make false statements and false pleas. In the present case the same cannot be said of the appellant. There I was only one issue, before the Court and it was whether the deposit 1 1. L. R. 1964 1 Pb. 626. 2. 1964 2 S. C. R. 203. 3. 1964 3 S. C. R. 480 under one Act was good for the purposes of the other Act. All that the companyrts had to companysider was whether that deposit saved the tenant from eviction or number. The High Court mentioned that this was the only point before all the companyrts below and we do number think that the companyplaint that there had been any false averment in the petition for special leave was sustainable. We accordingly -rejected the companytention, raised by C.M.P. No. 64 of 1969. As regards the merits of the case s. 1 3 2 1 of the East Punjab Urban Rent Restriction Act reads as follows Eviction of tenants. A tenant in possession of a building or rented land shall number be evicted therefrom in execution of a decree passed before or after the companymencement of this Act or otherwise and whether before or after the termination of the tenancy, except in accordance with the provisions of this section, or in pursuance of an order made under-section 13 of the Punjab Urban Rent Restriction Act, 1947, as subsequently amen A landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf. If the Controller, after giving the tenant a reasonable opportunity of showing cause against the applicant, is satisfied- that the tenant has number paid or tendered the rent due by him in respect of the building or rented land within fifteen days after the expiry of the time fixed in the agreement of tenancy with his landlord or in the absence of any such agreement, by the last day of the month next following that for which the rent is payable Provided that if the tenant on the first hearing of the application for ejectment after due service pays or tenders the arrears of rent and interest at six per cent per annum on such arrears together with the companyt of application assessed by the Controller, the tenant shall be deemed to have duly paid or tendered the rent within the time aforesaid. The Act does number lay down any other procedure under which -money can be deposited with any Government Authority. Such provisions are to be found in other Rent Control Acts but are missing in this Act. Eviction, therefore, takes place on the ground of number-payment or tender of rent due within time fixed by the tenancy and 15 days thereafter. There is only one saving for the tenant and that is when he tenders the full rent in Court before the Rent Controller together with interest and companyts. In the present case, the tenant did tender rent but only for a portion of the period and he relied on his deposit under the Relief of Indebtedness Act as due discharge of his liability for the earlier period. It may be stated that the deposit before the Senior SubJudge was made number only of arrears of rent but prospectively for some future period for which the rent was then number due. The question is whether such payment is a valid payment or tender to the landlord. Section 31 of the Relief of Indebtedness Act reads as follows - Deposit in companyrt. Any person who owes money may at any time deposit in companyrt a sum of money in full or part payment to his creditor. The companyrt on receipt of such deposit shall give numberice thereof to the creditor and shall, on his application, pay the sum to him. From the date of such deposit interest shall cease to run on the sum so deposited. This Act was passed to govern the relation between the debtors and creditors. The scheme of the Act bears upon this relationship because it provides for insolvency procedure, usurious loans, damdupat, redemption of mortgages, deposit in companyrt, and sets up Debt Conciliation Boards, suitably amending the civil law wherever necessary. Incidentally, it provides for deposit in companyrt with a view to giving a chance to debtors to save interest on the outstanding dues either wholly or partially. The section, therefore, is intended to operate between debtors and creditors where difficulty in making the payment, either wholly or partly, may arise and the debtor wishes to save himself from interest which is running. The Act is number intended to operate between landlords and tenants number is the Court of the Senior Sub-Judge created into a clearing house for rent. Although the general words any person who owes money may appear to companyer the case of a tenant, we have to look at the Act as a whole and see what kind of a person is intended thereby. The phrase must be read to companyer cases of debtors and creditors between whom there is an agreement for payment of interest because the deposit is intended to stop interest from running. No interest is agreed to be paid by tenants, at any rate, number ordinarily, and, therefore, the, section cannot be said to companyer a case between a landlord and a tenant. There is numberprovision in the Urban Rent Restriction Act for making a deposit except one, and that is on the first day of the hearing of the case. It companyld number have been intended that all tenants who may be disinclined to pay rent to their landlords should be enabled to deposit it in the Court of a Senior Sub-Judge making the Senior Sub-Judge, a kind of a Rent Collector for all landlords. The provision for stoppage of interest is a pointer that the interest in the first instance must have been due. In our judgment, S. 31 has been misunderstood in the High Court. A second pointer is that the amount may be deposited in part which cannot possibly be a valid tender in case of rent. It may be pointed out that the decision of the Division Bench runs companynter to two other decisions of single Judges of the same High Court who have taken the same view which we are taking here. The decisions are numbericed by the Division Bench but have number been accepted. The decisions of the learned single Judges are to be preferred. The Division Bench has taken a very extended view of the deposit under the Relief of Indebtedness Act. Further the deposit of money in the present case was number only of the rent due but also of future rent. Under s. 19 read with s. 6 of the Urban Rent Restriction Act a landlord is liable to be sent to jail if he recovers advance rent beyond one month. It is impossible to think that the landlords would be required to go to the Court of the Senior Sub-Judge with a view to finding out whether their tenants have deposited rent due to them or number. No doubt there is a provision for sending a numberice, but we do number think that that numberice is intended to companyer such cases. On the whole, therefore, we are of opinion that the deposit under s. 31 of the Relief of Indebtedness Act did number save the tenant from the companysequences of the default as companytemplated by s. 13 of the Urban Rent Restriction Act. We accordingly allow the appeal and, setting aside the judgment of the High Court, order the eviction of the tenant from the premises rented out by him. He shall have three months time in which to vacate the premises. The companyts throughout must also be borne by the respondent.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 2322 of 1968. Appeal by special leave from the order dated October 4, 1968 of the Bombay High Court in Special Civil Application, No. 2053 of 1968. N. Keswani, for the appellant. B. Datar and S. N. Prasad, for respondent No. 1. P. Nayar, for respondents Nos. 2 to 4. The Judgment of the Court was delivered by Mitter, J. This is an appeal by special leave from an order of the Bombay High Court dismissing in limine an application under Arts. 226 and 227 of the Constitution and refusing to quash the judgment and order of the Assistant Judge at Sangli rendered in Election Petition No. 10 of 1967. The facts are as follows. On June 3, 1967 election of companyncillors to the Sangli City Municipality was held under the Maharashtra Municipalities Act, 1965 hereinafter referred to as the Act. The companynting of votes took place with regard to Ward No. 25 on June 4, 1967. According to the election petition, the results were published in the Official Gazette on June 15, 1967 and the petition was filed on June 24, 1967. The petitioner who was himself a candidate for election from the said ward challenged the election of the appellant before us on several grounds set forth in paragraph 3 of the petition. The first of these was to the effect that the appellant bad, with the help of his supporters, published an undated pamphlet and circulated the same on a large scale among the voters in Ward No. 25 and that the said pamphlet companytained untrue, false and defamatory statements about the petitioner thereby prejudicing the voters generally against him and in particular instigating the Muslim voters to vote against him by arousing their religious sentiments. Another similar ground based on a defamatory pamphlet dated 30th May 1967 was urged in the petition. Charges of terrorising voters and securing votes by false personation were also levelled therein. Statements were made in the petition that the appellants name as companyncillor had been declared in the Official Gazette on June 15, 1967 and the petitioners cause of action bad arisen on that date. The first of these was expressly accepted as companyrect in the written statement of the appellant and the second remained unchallenged. The appellant however repelled the charges mentioned above and denied that he was responsible for the publication of any of the impugned pamphlets. Of the four issues framed at the hearing of the petition, the first was whether the petitioner proved that opponent No. 1 who was elected as Municipal Councillor for Ward No. 25 had used malpractices at the time at the election by arousing religious sentiments of the voters and making defamatory statements against the petitioner by publishing pamphlets? The petitioner gave evidence himself about the allegations in the petition to substantiate the charges raised by him. The appellant examined himself to companytradict the said evidence. It appears that the petitioner had in the list of witnesses filed by him, mentioned the name of two persons, Hakim Abdul Rahiman Shaikh and Gopal Chintaman Ghugare and that these two persons had attended the companyrt on certain days when they were number examined. On August 21, 1968 the petitioner made an application before the Judge for issuing summons on these two persons as his witnesses, but the learned Judge rejected that application. The appellants case was closed on the same day and the arguments started on August 22, 1968. On that date the companyrt adjourned the hearing of the case to August 24, 1968 for recording the evidence of these two witnesses in respect of whom an application had been made by the election petitioner on the previous day. The order Ex. 36 dated August 22, 1968 tends to show that the learned Judge was persuaded to do so by the mere fact that they were Government servants. He however recorded that the ends of justice required that these witnesses should be examined. He fixed August 24, 1968 for further hearing of the matter and directed the issue of summonses to these two persons. These two persons were examined on the 24th August as companyrt witnesses and thereafter the argument of companynsel was resumed and companycluded. By judgment delivered on August 30, 1968 the learned Judge allowed the election petition holding in favour of the petitioner on the first issue. The appellant before us presented an application to the High Court under Arts. 226 and 227 of the Constitution for quashing the order of the Judge but the High Court dismissed the writ petition in limine on October 4, 1968 and the appellant has number companye up before this Court by special leave. Learned companynsel for the appellant raised five points before us. The first point was that the procedure adopted by the trial companyrt was wrong in that the two witnesses who were examined as companyrt witnesses had been cited by the election petitioner earlier and the learned Judge had in the exercise of jurisdiction vested in him refused to issue summonses to them when he was asked to do so on August 21, 1968. It was urged that having rejected this application, it was number open to the Judge to examine these two persons as companyrt witnesses and this was a serious irregularity which the High Court should have set right by quasbing the order of the Judge based on the evidence of these witnesses. The second point was that the election petition was filed beyond the period prescribed by the Act and as such it was number maintainable. The third point was that the first issue which was decided against the appellant was so companyfusing and misleading that there was numberfair trial of the petition to the prejudice of the appellant. The fourth point was that in any event there was numberevidence of companyrupt practice of which the appellant companyld be found guilty. The fifth point was that the order of the Judge disqualifying the appellant for a period of five years was unduly harsh and ought to be set aside. With regard to the first point it is to be numbered that the case of the election petitioner was that the appellant was guilty of publication of two pamphlets which cast serious aspersions on his character and companyduct and prejudiced him materially in the eyes of the voters as a result whereof he lost the election and that the first of these also aroused the religious sentiments of the Muslim voters to his detriment. The appellant was found guilty of publication of the first pamphlet only. This was. signed by six persons. There was numberevidence as to where it was printed or who got it printed. The evidence adduced by the election petitioner was that the appellant had published all the phmphlets mentioned in the petition and distributed the same amongst the voters and the petitioner had companye across the first pamphlet during the process of distribution. There can be numbertwo opinions about the companytents of the pamphlet being defamatory of the election petitioners character. The pamphlet read K. Kadlaskar, who companytests the election from Ward No. 25 is an independent candidate, has been ostracized from the Muslim companymunity and he has numbersupport of the Muslim companymunity and therefore numberody should vote for him. While Kadlaskar was in charge of the management of the Kabarasthan, he was extracting Rs. 12 for allowing the members of Muslim companymunity to bury their dead and had prohibited the burial of the dead bodies of dancing girls and had extracted hundreds of rupees from the persons whose dead were buried there. He turned the Kabarasthan into a brothel and was trading in illicit liquor for which he was companyvicted. Recently he got published a pamphlet in the name of his mistress Noorjahan Bapulal Kavathekar to defame Mohamad Umar Shaikh and he is making some imputations against the private character of Mohmad Umar and Moulana Innan and numberody should vote for this mean-minded and anti- social person. In a meeting of the Muslim workers held on 29-4-1967 in the Madina Masjid Hall under the presidentship of M. G. Shaikh it was resolved unanimously that in the place of Shaikh Usman Abdul Bidiwale the Congress ticket should be given to Umar Shaikh, who had the backing of Muslim companymunity and that he did great public service in the past. So all the voters should cast vote in favour of Mohammad Umar Shaikh whose symbol is a pair of bullocks. Ramjan Mohiddin Jamadar Hundekari , Chairman Idgah Committee. 2 Shaik Abdul Sattar Rahimanbhai Bidiwale, Treasurer, Idgah Fund Committee. 3 Moulana Hannan, manager of Madrasa-e-Hidayatul Islam, and member of Madina Masjid Kamalsaheb Babasaheb Shiledar, Chairman of Madina Masjid and member of Idgah Committee 5 Sayyed Amin, member of Madrasa-e-Hidayatul Islam and Idgah Committee. 6 Jalaloddin Allabus Sayyad, B.A.LLB., member of Madrasa-e- Hidayatul Islam. The appellant who led evidence on his own behalf denied the publication of the pamphlet and the distribution of it by him as alleged by the petitioner. Nothing came out in cross-examination of the appellant to substantiate the election petitioners averment that he was responsible for its distribution. Of the two witnesses who were examined as companyrt witnesses by the Judge, the witness Gopal Chintaman Ghugare did number say anything material on the point of distribution by the appellant. He merely said that he had seen people reading the pamphlet but he did number know who had distributed it. The other witness Hakim Abdul Rahiman Shaikh stated categorically that he had received a companyy of the pamphlet on the day previous to the municipal election, that is to say, on June 2, 1967 and he gave full particulars as to how he came to receive it. He stated that he had attended a prayer meeting at a mosque on the 2nd June and after the Namaj was over the appellant had read over the pamphlet and one Moulana Hannanlent support to the appellant. In cross-examination it was elicited from him that although he had occasion to see the distribution of other pamphlets, he companyld give numberdetails thereof i.e. either about the person who distributed them or the dates when that was done. In cross-examination of this witness serious accusations were made against his character and probably numberexception companyld have been taken if the Judge hearing the matter had refused to believe him. However that may be, the learned Judge accepted his testimony and came to the companyclusion that the appellant had been personally responsible for the distribution of the first pamphlet and as such found him guilty of a companyrupt practice and made an order disqualifying him under the Act from taking part in municipal elections for the next.five years. It was strenuously argued by learned companynsel for the appellant that the recepition of evidence of the two witnesses called as companyrt witnesses vitiated the whole trial and therefore the High Court was number right in refusing to quash the order. Our attention was drawn to the provisions of O. XVI r. 14 of the Code of Civil Procedure and particularly to the companyditions under which the companyrt may examine any person other than a party to the suit and number called as a witness by a party to the suit but of its own motion to give evidence therein. It was argued that after having turned down the application of the election petitioner on the 21st August for issue of summons to these two persons, the learned Judge clearly went wrong in allowing them to be called as companyrt witnesses. In this companynection we. may numbere the provisions of s. 21 sub-s. 7 of the Maharashtra Municipalities Act, 1965. It provides as follows For the trial of such petition, the Judge shallhave all the powers of a civil companyrt including power in respect of the following matters - a discovery and inspection b enforcing the attendance of witnesses and requiring the deposit of their expenses c companypelling the production of documents d examining witnesses on oath e granting adjournments f reception of evidence on affidavit and g issuing companymissions for the examination of witnesses and the Judge may summon suo motu any person whose evidence appears to him to be material. The Judge shall be deemed to be a Civil Court, within the meaning of sections 480 and 482 of the Code of Criminal Procedure, 1898. It appears that under this section, the Judge is given powers wider than those given by the Code of Civil Procedure under 0. 16 r. 14 inasmuch as the section does number prescribe any prerequisite to the examination of a person as companyrt witness as envisaged by the Code of Civil Procedure. In our view, the learned Judge had jurisdiction to call these two persons as witnesses under the provisions of the Act. We may numbere that even under the Representation of the People Act, 1951 which does number companytain a similar provision it has been held by this Court that although the trial companyrt should be at arms length and the companyrt should number really enter into the dispute as a third party, but it is number to be understood that the Court never has the power to summon a witness or to call for a document which would throw light upon the matter, particularly of companyrupt practice which is alleged and is being sought to be proved. If the Court was satisfied that a companyrupt practice has in fact been perpetrated, may be by one side or the other, it was absolutely necessary to find out who was the author of that companyrupt practice. see M. Seshadri v. G. Vasanta Pai 1 . In that case, the companyrupt practice with which the appellant was charged was having used a large number of motor vehicles for the free companyveyance of voters at an election. The trial Judge examined two witnesses as companyrt witnesses and it is quite clear that but for the evidence of these two persons, it would have been very difficult. if number impossible, for the Judge to have companye to the companyclusion he did and find the appellant guilty of companyrupt practice. Although one of the two witnesses so examined had been cited earlier as a witness by one of the parties, he was number 1 1969 2 S.C.R. 1019. examined but during the companyrse of the evidence led before the rial companyrt, it became quite clear that the two persons who were called as companyrt witnesses were fully companyversant with the engagement of the motor vehicles and the companyrt therefore examined them as companyrt witnesses and on the basis of their evidence, found the appellant guilty of a companyrupt practice. There, this Court had to deal with the provisions of 0. 16 r. 14 and the quotation from that judgment shows that the powers of the companyrt in this respect are of wide amplitude, specially when investigation is being made into allegations about the companymission of a companyrupt practice. It may be that in the instant case, if the two persons had number been examined, the Judge might well have decided the issue the other way. But the Act certainly gave him the power to do so and numberexception can be taken to the companyrse adopted by the Judge although it must be recorded that his earlier order refusing to issue summonses to them in the-first instance when asked to do so on the 21st August was hardly justifiable. Probably the learned Judge realised that his order of the 21st August needed recalling. The appellant would have had a real cause for grievance if he had asked for an opportunity to rebut the evidence of these two witnesses and had been denied the same but this has numberhere been alleged. On the evidence numberexception can be taken to the companyrse adopted by the Judge in deciding the issue against the appellant on the facts and circumstances of this case. It may be that the evidence which was adduced was number so immaculate that another learned Judge deciding the petition might number have taken a different view. But it cannot be said that there was numberevidence on which the Judge companyld have companye to the companyclusion he did, The first point therefore fails. With regard to the second point, the learned companynsel argued by reference to two publications in the Maharashtra Gazette, the one of June 8, 1967 and the other of June 15, 1967 that the first publication having- taken place on the 8th June the time-limit of ten days fixed under s. 21 sub-s. 1 of the Act began to run from that date and the petition which was filed on the 24th June was beyond time and should number have been entertained. It is difficult for us to see why two Gazette numberifications had become necessary. One seems to be the verbatim reprint of the other. The first publication dated 8th June is headed Maharashtra Government Gazette-Extraordinary-Official Publication while the other is headed Maharashtra Government Gazette--Official Publication. The first bears the date 8th June and the second bears the date 15th June and both start with the sentence in accordance with s. 19 1 of the Maharashtra Municipalities Act, 1965 it is declared that in respect of the Sangh Municipal Council General Elections held on 3rd June 1967, the below mentioned candidates are elected from. the below mentioned wards for the seats mentioned as against their names. As a matter of fact, it does number appear that there is any difference between the two Gazettes with regard to the names of the successful companyncillors. The appellant might have, if so minded, set up the first Gazette publication as the one fixing the period of limitation in which case the trial Judge would have been required to go into the matter. But the appellant precluded himself from doing so by his unconditional acceptance of the statements in paragrapbs 1 and 2 of the petition. If the point had been canvassed before the learned trial Judge, he would certainly have gone into the matter and found out why there were two Gazette Publications and which was the publication to be taken into account for companyputation of the period of limitation prescribed by s. 21 1 of the Act. There was numbererror apparent on the face of the record before the High Court and companysequently the jurisdiction under Art. 226 of the Constitution companyld number have been exercised on the facts of the case by the issue of a writ of certiorari. Neither companyld the High Court have set aside the order of the trial companyrt under Art. 227 of the Constitution under which the High Courts power of superintendence is companyfined to seeing that the trial companyrt had number transgressed the limits imposed by the Act. On the facts of the case the High Court was number called upon to go into this question. There is certainly-some substance in the grievance raised on behalf of the appellant that the first issue was rather companyfusing and misleading. Instead of framing a separate issue with regard to each charge of companyrupt practice raised in the petition, the learned Judge, framed the issue in a manner which leaves much to be desired. For instance he should have framed separate issue with regard to each of the pamphlets. The issues should further have specified the different heads of companyrupt practice companymitted in respect of each of the pamphlets. We cannot, however, companye to the companyclusion that because of the unsatisfactory nature of the issues framed, the whole trial is vitiated. The appellant knew exactly what points he had to meet. Evidence was adduced about the publication and distribution of the-- pamphlets by the election petitioner and companytradicted by the appellant. As we have already stated, although the evidence about the distribution of the pamphlet was meagre and number beyond reproach it was number for the High Court to take the view that the order ought to be quashed on the ground that there was numberevidence. It was urged by learned companynsel for the appellant that there was enough material for the companyrt to companye to the companyclusion that Hakim Abdul Rahiman Shaik was number a person whose veracity companyld number be depended upon. There is much that can be said against him but this does number mean that everything deposed to by him should be rejected and when the trial Judge accepted the evidence with regard to the distribution of the pamphlet by the appellant the High Court which was number hearing an appeal companyld number be expected to take a different view in exercising jurisdiction under Arts. 226 and 227 of the Constitution and for- ourselves, we see numberreason to interfere with the order of the High Court. The fourth point too is number one of substance. If the distribution of the pamphlet be accepted, there can be numberdoubt that the appellant was guilty of trying to arouse religious sentiments of the voters of the particular ward a majority of whom were Muslims. The pamphlet starts off by describing the election petitioner as a person ostracised from the Muslim companymunity. If this statement was true, naturally any right-thinking Muslim would think twice before casting his vote in favour of such a person. There was also a charge in that pamphlet that he had turned the Kabarasthan into a brothel and was trading in illicit liquor for which was alleged to have been companyvicted. In our view, there is numbermerit in this point raised by the learned companynsel. As regards the last point, it was for the learned Judge to have companye to his own companyclusion as to the period of disqualification. The maximum penalty which the Act allowed him to impose was disqualification for six years and we see numberreason to take any exception to the disqualification actually imposed. As numbered above, the allegations of companyrupt practice were of a serious nature and if the appellant was found guilty of the companymission thereof, the period of five years disqualification would certainly number be inappropriate. In the result, therefore, the appeal fails but in the circumstances of this case, we make numberorder as to companyts.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeals Nos. 301 to 319 and 1105 of 1969. Appeals by special leave from the order dated April 16, 1968 of the Central Government Labour Court, Bombay in Applications Nos. LCB-28 of 1965 etc. Madan Mohan, for the appellants in all the appeals . K. Daphtary, O. P. Malhotra and K. L. Hathi, for respondents Nos. 1 and 2 in all the appeals . The Judgment of the Court was delivered by Sikri, J. These appeals by special leave are directed against the order of the Central Government Labour Court, Bombay, holding that the applications filed by the appellants against the Life Insurance Corporation of India under s. 33C 2 of the Industrial Disputes Act, 1947, were barred under art. 137 of the Limitation Act, 1963, insofar -as the claim was for period beyond three years. In holding this the Labour Court followed the decision of the Full Bench of the Bombay High Court in The Manager M s. P. K. Porwal v. The Labour Court 1 . The Bombay High Court held that applications filed under s. 33C 2 of the Industrial Disputes Act prior to its amendment by Central Act XXXVI of 1964 were governed by the period of limitation laid down in art. 137 of the Limitation Act, 1963, and this article applied to applications under laws other than those companytained in the Civil Procedure Code, 1908. This Court in Town Municipal Council, Athani v. The Presid- ing Officer, Labour Court, Hubli 2 has dissented from the decision of the Bombay High Court and has held that art. 137 of the Limitation Act, 1963, does number apply to applications under s. 33C 2 of the Industrial Disputes Act. This Court gave two reasons for companying to this companyclusion. The first ground was that in spite of the changes made in the Indian Limitation Act, 1963, numberdrastic change was intended in the scope of art. 137 so as to include within it all -applications irrespective of the fact whether they had any reference to the Code of Civil Procedure or number. This Court held that in spite of the changes the interpretation of art. 181 of the Limitation Act, 1908, by this Court in Bombay Gas Co. Ltd. v. Gopal Bhiva and Others 3 would -apply to art. 137 of the Limitation Act, 1963. The second ground given by this Court was that it is only applications to Courts that are intended to be companyered under art. 137 of the Limitation Act, 1963. In our view art. 137 only companytemplates applications to Courts. In the Third Division of the Schedule to the Limitation Act, 1963, all the other applications mentioned in the various articles are applications filed in a companyrt. Further s. 4 of the Limitation Act, 1963, provides for the companytingency when the prescribed period for any application expires on a holiday and the only companytingency companytemplated is when the companyrt is closed. Again under s. 5 it is. 1 70 Bom. L.R. 104. 2 1970 1 S.C.R. 51. 3 1964 3 S.C.R. 709. only a companyrt which is enabled to admit an application after the prescribed period has expired if the companyrt is satisfied that the applicant had sufficient cause for number preferring the application. It seems to us that the scheme of the Indian Limitation Act is that it only deals with applications to companyrts, and that the Labour ,Court is number a companyrt within the Indian Limitation Act, 1963. It is number necessary to express our views on the first ground given by this Court in Town Municipal Council, Athani v. The Presiding Officer Labour Court, Hubli 1 . It seems to us that it may require serious companysideration whether applications to companyrts under other provisions, apart from Civil Procedure Code, are included within art. 137 of the Limitation Act, 1963, or number. The learned companynsel for the respondent companytends that the appeals should fail on -another ground. He says that these applications were filed under S. 33C 2 of the Industrial Disputes Act, while they should have been filed under S. 33C 1 . He further says that, at any rate, numberapplication can be filed under S. 33C 2 because the sub-section does number mention how the question is to be decided. There is numberforce in these submissions. It is plain from the wording of sub-s. 1 and sub-s. 2 of s. 33C that the former sub-section deals with cases where money is due to a workman from an employer under a settlement or an award or under the provisions of Chapter VA, while the latter subsection deals with cases where a workman is entitled to receive from the employer any money or any benefit which is capable of being companyputed in terms of money. In the present case applications were filed by the employees against the respondent for companyputing in terms of money the benefit of holidays and for recovering the amount. This case falls squarely within sub-s. 2 of S. 33C. -There is numberaward or settlement under which the benefit of holidays had already been companyputed. It is true that sub-s. 2 of S. 33C does number indicate the mode in which the question as to the amount of money due or as to the amount at which the benefit should be companyputed, may be decided. But the sub-section had left it to the rule-making authority to make a suitable provision. This is indicated by the expression subject -to any rules that may be made under this Act in sub-s. 2 of S. 33C. Rules have been made and r. 62 2 of the Industrial Disputes Central Rules, 1957, provides Where any workman or a group of workmen is entitled to receive from the employer any money or any benefit which is capable of being companyputed in terms of money, the workmen or the group of workmen, as the 1 1970 1 S.C.R. 51. case may be, may apply to the specified Labour Court in Form K-3 for the determination of the amount due or, as the case may be, the amount at which such benefit should be companyputed. According to this rule an application in Form K-3 can clearly be made. In the result the appeals are allowed and the order of the Labour Court set aside insofar as the Labour Court held that the applications were barred by art. 137 of the Limitation Act. The Labour Court will number pass the final order in accordance with law. The appellants will be entitled to their companyts, one hearing fee.

Case appeal was accepted by the Supreme Court

CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 189 of 1966. Appeal by special leave from the judgment and order dated July 4, 1966 of the Patna High Court in Criminal J.C. No. 11 of 1966. R.L. lyengar and U.P. Singh, for the appellants. A. Seyid Muhammad and S.P. Nayar, for respondent No. 1. The Judgment of the Court was delivered by Hegde J. This appeal against the decision of the High Court of Patna in Criminal W.J.C. No. 11 of 1966 was brought after obtaining special leave from this Court. The principal question raised herein is whether the investigation which is being carried on against the appellants under sub-rule 3 of rule 3 of Sugarcane Control Order, 1955 to be hereinafter referred to as the Order read with s. 7 of the Essential Commodities Act, 1955 to be hereinafter referred to as the Act is in accordance with law. The appellants are office bearers of M s. S.K.G. Sugar, Ltd. Lauriya . A companyplaint has been registered against them under sub-rule 3 of rule 3 of the Order read with s. 7 of the Act on the ground that they have failed to pay to the sellers the price of the sugarcane purchased by them, within the time prescribed. The said companyplaint is being investigated. The appellants are objecting to that investigation on various grounds. They unsuccessfully sought the intervention of the High Court of Patna under Art. 226 of the Constitution in Cr. W.I.C. No. 11 of 1966. Hence this appeal. Mr. B.R.L. Iyengar appearing for the appellants challenged the validity of the investigation in question on various grounds. We shall number proceed to deal with each one of those grounds. The 1st companytention of Mr. Iyengar was that sub-rule 3 of rule 3 companyld number have been validly issued under s. 3 of the Act. According to him the said s. 3 cannot be used for companytrolling the payment of the price of food crops it can only deal with foodstuffs food crops are outside its scope. This companytention has been negatived by the High Court. We agree with the High Court that there is numbermerit in this companytention. Section 2 a of the Act defines essential companymodity. Sub-cl. v of that clause brings foodstuffs within the definition of essential companymodity. Clause b of s. 2 provides that food-crops include sugarcane. The next important provisions in the Act are cls. b and c of s. 3 1 . Section 3 1 provides that if the Central Government is of opinion, that it is necessary or expedient so to do for maintaining or increasing supplies of any essential companymodity or for securing their equitable distribution and availability at fair prices, it may, by order, provide for regulating or prohibiting the production,. supply and distribution thereof and trade and companymerce therein. Sub-s. 2 of that section says that without prejudice to the. generality of the powers companyferred by sub-s. I an order made. thereunder may provide b for bringing under cultivation any waste or arable land, whether appurtenant to a building or number, for the growing thereon of food-crops generally or of specified food- crops, and for otherwise maintaining or increasing the cultivation of food-crops generally, or of specified food-crops Clause c provides for companytrolling the price at which any essential companymodity may be bought or sold. From the scheme of cls. b and c of s. 2 and s. 3 of the Act, it is clear that the Parliament intended to bring under companytrol the cultivation and sale of food-crops. In view of these provisions it is idle to companytend that sugarcane does number companye within the ambit of the Act. The question whether the cultivation and sale of sugarcane can be regulated under s. 3 of the Act came up for the companysideration of this Court in Ch. Tika Ramji and Ors. etc. v. The State of U.P. and Ors. 1 At pages 432 and 433 of the report it is observed Act X of 1955 included within the definition of essential companymodity foodstuffs which we have seen above would include sugar as well as sugarcane. This Act was enacted by Parliament in exercise. of the company- 1 1956 S.C.R. 432. current legislative power under Entry 33 of List III as amended by the. Constitution Third Amendment Act, 1954. Foodcrops were there defined as including crops of sugarcane and section 3 1 gave the Central Government powers to companytrol the production, supply and distribution of essential companymodities and trade and companymerce therein for maintaining or increasing the supplies thereof or for securing their equitable distribution and availability at fair prices. Section 3 2 b empowered the Central Government to provide inter alia for bringing under cultivation any waste or arable land whether appurtenant to a building or number for growing thereon of foodcrops generally or specified foodcrops and section 3 2 c gave the Central Government power for companytrolling the price at which any essential companymodity may be bought or sold. These provisions would certainly bring within the scope of Central legislation the regulation of the production of sugarcane as also the companytrolling of the price at which sugarcane may be bought or sold, and in addition to the Sugar Control Order, 1955 which was issued by the Central Government on 27th August, 1955, it also issued the Sugarcane Control Order, 1955, on the same date investing it with the power to fix the price of sugarcane and direct payment thereof as also the power to regulate the movement of sugarcane. Parliament was well within its powers in legislating in regard to sugarcane and the Central Government was also well within its powers in issuing the Sugarcane Control Order, 1955 in the manner it did because all this was in exercise of the companycurrent power of legislation under Entry 33 of List III. It is needless to say anything more on this question. It was next companytended by Mr. Iyengar that the regulation of the price of sugarcane is expressly dealt with by the Bihar Sugar Factories Control Act, 1937 and therefore we should number impliedly spell out the same power from the provisions of the Order and the Act. Mr. Iyengar is number right in companytending that the power that is sought to be exercised in the instant case is an implied one. Sub-rule 3 of rule 3 specifically provides that unless there is an agreement in writing to the companytrary between the parties the purchaser shall pay to the seller the price of the sugarcane purchased within 14 days from the date of the delivery of the sugarcane. This is a .specific mandate. If the Bihar Act provides anything to the companytrary the same must be held to have been altered in view of Art. 372 of the Constitution which provides that all laws in force in the territory of India immediately before the companymencement of this Constitution shall companytinue in force therein until altered or repealed or amended by a companypetent legislature or other companypetent authority. Quite clearly the Bihar Act is a pre- Constitution Act and it companyld have companytinued to be in force only till it was altered, repealed o.r amended by a companypetent legislature or other companypetent authority. We shall presently see that the authority that altered or amended that law is a companypetent one. The next companytention of the learned Counsel for the appellants was that the Parliament had numbercompetence to enact any law relating to the companytrol of sugarcane as that subject is within the exclusive legislative jurisdiction of the State, the same being a part of agriculture. This companytention is again unsustainable in view of Entry 33 of List III of the Constitution which empowers the Parliament to legislate in respect of production, supply and distribution of foodstuffs. It is number disputed that the Parliament had declared-by law that it is expedient in public interest that it should exercise companytrol over foodstuffs. That being so it was well within the companypetence of Parliament to enact the Act and hence the power companyferred on the Government ,under s. 3 of the Act cannot be challenged as invalid. There is numbersubstance in the companytention that the impugned order companytravenes the fundamental right guaranteed to the citizens under Art. 19 1 . No fundamental fight is companyferred on a buyer number to pay the price of the goods purchased by him or to pay the same whenever he pleases. The companytention that in view of s. 11 of the Act, numbercognizance companyld have been taken of the offence alleged is premature. This question does number arise in this ease. No companyrt has yet taken companynizance of the case. That stage has Still to companye. There is numbersubstance in the companytention that the companyplaint made before the police does number disclose a Cognizable offence and as such the police companyld number have taken up the investigation of that companyplaint. The offence companyplained of is punishable with three years imprisonment and as such it falls within the 2nd Sch. of the Cr. P.C. and companysequently the same is a companynizable offence as defined in s. 4 1 f of the Cr. P.C. Hence it was open to the police to investigate the same. For the reasons mentioned above we are unable to accept any of the companytention advanced on behalf of the appellants.

Case appeal was rejected by the Supreme Court

CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 82 of 1967. Appeal by special leave from the judgment and order dated March 15. 1967 of the Rajasthan High Court in Criminal Appeal No. 219 of 1965. Sobhag Mal Jain and V.S. Dave, for the appellant. B. Mehta, for the respondent. The Judgment of the Court was delivered by Hegde, J. The appellants companyviction by the learned Additional Sessions Judge, Jodhpur under s. 314 read with s. 109, Indian Penal Code, having been affirmed by the High Court of Rajasthan, he appeals to this Court after obtaining special leave. The charge on the basis of which he was tried was that some days prior to May 1, 1963, he abetted one Mst. Radha at Jodhpur to cause the miscarriage of one Miss Atoshi Dass alias Amola, who as a result of administration of tablets and introduction of laminaria dento by the said Mst. Radha, died on May 1, 1963. The case for the prosecution is that in about the years 1962-63, the appellant was the 13resident of Gramotthan Pratishthan at Jalore. Miss Atoshi Dass was a teacher working in Indra Bal Mandir, Tikhi, an institution under the management of the appellant. She was young and unmarried. Illicit relationship developed between the aforementioned Atoshi Dass and the appellant as a result of which Miss Atoshi Dass became pregnant. With a view to cause abortion of the child in her womb, the appellant took Miss Dass to Jodhpur and there attempted to cause the miscarriage mentioned above through one Mst. Radha. The attempt was number successful. The insertion of laminaria dento in the private pacts of Miss Dass caused septicaem as a result of which she died in the hospital on May 1, 1963. The appellants case is that he had numberillicit relation with Miss Atoshi Dass number did he abet the alleged abortion. He denies that Miss Atoshi Dass died as a result of any attempt at abortion. As seen earlier the appellant was charged and tried for the offence of abetting Mst. Radha to cause the miscarriage in question but he was ultimately companyvicted of the offence of abetting Miss Dass in the companymission of the said offence. It may be stated at this stage that one Mst. Radha was tried along with the appellant in the trial companyrt but she was acquitted on the ground that there was numberevidence to show that she had anything to do with the abortion companyplained of. Despite the companytentions of the appellant to the companytrary, we think there is satisfactory evidence to show that the death of Miss. Dass was due to septicaem resulting from the introduction of laminaria dento into her private parts. On this point we have the unimpeachable evidence of Dr. A.J. Abraham. P.W. 4. There is also satisfactory evidence to show that the appellant was in terms of illicit intimacy with Miss Dass. It is true that the principal witness on this point is Miss Chhayadass, P.W. 6, the sister of the deceased, a witness who has given false evidence in several respects. But as regards the illicit relationship between the appellant and Miss Atoshi Dass, her evidence receives material companyroboration from the evidence of P.W. 7, M.B. Sen and P.W. Misri Lal. Further it also accords with the probabilities. of the case. It is number necessary to go into that question at length as we have companye to the companyclusion that the appellant is entitled to an acquittal for the reasons to be stated presently. While we are of opinion that there was illicit intimacy between the appellant and the deceased, we are unable to accept the assertion of Miss Chhayadass that the appellant was her only paramour. Exh. D. 3 companyclusively proves that the deceased had illicit relationship with one Sood at Delhi. In the companymittal companyrt Miss Chhayadass admitted that the address on Exh. D-3 is in the handwriting of the deceased. In that companyrt she was positive about it but in the trial companyrt she went back on that admission. In many other respects also she had deviated from the evidence given by her in the companymittal companyrt. Hence we are unable to. accept her statement in the trial companyrt that the address found on Exh. D-3, an inland letter is number in the handwriting of the deceased. Exh. D-3, appears to be a self-addressed letter sent by the deceased to one Sood. The fact that the deceased had more than one paramour is number a material circumstance though it may indicate that the appellant companyld number have had any companypelling motive to abet the abortion companyplained of. The .fact that the appellant was on terms of illicit intimacy with the deceased, an unmarried girl and that she later became pregnant through him is without more, number sufficient to companynect the appellant with the crime. From the evidence of Misrilal and Sengupta, it is clear that the appellant and the deceased had gone together to Jodhpur on April 24, 1963. But from the evidence of Sengupta, it is also clear that the deceased had some work to attend to at Jodhpur. It is also clear from the evidence of Miss Chhayadass that the deceased and the appellant were going together to Jodhpur and other places off and on. It may be numbered that while returning from Jodhpur to his native place, the appellant left the deceased with Mr. and Mrs. Sengupta. Hence the circumstance that the appellant and the deceased went together to Jodhpur on April 24, 1963. cannot be held to be an incriminating circumstance. This leaves us with the evidence relating to the actual abetment. On this aspect of the case the only evidence brought to our numberice is the evidence of Miss Chhayadass and the letter Ex. P.4. Miss Chhayadass deposed in the trial companyrt that when the pregnancy of the deceased became numbericeable, the appellant told the deceased in the presence of that witness that he would get the the child aborted through Mst. Radha. As mentioned earlier Miss Chhayadass is a highly unreliable witness. She had admitted in the companymittal companyrt that she had been tutored by the police to give evidence. In fact she pointed out a police officer who was in the companyrt as the person who had tutored her. In the trial companyrt she denied that fact. There is numbergainsaying the fact that she was companypletely under the thumb of the police. She deviated from most of the important admissions made by her during her cross-examination in the companymittal companyrt. Coming to the question of the abetment referred to earlier, this is what she stated during her cross examination in the companymitting companyrt My sister did number tell Madan Raj about her illness arising from her pregnancy in my presence. On being enquired by me about my sister at Jalore I was informed that my sister had gone to Mst. Radha Nayan in the hospital for treatment. No talks about it were held before me prior to my talk at Jalore talks between Madanraj and my sister about treatment . According to the admissions made by her in the companymittal companyrt she came to know for the first time about her sisters intention to cause miscarriage only after her death. No reliance can be placed on the evidence of such a witness. Now companying to Exh. P.4, this is a letter said to have been written by the deceased sometime before her death intending to send the same to the appellant which in fact was number sent. It was found in her personal belongings after her death. There was some companytroversy before the companyrts below whether the same is admissible under s. 32 1 of the Evidence Act and whether it companyld be brought within the rule laid down by the Judicial Committee in Pakala Narayana Swami Emperor 1 . We have number thought it necessary to go into that question as in our opinion the companytents of the said letter do number in any manner support the prosecution case that the appellant instigated the deceased to cause miscarriage. The letter in question reads thus Santi Bhawan 28-4--63. I went with your letter to. the father. Since I companyld number get money from him, I dropped you a letter. I went to Mst. Radha and asked her to give me medicine. I further said that the money would be received. She gave me a tablet and told me that injection would be given on receipt of full payment. This tablet is causing unbearable pain and bleeding but the main trouble will number be removed without the injection. How can I explain but the pain is untolerable. I have left Sens residence. He and particularly neighbouring doctor would have companye to know everything by my companydition, which is too serious. Meri is halat se unaki vishesker pas me Daktarji ko sub kuch pata chal jati powon tak ulati ho jati . Firstly I intended to proceed to Jalore but on reaching the Station I companyld number dare to proceed. I feel that you are experiencing uneasiness and trouble for me. I am causing monetary as well as mental worries to you. I have been feeling. this for a companysiderable longer period. Please do number be annoyed. It has become very difficult for me to stay alone for the last several days. A.I.R. 1939 P.C. 47. Had you accepted me as your better half you would have number left me alone in my such serious companydition. You cannot know what sort of trouble I am experiencing. Had you been with me I would number have felt it so such. Please do number be annoyed. Perhaps numberone has given you so much trouble. I will write all these facts to my mother I will also write about our marriage. 28-4-63 Today is Sunday. I cannot book a trunk call you the companyrt. Today I tried on the Phone number of Hazarimal but it was engaged, and latter on it cancelled. My Pranam. Yours Ritu. Today I have taken injection and have companye from Shanti Bhawan. portion of that letter indicates that the appellant was in any manner responsible for the steps taken by the deceased for causing miscarriage. No other evidence has been relied upon either by the trial companyrt or by the High Court in support of the finding that the appellant was guilty of the offence of abetting the deceased to cause miscarriage. For the reasons mentioned above we are of the opinion that there is numberlegal basis for the companyviction of the appellant. The learned Counsel for the appellant challenged the companyviction of the appellant on yet another ground. As mentioned earlier he was charged and tried for the offence of abetting Mst. Radha to cause abortion of the child in the womb of the deceased but curiously enough he was companyvicted for abetting the deceased to cause miscarriage. Abetment as defined in s. 107 of the I.P.C., can be by instigation, companyspiracy or intentional aid. If the abetment was that of Mst. Radha, it companyld have been only by instigation or companyspiracy but if it was an abetment of the deceased, it companyld either be by instigation or by companyspiracy or by intentional aid Throughout the trial the accused was asked to defend himself against the charge on which he was tried. At numberstage he was. numberified that he would be tried for the offence of having abetted the deceased to cause miscarriage. It is number well settled that the absence of charge or an error or omission in it is number fatal to a trial unless prejudice is caused--see Willie William Slaney v. The State of Madhya Pradesh 1 . Therefore the essential question is whether there is any reasonable likelihood of the accused having been prejudiced in view of the charge flamed against him. From what has been stated above one can reasonably companye to the companyclusion that the accused was likely to have been prejudiced by the charge on the basis of which he was tried. From the cross-examination of the prosecution witnesses, it is seen that the principal attempt made on behalf of the appellant was to show that he had numberhing to do with the companyaccused, Mst. Radha. He companyld number have been aware of the fact that he would be required to show that he did number in any manner abet the deceased to cause miscarriage. The facts of this case companye within the rule laid down by this Court in Faguna Kanta Nath v. The State of Assam 1 . The case of Gallu Sah v. The State of Bihar 2 relied by the High Court is distinguishable. Therein Gallu Sah was a member of an unlawful assembly. He was said to have abetted Budi to set fire to a house. One of the members of the unlawful assembly had set fire to the house in question though it was number proved that Budi had set fire to the house.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal Nos. 736 to 739, 91-3 and 1621 of 1968. Appeal from the judgment and order dated December 2, 1964 of the Calcutta High Court in Income-tax Reference Nos. 131 of 1961 etc. Jagdish Swarup, Solicitor-General, T.A. Ramachandran, N. Sachthey and B.D. Sharma, for the appellant in all the appeals . Barman Ranjit Ghose and Sukumar Ghose, for the respondents in all the appeals . The Judgment of the Court was delivered by Shah, Ag. C.J. In a proceeding for assessment to Income-tax for the year 1949-50 the respondents in these appeals claimed that the dividend distributed by the Ukhra Estate Zamindaries Ltd. was exempt from tax, because the fund out of which the dividend was distributed did number form part of the accumulated profits of the Company. The Income-tax Officer rejected the companytention and brought the dividend to tax in the hands of the respondents. The Appellate Assistant Commissioner held that Rs. 1,12,500 out of a total amount of Rs. 2,24,000 distributed by the Company, represented capital gains arising to the Company on or after April 1, 1948 and number being dividend within the meaning of s. 2 6A of the Income Tax Act, 1922, the share distributed to the shareholders out of that amount was exempt from income-tax. The order of the Appellate Assistant Commissioner was reversed in appeal by the Tribunal. In the view of the Tribunal the definition of dividend in s. 2 6A in force in the year of assessment was number exhaustive, and if the amount distributed was dividend in ordinary parlance it became chargeable under the general charging section, and that clause 2 6A was companycerned with deemed dividends, and exclusion of certain capital gains by the proviso had numberbeating on the issue raised by the revenue The following question referred by the Tribunal to the High Court of Calcutta .under s. 66 1 of the Indian Income-tax Act Whether on the facts and in the circumstances of the case the amount of Rs. 28,125 was rightly included as dividend in the total income of the assessee for the assessment year 1949-50? was answered in the negative. The Commissioner has appealed to this Court. with certificates granted by the High Court. Dividend in its ordinary companynotation means the sum paid to or received by a share- holder proportionate to his share holding in a companypany out of the total sum distributed. The relevant part of the definition companytained in s. 2 6A of the Income-tax Act, 1922, in the year of assessment 1949-50 was as follows Dividend includes-- a any distribution by a companypany of accumulated profits whether capitalised or number, if such distribution entails the release by the companypany to its shareholders of all or any part of the assets of the companypany Explanation.--The words accumulated profits wherever they occur in the clause, shall number include capital profit Provided further that the expression accumulated profits, wherever it occurs in this clause, shall number include capital gains arising before the I st day of April 1946 or after the 31st day of March, 1948. Dividend distributed by a Company being a share of its profits declared as distributable among the shareholders, is number impressed with the character of the profits from which it reaches the hands of the shareholder. It would be therefore difficult to hold that the mere fact that a distribution has been made out of the capital gains, it has the attributes of capital gains in the hands of the shareholders. But that does number assist the case of the Revenue, for the Legislature has expressly excluded from the companytent of dividend, capital gains arising after March 31, 1948. The proviso to the Explanation clearly enacted that capital gains arising-after March 31, 1948 are number liable to be included within the expression dividend. The definition is, it is true, an inclusive definition and a receipt by a shareholder which does number fall within the definition may possibly be regarded as dividend within the meaning of the Act unless the companytext negatives that view. But it is difficult on that account to hold that capital gains excluded from the definition of dividend by express enactment still fall within the charge of tax. According to the definition in s. 2 6A of the Income-tax Act only the proportionate share of the member out of the accumulated profits excluding capital gains arising in the excepted period distributed by the Company, alone will be deemed the taxable companyponent. There is number warrant for the view expressed by the Tribunal that the definition of dividend only includes deemed dividend. To hold that the capital gains within the excepted period are number part of the accumulated profits for the purpose of the definition under s. 2 6A and a distributive share thereof does number on that account fall within the definition of dividend and therefore of income chargeable to tax and still to regard them as a part of accumulated profits for the purpose of dividend in the popular companynotation and to bring the share to tax in the hands of the shareholders is to nullify an express provision of the statute. We do number see any reason why such a strained companystruction should be adopted. We agree with the High Court that the proportionate share of the capital gains out Of which the dividend was distributed to the shareholders of the Company must be deemed exempt from liability to pay tax under s. 12 as dividend income liable to tax. Counsel for the Revenue sought to argue that share of dividend which is number chargeable to tax by virtue of the exemption clause is still liable to tax as income other than dividend. But numbersuch companytention was raised before the Tribunal or the High Court and numberquestion was raised in that behalf. We will number be justified in entering upon the question which was number raised or argued before the Tribunal and before the High Court. The appeals fail and are dismissed with companyts. One hearing fee.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 438 of 1967. Appeal from the judgment and order dated April 11, 1966 of the Rajasthan High Court in D.B. Civil Reference Estate Duty Act No. 16 of 1963. C. Chagla, B.D. Sharma and M D. Bhargava, for the appellant. Jagdish Swarup, Solicitor-General, T.A. Ramachandran, N. Sachthey and B.D. Sharma, for the respondent. The Judgment of the Court was delivered by Shah, Ag. C.J. Purnabai widow of Sagarmal Mody held on April 1, 1953 three deposit receipts of the aggregate face value of Rs. 6,26,724-14-0 with the State Bank of Bikaner. By her letter dated July 22, 1952 Purnabai informed the Bank that she intended to make a gift of the amounts of two out of the three receipts to Suryakant son of her adopted son Satyanarayana, and requested that the receipts be renewed for three months in the joint names of Purnabai Sagarmal Mody and or Surya Kant S. Mody--payable to either or survivor. and that the renewed fixed deposit receipts be sent to Satyanarayana at Bombay. Pursuant to this letter two fresh receipts were issued on August 3, 1953 for Rs. 5,00,000 and Rs. 45,793/4/-. It appears that a receipt for Rs. 80,931 10/- was previously obtained in the joint names of Purnabai and Suryakant on July 4, 1953. On August 16, 1953 Puranabai executed a deed of gift in favour of Suryakant in respect of the three receipts companytaining the following recitals Out of natural love and affection I have towards the said Suryakant son of Satyanarayana I hand over to the said Satyanarayana as the father and natural guardian of the said Suryakant Fixed Deposit Receipts total for Rs. 6,26,724/14/- . D.R.N. 222/ 8293 dated 3-8-53 for Rs. 45,793/4/-, F.D.R.N. 221/ 8292 dated 3-8-53 for Rs. 5,00,000/- of the Bank of Bikaner Ltd., Jaipur and F.D.R. No. 11446 dated 4-7- 53 for Rs. 80,931/10/- of Bank of Bikaner Ltd., Jhunjhunu in the name of Purnabai Sagarmal and Suryakant Satyanarayana Mody payable to either or survivor as and by way of gift to the said Suryakant on the 15th day of August 1953 and that the said Satyanarayana for and on behalf of and as the. natural guardian of the said Suryakant accepted the said gift of Rs. 6,26,724/- . gifted by me as aforesaid. The gift deed companytained a companyfirmation by Satyanarayana that he had accepted the gift for and on behalf of and as natural guardian of Suryakant to the intent and effect that the said Suryakant shall be the absolute owner of the sum gifted. On August 17, 1953 Purnabai addressed a letter to the Manager of the Bank enclosing a companyy of the declaration of gift and intimated that her grand-son Suryakant was the sole owner of the amount of the two fixed deposit receipts and till Suryakant S. Mody attained the age of majority the receipts should remain in the joint names as they then stood. From time to time Purnabai presented the receipts for renewal when they matured and obtained fresh receipts in the joint names of herself ,and Suryakant. On August, 25 1955 the receipt for Rs. S0,931/10/- was encashed and out of the amount of Rs. 86,732/- realized, Rs. 5,000/- were invested in the name of Suryakant in National Savings Certificates. The balance was also deposited alone with a firm in Bombay also. in the name of Suryakant alone. The other two receipts were renewed in the joint names of Purnabai and Suryakant. After the death of Purnabai on February 15, 1956, the two receipts were encashed by Suryakant. The Assistant Controller of Estates duty in procedings for assessment of estate duty held inter alia that possession and enjoyment of the gifted property was number assumed by the donee to the entire exclusion of the donor, and on that account the amount of the two receipts and interest thereon formed part of the estate of Purnabai and was, liable to estate duty. Regarding the third receipt for Rs. 80,931/10/- the Assistant Controller observed that even though the earlier receipt was discharged on August 25, 1955 i.e. within two years of the death of Purnabai and the amount was invested in the name of Suryakant, by virtue of the provisions of the Estate Duty Act the amount held in the name of Suryakant alone, was for assessment of estate duty liable. to be included in the estate. of Purnabai. In appeal the Central Board of Revenue companyfirmed the order. The Board held that at all material times during the currency of the fixed deposit Purnabai had the right to receive the money from the Bank by giving discharge for the same and that whenever the Fixed Deposit Receipts matured during the lifetime of Purnabai, the receipts were, in fact, discharged by her alone and in the circumstances it companyld number be said that the property was held by the donee to the entire exclusion of the donor. The Board of Revenue referred the following question the High Court of Rajasthan for opinion Whether on the facts and in the circumstances of the case the sum of Rs. 6,85,193/- was companyrectly included in the estate of the deceased as property deemed to pass on her death under section 10 of the Estate Duty Act, 1953 ? The High Court of Rajasthan answered the question in the affirmative. With certificate granted by the High Court this appeal has been preferred. The deposit receipts were renewed from time to time after August 16, 1953 in the joint names of Purnabai and Suryakant till August 25, 1955 under their terms the receipts companyld be encashed by either or the survivor. Even after Purnabai made a gift of the amount represented by the three receipts, she companytinued to obtain the receipts in the joint names, presumably with the object of number parting with companytrol over those receipts. Counsel for the appellant however companytended that the fixed deposit receipts were held by Purnabai in her name as benamidar for Suryakant. Counsel placed strong reliance upon the letters dated July 22, 1953, August 17, 1953 and the terms of the deed of gift dated August 16, 1953. By the letter dated July 22, 1953 the Manager of the Bank was informed that in respect of two out of the three receipts Purnabai intended to make a gift and the .- Manager was requested that the receipts be made in the joint .names of Purnabai and Suryakant. It was expressly recited in the letter I intend to gift the entire amount of the receipts to my grandson Mr. Suryakant S. Mody hence you are requested to prepare the receipts in joint names as under Purnabai Sagarmall Mody and or Suryakant S. Mody payable to either or survivor. The deed of gift also recites that Purnabai had made a gift of the amount of Rs. 6,26,724/14/- represented by the previous receipts in favour of Suryakant, and that the gift was accepted by Satyanarayana on behalf of Suryakant. The letter dated August 17, 1953 recites that a companyy of the deed of declaration of gift. was sent to the Bank for record and information and proceeds to state Further I would like to state that number Suryakant S. Mody is the sole owner of the above Fixed Deposit Receipts in question till Suryakant S. Mody attains majority the receipts should remain in joint names as it stands number. is clear that Purnabai desired to make a gift of the amount represented by the previous deposit receipts and did in fact execute a deed of gift. The Bank had numberice of the gift deed. Counsel for the appellant companytends that Purnabai did everything possible to divest herself of her interest in the money held by her, in deposit with the Bank, and retained numberinterest therein and that in obtaining renewal of the receipts in the joint names of herself and of Suryakant, she was merely a benamidar and in any event was acting on behalf of Suryakant. Counsel further companytends that the Bank having numberice of the gift companyld number have parted with the money except only for the benefit of the minor and by obtaining renewal of the receipt in favour of the minor Suryakant and Purnabai, the latter retained numberpossession or enjoyment of the money represented by the receipts. Counsel invited our attention to a decision of the Madras High Court in Imperial Bank of India, Madras v. Krishnamurthi and another 1 in which Beasely, C.J. speaking for the Court observed that when a Bank having numberice that the administrators of the estate of the depositor intended to companymit a breach of trust by seeking to invest monies companytrary to express directions of the will paid out the money, the Bank was liable to make good to the beneficiary A.I.R. 1933 Madras, 628. the money deposited by the testator. In that case one Naidu had deposited a sum of money with the Imperial Bank of India in fixed deposits. Naidu died having bequeathed by his will the amount deposited to Iris son Krishnamurthi who was then a minor. Naidu had appointed by his will two persons to be guardians of Krishnamurthi with authority to receive the amount in fixed deposit with the Imperial Bank and to apply the same for the maintenance and education of Krishnamurthi. The guardians obtained from the High Court of Madras grant of letters of administration with companyy of the will annexed. After the death of one of the guardians the surviving guardian withdrew the money from the Bank on the pretext that he wanted to invest it on more advantageous terms in house property or some other form of in vestment and misappropriated it. On attaining the age of majority Krishnamurthi sued the Bank. It was held by the High Court that the Bank knowing of the trust created by the will had parted with and delivered the amount deposited to the administrator who intended to companymit a breach of the trust. The learned Chief Justice quoted a passage from Harts Law of Banking Edn. 3 at p. 159 that A banker who receives into his possession moneys of which his customer to his knowledge became the owner in a fiduciary character, companytracts the duty and to part with them at the mandate of his customer for purposes which are inconsistent with the customers fiduciary character and duty, and upheld the claim of Krishnamurthi. It is unnecessary to companysider whether. in the present case the investment was made by renewal of fixed deposit receipts after August 16, 1953 for a purpose which the Bank knew was inconsistent with Purnabais fiduciary character and duty. We are number companycerned in this case to decide whether the Bank companyld have refused to pay the amount of the renewed deposit receipts if demanded by Purnabai. Whether the amount of deposit receipts was liable to estate duty must be determined on the true effect of s. 10 of the Estate Duty Act 34 of 1953. Section 10 of that Act provides Property taken under any gift, whenever made, shall be deemed to pass on the donors death to the extent that bona fide possession and enjoyment of it was number immediately assumed by the donee and thenceforward retained to the entire exclusion of the donor or of any benefit to him by companytract or otherwise Provided that the property shall number be deemed to pass by reason only that it was number, as from the date of the gift, exclusively retained as aforesaid, if by means of the surrender of the reserved benefit or otherwise, it is subsequently enjoyed to the entire exclusion of the donor or of any benefit to him for at least two years before the death. Provided The phraseology of the section is somewhat involved. The purport of the section is however clear. The section clearly means that if in respect of any property which is gifted, bona fide possession and enjoyment is number immediately assumed by the donee and thenceforward retained by him to the entire exclusion of the donor or of any benefit to him therein the property gifted shall number be excluded from the estate subject to estate duty. The question which must be determined therefore is whether in the present case the donee Suryakant did under the deed of gift immediately assume bona fide possession and enjoyment of the fixed deposit receipts gifted to him, and thenceforward retained the same to the entire exclusion of Purnabai or of any benefit arising to her by companytract or otherwise. The companyduct of Purnabai clearly indicates that she had numberintention to part with companytrol over the property the deposit receipts were obtained in joint names, and Purnabai had authority to withdraw the amount from the Bank, without companysulting the guardian of Suryakant. The deposit receipts were renewed on several occasions even after the execution of the deed of gift in the joint. names of Purnabai and Suryakant. Purnabai alone presented the fixed deposit recepits for renewal. She companyld under the terms of the receipts receive the moneys to the entire exclusion of Suryakant. We are unable to hold, in the circumstances, that bona fide possession and enjoyment of the property gifted was immediately assumed by Suryakant and thenceforward retained by him to the entire exclusion of Purnabai. The right retained by Purnabai to have the receipts made out in her name jointly with Suryakant and the power to recover the amount from the Bank without the companycurrence of Suryakant clearly indicate that she was number excluded, but she had retained important benefits in herself in the fixed deposit receipts. It is true that the third receipt was encashed during the life time of Purnabai, and the amount was invested in the name of Suryakant alone. But the encashment and reinvestment were within two years of the death of Purnabai and the amounts so reinvested were liable to be included in the estate of Purnabai. The argument that fixed deposit receipts had remained exclusively in the possession of Satyanarayana as guardian of Suryakant and they were obtained by him from Purnabai for the purpose of renewal is number supported by any evidence. There is also numberevidence that in obtaining the receipts in the joint names Purnabai acted as a guardian of Suryakant number that she was a benamidar of Suryakant. We are of the view that the High Court was right in answering the question against the appellant.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeals Nos. 2129 to 2132 of 1968. Appeals from the judgment and order dated December 4, 1964 of the Calcutta High Court in Tax Matters Nos. 69, 62 and 64 of 1963. K. Sen, S.K. Hazare and P.K. Mukherjee, for the appellants in all the appeals . Sen, S. A. L. Narayana Rao and R.N. Sachthey, for the respondent in all the appeals . The Judgment of the Court was delivered by Groper, J. These appeals by certificate from a judgment of the Calcutta High Court involve a companymon but important question, namely, whether the right of an assessee to receive a specified share of the net income from an estate in respect of which Wekf-alal-aulad has been created is an asset assessable to Wealth Tax. By a deed dated November 19, 1928 as modified by a deed of rectification dated July 5, 1930 one Golam Hossain Kasim Ariff, a muslim governed by the Hanafi School of the Mohammadan Law created a wakf in respect of his properties in Noormul Lohia Lane and Armenian Street in Calcutta. The settler appointed himself as the sole Mutwalli for the term of his life and provided that after his death his widow Aisha Bibi and his sons would act as Mutwallis jointly. The settler died on January 1, 1937. He left behind his widow Aisha Bibi and three tons who are the appellants before this Court. The wakf created was of the nature of Wakf-alal-aulad for the benefit of the settlers wife, children and their descendants. The extent of the benefit companyferred on them would appear from clause 5 of the deed of wakf as modified After payment of all necessary out goings such as establishment charges, companylections charges, revenue taxes, companyts of repairs, law charges and other expenses for the upkeep and management of the said Wakf property, the Mutwalli or Mutwallis shall apply the net income of the said Wakf property as follows, viz. In payment to me during the term of my life of one-fifth of the said net income by monthly instalments. In payment to each of my sons during the respective terms of their lives one-sixth of the said net income by monthly instalments. In payment to my wife Aisha Bibi during the term of her life one tenth of the said net income by monthly instalments. The moneys payable as aforesaid to such of my sons as are minors shall until they attain the age of majority be respectively invested after defraying the expenses of their maintenance and education in proper securities or in landed property in Calcutta and such securities or property shall be made over to the said sons on their respectively attaining the age of majority. The ultimate benefit in the case of companyplete intestacy of the descendants of the settlor was reserved for poor musalmans of Sunni companymunity deserving help. The appellants who are the beneficiaries under the deed of wakf were paying income tax on the amount which was being received by them in terms of that deed from the Mutwalli. In the year 1957 the Wealth Tax Act 27 of 1957, hereinafter called the Act, came into force. During the assessment years 1957-58 and 1958-59 the appellants were number only assessed to income tax in respect of the income received by them from the wakf estate but were also assessed to Wealth tax by the Wealth Tax Officer on the basis that they had a share in the wakf estate. The total value of the immovable property belonging to the wakf estate was valued at 20 times the annual municipal valuation and 16th of the value of the immoveable property along with other properties was taken to be the net wealth of each assessee. Appeals were taken to the Appellate Assistant Commissioner of Wealth Tax but these were dismissed. There were further appeals to the Income tax Appellate Tribunal where numberdispute was raised as indeed it companyld number be raised with regard to the validity of the deed of wakf. It was held that the right of the sons of the wakf to receive a share of the rents and profits of the wakf property was property or an interest in property and as it was number limited in enjoyment to a period of six years it fell within the definition of the term assets as defined by s. 2 e of the Act. The companytention of the appellants that the right of the beneficiaries under the deed of wakf was a mere right to an annuity as mentioned in s. 2 e iv and was, therefore, number an asset assessable to wealth tax was rejected. The third argument which had been raised before the Tribunal that the allowances under assessment were payable to the beneficiaries by way of maintenance were number transferable under s. 6 dd of the Transfer of Property Act and therefore they had numbermarket value, for inclusion in the net wealth was also refuted. It was pointed out that the right to maintenance was number one of the assets mentioned in s. 5 which alone entitled an assessee to claim exemption in respect of certain assets. The Tribunal did number find it possible to hold on the facts of the case that the amounts in dispute were receivable by the beneficiaries as maintenance under the terms of the wakf. As regards the quantum of valuation a direction was made that the value of the assessees life interest may be capitalised on the basis of the valuation table set out in Parks Principles and Practice of Valuations taking the rent security at 6. On applications for referring the question of law, the following companymon question was referred to the High Court under s. 27 of the Act Whether on the facts and circumstances stated the right of the assessee to receive a specified share of the net income from the Wakf Estate is an asset the capitalised value of which is assessable to Wealth-tax? The High Court negatived the companytentions of the appellants that the right to receive a definite share of the net income from wakf property did number fall within the meaning of the word assets as defined by s. 2 e of the Act or that it was a mere right to an annuity which under the Mohammedan Law companyld number be companymuted into a lumpsum. It was held that the fight of each assessee was to receive an aliquot share of the net income of the properties which were made the subject matter of the wakf and there was a clear distinction between an aliquot share of income and an annuity. The High Court was of the view that even if the asset of the nature under companysideration was number-transferable and companyld number be sold in the open market it companyld number be said that such an asset had numbervalue. For the purpose of the Act the Wealth Tax Officer must proceed to value it as if it was an asset which was saleable in the market and that would depend on actuarial valuation. The question was companysequently answered in the affirmative and in favour of the revenue. The definition of the word assets as given in s. 2 e of the Act to the extent it is material is in the following terms e assets includes property of every description, movable or immovable but does number include-- a right to any annuity in any case where the terms and companyditions relating thereto preclude the companymutation of any portion thereof into a lump sum grant any interest in property where the interest is available to an assessee for a period number exceeding six years Net wealth is defined by section 2 m . Section 3 is the charging valuation date of every individual etc. Section 4 gives the financial year a tax in respect of the net wealth on the companyresponding valuation date of every individual etc. Section 4 gives the assets which have to be included in companyputing the net wealth. Section 5 gives those assets which are exempt from and are number to be included in the net wealth of the assessee. Section 7 1 provides that value of any asset other than cash shall be estimated to be the price which, in the opinion of the Wealth Tax Officer,, it would fetch, if sold in the open market, on the valuation date. It is to be essentially decided whether the right to receive an aliquot share of the net income of the properties which were made the subject matter of the wakf would be companyered by the definition of assets within the meaning of s. 2 e of the Act. There can be numberdifficulty if such a right can be regarded to be property giving that word the widest meaning as is companytemplated by the language employed in the aforesaid clause. The principal argument of Mr. A.K. Sen for the appellants is that the right to receive a share of the income under a deed creating wakf-alal-aulad can, by numberstretch of reasoning, be regarded to fall within the meaning of the word property even in its wide and extended sense. He has referred to the incidents of such a right with particular reference to the Mohammedan Law relating to wakf. That law owes its origin to a rule laid down by the Prophet of Islam and means the tying up of property in the ownership of God the Almighty and the devotion of the profits for the benefit of human beings. Once it is declared that a particular property is wakf, the right of the wakf is extinguished and the ownership is transferred to the Mutawalli vide Vidya Varuthi v. Balusami Ayyar 1 . Wakfs companyld be divided into two classes public and ii private. A private wakf is one for the benefit of the 1 481.A. 302 atp. 312. settlors family and his descendants. It is called Wakf- alal-aulad. -Before the enactment of the Mussalman Wakf Validating Act 1913, a wakf, exclusively for the benefit of the settlors family, children and descendants in perpetuity, was invalid. It was, however, valid if the property was given in substance to charitable uses. Section 3 of the aforesaid Act declared it lawful for a person professing the Mussalman faith to create a wakf which in all other respects was in accordance with the provisions of the Mussalman law, for the following among other purposes -- a for the maintenance and support wholly or partially of his family, children or descendants, and b where the person creating a wakf is a Hanafi Mussalman, also for his own maintenance and support during his lifetime or for the payment of his debts out of the rents and profits of the property dedicated Provided that the ultimate benefit in such cases expressly or impliedly reserved for the poor or for any other purpose recognised by the Mussalman law as a religious, pious or charitable purpose of a permanent character. As mentioned before, the moment a wakf is created, all rights of property pass out of the Wakif and vest in the Almighty. Therefore, the Mutawalli has numberright in the property belonging to the wakf. He is number a trustee in the technical sense, his position being merely that of a superintendent or a manager. A Mutawalli has numberpower, without the permission of the companyrt, to mortgage, sell or exchange wakf property or any part thereof unless he is expressly empowered by the deed of wakf to do so ss. 202 and 207, Mullas Principles of Mahomedan Law, 16th Edn. In Abdul Karim Adenwalla v. Rahimabai 1 , a distinction was made between a settlor belonging to the Hanafi sect reserving for his own maintenance and support during his lifetime the income of the trust property and has reserving for his absolute use income of the whole of the property during his lifetime. It was pointed out that a Hanafi Mussalman was number permitted to follow the latter companyrse and it was only when he reserved the income for his maintenance and support that the provisions of the Mussalman Wakf Validating Act, 1913 would number be offended, There would be a difference in law between these two provisions if a settlor reserved to himself income for his own maintenance and support that would number be transferable as property under the Transfer of Property Act number would it be attachable under the provisions of the Civil Procedure Code. If he, however, reserved for himself a life interest, s. 6 of the Transfer of Property Act 1 48 Bom. L.R. 67. and s. 60 of the Code with regard to the number-transferability and number-liability to an attachment would number be attracted. The crux of the matter, according to Mr. Sen, is that the aliquot share of income under the deeds executed in the present case was reserved for the maintenance and support of the wakf and other beneficiaries during their lifetime. It is pointed out that if the provisions companytained in cl. 5 of the deed of wakf were number to be read in that manner,. the deed would be rendered void a result which has to be avoided by the companyrts. It is thus companytended that the right, in question, is a right to future maintenance measured by the aliquot part of the income and it is neither partible number alienable, and is one which is wholly personal to the beneficiary. It lacks the basic attributes of property. Now property is a term of the widest import and subject to any limitation which the companytext may require, it signifies every possible interest which a person can clearly hold or enjoy. The meaning of the word property has companye up for examination before this Court in a number of cases. Reference may be made to one of them in which the question arose whether Mahantship or Shebaitship which companybines elements of office and property would fall within the ambit of the word property as used in Article 19 1 f of the Constitution. It was observed in the Commissioner, Hindu Religious Endowments, Madras v. Shri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt 1 that there was numberreason why that word should number be given a liberal and wide companynotation and should number be extended to those well recognised types of interests which had the insignia or characeristics of proprietary right. Although Mahantship was number heritable like the ordinary property, it was still held that the Mahant was entitled to claim protection of Art. 19 1 f of the Constitution. It is stated in the Halsburys Laws of England, Vol. 32 3rd Edn. page 534 that an annuity which is a certain sum of money payable yearly either as a personal obligation of the grantor or out of property number companysisting exclusively of land can be an item of property separate and distinct from the beneficial interests therein and from the funds and other property producing it is property capable of passing on a death and can be separately valued for the purpose of estate duty. The only direct case on the point under companysideration is a decision of the Bombay High Court in Commissioner of Wealth Fax, Bombay City v. Purshottam N. Amersey and Another 2 . There the deed of settlement provided that the trustees shall apply he net income from the fund for the support, maintenance and advancement in life and otherwise for the benefit of the settlor and is wife etc. It was held that the definition of assets in s. 2 e and that of net wealth in s. 2 m were companyprehensive provi- 1 1954 S.C.R. 1005, 1019. 2 71 T.R. 180. CI/70-3 sions and all assets were included in the net wealth by the very definition. Therefore, when s. 3 imposed the charge of wealth tax on the net wealth it necessarily included in it every description of property of the assessee, movable and immovable, barring the exceptions stated in s. 2 e and other provisions of the Act. We are in entire companycurrence with that view. There is numberreason or justification to give any restricted meaning to the word asset as defined by s. 2 e of the Act when the language employed shows that it was intended to include property of every description. On a proper companystruction of the relevant clauses in the wakf deed we are number satisfied that the aliquot share of the income provided for the beneficiaries was meant merely for their maintenance and support. But even on the assumption that it was so intended or to preserve the validity of the deeds it should be so companystrued the right to the share of the income would certainly be an asset within the meaning of s. 2 e and would be liable to be included in the net wealth of the assessee. Mr. Sen has laid emphasis on the language of s. 7 1 of the Act and has companytended that the right to a share in the income is number capable of any valuation and the price which it would fetch if sold in the open market, companyld number possibly be ascertained. Such an argument was fully examined in the Bombay case 1 in which the High Court referred to the provisions of the English statutes, which were in pari materia as also decisions given by the English Courts including the one by the House of Lord, Commissioner of Inland Revenue v. Crossman 2 . It has beet rightly observed by the High Court that when the statute uses the words if sold in the open market it does number companytemplate actual sale or the actual state of the market, but only enjoins that I should be assumed that there is an open market and the property can be sold in such a market and on that basis, the value has to be found out. It is a hypothetical case which is companytemplated and the Tax Officer must assume that there is an open market it which the asset can be sold. A faint attempt was made to invoke the exception companytained in s. 2 e by suggesting that the right to receive a share of the income was a mere right to an annuity where the terms and companyditions relating thereto precluded the companymutation of any portion into a lump sum grant. The High Court in the judgment under appeal dwelt at length on the true meaning and import of the expression annuity and negatived that suggestion. The burden of the argument was and is that the word annuity should be given its popular and dictionary meaning and number the signification which it has assumed as a legal term owing to judicial inter pretation. Such a companytention has only to be stated to be rejected 1 71 I.T.R.180. 2 1937 A.C. 26. because it is well settled that where the legislature uses a legal term which has received judicial interpretation, the companyrts must assume that the term has been used in the sense in which it has been judicially interpreted. For the reasons given above, the appeals fail and are dismissed with companyts.

Case appeal was rejected by the Supreme Court

ORIGINAL JURISDICTION Writ Petition No. 102 of 1969. Petition under Art. 32 of the Constitution of India for a writ in the nature of habeas companypus. Vinoo Bhagat, for the petitioner. P. Mitra, G.S. Chatterjee for Sukumar Basu, for the respondents. The Judgment of the Court was delivered by Sikri, J. This is a petition under Article 32 of the Constitution by Shyamal Chakraborty who has been detained under the Preventive Detention Act, 1950 hereinafter referred to as the Act . Three grounds have been urged by the learned companynsel why we should issue a writ of habeas companypus directing his release 1 that the detenus representation was number companysidered by the Government, 2 that the grounds furnished to the detenu mentioned offences under the Indian Penal Code and cannot be used for the purpose of detaining the detenu except in emergencies and 3 that the grounds do number have any relation to the maintenance of public order. Following are the facts as they emerge from the affidavits on record The detenu was detained by an order No. 3846-D.D. S dated 13th November, 1968 passed by the Commissioner of Police, Calcutta in exercise of powers companyferred on him by section 3 2 of the Act. The detenu was arrested on November 13, 1968 and was served with the grounds of detention both in English and in vernacular on the same day. On 15th November. 1968, the Commissioner of Police reported the fact of such detention of the petitioner together with the grounds and other particulars having bearing on the necessity of the order to. the State Government. On 19th November, 1968, the Governor was pleased to approve the said order of detention under section 3 3 of the Act and on the same day the Governor submitted the report to the Central Government under section 3 4 of the Act together with grounds and other particulars having bearing on the necessity of the order. On 7th December, 1968, his case was placed before the Advisory Board under section 9 of the Act. On 6th January, 1969, the Advisory Board after companysideration of the materials placed before it was of the opinion that there was sufficient cause for detention of the petitioner. The petitioner had number submitted any representation to the State Government till then. By an order dated 8th January, 1969 the Governor was pleased to companyfirm the order of detention. It appears that on the 13th January, 1969 and 16th January, 1969 the detenu made representations. After the receipt of these representations the same were sent by the Home Department to the Commissioner of Police for his report. On 1st April, 1969 the Commissioner of Police informed the Home Department that he did number recommend the release of the petitioner. But the representations of the petitioner were number received back from the Commissioner of Police with his letter of the 1st April, 1969. Later on the Commissioner of Police sent back the representation dated 13th January, 1969 to the Home Department. This Court on 28th March, 1969 issued a numberice under Article 32 of the Constitution to the Commissioner of Police and to the State Government to show cause why rule nisi should number be issued made returnable three weeks hence. On receipt of this numberice the State Government refrained from passing any order on the representation dated 13th January, 1969. The representation dated 16th January, 1969 is untraceable, but effort is being made to trace it. According to the Commissioner of Police it was on the same lines as the representation dated 13th January, 1969. It is necessary to. reproduce the grounds of detention served on the detenu and they are in the following terms - You are being detained in pursuance of a detention order made under sub-section 2 of section 3 of the Preventive Detention Act, 1950 Act IV of 1950 on the following grounds You have been acting in a manner prejudicial to the maintenance of public order by the companymission of offences of rioting, assault etc. as detailed below That on 28-6-68 at about 6 pm. you along with your associates being armed with lathis, iron rods, acid bulbs etc. companymitted a riot in Kumartuli Park in companyrse of which you severely assaulted Shri Amal Krishna Roy of 20A, Abhoy Mitra Street and iron rods, acid bulbs etc. were indiscriminately used endangering human lives. That on 23-7-68 at about 6.10 p.m. you along with your associates being armed with lathis, iron rod, hockey sticks etc. attacked companystables Sankar Lal Bose and Jagdish Singh both of Shyampukur P.S. on Kaliprosad Chakraborty Street near the Gaudiya Math who went there to. discharge their lawful duties, as a result of which companystable Sankar Lal Bose sustained bleeding injuries on his person. That in the night of 3-10-68 between 11.50 p.m. and 1.30 a.m. you along with your associates being armed with deadly weapons took part in a riot at Rabindra Sarani from Bug Bazar Street crossing to Kumartuli Street crossing in companyrse of which bombs, brickbats and soda water bottles were indiscriminately hurled endangering human lives. You are hereby informed that you may make a representation to the State Government against the detention order and that such representation should be addressed to the Assistant Secretary to the Government of West Bengal, Home Department, Special Section, Writers Buildings, Calcutta and forwarded through the Superintendent of the Jail in which you are detained as early as possible. You are also informed that under section 10 of the Preventive Detention Act, 1950 Act IV of 1950 the Advisory Board, shall, if you desire to be heard, hear you in person and that if you desire to be so heard by the Advisory Board you should intimate such desire in your representation to the State Government. Coming number to the first point raised by the learned companynsel it seems to us that there has been numberbreach of the provisions of the Act. This Court has held that it is obligatory on the Government to deal with the representations made by the detenu, but the facts recited above show that the detenu did number choose to make a representation before the Advisory Board dealt with the matter, and further the State Government was in the process of dealing with the representation when this Court issued the numberice. Moreover, in the representation dated 13th January, 1969, the detenu barely stated that the grounds were false and that the detenu was a poor man and the family companyditions were miserable and he was living peacefully, in the town and had never companymitted any act which was manifestly prejudicial to the maintenance of public order or companymunal harmony. He prayed that under the circumstances, I am to request you to kindly produce. me before the Advisory Board and release me. At that stage it was impossible to produce him before the Advisory Board. The Advisory Board had already dealt with the matter. Under these circumstances we are unable to say that there has been a breach of section 7. We trust that the State Government will number immediately deal with the representation or representations and pass a suitable order. It will be companyvenient to deal with the points 2 and 3 mentioned above together. It is true, as urged by the learned companynsel for the petitioner, that this Court has companysistently held that the grounds must have relevance to the maintenance of public order, and that they should number relate merely to the maintenance of order. It is true, as laid down by this Court, that the companytravention of any law always affects order but before it can be said to affect public order it must affect the companymunity or the public at large. As Ramaswami, J., put it in Pushkar Mukherjee Ors. v. The State of West Bengal 1 , in this companynection we must draw a line of demarcation between serious and aggravated forms of disorder which directly affect the companymunity or injure the public interest and the relatively minor breaches of peace of a purely local significance which primarily injure specific individuals and only in a secondary sense public interest. The question which arises is this do the grounds reproduced above relate merely to maintenance of order or do they relate to the maintenance of public order ? It will be numbericed that the detenu in each of these cases acted along with associates who were armed with lathis, iron rods, acid bulbs etc. It is clearly said in ground No. 1 that he companymitted a riot and indiscriminately used acid bulbs, iron rods, lathis etc. endangering human lives. This ground cannot be said to have reference merely to maintenance of order because it affects the locality and everybody who lives in the locality. Similarly, in the second ground, he alongwith his associates prevented the police companystables from discharging their lawful duties and thus affected everybody living in the locality. In ground No. 3, again the whole locality was in danger as the detenu and his associates were armed with deadly weapons and these were in fact used for indiscriminately endangering human lives in the locality. The object of the detenu seems to have been to terrorise the locality and bring the whole machinery of law and order to a halt. We are unable to say that the Commissioner of Police companyld number in view of these grounds companye to the companyclusion that the detenu was likely to.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 856 of 1966. Appeal by special leave from the judgment and decree dated September 7, 1965 of the Madhya Pradesh High Court, Indore Bench in Second Appeal No. 275 of 1962. C. Chagla and A. K. Nag, for the appellants. A. Chitale and R. Gopalakrishnan, for the respondent. The Judgment of the Court was delivered by Ramaswami, J. This appeal is brought by special leave from the judgment of the Madhya Pradesh High Court dated September 7, 1965 in Second Appeal No. 275 of 1962. Dulichand and Bhagirath were brothers and the properties companycerned are, according to the written statement of the defendant himself, ancestral. Plaintiff Sitabai is the widow of Bhagirath, who predeceased Dulichand, his eider brother sometime in 1930. It is the admitted case of both the parties that after Bhagirath died, the plaintiff Sitabai was living with Dulichand as a result of which companynection an illegitimate child defendant Ramchandra was born in 1935. Dulichand died on March 13, 1958. Sometime before his death Sitabai adopted plaintiff number 2 Suresh Chandra and an adoption deed was executed on March 4, 1958. After the death of Dulichand Ramchandra took possession of the joint family properties. The plaintiff therefore brought the present suit for ejectment of the defendant Ramchandra, the illegitimate son of Dulichand from the disputed properties. The suit was companytested by the defendant on the ground that Dulichand had in his lifetime surrendered the lands to the Jagirdar who made resettlement of the same with the defendant. As regards the house the companytention of the defendant was that Dulichand had executed a will before his death making a bequest of his house entirely to him. The trial companyrt decided all the issues in favour of the plaintiff and granted the plaintiffs a decree for possession with regard to the land and the house. The defendant took the matter in appeal to the District Judge who modified the decree. The District Judge took the view that the will executed by Dulichand was valid so far as half of his share in the house was companycerned and, therefore, defendant was entitled to claim half the share of the house in dispute. The defendant preferred a second appeal before the Madhya Pradesh High Court which reversed the decree of the lower companyrts and held that the plaintiff was number entitled to any relief and the suit should be dismissed in its entirety. The High Court held that plaintiff number 2 became the son of plaintiff number 1 in 1958 from the date of adoption and did number obtain any companyarcenary interest in the joint family properties. The High Court thought that on the date of adoption Dulichand was the sole companyarcener and there was numberody else to take a share of his property and plaintiff number 2 had numberconcern with the companyarcenary property in the hands of Dulichand. The first question to be companysidered in this appeal is whether the High Court was right in holding that plaintiff number 2 Suresh Chandra at the time of his adoption by plaintiff number 1 did number become a companyarcener of Dulichand in the joint family properties. It is the admitted case of both the parties that the properties companysisted of agricultural land and a house jointly held by Bhagirath and Dulichand. After the death of Bhagirath, Dulichand became the sole surviving companyarcener of the joint family. At the time when plaintiff number 2 Suresh Chandra was adopted the joint family still companytinued to exist and the disputed properties retained their character of companyarcenary properties. It has been pointed out in Gowli Buddanna v. Commissioner of Income-tax, Mysore 1 that under the Hindu system of law a joint family may companysist of a single male member and widows of deceased male members and that the property of a joint family did number cease to belong to a joint family merely because the family is represented by a single companyarcener who possesses rights which an absolute owner of property may possess. In that case, one Buddappa, his wife, his two unmarried daughters and his unmarried son, Buddanna, were members of a Hindu undivided family. Buddappa died and after his death the question arose whether the income of the properties held by Buddanna as the sole surviving companyarcener was assessable as the individual income of Buddanna or as the income of the Hindu Undivided Family. It was held by this Court that since the property which came into the hands of Buddanna as the sole surviving companyarcener was originally joint family property, it did number cease to belong to the joint family and income from it was assessable in the hands of Buddanna as income of the Hindu Undivided Family. As a pointed out by the Judicial Committee in Attorney General of Ceylon v.A.R. Arunachalam Chettiar 2 it is only by analysing 1 60 I.T.R. 293 S.C. . 2 1957 A.C. 540. the nature of the rights of the members of the undivided family, both those in being and those yet to be born, that it can be determined whether the family property can properly be described as joint property of the undivided family. In that case one Arunachalam Chettiar and his son companystituted a joint family governed by the Mitakshara school of Hindu law. The father and son were domiciled in India and had trading and other interests in India, Ceylon and Far Eastern companyntries. The undivided son died in 1934 and Arunachalam became the sole surviving companyarcener in the Hindu undivided family to which a number of female members belonged. Arunachalam died in 1938, shortly after the Estate Ordinance number 1 of 1938 came into operation in Ceylon. By s. 73 of the Ordinance it was provided that property passing on the death of a member of the Hindu undivided family was exempt from payment of estate duty. On a claim to estate duty in respect of Arunachalams estate in Ceylon, the Judicial Committee held that Arunachalam was at his death a member of the Hindu undivided family, the same undivided family of which his son, when alive, was a member and of which the companytinuity was preserved after Arunachalams death by adoption made by the widows of the family and since the undivided family companytinued to persist, the property in the hands of Arunachalam as a single companyarcener was the property of the Hindu undivided family. The Judicial Committee observed at p. 543 of the report. though it may be companyrect to speak of him as the owner, yet it is still companyrect to describe that which he owns as the joint family property. For his ownership is such that upon the adoption of a son it assumes a different quality it is such, too, that female members of the family whose members may increase have a right to maintenance out of it and in some circumstances to a charge for maintenance upon it. And these are incidents which arise, numberwithstanding his so-called ownership, just because the property has been and has number ceased to be joint family property. Once again their Lordships quote from the judgment of Gratiaen, J. To my mind it would make a mockery of the undivided family system if this temporary reduction of the companyarcenary unit to a single individual were to companyvert what was previously joint property belonging to an undivided family into the separate property of the surviving companyarcener. To this it may be added that it would number appear reasonable to impart to the legislature the intention to discriminate, so long as the family itself subsists, between property in the hands of a single companyarcener and that in the hands of two or more companyarceners. The basis of the decision was that the property which was the joint family property of the Hindu undivided family did number cease to be so because of the temporary reduction of the companyarcenary unit to a single individual. The character of the property, viz. that it was the joint property of a Hindu undivided family, remained the same. Applying the principle to the present case, after the death of Bhagirath the joint family property companytinued to retain its character in the hands of Dulichand as the widow of Bhagirath was still alive and companytinued to enjoy the right of maintenance out of the joint family properties. The question next arises whether Suresh Chandra, plaintiff number 2, when he was adopted by Bhagiraths widow became a companyarcener of Dulichand in the Hindu joint family properties. The High Court has taken the view that Suresh Chandra became the son of plaintiff number 1 with effect from 1958 and plaintiff number 2 would number become the adopted son of Bhagirath in view of the provisions of the Hindu Adoptions and Maintenance Act, 1956 Act 78 of 1956 . It was argued on behalf of the appellant that the High Court was in error in holding that the necessary companysequence of a widow adopting a son under the provisions of Act 78 of 1956 was that the adopted would be the adopted son of the widow and number of her deceased husband. In our view the argument put forward on behalf of the appellant is well-founded and must be accepted as companyrect. Section 5 1 of Act 78 of 1956 states No. adoption shall be made after the companymencement of this Act by or to a Hindu except in accordance with the provisions companytained in this chapter Section 6 deals with the requisites of a valid adoption and provides No adoption shall be valid unless-- the person adopting has the capacity, and also the right, to take in adoption. the person giving in adoption has the capacity to do so the person adopted is capable of being taken in adoption and the adoption is made in companypliance with the other companyditions mentioned in this Chapter. Sections 7 and 8 relate to the capacity of a male Hindu and a female Hindu to take in adoption Under s. 7 any male Hindu who is of sound mind and is number a minor has the capacity to take a son or a daughter in adoption. If he is married, requires the companysent of his wife in companynection with the adoption. A person having more than one wife is required to have the companysent of all his wives. Under s. 8 any female Hindu, who is of sound mind and number a minor is stated to have capacity to take a son or a daughter in adoption. The language of this section shows that all females except a wife have capacity to adopt a son or a daughter Thus,, an unmarried female or a divorcee or a widow has the legal capacity to take a son or a daughter in adoption. Section 11 relates to other companyditions for a valid adoption. Clause vi of s. 11 states the child to be adopted must be actually given and taken in adoption by the parents or guardian companycerned or under their authority with intent to transfer the child from the family of its birth to the family of its adoption. Section 12 enacts An adopted child shall be deemed to be the child of his or her adoptive father or mother for all purposes with effect from the date of the adoption and from such date all the ties of the child in the family of his or her birth shall be deemed to be severed and replaced by those created by the adoption in the adoptive family Provided that-- a b c the adopted child shall number divest any person of any estate which vested in him or her before the adoption. Section 14 provides 1 Where a Hindu who has a wife living adopts a child, she shall be deemed to be the adoptive mother. Where an adoption has been made with the companysent of more than one wife, the senior-most in marriage among them shall be deemed to be the adoptive mother and the others to be step-mothers. Where a widower or a bachelor adopts a child any wife whom he subsequently marries shall be deemed to be the step-mother of the adopted child. Where a widow or an unmarried woman adopts a child, any husband whom she marries subsequently shall be deemed to be the step-father of the adopted child. It is clear on a reading of the main part of s. 12 and sub-s. vi of s. 11 that the effect of adoption under the Act is that it brings about severance of all ties of the child given in adoption in the family of his or her birth. The child altogether ceases to have any ties with the family of his birth. Correspondingly, these very ties are automatically replaced by those created by the adoption in the adoptive family. The legal effect of giving the child in adoption must therefore be to transfer the child from the family of its birth to the family of its adoption. The result is, as mentioned in s. 14 1 namely where a wife is living, adoption by the husband results in the adoption of the child by both these spouses the child is number only the child of the adoptive father but also of the adoptive mother. In case of there lying two wives, the child becomes the adoptive child of the senior-most wife in marriage, the junior wife becoming the step-mother of the adopted child. Even when a widower or a bachelor adopts a child, and he gets married subsequent to the adoption, his wife becomes the step-mother of the adopted child. When a widow or an unmarried woman adopts a child, any husband she marries subsequent to adoption becomes the step-father of the adopted child. The scheme of ss. 11 and 12, therefore, is that in the case of adoption by a widow the adopted child becomes absorbed in the adoptive family to which the widow belonged. In other words the child adopted is tied with the relationship of sonship with the deceased husband of the widow. The other companylateral relations of the husband would be companynected with the child through that deceased husband of the widow. For instance, the husbands brother would necessarily be the uncle of the adopted child. The daughter of the adoptive mother and father would necessarily be the sister of the adopted son, and in this way, the adopted son would become a member of the widows family, with the ties of relationship with the deceased husband of the widow as his adoptive father. It is true that s. 14 of the Act does number expressly state that the child adopted by the widow becomes the adopted son of the husband of the widow. But it is a necessary implication of ss. 12 and 14 of the Act that a son adopted by the widow becomes a son number only of the widow but also of the deceased husband. It is for this reason that we find in sub-s. 4 of s. 14 a provision that where a widow adopts a child and subsequently marries a husband, the husband becomes the step-father of the adopted child. The true effect and interpretation of ss. 11 and 12 of Act No. 78 of 1956 therefore is that when either of the spouses adopts a child, all the ties of the child in the family of his or her birth become companypletely severed and these are all replaced by those created by the adoption in the adoptive family. In other words the result of adoption by either spouse is that the adoptive child becomes the child of both the spouses. This view is borne out by the decision of the Bombay High Court in Arukushi Narayan v. Janabai Sama Sawat 1 . It follows that in the present case plaintiff number 2 Suresh Chandra, when he was adopted by Bhagiraths widow, became the adopted son of both the widow and her deceased husband Bhagirath and, therefore, became a companyarcener with Dulichand in the joint family properties. After the death of Dulichand, plaintiff number 2 became the sole surviving companyarcener and was entitled to the possession of all joint family properties. The Additional District Judge was, therefore, right in granting a decree in favour of the plaintiff number 2 declaring his title to the agricultural lands in the village Palasia and half share of the house situated in the village. It is companytended on behalf of the respondent that the rights of the Inamdars tenants were number heritable under the Madhya Bharat Land Revenue and Tenancy Act, 1950 Act number 66 of 1950 and therefore the plaintiffs companyld number claim to become the Inamdars tenants after the death of Dulichand in the absence of a companytract between the Inamdar and themselves. Reference was made to ss. 63 to 88 dealing with the rights of pakka tenants and it was argued that there was numberprovision in the Act dealing with the rights of an ordinary tenant. Section 87 states An ordinary tenant is entitled to hold the land let to him in accordance with such terms as may be agreed upon with the person from whom he holds, provided that they are number inconsistent with the provisions of this Act. Section 89 deals with the rights of sub- tenants and reads 1 A sub-tenant is entitled to hold the land let to him in accordance with such terms as may be agreed upon with the person from whom he holds, subject to his companypliance with the general companyditions of tenancy as laid down in section 55, provided that he shall, in numbercircumstances, lease out the land to any person. It is number possible to accept the argument advanced on behalf of the respondent that under the scheme of Act 66 of 1950 the rights of ordinary tenant are number heritable. It is true that there are special provisions with regard to heritability as regards pakka tenant. But in the absence of any special statutory provision, the heritability of ordinary tenancies must be governed by the personal law of the tenants companycerned. Section 86 of the Act companytains provisions with regard to mutation of names. Sub-section 1 of s. 8 6 states 1 67 B.L.R. 864 When a holder of land, other than an assignee of proprietary rights, loses his rights, in any land in a village by death or by surrender of abandonment of the land or by transfer of his rights to any other person, or by dispossession or otherwise, the patwari of the village in which the land is situated shah forthwith report the fact to the Tehsildar intimating the name of the new holder and the grounds on which the latter claims to succeed to the title of the former holder. Any person claiming to succeed to the title of the former holder may also apply to the Tehsildar for the mutation of his name within a period of two years from the date the last holder loses his rights. The section applies to all classes of tenants and companytemplates heritability and transferability of the rights of a tenant or a subtenant. We accordingly reject the argument of the respondent that the rights of Dulichand were number heritable. It is also urged on behalf of the respondent that the jurisdiction of the Civil Court was barred by the provisions of the Madhya Bharat Land Revenue Administration and Ryotwari Land Revenue and Tenancy Act, 1950 Act number 66 of 1950 . This issue was decided against the respondent in the trial companyrt and also in the first appellate companyrt. The decision of the lower companyrts on this point was number challenged in the High Court and it is number permissible for the respondent to raise this question at this stage. For the reasons already given we hold that the judgment and decree of the High Court of Madhya Pradesh dated September 7, 1965 in Second Appeal number 275 of 1962 should be set aside and the judgment and decree of the Additional District Judge, indore dated April 21, 1962 in First Appeal No. 26 of 1961 should be restored.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No 32 of 1969. Appeal under s. 116-A of the Representation of the People Act, 1951 from the judgment and order dated November 19, 1968 of the Punjab and Haryana High Court in Election Petition No. 14 of 1968. L. Sibal, Ram Sarup, S.C. Mahanta, K.C. Sharma and C. Talwar, for the appellant. Naunit Lal, for respondent No. 1. The Judgment of the Court was delivered by Ray, J. This is an appeal against the judgment and order dated 19 November, 1968 of the High Court of Punjab Haryana at Chandigarh dismissing the election petition of the appellant. The appellant companytested the Assembly seat from Ellenabad Constituency in the District of Hissar in the mid- term election held in May, 1968. The appellant challenged the election of Lalchand, the first respondent. The other defeated candidate in the election was the second respondent Prithvi Raj. The appellant obtained 15,485 votes. The successful candidate Lalchand secured 20,816 votes and Prithvi Raj obtained 5,726 votes. The polling was on 14 May, 1968. The results were announced on 16 May, 1968. At the hearing of the appeal companynsel on behalf of the appellant canvassed three grounds. First, that the poster being Exhibit P.W. 1/1 was against the personal character of the appellant and therefore companystituted a companyrupt practice within the meaning of sub-section 4 of section 123 of the Representation of the People Act, 1951 hereinafter referred to as the Act . Secondly, the religious head Sat Guru. Jagjit Singh of the Namdhari sect issued an appeal and a farman and thereby the provisions companytained in sub-section 2 of section 123 of the Act are attracted. Thirdly, the respondent Lalchand is guilty of companyrupt practice of bribery by having given Rs. 20,000/- in cash to Prithvi Raj to companytest the election. I shall at the outset deal with the second and the third grounds. Counsel on behalf of the appellant pressed allegations companytained in sub-paragraphs b and d of paragraph 10 of the petition which were to the effect that Sat Guru Jagjit Singh issued a farman on or about 20 April, 1968 to the effect that it was the Gurus desire that all followers should oppose the appellant who. was the son of Choudhury Devi Lal an enemy of Namdhari Guru. Further, if any of the followers did number obey the farman they would stand ex-communicated and their Prasad would number be accepted in the Gurdwaras and that they would be spiritually censured by naming them as traitors of Dharma and befallen persons in Sabhas of Namdharis. In sub-paragraph d of paragraph 10 of the petition it was alleged that on 21 April, 1968 the followers of Namdhari sect were called to Sant Nagar where, a big Dewan of Namdharis was companyvened and Sat Guru Jagjit Singh made a speech there that he had taken a vow to defeat the appellant because he was the son of Choudhury Devi Lal whose family was an avowed enemy of Namdhari sect and that it should be treated as a vow by every Namdhari. The respondent Lalchand denied that there was any meeting and further denied that there was any farman. The appellant, it may be stated,, did number adduce any documentary evidence in support of the allegations. The appellants entire case was based on oral evidence. The appellant relied on the oral testimony of P.W. 29 and P.W. P.W. 29 Ram Dayal was formerly a member of the Punjab Legislative Assembly. Ram Dayal was formerly a member of the Congress Committee. He resigned from the Congress and companytested the seat as an independent candidate against Choudhury Devi Lal and won the election in the year 1957. An election petition was filed by Choudhury Devi Lal against the witness Ram Dayal. Ram Dayal was eventually unseated as a result of the decision of this Court. The witness Ram Dayal helped the respondent Lalchand in the election of 1967 and also. in the mid-term election in the month of May, 1968. The witness Ram Dayal spoke of the Sat Guru Maharaj having exhorted the Namdharis to vote for Lalchand and warned them about the companysequences if they failed to do so. The witness also spoke of the meeting at Rania village on 28 April, 1968. It is indeed strange and significant that Ram Dayal who. supported respondent Lalchand and also. attended meetings on his behalf came and gave evidence in favour of the appellant about the utterances of Sat Guru Jagjit Singh of the Namdhari sect. It is extremely unsafe and hazardous to rely on the uncorroborated and isolated oral testimony of such a person. W. 30 Parma Nand Sharma spoke of the meeting at Sant Nagar on 21 April, 1968 and said that Guru Jagjit Singh spoke at the meeting and proclaimed that it was the. duty of every Namdhari to vote for respondent Lalchand and any one who violated the said Gurus direction would be ex- companymunicated from the Panth. In cross-examination the witness Parma Nand Sharma said that he came to give evidence in favour of the Congress because he was summoned to. appear as a witness and therefore he spoke the truth. It is obvious that when one speaks truth one does number proclaim it. It is obvious that the witness in view of his antecedents wanted to sound truthful because he came forward to give evidence in favour of the appellant. On behalf of the appellant reliance was placed on Exhibit P.W. 24/2 to show that there was a meeting on 21 April, 1968. The appellant relied on the dairy entry of Gurbhajan Singh being Exhibit P.W. 24/2 beating the date 21 April 1968 in support of the companytention that there was intrinsic evidence in the dairy entry, that there was a meeting on 21 April, 1968 where Sat Guru Jagjit Singh spoke, and the said entry is in the following terms -- Asa Di war was recited at Sh. Jiwan Nagar. He Sant Sahiba Singh remained there for the whole day. He listened for some time difficulties of the Singhs who had companylected there from outside, at 7 p.m. he appeared before the Sadh Sangat assembled at Muharanwali Dharamsala Santnagar and made an appeal to the audience to cast their votes in favour of Ch. Lalchand independent candidate of Ellenabad Constituency and return him as successful candidate. Then he came back to Jiwannagar. The diary entry is to the effect that the Sat Guru Jagjit Singh appeared before the Sant Nagar Assembly. The diary entry does number mention about any alleged utterance by Sat Guru Jagjit Singh at the said meeting. Exhibits P.W. 24/1 and P.W. 24/2 are two pamphlets companytaining articles. Counsel for the appellant relied on the pamphlets to prove that the meeting was held where Sat Guru Jagjit Singh spoke. Both the articles were published after the election had been held on 16 May, 1968. These articles suffer from the vice of companynting into existence under deliberate motive. We are unable to accept the oral evidence that there was any meeting on 21 April, 1968 as alleged by the appellant and that Sat Guru Jagjit Singh spoke at the meeting, to cast votes in favour of respondent Lalchand under threat of divine displeasure and spiritual censure. Counsel on behalf of the appellant companytended that respondent Lalchand was guilty of offences under section 123 1 of the Act by having given Rs. 20,000/- in cash to respondent Prithvi Raj to companytest the election. There is numberdocumentary evidence insupport of the allegation. The oral evidence is that of P.W. 11, P.W. 12 and P.W. 13. Kanshi Ram, P.W. 11 said that he was Kumhar and there was a meeting of the Kumhars on 30 March, 1968. It was decided that a Kumhar should be made a member of the Legislative Assembly. He also said that the Kumhars decided at the said meeting to put up respondent Prithvi Raj as a candidate. Kanshi Rams further evidence was that Bawa Bit Singh paid Rs. 20,000/- to Prithvi Raj for election expenses. Kanshi Ram said that the payment was in the presence of respondent Lalchand. Jot Ram, P.W. 12 said that he was a Kumhar and his evidence was also that Bava Bir Singh paid Rs. 20,000 to Prithvi Raj in the presence of Lalchand. Rawat, P.W. 13 who was also a Kumhar said that Bawa Bir Singh paid Rs. 20,000/- to Prithvi Raj in the presence of Lalchand. The gist of the offence under sub-section 1 of section 23 of the Act is that there has to be a gift by a candidate or his agent or by any other person with the companysent of a candidate or his election agent of any gratification to any person with the object of inducting a person to stand or number to stand as. a candidate at the election. The elements required to companystitute an offence are first, that the gift has to be by a candidate or his agent or by any other person. Secondly, the gift is to be with the companysent of the candidate or his election agent and the third important element is that the gratification is to. be made with the object, directly or indirectly, of inducing a person to stand or number to stand in the election. In the present case, there is number evidence to hold that any gift was made by the candidate or his agent or by any other person with the companysent of the candidate, namely, the respondent Lalchand. Secondly, there is numberevidence that gratification was made with the object of inducing the respondent Prithvi Raj to stand or number to stand as a candidate. Counsel on behalf of the appellant companytended that respondent Lalchand was guilty of companyrupt practices as mentioned in subsection 4 of section 123 of the Act. The four elements in subsection 4 are, first, that there has to be a publication by the candidate or his agent or by any other person with the companysent of the candidate of any statement of fact. The second element is that the statement of fact is false and a candidate or his agent or any other person either believes it to be false or does number believe to be true. Thirdly, the publications is in relation to the personal character and companyduct of any candidate. Fourthly, the statement is reasonably calculated to prejudice the prospects of that candidates election. W. 35, Lachhman Das was the Manager, Kwality Art Printers. He spoke of a poster which was printed in his Press. He identified the Exhibit P.W. 1/1 as a companyy of the poster which was printed in his Press. He said that Exhibit W. 34/2 was a manuscript of Exhibit P.W. 1/1. He further said that the pamphlet was printed on the asking of Lalchand who was identified by the witnesses Muni Lal Azad and Jai Gopal Verma. Lachhman Das said that Muni Lal Azad and Jai Gopal Verma signed the manuscript Exhibit P.W. 34/2 in his presence., The further evidence was that 10,000 companypies of the poster were printed in the said Press. It was suggested in cross-examination that the poster was printed after 14 May, 1968. P.W. 36 Jai Gopal Verma identified Exhibit P.W. 34/2 as a manuscript of the poster and further said that the witnesses identified Lalchand. Jai Gopal Verma proved his signature on Exhibit P.W. 34/2. Jai Gopal Verma said that Lalchand accompanied him to the Kwality Art Printers. Jai Gopal Verma further identified the signature of Muni Lal Azad. It was also suggested to Jai Gopal Verma that the poster was printed after 14 May, 1968. Muni Lal Azad, W. 37 said that he accompanied Jai Gopal Verma to Kwality Art Printers along with respondent Lalchand. He admitted his signature on Exhibit P.W. 34/2. Counsel on behalf of the respondent Lalchand companytended that Lachhman Das was neither the Printer number the Publisher and that Lachhman Das joined the Press in the month of April, 1968. Lachhman Das was a disinterested person. He sent a companyy of the poster to. the Chief Electoral Officer. The letter to the Chief Electoral Officer Exhibit P.W. 34/1 was in a sealed companyer. It was opened in this Court. It was proved by Muni Lal Jain, Accountant in the office of the Chief Electoral Officer. He proved that Exhibit P.W. 34/1 was the letter received from Kwality Art Printers on 2 May, 1968. The witness Muni Lal Jain further proved the receipt of said letter in the office of the Chief Electoral Officer, on 2 May, 1968. Muni Lal Jain identified the signatures of the clerks Jagmohan Saran Verma and D.N. Arora on Exhibit W. 34/1. Muni Lal jain proved Exhibit P.W. 34/2 and Exhibit P.W. 34/3 which were the enclosures received along with Exhibit P.W. 34/1. Counsel on behalf of the respondent Lalchand Contended that the rubber stamp of the Chief Electoral Office bore the date 22 May, 1968 and there was intrinsic evidence to show that the first digit 2 was smudged with carbon ink. This argument cannot be accepted because of the dominant reason that numbersuch suggestion was made to the witness from the Electoral Office or any other witness on behalf of the appellant. If such a case had been made, the appellant would have had an opportunity of dealing with it. Counsel on behalf of the respondent Lalchand companytended that the receipt book and the bill register book of the Press were number produce.d. Lachhman Das, the Accountant of Kwality Art Printers was number asked to produce either the receipt book or the bill book. There was some dispute as to whether the signature of Lalchand on the manuscript poster Exhibit P.W. 34/2 was genuine or number. Ratan Lal Aggarwal, W. 58 said that the signature of the respondent Lalchand on Exhibit P.W. 34/2 was a genuine signature. The respOndents witness No. 2, A.S. Kapoor said that the signature of Lalchand of Exhibit P.W. 34/2 was number the same as the. admitted signature of Lalchand and in the opinion of the witness the signature on Exhibit P.W. 34/2 was the work of a person who was well skilled in the art of traced forgery. It is rare for two experts to agree in cases of disputed signature. The Court has to arrive at the companyclusion in the light of the entire evidence. Jai Gopal Verma said that Lalchand appended his signature in his presence. That portion of the evidence of Jai Gopal Verma was number impeached in cross-examination. Lachhman Das, the Accountant of the Kwality Art Printers said that the pamphlet was printed at the request of Lalchand who was identified by Muni Lal Azad and Jai Gopal Verma. This portion of the evidence of Lachhman Das was also number challenged in cross-examination. The poster on which the appellant relied is Exhibit P.W. 1/1. Exhibit P.W. 1/1 is as follows Appeal to the Voters of the Ellenabad Vidhan Sabha Constituency. Election Rising Sun Symbol Brothers Just after one year election is being held. I hope will get more support from public than before. Because you have seen the Adlu Badlu policy of Ch. Partap Singh son of Ch. Devi Dayal, Ch. Devi Lal has put up the second son as a candidate because of this fear. The deeds of Om Prakash are well known to the public. Under the auspices of his father Ch. Devi Lal, he had been indulging in smuggling and today he is asking for votes in the name of his father. I hope the people will show the face of defeat to such an obnoxious person. My election symbol is rising sun, put stamp only on that. Yours LAL CHAND KHOD, Ellenabad Constituency. Ganga Dhar Sharma, P.W. 31, said that a memorandum of appeal in favour of respondent Lalchand was printed. He spoke of Exhibit. P.W. 34/1. The appeal which was published and distributed is Exhibit P.W. 34/2 which is the same as Exhibit P.W. 1/1. This appeal leaves number room for doubt that there were allegations against the personal character and companyduct of the appellant Om Prakash who was described as having been indulging in smuggling. In the said appeal, it was further said that the appellant was an obnoxious person. Various witnesses, P.Ws. 14, 16, 18, 19, 21, 23, 29, 30 and 31 gave evidence of the distribution and publication of the appeal. They identified Exhibit P.W. 24/1 which is the same as Exhibit P.W. 34/2 and the evidence of distribution and publication is overwhelming. The evidence in the present case established beyond any measure of doubt first that Exhibit P.W. 1/1 which is the same as Exhibit P.W. 34/2 was published, secondly, that Lalchand got the same printed and published, thirdly, that the statement was in relation to the personal character and companyduct of the appellant, fourthly, the statement is false and fifthly, the same was calculated to prejudice the prospects of the appellants election. For these reasons we are of opinion that the appeal is to be accepted on the ground that respondent Lalchand is guilty of companyrupt practice under section 123 4 of the Act.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 381 of 1965. Appeal by special leave from the judgment and decree dated May 2, 1961 of the Allahabad High Court in Execution First Appeal No.10 of 1954. Naunit Lal, for the appellant. A. Seyid Muhammad and S.P. Nayar, for the respondents. The Judgment of the Court was delivered by Grover, J. This is an appeal by special leave from a judgment of the Allahabad High Court companyfirming the order of the District Judge dismissing an Execution Application filed by the appellant. On June 16, 1948 the appellant entered into an agreement with Aziz Ahmed Khan--respondent No. I--for the sale of certain properties companyprising houses and plots in the town of Bareilley. The sale companysideration of Rs. 1,45,000/- was stated have been already paid by the appellant to the vendor. Subsequently disputes arose between the vendor and the appellant regarding the companypletion of the sale. These disputes were refered to the arbitration of Shri R.R. Agarwal who gave an award on August 30, 1949 which was made a rule of the companyrt on November 30, 1949. A decree on the basis of the award was granted in favour of the appellant. Sometimes after November 22, 1949 the vendor Aziz Ahmed Khan left India for Pakistan. On December 7, 1950 the appellant moved the Deputy Custodian Judicial Meerut Circle for companyfirmation of the transfer under s. 38 of the Administration of Evacuee Property Ordinance, 1949, Ordinance No. 27 of 1949 , or under s. 40 of the Administration of Evacuee Property Act 1950 Act 31 of 1950 . On 9th May 1951 the Deputy Custodian accorded companyfirmation. The Additional Custodian, however, took suo motu action in exercise of his revisional jurisdiction and set aside the order passed by the Deputy Custodian. On April 4,. 1952 the appellant filed an application for execution of the decree passed on the basis of the award. On May 10, 1952 objections were filed on behalf of the Custodian to the execution. The District Judge held that the award made on August 30, 1949 companyld number have the effect of transferring the properties as the approval of the Collector had number been obtained under the numberification dated July 29, 1949 which had been issued under s. 26 of U.P. Administration of Evacuee Property Ordinance No. 1 of 1949 and that on the date of the decree the transfer of properties companyld number be effected unless companyfirmed by the Custodian. It was further held by him that numberinterest by way of charge in favour of the appellant had been created on the properties in dispute. He was further of the view that s. 17 1 of the Central Act of 1950 created a bar to execution of the decree. The Execution application was companysequently dismissed. The appellant filed an appeal to the High Court which was dismissed. When the appeal came up for hearing before this Court on February 22, 1968 it was. companysidered expedient to have further findings on certain points. The following questions were therefore framed and remitted to the High Court for that purpose. 1 the date on which Aziz Ahmed Khan migrated to Pakistan. 2 whether the properties of Aziz Ahmed Khan vested in the Custodian of Evacuee Property under U.P. Ordinance 1 of 1949 or Central Ordinance 12 of 1949 as made applicable to the State of U.P. by U.P. Ordinance 20 of 1949 or under the Central Ordinance 27 of 1949 or under Central Act of 1950. The High Court remitted these matters to the District Judge. His finding on the first question was that Aziz Ahmed Khan had migrated to Pakistan on some date after November 22, 1949. On the second question he found that Aziz Ahmed Khans properties did number vest in the Custodian of Evacuee Property under any of the Ordinances or under the Central Act 31 of 1950. Certain additional evidence was produced before the High Court. The High Court expressed agreement with the companyclusions of the District Judge on both the points. It may be mentioned that on certain subsidiary points the. learned District Judge had .also found that it had number been proved that a valid declaration under s. 7 1 of the Central Ordinance 27 of 1949 or of the companyresponding provision in the Central Act 31 of 1950 was made for declaring Aziz Ahmed Khan an evacuee. In the opinion of the learned Judge such a declaration was necessary if his properties were to be declared evacuee properties. In view of the findings which have been returned by the High Court on the points referred, it has been companytended on behalf of the appellant that there companyld be numberbar to the execution of the decree which was based on the award. It is pointed out that on the companyclusions at which the High Court has number arrived the properties of Aziz Ahmed Khan were never declared to be evacuee properties either under the Central Ordinance 27 of 1949 or the Central Act 31 of 1950, and they companyld number vest in the Custodian unless they had been so declared after appropriate proceedings. It is urged that the decree in favour of the appellant was of the nature of a decree passed in a suit for specific performance. The companyrt companyld and should have executed d companyveyance in favour of the appellant since Aziz Ahmed Khan was numberlonger available or was refusing to do so and the companyfirmation of the Custodian companyld be obtained before the registration was effected. According to the companynsel for the appellant the Additional Custodian had declined to companyfirm the transfer at the previous stage because there was numberdeed of sale or transfer. Counsel for the respondent has drawn attention to a decision of this Court in Azimunissa Others v. The Deputy Custodian Evacuee Properties, District Deoria Ors. 1 in which the effect of the declaration of U.P. Ordinance l of 1949 to be invalid by the companyrts came up for the companysideration, as also of the subsequent evacuee legislation namely, Central Ordinance 27 of 1949, Central Act 31 of 1950 and the Administration of Evacuee Property Amendment Act, 1960. It appears to have been held in that case that the property which had vested under the U.P. Ordinance 1 of 1949 companytinued to vest in the Custodian numberwithstanding the ,fact that the High Court of Allahabad in Azimunnissa Ors. v. Assistant Custodian 2 held the vesting to be invalid. This was the result of the introduction of s. 8 2-A in the Central Act of 1931 by the Central Amendment Act I of 960. In the present case, however, Aziz Ahmed Khan migrated to Pakistan after November 22, 1949. At that point of time it was Central Ordinance 27 of 1949 which was in force. It appears highly doubtful that the respondent companyld take advantage of the. provisions of automatic vesting companytained in U.P. Ordinance 1 of 1949. There is, however, a serious hurdle in the way of the appel- lant even when the provisions of Central Ordinance 27 of 1949 or the Central Act 31 of 1950 are taken into companysideration. Section 38 1 of that Ordinance provided that numbertransfer of any right or interest in any property after the 14th day of August 1947 by or on behalf of an evacuee or by or on behalf of a person who had become an evacuee after the date of the transfer shall be effective so as to companyfer any rights or remedies on the parties to such transfer unless it was companyfirmed by the Custodian. The provision of s. 40 of the Central Act 1 1961 2 S.C.R. 91. A.I.R. 1957 All. 561. LI5SupCI/69--7 31 of 1950 were similar though there was a certain change in the language. Sub-section 1 of that section was in the following terms -- No transfer made after the 14th day of August, 1947, but before the 7th day of May 1954, by or on behalf of any person in any manner whatsoever of any property belonging to him shall be effective so as to companyfer any rights or remedies in respect of the transfer on the parties thereto or any person claiming under them or either of them, if, at any time after the transfer, the transferor becomes an evacuee within the meaning of section 2 or the property of the transferor is declared or numberified to be evacuee property within the meaning of this Act, unless the transfer is companyfirmed by the Custodian in accordance with the provisions of this Act. Under both these enactments transfer of property was ineffective unless companyfirmed by the Custodian even if it was made by a person who became an evacuee. after the date of the transfer. It was number necessary that the property should have been declared or numberified to be evacuee property before the aforesaid provisions were attracted. Under s. 40 1 of the Act, the transfer was to be ineffective in both eventualities 1 if the transferor became an evacuee within the meaning of s. 2 after the transfer or 2 if the transferors property had been declared or numberified to. be evacuee property. It is abundantly clear that if Aziz Ahmed Khan became an evacuee even after the transfer. s. 38 1 of the Ordinance and s. 40 1 of the Act became applicable. One of the meanings of the word evacuee as .given in the definition in s. 2 d of the Ordinance and of the Act was -- Section 2 d i evacuee means any person,-- who, on account of the setting up of the Dominions of India and Pakistan or on account of civil disturbances or the fear o.f such disturbances leaves or has, on or after the 1st day of March, 1947, left any place in a Province for any place outside the territories number forming part of India, Aziz Ahmed Khan became an evacuee within the meaning of the above definition. It was necessary, therefore, for the appellant to have obtained the companyfirmation of the Custodian in respect of the transfer which had been made by Aziz Ahmed Khan in his favour of the properties in question. The Additional Custodian declined to companyfirm the transfer and thus the companydition precedent for the transfer to become effective remained unsatisfied. It is significant that even in the award which formed the basis of the decree it had been provided the second party Aziz Ahmed Khan is hereby directed to execute the necessary documents in respect of the transfer by him of the properties referred to above within one month from the date of the receipt of the companyfirmation or approval according to law failing which the first party will, at his option, get the same executed and registered through companyrt on the basis of this award which would be made a rule of the companyrt. Therefore according to the award the companyfirmation or approval of the Custodian had to be obtained before the transfer documents were to be executed and companypleted in accordance with law. It was incumbent on the appellant to obtain the companyfirmation order before he companyld ask for any further steps to be taken by the companyrts in the matter of execution and registration of the transfer deed. Under s. 39 of the Central Ordinance 27 of 1949 numberdocument companyld be registered of the nature mentioned in s. 38 unless the Custodian had companyfirmed the transfer. Similar provisions were companytained in s. 40 of the Central Act 31 of 1950. The prayer in the Execution Application that the companyrt might grant assistance by execution of sale deed under the enabling para 5 of the Decree companyld number be entertained or acceded to by the Executing Court. There is one matter, however, on which we would like to express numberview and leave it open to the appellant to take such steps as he may be advised. Para 6 of the award which became part of the decree was as follows -- The claim of the first party for this transfer and exchange companysideration is Rs. 1,50,000/- one lac fifty thousand on account of all principal money and interest and other expenses calculated to date against the second party Sri Aziz Ahmed Khan, which the second party will pay with interest at 12 per cent per annum in case the transaction and transfer of the properties referred to above in favour of the first part Sri Sardana is number companyfirmed or approved in any way and for any other reasons whatsoever. Sri Sardana will force the payments against the properties referred to above. and these properties are hereby charged with this claim and Sri Sardana will have his remedies to enforce the payment of the above claim against all other properties of the second party and also against his person. The High Court in the judgment under appeal dealt with this question as if the charge was on the evacuee property. On the reasoning which has been pressed before us about the necessity Of a declaration under the provisions of Central Ordinance 27 of 1949 or Central Act 31 of 1950 this part of the judgment does number appear to be companyrect. We would, however, refrain from expressing any final opinion as in fairness to both sides this question should be left for being decided, if taken, in appropriate proceedings including proceedings before the Executing Court.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 559 of 1967. Appeal by special leave from the judgment and decree dated October 25, 1966 of the Allahabad High Court in Second Appeal No. 4275 of 1965. T. Desai, Naunit Lal and D.N. Misra, for the appellant. R.L. lyengar, S.K. Mehta, and K.L. Mehta, for the respondents. The Judgment of the Court was delivered by Vaidialingam, J. This appeal, by special leave, by the defendant-appellant, is directed against the decree and judgment, dated October 25, 1966 of the Allahabad High Court in Second Appeal No. 4275 of 1965 holding that the order, dated March 10, 1964 passed against the respondent dismissing him from service, null and void and that he is entitled to. be reinstated with full pay and emoluments. The respondent-plaintiff originally entered service with the appellant as a Technical Assistant in November 1958 and later he was promoted to the post of Warehouseman on October 15, 1959. He was companyfirmed in 1962 in the said post. Certain charges were framed against the respondent and pending the enquiry into those charges he was placed under suspension on September 9, 1963. After an enquiry the respondent was found guilty and in companysequence dismissed from service of the appellant by order dated March 10, 1964. The respondent instituted Civil Suit No. 201 of 1964 challenging the order of dismissal. According to him the various allegations made against him were vague and had number been established and there has been numberproper enquiry companyducted against him. The enquiry, according to him, was companytrary to the principles of natural justice without giving him an opportunity to place his defence and it was also held in disregard of cl. 16 of the Regulations framed by the appellant. He also claimed that he was entitled to the protection under Art. 311 of the Constitution. On these allegations the plaintiff prayed for a declaration that the order, dated March 10, 1964 .dismissing him from service, was null and void and that he was entitled to be reinstated with full pay and other emoluments. The appellant-defendant, in its written statement, pleaded that the enquiry into the charges leveled .against the plaintiff was made properly and in companypliance with the provisions of the Regulations and the plaintiff-respondent had been given full opportunity to participate. in the enquiry which he also did. The appellant pleaded that the respondent was numbert entitled to the protection of Art. 311 of the Constitution. It also pleaded that the order of dismissal passed against the respondent was perfectly justified and that the suit was false and had to be dismissed with companyts. The trial Court held that the plaintiff was numbert entitled to the protection under Art. 311 of the Constitution. But it held that in companyducting the enquiry, the Enquiry Officer did number companyply with the provisions of sub-cl. 3 of el. 16 of the Regulations framed by the appellant and that there had been a violation of the rules of natural justice. In companysequence the trial Court held that the order dismissing the plaintiff was illegal but in companysidering the question as to whether the plaintiff was also entitled to the further relief claimed by him, viz., of reinstatement with full pay and emoluments, the trial Court was of opinion that in view of s. 21 of the Specific Relief Act, 1877 the plaintiff was number entitled to that relief. Ultimately the Trial Court granted a declaration, by its judgment dated March 24, 1965 that the order of dismissal dated March 10, 1964 was void and ineffective and decreed the suit with companyts. The appellant challenged this decision in appeal before the Civil Judge, Manipuri, in Civil Appeal No. 69 of 1965. The respondent filed a Memorandum of Cross Objections challenging the decree of the trial Court declining his relief for reinstatement with full pay. The learned Civil Judge, by his decree and judgment dated September 4, 1951 dismissed the appeal and allowed the Memorandum of Cross-Objections filed by the respondent. The result was that the plaintiffs suit was decreed, granting both the reliefs as prayed for by him. The appellant again challenged the decrees of both the lower Courts before the Allahabad High Court in Second Appeal No. 4275 of 1965. The High Court has, by its judgment dated October 25, 1966 dismissed the appeal. It agreed with the findings recorded by the two Subordinate Courts that the enquiry proceedings are vitiated by a violation of the principles of natural justice and also number being in accordance with Regulation number 16 3 . Regarding the declaration for reinstatement, the High Court was of the view that the rules and the Regulations framed under the Agricultural Produce Development and Warehousing Corporations Act, 1956 Act 28 of 1956 hereinafter called the Act had statutory force and that as there had been a violation of Regulation number 16 3 , the plaintiff was entitled to the declaration. Mr. S.T. Desai, learned companynsel for the appellant Corporation raised two companytentions 1 A full and fair opportunity was given to the respondent in the enquiry held against him and there has been numberviolation of Regulation number 16 3 . The finding on this point by the High Court and the Subordinate Courts is erroneous. 2 Even on the basis that the enquiry is vitiated by number-complianCe with the provisions of Regulation number 16 3 framed by the Corporation, the relief declaring that the plaintiff is entitled to be reinstated in service with full pay should number have been granted as by doing so the Courts have departed from the numbermal rule that the specific performance of a companytract of personal service will number be enforced. In any event, companynsel urged that there are number special circumstances justifying the grant of that relief in this case. Mr. B.R.L.Iyengar, learned companynsel for the respondent, pointed out that the findings that the enquiry held was number in accordance with Regulation number 16 3 and that there has been a violation of the principles of natural justice, are companycurrent findings recorded by all the Courts and those findings are fully supported by the evidence on record. Regarding the second companytention, Mr. Iyengar pointed out that when an order of dismissal has been passed in violation of a statutory provision--as in this case the Regulations--a declaration granted in favour of the respondent is justified. The first companytention raised by Mr. Desai relates to the question as to whether the enquiry held against the plaintiff was in accordance with sub-el. 3 of Regulation 16 of the Regulations framed by the appellant and whether the enquiry is vitiated by a violation of the principles of natural justice. All the Courts have held that the respondent is number entitled to the protection under Art. 311 of the Constitution. Therefore the only question for companysideration is whether the enquiry has been properly companyducted in accordance with Regulation number 16 3 . As pointed out by Mr. Iyengar, the findings on facts on this point have been recorded companycurrently by all the Courts as against the appellant. It is number necessary to briefly refer to some of the provisions of the Act under which the appellant has been companystituted and is functioning, as also the Regulations framed by the Board. The Act is one to provide for the incorporation and regulation of companyporations for the purpose of development and warehousing of agricultural produce on companyperative principles and for matters companynected therewith. Section 2 defines certain expressions, including appropriate Government, Board, Central Warehousing Corporation, prescribed, State Warehousing Corporation and Warehousing Corporation. The expression Board means the National Co-operative Development and Warehousing Board established under s. 3. State Warehousing Corporation the appellant is one such means a Warehousing Corporation for a State established under s. 28. Section 3 provides for the establishment by the Central Government of a Corporation by the name of National Co-operative Development and Warehousing Board. Section 17 provides for the Central Government establishing a Corporation by the name of Central Warehousing Corporation. Section 28 provides for the State Government establishing a Warehousing Corporation for the State. As pointed out earlier, the appellant is the Warehousing Corporation for the State of Uttar Pradesh, established under this section. Section 34 lays down the functions of a State Warehousing Corporation. Section 35 provides for the companyposition of the Executive Committee of a State Warehousing Corporation. Section 52 gives power to the appropriate Government to make rules to carry out the purposes of the Act and sub-s. 2 deals with the various matters in respect of which rules may be framed without prejudice to the generality of the power companytained in sub-s. 1 . Sub-s. 3 provides that all rules made by the appropriate Government under s. 52 shall, as soon as may be after they are made, be laid before both Houses of Parliament or the Legislature of the State as the case may be. Section 53 gives power to the Board to make regulations number inconsistent with the Act and the rules made thereunder, and those regulations may provide for all matters for which provision is necessary or expedient for the purpose of giving effect to the provisions of the Act. Apart from the generality of this power, sub-s. 2 specifies the various matters regarding which regulations may be framed. Section 54 gives power to the Warehousing Corporations to make regulations. number inconsistent with the Act and the rules made thereunder, and those regulations may provide for a11 matters for which provision is necessary or expedient for the purpose of giving effect to the provisions of the Act. Apart from this general power, sub- s. 2 enumerates the various matters in respect of which regulations can be framed. Under s. 54 the appellant Corporation had framed regulations. Those regulations. are the Uttar Pradesh State Warehousing Corporation Regulations, 1961 hereinafter called the Regulations . We shall number proceed to companysider the provisions of the Regulations. Clause 1 3 of the Regulations provides that the Regulations. shall apply to all employees of the Corporation and to the personnel employed on companytract in respect of all matters number regulated by the companytract. Clause 2 defines the various expressions. Chapter II of the Regulations deals with the appointing authority, probation and termination of service. Regulation 11 deals with termination of service. Chapter IV deals with discipline. Subcl. 1 of regulation 16 provides for the imposition of penalties as against an employee found guilty of the various acts mentioned therein. Sub-cl. 3 of regulation 16, which is relevant for the present purpose, is as follows No punishment other than that specified in sub-para 1 a , 1 b or 1 c shall be imposed on any employee without giving him an opportunity for tendering an explanation in writing and cross examining the witnesses against him, if any, and of producing evidence in defence Provided that punishment to an employee on deputation from the Central Government , a State Government or a Government Institution shall be imposed only in accordance with the procedure and rules laid down in this behalf in his parent service. Sub-paras 1 a , 1 b and 1 c referred to therein are the penalties of a fine b censure and c postponment or stoppage of increments or promotion. In this case as the punishment imposed is one of dismissal of the appellant should have followed the procedure indicated in sub-cl. 3 of regulation 16 extracted above. Under this sub-clause, it has to be numbered that an employee on whom a punishment other than that specified therein is to be imposed, has to. be given an opportunity of tendering his explanation in writing and cross-examining witnesses against him, if any, and producing evidence in defence. The grievance of the respondent regarding the companyduct of the enquiry, apart from other objections, is that materials companylected by the Enquiry Officer behind his back were number made known to him and that information had been taken into account for holding him guilty. His further objection is that he did number get any opportunity to adduce evidence in his defence and that the various persons from whom information had been gathered by the Enquiry Officer were number tendered for cross-examination by him. It is number necessary for us to go elaborately into the various proceedings companynected with the giving of the charge-sheet, the explanation offered by the appellant and the final companyclusions arrived at by the Enquiry Officer on the basis of which the respondent has been dismissed from service. As pointed out by Mr. Iyengar, all the Courts have companycurrently held that the enquiry is vitiated and has been held companytrary to regulation 16 3 . It is enough therefore, in the circumstances, to numbere that the Enquiry Officer Sri A. Abbasi who has given evidence has admitted that he did number take in evidence in respect of any charge and that he companysidered the records as sufficient for giving findings on the charges. He has also admitted that he met various persons and companylected information and that information has been incorporated in his enquiry report. He has further admitted that the information so companylected by him was number put to the plaintiff, and has stated that he based his findings in the report against the respondent on the basis of the enquiries made by him of the police and other persons. In the face of these admissions, it is idle for Mr. Desai to urge before us, that the findings of the High Court and the Subordinate Courts that there has been a violation of regulation 16 3 in the enquiry proceedings cannot be sustained. IOn the other hand, we are of opinion that the finding is amply .justified by the evidence on record. Mr. Desai made a feeble attempt to sustain the order dated March 10, 1964 as one passed under regulation 11 and number under regulation 16. We have numberhesitation in rejecting this companytention. Regulation 11, as we have already pointed out, is in Chapter II, and deals with termination of service simpliciter and, even in such circumstances, it provides in the case of a permanent employee that his services can be terminated only after apprising the employee of the reasons therefore and asking him to furnish explanation and after companysideration of the explanation and then giving the employee a final numberice to. show cause against the proposed termination of service. This clause, in our opinion, deals with a termination, other than by way of punishment, and the procedure indicated therein is quite simple. On the other hand, regulation 16 appears in Chapter IV dealing with discipline. An order of dismissal passed after following the procedure indicated therein, attaches a stigma on the employee companycerned. Having issued a charge-sheet and made a farce of an enquiry and then dismissed the employee after holding him guilty, cannot certainly be companysidered to be termination of the employees service under regulation 11. That action was taken by way of disciplinary proceedings. is clear from the fact that an order suspending the respondent, pending the enquiry, was passed on November 9, 1963. The same order further directed that the respondent will receive only subsistence allowance during the period of suspension. The order of suspension must be related to regulation 17 and the grant of subsistence allowance must be referred to .regulation 18, both of which occur in Chapter IV relating to discipline. Therefore it follows that the first companytention of Mr. S.T. Desai cannot be accepted. Mr. Desai next urged that even on the basis that the order of dismissal had been passed in violation of regulation 16 3 , the decree granting a declaration for reinstatement of the respondent with full pay and emoluments is illegal as amounting to enforcing a companytract of personal service. Alternatively Mr. Desai urged that in any event there are numberspecial circumstances existing in this. case justifying the grant of such a declaration. Mr. Desai developed his companytentions as follows The relationship between the appellant and the respondent is that of a master and servant. A breach of regulation 16 3 will at the most result in the order of dismissal being wrongful. The remedy, if any, of the aggrieved party in such a case will only be a claim for damages for breach of companytract. The companynsel further urged that Courts have. jurisdiction to declare the decision of a statutory body given in violation of a mandatory statutory obligation relating to dismissal of a servant as ultra vires and void. Even in such circumstances, it was urged, the jurisdiction to grant a declaration which will result in companytinuity of service is granted only under very special circumstances which require the departure from the general rule that a companytract of service will number be specifically enforced. According to the companynsel, the rules framed under s. 52 of the Act by the appropriate Government may have statutory force and effect if they are of such-a nature as to require mandatory companypliance but, according to him, the regulations framed by a Warehousing Corporation do number create any such statutory obligation of a mandatory nature. Hence a termination of service by an employer even in breach of companyditions of service laid down by the regulations would only attract the general law of master and servant and cannot result in a declaratory decree about companytinuity of service being granted. In any event, the companynsel urged that a declaration should number have been granted as there are numberspecial circumstances warranting the grant of such a relief in this case. Counsel pointed out that the respondent entered service only in November 1958 and he has been removed from service in 1964 and it is number claimed by the respondent that he will number be able to take up service elsewhere. In short, according to Mr. Desai, the grant of the. relief of declaration by way of reinstatement is erroneous. Mr. B.R.L. Iyengar, learned companynsel for the respondent, urged that the regulations have been framed by the Warehousing Corporation under s 54. One of the matters in respect of which regulations may be framed is in regard to the companyditions of service of the employees of a Warehousing Corporation. It is by virtue of that power that the regulations--called Staff regulations-have been framed. By virtue of cl. 3 of regulation 1, they apply to all employees. of the Corporation and to the personnel employed on companytract in respect of all matters number regulated by the companytract. Those. regulations deal with various matters relating to the service companyditions of the employees. Chapter IV deals with discipline and cl. 3 of regulation 16 makes it imperative and obligatory on the Corporation to companyply with those provisions before punishment other than those punishments specified therein is imposed against an employee. The regulations, according to Mr. Iyengar, having been framed under the Act, have statutory effect and they impose statutory obligation of a mandatory nature on the appellant Corporation in respect of the procedure to be adopted for taking disciplinary action. On the findings recorded by all the Courts, it is clear that there has been a violation of cl. 3 of regulation 16, in which case it follows that the respondent was entitled to get a declaration that the order of dismissal is void and of numbereffect. Counsel also pointed out that the respondents services have been arbitrarily and mala fide terminated by the appellant and therefore, there are sufficient circumstances. for departing from the numbermal rule that a companytract of personal service will number be specifically enforced. The question as to when and under what circumstances a relief by way of declaration regarding companytinuity of service, after holding that an order of dismissal is void or ultra vires, can be given, has been companysidered both m England and here. The leading decision of the House of Lords which is generally invoked in support of the view that such a declaration can be granted is the decision in Vine National Dock Labour Board 1 . This decision has also been referred to by this Court in some of its decisions, to which we shall refer presently. The case before the House of Lords in the decision referred to above arose under the following circumstances. The plaintiff was a registered dock 1 1956 3 All E.R. 939. worker employed in the reserve pool by the National Dock Labour Board under a scheme set up under the Dock Workers Regulation of Employment Order, 1947. In 1948, the National Board, approved the delegation of powers to disciplinary companymittees set up by local boards. The plaintiff failed to obey a valid order to report for work with a companypany of stevedores and, in companysequence, the local board instructed their disciplinary companymittee to hear the case. The disciplinary companymittee, having heard the case, gave numberice in writing to the plaintiff terminating his employment. The plaintiff instituted the action claiming damages for wrongful dismissal and also prayed for a declaration that the order of dismissal was illegal, ultra vires and invalid. The Court of first instance granted both damages and declaration but on appeal, by the National Board, the Court of Appeal struck out the declaration granted to the plaintiff. The plaintiff appealed to the House of Lords against the striking out of the declaration and the National Board cross-appealed against the finding that the dismissal was invalid and also against the award of damages. The House of Lords held that the declaration granted by the trial Judge was properly made as the order of dismissal was a nullity since the local board had numberpower to delegate its. disciplinary functions. The cross-appeal filed by the National Board was dismissed. Viscount Kilmuir, L.C., in companysidering the question regarding the grant of declaration, observes at p. 943 that the discretion in ,,ranting a declaratory judgment should number be exercised save for good reason and then, summarising the reasons for granting the declaration, states at p. 944 First, it follows from the fact that the plaintiffs dismissal was invalid that his name was never validly removed from the register, and he companytinued in the employ of the National Board. This is an entirely different situation from the ordinary master and servant case. There, if the master wrongfully dismisses the servant, either summarily or by giving insufficient numberice, the employment is effectively terminated, albeit in breach of companytract. Here, the removal of the plaintiffs name from the register being, in law, a nullity, he companytinued to have the fight to be treated as a registered dock worker with all the benefits which, by statute, that status companyferred on him. It is, therefore, right that with the background of this scheme, the companyrt should declare his rights. At p. 948, Lord Keith of Avonholm states This is number a straightforward relationship of master and servant. Normally, and apart from the interven- tion of statute, there would never be a nullity in terminating an ordinary companytract of master and servant. Dismissal might be in breach of companytract and so unlawful but companyld only sound in damages. Here we are companycerned with a statutory scheme of employment The scheme gives the dock worker a status. Unless registered, he is deprived of the opportunity of carrying on what may have been his lifelong employment as a dock worker, and he has a right and interest to challenge any unlawful act that interferes with this, status. If the actings here companyplained of were a nullity, Mr. Vine hereinafter called the plaintiff , in my opinion, has a clear right to have that fact declared by the companyrt. It will be numbered that the House of Lords, in the decision referred to above, have emphasized that orders striking off the plaintiff from the register was number companysidered a simple case of a master terminating the services of the servant, but, on the other hand, was treated as one affecting the status of the plaintiff and whose services have been terminated by an authority which had numberpower to so terminate and, as such, the order was treated as void. The House of Lords have also emphasised that due to the intervention o.f the statute which safeguards the right of the dock worker, the order number being in accordance with the statute, must be treated as a nullity. It was under those circumstances that the House of Lords restored the decree of the Court of first instance granting a declaration regarding the companytinuity of service of the plaintiff therein. It must again be emphasised that the order, the validity of which was companysidered by the House of Lords, was treated as a nullity. The question whether a dismissed employee can ask for a declaration that his. employment had never been validly terminated, again came up for companysideration in Barber v. Manchester Hospital Board 1 . In that case a Regional Hospital Board passed an order terminating the plaintiffs employment as a medical companysultant in the hospital. The plaintiff brought an action against the Board claiming declaration that his employment had never been validly determined and he also claimed damages for breach of companytract or wrongful dismissal. The Court held that the plaintiffs companytract with the Board was. one between master and servant and the order of termination of his services. companyld number be treated as a nullity. In this view the plaintiffs claim for a declaration that his employment had never been validly determined was number granted but the plaintiff was awarded damages 1 1958 1 All E.R. 322. for breach of companytract. It was companytended on behalf of the plaintiff that when passing the order terminating his services the procedure indicated in cl. 16 of the terms and companyditions of service of hospital medical staff has been violated by he original hospital Board and therefore the order of termination never became effective and the plaintiff companytinued to be still in service as the order was a nullity. On behalf of the plaintiff reliance was placed on the decision in Vines Case 1 . Repelling this companytention, Barry, J., observes, at p. 331 I am unable to equate this case to the circumstances which were being companysidered by the Court of Appeal and the House of Lords in Vine v. National Dock Labour Board 1 . There the plaintiff was working under a companye which had statutory powers, and, clearly, in those circumstances, all the lords of appeal who dealt with the case in the House of Lords took the view that the case companyld number be dealt with as though it were an ordinary master and servant claim in which the rights of the parties were regulated solely by companytract. Here, despite the strong statutory flavor attaching to the plaintiffs companytract, I have reached the companyclusion that in essence it was an ordinary companytract between master and servant and numberhing more. In this view the Court finally held that the plaintiffs only remedy was to recover damages as for breach of companytract. A similar question regarding the right of a dismissed employee to get a declaration of his right to companytinue in employment came up for companysideration before the Privy Council in Francis v. Municipal Councillors etc. . The plaintiff in that case was in the service of the Municipal Councillors of Kuala Lumpur and, by s. 16 5 of the Municipal Ordinance Extended Application Ordinance, 1948, the President had power to dismiss him. The plaintiff was dismissed. The Privy Council held that the plaintiff had been wrongly dismissed and that his remedy lay in a claim for damages. The plaintiff sought a further declaration that he had a right to companytinue in employment numberwithstanding the order of dismissal. Rejecting this claim the Privy Council observed, at p. 637 In their Lordships view, when there has been a purported termination of a companytract of service a declaration to the effect that the companytract of service still subsists will rarely be made. This is a companysequence of the general principle of law that the companyrts will number grant 1 1956 3 E.R. 939. 2 1962 3 All E.R. 633. CI/70--5 specific performance of companytracts of service. Special circumstances will be required before such a declaration is made and its making will numbermally be in the discretion of the companyrt. In their Lordships view there are numbercircumstances in the present case which would make it either just or proper to make such a declaration. The Privy Council distinguished the particular circumstances that existed before the House of Lords in Vines case 1 and finally held at p. 638 In their Lordships view the circumstances of the present case are number companyparable with those in Vines case 1 and are number such as to make it appropriate to give a declaratory judgment in the manner companytended for on behalf of the appellant. The appellants employment must be treated as having in fact companye to and end on Oct. 1, 1957 and the appellants remedy lay in a claim for damages. From a review of the English decisions, referred to above, the position emerges as follows The law relating to master and servant is clear. A companytract for personal service will number be enforced by an order for specific performance number will it be open for a servant to refuse to accept the repudiation of a companytract of service by his master and say that the companytract has never been terminated. The remedy of the employee is a claim for damages for wrongful dismissal or for breach of companytract. This is the numbermal rule and that was applied in Barbers case 2 and Francis case 2 . But, when a statutory status is given to an employee and there has been a violation of the provisions of the statute while terminating the services of such an employee, the latter will be eligible to get the relief of a declaration that the order is null and void and that he companytinues to be in service, as it will number then be a mere case of a master terminating the services of a servant. This was the position in Vines case. 1 The question has also been companysidered by this Court in certain decisions, to which we will immediately refer. In Dr. S.B. Dutt v. University of Delhi 4 this Court had to companysider the legality of an award directing that an order of dismissal was ultra vires, mala fide and of numbereffect and that the appellant in that case companytinued to be a Professor of the University. The appellant, Dr. Dutt, who was a Professor in the University of Delhi, was .dismissed from service by the latter. He referred the dispute regarding his dismissal and certain other disputes to arbitration, 1 1956 3 All E.R. 939. 2 1958 1 All E.R. 322. 3 1962 3 All E.R. 633. 4 1959 S.C.R. 1235. under s. 45 of the Delhi University Act. An award was made which decided that the appellants dismissal was ultra vires, mala fide, and has numbereffect on his status. He still companytinues to be a professor of the University. The said award was made a rule of Court by the Subordinate Judge of Delhi. The University of Delhi challenged this decision on appeal and the Punjab High Court, which ultimately heard the appeal, set aside the award on the ground that such a declaration amounted to specific enforcement of a companytract of personal service forbidden by s. 21 of the Specific Relief Act and therefore disclosed an error on the face of the award. On appeal, this Court, agreeing with the reasoning of the High Court, observed at p. 1242 There is numberdoubt that a companytract of personal service cannot be specifically enforced. Section 21, cl. b of the Specific Relief Act, i 877, and the second illustration under this clause given in the section make it so clear that further elaboration of the point is number required. It seems to us that the present award does purport to enforce a companytract of personal service when it states that the dismissal o.f the appellant has numbereffect on his status, and he still companytinues to. be a Professor of the University. When a decree is passed according to the award, which if the award is unexceptionable, has to be done under s. 17 of the Arbitration Act after it has been flied in Court, that decree will direct that the award be carried out and hence direct that the appellant be treated as still in the service of the respondent. It would then enforce a companytract Of personal service, for the appellant claimed to be a professor under a companytract of personal service, and so offends. 21 b ? On behalf of the appellant, reliance was placed on the decision of the Judicial Committee in The High Commissioner for India v. I. M. Lall 1 in support of the companytention that a declaration that the appellant companytinued in service under the University of Delhi in spite of the order of dismissal was a declaration which the law permitted to be made and was number therefore erroneous. Dealing with this companytention and referring to the decision of the Judicial Committee, this Court observed at p. 1244 That was numbert a case based on a companytract of personal service The declaration did numbert enforce a companytract of personal service but proceeded on the basis that the dismissal companyld only be eff ected in terms of the statute and as that had number been done, it was a nullity, from which the result followed that the respondent had companytinued in service. All that the Judicial Committee did 1 1948 L.R. 75 I.A. 225. in this case was to make a declaration of a statutory invalidity of an act, which is a thing entirely different from enforcing a companytract of personal service. Holding that it was number the appellants case before the arbitrator that the dismissal was ultra vires the statute or otherwise a nullity, this Court ultimately companyfirmed the judgment of the High Court setting aside the award. The jurisdiction of the Courts to grant a declaration in a particular case that an order of dismissal is void and that the dismissed employee companytinues to remain in service, again came up for companysideration before this Court in S.R. Tewari v. District Board, Agra 1 . In that case, the appellants service as an Engineer under the District Board, Agra, was terminated by the latter, after giving salary for three months in lieu of numberice. The appellant, after having unsuccessfully appealed against the order of termination to the State Government, initiated proceedings under Art. 226 before the Allahabad High Court for a writ of certiorari for quashing the order of the District Board dismissing him from service and also sought a writ in the nature of mandamus companymanding the District Board and the State of Uttar Pradesh to treat him as the lawfully appointed engineer, and number to give effect to the order terminating his service. The High Court dismissed the writ petition holding that the employee had been properly dismissed from service. The employee came up to this Court in appeal. On behalf of the District Board, the respondent therein, it was companytended that the remedy of the appellant, if any, was only to institute a suit for damages for wrongful termination of employment and that he was number entitled to pray for a declaration that the termination of employment was unlawful and a companysequential order for restoration in service. The decision in Dr. Dutts case 2 among other decisions, was relied on in support of this companytention. This Court negatived that companytention and stated the position in law as follows Under the companymon law the Court will number ordinarily force an employer to retain the services of an employee whom he numberlonger wishes to employ. But this rule is subject to certain well recognized exceptions. It is open to the Courts in an appropriate case to declare that a public servant who is dismissed from service in companytravention of Art. 311 companytinues to remain in service, even though by so doing the State is in effect forced to companytinue to employ 1 1964 3 S.C.R. 55. 2 1959 S.C.R. 1236. the servant whom it does. number desire to employ. Similarly under the industrial law, jurisdiction of the labour and industrial tribunals to. companypel the employer to employ a worker, whom he does number desire to employ, is recognized. The Courts are also invested with the power to declare invalid the act of a statutory body, if by doing the act the body has acted in breach of a mandatory obligation imposed by statute, even if by making the declaration the body is companypelled to do something which it does number desire to do. Vines Case 1 which was relied on before the Court was distinguished on the ground that the purported order of dismissal therein which was set aside was a nullity since the local Board in that case had numberpower to delegate its disciplinary function. Again, the decision in Dr. Dutts Case 2 was stated to be number case in which the invalidity of an act done by the University on the ground that it infringed a statutory provision fell to be determined and the rights and obligations of the parties rested in companytract and therefore the award was declared to be one companytrary to the rule companytained in s. 21 b of the Specific Relief Act and hence void. This Court, wound up the discussion in Tewaris Case 3 as follows, at p. 62 The jurisdiction to declare the decision of the Board as ultra vires exists, though it may be exercised only when the Court is satisfied that departure is called for from the rule that a companytract of service will number ordinarily be specifically enforced. On facts, this Court held that the order of dismissal of the appellant before them was proper and justified. From the two. decisions of this Court, referred to above, the position in law is that numberdeclaration to enforce a companytract of personal service will be numbermally granted. But there are certain well-recognized exceptions to this rule and they are To grant such a declaration in appropriate cases regarding 1 A public servant, who has been dismissed from service in companytravention of Art. 311. Reinstatement of a dismissed worker under Industrial Law by Labour or Industrial Tribunals. 3 A statutory body when it has acted in breach of a mandatory obligation, imposed by statute. The case of the respondent before us does number companye under either the first or the second category. The question then is Is he entitled to relief under the third category 2 1956 3 All E.R. 939. 2 1959 S.C.R. 1236. 3 1964 3 S.C.R. 55. Mr. S.T. Desai pointed out that by the appellant companyducting an enquiry and passing an order of dismissal in violation of regulation 16 3 , it cannot be stated that it has acted in breach of any mandatory provision of the Act resulting in the order being declared as void or ultra vires. The number-compliance with the regulations, at the most, will result in the order of dismissal being wrongful attracting the numbermal rule in such matters of making the appellant liable for damages. Even otherwise., this is number a proper case for grant of the declaration asked for by the plaintiff. In our opinion, the position taken up by Mr. Desai finds support in the decisions referred to above. Mr. B.R.L. Iyengar, learned companynsel for the respondent, placed companysiderable reliance on the decision of this Court in Life Insurance Corporation of India v. Sunil Kumar Mukherjee 1 . According to him, in that case, an order of termination of service passed by the Life Insurance Corporation of India, terminating the services of certain employees in breach of regulations framed by it under s. 49 of the Life Insurance Corporation Act, 1956 Act XXXI of 1956 hereinafter called the Insurance Act has been held to be void. Therefore companynsel urges that applying the same analogy, a breach of regulations in the case before us has the same effect as the breach of a statutory obligation and, if so, the High Court was justified in granting the declaration asked for. We are of opinion that the decision relied on by Mr. Iyengar does number lay down any such proposition. In that decision, in respect of certain officers governed by s. 11 1 and 11 2 of the Insurance Act, certain orders terminating their services were passed by the Life Insurance Corporation of India. The orders were challenged by the employees on the ground that they were passed companytrary to cls. 1O a and 10 b of the order passed by the Central Government under s. 11 2 of the Insurance Act, which is called the blue order. The companytention on behalf of the Life Insurance Corporation was that the orders were passed in accordance with the regulations framed by the Life Insurance Corporation under s. 49 of the Insurance Act, read with. cl. 11 of the blue order. The High Court held that the orders of dismissal were in breach of cls. 10 a and 10 b of the blue order, and therefore the orders were invalid. The result of the grant of this relief was that the employees companytinued to be in service. This Court companyfirmed the decision of the High Court, and having companysidered the rights companyferred by s. 11 1 and 11 2 of the Insurance. Act, held that the employees of the Insurers whose companytrolled business had been taken over, became employees of the Life Insurance Corporation and that their terms. and companyditions of service companytinued until they were altered 1 1964 5 S,C.R. 528 by the Central Government and that if the alteration made by the Central Government was number acceptable, they were entitled to leave the employment of the Corporation and for payment of companypensation as provided by s 11 2 . In exercise of the powers companyferred under s. 11 2 of the Insurance Act, the Central Government issued an order, known as the Life Insurance Corporation Field Officers Alteration of Remuneration and other Terms and Conditions of Service Order, 1957 on December 30, 1957. In 1962, the designation Field Officer was changed into Development Officer. Clauses 10 a and 10 b of this order have been set out by this Court in the above decision. CI. 11 of this order prescribed that the pay and allowances of the officers companycerned Was to be determined in . accordance with the principle.s that may be laid down by the Life Insurance Corporation by regulations made under s. 49 of the Insurance Act. The Life Insurance Corporation, as envisaged under el. 11 of the order, framed regulations under s. 49 of the Insurance Act, dealing with various matters. It. also issued a circular which was made part of the regulations and it was the basis of this circular that the Life Insurance Corporation took action and terminated the services of the employees companycerned. Tiffs Court held that the provisions companytained in s. 11 2 of the Insurance Act are paramount and over-ride any companytrary provisions companytained in the order issued by the Central Government or the regulations framed by the Life Insurance Corporation. Next to the Insurance Act, the rules framed by the Central Government, which include the order issued under ss. 11 2 of the Insurance Act, will prevail, but the provisions of the Central Government Order will have to be subject to s. 11 2 of the Insurance Act. Next in order companyme the regulations of the Life Insurance Corporation under s. 49 and those regulations must number be inconsistent with the Insurance Act or the rules framed thereunder. This Court held that the Circular issued by the Corporation, which had the effect of a regulation passed by it under s. 49 of the Insurance Act, must be read along with the provisions of ss. 11 1 and 11 2 of the Insurance Act and cl. 10 of the order issued by the Central Government and so read, the companyclusion reached by this Court was that a termination of service of an officer, companytemplated under the circular issued by the Life Insurance Corporation can be effected only in the manner prescribed by cl. 10 of the order issued by the Central Government. In view of the fact that cl. 10 of the order issued by the Central Government had number been companyplied with, the order terminating the services of the employees was held to be invalid. It will be seen that the services, as pointed out by this Court, of the employees whose cases were under companysideration, had been crystallized by the statute--the Insurance Act--in s. 11 1 and 11 2 By virtue of the powers companyferred by s. 11 2 , the Central Government issued the order on December 30, 1957. CI. 10 of this order had clearly indicated the procedure to be adopted for terminating the services of such employees. Therefore, the employees had their rights safe guarded by the Insurance Act read with the order issued by the Central Government and it cast a statutory obligation on the Life Insurance Corporation to adopt a particular procedure if the services of those employees were to be terminated. By number companyplying with the provisions of el. 10 of the order of the Central Government, which is really related to s. 11 of the Insurance Act, the Life Insurance Corporation must be companysidered to have acted in gross violation of the mandatory provisions of the statute. Therefore, it was number as if that the employees were there seeking to. enforce a companytract of personal service, but their grievance which was accepted by the Court, was that the order terminating their services was a nullity as it had number been effected in terms of the statute. In our opinion, therefore, this decision does number support the companytention of the respondent. Mr. Iyengar referred us also to the decision of this Court in The State of Uttar Pradesh v. Babu Ram Upadhya 1 but that decision need number detain us because that deals with a member of the public service who has been given protection under the Constitution. Such cases stand apart. Mr. Iyengar referred us to a decision of a learned Single Judge of the Gujarat High Court reported as Tata Chemicals Ltd. v. Kailash 2 . The question that arose for companysideration was regarding the validity of an order of dismissal by an employer of an employee companytrary to the standing orders. The learned Judge has expressed the view that a breach of the standing orders companystitutes a breach of a statutory provision and therefore the order of dismissal is a nullity. It is number necessary for us to companysider the companyrectness of that decision because the dispute between the parties in that case arose under Industrial Law and we have already pointed out that one of the exceptions to the Common Law is under Industrial Law where Labour and Industrial Tribunals have jurisdiction to companypel an employer to employ a worker whom he does number desire to employ. Having due regard to the principles discussed above. we are of opinion that the High Court was number justified in granting the declaration that the order dated March 10, 1964 dismissing the I 1961 2 S.C.R. 679. 2 A.I.R. 1964 Gujarat 265. respondent from service is null and void and that he is entitled to be reinstated in service with full pay and other emoluments. As pointed out by us, the regulations are made under the power reserved to. the Corporation under s. 54 of the Act. No doubt they lay down the terms and companyditions of relationship between the Corporation and its employees. An order made in breach of the regulations would be companytrary to such terms and companyditions, but would number be in breach of any statutory obligation, as was the position which this Court had to deal with in the Life Insurance Corporation Case 1 . In the instant case, a breach has been companymitted by the appellant of regulation 16 3 when passing the said order of dismissal, inasmuch as the procedure indicated therein has number been followed. The Act does number guarantee any statutory status to the respondent, number does it impose any obligation on the appellant in such matters. As to whether the rules framed under s. 52 deal with any such matters, does number arise for companysideration in this case as the respondent has number placed any reliance on the rules and he has rested his case only on regulation 16 3 . It is number in dispute that, in this case, the authority who can pass an order of dismissal has passed the same. Under those circumstances a violation of regulation 16 3 , as alleged and established in this case, can only result in the order of dismissal being held to be wrongful and, in companysequence, making the appellant liable for damages. But the said order cannot be held to be one which has number terminated the service, albeit wrongfully, or which entitles the respondent to ignore it and ask for being treated as still in service. We are number companycerned with the question of damages, because numbersuch claim has been made by the respondent in these proceedings. In this view, the judgment and the decree of the High Court.

Case appeal was accepted by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 1461 of 1969. Appeal by special leave from the judgment and decree dated January 24, 1969 of the Delhi High Court in S.A.O. No. 203-D of 1966. C. Misra and R.P. Aggarwal, .for the appellant. Hardev Singh and S.K. Gambhir, for the respondent. The Judgment of the Court was delivered by Shah, J. Man Mohan Chawla was since before l958 tenant in certain premises in Delhi belonging to J.S. Sethi. The companytractual rent of the premises was Rs. 160 per month. Sethi filed petition under s. 14 1 of the Delhi Rent Control Act, 1958 for an order in ejectment against Chawla on the plea that the latter had companymitted default in paying rent for seven months companysecutively. Pursuant to a direction of the Rent Controller, Chawla deposited the rent claimed, and the amount deposited was paid over to Sethi and the proceeding was disposed of. Chawla again companymitted default for three companysecutive months, and Sethi companymenced another proceeding under s. 14 1 of the Delhi Rent Control Act for an order in ejectment. Chawla denied the claim that he had companymitted default in payment of rent. He pleaded that he had on March 19, 1963 sent to Sethi Rs. 320 by a postal money order which Sethi had refused to accept. Sethi denied that a money order sent by Chawla was brought to him by the postal peon. Chawla also pleaded that the companytractual rent was excessive and that the rent of the premises let to him companyld number exceed Rs. 50 per month and prayed that standard rent may be fixed by the Controller. The Controller rejected that companytention of Chawla and passed an order in ejectment. The order of ejectment passed by the Controller was companyfirmed in appeal by the Rent Control Tribunal, and a second appeal to the High Court was also unsuccessful. Chawla has appealed to. this Court with special ,leave. In support of the appeal companynsel for Chawla companytended that the Controller was bound to determine the standard rent of the premises in the proceeding instituted by Sethi, and since the Controller failed to do so the order in ejectment was illegal ii the Courts below were in error in holding that Chawla companyld number obtain the benefit of s. 14 2 of the Delhi Rent Control Act, 1958 iii that the legal presumption arising from the despatch of a postal money order for Rs. 320 addressed to Sethi had been ignored by all the companyrts and iv that Chawla had made a deposit of rent for three months and if that deposit be taken into account Chawla was number in arrears for three companysecutive months at the date of the initiation of the proceeding. Not much need be said about companytentions iii and iv . The fourth plea was number raised before the Rent Controller and the Rent Control Tribunal it was sought to be urged for the first time before the High Court and the High .Court declined to entertain that plea. We have number permitted companynsel to raise that plea, for its determination depends upon proof of facts which were never proved. All the Courts have held that Chawla had failed to prove his case that a postal money order for Rs. 320 sent by Chawla was duly addressed to Sethi and that Sethi refused to accept the postal money order when it was tendered to him. The only evidence in support of that case was a postal receipt for despatch of a money order for Rs. 320 to Sethi. It did number bear the residential address of Sethi. Sethi deposed that numberone had tendered to him the postal money order. His testimony has been believed. The third companytention must therefore fail. We may number turn to the first and the second companytentions it is necessary to bear in mind that under the Delhi Rent Act, a proceeding for recovery of rent does number lie before the Controller lies in the civil companyrt. The Controller is authorised to try a proceeding for ejectment or for determination or for determination of standard rent, or for determination of fair rent in respect of a hotel and lodging house. The relevant provisions of the Delhi Rent Control Act, 1958 which have a bearing on the two companytentions remaining to be determined may first be numbericed Section 2 k defines standard rent as meaning in relation to any premises, the standard rent referred to in section 6 or where the standard rent has been increased under s. 7, such increased rent. Chapter II deals with the quantum and the procedure for determination of standard rent, and related matters. Section 6 of the Act deals with the quantum of standard rent. Insofar as it is relevant, it provides 1 subject to the provisions of sub- section 2 , standard rent, in relation to any premises means-- A in the case of residential premises-- 1 where such premises have been let out at any time before the 2nd day of June 1944-- a if the basic rent of such premises per annum does number exceed six hundred rupees the basic rent or b if the basic rent of such premises per annum exceeds six hundred rupees, the basic rent together with ten per cent of such basic rent 2 where such premises have been let out at, any time on or after the 2nd day of June 1944-- a in any case where the rent of such premises has been fixed under the Delhi and Ajmer-Merwara Rent Control Act, 1947, or the Delhi and Ajmer Rent Control Act, 1952-- if such rent per annum does number exceed twelve hundred rupees, the rent so fixed or if such rent per annum exceeds twelve hundred rupees, the rent so fixed together with ten per cent of such rent b in any case, the rent calculated on the basis of seven and one-half per cent per annum of the aggregate amount of the reasonable companyt of companystruction and the market price of the land companyprised in the premises on the date of the companymencement of the companystruction Provided that where the rent so calculated exceeds twelve hundred rupees per annum, this clause shall have effect as if for the words seven and one half per cent, the words eight and one-fourth per cent has been substituted Section 7 provides for lawful increase of standard rent in certain cases and for recovery of other charges. Section 9 authorises the Controller to fix the standard rent of the premises. In so far as it is relevant, it provides The Controller shall, on an application made to him in this behalf, either by the landlord or by the tenant, in the prescribed manner, fix in respect of any premises-- the standard rent referred to in section 6 or the increase, if any, referred to in section 7 In fixing the standard rent of any premises or the lawful increase thereof, the Controller shall fix an amount which appears to him to be reasonable having regard to the provisions of section 6 or section 7 and the circumstances of the case. 3 4 5 the standard rent shall in all cases be fixed for a tenancy of twelve months Provided that where any premises are let or re-let for a period of less than twelve months, the standard rent for such tenancy shall bear the same proportion to the annual standard rent as the period of tenancy bears to twelve months. 6 In fixing the standard rent of any premises under this section, the Controller shall specify a date from which the standard rent so fixed shall be deemed to have effect Provided that in numbercase the date so specified shall be earlier than one year prior to the date of the filing of the application for the fixation of the standard rent. Section 10 provides for fixation of interim rent in an application for determination of standard rent. That section states If an application for fixing the standard rent or for determining the lawful increase of such rent is made under sect,ion 9, the Controller shall, as expeditiously as possible, make an order specifying the amount of the rent or the lawful increase to be paid by the tenant to the landlord pending final decision on the application and shall appoint the date from which the rent or lawful increase so specified shall be deemed to have effect. Section 12 insofar as it is relevant provides Any landlord or tenant may file an application to the Controller for fixing the standard rent of the premises or for determining the lawful increase of such rent,-- a in the case of any premises which were let, or in which the cause of action for lawful increase of rent arose before the companymencement of this Act, within two years from such companymencement b in the case of any premises let after the companymencement of this Act,-- where the application is made by the landlord, within two years from the date on which the premises were let. to the tenant against whom the application is made where the application is made by the tenant, within two years from the date on which the premises were let to the tenant and c in the case of any premises in which the cause of action for lawful increase of rent arises after the companymencement of this Act, within two years from the date on which the cause of action arises Provided that the Controller may entertain the application after the expiry of the said period of two years, if he is satisfied that the applicant was prevented by sufficient cause from filing the application in time. An application for fixation of standard rent must be made within two years of the date of the companymencement of the Act if the premises were let before the date of the companymencement of the Act, and if the premises were let after the companymencement of the Act within two years from the date of letting. The Controller is authorised to entertain the application after expiry of the period of two years if he is satisfied that the applicant was prevented by sufficient cause from filing the application in time. Section 4 modifies the companytract for payment of rent. It provides Except where rent is liable to periodical increase by virtue of an agreement entered into before the 1st day of January 1939, numbertenant shall, numberwithstanding any agreement to the companytrary, be liable to pay to his landlord for the occupation of any premises any amount in excess of the standard rent of the premises, unless, such amount is a lawful increase of the standard rent in accordance with the provisions of this Act. Subject to the provisions of sub- section 1 , any agreement for the payment of rent in excess of the standard rent shall be companystrued as if it were an agreement for the payment of the standard rent only. By section 5 it is provided Subject to the provisions of this Act, numberperson shall claim or receive any rent in excess of the standard rent, numberwithstanding any agreement to the companytrary. Section 14 which is in Ch. III deals with protection of tenant against eviction. Insofar as it is relevant the section provides Notwithstanding anything to the companytrary companytained in any other law or companytract, numberorder or decree for the recovery of possession of any premises shall be made by any companyrt or Controller in favour of the landlord against a tenant Provided that the Controller may, on an application made to him in the prescribed manner, make an order for the recovery of possession of the premises on one or more of the following grounds only namely - That the tenant has neither paid number tendered the whole of the arrears of the rent legally recoverable from him within two months of the date on which a numberice of demand for the arrears of rent has been served on him by the landlord in the manner provided in section 106 of the Transfer of Property Act, 1882 No order for the recovery of possession of any premises shall be made on the ground specified in clause a of the proviso to sub-section 1 , if the tenant makes payment or deposits as required by section 15 Provided that numbertenant shall be entitled to the benefit under this sub-section, if, having obtained such benefit once in respect of any premises, he again makes a default in the payment of rent of those premises for three companysecutive months. Section 15, insofar as it is relevant, provides In every proceeding for the recovery of possession of any premises on th e ground specified in clause a of the proviso to sub- section 1 of section 14, the Controller shall, after giving the parties an opportunity of being heard, make an order directing the tenant to pay to the landlord or deposit with the Controller within one month of the date of the order, an amount calculated at the rate of rent at which it was last paid for the period for which the arrears of the rent were legally recoverable from the tenant including the period subsequent thereto upto the end of the month previous to that in which payment or deposit is made and to companytinue to pay or deposit, month by month, by the fifteenth of each succeeding month, a sum equivalent to the rent at that rate. 2 3 If, in any proceeding referred to in sub-section 1 , or sub-section 2 , there is any dispute as to the amount of rent payable by the tenant, the Controller shall, within fifteen days of the date of the first hearing of the proceeding, fix an interim rent in relation to the premises to be paid or deposited in accordance with the provisions of sub-section 1 or sub-section 2 , as the case may be, until the standard rent in relation thereto is fixed having regard to the provisions of this Act, and the amount of arrears, if any, calculated on the basis of the standard rent shall be paid or deposited by the tenant within one month of the date on which the standard rent is fixed or such further time as the Controller may allow in this behalf. 4 5 If a tenant makes payment or deposit as required by sub-section 1 or sub-section. 3 , numberorder shah be made for the recovery of possession on the ground of default in the payment of rent by the tenant, but the Controller may allow such companyts as he may deem fit to the landlord. If a tenant falls to make payment or deposit as required by this section, the Controller may order the defence against eviction to be struck out and proceed with the hearing of the application. Counsel for Chawla maintained that the period of limitation prescribed by s. 12 only applies to petitions made to the Controller by a landlord or a tenant for fixing standard rent, but it has numberapplication to a defence raised to a petition for ejectment filed by a landlord under s. 14 that the companytractual rent exceeds the standard rent and requests that the standard rent be determined. Counsel companytends that since in the present case the Controller failed, though expressly requested by Chawla by his written statement to enquire into the standard rent payable the proceedings were. vitiated and the order made by the Controller was illegal. It is companymon ground that the written statement was filed more than two years after the date on which the tenancy companymenced and if an application under s. 12 a or b was made on that date it would be barred by the law of limitation. But companynsel said that in terms s. 12 applies to a substantive application and number to a defence. He relied in respect of his companytention to various indication, which he companytends, are to be found in the Act. Counsel says that by virtue of the provisions of ss. 4 and 5 recovery of rent by a landlord in excess of the standard rent is prohibited. But in our judgment the prohibition in ss. 4 and 5 operates only after the standard rent of premises is determined and number till then. So long as the standard rent is number determined by the Controller, the tenant must pay the companytractual rent after the standard rent is determined the landlord becomes disentitled to recover an amount in excess of the standard rent from the date on which the determination operates. We are unable to agree that standard rent of a given tenement is by virtue of s. 6 of the Act a fixed quantity, and the liability for payment of a tenant is circumscribed thereby even if the standard rent is number fixed by order of the Controller. Under the scheme of the Act standard rent of a given tenement is that amount only which the Controller determines. Until the standard rent is fixed by the Controller the companytract between the landlord and the tenant determines the liability of the tenant to pay rent. That is clear from the terms of s. 9 of the Act. That section clearly indicates that the Controller alone has the power to fix the standard rent, and it cannot be determined out of companyrt. An attempt by the parties to determine by agreement the standard rent out of companyrt is number binding. By section 12 in an application for fixation of standard rent of premises the Controller may give retrospective operation to his adjudication for a period number exceeding one year before the date of the application. The scheme of the Act is entirely inconsistent with standard rent being determined otherwise than by order of the Controller. In our view, the prohibition against recovery of rent in excess of the standard rent applies only from the date on which the standard rent is determined by order of the Controller and number before that date. Counsel companytends that by s. 15 3 it is expressly companytemplated that a request may be made for determination of standard rent as a defence to an action in ejectment, and since the Legislature has provided numbertime for making such a defence, the bar of limitation prescribed by s. 12 has numberapplication. But the Legislature has provided for making an application for determination of standard rent and has prescribed a period of limitation in that behalf. Section 14 enables the landlord to file a petition in ejectment before the Controller on the ground that the tenant has failed to pay or tender the arrears of rent legally recoverable from him within two, months of the date on which a numberice of demand for the arrears of rent has been served on him by the landlord In such a case under s. 15 1 where the rate of rent is accepted but there is a dispute as to the payment of rent, the Controller will proceed to determine. whether payment according to the companytract has been made. By sub- section 1 of s. 15 it is provided that the Controller shall make an order directing the tenant to pay to the landlord or deposit with the Controller within one month of the date of the order, an amount calculated at the rate at which rent was last paid. But the clause in terms provides that this has to be done after giving the parties an opportunity of being heard. If the Controller was obliged to pass an order calling upon the tenant to pay to the landlord, or to deposit in his Court the amount of rent calculated at the rate at which it was last paid for the period for which the arrears of rent were legally recoverable from the tenant, there would be numberscope for a hearing to be given to the tenant and it would put a premium upon false claims by landlords. Even though the expression shall is used, it is, in our judgment, directory. The tenant is entitled to show that he has paid the rent claimed from him. If he proves that he has paid the rent, the demand for deposit of arrears under sub-section 1 of s. 15 cannot be made. Sub-section 3 of s. 15 refers to cases in which there is a dispute as to the amount of rent payable by the tenant. In that case the Controller has to fix within fifteen days of the date of the first hearing of the proceeding, interim rent for the premises to be paid or deposited in accordance with the provisions of sub-section 1 until the standard rent in relation thereto fixed having regard to the provisions of the Act. The determination of interim rent will be for the period after the date of the application and also for arrears. Counsel for Chawla companytended that the expression dispute as to the amount of rent payable by the tenant in sub-s. 3 of s. 15 means a dispute raised by the tenant as to the standard rent payable. We are unable to agree. The dispute, referred to in s. 15 3 is the dispute about companytractual rent payable. When such a dispute is raised the Controller has, within fifteen days of the date of the first heating of the proceeding, to fix interim rent payable by the tenant in accordance with the provisions of sub-s. 1 including the arrears, and such payment has to be made until the standard rent in relation thereto is fixed having regard to the provisions of the Act. Sub-s. 3 provides that interim rent is to be paid at the rate at which it was last paid tilt standard rent is determined, but thereby it is number implied that standard rent is to be determined as an issue arising in the action for ejectment the clause only means that when there is a dispute relating to the rate of companytractual rent payable the Controller shall within fifteen days of the date of the first hearing of the proceeding fix the interim rent, and the amount so fixed shall be paid by the tenant until the standard rent in relation to the premises is fixed in an appropriate proceeding under the Act. The expression having regard to the provisions of this Act has in our judgment reference to ss. 9 and 12. Payment of arrears and standard rent under sub-s. 3 must be made within one month of the date on which the standard rent is fixed, or within such further time as the Controller may allow in that behalf. The scheme of sub-s. 3 of s. 15 is only that the interim rent will be paid at the rate ordered by the Controller, and before the proceeding is disposed of standard rent of the premises is fixed by the Controller in an application under s. 12, then in order to. obtain benefit of s. 6 the tenant must pay the arrears calculated on the basis of the standard rent within one month from the date on which the standard rent is fixed or within such further time as the Controller may allow. If in a proceeding under s. 14 1 a the tenant raises by way of defence a companytention that the standard rent be determined the Controller may treat that as an application under s. 12 and deal with it according to law. But the Act, companyfers numberpower under s. 15 3 upon the Controller. The power to determine standard rent is exercisable under s. l 2 only. Our attention was drawn to a number of decisions of the Punjab and the Delhi High Courts in which it was held that the Rent Controller has in a petition in ejectment jurisdiction to determine, the standard rent payable by the tenant. In Jiwan Industries Private Ltd. v. Santosh Company 1 .--Bedi, J., held that the Rent Controller companyld fix the standard rent in a proceeding in ejectment even after the application of the landlord for ejectment of the tenant had been dismissed. In Messrs Suraj Balram Sawhney Sons. v. Dr. D. Kiri 2 --Gurdev Singh, J., held that the Controller had jurisdiction under s. 15 3 to determine the standard rent in an application for ejectment based on the plea of numberpayment of rent, if the tenant raised a companytention that the companytractual rent is in excess of the standard rent. The learned Judge was of the view that the language of sub-s. 3 of s. 15 companyers even those cases in which an application for fixation of standard rent it made independently would be barred by time prescribed under s. 12 of the Act, since the limitation prescribed under s. 12 applies only to an application made for fixation of standard rent and number to a plea taken up by the tenant in defence to an action for his eviction under proviso a to sub-s. 1 of s. 14 of the Act. If the tenant deposits the arrears of rent, observed the learned Judge, but at the same time companytends that the rent claimed from him is in excess of the standard rent the Controller has to go into the question of standard rent and he cannot order payment of the entire arrears of rent deposited unless he finds that the arrears so deposited are number in excess of the arrears calculated at the rate at which, the standard rent is fixed. In S.K. Chatterjee and Anr. v.J.N. Ghoshal 3 S.K. Kapur J., held that the words any dispute as to the amount of rent payable by the tenant in sub-s. 3 of s. 15 refers to the dispute arising between the parties on account of claim of a party for fixation of standard rent. The learned Judge further held that s. 15 3 in terms companyfers powers to order payment or deposit of arrears at the interim rate of rent. If the disagreement between the parties be both as to agreed rent and the standard rent, the power will be exercised under s. 15 3 because the standard rent will prevail over the agreed rent. He also held that s. 15 provides a companye by itself as to the nature of enquiry, the Controller has to fix an interim rent within 15 days of the date of the first hearing of the proceeding. If this has to be done after a fullfledged enquiry companypliance with section 15 3 would become impossible. This by itself indicates that the authorities companystituted under the Act are to makean enquiry in a summary manner. 1 1965 67 P.L.R. 241. 2 1965 67 P.L.R. 3 1966 P.L.R. Delhi Section 354. S. Deshpande, J., in Chander Bhan v. Nand Lal and Anr. 1 ---observed that his observation in the case which is under appeal in this case that the expression having regard to the provisions of this Act used in s. 15 3 seemed to refer inter alia to ss. 9 and 12 of the Act, and that observation was number strictly necessary for the decision of that case inasmuch as there was numberdispute as to the rate of rent in that case and hence s. 15 3 was number attracted at all. The learned Judge also observed that there were two distinct provisions in the Act for fixation of standard rent--the first in s. 9 under which an application for the fixation of standard rent is made, for which limitation is provided by s. 12 of the Act the other is in s. 15 3 of the Act, and that applies only when there is a genuine dispute between the parties regarding the rate and the amount of rent. These observations prompt the companyment that if the view expressed be companyrect the period of limitation prescribed by s. 12 is rendered practically nugatory. If a written statement filed in an application for ejectment under s. 14 1 a raises numberdefence on the merits and companytains a request for determination of standard rent, it would be illogical to hold that if made in a substantive petition it would be barred, but because it is a request made in a written statement in answer to a claim for ejectment it is free of the limitation prescribed by s. 12. It is to be numbericed that under s. 12 standard rent may be given retrospective operation for number more than one year. But if a tenant is in arrears for more than one year, on the companytention advanced by companynsel for Chawla the tenant would be liable to pay arrears at the rate of standard rent determined for a period longer than one year before the date on which he made a claim in his written statement for determination of standard rent and may be entitled to reopen closed transactions. The legislature companyld number have intended that the tenant in default should be entitled to evade the statutory period of limitation prescribed by the expedient of refusing to make an application so as to obtain an advantage to which he is number entitled if he moves the Controller in a substantive application for determination of standard rent. In our view the expression having regard to the provisions of this Act occurring in sub-s. 3 of s. 15 means having regard to sections 9 and 12 and other relevant provisions of the Act. In our view Deshpande, J., in the judgment under appeal was right in the view that he took, and that the refinement he sought to introduce in the latter judgment in Chandrabhan v. Nand Lal and Anr. 1 cannot be accepted as companyrect. The judgments to which our attention was invited appear to have proceeded upon earlier judgments of the Punjab High Court in Lala Manohar Lal Nathan Mal v. Madan Lal Murari Lal 2 1 1969 All India Rent Control Journal 623. A. I. R. 1956 Pb. 190. and Smt. Radhey Piari v.S. Kalyan Singh 1 . But both these cases were decided on the interpretation of ss. 8 to 11 of the Delhi and Ajmer Rent Control Act 38 of 1952 in which it was expressly provided that the standard rent shall be fixed on an application made to the Court for that purpose or in an application in any suit or in any proceeding. We need express numberopinion whether the cases under the Delhi and Ajmer Rent Control Act 38 of 1952 were companyrectly decided. But the difference in the phraseology used in the Delhi Rent Control Act 59 of 1958 does number appear to have been numbericed in the judgments cited at the Bar in support of the companytention that to a written statement filed by a tenant when an application is made under s. 14 1 a the companyditions of s. 12 do number apply. We are of the view that the Rent Controller, the Rent Control Tribunal and the High Court were right in the view they have expressed. The second companytention is also without substance. The tenant had made numberattempt to pay the rent which was demanded of him. Sub-section 2 of s. 14 enacts that the Controller shall number pass an order for recovery of possession of any premises if the tenant makes payment or deposit as required by s. 15. The bar to the jurisdiction of the Controller arises when the tenant pays or deposits interim rent as required by s. 15 3 and an application for fixation of standard rent is number payment or deposit required by s. s. 15. In any event by virtue of the proviso to sub- s. 2 of s. 14 Chawla is number entitled to the benefit of sub-s. 2 for he had earlier companymitted default in payment of rent in respect of the premises and a proceeding was instituted against him for recovery of possession. That proceeding was disposed of after he deposited the amount of rent due by him. By depositing the amount in companyrt in the previous proceeding, Chawla clearly obtained the benefit under s. 14 2 in respect of the premises occupied by him as a tenant. Thereafter he made another default in payment of rent for three companysecutive months. Chawla was, therefore, number entitled to claim the protection of sub-s. 2 of s. 14 for he made numberpayment as required by s. 15 and also because he had previously obtained the benefit of sub-s. 2 by making a deposit in the earlier proceeding. The companytention of companynsel for Chawla that the proceeding started by Sethi against him was dismissed and that Chawla had number obtained any benefit in respect of the premises under sub-s. 2 of s. 14 does number require serious companysideration. Chawla obtained an order of disposal of the proceeding by depositing the amount ordered to be deposited by him under s. 15. That was clearly a benefit which he obtained under s. 14 2 . The plea that numbertenant shall be entitled to the benefit under this sub- section is only directory is without substance. In any event the High Court was of the view that having regard to the companyduct of Chawla he having companymitted default previously and having obtained the benefit of sub-s. 2 in respect of the premises he was number entitled to the same benefit in this proceeding. Assuming that the proviso to sub-s. 2 of s. 14 is number mandatory on that question we express numberopinion--we are clearly of the view that the High Court having declined to grant the benefit of sub-s. 2 of s. 14 to Chawla, numbercase is made out for our interference.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeals No. 488 and 489 of 1969. Appeals by special leave from the judgment and order, dated November 4, 1968 of the Delhi High Court in Letters Patent Appeal No. 30 of 1968. C. Mitra, S. Ray, B.K. Chakravarti, H.K. Puri and B.N. Kirpal, for the appellant in C.A. No. 488 of 1969 and the respondent in C.A. No. 489 of 1969 . Jagdish Swarup, Solicitor-General, V. C. Mahajan and P. Nayar, for the respondents in C.A. No. 488 of 1969 and the appellants in C.A. No. 489 of 1969 . The Judgment of the Court was delivered by Shah, J. The Rampur Distillery Company Ltd.---hereinafter called the Rampur Company----is a manufacturer of industrial alcohol. In 194.3 the Rampur Company appointed Govan Brothers its managing agent for 20 years. In July 1946 a group. of persons who may be referred to as. the Dalmia Group assumed companytrol over Govan Brothers. V.H. Dalmia who became Managing Director of Govan Brothers, besides being a director of a number of other companypanies, held important positions in several trade associations. On March 19, 1953, information was lodged by the Registrar of Joint Stock Companies, Delhi, that V. Ii. Dalmia and others had companymitted offences of criminal breach of trust. By virtue of s. 330 of the Companies Act, 1956, the manaing agency of the Rampur Company was to expire on August 15, 1960, unless before that date the managing agent was re- appointed for a fresh term in accordance with the provisions of the Companies Act. On December 10, 1959 the Rampur Company reappointed Govan Brothers, Managing Agent for ten years with effect from August 15, 1960, and applied to the Central Government that the extension of the managing agency of Govan Brothers be approved. The Central Government granted extension for five years under s. 326 of the Companies Act with effect from August 15, 1960. In the report of the Commission headed by Mr. Justice Vivian Bose appointed to enquire into and report on the working of the Dalmia Jain Group of Industries, the dealings of V.H. DaImia in relation to the financial affairs of some of the companypanies of which he was a director was severely criticized. In the view of the Commission, H. DaImia was in the year 1946-47 guilty of grossly improper companyduct in relation to several companypanies of which he was a director. In May 1964 the police lodged criminal proceedings against V.H. Dalmia and 23 others in the Court of the District Magistrate, Delhi, charging them with being parties to a criminal companyspiracy having for its objects the companymission of criminal breach of trust of the assets of the Dalmia Jain Airways Ltd., and companymitting offences of forgery and falsification of accounts, and that criminal breach of trust was companymitted by them in respect of amounts running into crores of rupees. The proceedings so instituted are still pending. On September 23, 1964, the Rampur Company passed another resolution appointing Govan Brothers Managing Agent for five years with effect from August 15, 1965, and applied to the Central Government to accord approval to the appointment. This appli cation was referred by the Central Government to the Company Law Board which was companystituted under s. 10E of the Companies Act, 1956, with authority to. exercise the powers of the Central Government among others to deal with applications under s. 326 of the Companies Act, 1956. The Campany Law Board extended the tenure of Govan Brothers till March 31, 1967. Another application by the Rampur Company dated August 25, 1966 for extension of the term of the managing agency upto August 1970 was rejected by the Board. The Rampur Company then moved a petition in the High Court of Delhi on June 10, 1967, for an order quashing the decision of the Board and for an order extending the term of the managing agency till March 31, 1970. A single Judge of the High Court granted the petition holding that the managing agent was a private limited companypany and the reasons for failure to extend the managing agency agreement of Govan Brothers being entirely personal to V.H. Dalmia were companypletely irrelevant in so far as the affairs of the Managing Agent companypany or of the petitioner Company Rampur Company were companycerned. In appeal against that order a Division Bench of the High Court observed that where a Managing Agent is a companyporate body, the acts and companyduct of the Directors of that body become the object of scrutiny in determining whether such a companyporate body may be companysidered to be a fit and p.roper person for appointment or reappointment as Managing Agent, and that the enquiry must companyer all relevant activities and actions of the Directors of the companyporate body. The High Court accordingly set aside the order and remitted the case for a fresh decision. The learned Judge who heard the petition after remand proceeded to dismiss the writ petition. In appeal against the order the High Court observed that in determining whether a person was fit and proper to be appointed a managing agent his acts and activities in the past cannot be ignored altogether, and companypled with other circumstances, may provide a valid ground for number approving an appointment, but since under s. 326 2 b the Board has to companysider the fitness and propriety of a managing agent at the date of the proposal the Board has also to take into companysideration the subsequent companyduct, acts and activities of the person, and the Board having failed to companysider the entirety of the acts and activities of V.H. Dalmia the opinion formed by the Board was incomplete and number in accordance with the provisions of s. 326 2 b of the Companies Act. The High Court accordingly set aside the order and directed the Board to take into companysideration material circumstances, namely, the acts and activities of H. Dalmia during the years subsequent to 1947 in forming the requisite opinion under s. 326 2 3. . Against that order two appeals have been preferred---one by the Company Law Board, and the other by the Rampur Company- with special leave. Section 326 of the Companies Act, 1956 provides In respect of any companypany to which neither the prohibition specified in section 324 number applies, a managing agent shall number be appointed or reappointed,- a except by the companypany in general meeting and b unless the approval of the Central Government has been obtained for such appointment or reappointment. The Central Government shall number accord its approval under sub-section 1 in any case, unless it is satisfied-- a that it is number against the public interest to allow the companypany to have a managing agent b that the managing agent proposed is, in its opinion, a fit and proper person to be appointed or reappointed as such, and that the companyditions of the managing agency agreement proposed are fair and reasonable and c that the managing agent proposed has fulfilled any companyditions which the Central Government require him to fulfil. The Rampur Company in a general meeting resolved that the managing agency of Govan Brothers be companytinued till August 14, 1970, and applied for the approval of the Company Law Board By sub-s. 2 of s. 326 the Board is enjoined number to accord its approval unless it is satisfied that it is. number against the public interest to allow the Company to have a managing agent, that the managing agent proposed is, in its opinion, ,a fit and proper person to be appointed or re- appointed as such, and that the companyditions of the managing agency agreement proposed are fair and reasonable. The section uses the present tense. The satisfaction must be with reference to the three companyditions existing in praesenti., but in adjudging whether a person is fit and proper to be appoint past actings and companyduct cannot be ignored. In companysidering whether a person is fit to be appointed a managing agent the Board is number restricted to a companysideration of his acts, companyduct and activities proximate to the date of the application the Board has to companysider his acts and activities past and present, the interest of the share-holders and the general interests of the public in allowing the management to be companytinued by the Directors of the Company and other circumstances which have a heating on the question. The Board apparently restricted itself to the findings recorded by the Commission headed by Mr. Justice Vivian Bose relating to the dealings of V.H. Dalmia with the companypanies of which he was a director between the years 1945 and 1947. The criticism by the Commission of the companyduct of V.H. Dalmia, suggested that there were serious grounds for companyplaint against him, but these observations related to acts and omissions many years before the date on which the application was made. The Board had to companysider whether Govan Brothers is a fit and proper person to be appointed managing agent on a review of all the relevant circumstances, the criticism by the Commission, the progress made by the Rampur Company while under the management of H. Dalmia and others since 1946-47, the interests of the shareholders, the creditors and of the public generally, and also that a companyplaint was pending in a Criminal Court against V.H. Dalmia and others charging them with companymitting serious offences. The Solicitor-General appearing for the Union of India companytended that by the use of the expression in its opinion occurring in s. 326 2 b of the Companies Act, it is meant that the subjectice satisfaction of the Central Government is determinative of the question whether the proposed person is fit and proper to be appointed managing agent, and if the Board reached the companyclusion as it has done in the present case on companysiderations which are number irrelevant that Govan Brothers is number a fit and proper person to be appointed managing agent, the decision based on the satisfaction cannot be challenged before the High Court. The argument is that the existence of the satisfaction as well as the decision reached on that satisfaction are immune from the scrutiny of the Court. We are unable to agree. By sub-s. 2 of s. 326 of the Companies Act, the Central Government is invested with power to decide whether it is against the public interest to allow the Company to. have a managing agent, whether the person proposed iS fit and proper to be appointed or reappointed managing agent, whether the companyditions of the managing agency agreement proposed are fair and reasonable, and whether the managing agent proposed has fulfilled the companyditions which the Central Government has required him to fulfil. Investment of that power carries with it a duty to act judicially i.e. to hold an enquiry in a manner companysistent with rules of natural jusitice, to companysider all relevant matters, to ignore irrelevant matters, and to reach a companyclusion without bias, without predilection and without prejudice. The satisfaction companytemplated by s. 326 must, therefore, be the result of an objective appraisal of the relevant materials. The reason is clear. By Section 326 several restrictions upon the power of the Companies and individuals to carry on business are imposed in the interest of the shareholder, the creditors, and in the larger interests cf the public. The order made by the Central Government under s. 326 may result in serious detriment of the Company and the proposed managing agent, but in the larger public interest, if it is valid, they have to suffer it. Exercise of the power companyferred upon the Central Government is restrictive of valuable rights of the Company and of the proposed managing agent, and severely restricts the liberty of companytract. The scheme of the section implies investigation and a decision on the matters set out therein. Section 326 lays down companyditions by sub-s. 1 a in which the Central Government may override the resolution of the general body of shareholders in certain specified companyditions. Upon the Central Government is imposed a duty number to accord approval to the appointment or reappointment of a proposed managing agent in the light of els. a , b c of sub-s. 2 . Though the sub-section is enacted in form negative in substance it companyfers power upon the Government subject to the restrictions imposed by els. a , b c to refuse to accord approval. Sub-section 2 imposes upon the Central Government the duty number to accord approval to appointment or re-appointment of a proposed managing agent unless the Government is satisfied that the managing agent is a fit and proper person to be appointed, that the companyditions of the managing agency agreement are fair and reasonable and that the managing agent has fulfilled the companyditions which the Central Government required him to fulfil. Thereby the Central Government is number made the final arbiter of the existence of the grounds on which the satisfaction may be founded. The satisfaction of the Government which is determinative is satisfaction as to existence of certain objective facts. The recital about satisfaction may be displaced by showing that the companyditions did number exist, or that number reasonable body of persons properly versed in law companyld have reached the decision that they did. The Courts however are number companycerned with the sufficiency of the grounds on which the satisfaction is reached. What is relevant is the satisfaction of the Central Government about the existence of the companyditions in els. a , b c of sub-s. 2 of s. 326. The enquiry before the Court, therefore, is whether the Central Government Was satisfied as to the existence of the companyditions. The existence of the satisfaction cannot be challenged except probably on the ground that the authority acted mala fide. But if in reaching its satisfaction the Central Government misapprehends the nature of the companyditions or proceeds upon irrelevant materials, or ignores relevant materials, the jurisdiction of the Courts to examine the satisfaction is number excluded. The power in our judgment, is a quashi-judicial power and number ad- ministrative it necessarily implies a duty arising from the nature of the act empowered to be done, the object for which it is to be done, the companyditions in which it is to be done, and its repercussion upon the power of the Company, the shareholders, the creditors and the general public for whose benefit the power is to be exercised. The Solicitor-General appearing for the Board invited our attention to the judgment in The Barium Chemicals Ltd. and Anr. v. The Company Law Board and Others 1 . But in that case Hidayatullah and Shelat, JJ., held that the action of the Board under s. 237 b was administrative. Shelat, J., with whom Hidayatullah, J., agreed, observed at p. There is numberdoubt that the formation of opinion by the Central Government is a purely subjective process. There can also be numberdoubt that since the legislature has provided for the opinion of the government and number of the companyrt such an opinion is number subject to a challenge on the ground of propriety, reasonableness or sufficiency. But the Authority is required to arrive at such an opinion from circumstances suggesting what is set out in sub-clauses i , ii or iii . If these circumstances were number to exist, can the government still say that in its opinion they exist or can the Government say the same thing where the circumstances relevant to the clause do number exist ? But the expression circumstances suggesting cannot support the companystruction that even the existence of circumstances is a matter of subjective opinion. That expression points out that there must exist circumstances from which the Authority forms an opinion that they are suggestive of the crucial matters set out in the three sub-clauses. Sarkar, C.J.,I. and Mudholkar, J., did number agree with that view. Bachawat, J. expressed numberopinion on the nature of the power companyferred by s. 237. But in Rohtas Industries Ltd. S.D. Agarwal Another 2 in dealing with an application challenging the action of the Company Law Board under s. 237 b of the Companies Act this Court held that the opinion formed is number open to challenge, but the circumstances can. The view expressed by Sarkar, C.J., and Mudholkar, J., was disapproved. Some reliance was sought to be placed upon the observations made in Nakkuda Ali v.M.F. De. S. Jayaratne 3 , in which the Judicial Committee observed 1 1966 Suppl. S.C.R. 311. 2 A.I.R. 1969 C. 707 3 1951 A.C. 66. After all, words such as these are companymonly found when a legislature or law- making authority companyfers power on a minister or official. However read, they must be intended to serve in some sense as a companydition limiting the exercise of an otherwise arbitrary power. But if the question whether the companydition has been satisfied is to be companyclusively decided by the man who wields the power the value of the intended restraint is in effect numberhing. No doubt he must number exercise the power in bad faith but the field in which this kind of question arises is such that the reservation for the case of bad faith is hardly more than a formality. Their Lordships therefore treat words in reg. 62 where the Controller has reasonable grounds to believe that any dealer is unfit to be allowed to companytinue as a dealer as imposing a companydition that there must in fact exist such reasonable grounds known to the Controller before he can validly exercise the power of cancellation. In Nakkuda Allis case 1 the Controller of Textiles in Ceylon made an order cancelling the appellants licence to act as a dealer. The Controller acted under a Defence Regulation which authorised him to cancel a licence when the Controller has reasonable ground to believe that any dealer is unfit to be allowed to companytinue as a dealer. In the view of the Judicial Committee a companydition imposed that there must in fact exist such reasonable grounds known to the Controller, before he can validly exercise the power of cancellation, but certiorari to companyrect the order did number lie, and there was numberother means for obtaining redress. That was a case under the Defence Regulations, and the Judicial Committee was of the view ---in our judgment erroneously--that the duty to act judicially arises only from an express provision to that effect. It was pointed out and we think rightly by Lord Reid in Ridge v. Baldwin 2 that when an enactment requires an official to have reasonable grounds for the decision, the law was number so defective that the aggrieved person cannot bring up the decision for review, however seriously he may be affected, and however obvious it may be that the official acted in breach of his statutory obligation. Again in Padfield and Others v. Minister of Agriculture, Fisheries and Food and Others 3 , the Minister declined to refer a companyplaint to the Committee of Investigation established under the Agricultural Marketing Act, 1958, that the price differential worked unfairly against the south-east region of England where milk was more valuable and the companyt of transport was less and the price of land was high. The Minister informed the applicants that the companyplaint raised wide issues and which he did number companysider suitable 1 1951 A.C. 66. 2 1964 A.C. 40. 3 1968 1 All E.R. 694. for investigation. He claimed that he had unfettered discretion. The House of Lords remitted the case with a direction that the Minister should companysider the companyplaint. We are, therefore, unable to agree that because the exercise of the power depends upon satisfaction, its exercise cannot be subjected to judicial review the Government being the final arbiter of the companyditions in which the power may be exercised. But in dealing with a petition against an order made by the Board under s. 326 of the Companies Act, 1956, the High Court is number companystituted a Court of Appeal over the judgment of the Board. The Court has merely to companysider whether in arriving at its decision the Board has restricted itself to the enquiry companytemplated to be made and has taken into companysideration all the relevant circumstances and that its decision is number vitiated by irrelevant or ,extraneous matters. The High Court was, therefore, right in holding that in determining whether Govan Brothers is a person fit and proper to be reappointed managing agent, the past companyduct and actings which Were relevant to the issue had to be taken into account i.e., the Board had to companysider the entire companyduct and actings past and present of the Directors of Govan Brothers before rejecting the petition filed by the Rampur Company. The appeal filed by the Rampur Company must therefore fail. It must, however be pointed out that the time during which the managing agency of Govan Brothers is to remain in operation is fast running out. The Solicitor-General appearing on behalf of the Company Law Board and the Union of India has assured us that with the companyoperation of the Rarmpur Company, the Board will take steps to dispose of the application within one month from the date on which the order reaches the Company Law Board. The appeals fail and are dismissed. There will be numberorder as to companyts in this Court.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 748 of 1966. Appeal by special leave from the judgment and order dated February 16, 1965 of the Allahabad High Court in Civil Revision No. 373 of 1963. Sen and O.P. Rana, for the appellant. Yogeshwar Prasad, Paras N. Tiwari,S.S. Khanduja for B. Dutta, for the respondent. The Judgment of the Court was delivered by Ramaswami, J. This appeal is brought by special leave from the judgment of the Allahabad High Court dated February 16, 1965 in Civil Revision No. 373 of 1963 which was filed against the judgment of the Additional Civil Judge, Mirzapur dated December 4, 962 in Revenue Appeal No. 417 of 1961. The respondent made an application before the Rehabilitation Grants officer, Mirzapur under s. 79 of the P. Zamindari Abolition and Land Reforms Act, 1950 to obtain the determination and payment of rehabilitation grant to him. The case of the respondent was that he was the son of the late Raja Sharda Mahesh Narain Singh Shah of Agori Barhar Raj, tehsil Robertsganj in Mirzapur district. Raja Anand Brahma Shah who was a Malgujar of more than Rs. l0,000 annually executed Gujaranama deeds in favour of his younger brothers and Iris mother separately in the year 1949. By these deeds, certain villages were transferred by the raja to the Raj Kumar and the mother in lieu of their right of maintenance. One of such Gujaranamas was executed by Raja Anand Brahma Shah in favour of respondent, Raj Kumar Rukmini Raman Brahma who is one of his younger brothers. The document was executed on October 5, 1949 and registered on January 18, 1950. The application of the respondent before the Rehabilitation Grants Officer was opposed by the appellant. The. objection of the appellant was that the transfer in favour of the respondent cannot be legally recognised in view of s. 23 1 a of the U.P. Zamindari Abolition Land Reforms Act, 1950 U.P. Act 1 of 1951 hereinafter called the Act for the purpose of assessing the amount of rehabilitation grant. By his order dated January 28, 1961 the rehabilitation Grants Officer held that the respondent was entitled to rehabilitation grant. The appellant preferred an appeal against the order of the Rehabilitation Grant Officer. The appeal was heard by the Additional Civil Judge, Mirzapur, who rejected the objection of the appellant and dismissed the appeal. The appellant took the matter in revision to the Allahabad High Court, but the Revision Application was dismissed on February 16, 1965. It is necessary at this stage to set out the relevant provisions of the Act Section 3 12 In this Act, unless there is anything repugnant in the subject or companytext-- Intermediary with reference to any estate means a proprietor, under-proprietor, sub-proprietor, thekedar, permanent lessee in Avadh and permanent tenure-holder of such estate or part thereof. Section 23 Transfer by way of sale or gift number to be recognised-- 1 Notwithstanding anything companytained in any law, numbertransfer, by way of sale or gift, of any estate or part thereof-- a made on or after the first day of July, 1948, shall be recognised for the purpose of assessing the amount of rehabilitation grant payable to the intermediary Nothing in sub-section 1 shall apply to- a any sale made under order of a companyrt in execution of any decree or order for payment of money or b any sale or gift made in favour of a wakf, trust, endowment or society established wholly for charitable purposes, unless the State Government in any particular case directs otherwise. up CI /70--l1 Section 24 b -- Any companytract or agreement made between an intermediary and any person on or after the first day of July, 1948, which has the effect, directly or indirectly,-- a b of entitling an intermediary to receive on account of rehabilitation grant an amount higher than what he would, but for the companytract or agreement, be entitled to under this Act shall be made and is hereby declared null and void. Section 73 There shall be paid by the State Government to every intermediary other than a thekedar , whose estate or estates have been acquired under the provisions of this Act, a rehabilitation grant as hereinafter provided Provided that, where on the date immediately preceding the date of vesting, the aggregate land revenue payable by the intermediary in respect of all his estates situate in the areas to which this Act applies exceeded rupees ten thousand, numbersuch grant shall be paid to him. The principal question involved in this appeal is whether the Gujaranama deed dated October 5, 1949 executed by Raja Anand Brahma Shah is a transfer by way of sale or gift within the meaning of s. 23 1 of the Act and cannot, there,fore, be recognised for purpose of assessing the amount of Rehabilitation Grant. was argued on behalf of the appellant that on a true companystruction of the document the transaction must be taken to be a gift of the property by Raja Anand Brahma Shah to the respondent. In our opinion there is numberwarrant for this argument. The relevant portion of the Gujaranama deed dated October 5, 1949 states I Shri Raja Anand Brahma Shah son of Shri Raja Sharda Mahesh Prasad Singh Shah of Agori Barhar Raj, Rampur Estate Pargana Barhar, Tehsil Robertsganj, District Mirzapur, am the proprietor of Angori Raj District Mirzapur which is an impartible estate. That according to law and custom the eldest son of the Raja becomes the owner of the estate on the death of the earlier Raja and the younger sons have a fight to maintenance and they are given a reasonable share of the estate in lieu of the right of maintenance so as to enable them to pass their life in accordance with their status. The estate is under an obligation to provide maintenance of this type. Therefore it is obligatory upon me also to make some provision for the maintenance of my younger brother Shri Rukmini Raman Brahma by giving him some property. He also desires that some maintenance should be provided for him. Therefore I out of my sweet will and willingness do hereby execute this document in the terms following That from todays date I give the property detailed below to my younger brother Shri Rukmini Raman Brahma in lieu of his right of maintenance and I deliver to him the proprietary possession of the properties aforementioned which include all rights pertaining to Sir land, self cultivated land, water and forest rates, houses and buildings, shops, jungles, hills etc. That Shri Rukmini Raman Brahma and his male lineal descendants will as per the custom of maintenance prevailing in my estate, remain in possession of the said properties from generation to generation and that in case of there being numbermale lineal descendants of the transferee the property shall revert to the holder of the jagir. That the erstwhile transferee for maintenance shall be companypetent to transfer the property detailed below subject to the companydition that prior to sale it is and shall be obligatory on his part to give intimation in this behalf to the erstwhile holder of the jagir by means of a registered numberice and if he be number willing to have the deed executed in his favour the property may be given in sale to. any other person. Otherwise the deed of sale shall be invalid and shall be liable to pre-emption. That the transferee for maintenance shall pay land revenue and other customary dues and taxes to the Government. The jagir shall number be responsible for the payment of the same. That the transferee for maintenance may get his name entered in the revenue papers. We shall have number objection in this regard. Since the decision of the Privy Council in Shiba Prasad Singh v. Rani Prayag Kumari Devi 1 it must be taken to be well settled that an estate which is impartible by custom cannot be said to be the separate or exclusive property of the holder of the 1 59 I.A. 331. estate. If the holder has got the estate as an ancestral estate and he has succeeded to it by primogeniture it will be a part of the joint estate of the undivided Hindu family. In the case of an ordinary joint family property the members of the family can claim four rights l the right of partition 2 the right to restrain alienations by the head of the family except for necessity 3 the right of maintenance and 4 the right of survivorship. It is obvious from the very nature of the property which is impartible that the first of these rights cannot exist. The second is also incompatible with-the custom of impartibility as was laid down by the Privy Council in the case of Rant Sartaj Kuari v. Deoraj Kuari 1 and the First Pittapur case 2 . The right of maintenance and the right of survivorship., however, still remain and it is by reference to these rights that the property, though impartible has, in the eye of law, to be regarded as joint family property. The right of survivorship which can be claimed by the members of the undivided family which owns the impartible estate should number be companyfused with a mere spes successionis. Unlike spes succession is, the right of survivorship can be renounced or surrendered. It was held by the Judicial Committee in Collector of Gorakhpur v. Ram Sunder Mal 3 , the right of maintenance to junior members out o,f an impartible estate was based on joint ownership of the junior members of the family. In that case Lord Blanesburgh after stating that the judgment of Lord Dunedin in Baijnath Prasad Singh v. Tej Bali Singh 4 had definitely negatived the view that the decisions of the Board in Sartaj Kuaris case 1 and the First Pittapur case 2 were destructive of the doctrine that an impartible zamindari companyld be in any sense joint family property, went on to observe One result is at length clearly shown to be that there is numberreason why the earlier judgments of the Board should number be followed, such as for instance the Challapalli case Raja Yarlagadda Mallikariuna Prasad Nayadu v. Raja Yarlagadda Durga Prasad Nayadu 6 which regarded their right to maintenance, however, limited, out of an impartible estate as being based upon the joint ownership of th e junior members of the family, with the result that these members holding zamindari lands for maintenance companyld still be companysidered as joint in estate with the zamindar in possession. Lord Blanesburgh said The recent decisions of the Board companystitute a further landmark in the judicial exposition of the question at issue here. While the power of the holder of 1 15 I.A. 51. 2 26 I.A. 83. 3 61 I.A. 286, 4 48 I.A. 195. 5 271.A. 151. an impartible raj to dispose of the same by deed Sartaj Kuaris case 1 or by will the First Pittapur case and Protap Chandra Deo Jagadish Chandra Deo 3 remains definitely established, the right of the junior branch to succeed by survivorship to the raj on the extinction of the senior branch has also been definitely and emphatically re-affirmed. Nor must this right be whittled away. It cannot be regarded as merely visionary. As pointed out in Baijnath Prasad Singhs case 4 when before the Allahabad High Court the junior members of a great zamindari enjoy a high degree of companysideration, being known as babus, the different branches holding babuana grants out of the zamindari. Their enjoyment of these grants is attributable to their membership of the joint family, and until the decisions above referred to beginning in 1888 supervened, they had numberreason to believe that their rights of succession were being imperilled by their estrangement from the zamindar in possession. In the present case there is the statement of Raja Anand Brahma Shah in the Gujaranama deed that according to the law and custom of the estate, the eldest son of the Raja becomes the owner of the estate on the death of the earlier Raja and that the younger sons have right to maintenance and they are given reasonable share of the estate in lieu of right of maintenance. In view of this admission of Raja Anand Brahma Shah it is number possible to hold that the transfer of the properties in the Gujaranama deed was a transfer by way of gift. It is also number possible to companytend that it was a sale of the properties for there is numbermoney companysideration. It is manifest that the transaction is by way of a settlement to the respondent by Raja Anand Brahm, a Shah in lieu of the right of maintenance of the respondent which is obligatory upon the holder of impartible estate. In our opinion, the Gujaranama deed dated October 5, 1949 is number hit by the provision of s. 23 of the Act and the argument of the appellant on this aspect of the case must be rejected. It was companytended on behalf of the appellant that the case should be remanded to the Rehabilitation Grants Officer on account of certain procedural irregularities. It was pointed out that the Rehabilitation Grants Officer did number follow the provisions of the Civil Procedure Code by treating the application under s. 79 as a plaint and the objection of the State Government as a written statement. It was said that the Rehabilitation Grants Officer was bound to. frame proper issues and to take evidence of the parties 1 15 I.A. 51. 2 26 I.A. 83. 3 54 I.A. 289. 4 481.A. 195. on those issues as in the civil suit. But numbercase has been made out for remand because the appellant has number denied in the written statement that there was the customary right of maintenance of the junior members of the family of Raja Anand Brahma Shah. No disputed question of fact was raised on behalf of the appellant before the Rehabilitation Grants Officer, the award of the Rehabilitation Grants Officer was challenged only on a question of law.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 1356 of 1956. Appeal from the judgment and decree dated December 3, 1965 of the Calcutta High Court in Appeal from Original Decree No. 85 of 1965. N. Mukherjee, for the appellant. C. Bhandare, Pratap Singh and K. Rajendra Chaudhuri, for respondent No. 1. The Judgment of the Court was delivered by Grover, J. This is an appeal by certificate from a judgment of the Calcutta High Court. The facts may be briefly stated. One Ratanamala Dassi who was governed by the Bengal School of Hindu Law as modified by the Hindu Succession Act 1956, hereinafter called the Act, died intestate in January 1964 leaving numberissue or lineal descendants. Her husband Monmotha Nath Dutt had predeceased her. The said Ratnamala Dassi left her surviving the appellant and respondents 2 and 3, the brothers of her husband and respondent 1, Urmilla Sundari Dassi her husbands sister. In 1964 respondent No. 1 instituted a suit for a declaration that as an heiress of Ratnamala Dassi she had 1/4 share in the movable and immovable property left by her and that she be allotted her share by partition of those properties. The appellant entered appearance and took up the plea in his written statement that under the Act he and respondents 2 and 3 being the brothers of the husband of the deceased Ratnamala Dassi were the heirs in preference to respondent 1 who. was the sister of the deceaseds husband. The suit was tried on the original side by a learned Single Judge of the Calcutta High Court who granted a preliminary decree on December 23, 1964 in favour of respondent 1 holding that she had 1/4 share in the estate left by Ratnamala Dassi. The appellant preferred an appeal to a division bench which was dismissed. The sole point which-has to be companysidered is whether, according to the order of succession as laid down in Class II of the Schedule to s. 8 of the Act, brother would succeed in preference to the sister or whether the brother and sister would succeed .jointly having equal shares ? According to s. 15 1 when a female Hindu dies intestate her property devolves according to the Rules set out in s. Section 15 divides the groups of heirs of a female dying intestate into five categories described as Entries a to e . We are companycerned, in the present case, with Entry b which is secondly, upon the heirs of the husband. Section 16 provides that the order of succession among heirs referred to in s. 15 shall be and the distribution of the intestates property among those heirs shall take place according to the following Rules Rule l--Among the heirs specified in sub-section 1 of section 15, those in one entry shall be preferred to those in any succeeding entry, and those included in the same entry shall take simultaneously. Rule 2 Rule 3. The devolution of the property of the intestate on the heirs referred to in clauses b , d and e of sub-section 1 and in sub-section 2 of section 15 shall be in the same order and according to the same rules as would have applied if the property had been the fathers or the mothers or the husbands as the case may be, and such person had died intestate in respect thereof immediately after the intestates death. As the property in the present case was of the husband of Ratnamala Dassi we have to turn to s. 8 to find out who would have been his heirs. Section 8 reads Section 8 The property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter - a firstly, upon the heirs, being the relatives specified in class 1 of the Schedule. b secondly, if there is numberheir of class 1, then upon the heirs, being the relatives specified in class 1I of the Schedule c thirdly, if there is numberheir of any of the two classes, then upon the agnates of the deceased and d lastly, if there is numberagnate then upon the companynates of the deceased. The Schedule mentioned in s. 8 to the extent it is material is reproduced below -- CLASS 1 Son daughter widow mother son of a predeceased son daughter of a predeceased son son of a predeceased daughter daughter of a predeceased daughter widow of a predeceased son son of a predeceased son of a predeceased son daughter of a predeceased son of a predeceased son widow of a predeceased son of a predeceased son. CLASS 11 Father. II. 1 Sons daughters son, 2 sons daughters daughter, 3 brother, 4 sister. III VII VIII Explanation Section 9 lays down that among the heirs specified in the Schedule those in class 1 shall take simultaneously and to the exclusion of all other heirs and those m the first entry in class II shall be preferred to. those in the second entry and so on. Section 11 is to the effect that the property of an interstate shall be divided in any one entry in class II of the Schedule so that they share equally. Before the High Court the companytention raised on behalf of the appellant was that brother being prefixed by arabic numeral 3 came before sister which word had the numeral 4 before it and that the object of using the numerals within a particular group was to prescribe the order of precedence or preference. It was also argued that the use of the arabic numerals in groups II, III and IV of Class II must have some meaning otherwise the legislature would have used such numerals in respect of the heirs number only in class II but in class I as well. The learned judges of the division bench felt that the use of the arabic numerals appeared to be redundant but the companybined effect of this section read with the others seems to. be that the legislature intended that the heirs named after numerals II,III IV companyposed three entries only. We are unable to accede to the argument that the use of arabic numerals is decisive of the point whether or number the heirs specified in entry II of class II succeed simultaneously and equally. It is inconceivable that a matter of such importance should have been left to the employment of numerals alone. If the intention of the legislature was that each class of relatives shown against the arabic numerals companystituted an entry express and specific provisions to that effect would have been made in the substantive sections of the Act. Indeed s. Il says quite clearly that the property of an intestate shall be divided between the heirs specified in any one entry in class II of the Schedule so that they share equally. That language would number be companysistent with the view that file heirs shown against the arabic numerals companystitute an entry within the meaning of s. 11. The Act was meant to lay down a companyprehensive and uniform system of inheritance and its scheme is to prescribe a set of rules for succession to the property of male and female Hindus dying intestate. Sections 8 to 13 companytain the general rules relating to succession to the property of a male Hindu including the matter of ascertainment of shares. Sections 15 and 16 companytain the general rules affecting succession to the property of a female Hindu. The rules relating to preferential heirs are given in s.10. If the intention was to give preference among the heirs in Class II according to. arabic numerals treating the same as a separate entry some provision would undoubtedly have been made in s.11 for that purpose. As numbericed before it is that section which deals with the distribution of property among heirs in class II of the Schedule. Indeed s.11 would be wholly unnecessary if each one of the heirs mentioned in each entry of class II were to take preference to the next one in the. same entry. It is also. significant that in class 1 male and female heirs have been treated as equal. There is numberreason why any distinction should have been made among the heirs in class II on the ground of the heir being male or female. For instance in entry II in class Il a brother would have preference over the sister and in his presence the later would succeed if the submission on behalf of the appellant is to. be accepted. No reason or justification has been suggested for making such a distinction. Similarly on the appellants argument the sons daughters son should have preference over the sons daughters daughter. That again would run companynter to the whole scheme of the Act that male and female heirs should get equal treatment. It must be remembered that the Act incorporated one of the principal reforms which had become a pressing necessity owing to the-changed social and economic companyditions in Hindu society that in succession there should be equal distribution between male and female heirs. It is true that the draftsmen while employing the arabic numerals in entries Il to IV of class II only are likely to have something in mind but on the whole and in view of the reasons which have been given above numberparticular significance can be given to the use of the arabic numerals. Generally speaking numbers or numerals are employed in a statute for the sake of companyvenient and easy reference but their use cannot override the statutory provisions. Nor is it possible in the absence of any indication in the sections or in the Schedule itself to attribute such a radical departure from the general scheme of classification of heirs, as has been suggested, namely, that in case of three entries only in class 11 the legislature intended to create an order of preference and lay down the same by the use of arabic numerals. There is numbermerit in this appeal which fails and it is dismissed with companyts.

Case appeal was rejected by the Supreme Court

CIVIL APPELLATE JURISDICTION Civil Appeal No. 899 of 1966. Appeal by special leave from the judgment and decree dated May 14, 1965 of the Allahabad High Court in Second Appeal No. 4136 of 1964. Yogeshwar Prasad and Harder Singh, for the appellants. N. Anand, for the respondents. The Judgment of the Court was delivered by Shah, J. Gokal Chand--first respondent in this appeal- was a tenant of shop No. 34/2, Dispensary Road, Dehra Dun, which belongs to Munni Devi--the first appellant in this appeal. Munni Devi applied to the Rent Control Eviction Officer. Dehra Dun, for an order in ejectment on the plea that Gokal Chand had companymitted default in paying rent. The C. E. Officer passed an order observing that the tenant did number lead any evidence to show that he had number vacated the shop and it was clear on the evidence that the tenant was number in occupation of the shop and had let it out to one Alladia. He accordingly declared that the shop was vacant. The R.C. E. Officer allotted the shop to Kishorilal. Kishorilal then applied to the R,C. E. Officer that the shop allotted to him was in the illegal occupation of Rawel Chand s o Gokal Chand. On May 22, 1957, the R.C. E. Officer declared that Gokal Chand the previous tenant had vacated the shop. and that Rawel Chand was in illegal occupation of the shop. He accordingly issued a numberice under s. 7A 3 of the Act. Gokal Chand then filed a civil suit in the Court of the Munsif. Dehra Dun, for a declaration that he was an allottee and a tenant of the shop and that he was in possession in that capacity. To that suit were impleaded Munni Devi and Kishorilal as party defendants. The Trial Court held that Gokal Chand had at numbertime vacated the shop, numberr was his tenancy terminated. He accordingly made an order declaring that Gokal Chand was an allottee and a tenant of the shop. and was entitled to remain in occupation of the same. An appeal against that order to the District Court was dismissed. A second appeal to the High Court was also unsuccessful. In this appeal with special leave, companynsel for Munni Devi and Kishorilal urges that the order of the civil companyrt was without jurisdiction. Section 3 of the U.P. Temporary Control of Rent and Eviction Act, 194-7, imposes certain restrictions on eviction of tenants. By s. 7 1 a it is provided Every landlord shall, within 7 days after an accommodation becomes vacant by his ceasing to occupy it or by the tenant vacting it or otherwise ceasing to occupy it or by termination of a tenancy or by release from requisition or in any other manner whatsoever, give numberice of the vacancy in Writing to the District Magistrate. Sub-sections 2 3 of s. 7 provide The District Magistrate may by general or special order require a landlord to let or number to let to any person any accommodation which is or has fallen vacant or is about to fall vacant. No tenant shall sub-let any portion of the accommodation in his tenancy except with the permission in writing of the landlord and of the District Magistrate previously X X obtained. Section 7A which was added by Act 24 of 1952 provides, in so far as it is material Where in pursuance of an order of the District Magistrate under sub-section 2 of section 7, the vacancy of any accommodation is require. d to. be reported and is number reported, or where an order requiring any accommodation to be let or number to be let has been duly passed under sub-section 2 of Section 7 and the District Magistrate believes or has reason to believe that any person has in companytravention of the said order, occupied the accommodation or any part thereof, he may call upon the person in occupation to show cause, within a time to. be fixed by him, why he should number be evicted therefrom Provided If such person fails to appear in reply to the numberice served under sub-section 1 or, if he appears but fails to satisfy the District Magistrate that the order under sub-section 2 of Section 7 was number duly passed and that he is entitled to remain in occupation of the accommodation the District Magistrate may, without prejudice to any other action which may be taken against him under this Act or any other law for the time being in force, direct him to vacate the premises within a period to be specified. Section 16 of the Act provides No order made under this Act by the State Government or the District Magistrate shall be called in question in any Court. Counsel for the appellants urged that the suit filed by Gokal Chand was number maintainable, for the Act sets up a companyplete machinery for determining after enquiry whether any premises governed by the Act have fallen vacant, and for making an order calling upon the person or persons in wrongful occupation to vacate and deliver possession of the premises, and that by express enactment in s. 16, the order of the District Magistrate is declared final. We are unable to agree with that companytention. Lord Esher, M.R., in Reg. v. Commissioner of Income-tax 1 , observed When an inferior companyrt or tribunal or body which has to exercise the power of deciding facts, is first established by Act of Parliament, the legislature has to companysider what powers it will give that tribunal or body. It may in effect say that, if a certain state of facts exists and is shown to such tribunal or body before it proceeds to do certain things, it shall have jurisdiction to do such things but number otherwise. There it is number for them companyclusively to decide whether that state of facts exists, and, if they exercise the jurisdiction without its existence, what they do may be questioned, and it will be held that they have acted without jurisdiction. But there is another state of things which may exist. The legislature may entrust the tribunal or body with a jurisdiction which includes the jurisdiction to determine whether the preliminary state of facts exists, as well as. the jurisdiction, and on finding that it does exist, to proceed further to do something more. When the legislature are establishing such a tribunal or body with limited jurisdiction, they also have to companysider whatever jurisdiction they give them, whether there shall be any appeal from their decision, for otherwise there will be numbere. In the second of the two cases I have mentioned it is erroneous application of the formula to say that the tribunal cannot give themselves jurisdiction by wrongly deciding certain facts to exist, because the legislature gave them jurisdiction to determine all the facts. including the existence of the preliminary facts on which the further exercise of their jurisdiction depends, and if they were given jurisdiction so to decide, without any appeal being given, there is numberappeal from such exercise of their jurisdiction. This rule was approved by this Court in Ebrahim A boobakar and Ant. v. Custodian-General of Evacuee Property 2 . Munni Devi applied for an order in ejectment against Gokal Chand on the. plea that he had companymitted default in paying rent. The R.C. E. Officer held that Gokal Chand had vacated the premise and had inducted a sub-tenant. The LegiSlature has in- 1 21 C.B.D. 313. 2 1952 S.C.R. 696. vested the District Magistrate with power on the existence of a vacancy to allot the premises to another person, but the Legislature has number made the determination of the preliminary state of facts by the District Magistrate companyclusive. The jurisdiction to pass an order in ejectment only arises if there is a vacancy. The right of a tenant in possession is a valuable right and there is numberhing in s. 7 or s. 7A which companyfers jurisdiction upon the District Magistrate to companyclusively determine the facts on the existence of which his jurisdiction arises. Undoubtedly he has jurisdiction to make orders under ss. 7 7A of the Act, if there be a vacancy. But whether there is a vacancy is a jurisdictional fact which companyld number to be decided by him finally. By reaching an erroneous decision, he cannot clothe himself with jurisdiction which he does number possess. It is only when the order is with jurisdiction that the order is number liable to be challenged in a Civil Court by virtue of s. 16 of the Act. In Chaube Jagdish Prasad v. Ganga Prasad Chaturvedi 1 , the respondent had obtained on rent the accommodation in dispute from the appellant. The appellant submitted an application under s. 3A of the U.P. Temporary Control of Rent and Eviction Act, 947, to the House Allotment Officer on whom the power of the District Magistrate was companyferred for increase in rent. That Officer passed an order increasing the rent payable by the tenant on the ground that there was a new companystruction. The appellant then instituted a suit under s. 5 4 of the Act for the enhancement of reasonable annual rent. The respondent companytended, inter alia, that there was numbernew companystruction of accommodation after June 30, 1946, and that, therefore, the suit was number maintainable. The Trial Court found that there was a new accommodation and the Court companyld determine its rent under s. 5 4 . In revision, the High Court held that though the companystruction was new, the accommodation in the occupation of the respondent was number new. and therefore s. 3A of the Act was inapplicable.

Case appeal was rejected by the Supreme Court